Document: WT/DS99/8 Page 3 ATTACHMENT A
Document codes: WT/DS99/8
Complainant: South Korea
Respondent: U.S.
Third parties: EU
Dispute stage: Mutually Agreed Solution
Agreements cited: Art. 2, 3, 5.8, 6, 11, 17, 17.6(i)  Anti-dumpingArt. I, VI, X  GATT 1994

ATTACHMENT A

51236 Federal Register/Vol. 64, No. 183/Wednesday, September 22, 1999/Ru!zes and Regulations

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prohibited off-the-record
communication,

(2) Ifa person knowingly makes cr
causes to be made a pronibited off-the-
record communication, the Commission
may disquailfy and deny the person,
tamporcarity or pecmanendy, the
privilege of practicing ar appearing
before it, in accordance with Rule 2102
(Suspension).

(3) Commission employees who are
found to have knowingly violated this
rule may be subject ta the disciplinary
actions prescribed by the agency's
administrative directives.

(j) Section not exclusive. (1) The
Commission may, by rule oc order,
modify any provision of this section as
it applies to all or part of a proceeding,
to the extent permitted by law,

(2) The provisions of this section ace
not intended to limit the authority of a
decisional employee to decline to
engage in permitted off-the-record
communicauons, or where not required
by any law, statuta or regulation, to
make a public disclosure of any
exempted off-the-record
communication.

8. The heading of § 385.2202 Is
cevised to read as follows:

§ 385.2202 Separation of Functions (Rule
2202).

Note: This Appendix will not appear In the
Code of Federal Regulatians

Appendix A—List of Commenters

Adirandack Mountain Club

Advisory Council on Histori¢ Preservation
(ACHP)

American Gas Association (AGA)

ANR Plpeline Compuny/Colorado Interstate
Gus Company (ANR/CIC)

Bonneville Power Administradon (GPA)

California Electric Oversight Board (Cal
Saaed)

Chevron Pige Line Company (Chevron)

Edisan Eleceric Insusuts (EE)

Eleciric Powar Supply Association (EPSA)

Envtrontnental Protection Agency EPA)

Executive Office of the PresidenU’Council on
Environmental Quality (CEQ)

Hydropower Reform Coalltlon (ARC)

Indicated Shippers

Intarstuce Natural Cus Association of America
CNGAA)

Louisiana Department of Wildlife And
Fisherias (La W&F)

Nasional Association of Regulatory Uulity
Camrnlssianess (NARUC)

Natlonal Mavine Fishesies Services (NMFS)

National Hydropower Associadian (NEA)

Nasional Rural Electric. Coopecutive
Assoclatian/American

Public Power Supply Assoclution Joint
Commenters)

Natural Gas Supply Association (NGSA)

Public Service Commission of New York
(PSCNY)

Public Utilities Commission of State of
Californla (PUCCAL)

Public Utilities Cominission of Stace of
Callfernia/Independent (Cal-ISO) System
Operator

Process Gas Consumers Group (Process Gas)

Sacramento Municipal Uullues District
(SMUD)

Sempra Enacgy Companies (Sempra)

Southem California Edison Company
(SoCalEd)

Souchern Compantes Services, Inc. (SCS]}

Southern Natural Gas Company (SeNat)

Unitad Sates Department of the Jaterior
({ntecior)

Williams Compantes (Williams)

Willlston Basin Interstate Pipeline Company
(Williston)

Wisconsin Public Power, Inc, (WPPI)

(FR Doc, 99-24616 Filed 9-21-99; 8:45 am]
BILLING COGE 8717-41-95

DEPARTMENT OF COMMERCE
Intemational Trade Administration

19 CFR Part 351
(Dockot No. 990521 142-9252-02)
RIN 0625~AA54

Amanded Ragulation Concerning the
Revocation of Antidumping and
Countervailing Duty Orders

AGENCY: Import Administration,
International Trade Administradon,
Commerce,

ACTION: Final rule.

SUMMARY: The Department of Commerce
(the “Department” or DOC") is
amending its regulation, which govems
the revocation of antidumping and
countervalling duty orders, in whole or
in part, and the termination of
suspended antidumping and
coumervailing duty Investigatlons,
based upon an absence of dumping or
subsidization, respectively, The
amended regulation conforms the
existing regulation to the United States’
obligations under Article 11 of the
Agreementon the Implementation of
Article V[ of the General Agreement on
Tariffs and Trade 1994 (“Antidumping
Agreement’) and Article 2] of the
Agreementon Subsidies and
Countervailing Measures (“SCM
Agreement’), The amended paragraph
relating to revocation aor termination
based on absence of dumping provides
that the Secretary, upon considering
whether producers or exporters have
sold subject merchandise at not less
than nocmal value far at least three
consecutive years, and whether the
continued application of the
antidumping duty order is otherwise
necessary to offset dumping. Wil revoke
an antidumping duty order If warranted.
The amended paragraph relating to

revocaticn cr termination based on
absence cf countervallable subsidy
provices (hat the Secretary, upon
considsving whether the government of
the affzcced country has eliminated all
counterallable subsidy progcams

least three consecutive years, or
exporters cr producers hava nat applied
for oc received countervailable subsidies
foe at seas: five consecutive years, and
whethe: the continued application of
the countervailing duty order Is
othenvise necessary to offset
subsidization, will revakea
countervailing duty order if warranted.
EFPECTiV2 DATE: November 1, 1999.

FOR FURTHER INFORMATION CONTACT:
Mellssa G. Skinner, Office of Policy,
Impor: Administration, U.S, Department
of Commerce, at (202) 452-1560, or.
Myles S, Getlan, Office of the Chief
Counse! for Import Administration, U.S.
Department of Commerce, at (202) 482-
6052,

SUPPLEMENTARY INFORMATION:

Background

On Jung 3, 1999, the Department
published a Notice of Proposed
Rulemaking which proposed ta amend
19 CFR 351,222(b).! See 64 FR 29318
(the “Proposed Rule’). The Deparcment
expleined that the process of amending
this regulation arose from the findings
of a dispute settlement panel convened
under the auspices of the World Trade
Organization ("WTO") that considered
various aspects of the Department's Final
results cf administrative review in
Dynamic Random Access Memory
Semiconductors (DRAMs) Of One
Megatic Or Above From Korea (62 FR
39809, July 24, 1997) ("DRAMs From
Korea").

On january 23, 1999, the Panel
determined that the Department's

duty order contained in 19 CFR
353.25 (3}(2) (the erecursor to 19 CFR
351.222) was Inconsistent with (ne
United States’ obligations undec Article
11.2 cfthe WTO Antidumping
Agreement. See United States—Antl-
ming Duty en Dynamic Random
Access Memary Semiconductors
(DRAMS} ef One Megabit or Above
Fromm Xorea, WT/DS99/R ("Panel
Recer:’), Specifically, the Panel
determined that requiring the Secce lary

tThts amandment docs pot affcet the ich
Deparonent’s regulations ar 19 CBR 351.718, wh
tmp 3 (Ne statutary provision at td U.S.C.
1675iz} and gowcens the Deparuacat’s flumy sat
aunactteviews, ia which the Cepaciment
determines whether revocation of an ode woule
be Iacty 12 Icad to continuation of recurrence O+
dumping cf a counter-nilepic subsicy (as the case
may bi} and of matcrlat injury.”

Federal Register/Vol. 64, No. 183/Wednesday, September 22, 1999/Rules and Regulations

51237

eee eee eee

to conclude that “itis not likely” that
the persons requesting revocation will
dump merchandise subject to an
antidumping ducy order in the future
did not implement properly Article 11.2
of the Antidumping Agreement. This
provision requires an administering
authority to considec- whether “the
ecntinued imposition of [an
antidumping] duty is necessary to offset
dumping” in determining whether to
revoke an antidumping duty order.
Thus, the Pang! recommended that the
United States “bring section
353.251a)(2) (ii) of tne DOC regulations

* * * inte conformity with its
chligations under Article 11.2 of the AD
Azrezrnent.”’ The Dispute Sattlement
Body (‘DSB’) adopted the Panel Reporc
on March 19, 1999. On April 15, 1999,
the United States announced! its
intention to implement the
recommendations and rulings of the
DSB Cansistenc with section 123(g) of
he Uruguay Round Agreements Act
("GRAA"), which governs the
Department's implementation of adverse
panel reports, the Department is
revising 19 CPR 351.222(b) and (c).

Explanation of the Fina] Rule

The proposed amendment to the
Department's revocation regulation
concerned only antidumping
proceedings, as the Department focused
upon implementing the specific
findings contained in the Panel Report.
Consequently, at tnat time, the
Department did not prapose amending
the companion revocation provision
applicable to countervailing duty
proceedings. However, we helleve that a
decision not to amend tne
countervailing duty provision would
render the revocation standards in
antidumping and countervailing duty
cases Inconsistent with each other, The
“not likely” standard in 19 CFR
351.222(b), which governs the
revocation of antidumping duty orders,
ts Identical te the standard in 19 CFR
351.222(c), which governs revocation in
countervailing duty cases. In addition,
the “necessary” standard in Article 1)
of the Antidumping Agreement, to
which we have conformed the
antidumping regulation, is identical to
the standard in Article 21 of the SCM
Agreement which regulates the duration
ef countervailing duties. Since the
revocation standards In the two WTO
agreements are identical, and since at
lease one party commented on this issue
during the public comment period, we
conclude that the public was on notice
chat the countervailing duty cegulation
could similarly be cevised, Therefore,
we are making conforming amendments
to the countervailing duty provision as

well in order to mainuin consistency
between the Department's procedures
governing revocation in both
antidumping and countervailing duty
cases and the standards in both the
Antidumping Agceement and SCM
Agreement.

In addition, in response to cornments,
the final rule incorporates several
changes to the Proposed Rule. First, the
language which read “{t}he Secretary
may revoke an antidumping order
+ * ¥ has been altered to read “|t}he
Secretary will revoke the antidumping
duty order." Second, the Anal rule no
longer states that the Secretary will
consider whether the continued
application of the order is “no longer
necessary to offset dumping,” Instead,
the final rule provides that, inter alia,
the Secretary will consider "whether the
continued application of the
anudcumiping duty erder is otherwise
necessary to offset dumping.” These
changes are discussed in more detall
below,

We recelved comments concerning
the Proposed Rule from various parties,
One commenter believes that the
proposed revision to the Department's
regulation, which incorporates the
standard set forth in Article 11.2 of the
WTO Antidumping Agreernent,
responds appropriately to the concerns
articulated by the WTO panel decision
and represents a fair implementation of
the panel's recommendation. Moreover,
this commenter states that the praposed
revision should not negatively affect the
protection afforded U.S. industries
against unfairly traded imports.

Several commenters Insist that the
revised “necessity” standard is
“effectively nat a standard at all.” In
this respect, these commenters note the
Panel's finding that there must be a
dernonstrable basis for consistendy and
rellably determining that the
maintenance of an order Is necessary ts
otiset injurious dumping. These
commenters contend that the Prop
Rule contains no guidelines or
definitions of the “evidence” that would
be relevant to the continued necessity of
an order. Consequently, these
commenters argue that the Propased
Rule will not improve the
demonstrability, consistency, and
reliabllity of revocation decisions er
ensure that declsjons to malntain
antidumplng or countervailing duty
orders ace based upon positive evidence
demonstrating the continued need for
tha order, One cammenter suggests that
usinga “likely to recur” standard
“svyould have been the most logical,
direct means to meet the WTO
requirement that a positive finding is

2
osec

necessary to SUDpo©r continuation ofan
[ancidumping duty] order.”

However, another commenter noted
that the amended regulation establishes
a “necessity” standard which reflects
the same standard established in the
Antidumping Agreement. Thus, this
commenter believes the revised
standard does in fact provide the
“demonstrable basis upon which ta
reliably conclude that the continued
impositicn cf the duty is necessary to
offset dumaing.”

We disagree with those commenters
who state that the revised “necessity”
standarc is “effectively nota standard az
all.” Aricls 11.2 of the Antidumping
Agreementallows interested parties ta
request authorities to examine whether
the continued Imposition of the duty ts
“necessary” to offset dumping. To say
thar the “necessity” standard contained
in the Desarunent’s revised regulation is
effectively no standard at all is to say
that Article 11.2 contains no standard.
This Is illogical given that thls pracess
of revising the revocation regulation
stems from a panel finding that the

epartment's exiscing regulation did not
properly implement the “necessary”
standard contained in Article 11,2, On
the other hand, we agree that each
determination made pursuant to this
new regulation will need to be
supported by positive evidence,
Moreoyer, we are confident that the
revised standard, along with our
established practice of considering
evidence relating to the likelihood of
future dumping, will provide for
consistent and reliable decisions
regarding revocation.

One commenter urges the Department
to discontinue Its practice of applying a
presumption in favor of revocation in
the absance of dumping for three
consecutive years. As support, this
commenier cefers to the Court of
Intemational! Trade’s (“CIT”)
characterization of the Department's
regulation as a three-part test for
revocation and states that the "not
Ukely" (or the revised necessary”)
prong censtitutes an independent
criterion chat must be established tc
attain revocation. See Hyundai
Electronics Co., Led. v. United States,
Slip. Go. 89-44 (Cu Int] Trade, May 18,
1999), Tris commenter belleves tnact tne
cresumztion nullifies the satisfaction ef
the secend (‘‘necessary") prong.

In this regard, cwo commenters asser
that a presumotion favoring revocation
uniairly and improperly shifts the
burden te petitioners to come forwar
with affirmative evidence, Since
respondents are in possession of
information relevant to revocation, 2s
argued by these commenters, the burden

51238 Federal Register/Vol. 64, No. 183/Wednesday, September 22, 1999/Rules and Regulations

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of producing such evidence should rest
with the respondents. One commenter
recuested Chat the Department include
in its inital questionnaire a solicitation
of data and ccher information from the
rescondent seeking revocation on why
the antidumping duty ocder in the
respondens's opinion Is no longer
needed to offset dumping. While chis
commenter conceded that this
procedural element could be
implemented without regulatory
modification, the commenter contended
that there was no reason that sucha
provision could nat be incorporated In
the regulations.

By contrast, several commenters
stated that the revised regulation
continues ta place a burden on
respondents to prove eligibillty for
revocation, rather than placing the
burden on che Department to find
positive evidence establishing that the
maintenance of the order is necessary.
These commenters contend that placing
the burden on the Deparement
necessitates a reformulation of the
regulation, such that the revised
reguladon should nat treat maintaining
the order as the norm. Thus, these
commenters suggested that the new
regulation require the Secretary’ to
revoke if the respondent has not
dumped for three consecutive years and
has furnished the required ‘
reinstatement agreement, “unless the
Sacratary reliably demonstrates on the
basis of a foundation of positive
evidence that the continued application
of the antidumping duty order as to the
experter of producer is necessary to
offset dumping,”

However, one commenter welcomed
the Deparument’s confirmation that the
regulation reflects a rebuttable
presumption that favors revoking an
order when there is an absence of
dumping for three or more years, In this
regard, tnis commenter States that che
initial burden should clearly rest on the
petitioners, as the beneficiaries of the
continuation of the arder, to provide
evidence that the order is still
necessary. Thus, this commenter states
tha: che Department should not request
information from a respondent until
petidioners make allegations supperte?]
by tangible evidence chat the order is
stil necessary.

As discussed in the Proposed Rule, in
Situations where there is an absence of
dumping (or subsidization) for three (or
five) consecutive years, the Departmen:
intends to presume that an order is not
necassary in the absence of additional
evidence. We believe that sucha
presumption is consistent with prior
Department practice as well as U.S.
obligations under Arcicle 11.2 of the

Antidumping Agreement and Article
21.2 of the SCM Agreement. As the
Panel recognized, a decision to matntain
an order must be substantiated by
pasitive evidence. [f the anly evidence
on cecerd is 2 respondent's ability to sell
subject merchandise at nat less than
normal value for three consecutive
years, the record would not support a
decision to maintain the order in Jighe
of the requirementin Article 12.2, as
interpreted by the Panel, that there be
positive evidence reflecting the
continued necesslty of che order.

We decline at this time to adopt the
commenter's suggestion that we solicit
informatton fram respondents at the
outset of an administrative review, The
absence of dumping for three
consecutive years,2 while satsfying the
ficst prong of the regulatory standard, is
also sufficient evidence relevant to the
continued necessity of the order to shift
the burden of production to the
petitioners. However, ifa party raises an
issue relating to the necessity of an
order, the Department may seek
additional information relevant to that
issus, Nonetheless, Since the manner in
which we collect evidence is not
necessarily a cegulatory matter, we may
revisit chis |ssue ata later time in the
development of our practice in applying
the revised regulation,

We disagree with those commenters
who suggest that the revised regulation
continues to place a burden on
respondents, rather than the
Department, to prove eligibility for
revocation. The threshold requicement
for revecation continues to he that
respondents not sell at less than normal
value for at least three consecutive years
and that, during each of those years,
rescondents exported subject
merchandise co the United States in
commercial quantities. See 19 CFR
351.222(d)(1). The Panel did nat diseurt
this aspact cf tha Department's
revocation practice, Mareover, we re-
emphasize our statementin the
Progased Rule that the absence of
dumping for three consecutive years
served as a presumption in favor of
cevoxing the order, which could be
rebutced by positive evidence indicating
that dumping may recur if the order
were revoked." Thus, we disagree that
an impermissible burden is placed on
respondents. Instead, a thorough
analysis of all relevanc information
requires a system in which there is a
shifting burden of production such that
tha parties in the best position to

2 In accordance with 19 CFR 34}.222(} (i, to be
considered for revocation, (he producers and
exporters must have sold the subject meschandise
In commercial quantidcs fn each ofthe diece years

provide relevant information are
compelled to do so, All partles may be
in a posidion to provide Information
concerning trends in prices and costs,
curcency movements, and other markat
and economic factors that may be
relevantto the likelinced of future
dumping. lf no party provides
information addressing these issues, wa
rest with the pcesumption that an order
is not necessary in the absence of
dumping. Ef the petitioner comes
forward with information demonstrating
that the maintenance of the order is
necessary, that initial presumption 1s
rebutted, and the burden of production
shifts to respondents, While the burden
of praducing evidence shifts among the
parties, we emphasize that the
Department does not impose a burden of
proof on any party. Tne Department
must weigh all of the evidence on the
recard and determing whether the
continued application of the order is
necessary to offset dumping (or
subsidization), Each revocation
determination must be based upon
substantia), positive evidence and be
otherwise in eccordance with law.

One commenter stated that, unlike the
“not likaly’” standard, “necessity” is a
minimum standard that has no shades
or degrees within it. Stated differently,
something that is nat “no longer
necessary’ is necessary.

* Haweve-, another commenter claimed
that the Department's revised standard
retains the negative and passive
elernents which rendered the prior
regulatory standard inconsistent with
the Antidumping Agreement This
commente; noted the Panel's distinction
between failing to establish something
as a negative finding and establishing
something as 2 positive finding in the
context of the ‘not Iixely” criterion and
concluded that this same principle
applies to the procosed regulation.

We have formulatad the final rule in
away thet clarifies that thé Secretary
must make an affirmative finding of
necessity in erder to retain an
ancidumsing or countervailing duty
order, Vrnile this reformulation does not
affect the process by which the
Deoartment considers revocation, the
reformuiated regulation more closely
tracks the wording of Article 11.2 of the
Anudumping Agreement and Article
21.2 of the SCM Agreement.

Severe! commenters argue that the
continued use of tne discretionary tem
“may"’ in the Proposed Rule conflicts
with the mandatory term “shall”
cantained tn Article 11.2 of che
Antidumping Agreement. These
commenters suggest that the Panel
rejected the existing regulation, in part
because the regulation allows the

Federal Register/Vol. 64, No. 183/Wednesday, September 22, 1999/Rules and Regulations

91239

prea te EE ener APS eugene STN

a tC AL ir

Department to maintain an order where
Acicla 11.2 af che Antidumping
Apgreament requires cevocation. Thus,
thase commenters beligve that the
Pecpased Rule, which contains the
ermissive "may" and not the
mandatory “shall” or “must,” Ls
inconsistent with te Panel's findings.

In che final rule, we have substituted
the term “will” for ““may,’’ We do not
agree that the use of the term “may”
imbued the Department with unbridled
discretion In making revocation
determinations, as argued by these
commenters The Department's
determinations are constrained by
general legal principles. Every decision
must be based upon substantial
evidence and otherwise in accordance
with Jaw. In addition, each decision
must be consistent with prior practice
unless we reasonably explain the
departure fram prior practice. However,
by adopting the "necessary" standard
contained in the Antidumping and SCM
Apceements, we are persuaded that it js
more appropriate to use the term “wil)”
instead of che term “may"' in the
amended regulation. The "necessary"
standacd represents the full spectrum of
circumstances undec which the
Department could maintain an order
and be consistent with the United
States’ WTO obligations under Article
11.2 of the Antidumping Agreement and
Article 21.2 of the SCM Agreement. In
other words, considering the
comprehensive nature of the new
standard, the Secretary can only retain
an antidumping or countervailing duty
order if cnere is positive evidence on the
record indicating tne continued
necessity of sucn order to offset
dumaing or subsidization, Thus, In
accordance with Article 11.2 of the
Antidumping Agreement and Acticle
21.2 af the SCM Agreement, we are
substituting tre tecm “will” for “may”
in the amended regulation.

Several commentars took issue wth
the Deparement'’s ciaim {n the Proposed
Rulez chat the "Panel's ruling was net
based upon the Department's
application of the standard in DRAMs
from Korea’ These commenters noce
chat the Panel specifically found tnat the
regulation and tha third review final

asules in DRAMS were inconsistent
with Acticle 11.2 ef tna Antidumping
Agreement.

Vhile we acceet tnat, based upon the
inconsistency of tha revecation
regulation agplied Ja DRAMs from
Korea with the Antidumping
Agreement. the Panel Invalidated the
chicd review final results, we maintain
that several aspeccs of our practice were
not tnvatidated by the Panel and, thus,
do not require revision. As discussed

above and in the preamble to the
Proposed Rule, we continue to bellave
that, while an absence of dumping for
thrve years js evidence that the
antidumping duty order Is no longer
necessary, iL is not conclusive in all
cases, Evidence relating te the
likelihood of future dumping will still
be considered under the revised
regulation because such evidence relates
to tha necessity of the order, Thus,
while the Panel decision necessitated
revising the standard by which the
Department considers revocation, it did
not necessitate changes ta these specific
aspects of our practice,

One commenter, cidng Hyundai
Eleccronics, in which the CIT affirmed
the Department's final results of
administrative review in DRAMs from
Korea, argued that {t ls unnecessary to
amend the regulation because the CIT
determined that the ‘not ikely”’
standard Is consistent with U.S,
jntemational obligations and with U.S.
obligations under Article 11.2 of the
Anuddumping Agreement,

The CIT decision in Hyundai does not
preclude amending the regulation in
question, While the Court stated that the
Panel Report wes nat binding
precedentia) authority on the Court, it
recognized that "Congress provided that
the response to an adverse WTO panel
report ts the province of the executive
beanch and, more particularly, the
Office of the U.S. Trade
Representative.” The United States
Trade Representative and the DOC have
decided to respond to the Panel Report
by amending the regulation in question,
and we are confident that the amended
regulation, if challenged, will be found
to be consistent with the statute as well
as U.S. obligations under the WTO
Antidumplig Agreement.

Another commenter expressed
concern with the Department's practice
of relating an absence of dumpling to
declining imports following the
imposition of an order. This commenter
asserts that numerous factors, Including
changes Jn the strengths of alternative
markets, exchange rates, changes in
producttan capacity, changes ia
marketing stracegtes, and changes in the
technology of production, may
contribute to the decline in tmperts
rathae than the exporter’s inability to
sell da the US. market without
dumping

This matter ts appropriate for
consideration on a case-by-case basis,
rache: chan in a rulemaking proceeding
because, as the commenter suggests,
numerous factors underlying an absence
of dumping may be cansidered when
evidence relating to those factors is

develeped on the record of each
procezcinz

Classification
Executive Order 12856

This rule has been determined ta be
not significant under Execudve Order
12865,

Paperwerk Reduction Act

This ruts contains no new collection
of information subject to the Paperwork
Reductisn Act, 44 U.S.C, Chaater 35.

Executive Order 12612

This rule does not contain federalism
implicacdans warranting the preparation
of a Federalism Assessment

Regulatsry Flexibility Act

7

In issuing the proposed regulation,
the Chie! Counsel for Regulation of the
Department of Commerce certlfled to
the Chief Counsel for Advocacy of the
Small Business Administration that this
rule would not have a significant
economic Impact ona substantial
number cf smal entides. The
Department's existing regulations
provide 2 procedural and substantive
process by which the Secretary
considers whether to revake an
antidumping duty order. The rule
retains the current procedural process
and revises the substantive standard
used by the Secretary to make the
appropriate revocation determination.
As discussed above, the regulation
would net slanificantly change the
Department's practice in determining
whether to maintain an aaticumplng
duty crcer. Moreover, as the revised
regulation only changes the standard by
which the Department considers
whether to revoke an antidumping duty
order, this action, in and of itself, wil]
not haz a significant economic impact.
Therefore, the Chief Counsel concluded
thas tha rule would not hava a
significant impact ona substantial
numbe: of small business entities, and
a regulatcry flexibility analysis was not
prepares We received no comments
concerning this conclusion.

List of Subjects in 19 CFR Part 351

Administrative practice and
procedure, Antidumping duties,
Business and industry, Cheese,
Confidential business information,
Countervailing duties, Investigations.
Reporting and recordkeeping
requirements.

51240 Federal Register/Vol. 64, No. 183/Wednesday, September 22, 1999/Rules and Regulations

Dated: Sepeambdar 15, 1999.
Richard W. Moreland,
Acting Assistant Secretary fer [mport
Atiminisyration,

For the reasons stated, 19 CFR part
35] is amended to read as follaws:

PART 351—ANTIDUMPING AND
COUNTERVAILING DUTIES

1. The authority citation for part 351
continues to cead as follows:

Authority: 5 U.S.C. 301, 19 U.S.C, 1202
note: 19 U.S.C 1303 note: 19 U.S.C. 167) ef
segiand 19 US.C, 3538.

Subpart B—Antidumping and
Countervailing Duty Procedures

2, Section 351,222 is amended by
ravising paragraphs (b) and (c) to read
as follows:

§351.222 Ravocatlon of orders;
termination of suspended Investigatlons.

(b) Revocation or termination based
on absence of dumping. (1) (1) In
determining whether to revoke an
antidumping duty order or terminate a
suspended antidumping investigation,
the Secratary will consider: *

(A) Whether all exporters and
producers covered at the time of
revocation by the order of the
suspension agreement have sold the
subject merchandise at not less than
normal value for a period of at least
three consecutive years; and

(B) Whether the continued
voplication of the antidumping duty
order is otherwise necessary to offset
dumping.

(ii) lf the Secretary determines, based
upon the criterla in paragrapns
(d)(1)(i} (A) and (B) of this sectlan, that
tne antidumping duty order or
suspension of the antidumping duty
investigation js no longer warranted, the
Secretary will revoke the order or
terminate the investigation,

(2) (i) In determining whether to
revoke an antidumping duty order in
cast, the Seccetary will consider:

(A) Whethec one or more exporters cr
producers covered by the order have
sold the merchandise at not Jess than
norma! value for a period of at least
three consecutive years:

(8) Whether. for any exporter or
produces tnat the Secretary previously
has detecmined to have sold the subject
merchandise at less than normal value,
the exporter or producer agrees in
writing ¢o its immediate reinstatement
in the ocdey, as long as any exporter oF
produces is subject to the order, Lf the
Secretary concludes that the exporter or
producer, subsequent to the revocation,

sold tha subject merchandise at less
than nocmal! value; and

(C) Whether the continued
application of tne antidumping duty
order is otherwise necessary to offset
dumping.

(ii) If tre Secretary determines, based
upon the criteria in paragraphs
(b) (2)(i) (A) through (C) of this section,
that the antidumping duty order as to
those producers or exparters Is no
longer warranted, the Secretary will
revoke the order as to those producers
of exporters.

(3) Revocation of nonproducing
exporter. In the case of an exporter that
is not the praducer of subject
mecchandise, the Secretary normally
will revoke an order in part under
paragraph (b)(2) of this section only
with respect to subject merchandise
produced or supplied by those
companies that supplied the exporter
during the tims perlod that formed the
basis for the revocation,

(c) Revocation or termination based
on absence of countervallable subsidy.
(1){i) In determining Whether to revoke
a countervailing duty order or terminate
a suspended countervailing duty
investigation, tne Secretary will
consider:

(A) Whether the government of the
affected country has eliminated all
countervailable subsidies on the subject
merchandise by abolishing for the
subject merchandise, fora perlod of at
least three consecutive years, all
programs that the Secretary has found
countervailadle:

(EB) Whether exporters and producers
of tna subject mecchandise are
continuing to recelve any net
countervallable subsidy from an
abolished program referred to in
paragcaph (c)(1)(i) (A) of this section;
and

(C) Whetner the continued
zoplication of the countervailing duty
erder er suspension of countervalling
duty investization Js otherwise
necessary to offset subsidization,

{il} Lf the Seccetary determings, based
ucon the critecla in paragrapns
(<) (1) (A) through (C) of this section,
that the countervalling duty order or
suspension of the countervailing duty
investigation is na longer warranted, tha
Secretary will revoke the order ar
terminate the suspended investlgatlon,

(2}{i) {n determining whether to
revoke a countervailing duty order or
terminate a suspended countervailing
duty investigation, the Secretary will
consider

(A) Whether all exporters and
producers covered al the time of
revocation by the order or the
suspension agreement have not spplied

subsidy cr the subject merchandise for
a period ci et least flve consecutive
years: ard

for or receivad any net countervailable
the

(B) Vinether tie continued
application of the countervailing duty
order cr suinensien of tha
countervailing duty investigation is
cthanvise nacessary to offset
subsidization,

(ii) U the Secretary determines, based
upon the erlteria in pacagraghs
(c)(2)(M(A} and (B) of this saction, that
tha countervailing ducy order o¢ the
suspensicn of the countervailing duty
investigaticn is no longer warranted, the
Secretary will revoke tha order or

terminate the susoended Investigation.

(3) (1) In éetermining whether to
cevoke acountervatling duty order in
part, the Secrecary will consider:

(A) Whether one or more exporters cc
producass covered by the order have not
applied for or received any net
counterveilable subsidy on the subject
merchandise for a period of at least five
consecutive years;

(B) Whether, for any exporter or
producer that the Secretary previously
has determined to have received any net
counserveilable subsidy on the subject
merchandise, the exporter or producer
agrees in writing to thelr immediate
reinstatement in tne order, as long as
any excerier or producer }s subject to
the order, if the Secretary concludes that
the excerter or producer, subsequent to
the revecetion, has received any net
countervallable subsidy on the subject
merchandise; and

(C) Whether the continued
application of the countervailing duty
orde; is cthenvise necessary to olfset
subsidizstion

(ii) If the Secretary determines, based
upon the criteria in paragraphs
(c) (3) (i) (4) through (C) of this section,
that the countervailing duty order as to
those exsorters or producers is no
longa: wartanted, the Secretary will
revoke the order as to (hase exporters oF
pooduceis.

(4) Revocation ef nenproducing
expocter, In the case of an exporter that
is not the produces of subject
merchandise, the Secretary nocmally
will revoke an order in pact under
paragracn (c)(3) of this section only
with reszact to subject merchandise
produced or supplied by those
companies that supplied the exporter
during the time perlod that formed the
basis fo: the revecadon.

[FR Dec $2-24675 Filed 9-21-99; 8:45 aml
OILERS COTE 3610-05-P

ATTACHMENT B

FINAL RESULTS OF REDETERMINATION
IN THE THIRD ADMINISTRATIVE REVIEW OF THE ANTIDUMPING DUTY
ORDER ON DYNAMIC RANDOM ACCESS MEMORY SEMICONDUCTORS
OF ONE MEGABIT OR ABOVE FROM KOREA
PURSUANT TO
SECTION 129 OF THE URUGUAY ROUND AGREEMENTS ACT

SUMMARY

The Deparment of Commerce ("the Department”) has prepared these final results of
redetermination ("Redetermination") consistent with Section 129 of the Uruguay Round
Agreements Act CURAA"), This Redetermtination conctms the Depactment’s revocation
finding in the final results of the third admlnlstative review of the antidumping duty ("AD")
order on Dynamo Random Access Memory Semiconductors Of One Megabit Or Abovs
(DRAMs") From Korea, Consistent with Section 129 of the URAA, we have issued a new
revocation finding under 19 CFR 351.222(6), as amended.

BACKGROUND

On July 24, 1997, the Department Issued the final results of the third administrative
review of the AD order on DRAMS from Korea, covering the;patiod May 1, 1995 through April
30, 1996, in which the Department considered the respondents’ request that the Department

revoke the order, In part, under 19 CFR 353.25(a}(1996) (the precursor to 19 CFR 351.222(0)).

(July 24, 1997) ("Einal Results”) This regulation provided that the Department may revoke an

order, in whole or in part, If (1) producers and/or exporters have sold subject merchandise st not
leas than normal value for three consecutive years: and (2) the Seeretery concluded that it is not

likely that those producers and/or exporters will in the future sell subject merchandise at not less

than normal value, Applying this regulation Io the Final Results, the Department did not revoke
the ander because the second criterion had not been met

On January 29, 1999, a panel established by the Dispute Setdement Body ("DSB") of the
World Trade Organization (WTO") determined that the “not likely” standard contained in 19

CFR 353.25(a\2) was Inconsistent with tha United States’ obligations under Article 1].2 af the

Megabit or Abovs from Kores, WI/DSSO/R, adopted March 19, 1999 ("Panel Razort"). The
Panel also determined that the Fins] Results, which is based (in part) on the “not likely” standard

contained in 19 CFR 353.25(2X2), is thereby also Inconsistent with the United States’ obligntions
under Article 11.2 of tha WTO Antidumping Agreement. The Panel recommended that the
United States "bring section 353,25(aX2X(Il) of the DOC regulations, and the Final Results Third
Review, into conformity with its oblipations under Article 11,2 ofthe AD Agreement." The
DSB adopted the Panel Report on March 19, 1999, On April 15, 1999, the United Stmes
announced its intention to implement the recommendations and rulings of the DSB,

On September 22, 1999, the Department published in the Federal Realter a final
regulation amending 19 CFR 351.222(b) (ses Amend

of Antidumping and Countervailing Duty Onders, 64 FR 51236 (Sestember 22, 1999) ("Final
Reculation"). On August 2, 1999, the United States Trade Representative’s Office requested that
the Department, consistent with Section 129 of the URAA, Issue a redetermination of the Final
Results under 19 CFR 351 .222(b), as amended.

On October 15, 1999, we released our Draft Final Results of Redetermination in the Third

Administrative Review of the Antidumpmg Duty Order on Dynamic Random Access Memory

Semiconductors of One Megabit or above from Korea Consistent With Section 129 of the
Uruguay Round Agreements Act (“Draft Redotermination’) for comment. On October 22, 1999,
we received comments on the Draft Redetermination from the Government of the Republic of
Korea ("GOK"), the petitioner, Micron Technology, Inc. ("Micron"), and the respondents, LG
Semicon, Ltd. ("LGS"), Hyundai Electronics Industdes Co, Ltd. (Hyundai), On October 26,
1999, we received rebuttal comments from Micron and LGS, Upon consideration of tha
comments, our Redetermination remains unchanged from our Draft Redstermination.
Discussion

Section 751(d){1) of the Tariff Act of 1930, ag amended ("the Act”) provides that the
Department "may revoke" an antidumping chity order, In whole or in part, after conducting an
eppropriate review. 19 U.S.C, §1675(2X1) (1995), ‘Tha Department's regulations implement
this provision, Section 351.222(b) (19 CFR 351.222(b)), as amended, provides thet the
Secretary, in determining whether to revoke an order, will consider: (1) whether on or more
exporters or producers covered by the order have sold the merchandise at not less than nommnel
value fora period of at least three contecutive years; (2) whether the exporters or producers agree
in writing to their immediate reinstatement In the order, ag long as any éxporter or producer is
subject to the order, if the Secretary conoludes that the exporter or producer, subsequent to the
revocation, sold the merchandise at leds than normal value; and (3) whether the continued
application of the order is otherwise necessary to offset dumping. Ifthe Secretary, based on
these criteria, determines that tha revocation of the antidumplng duty order ig warranted, the

Secretary will revoke the order,

In thia case, the first two elements for Mvocation have been met. The Departmant found