Modification of Regulations Regarding Price Adjustments in Antidumping Duty Proceedings, 78742-78744 [2014-30664]
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78742
Federal Register / Vol. 79, No. 250 / Wednesday, December 31, 2014 / Proposed Rules
Commission accepts most standard
word processing formats. Documents
created electronically using word
processing software should be filed in
native applications or print-to-PDF
format and not in a scanned format.
Commenters filing electronically do not
need to make a paper filing.
22. Commenters that are not able to
file comments electronically must send
an original of their comments to:
Federal Energy Regulatory Commission,
Secretary of the Commission, 888 First
Street NE., Washington, DC 20426.
23. All comments will be placed in
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remotely as described in the Document
Availability section below. Commenters
on this proposal are not required to
serve copies of their comments on other
commenters.
VI. Document Availability
24. In addition to publishing the full
text of this document in the Federal
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tkelley on DSK3SPTVN1PROD with PROPOSALS
List of Subjects in 18 CFR Part 46
Electric utilities; Reporting and
recordkeeping requirements.
By direction of the Commission.
Dated: December 18, 2014.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
PART 46—PUBLIC UTILITY FILING
REQUIREMENTS AND FILING
REQUIREMENTS FOR PERSONS
HOLDING INTERLOCKING POSITIONS
DEPARTMENT OF COMMERCE
■
1. The authority citation for Part 46
continues to read as follows:
[Docket No. 140929814–4814–01]
Authority: 16 U.S.C. 792–828c; 16 U.S.C.
2601–2645; 42 U.S.C. 7101–7352; E.O. 12009,
3 CFR 142.
RIN 0625–AB02
2. Section 46.3 is amended by revising
paragraph (a) to read as follows:
■
§ 46.3
Purchaser list.
(a)(1) Compilation and filing list. On
or before January 31 of each year, except
as provided below, each public utility
shall compile a list of the purchasers
described in paragraph (b) of this
section and shall identify each
purchaser by name and principal
business address. The public utility
must submit the list to the Secretary of
the Commission in accordance with
filing procedures posted on the
Commission’s Web site at https://
www.ferc.gov and make the list publicly
available through its principal business
office.
(2) Notwithstanding paragraph (a)(1)
of this section, public utilities that are
defined as Regional Transmission
Operators, as defined in § 35.34(b)(1) of
this chapter, and public utilities that are
defined as Independent System
Operators, as defined in § 35.46(d) of
this chapter, are exempt from the
requirement to file.
(3) Notwithstanding paragraph (a)(1)
of this section, public utilities that meet
the criteria for exempt wholesale
generators, as defined in § 366.1 of this
chapter, and are certified as such
pursuant to § 366.7 of this chapter, are
exempt from the requirement to file.
(4) Notwithstanding paragraph (a)(1)
of this section, public utilities that have
no reportable sales as defined in section
(b) in any of the three preceding years
are exempt from the requirement to file.
(5) Notwithstanding paragraph (a)(1)
of this section, individual residential
customers on the list may be identified
as ‘‘Residential Customer,’’ and with a
zip code in lieu of an address.
*
*
*
*
*
[FR Doc. 2014–30366 Filed 12–30–14; 8:45 am]
BILLING CODE 6717–01–P
In consideration of the foregoing, the
Commission proposes to amend Part 46,
Chapter I, Title 18, Code of Federal
Regulations, as follows:
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International Trade Administration
19 CFR Part 351
Modification of Regulations Regarding
Price Adjustments in Antidumping
Duty Proceedings
Enforcement and Compliance,
International Trade Administration,
Department of Commerce.
ACTION: Proposed rule and request for
comments.
AGENCY:
The Department of Commerce
(‘‘the Department’’) proposes to modify
two regulations pertaining to price
adjustments in antidumping duty
proceedings and is seeking comments
from parties. These modifications, if
adopted, are intended to clarify that the
Department generally will not consider
a price adjustment that reduces or
eliminates a dumping margin unless the
party claiming such price adjustment
demonstrates, to the satisfaction of the
Department, through documentation
that the terms and conditions of the
adjustment were established and known
to the customer at the time of sale.
DATES: To be assured of consideration,
written comments must be received no
later than January 30, 2015.
ADDRESSES: All comments must be
submitted through the Federal
eRulemaking Portal at https://
www.regulations.gov, Docket No. ITA–
2014–0001, unless the commenter does
not have access to the internet.
Commenters that do not have access to
the internet may submit the original and
one electronic copy of each set of
comments by mail or hand delivery/
courier. All comments should be
addressed to Paul Piquado, Assistant
Secretary for Enforcement &
Compliance, Room 1870, Department of
Commerce, 14th Street and Constitution
Ave. NW., Washington, DC 20230.
Comments submitted to the Department
will be uploaded to the eRulemaking
Portal at www.Regulations.gov.
The Department will consider all
comments received before the close of
the comment period. All comments
responding to this notice will be a
matter of public record and will be
available on the Federal eRulemaking
Portal at www.Regulations.gov. The
Department will not accept comments
accompanied by a request that part or
all of the material be treated
confidentially because of its business
SUMMARY:
E:\FR\FM\31DEP1.SGM
31DEP1
Federal Register / Vol. 79, No. 250 / Wednesday, December 31, 2014 / Proposed Rules
to price adjustments, such as discounts
and rebates.’’ Final Rule, 62 FR at
27344.
The Department also addressed the
following comment on the proposed
rulemaking, regarding whether ‘‘after
the fact’’ price adjustments, that were
not contemplated at the time of sale,
would be accepted under 19 CFR
351.401(c):
tkelley on DSK3SPTVN1PROD with PROPOSALS
proprietary nature or for any other
reason.
Any questions concerning file
formatting, document conversion,
access on the Internet, or other
electronic filing issues should be
addressed to Moustapha Sylla,
Enforcement and Compliance
Webmaster, at (202) 482–4685, email
address: webmastersupport@ita.doc.gov.
FOR FURTHER INFORMATION CONTACT:
Jessica Link at (202) 482–1411 or
Melissa Skinner at (202) 482–0461.
SUPPLEMENTARY INFORMATION:
Background
In general terms, section 731 of the
Tariff Act of 1930, as amended (the Act)
provides that when a company is selling
foreign merchandise into the United
States at less than fair value, and
material injury or threat of material
injury is found by the International
Trade Commission, the Department
shall impose an antidumping duty. An
antidumping duty analysis involves a
comparison of the company’s sales price
in the United States (known as the
export price or constructed export price)
with the price or cost in the foreign
market (known as the normal value).
See 19 CFR 351.401(a); see also section
772 of the Act (defining export price
and constructed export price); section
773 of the Act (defining normal value).
The prices used to establish export
price, constructed export price, and
normal value involve certain
adjustments. See, e.g., 19 CFR
351.401(b). In its May 19, 1997 final
rulemaking, the Department
promulgated regulatory provisions
governing the use of price adjustments
in the calculation of export price,
constructed export price, and normal
value in antidumping duty proceedings.
Antidumping Duties; Countervailing
Duties; Final Rule, 62 FR 27296 (May
19, 1997) (‘‘Final Rule’’). In particular,
the Department promulgated the current
regulation at 19 CFR 351.102(b)(38),
which provides a definition of ‘‘price
adjustment’’. In providing this
definition, the Department stated that
‘‘{t}his term is intended to describe a
category of changes to a price, such as
discounts, rebates and post-sale price
adjustments, that affect the net outlay of
funds by the purchaser.’’ Id., 62 FR at
27300.
The Department also enacted 19 CFR
351.401(c), which explains how the
Department will use a price net of price
adjustments. In the Final Rule, the
Department explained that 19 CFR
351.401(c) was intended to ‘‘restate{}
the Department’s practice with respect
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Jkt 235001
One commenter suggested that, at least for
purposes of normal value, the regulations
should clarify that the only rebates
Commerce will consider are ones that were
contemplated at the time of sale. This
commenter argued that foreign producers
should not be allowed to eliminate dumping
margins by providing ‘‘rebates’’ only after the
existence of margins becomes apparent.
The Department has not adopted this
suggestion at this time. We do not disagree
with the proposition that exporters or
producers will not be allowed to eliminate
dumping margins by providing price
adjustments ‘‘after the fact.’’ However, as
discussed above, the Department’s treatment
of price adjustments in general has been the
subject of considerable confusion. In
resolving this confusion, we intend to
proceed cautiously and incrementally. The
regulatory revisions contained in these final
rules constitute a first step at clarifying our
treatment of price adjustments. We will
consider adding other regulatory refinements
at a later date.
Since enacting these regulations, the
Department has consistently applied its
practice of not granting price
adjustments where the terms and
conditions were not established and
known to the customer at the time of
sale (sometimes referred to as
determining the ‘‘legitimacy’’ of a price
adjustment) because of the potential for
manipulation of the dumping margin
through so-called ‘‘after-the-fact’’
adjustments. See, e.g., Certain Oil
Country Tubular Goods From Taiwan:
Final Determination of Sales at Less
Than Fair Value, 79 FR 41979 (July 18,
2014) and accompanying Issues and
Decision Memorandum, Cmt. 3;
Lightweight Thermal Paper From
Germany: Notice of Final Results of the
First Antidumping Duty Administrative
Review, 76 FR 22078 (April 20, 2011)
(Lightweight Thermal Paper from
Germany) and accompanying Issues and
Decision Memorandum, Cmt. 3; Canned
Pineapple Fruit from Thailand: Final
Results and Partial Rescission of
Antidumping Duty Administrative
Review, 71 FR 70948 (Dec. 7, 2006) and
accompanying Issues and Decision
Memorandum, Cmt. 1; Ball Bearings
and Parts Thereof from France,
Germany, Italy, Japan, and the United
Kingdom: Final Results of Antidumping
Duty Administrative Reviews, 71 FR
40064 (July 14, 2006) and accompanying
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Sfmt 4702
78743
Issues and Decision Memorandum, Cmt.
19.
On March 25, 2014, the Court of
International Trade issued Papierfabrik
August Koehler AG v. United States, 971
F. Supp. 2d 1246 (Ct. Int’l Trade 2014)
(Koehler AG), remanding the
Department’s decision in Lightweight
Thermal Paper from Germany, noted
above. The Court ordered the
Department to reconsider Papierfabrik
August Koehler AG’s rebate program.
The Court disagreed with the
Department’s determination that the
regulations permitted it to disregard
certain price adjustments, the terms and
conditions of which were not
established or known to the customer at
the time of sale, stating that ‘‘the
regulations set forth a broad definition
of price adjustment encompassing ‘any
change in the price charged for . . . the
foreign like product’ that ‘are reflected
in the purchaser’s net outlay.’ ’’ 971 F.
Supp. 2d at 1251–52 (quoting 19 CFR
351.102(b)(38)) (emphasis added by
Court). In accordance with the Court’s
order, on remand, under protest, the
Department granted an adjustment for
the rebates at issue. See Final Results of
Redetermination Pursuant to Court
Remand, Lightweight Thermal Paper
from Germany, Papierfabrik August
Koehler AG v. United States, Court No.
11–00147, Slip Op. 14–31 (Ct. Int’l
Trade March 25, 2014), dated June 20,
2014.
The Department continues to defend
its regulatory interpretation of
disallowing price adjustments the terms
and conditions of which were not
contemplated and known to the
customer at the time of sale. However,
the Department recognizes that the
Court of International Trade in Koehler
AG disagrees with its interpretation.
Therefore, without prejudice to the
United States Government’s right to
appeal Koehler AG, or to argue that the
Department’s current interpretation of
its regulations is correct, the Department
is issuing this proposed rule to modify
the regulations at issue pursuant to
Administrative Procedure Act (5 U.S.C.
553) notice and comment procedures;
we invite comments from all interested
parties.
Proposed Modification
The Department proposes to modify
19 CFR 351.102(b)(38) and 19 CFR
351.401(c) as indicated below. These
modifications, if adopted, are intended
to clarify that the Department generally
will not consider a price adjustment that
reduces or eliminates a dumping margin
unless the party claiming such price
adjustment demonstrates, to the
satisfaction of the Department, through
E:\FR\FM\31DEP1.SGM
31DEP1
78744
Federal Register / Vol. 79, No. 250 / Wednesday, December 31, 2014 / Proposed Rules
documentation that the terms and
conditions of the adjustment were
established and known to the customer
at the time of sale. This rulemaking
would be effective for proceedings
initiated on or after 30 days following
the date of publication of the final rule.
The Department invites parties to
comment on this proposed rule and the
proposed effective date. Further, any
party may submit comments expressing
its disagreement with the Department’s
proposal and may propose an
alternative approach.
Classifications
Executive Order 12866
It has been determined that this
proposed rule is not significant for
purposes of Executive Order 12866.
Paperwork Reduction Act
This proposed rule contains no new
collection of information subject to the
Paperwork Reduction Act, 44 U.S.C.
Chapter 35.
tkelley on DSK3SPTVN1PROD with PROPOSALS
Executive Order 13132
This proposed rule does not contain
policies with federalism implications as
that term is defined in section 1(a) of
Executive Order 13132, dated August 4,
1999 (64 FR 43255 (August 10, 1999)).
Regulatory Flexibility Act
The Chief Counsel for Regulation has
certified to the Chief Counsel for
Advocacy of the Small Business
Administration under the provisions of
the Regulatory Flexibility Act, 5 U.S.C.
605(b), that the proposed rule would not
have a significant economic impact on
a substantial number of small business
entities. A summary of the need for,
objectives of and legal basis for this rule
is provided in the preamble, and is not
repeated here.
The entities upon which this
rulemaking could have an impact
include foreign exporters and
producers, some of whom are affiliated
with U.S. companies, and U.S.
importers. Enforcement & Compliance
currently does not have information on
the number of entities that would be
considered small under the Small
Business Administration’s size
standards for small businesses in the
relevant industries. However, some of
these entities may be considered small
entities under the appropriate industry
size standards. Although this proposed
rule may indirectly impact small
entities that are parties to individual
antidumping duty proceedings, it will
not have a significant economic impact
on any entities.
The proposed action is merely a
continuation of the Department’s
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16:21 Dec 30, 2014
Jkt 235001
practice based on its interpretation of
current Department regulations. If the
proposed rule is implemented, no
entities would be required to undertake
additional compliance measures or
expenditures. Rather, the regulations,
both in their current form and in this
proposed rulemaking, instruct the
Department on what adjustments to
make to export price or constructed
export price and normal value under
certain factual scenarios in the course of
an antidumping duty proceeding.
Because the proposed rule only impacts
the way in which the Department makes
certain calculations in antidumping
duty proceedings, it does not directly
impact any business entities. The
proposed rule merely clarifies the
regulations to better align with current
Departmental practices. Therefore, the
proposed rule would not have a
significant economic impact on a
substantial number of small business
entities. For this reason, an Initial
Regulatory Flexibility Analysis is not
required and one has not been prepared.
List of Subjects in 19 CFR Part 351
Administrative practice and
procedure, Antidumping, Business and
industry, Cheese, Confidential business
information, Countervailing duties,
Freedom of information, Investigations,
Reporting and recordkeeping
requirements.
Dated: December 19, 2014.
Paul Piquado,
Assistant Secretary for Enforcement and
Compliance.
For the reasons stated, 19 CFR part
351 is proposed to be amended as
follows:
PART 351—ANTIDUMPING AND
COUNTERVAILING DUTIES
1. The authority citation for 19 CFR
part 351 continues to read as follows:
■
Authority: 5 U.S.C. 301; 19 U.S.C. 1202
note; 19 U.S.C. 1303 note; 19 U.S.C. 1671 et
seq.; and 19 U.S.C. 3538.
2. In § 351.102, revise paragraph
(b)(38) to read as follows:
■
§ 351.102
Definitions.
*
*
*
*
*
(b) * * *
(38) Price adjustment. ‘‘Price
adjustment’’ means a change in the
price charged for subject merchandise or
the foreign like product, such as a
discount or rebate, including, under
certain circumstances, a change such as
a discount or rebate that is made after
the time of sale (see § 351.401(c)), that
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Fmt 4702
Sfmt 4702
is reflected in the purchaser’s net
outlay.
*
*
*
*
*
■ 3. In § 351.401, revise paragraph (c) to
read as follows:
§ 351.401
In general.
*
*
*
*
*
(c) Use of price net of price
adjustments. In calculating export price,
constructed export price, and normal
value (where normal value is based on
price), the Secretary normally will use
a price that is net of price adjustments,
as defined in § 351.102(b), that are
reasonably attributable to the subject
merchandise or the foreign like product
(whichever is applicable). The Secretary
generally will not consider a price
adjustment that reduces or eliminates a
dumping margin unless the party
claiming such price adjustment
demonstrates, to the satisfaction of the
Secretary, through documentation that
the terms and conditions of the
adjustment were established and known
to the customer at the time of sale.
*
*
*
*
*
[FR Doc. 2014–30664 Filed 12–30–14; 8:45 am]
BILLING CODE 3510–DS–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Food and Drug Administration
21 CFR Part 1271
[Docket No. FDA–2014–N–1484]
Revisions to Exceptions Applicable to
Certain Human Cells, Tissues, and
Cellular and Tissue-Based Products
AGENCY:
Food and Drug Administration,
HHS.
ACTION:
Proposed rule.
The Food and Drug
Administration (FDA or Agency) is
issuing this proposed rule to amend
certain regulations regarding donor
eligibility, including the screening and
testing of donors of particular human
cells, tissues, and cellular and tissuebased products (HCT/Ps), and related
labeling. FDA is proposing this action in
response to our enhanced
understanding in this area and in
response to comments from
stakeholders regarding the importance
of embryos to individuals and couples
seeking access to donated embryos.
DATES: Submit either electronic or
written comments on the proposed rule
by March 31, 2015.
ADDRESSES: You may submit comments
by any of the following methods:
SUMMARY:
E:\FR\FM\31DEP1.SGM
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Agencies
[Federal Register Volume 79, Number 250 (Wednesday, December 31, 2014)]
[Proposed Rules]
[Pages 78742-78744]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-30664]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
19 CFR Part 351
[Docket No. 140929814-4814-01]
RIN 0625-AB02
Modification of Regulations Regarding Price Adjustments in
Antidumping Duty Proceedings
AGENCY: Enforcement and Compliance, International Trade Administration,
Department of Commerce.
ACTION: Proposed rule and request for comments.
-----------------------------------------------------------------------
SUMMARY: The Department of Commerce (``the Department'') proposes to
modify two regulations pertaining to price adjustments in antidumping
duty proceedings and is seeking comments from parties. These
modifications, if adopted, are intended to clarify that the Department
generally will not consider a price adjustment that reduces or
eliminates a dumping margin unless the party claiming such price
adjustment demonstrates, to the satisfaction of the Department, through
documentation that the terms and conditions of the adjustment were
established and known to the customer at the time of sale.
DATES: To be assured of consideration, written comments must be
received no later than January 30, 2015.
ADDRESSES: All comments must be submitted through the Federal
eRulemaking Portal at https://www.regulations.gov, Docket No. ITA-2014-
0001, unless the commenter does not have access to the internet.
Commenters that do not have access to the internet may submit the
original and one electronic copy of each set of comments by mail or
hand delivery/courier. All comments should be addressed to Paul
Piquado, Assistant Secretary for Enforcement & Compliance, Room 1870,
Department of Commerce, 14th Street and Constitution Ave. NW.,
Washington, DC 20230. Comments submitted to the Department will be
uploaded to the eRulemaking Portal at www.Regulations.gov.
The Department will consider all comments received before the close
of the comment period. All comments responding to this notice will be a
matter of public record and will be available on the Federal
eRulemaking Portal at www.Regulations.gov. The Department will not
accept comments accompanied by a request that part or all of the
material be treated confidentially because of its business
[[Page 78743]]
proprietary nature or for any other reason.
Any questions concerning file formatting, document conversion,
access on the Internet, or other electronic filing issues should be
addressed to Moustapha Sylla, Enforcement and Compliance Webmaster, at
(202) 482-4685, email address: webmaster-support@ita.doc.gov.
FOR FURTHER INFORMATION CONTACT: Jessica Link at (202) 482-1411 or
Melissa Skinner at (202) 482-0461.
SUPPLEMENTARY INFORMATION:
Background
In general terms, section 731 of the Tariff Act of 1930, as amended
(the Act) provides that when a company is selling foreign merchandise
into the United States at less than fair value, and material injury or
threat of material injury is found by the International Trade
Commission, the Department shall impose an antidumping duty. An
antidumping duty analysis involves a comparison of the company's sales
price in the United States (known as the export price or constructed
export price) with the price or cost in the foreign market (known as
the normal value). See 19 CFR 351.401(a); see also section 772 of the
Act (defining export price and constructed export price); section 773
of the Act (defining normal value). The prices used to establish export
price, constructed export price, and normal value involve certain
adjustments. See, e.g., 19 CFR 351.401(b). In its May 19, 1997 final
rulemaking, the Department promulgated regulatory provisions governing
the use of price adjustments in the calculation of export price,
constructed export price, and normal value in antidumping duty
proceedings. Antidumping Duties; Countervailing Duties; Final Rule, 62
FR 27296 (May 19, 1997) (``Final Rule''). In particular, the Department
promulgated the current regulation at 19 CFR 351.102(b)(38), which
provides a definition of ``price adjustment''. In providing this
definition, the Department stated that ``{t{time} his term is intended
to describe a category of changes to a price, such as discounts,
rebates and post-sale price adjustments, that affect the net outlay of
funds by the purchaser.'' Id., 62 FR at 27300.
The Department also enacted 19 CFR 351.401(c), which explains how
the Department will use a price net of price adjustments. In the Final
Rule, the Department explained that 19 CFR 351.401(c) was intended to
``restate{{time} the Department's practice with respect to price
adjustments, such as discounts and rebates.'' Final Rule, 62 FR at
27344.
The Department also addressed the following comment on the proposed
rulemaking, regarding whether ``after the fact'' price adjustments,
that were not contemplated at the time of sale, would be accepted under
19 CFR 351.401(c):
One commenter suggested that, at least for purposes of normal
value, the regulations should clarify that the only rebates Commerce
will consider are ones that were contemplated at the time of sale.
This commenter argued that foreign producers should not be allowed
to eliminate dumping margins by providing ``rebates'' only after the
existence of margins becomes apparent.
The Department has not adopted this suggestion at this time. We
do not disagree with the proposition that exporters or producers
will not be allowed to eliminate dumping margins by providing price
adjustments ``after the fact.'' However, as discussed above, the
Department's treatment of price adjustments in general has been the
subject of considerable confusion. In resolving this confusion, we
intend to proceed cautiously and incrementally. The regulatory
revisions contained in these final rules constitute a first step at
clarifying our treatment of price adjustments. We will consider
adding other regulatory refinements at a later date.
Since enacting these regulations, the Department has consistently
applied its practice of not granting price adjustments where the terms
and conditions were not established and known to the customer at the
time of sale (sometimes referred to as determining the ``legitimacy''
of a price adjustment) because of the potential for manipulation of the
dumping margin through so-called ``after-the-fact'' adjustments. See,
e.g., Certain Oil Country Tubular Goods From Taiwan: Final
Determination of Sales at Less Than Fair Value, 79 FR 41979 (July 18,
2014) and accompanying Issues and Decision Memorandum, Cmt. 3;
Lightweight Thermal Paper From Germany: Notice of Final Results of the
First Antidumping Duty Administrative Review, 76 FR 22078 (April 20,
2011) (Lightweight Thermal Paper from Germany) and accompanying Issues
and Decision Memorandum, Cmt. 3; Canned Pineapple Fruit from Thailand:
Final Results and Partial Rescission of Antidumping Duty Administrative
Review, 71 FR 70948 (Dec. 7, 2006) and accompanying Issues and Decision
Memorandum, Cmt. 1; Ball Bearings and Parts Thereof from France,
Germany, Italy, Japan, and the United Kingdom: Final Results of
Antidumping Duty Administrative Reviews, 71 FR 40064 (July 14, 2006)
and accompanying Issues and Decision Memorandum, Cmt. 19.
On March 25, 2014, the Court of International Trade issued
Papierfabrik August Koehler AG v. United States, 971 F. Supp. 2d 1246
(Ct. Int'l Trade 2014) (Koehler AG), remanding the Department's
decision in Lightweight Thermal Paper from Germany, noted above. The
Court ordered the Department to reconsider Papierfabrik August Koehler
AG's rebate program. The Court disagreed with the Department's
determination that the regulations permitted it to disregard certain
price adjustments, the terms and conditions of which were not
established or known to the customer at the time of sale, stating that
``the regulations set forth a broad definition of price adjustment
encompassing `any change in the price charged for . . . the foreign
like product' that `are reflected in the purchaser's net outlay.' ''
971 F. Supp. 2d at 1251-52 (quoting 19 CFR 351.102(b)(38)) (emphasis
added by Court). In accordance with the Court's order, on remand, under
protest, the Department granted an adjustment for the rebates at issue.
See Final Results of Redetermination Pursuant to Court Remand,
Lightweight Thermal Paper from Germany, Papierfabrik August Koehler AG
v. United States, Court No. 11-00147, Slip Op. 14-31 (Ct. Int'l Trade
March 25, 2014), dated June 20, 2014.
The Department continues to defend its regulatory interpretation of
disallowing price adjustments the terms and conditions of which were
not contemplated and known to the customer at the time of sale.
However, the Department recognizes that the Court of International
Trade in Koehler AG disagrees with its interpretation. Therefore,
without prejudice to the United States Government's right to appeal
Koehler AG, or to argue that the Department's current interpretation of
its regulations is correct, the Department is issuing this proposed
rule to modify the regulations at issue pursuant to Administrative
Procedure Act (5 U.S.C. 553) notice and comment procedures; we invite
comments from all interested parties.
Proposed Modification
The Department proposes to modify 19 CFR 351.102(b)(38) and 19 CFR
351.401(c) as indicated below. These modifications, if adopted, are
intended to clarify that the Department generally will not consider a
price adjustment that reduces or eliminates a dumping margin unless the
party claiming such price adjustment demonstrates, to the satisfaction
of the Department, through
[[Page 78744]]
documentation that the terms and conditions of the adjustment were
established and known to the customer at the time of sale. This
rulemaking would be effective for proceedings initiated on or after 30
days following the date of publication of the final rule.
The Department invites parties to comment on this proposed rule and
the proposed effective date. Further, any party may submit comments
expressing its disagreement with the Department's proposal and may
propose an alternative approach.
Classifications
Executive Order 12866
It has been determined that this proposed rule is not significant
for purposes of Executive Order 12866.
Paperwork Reduction Act
This proposed rule contains no new collection of information
subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.
Executive Order 13132
This proposed rule does not contain policies with federalism
implications as that term is defined in section 1(a) of Executive Order
13132, dated August 4, 1999 (64 FR 43255 (August 10, 1999)).
Regulatory Flexibility Act
The Chief Counsel for Regulation has certified to the Chief Counsel
for Advocacy of the Small Business Administration under the provisions
of the Regulatory Flexibility Act, 5 U.S.C. 605(b), that the proposed
rule would not have a significant economic impact on a substantial
number of small business entities. A summary of the need for,
objectives of and legal basis for this rule is provided in the
preamble, and is not repeated here.
The entities upon which this rulemaking could have an impact
include foreign exporters and producers, some of whom are affiliated
with U.S. companies, and U.S. importers. Enforcement & Compliance
currently does not have information on the number of entities that
would be considered small under the Small Business Administration's
size standards for small businesses in the relevant industries.
However, some of these entities may be considered small entities under
the appropriate industry size standards. Although this proposed rule
may indirectly impact small entities that are parties to individual
antidumping duty proceedings, it will not have a significant economic
impact on any entities.
The proposed action is merely a continuation of the Department's
practice based on its interpretation of current Department regulations.
If the proposed rule is implemented, no entities would be required to
undertake additional compliance measures or expenditures. Rather, the
regulations, both in their current form and in this proposed
rulemaking, instruct the Department on what adjustments to make to
export price or constructed export price and normal value under certain
factual scenarios in the course of an antidumping duty proceeding.
Because the proposed rule only impacts the way in which the Department
makes certain calculations in antidumping duty proceedings, it does not
directly impact any business entities. The proposed rule merely
clarifies the regulations to better align with current Departmental
practices. Therefore, the proposed rule would not have a significant
economic impact on a substantial number of small business entities. For
this reason, an Initial Regulatory Flexibility Analysis is not required
and one has not been prepared.
List of Subjects in 19 CFR Part 351
Administrative practice and procedure, Antidumping, Business and
industry, Cheese, Confidential business information, Countervailing
duties, Freedom of information, Investigations, Reporting and
recordkeeping requirements.
Dated: December 19, 2014.
Paul Piquado,
Assistant Secretary for Enforcement and Compliance.
For the reasons stated, 19 CFR part 351 is proposed to be amended
as follows:
PART 351--ANTIDUMPING AND COUNTERVAILING DUTIES
0
1. The authority citation for 19 CFR part 351 continues to read as
follows:
Authority: 5 U.S.C. 301; 19 U.S.C. 1202 note; 19 U.S.C. 1303
note; 19 U.S.C. 1671 et seq.; and 19 U.S.C. 3538.
0
2. In Sec. 351.102, revise paragraph (b)(38) to read as follows:
Sec. 351.102 Definitions.
* * * * *
(b) * * *
(38) Price adjustment. ``Price adjustment'' means a change in the
price charged for subject merchandise or the foreign like product, such
as a discount or rebate, including, under certain circumstances, a
change such as a discount or rebate that is made after the time of sale
(see Sec. 351.401(c)), that is reflected in the purchaser's net
outlay.
* * * * *
0
3. In Sec. 351.401, revise paragraph (c) to read as follows:
Sec. 351.401 In general.
* * * * *
(c) Use of price net of price adjustments. In calculating export
price, constructed export price, and normal value (where normal value
is based on price), the Secretary normally will use a price that is net
of price adjustments, as defined in Sec. 351.102(b), that are
reasonably attributable to the subject merchandise or the foreign like
product (whichever is applicable). The Secretary generally will not
consider a price adjustment that reduces or eliminates a dumping margin
unless the party claiming such price adjustment demonstrates, to the
satisfaction of the Secretary, through documentation that the terms and
conditions of the adjustment were established and known to the customer
at the time of sale.
* * * * *
[FR Doc. 2014-30664 Filed 12-30-14; 8:45 am]
BILLING CODE 3510-DS-P