Document: WT/DS99/6 Page 3 ATTACHMENT A Proposed Regulation Concerning the Revocation of Antidumping Duty Orders; Notice of Proposed Rulemaking
Document codes: WT/DS99/6
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

Proposed Regulation Concerning the Revocation of Antidumping Duty
Orders; Notice of Proposed Rulemaking
64 Federal Register 29,818 (June 3, 1999)

29818

interested In being place on a mailing
list for future NPRM’s should also
request 8 copy of Advisory Circular No.
11-2A, which describes the application
procedure.

The Proposal

The FAA is considering an
amendment to 14 CFR part 71 to modlfy
the legal description of the Class E
alrspace at Cincinnati, OH, by changing
the reference to the Cinclnnati/Northern
Kentucky International Airport, KY,
Class C airspace area to Class B, This
Class C airspace designation is being
revoked and a Class B airspace area will
be established for the Cincinnati
Northern Kentucky International
Airport, KY, effective July 15, 1999, The
area would he depicted on appropriate
aeronautical charts. Class E airspace
designated as a surface are published in
paragraph 6002.0f FAA Order 7400.9F
dated September 10, 1998, and effective
Seplember 16, 1998, which is
incorporated by reference in 14 CFR
71.1, The Class E airspace designations
listed in this document would be
published subsequently in the Order,

The FAA has determined that this
proposed regulation only involves ar
establishment body of technical
regulations for which frequent and
routine amendnients are necessary to
keep them operationally current,
Therefore this, proposed regulation—(1)
is nota “significant regulatory action’
under Executive Order 12866: (2) is not
a “significant rule” under DOT
Regulatory Policies and Procedures (44
FR 11034; February 26, 1979): and (3)
does not warrant preparation ofa
regulatory Evaluation as the anticipated
impact is so minimal. Since this is a
routine matter that will only affect air
traffic procedures and air navigation, it
is cecdfied that this proposed rule will
not have a significant economic impact
on a substantial number of small entities
under the criteria of the Regulatory
Flexibility Act.

List of Subjects in 14 CFR Part 71

Airspace, Incorporation by reference,
Navigation (air).

The Proposed Amendment

Accordinly, pursuant to the authority
delegated to me, Ihe Federal Aviation
administration proposes to amend 14
CFR part 71 as follows:

PART 71—DESIGNATION OF CLASS A,
CLASS B, CLASS C, CLASS D, AND
CLASS E AIRSPACE AREAS;
AIRWAYS; ROUTES; AND REPORTING
POINTS

1, The authority citaUon for part 71
continues to read as follows:

Federal Register/Vol. 64, No. 106/Thursday, June 3, 1999/Proposed Rules

Authorily: 49 U,S,C, 106({4), 40103, 40113,
40120; E.O, 10854, 24 FR 9665, 3 CFR. 1959-
1963 Comp., p. 389.

§71.1 [Amended]

2. The incorporation by reference in
14 CFR 71.1 of the Federal Aviation
Administration order 7400.9F, Airspace
Designations and Reporting Points,
dated September 10, 1998, and effective
Septernber 16, 1998, is amended as
follows:

Paragraph GON2 Class £ airspace designated
as a Surface area,
* * Ld * *

AGLOH £2 Cincinnati, OH [Revised]

Cincinnati Municipal Alrport Lunken Field,
OH

(Lat. 39° 06’ 12”N,, long, 84° 25’ 07" W.)

Within a 4.1-tnile radius of the Cinclnnati
Municipal Airport Lunken field, excluding
that alrspace within the Cincinnatl/Northern
Kentucky Internatlonal Airport, KY, Class B
airspace area. This Class E airspace area ts
effective during the specific dates and times
established in advance by Notice to Airmen,
the effective date and time will chereafter be
continuously published in the Alrpart/
Facility Directory.
* * a * *

Issucd in Des Plaines, inals on May 12,
1999,

Christopher R. Blum,

Mariger, Air Traffic Division.

{FR Doc, 99-13230 Filud 6-2-99; 8:45 am]
BILUNG GODE 4910-13-M

—

DEPARTMENT OF COMMERCE
International Trade AdminIstratlon
19 CFR Part 351

[Docket No, 990521142-9142-01]
RIN 0625-AA54

Proposed Regulation Concerning the
Revocation of Antidumping Duty
Orders ©

AGENCY: Import Administration,
International Trade Administration,
Commerce.

ACTION: Notlee of proposed rulemaking.

SUMMARY: The Department of Commerce
(the “Department” or “DOC") is
proposing to amend 19 CFR 351.222(b),
which governs the revocation of
antldumpirig duty orders, in whole or in
part, based upon an absence of
dumping. The proposed regulation is
intended to conform the existing
regulation to the United States’
obligations under Article 11 of the
Agreement on the Implementation of
Article VJ of the General Agreement on
Tariffs and ‘I'rade 1994 (““Anlidumping
Agreement" or “AD Agrecment’’). The

SE hE ere Avy

proposed regulation, if adopted, would
alluw the Secretary to revoke ary
antidumping duly order if the Secretary
concludes that producers or exporters
did not sell subject merchandise al less
than normal value for at least three
consecutive years and that the
continued application of the
antidumping duty order as to those
producers or exporters is no longer
necessary to offset dumping.

DATES: To be assured of consideration,
written comments must be received not
later than July 6, 1999,

ADDRESSES: A signed original and two
copies of each sel of comments
including reasons for any
recommendation, along with a cover
Jeller identifying the commenter's name
and address, should be submitted to
Robert S, LsRussa, Assistant Secretary
for Import Administration, Central
Records Unit, Room 1870, U.S.
Department of Commerce, Pennsylvania
Avenue and 14th Street, NW,
Washington, DC 20230.

FOR FURTHER INFORMATION CONTACT:
Mellssa GC. Skinner, Office of Policy,
Import Administration, U.S, Department
of Commerce, at (202) 482-1560, or
Myles S. Getlan, Office of the Chief
Counsel for Import Administration, U.S.
Department of Commerce, at (202) 482-
5082.

SUPPLEMENTARY INFORMATION:

Background:

On July 24, 1997, the Department
issued the final results of the third
administrative review of the
antidumping duty order on Dynamic
Random Access Mernory
Semiconductors (DRAMs) Of One
Megabit Or Above From Korea (62 FR
39809)("DRAMs From Korea”’), 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(b)).
Pursuant to this regulation, the
Department may revoke an order, in
whole or in part. if (1) producers and/
or exporters have sold subject
merchandise at not less than normal
value for three cansecutive years; and
(2) the Secretary concludes that it is not
likely that those producers and/or
exporters Will in the future sell subject
merchandise at nat less than normal
value. Applying this regulation in
DRAMs From Korea, the Department
did not revoke the order because the
second criterion had not been met.

On January 29, 1999, a panel
eslablished by the Dispute Settlement
Body (DSB) of the World Trade
Organization (WTO) determined that the

Federa] Repister: Vol. 64. No. 106/1T

“not likely” standard contained in 19
CFR 353.25(a)(2) was Inconsistent with
the United States’ obligations under
Article 11.2 of the WTO Antidumping
Agreement. The panel recommended
that the United States “bring section
353.25(a)} (2) (ii) of the DOC regulations
... into conformity with Its obligations
under Article 11.2 of the AD
Agreement.” The DSB adopted the
panel report or: March 19, 1999, On
April 15, 1999, the United States
announced its intention to implement
the recommendations and rulings of the
DSB. Consistent with section 123(g) of
the Uruguay Round Agreements Act,
which governs the Department's
implementation of adverse panel
reports, the Department is revising 19
CFR 351.222(b).

Explanation of the Proposed Regulation

Pursuant to 19 CFR
§ 351,222(b)(1998), the Department may
revoke an antidumping duty order, In its
entirety or with respect to certaln
exporters or producers, if several criterla
are met. In order to revoke an order, the
Secretary must conclude that the
exporter or producer has not sold

‘ subject merchandise at less than normal
value for three consecutive years and
that "lilt is not likely that those persons
will in the future sell the subject
merchandise at less than normal value.”
See 19 CFR 351,222(b)(1) and (2).

In its report to the DSB, the Panel
considered the consistency of the ‘not
likely" standard described above with
the obligations contained in Article 11.2
of the Antidumping Agreement. See
United States—Anud-Durnping Duty On
Dynamic Random Access Merno.
Semiconductors (DRAMS) Of One
Megabit Or Above From Korea, WT/
DS99/R (adopted March 19, 1999)
(“Panel Report"’), Article 11.2 of the
Antidumping Agreement provides:

The authorilics shall review the need far
the continued imposition of the duty, where
warranted, on thelr own Jnitiative or,
provided that a reasonable period of Lime has
elapsed since the imposition of the definitive
anti-dumping duty, upon request by any
Interested party which submits positive
Information substantlating the need for a
review, Interested partics shall have the right
to request the authorltles to examilne Whether
the cantinued Imposition of the duty Is
necessary to offsct dumping, whether the
Injury would be Iikely to continue to recur
if the duty were removed or yarled, or both,
If, as a result af the review under this
paragraph, the authorities delermine that the
anti-dumping duty is no longer warranted, It
shall be terminated Immediately.

As demonstrated by the language of
Article 11.2, in reviewing the need for
the continued application of an
antidumping duty, the Department is

hursday, June 3. 1999/Propased Rules

29819

obligated ta lerminate the duty if the
Department concludes “that the antl-
dumping duty is no longer warranted.”
In Interpreting (he ubligations cantained
in Article 11.2, the Panel concluded that
an absence of dumping does not, jn and
of itself, require the revocation of an
antidumping duty order. See Panel
Report at para. 6.34. Thus, insofar as the
Department's regulation requires
exporters or producers requesting
revocation to have sald subject
merchandise at not less than normal
value for at least three consecutive years
prior to revocation, the Pancl cancluded
that the Department's regulation is
consistent with the United States’ WTO
obligations,

The Panel then considered whether
requiring a finding that a recurrence of
dumping is “not likely" before revoking
an order was consistent with Artlele
11.2. In this regord, the Panel noted that
Article 11.2 requires authorities "to
examine whether the continucd
imposition of the duty is necessary to
offset dumping.’* The Panel described
this obligation as follows:

We note that the necessity of the measure
Is @ furnction of certain objective conditions
being In place, ie, whether elrcumstances
requira continued impositlon of the antl:
dumping duty. Thal being so, such continued
imposition must, In aur view, be essentially
dependent on, and therefore assignable to, a
foundation of positive evidence that
clrcurnstances demand it, In other words, the
need for the continued Imposition of the duly
must be demoristrable on the basis of the
evidence adduced,

Panel Report at para, 6.42.

As noted above, the Panel affirmed
the Department's ability to maintain an
antidumping duty order In the absence
of present dumping, thus valldating the
Department's prospective analysis in
determining the need for the continued
application of an order. In addition, the
Panel recognized that such a
prospective analysls ls Inherently
uncertain, However, while
“(mathematical certainty is not
required, .. . the conclusions should be
demonstrable on the basls of the
evidence adduced." Panel Report at
para. 6.43, In this regard, the Panel
delermined that the Department's “not
likely" standard does nat provide u
requisite degree of predictive assurance
in performing a prospective analysis nor
does il provide “any demonstrable basis
on which to reliably conclude that the
continued Imposition of the duly is
necessary to offset dumping." Id. at
that the “not llkely” criterion contained
in 19 CFR 353,25(a) (2) (ii) (currently 19
CFR 351.222(h)) is inconsistent with

Article 11.2 of the Antidumping
Agreement.

In implementing the Panel's findings
with respect to the revocation
regulation, we sought to reform the
regulation In a manner that will require
the Department's determination of
Whether to revoke an order to be based
upon positive evidericy, In adopting the
Pancl Report, we recognize the Panel's
conclusion that the “not likely”
standard may, on its face, allow the
Department in certain cases to maintain
an order in the absence of positive
evidence suggesting (he necessity of
maintaining the order to offset dumping.
In this regard, we are confident that the
revised standurd provides the
appropriate degrec of predictive
assurance required In a prospective
analysis and provides a demonstrable
basis upon which to reliably conclude
whether maintaining the antidumping
duty order is warranted.

While the Panel interpreted not
likely" on the basis of its common
theaning and usage, the Panel's ruling
was not based upon the Department's
application of the standard in DRAMs
from Korea or any other prior case in
which the standard was applied. In
addition, the Panel affirmed the
Department's prospective analysis in
considering whether to revoke an
antidumping duty order, We took these
factors into account in revising the
revocation regulation,

The Department's analysis of whether
to revoke antidumping duty orders
based upon an absence of dump!ng has
always implicitly addressed whether the
continued application of an
antidumping duty order is necessary to
offset dumping. Therefore, since Article
11.2 itself provides a standard by which
to measure the continued applicabilily
of an antidumping duty order,
promulgating an additional standard is
not necessary to fulfill the United
States' international obllgations. Stated
differently, the requirement contained
in Article 11.2 that authorities examine
the necessity of malntalning an
antidumping duty constitutes a
transparent, meaningful standard that
can be incorporated into the
Department's current statutory and
regulatory scheme.

Tn previous cases, the Department has
applied 19 CFR 353.25(a)(2), now
§ 351.222(b), In administrative reviews
where an exporter or producer
requested revocation and established
that it had sold subject merchandise at
not less than normal value for at least
three consecutive years, The
Department has consistently considered
that an absence of dumping for three
consecutive years was indicative that a

29820

Federal Register/Vol. 64, No. 106/ Thursday, June 3, 1999/Proposed Rules

a omsamEpEnmnemmmmmmanednatit, se raneeranaammmnamnar meme tmtaane ender arm ha a ny

foreign respondent was ‘nol likely" to
sell at less chan normal value in the
future. Thus, the absence of dumping
for three consecuUve years served as d
presumption In favor of revoking the
order, which could be rebutted by
positive evidence indicatlng that
dumping may recur if the order were
revoked. Such evidence reflected the
likelihood that respondents would
dump in the future, In this regard, we
note that the Panel considered that
evidence of likelihood of future
dumping was relevarl loa
determination under Article 11.2, and
suggested that one way to meet the
requirements of the Antidumping
Agreement would be to promulgate a
standard which cequired a finding that
respondents are likely to dump in the
future before maintaining an order. See

It is the Department's view that the
Panel's findings with respect to the ‘nat
likely’ standard does not riecessitate a
wholesale change in the practice
described above. When requested to
revoke an antidumping duty order based
upon un absence of dumping for three
consecutlve years, the Deparunent
intends to continue its practice of
revoking orders in the absence of any
other record evidence indicating that
the continued application of the order Is
necessary to offset dumping, When
additional evidence is placed on the
record, the Department will fully
consider all relevant faclors as to
whether the continued application of
the order is necessary to offset durnping.
Factors considered in prior cases
relating to the Lkclitiood of future
dumping would still be deemed relevant
under the “necessary” standard derived
from Article 11.2 of the Antidumping
Agreement. That Is, the Department may
consider trends in prices and costs,
investment, currency movements,
production capacity, as well as all other
market and economic factors relevant lo
a particular case. An analysis of this
evidence, we belleve, provides a
demonstrable basis upon which to
reliably conclude whether the
continued application of an
antidumping duty order is necessary to
offset dumping and provides the
appropriate dcgree of predictive
assurance required in u prospective
analysis,

Effective Date

Pursuant to section 123(g}(2) of the
Uruguay Round Agreements Act
(“URAA")(19 U.S.C. 3533(g) (2), the
final amended regulation may nat
become effective until the end of the 60-
day period beginning on the date on
which the Department and the Office of

the U.S, Trade Representative undertake
consultations with the appropriate
congresslonal cornmittecs concerning
the proposed contents of the fina! rule.
Since the date of consultations has not
yet been determined, we are unable to
determine the effective date at this time.
If the proposed regulation 1s adopted,
we will publish the effective date in the
notice of flnal rulemaking based upon
the date on which the Office of the U.S,
Trade Representative and the
Departrnent consults with Cangress.

Classification
E.O. 12866

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

Paperwork Reduction Act

This proposed rule contuins no new
coljection of Information subject to the
Paperwork Reduction Act, 44 U.S.C,
Chapter 38,

EO. 12612

This proposed 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
certifled to the Chief Counsel for
Advocacy of the Small Business
Administration that this proposed rule,
if adopted, wuuld nol have a significant
economic impact on a substantial
number of small entities. The
Department's existing regulations
provide a procedural and substantive
process by which the Secretary
considers whether to revoke an
antidumping duty order, The proposed
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
proposed regulation would nat
significantly change the Department's
practice in determining whether to
maintain an antidumping duty order.
Moreover, as the proposed regulation
only changes the standard by which the
Department considers whether to revoke
an antidumping duty order, this action,
in and of Itself, will not have a
significant economic impact. Therefore,
the Chief Counsel concluded that the
proposed rule would not have a
significant Impact on a substantial
number of small business entities, and
a regulatory flexibility analysls was not
prepared.

List of Subjects in 19 CFR Part 351

Administrative practice and
procedure, Antidurnping dutles,
Business and industry, Cheese,
Contidential business information,
Countervailing dutles, Investigations,
Reporting and recordkeeping
requirements.

Dated: May 27, 1999.

Robert S, LaRussa,
Assistant Secretary for [mport
Administration.

For the reasons stated, It is proposed
that 19 CFR § 351,222(b) is amended to
read as follows:

PART 351—ANTIDUMPING AND
COUNTERVAILING DUTIES

Subpart A~Scope and Definitions

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

Authority: 5 U.S.C, 301, 19 U.S.C, 1202
note; 18 U.S.C, 1303 note; 19 U.S.C, 2671 et
seg.i and 19 U.S.C, 3538,

Subpart B—Antidumping and
Countervailing Duty Procedures

2, Section 351,222 is amended by
revising paragraph (b) to read as follows:

§ 351.222 Revocation of orders;
termination of suspended investigations
* « * * Ld

(b) Revocation or termination based
on absence of durnping. (1) The
Secretary may revoke an antidumping
order or lersninate a suspended
antidumping investigation ifthe —
Secretary concludes that:

(i) All exporters and producers
covered at the time of revocation by the
order or the sispension agreement have
sold the subject merchandise at not less
than normal value for a period of at least
three consecutive years; and

(ii) The continued application af the
antidumping duty order is no langer
necessury to offset dumping.

(2) The Secretary may revoke an
antidumping order in part if the
Secretary concludes that:

(i) Onc or more exporters or producers
covered by the order have sold the
merchundise at not less than normal
value for a period of at least three
consecutive years;

(ii) The continued application of the
antidumping duty order as ta those
persons is no longer necessary to offset
dumping; and

(iii) Provided that, for any exporter or
producer that the Secretary previously
has determined to have sold the subject
merchandise at fess than normal value,
the exporter or producer agrees in
writing to its immediate reinstatement

Federal Register/V

0), 64, No, 106/Thuesday, June 3, 1999/Proposed Rules

(NYE RSA SRS ye SS SSS fs SSS gs SOND anhoeneeneeng,

In the order, as long as any exporter or
producer is subject to the order, if the
Secretary concludes that the exporter or
producer, subsequent to the revocation,
sold the subjecl merchandise at less
than normal value,

* ® * » *

(FR Doc. 99-14098 Fllecl 6-2~99; 8:45 am]
BILLING CODE a510-05-P

ENVIRONMENTAL PROTECTION
AGENCY

40 CFR Part 52
[CA 009-0130b; FRL~6331~7]

Approval and Promulgation of State
implementation Plans; Callfornia State
implementation Plan Revisions: Kern
County Alr Poliutlon Contro} District,
Modoc County Air Pollutlon Control
District, Mojave Desert Alr Quality
Management District, Northern
Sonoma County Alr Pollution Control
District, San Joaquin Valley Unified Alr
Pollution Control District, and Sisklyou
County Alr Pollution Control District

AGENCY: Environmental Protection
Agency (EPA),
ACTION: Proposed rule.

SUMMARY: EPA is proposing to approve
revisions to the California State
Implementation Plan (SIP) which
concern various administrative,
editorial, and other modifications which
do not directly affect emissions. The
Intended effect of this action is to
update and clarify the SIP,

In the Final Rules section of this
Federal Register, (he EPA is approving
these SIP submittals as a direct final
rule without prior proposal because the
Agency views these rules as a
noncontroversial revision and
anticipates no adverse comments. A
detailed rationale for thts approval is set
forth in the direct final rule. If no
adverse comments are recelved, no
further uctivity is contemplated, If EPA
receives adverse comments, the direct
final rule will be withdrawn and gil
public comments recelved will be
addressed in a subsequent final rule
based on this proposed rule. The EPA
will not institule ue second comment
period. Any parties interested In
commenting should do so at this time.
Dates: Written comments must be
received by July 6, 1999
ADDRESSES: Comments should be
addressed to; Andrew Steckel,
Rulemaking Office (AIR-4), Air
Division, U.S. Environmental Protection
Agency, Region IX, 75 Hawthorne
Strcet, San Francisco, CA 94105-3901.

oe

Copies of the rule revisions and EPA's
evaluation report of each rule are
available for public inspection al EPA's
Region 9 office during normal business
hours. Copies of the submitted] rule
revisions are also available for
inspection at the following locatians;
California Air Resources Board,

Stationary Source Division, Rule

Evaluation Section, 2020 “L" Street,

Sacramento, California 36812.

Kern County Air Polludon Control
District, 2700 ‘"M" Street, Suite 302,
Bakersfield, CA 93301-2370.

Modoc County Atr Pollution Control
District, 202 West Fourth Strect.
Alturas, CA 96101-3915,

Mojave Desert Air Quallty Management
District, 15428 Civic Drive, Ste. 200,
Victorville, CA 92392-2383.

Northern Sonoma County Air Pollution
Control District, 150 Matheson Street,
Heaidsburg, CA 95448-4908.

San Joaquin Valley Unified Air
Pollution Contra} District, 1993
Tuolumne Street, Suite 200, Fresno,
California, 93721, and

Santa Barbera County Air Polludon
Contro! District, 26 Castilian Drive,
Sulte B23, Goleta, CA 93117,

Siskiyou County Air Pollution Control
District, 525 South Foothill Drive,
Yreka, California, 96097-3036.

FOR FURTHER INFORMATION CONTACT:

Andrew Steckel, Rulemaking Office,

AIR-4, Air Division, U.S.

Environmental Protection Agency,

Region IX, 75 Hawthorne Street, San

Francisco, California 94105-3901,

Telephone: (415) 744-1185.

SUPPLEMENTARY INFORMATION: Thls

document concerns the following rule

revisions: .

Kern Courily APCD—Rule 101, Title:
Rule 112, Circumvention; Rule 113,
Separation and Combination; Rule 114,
Severability; and Rule 115,
Applicability of Emission Limits. These
rules were adopted on May 2, 1996 and
submitted to EPA as a SIP revision on
July 23, 1996,

Modoc County APCD—Rule 4,1-2,
Uncombined Waler; Rule 4.6,
Circumvention; Rule 4,6-1, Exception to
Circumvention: and Rule 4,9,
Separation of Emissions. These rules
were adopted on January 3, 1989 and
submitted to EPA as a SIP revision on
December 31, 1990.

Mojave Desert AQMD—Rule 103,
Description of the District Boundaries
was adopted on June 28, 1995 and
submitted to EPA as a SIP revision on
August 10, 1995,

Northern Sonoma County APCD—
Unnumbered rule, known as Appendix
A: Unnumbered rule, known as
Appendix B: Unnurnbered rule,

formerly Appendix C, now known as
Appendix A; and Unnumbered rule,
formerly Appendix D, now known as
Appendix B. These appendices were
adopted on February 22, 1984 and
submitted to EPA as a SIP revision on
October 16, 1985.

San Joaquin Valley Unified APCD—
Rule 1010, Title and Rule 1130,
Severability were adopted on June 18,
1992 and submitted to EPA as a SIP
revision on September 28, 1994,

Santa Barbara County APCD—Rule
105, Applicability adopted on July 30,
1991 and submitted to EPA as a SIP
revision on October 25, 199}.

Siskiyou County APCD—Rule 4,10,
Reduction of Anirnal Matter, adopted on
January 24, 1989 and subrnitted to EPA
as a revision to the SLP on Marth 26,
1990.

For further information, please sev the
information provided in the direct final
action that is located in the rules section
of this Federal Register.

Authority: 42 U.S.C, 7901 ot seg.

Dated: March 22, 1999,

Alexis Strauss,

Acting Regional Administrator, Region IX,
{FR Doc, 99-13658 Filed G-2-99: 8:45 an]
BILLING CODE 6580-S0-P

ENVIRONMENTAL PROTECTION
AGENCY

40 CFR Part §2
(TX-83-1~7340b; FAL-6349-8] |

Approval and Promulgation of Alr
Quallty Implementation Plans; Texas;
Revision to the State Implementation
Plan (SIP) Addressing Sulfur Dioxide in
Harrls County

AGENCY: Enviconmental Protection
Agency (EPA).
ACTION: Proposad rule.

SUMMARY: The EPA is proposing direct
final approval to revisions of the Texas
State Implementation Plan (SIP) for
Harris County, addressing sulfur
dioxide (SO;) emissions. This action
incorporates by reference into the
federally approved SIP two amended
Agreed Orders modifying the SOz
allowable emissions at twa stationary
sources in Harris County, Texas. The
Orders concern Simpson Pasadena
Paper Company and Lyondel-Citgo
Refining Company, both located in
Houston, Texas, The intended effect of
approving these Agreed Orders is to
regulate SO, emissions in accordance
with the requirements of the Clean Alr
Act, as amended in 1990,

In the final rules section of this
Federal Register, we are approving

ATTACHMENT B

Amended Regulation Concerning the Revocation of Antidumping and
Countervailing Duty Orders; Final Rule
64 Federal Register 51,236 (Sept. 22, 1999)

51236

——-.

prohibited off-the-racord
communication,

{2) Ifa person knowingly makes or
causes ta be made a probibited off-the-
record communication, the Commission
may disqualify and deny the person,
temporarily or permanently, the
privilege of practicing or appearing
before it, in accordance with Rule 2102
(Suspension).

(3) Commission employees who are
found to huve knowingly violated this
rule may be subject to the disciplinary
actions prescribed by the apency’s
administrative directivas,

(j) Section not exclusive. (1) The
Commission may, by rule or 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 are
not intended to limit the authority of u
decisional employee to decline to
engage in permitted off-the-racord
communications, or where not required
by any law, statute or regulation, to
make a public disclosure of any
exempted off-the-record
communication. .

8. The heading of § 385.2202 is
revised to read as follows:

§ 385.2202 Separation of Functions (Rule
2202).

Note: This Appendix will pot appear in the
Code of Federal Regulations

Appendix A—List of Commenters

Adirondack Mountain Club

Advisory Council on Historic Preservation
(ACHP)

American Gas Association (AGA)

ANR Pipsline Company/Colorado Interstate
Gas Company (ANR/CIG}

Bonneville Power Administralinn (BPA)

California Electric Oversight Board (Cal
Board) .

Chevron Pipe Line Gompany (Chevron)

Edison Electric Institute (EEI)

Electric Power Supply Associatton (EPSA)

Environmental Pretection Agency (EPA)

Executive Office of the President/Council on
Environmental Quality (CEQ)

Hydropower Reforin Coalition (HRC)

Indicated Shippers

Interstate Natural Gas Association of America
(INGAA) :

Louisiana Department of Wildlife And
Fisheries (La W&I')

National Association of Regulatory Utility ©
Commissioners (NARUC)

National Marina Fisherius Services (NMFS)

National Hydropower Association (NHA)

National Rural Electric Cooperative
Association/American

Public Power Supply Arsocijation (Joint
Commenters)

Natural Gas Supply Association (NGSA)

Public Service Commission of New York
(PSCNY)}

Public Utilities Commission of State of
California (PUCCAL)

Public Utilities Commission of State of
Californin/Indepandemt (Cal 4SO) System
Operator :

Process Gas Consimiurs Group (Process Cus)

Sacramento Municipal Utilities District
(SMUD)

Sempra Encrgy Campunies (Surnpra)

Southern Califurnia Edison Cormpany
(SoCe!Ed)

Southern Companies Servicea, Inc, (SCS})

Southern Natural Gas Company (SoNat)

United States Department of the Interlor
(Interior)

Williams Companies (Williams)

Williston Basin Interstate Pipeline Company
(Williston)

Wiscanain Public Power, Inc. (WPPY)

(FR Doc. 99-24618 Filed 9-21~99: 8:45 am]
BILLING CODE 6717-01-P

DEPARTMENT OF COMMERCE
International Trade Administration

19 CFR Part 351
[Docket No. 890521142-9252-02]
RIN 0625-AAS4

Amended Regulation Concerning the
Revocation of Antidumping and
Countervailing Duty Orders

AGENCY: Import Administration,
International Trade Administration,
Cormerce.

ACTION: Final rule.

SF a |

SUMMARY: The Department of Commerce
{the “Department” or 'DOC"’) is
amending its regulation, which governs
the revocation of antidumping and
countervailing duty orders, in whole or
in part, and the termination of
suspended antidumping and
countervailing duty investigations,
based upon ao absence of dumping or
subsidization, respectively. The
amended regulation conforms the
existing regulation to the United States’
obligations under Article 11 of tha
Agreement on the Implementation of
Axticle VI of the General Agreement on
Tariffs and Trade 1994 (‘Antidumping
Agreement”) and Article 21 of the
Agreement on Subsidies and
Countervailing Measures (“SCM
Agreement”). The amended paragraph
relating to revocation or termination

‘based on absence of dumping provides

that the Secretary, upon considering
whother producers or expurters hava
sold subject merchandise at not less
than normal value for at least three
consecutive years, and whether the
continued application of the
antidumping duty order is otherwise
necessary to offset dumping, will revoke
an antidumping duty order if warranted.
The amended paragraph relating to

Federal] Register/Vol. 64, No, 183/Wednesday, September 22, 1999: Rules and Rogulations

hs ng cg a nr gee aon

Se ——

revocation or termination based on
absence of countervailable subsidy
provides that the Secretary, upon
considering whether the government of
the affected country has eliminated all
countervailable subsidy programs
covering the subject merchandise for at
least three consecutive years, or
exporters or producers have not applied
for or received countervailable subsidies
fox at least five consecutive years, and
whether the continued application of
the countervailing duty order is
otherwise necessary to offsct
subsidization, will revoke a
countervailing duty order if warranted.
EFFECTIVE DATE: November 1, 1999.

FOR FURTHER INFORMATION CONTACT:
Melissa G. Skinner, Office of Policy,
Import Administration, U.S. Department
of Commerce, at (202) 482-1560, or
Myles S. Getlan, Office of the Chief
Counsel for Import Administration, U.S.
Department of Commerce, at (202) 482—
5052.

SUPPLEMENTARY INFORMATION:

Background

On June 3, 1999, the Department
published a Notice of Proposed
Rulemaking which proposed to amend
19 CFR 351.222(b).! Ses 64 FR 29818
(the “Proposed Rule"), The Department
explained that the process of amending
this regulation arose from the findings
af a dispute settlement panel convened
under the auspices of the World Trade
Organization (“WTO"’) that considerad
various aspects of the Department’s final
results of administrative review in
Dynamic Random Access Memory
Semiconductors (DRAMs) Of One
Megabit Ox Above From Korea (62 FR
39809, July 24, 1997) (“DRAMs From
Korea’’),

On January 29, 1999, the Panel
determined that the Department's
standard for revoking an antidumping
duty order contained in 19 CFR
353.25(a)(2) (the precursax ta 19 CFR
351.222(b)) was inconsistent with thse
United States’ obligations under Article
11.2 of the WTO Antidumping
Agreement. See United States—Anti-
Dumping Duty on Dynamic Random
Access Memory Semiconductors
(DRAMS] of One Megabit or Abova
From Korea, WT/DS99/R (Panel
Report”). Specifically, the Panel
determined that requiring the Secrotary

1 This smendment does not affect the
Department's regulations at 19 CFR 251.218, which
implamonts the statutory provision at 19 U.S.C,
16759(c) and governa tho Dapartment’s five-year
sunset ruviewa, in which the Department
determines whother revocation of an order “would
he likely to lead to continuation or recurrenco of
dumping or a countervailabla subsidy {aa the cuso
may he) and of material injury."

tw conclude that “it is not Likely” that
the persons requesting revocation will
dump merchandise subject to an
antidumping duty order in the future
did not implement’ properly Article 11.2
of the Antidumping Agreement. This
provision requires an administering
authority te consider whether “the
continued imposition of [an
antidumping] duty is necessary to offset
dumping" in determining whether to
revoke an antidumping duty order.
Thus, the Pane] recommended that the
United States “bring section
353.25(a)(2)(ii) of the DOC regulations

* * * into conformity with its
obligations under Article 11.2 of the AD
Agreement.” The Dispute Setdement
Body ("DSB") adopted the Panel Report
on March 19, 1999, On April 15, 1999,
the United States annouiiced its
intention to implement the
recommendations and rulings of the
DSB. Consistent with section 123(g) of
the Uruguay Round Agreements Act
("URAA"), which governs the
Department's implementation of adyerse
panel reports, the Department is
revising 19 CFR 351.222(b) and {c).

Explanation of the Final Rule

The proposed amendment to the
Department's revocation regulation.
concemed only antidumping
proceedings, as the Departnent focused
upon implementing the specific
findings contained in the Pano] Report.
Consequently, at that time, the
Department did not propose amending
the companion revocation provision
applicable to countervailing duty

roceedings, However, we believe that a
Hecision not to amend the
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,
is identical to the standard in 19 CFR
351.222(c), which governs revocation in
countervailing duty cases. In addition,
the “necessary” standard in Article 11
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
of countervailing duties. Since the
revocation standarda in the two WTO
“agreemants are identical, and since at
least one party commented on this issue
during the public comment period, wa
conclude that the public was on notice
that the countervailing duty regulation
could similarly be revisad, Therefore,
we are making conforming amendments
to the countervailing duty provision as

Federal Register/Vol. 64, No. 183/Wednesday, September 22, 1999/Rulos and Kegulations

51237

well in orrler to maintain consistency
between the Department's procedures
governing revocation in both
antidumping and countervailing duty
cases and the standards in both the
Autidumping Agmement and SCM
Agreement.

In addition, iu response to comments,
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 final mle no
longer states that the Secretary will
consider whother the continued
application of the order is “no longer
necessary to offset dumping.” Instead,
the final rule provides that, inter alia,
the Secretary wil] consider ‘whether the
continued application of the
antidumping duty order is otherwise
necessary to offset dumping,” These
changes are discussed in mére detail
below.

We received 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 Agreement,
responds appropriately to the concerns
articuleted by the WTO panel decision
and represents a fair implementation of
the panel’s recommendation. Moreover,
this commenter states that the proposed
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 not a standard at all.” In
this respect, these commenters note the
Panel's fndiny that there must be a
demonstrable basis for consistently and
reliably determining that the
maintenance of an order is necessary to
offsat injurious dumping. These
commenters cuntend that the Proposed
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 Proposed
Rule will oot improve the:
demonstrability, consistency, and
reliability of revocation decisions or
ensure that decisions to maintain
antidumping or countervailing duty
orders are based upon positive evidence
demonstrating the continued need for
the order, One commentsr suggests that
usidg a ‘‘likely to recur” etandard
“would have been the most logical,
direct means to meet the WTO
requirement that a positive finding is

necessary to support continuation of an
{antidumping duty] order,"

However, another commenter noted
that the amended regulation sstablishes
a “necessity” standard which reflects

the same standurd established in the

Antidumping Agreement. Thus, this
commenter believes the revised
standard does in fact provide the
‘demonstrable basis upon which to
reliably conclude that the continued
imposition of the duty is necessary to
offset dumping."

We disagree with those commenters
who state that the revised “necessity”

_ standard is ‘effectively not a standard at

all.” Article 11.2 of the Antidumping
Agreement allows interested parties te
request authorities to examine whether
the continued imposition of the duty is
“necessary” to offset dumping. To say
that the “necossity” standard contained
in the Department's revised regulation is
effectively no standard at all is to say
that Article 11.2 contains no standard.
This is {Nogical given that this process
of revising the revocation regulation
stems from a panel finding that the-
Department’s existing xegulation 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 positiveevidence.
Moreover, we are confident that tha
revised standard, along with our
established practice of consideri
evidence relating to the likelihaod 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 absence of dumping for three
consecutive years. As support, this
commenter refers to the Gourt of
International Trade's (“CiT'’)}
characterization of the Deparhment’s
regulation as a three-part test for
revocation and states that the “not
likely” (or the revised ‘“‘necessary")
prong constitutes an independent
criterion that must be established to
attain revocation, See Hyundai
Electronics Co,, Ltd. v. United States,
Slip. Op. 99-44 (Ct. Int'l Trade, May 19.
1999). This commenter believes that the
presumption nullifies the satisfaction of
the second (“‘necessary") prong.

In this regard, two commontors assert
that a presumption favoring revocation
unfairly and improperly shifts the
burden to petitioners to come forward
with affirmative evidance, Since
respondents are in possession of - -
information relevant to revocation, as
argued by these commenters, the burden

51238

te —

of producing such evidence should rest
with the respondents, One commenter
requested that the Deparmment include
in its jnitial questionnaire a solicitation
of dutu and other information fom tha
respondent seeking revocation on why
the antidumping duty order in the
respondent's opinion is no longer
needed to offset dumping, While this
commenter conceded that this
procedural element could be
implemented without regulatory
modification, the commenter contended
that there was no reason that sucha
provision could not be incorporated in

the regulations,
By contrast, several commenters
stated that the revised regulation

continues to place a burden on
respondents to prove eligibility for
revocation, rather than placing the
burden on the Department to find
positive evidence establishing that the
yaaintenance of the order is necessary.
These commenters contend that placing
the burden on the Department
necessitates 4 reformulation of the
regulation, such that the revised
regulation should not 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
dumpod for three consecutive years and
has furnished the required
reinstatement agreement, “unless the
Secretury reliably demonstrates on the
basis of a foundation of positive
-evidence that the continued application
of the antidumping duty order as to the
exporter or producer is necessary to
offset dumping.”

However, one commenter welcomed
the Department'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, this commenter states that the
jnitial burden should clearly rest on the
petitioners, as the beneficiaries of the
continuation of the ofder, to provide
evidence that the order is still
necessary. Thus, this commenter states
that the Department should not request
information from a respondent until
petitioners make allegations supported
by tangible evidence that the order is
still 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 Department
intends to presume that an order is not
necessary in the absence of additional
evidenca, We believe that such a
presumption is consistent with prior
Department practice as well as U.S.
obligations under Article 11.2 of the

Antidumping Agceement and Article
21.2 of the SCM Agreement. As the
Panel yecognized, a decision tn maintain
an order must be substantiated by
positive evidence. If the only evidence
on record is a respondent's ubility to sell
subject merchandise at not less than
normal! vajue for three consecutive
years, the record would not support a
decision to maintain the order in light
of the requirement in Article 11.2, as
interpreted by the Panel, that there be
positive evidence reflecting the
continued necessity of the order. *

We decline at this time to adopt the
commenter’s suggestion that we solicit
information from respondents at the
outset of an administrative review. The
absence of dumping for three
consecutive years,? while satisfying the
first 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, if a party raises an
issue relating to the necessity of an
order, the Department may seek
additional information relevant to that
issue, Nonetheless, since the manner in
which we collect evidence is not
necessarily a regulatory matter, we may
revisit this issue at a 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 tha
Department, to prove eligibility for
revocation. The threshold requirement
for revocation continues to be that
respondents not sell at less than normal
value for at least three consecutive years
and that, during each of those years,
respondents exported subject
merchandise to the United States in
commercial quantities, See 19 CFR
351.222(d)(1). The Pane) did not disturb
this aspect of the Department's
revocation practice. Moreover, we re-
emphasize our statement in the
Proposed Rule that “the absence of
dumping for three consecutive years
served as a presumption in favor of
revoking the order, which could ba
rebutted by positive evidence indicating
that dumping may recur if the order
were revoked,” Thus, we disagree that
an impermisstble burden is placed on
respondents. Insterd, a thorough
analysis of all relevant information
requires a systam in which there is a
shifting burden of production such that
the parties in the best position to

2 {nm accordance: with 19 CFR 351.222(e](ii}, to be
considared for revocation, the producers and
exporters rust hnve sold the subjact merchandisa
in commercial quantiles in euch of the three yours.

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

provide relevant information ara
compelled to do so. All parties may be
in a position to provide information
concerning trends in prices and costs,
currency movements, and other market
and economic facturs that may be
televant to the likelihood of fiture
dumping, If no party provides
information addressing these issues, we
rest with the presumption that an order
is not necessary in the absence of
dumping. If the petitioner comes
forward with information demonstrating
that the maintenance of the ordax is
necessary, that initial presumption is
rebutted, and the burden of production
shifts to respondents. While the burden
of producing evidence shifts among the
parties, we emphasize that the
Department does not impose a burden of
proof on any party. The Department
must weigh all of the evidence on the
record and determine whether the
continued application of the order is
necessary to offset dumping (or
subsidization), Each revocation
determination must he based upon
substantial, positive evidence and be
otherwise in accordance with law.

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

However, 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
commenter noted the Panel’s distinction
between failing to establish something
as a negative finding and establishing
something as a positive finding in the
context of the “‘not likely" criterion and
concluded that this same principle
applies to the proposed regulation,

We have formulated the final rule in
a way that clarifies that the Secretary
rnust make an affirmative finding of
necessity in order to retain an
antidumping ox countervailing duty ~
order. While this reformulation does not
affect the process by which the
Department considers revocation, the
reformulated regulation more closely
tracks the wording of Article 11.2 of the
Antidumping Agreement and Article
21.2 of the SCM Agreement.

Several commenters argue that the
continued use of the discretionary term
“may” in the Proposed Rule conflicts
with the mandatory term “shall”
contained in Article 11.2 of the
Antidumping Agreement. These
commenters suggest that the Panel
rejected the axisting regulation, in part,
because the regulation allows the