Procedures for Conducting Five-year (“Sunset”) Reviews of Antidumping and Countervailing Duty Orders, 47738-47740 [05-16133]
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Federal Register / Vol. 70, No. 156 / Monday, August 15, 2005 / Proposed Rules
DEPARTMENT OF COMMERCE
International Trade Administration
19 CFR Part 351
[Docket No. 050803215–5215–01]
RIN 0625–AA69
Procedures for Conducting Five–year
(‘‘Sunset’’) Reviews of Antidumping
and Countervailing Duty Orders
Import Administration,
International Trade Administration,
Department of Commerce.
ACTION: Proposed rule; request for
comments.
AGENCY:
SUMMARY: The Department of Commerce
(‘‘the Department’’) proposes to amend
its regulations related to sunset reviews
to conform the existing regulation to the
United States’ obligations under Articles
6.1, 6.2, and 11.3 of the Agreement on
the Implementation of Article VI of the
General Agreement on Tariffs and Trade
1994 (‘‘Antidumping Agreement’’). The
proposed regulations, if adopted, would
amend the ‘‘waiver’’ provisions which
govern treatment of interested parties
who do not provide a substantive
response to the Department’s notice of
initiation of a sunset review and clarify
the basis for parties’ participation in a
public hearing in an expedited sunset
review.
To be assured of consideration,
written comments must be received not
later than September 14, 2005.
ADDRESSES: A signed original and two
copies of each set of comments,
including reasons for any
recommendation, should be submitted
to Joseph A. Spetrini, Acting Assistant
Secretary for Import Administration,
Central Records Unit, room 1870, U.S.
Department of Commerce, Pennsylvania
Avenue and 14th Street, NW,
Washington, DC, 20230; attention:
Proposed Amendments to Sunset
Procedural Regulations.
FOR FURTHER INFORMATION CONTACT:
Stacy J. Ettinger or Patrick V. Gallagher,
Office of the Chief Counsel for Import
Administration, room 3622, U.S.
Department of Commerce, Pennsylvania
Avenue and 14th Street NW,
Washington, DC, 20230; telephone:
(202)482–4618 or (202)482–5053,
respectively.
DATES:
SUPPLEMENTARY INFORMATION:
Background
On March 20, 1998, the Department
published regulations addressing the
procedures for participation in, and
conduct of, sunset reviews. See 63 Fed.
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Reg. 13516. On December 17, 2004, the
Dispute Settlement Body (DSB) of the
World Trade Organization (WTO)
adopted the reports of the Appellate
Body (‘‘AB’’) and the dispute settlement
panel in United States—Sunset Reviews
of Anti–dumping Measures on Oil
Country Tubular Goods from Argentina,
WT/DS268/AB/R (November 29, 2004)
and WT/DS268/R (July 16, 2004),
respectively. The AB/panel found that
the waiver provisions of section
751(c)(4)(B) of the Tariff Act of 1930 and
section 351.218(d)(2)(iii) of Commerce’s
sunset regulations are inconsistent with
Articles 6.1, 6.2, and 11.3 of the
Antidumping Agreement.
Section 123 of the Uruguay Round
Agreements Act (‘‘URAA’’) governs the
process for changes to the Department’s
regulations where a dispute settlement
panel and/or the Appellate Body finds
a regulatory provision to be inconsistent
with any of the WTO agreements.
Consistent with section 123(g)(1)(C), the
Department is publishing proposed
amendments to its regulations related to
sunset reviews to conform the existing
regulations to the United States’
obligations under Articles 6.1, 6.2, and
11.3 of the Antidumping Agreement.
The proposed regulations, if adopted,
would amend the ‘‘waiver’’ provisions
which govern treatment of interested
parties who do not provide a complete
substantive response to the
Department’s Notice of Initiation of a
sunset review and clarify the basis for
parties’ participation in a public hearing
in an expedited sunset review.
Explanation of Proposed Amendments
Section 351.218
Section 751(c)(4)(B) of the Tariff Act
provides that where an interested party
‘‘waives’’ its participation in a sunset
review, the Department ‘‘shall conclude
that revocation of the order ... would be
likely to lead to continuation or
recurrence of dumping or a
countervailable subsidy (as the case may
be) with respect to that interested
party.’’ Paragraph (d)(2) of 19 CFR
351.218 deals with the procedure for
waiving participation in a sunset review
before the Department. Specifically,
paragraph (d)(2)(i) provides for filing a
‘‘statement of waiver’’ for parties
electing not to participate in the
Department’s sunset review (so–called
‘‘affirmative waiver’’), and paragraph
(d)(2)(iii) provides that failure to file a
complete substantive response to a
notice of initiation also will be treated
as a waiver of participation (so–called
‘‘deemed waiver’’). The panel and
Appellate Body found that the operation
of the statutory and regulatory waiver
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Fmt 4702
Sfmt 4702
provisions was inconsistent with the
obligation under Article 11.3 to arrive at
a ‘‘reasoned conclusion’’ because the
Department’s order–wide likelihood
determination would be based, at least
in part, on statutorily–mandated
‘‘assumptions’’ about a company’s
likelihood of dumping. The AB/panel
also found that the operation of
paragraph (d)(2)(iii) was inconsistent
with ‘‘due process rights’’ of Articles 6.1
and 6.2, because the Department could
assume likelihood with respect to a
particular company even though that
party had filed a substantive response to
the notice of initiation, albeit an
‘‘incomplete’’ response.
To implement the AB/panel findings
with respect to the operation of the
waiver provisions, we propose to
modify the Department’s regulations to
eliminate the possibility that the
Department’s order–wide likelihood
determinations would be based on
assumptions about likelihood of
continuation or recurrence of dumping
or a countervailable subsidy due to
interested parties’ waiver of
participation in sunset reviews. Thus,
we propose the following three
modifications to paragraph (d)(2) of 19
CFR 351.218. First, with respect to so–
called ‘‘affirmative waivers’’ set forth in
paragraph (d)(2)(i) which provides that
a party may elect not to participate in
the Department’s sunset review by filing
a ‘‘statement of waiver’’ within 30 days
of initiation of the sunset review we
propose to amend the contents of a
‘‘statement of waiver’’ which are set
forth in paragraph (d)(2)(ii).
Specifically, we proposed to amend
paragraph (d)(2)(ii) to require that a
party filing a Statement of Waiver
include a statement that it is likely to
dump or benefit from a countervailable
subsidy (as the case may be) or, in the
case of a foreign government in a CVD
sunset review, provide a countervailable
subsidy, if the order is revoked or the
investigation is terminated. Second, we
propose to eliminate paragraph
(d)(2)(iii) which provides that an
interested party is ‘‘deemed’’ to have
waived participation in the sunset
review by failing to file a complete
substantive response to a notice of
initiation. Thus, the Department will no
longer make company–specific
likelihood findings for companies that
fail to file a statement of waiver and fail
to file a substantive response to the
notice of initiation. Finally, we propose
to modify paragraphs (d)(2)(iv)(C) and
(e)(1)(ii)(B)(3) which address waiver of
participation by a foreign government in
a CVD sunset review to eliminate cross–
references to paragraph (d)(2)(iii) and to
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Federal Register / Vol. 70, No. 156 / Monday, August 15, 2005 / Proposed Rules
eliminate certain language that might
suggest the possibility that the
Department’s order–wide likelihood
determination in a CVD sunset review
would be based on assumptions about
likelihood of continuation or recurrence
of a countervailable subsidy. In sum,
these three modifications to the waiver
provisions of the Department’s sunset
regulations will ensure that there is no
longer the possibility that the
Department’s order–wide likelihood
determinations might be based on
assumptions about likelihood of
continuation or recurrence of dumping
or a countervailable subsidy. The
Department will make its order–wide
likelihood determinations on the basis
of the facts and information available on
the record of the sunset review.
Section 351.309
The Appellate Body upheld the
panel’s finding that the operation of
paragraph (d)(2)(iii) of 19 CFR 351.218
was inconsistent with Article 6.2 in that
it allegedly denies an interested party
that is deemed to have waived its right
to participate in a sunset review by
submitting an incomplete substantive
response the right to participate in a
hearing. Paragraph (d)(2)(iii) does not
explicitly address the issue of hearings;
nor do the regulations preclude hearings
in expedited sunset reviews resulting
from the application of the waiver
provisions. Nevertheless, in the interest
of alleviating any perceived confusion
with respect to participation in a
hearing in an expedited sunset review,
we propose to modify paragraph
(c)(1)(iii) of 19 CFR 351.309 to clarify
that the Secretary will specify a due
date for case briefs in an expedited
sunset review. Case briefs provide the
basis for parties’ affirmative
presentations at a hearing. In addition,
as discussed above, for other reasons we
propose to eliminate paragraph
(d)(2)(iii) in its entirety.
Effective Date
Pursuant to section 123(g)(2) of the
URAA, the final amended regulation
may not 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
(‘‘USTR’’) undertake consultations with
the appropriate congressional
committees concerning the proposed
contents of the final rule. Since the date
of consultations has not yet been
determined, we are unable to project the
possible effective date at this time. If the
proposed regulation is adopted, we will
publish the effective date in the notice
of final rule based upon the date on
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which USTR and the Department
consult with Congress.
Classification
E.O. 12866
This proposed rule has been
determined to be not significant under
E.O. 12866.
Paperwork Reduction Act
Notwithstanding any other provision
of law, no person is required to respond
to nor shall a person be subject to a
penalty for a failure to comply with a
collection of information subject to the
requirements of the Paperwork
Reduction Act unless that collection of
information displays a currently valid
Office of Management and Budget
(OMB) control number. This proposed
rule involves collection–of-information
requirements subject to the Paperwork
Reduction Act, 44 USC Chapter 35. The
requirements have been approved by
OMB under control numbers 0625–
0148.
E.O. 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
certified to the Chief Counsel for
Advocacy of the Small Business
Administration that these proposed
rules, if adopted, would not have a
significant impact on a substantial
number of small entities. We cannot
identify the number of small entities
that may be affected by this rule because
we do not keep track of that
information. The Department’s existing
regulations contain procedures for the
conduct of five–year (‘‘sunset’’) reviews
in which the Secretary considers
whether to revocation of an order is
likely to lead to continuation or
recurrence of dumping or a
countervailable subsidy. The proposed
amendments revise the process for
interested parties electing not to
participate in a sunset review and
clarify the basis for parties’ participation
in a hearing in an expedited sunset
review. These actions, in and of
themselves, will not have a significant
economic impact because they do not
impose any new reporting requirements.
Therefore, the Chief Counsel concluded
that the proposed rules would not have
a significant impact on a substantial
number of small business entities, and
a regulatory flexibility analysis was not
prepared.
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47739
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 record keeping
requirements.
Dated: August 5, 2005.
Joseph A. Spetrini,
Acting Assistant Secretary for Import
Administration.
For the reasons stated, 19 CFR Part
351 is amended as follows:
PART 351—ANTIDUMPING AND
COUNTERVAILING DUTIES
Subpart B—Antidumping and
Countervailing Duty Procedures
1. Section 351.218 is amended by
revising paragraphs (d)(2)(ii), (d)(2)(iv)
introductory text, (d)(2)(iv)(C),
(e)(1)(ii)(B) introductory text, and
(e)(1)(ii)(B)(3), and removing and
reserving paragraph (d)(2)(iii), as
follows:
§351.218 Sunset reviews under section
751(c) of the Act.
*
*
*
*
*
(d) Participation in sunset review (1)
***
(2) Waiver of response by a
respondent interested party to a notice
of initiation (i) * * *
(ii) Contents of statement of waiver.
Every statement of waiver must include
a statement indicating that the
respondent interested party waives
participation in the sunset review before
the Department; a statement that the
respondent interested party is likely to
dump or benefit from a countervailable
subsidy (as the case may be) if the order
is revoked or the investigation is
terminated; in the case of a foreign
government in a CVD sunset review, a
statement that the government is likely
to provide a countervailable subsidy if
the order is revoked or the investigation
is terminated; and the following
information: * * *
*
*
*
*
*
(iii) [reserved]
*
*
*
*
*
(iv) Waiver of participation by a
foreign government in a CVD sunset
review. Where a foreign government
waives participation in a CVD sunset
review under paragraph (d)(2)(i) of this
section, the Secretary will:
*
*
*
*
*
(C) Base the final results of review on
the facts available in accordance with
§ 351.308(f).
*
*
*
*
*
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Federal Register / Vol. 70, No. 156 / Monday, August 15, 2005 / Proposed Rules
(e) Conduct of sunset review- (1) * *
*
(ii) Adequacy of response from
respondent interested parties-(A) * * *
(B) Failure of a foreign government to
file a substantive response to a notice of
initiation in a CVD sunset review. If a
foreign government fails to file a
complete substantive response to a
notice of initiation in a CVD sunset
review under paragraph (d)(3)(v) of this
section or waives participation in a CVD
sunset review under paragraph (d)(2)(i)
of this section, the Secretary will:
*
*
*
*
*
(3) Base the final results of review on
the facts available in accordance with
§ 351.308(f).
*
*
*
*
*
better describe the origin of their wines
and to allow consumers to better
identify wines they may purchase. We
invite comments on these proposed
additions to our regulations.
DATES: We must receive written
comments on or before October 14,
2005.
[Notice No. 50]
You may send comments to
any of the following addresses:
• Chief, Regulations and Procedures
Division, Alcohol and Tobacco Tax and
Trade Bureau, Attn: Notice No. 50, P.O.
Box 14412, Washington, DC 20044–
4412.
• 202–927–8525 (facsimile).
• nprm@ttb.gov (e-mail).
• https://www.ttb.gov/alcohol/rules/
index.htm. An online comment form is
posted with this notice on our Web site.
• https://www.regulations.gov (Federal
e-rulemaking portal; follow instructions
for submitting comments).
You may view copies of this notice,
the petition, the appropriate maps, and
any comments we receive about this
proposal by appointment at the TTB
Library, 1310 G Street, NW.,
Washington, DC 20220. To make an
appointment, call 202–927–2400. You
may also access copies of the notice and
comments online at https://www.ttb.gov/
alcohol/rules/index.htm.
See the Public Participation section of
this notice for specific instructions and
requirements for submitting comments,
and for information on how to request
a public hearing.
FOR FURTHER INFORMATION CONTACT: N.A.
Sutton, Alcohol and Tobacco Tax and
Trade Bureau, Regulations and
Procedures Division, 925 Lakeville St.,
No. 158, Petaluma, California 94952;
telephone 415–271–1254.
SUPPLEMENTARY INFORMATION:
RIN 1513–AA82 thru 1513–AA88
Background on Viticultural Areas
Proposed Alta Mesa, Borden Ranch,
Clements Hills, Cosumnes River,
Jahant, Mokelumne River, and
Sloughhouse Viticultural Areas
TTB Authority
Subpart C—Information and Argument
2. Section 351.309(c)(1)(iii) is revised
to read as follows:
§351.309
Written argument.
*
*
*
*
*
(c) Case brief. (1) * * *
(iii) For the final results of an
expedited sunset review, expedited
antidumping review, Article 8 violation
review, Article 4/ Article 7 review, or
section 753 review, a date specified by
the Secretary.
*
*
*
*
*
[FR Doc. 05–16133 Filed 8–12–05; 8:45 am]
BILLING CODE 3510–DS–S
DEPARTMENT OF THE TREASURY
Alcohol and Tobacco Tax and Trade
Bureau
27 CFR Part 9
Alcohol and Tobacco Tax and
Trade Bureau, Treasury.
ACTION: Notice of proposed rulemaking.
AGENCY:
SUMMARY: The Alcohol and Tobacco Tax
and Trade Bureau proposes to establish
seven new viticultural areas within the
boundary of the existing Lodi
viticultural area, which lies within
southern Sacramento and northern San
Joaquin Counties in California. The
seven proposed areas are Alta Mesa,
Borden Ranch, Clements Hills,
Cosumnes River, Jahant, Mokelumne
River, and Sloughhouse. We designate
viticultural areas to allow vintners to
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ADDRESSES:
Section 105(e) of the Federal Alcohol
Administration Act (the FAA Act, 27
U.S.C. 201 et seq.) requires that alcohol
beverage labels provide consumers with
adequate information regarding product
identity and prohibits the use of
misleading information on those labels.
The FAA Act also authorizes the
Secretary of the Treasury to issue
regulations to carry out its provisions.
The Alcohol and Tobacco Tax and
Trade Bureau (TTB) administers these
regulations.
Part 4 of the TTB regulations (27 CFR
part 4) allows the establishment of
definitive viticultural areas and the use
of their names as appellations of origin
on wine labels and in wine
advertisements. Part 9 of the TTB
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Fmt 4702
Sfmt 4702
regulations (27 CFR part 9) contains the
list of approved viticultural areas.
Definition
Section 4.25(e)(1)(i) of the TTB
regulations (27 CFR 4.25(e)(1)(i)) defines
a viticultural area for American wine as
a delimited grape-growing region
distinguishable by geographical
features, the boundaries of which have
been recognized and defined in part 9
of the regulations. These designations
allow vintners and consumers to
attribute a given quality, reputation, or
other characteristic of a wine made from
grapes grown in an area to its
geographical origin. The establishment
of viticultural areas allows vintners to
describe more accurately the origin of
their wines to consumers and helps
consumers to identify wines they may
purchase. Establishment of a viticultural
area is neither an approval nor an
endorsement by TTB of the wine
produced in that area.
Requirements
Section 4.25(e)(2) of the TTB
regulations outlines the procedure for
proposing an American viticultural area
and provides that any interested party
may petition TTB to establish a grapegrowing region as a viticultural area.
Section 9.3(b) of the TTB regulations
requires the petition to include—
• Evidence that the proposed
viticultural area is locally and/or
nationally known by the name specified
in the petition;
• Historical or current evidence that
supports setting the boundary of the
proposed viticultural area as the
petition specifies;
• Evidence relating to the
geographical features, such as climate,
elevation, physical features, and soils,
that distinguish the proposed
viticultural area from surrounding areas;
• A description of the specific
boundary of the proposed viticultural
area, based on features found on United
States Geological Survey (USGS) maps;
and
• A copy of the appropriate USGS
map(s) with the proposed viticultural
area’s boundary prominently marked.
Lodi American Viticultural Areas
Steering Committee Petitions
The Lodi American Viticultural Areas
(LAVA) Steering Committee has
petitioned TTB to establish seven new
viticultural areas within the boundary of
the existing Lodi viticultural area (27
CFR 9.107) in southern Sacramento and
northern San Joaquin Counties in
California. The seven LAVA Steering
Committee petitions propose the
creation of the Alta Mesa, Borden
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]]>Agencies
[Federal Register Volume 70, Number 156 (Monday, August 15, 2005)]
[Proposed Rules]
[Pages 47738-47740]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-16133]
[[Page 47738]]
=======================================================================
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DEPARTMENT OF COMMERCE
International Trade Administration
19 CFR Part 351
[Docket No. 050803215-5215-01]
RIN 0625-AA69
Procedures for Conducting Five-year (``Sunset'') Reviews of
Antidumping and Countervailing Duty Orders
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Proposed rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: The Department of Commerce (``the Department'') proposes to
amend its regulations related to sunset reviews to conform the existing
regulation to the United States' obligations under Articles 6.1, 6.2,
and 11.3 of the Agreement on the Implementation of Article VI of the
General Agreement on Tariffs and Trade 1994 (``Antidumping
Agreement''). The proposed regulations, if adopted, would amend the
``waiver'' provisions which govern treatment of interested parties who
do not provide a substantive response to the Department's notice of
initiation of a sunset review and clarify the basis for parties'
participation in a public hearing in an expedited sunset review.
DATES: To be assured of consideration, written comments must be
received not later than September 14, 2005.
ADDRESSES: A signed original and two copies of each set of comments,
including reasons for any recommendation, should be submitted to Joseph
A. Spetrini, Acting Assistant Secretary for Import Administration,
Central Records Unit, room 1870, U.S. Department of Commerce,
Pennsylvania Avenue and 14th Street, NW, Washington, DC, 20230;
attention: Proposed Amendments to Sunset Procedural Regulations.
FOR FURTHER INFORMATION CONTACT: Stacy J. Ettinger or Patrick V.
Gallagher, Office of the Chief Counsel for Import Administration, room
3622, U.S. Department of Commerce, Pennsylvania Avenue and 14th Street
NW, Washington, DC, 20230; telephone: (202)482-4618 or (202)482-5053,
respectively.
SUPPLEMENTARY INFORMATION:
Background
On March 20, 1998, the Department published regulations addressing
the procedures for participation in, and conduct of, sunset reviews.
See 63 Fed. Reg. 13516. On December 17, 2004, the Dispute Settlement
Body (DSB) of the World Trade Organization (WTO) adopted the reports of
the Appellate Body (``AB'') and the dispute settlement panel in United
States--Sunset Reviews of Anti-dumping Measures on Oil Country Tubular
Goods from Argentina, WT/DS268/AB/R (November 29, 2004) and WT/DS268/R
(July 16, 2004), respectively. The AB/panel found that the waiver
provisions of section 751(c)(4)(B) of the Tariff Act of 1930 and
section 351.218(d)(2)(iii) of Commerce's sunset regulations are
inconsistent with Articles 6.1, 6.2, and 11.3 of the Antidumping
Agreement.
Section 123 of the Uruguay Round Agreements Act (``URAA'') governs
the process for changes to the Department's regulations where a dispute
settlement panel and/or the Appellate Body finds a regulatory provision
to be inconsistent with any of the WTO agreements. Consistent with
section 123(g)(1)(C), the Department is publishing proposed amendments
to its regulations related to sunset reviews to conform the existing
regulations to the United States' obligations under Articles 6.1, 6.2,
and 11.3 of the Antidumping Agreement. The proposed regulations, if
adopted, would amend the ``waiver'' provisions which govern treatment
of interested parties who do not provide a complete substantive
response to the Department's Notice of Initiation of a sunset review
and clarify the basis for parties' participation in a public hearing in
an expedited sunset review.
Explanation of Proposed Amendments
Section 351.218
Section 751(c)(4)(B) of the Tariff Act provides that where an
interested party ``waives'' its participation in a sunset review, the
Department ``shall conclude that revocation of the order ... would be
likely to lead to continuation or recurrence of dumping or a
countervailable subsidy (as the case may be) with respect to that
interested party.'' Paragraph (d)(2) of 19 CFR 351.218 deals with the
procedure for waiving participation in a sunset review before the
Department. Specifically, paragraph (d)(2)(i) provides for filing a
``statement of waiver'' for parties electing not to participate in the
Department's sunset review (so-called ``affirmative waiver''), and
paragraph (d)(2)(iii) provides that failure to file a complete
substantive response to a notice of initiation also will be treated as
a waiver of participation (so-called ``deemed waiver''). The panel and
Appellate Body found that the operation of the statutory and regulatory
waiver provisions was inconsistent with the obligation under Article
11.3 to arrive at a ``reasoned conclusion'' because the Department's
order-wide likelihood determination would be based, at least in part,
on statutorily-mandated ``assumptions'' about a company's likelihood of
dumping. The AB/panel also found that the operation of paragraph
(d)(2)(iii) was inconsistent with ``due process rights'' of Articles
6.1 and 6.2, because the Department could assume likelihood with
respect to a particular company even though that party had filed a
substantive response to the notice of initiation, albeit an
``incomplete'' response.
To implement the AB/panel findings with respect to the operation of
the waiver provisions, we propose to modify the Department's
regulations to eliminate the possibility that the Department's order-
wide likelihood determinations would be based on assumptions about
likelihood of continuation or recurrence of dumping or a
countervailable subsidy due to interested parties' waiver of
participation in sunset reviews. Thus, we propose the following three
modifications to paragraph (d)(2) of 19 CFR 351.218. First, with
respect to so-called ``affirmative waivers'' set forth in paragraph
(d)(2)(i) which provides that a party may elect not to participate in
the Department's sunset review by filing a ``statement of waiver''
within 30 days of initiation of the sunset review we propose to amend
the contents of a ``statement of waiver'' which are set forth in
paragraph (d)(2)(ii). Specifically, we proposed to amend paragraph
(d)(2)(ii) to require that a party filing a Statement of Waiver include
a statement that it is likely to dump or benefit from a countervailable
subsidy (as the case may be) or, in the case of a foreign government in
a CVD sunset review, provide a countervailable subsidy, if the order is
revoked or the investigation is terminated. Second, we propose to
eliminate paragraph (d)(2)(iii) which provides that an interested party
is ``deemed'' to have waived participation in the sunset review by
failing to file a complete substantive response to a notice of
initiation. Thus, the Department will no longer make company-specific
likelihood findings for companies that fail to file a statement of
waiver and fail to file a substantive response to the notice of
initiation. Finally, we propose to modify paragraphs (d)(2)(iv)(C) and
(e)(1)(ii)(B)(3) which address waiver of participation by a foreign
government in a CVD sunset review to eliminate cross-references to
paragraph (d)(2)(iii) and to
[[Page 47739]]
eliminate certain language that might suggest the possibility that the
Department's order-wide likelihood determination in a CVD sunset review
would be based on assumptions about likelihood of continuation or
recurrence of a countervailable subsidy. In sum, these three
modifications to the waiver provisions of the Department's sunset
regulations will ensure that there is no longer the possibility that
the Department's order-wide likelihood determinations might be based on
assumptions about likelihood of continuation or recurrence of dumping
or a countervailable subsidy. The Department will make its order-wide
likelihood determinations on the basis of the facts and information
available on the record of the sunset review.
Section 351.309
The Appellate Body upheld the panel's finding that the operation of
paragraph (d)(2)(iii) of 19 CFR 351.218 was inconsistent with Article
6.2 in that it allegedly denies an interested party that is deemed to
have waived its right to participate in a sunset review by submitting
an incomplete substantive response the right to participate in a
hearing. Paragraph (d)(2)(iii) does not explicitly address the issue of
hearings; nor do the regulations preclude hearings in expedited sunset
reviews resulting from the application of the waiver provisions.
Nevertheless, in the interest of alleviating any perceived confusion
with respect to participation in a hearing in an expedited sunset
review, we propose to modify paragraph (c)(1)(iii) of 19 CFR 351.309 to
clarify that the Secretary will specify a due date for case briefs in
an expedited sunset review. Case briefs provide the basis for parties'
affirmative presentations at a hearing. In addition, as discussed
above, for other reasons we propose to eliminate paragraph (d)(2)(iii)
in its entirety.
Effective Date
Pursuant to section 123(g)(2) of the URAA, the final amended
regulation may not 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 (``USTR'') undertake consultations with the
appropriate congressional committees concerning the proposed contents
of the final rule. Since the date of consultations has not yet been
determined, we are unable to project the possible effective date at
this time. If the proposed regulation is adopted, we will publish the
effective date in the notice of final rule based upon the date on which
USTR and the Department consult with Congress.
Classification
E.O. 12866
This proposed rule has been determined to be not significant under
E.O. 12866.
Paperwork Reduction Act
Notwithstanding any other provision of law, no person is required
to respond to nor shall a person be subject to a penalty for a failure
to comply with a collection of information subject to the requirements
of the Paperwork Reduction Act unless that collection of information
displays a currently valid Office of Management and Budget (OMB)
control number. This proposed rule involves collection-of-information
requirements subject to the Paperwork Reduction Act, 44 USC Chapter 35.
The requirements have been approved by OMB under control numbers 0625-
0148.
E.O. 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
certified to the Chief Counsel for Advocacy of the Small Business
Administration that these proposed rules, if adopted, would not have a
significant impact on a substantial number of small entities. We cannot
identify the number of small entities that may be affected by this rule
because we do not keep track of that information. The Department's
existing regulations contain procedures for the conduct of five-year
(``sunset'') reviews in which the Secretary considers whether to
revocation of an order is likely to lead to continuation or recurrence
of dumping or a countervailable subsidy. The proposed amendments revise
the process for interested parties electing not to participate in a
sunset review and clarify the basis for parties' participation in a
hearing in an expedited sunset review. These actions, in and of
themselves, will not have a significant economic impact because they do
not impose any new reporting requirements. Therefore, the Chief Counsel
concluded that the proposed rules would not have a significant impact
on a substantial number of small business entities, and a regulatory
flexibility analysis was not prepared.
List of Subjects in 19 CFR Part 351
Administrative practice and procedure, Antidumping duties, Business
and industry, Cheese, Confidential business information, Countervailing
duties, Investigations, Reporting and record keeping requirements.
Dated: August 5, 2005.
Joseph A. Spetrini,
Acting Assistant Secretary for Import Administration.
For the reasons stated, 19 CFR Part 351 is amended as follows:
PART 351--ANTIDUMPING AND COUNTERVAILING DUTIES
Subpart B--Antidumping and Countervailing Duty Procedures
1. Section 351.218 is amended by revising paragraphs (d)(2)(ii),
(d)(2)(iv) introductory text, (d)(2)(iv)(C), (e)(1)(ii)(B) introductory
text, and (e)(1)(ii)(B)(3), and removing and reserving paragraph
(d)(2)(iii), as follows:
Sec. 351.218 Sunset reviews under section 751(c) of the Act.
* * * * *
(d) Participation in sunset review (1) * * *
(2) Waiver of response by a respondent interested party to a notice
of initiation (i) * * *
(ii) Contents of statement of waiver. Every statement of waiver
must include a statement indicating that the respondent interested
party waives participation in the sunset review before the Department;
a statement that the respondent interested party is likely to dump or
benefit from a countervailable subsidy (as the case may be) if the
order is revoked or the investigation is terminated; in the case of a
foreign government in a CVD sunset review, a statement that the
government is likely to provide a countervailable subsidy if the order
is revoked or the investigation is terminated; and the following
information: * * *
* * * * *
(iii) [reserved]
* * * * *
(iv) Waiver of participation by a foreign government in a CVD
sunset review. Where a foreign government waives participation in a CVD
sunset review under paragraph (d)(2)(i) of this section, the Secretary
will:
* * * * *
(C) Base the final results of review on the facts available in
accordance with Sec. 351.308(f).
* * * * *
[[Page 47740]]
(e) Conduct of sunset review- (1) * * *
(ii) Adequacy of response from respondent interested parties-(A) *
* *
(B) Failure of a foreign government to file a substantive response
to a notice of initiation in a CVD sunset review. If a foreign
government fails to file a complete substantive response to a notice of
initiation in a CVD sunset review under paragraph (d)(3)(v) of this
section or waives participation in a CVD sunset review under paragraph
(d)(2)(i) of this section, the Secretary will:
* * * * *
(3) Base the final results of review on the facts available in
accordance with Sec. 351.308(f).
* * * * *
Subpart C--Information and Argument
2. Section 351.309(c)(1)(iii) is revised to read as follows:
Sec. 351.309 Written argument.
* * * * *
(c) Case brief. (1) * * *
(iii) For the final results of an expedited sunset review,
expedited antidumping review, Article 8 violation review, Article 4/
Article 7 review, or section 753 review, a date specified by the
Secretary.
* * * * *
[FR Doc. 05-16133 Filed 8-12-05; 8:45 am]
BILLING CODE 3510-DS-S
