Procedures for Conducting Five-Year (“Sunset”) Reviews of Antidumping and Countervailing Duty Orders, 62061-62064 [05-21468]
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Federal Register / Vol. 70, No. 208 / Friday, October 28, 2005 / Rules and Regulations
Regulatory Findings
Unsafe Condition
We have determined that this AD will
not have federalism implications under
Executive Order 13132. This AD will
not have a substantial direct effect on
the States, on the relationship between
the national government and the States,
or on the distribution of power and
responsibilities among the various
levels of government.
For the reasons discussed above, I
certify that the regulation:
1. Is not a ‘‘significant regulatory
action’’ under Executive Order 12866;
2. Is not a ‘‘significant rule’’ under the
DOT Regulatory Policies and Procedures
(44 FR 11034, February 26, 1979); and
3. Will not have a significant
economic impact, positive or negative,
on a substantial number of small entities
under the criteria of the Regulatory
Flexibility Act.
We prepared a regulatory evaluation
of the estimated costs to comply with
this AD and placed it in the AD docket.
See the ADDRESSES section for a location
to examine the regulatory evaluation.
(d) This AD results from a report that a fuel
quality indicator (FQI) having an incorrect
part number was installed on a Model ATR72
airplane. We are issuing this AD to ensure
that a correct FQI is installed. An incorrect
FQI could result in fuel starvation to the
engine and consequent engine shutdown
during flight.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation
safety, Incorporation by reference,
Safety.
Adoption of the Amendment
Accordingly, under the authority
delegated to me by the Administrator,
the FAA amends 14 CFR part 39 as
follows:
I
PART 39—AIRWORTHINESS
DIRECTIVES
1. The authority citation for part 39
continues to read as follows:
I
Authority: 49 U.S.C. 106(g), 40113, 44701.
§ 39.13
[Amended]
2. The Federal Aviation
Administration (FAA) amends § 39.13
by adding the following new
airworthiness directive (AD):
I
2005–22–09 Aerospatiale: Amendment 39–
14353. Docket No. FAA–2005–22795;
Directorate Identifier 2005–NM–193–AD.
Effective Date
(a) This AD becomes effective November
14, 2005.
Affected ADs
(b) None.
Applicability
(c) This AD applies to all Aerospatiale
Model ATR42–200, –300, –320, and –500
airplanes, and Model ATR72–101, –201,
–102, –202, –211, –212, and –212A airplanes,
certificated in any category.
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14:35 Oct 27, 2005
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Compliance
(e) You are responsible for having the
actions required by this AD performed within
the compliance times specified, unless the
actions have already been done.
Inspection and Corrective Action
(f) Within 7 days after the effective date of
this AD, do the inspection specified in
paragraph (f)(1) or (f)(2) of this AD.
(1) Perform an inspection to determine the
part number (P/N) of the fuel quantity
indicator (FQI) 3QT, in accordance with ATR
All Operators Message (AOM) 42–72/2005/
08, issue 5, dated September 7, 2005. Instead
of the inspection, a review of the airplane
maintenance records is acceptable if the P/N
of the FQI can be positively determined from
that review.
(2) Inspect the faceplate of the FQI to verify
that it has the correct markings as specified
in paragraphs (f)(2)(i) and (f)(2)(ii), as
applicable.
(i) For Model ATR42–200, –300, –320, and
–500 airplanes: The FQI has the marking of
4960 lbs on the faceplate as illustrated in
ATR AOM 42–72/2005/08, issue 5, dated
September 7, 2005.
(ii) For Model ATR72–101, –201, –102,
–202, –211, –212, and –212A airplanes: The
FQI has the marking of 5500 lbs on the
faceplate as illustrated in the AOM 42–72/
2005/08, issue 5, dated September 7, 2005.
(g) If it can be positively determined,
during the inspection required by paragraph
(f) of this AD, that the FQI has the correct
part number or marking, no further action is
required by this AD.
(h) If it is determined, during the
inspection required by paragraph (f) of this
AD, that the FQI does not have the correct
part number or marking, before further flight,
install the FQI having the correct part
number as specified in ATR AOM 42–72/
2005/08, issue 5, dated September 7, 2005.
Alternative Methods of Compliance
(AMOCs)
(i)(1) The Manager, International Branch,
ANM–116, Transport Airplane Directorate,
FAA, has the authority to approve AMOCs
for this AD, if requested in accordance with
the procedures found in 14 CFR 39.19.
(2) Before using any AMOC approved in
accordance with § 39.19 on any airplane to
which the AMOC applies, notify the
appropriate principal inspector in the FAA
Flight Standards Certificate Holding District
Office.
Related Information
(j) French emergency airworthiness
directive UF–2005–160, dated September 8,
2005, also addresses the subject of this AD.
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62061
Material Incorporated by Reference
(k) You must use ATR All Operators
Message (AOM) 42–72/2005/08, issue 5,
dated September 7, 2005, to perform the
actions that are required by this AD, unless
the AD specifies otherwise. The Director of
the Federal Register approved the
incorporation by reference of this document
in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51. Contact Aerospatiale, 316 Route de
Bayonne, 31060 Toulouse, Cedex 03, France,
for a copy of this service information. You
may review copies at the Docket Management
Facility, U.S. Department of Transportation,
400 Seventh Street SW., room PL–401, Nassif
Building, Washington, DC; on the Internet at
https://dms.dot.gov; or at the National
Archives and Records Administration
(NARA). For information on the availability
of this material at the NARA, call (202) 741–
6030, or go to https://www.archives.gov/
federal_register/code_of_federal_regulations/
ibr_locations.html.
Issued in Renton, Washington, on October
18, 2005.
Kalene C. Yanamura,
Acting Manager, Transport Airplane
Directorate, Aircraft Certification Service.
[FR Doc. 05–21338 Filed 10–27–05; 8:45 am]
BILLING CODE 4910–13–P
DEPARTMENT OF COMMERCE
International Trade Administration
19 CFR Part 351
[Docket No. 050803215–5260–02]
RIN 0625–AA69
Procedures for Conducting Five-Year
(‘‘Sunset’’) Reviews of Antidumping
and Countervailing Duty Orders
Import Administration,
International Trade Administration,
Department of Commerce.
ACTION: Final rule.
AGENCY:
SUMMARY: The Department of Commerce
(‘‘the Department’’) is amending its
regulations related to sunset reviews to
conform the existing regulation to the
United States’ obligations under Articles
6.1, 6.2, and 11.3 of the Agreement on
the Implementation of Article VI of the
General Agreement on Tariffs and Trade
1994 (‘‘Antidumping Agreement’’). The
regulations amend the ‘‘waiver’’
provisions which govern treatment of
interested parties who do not provide a
substantive response to the
Department’s notice of initiation of a
sunset review and clarify the basis for
parties’ participation in a public hearing
in an expedited sunset review.
DATES: The effective date of this final
rule is October 31, 2005. The final rule
will be applied in sunset reviews
initiated on or after the effective date.
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Federal Register / Vol. 70, No. 208 / Friday, October 28, 2005 / Rules and Regulations
FOR FURTHER INFORMATION CONTACT:
Explanation of Amendments
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.
In finalizing the amendments to the
Department’s regulations addressing the
procedures for participation in, and
conduct of, sunset reviews, the
Department carefully considered each of
the comments it received. The following
is an explanation of the amendments, as
well as a summary of the comments
received and the Department’s
responses to those comments.
SUPPLEMENTARY INFORMATION:
Background
Section 351.218
On March 20, 1998, the Department
published regulations addressing the
procedures for participation in, and
conduct of, sunset reviews. See 63 FR
13516. On December 17, 2004, the
Dispute Settlement Body (‘‘DSB’’) of the
World Trade Organization adopted the
reports of the Appellate Body and the
dispute settlement panel in United
States—Sunset Reviews of Antidumping Measures on Oil Country
Tubular Goods from Argentina, WT/
DS268/AB/R (November 29, 2004) and
WT/DS268/R (July 16, 2004),
respectively. The AB and the dispute
settlement panel found that the waiver
provisions of section 751(c)(4)(B) of the
Tariff Act of 1930 and section
351.218(d)(2)(iii) of Commerce’s sunset
regulations are inconsistent with
Articles 6.1, 6.2, and 11.3 of the
Antidumping Agreement.
Section 123 of the URAA governs the
process for changes to the Department’s
regulations where a dispute settlement
panel and/or the Appellate Body finds
a regulatory provision to be inconsistent
with any of the WTO agreements.
Consistent with section 123(g)(1)(C), on
August 15, 2005, the Department
published proposed amendments to its
regulations related to sunset reviews to
conform the existing regulations to the
United States’ obligations under Articles
6.1, 6.2, and 11.3 of the Antidumping
Agreement. The Department received
four sets of written public comments on
the proposed amendments. The
Department has carefully considered
each of the comments it received, and
has adopted a drafting suggestion from
one commenter related to the issue of
the basis for parties’ participating in a
hearing in an expedited sunset review.
This final rule is published pursuant to
section 123(g)(1)(F) of the URAA. The
final rule amends the ‘‘waiver’’
provisions which govern treatment of
interested parties who do not provide a
complete substantive response to the
Department’s Notice of Initiation of a
sunset review and clarifies the basis for
parties’ participation in a public hearing
in an expedited sunset review.
Section 751(c)(4)(B) of the Tariff Act
provides that where an interested party
‘‘waives’’ its participation in a sunset
review, the Department ‘‘shall conclude
that revocation of the order * * *
would be likely to lead to continuation
or recurrence of dumping or a
countervailable subsidy (as the case may
be) with respect to that interested
party.’’ Paragraph (d)(2) of 19 CFR
351.218 deals with the procedure for
waiving participation in a sunset review
before the Department. Specifically,
paragraph (d)(2)(i) provides for filing a
‘‘statement of waiver’’ for parties
electing not to participate in the
Department’s sunset review (so-called
‘‘affirmative waiver’’), and paragraph
(d)(2)(iii) provides that failure to file a
complete substantive response to a
notice of initiation also will be treated
as a waiver of participation (so-called
‘‘deemed waiver’’). The panel and
Appellate Body found that the operation
of the statutory and regulatory waiver
provisions was inconsistent with the
obligation under Article 11.3 to arrive at
a ‘‘reasoned conclusion’’ because the
Department’s order-wide likelihood
determination would be based, at least
in part, on statutorily-mandated
‘‘assumptions’’ about a company’s
likelihood of dumping. The AB and
panel also found that the operation of
paragraph (d)(2)(iii) was inconsistent
with ‘‘due process rights’’ of Articles 6.1
and 6.2, because the Department could
assume likelihood with respect to a
particular company even though that
party had filed a substantive response to
the notice of initiation, albeit an
‘‘incomplete’’ response.
To implement the AB and panel
findings with respect to the operation of
the waiver provisions, the Department
has modified its regulations to eliminate
the possibility that the Department’s
order-wide likelihood determinations
would be based on assumptions about
likelihood of continuation or recurrence
of dumping or a countervailable subsidy
due to interested parties’ waiver of
participation in sunset reviews.
Specifically, the Department has made
the following three modifications to
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paragraph (d)(2) of 19 CFR 351.218.
First, with respect to so-called
‘‘affirmative waivers’’ set forth in
paragraph (d)(2)(i)—which provides that
a party may elect not to participate in
the Department’s sunset review by filing
a ‘‘statement of waiver’’ within 30 days
of initiation of the sunset review—the
Department has amended the contents
of a ‘‘statement of waiver’’ which are set
forth in paragraph (d)(2)(ii). Paragraph
(d)(2)(ii) now requires that a party filing
a Statement of Waiver include a
statement that it is likely to dump or
benefit from a countervailable subsidy
(as the case may be) or, in the case of
a foreign government in a CVD sunset
review, provide a countervailable
subsidy, if the order is revoked or the
investigation is terminated. Second, we
have eliminated paragraph (d)(2)(iii)—
which provided that an interested party
is ‘‘deemed’’ to have waived
participation in the sunset review by
failing to file a complete substantive
response to a notice of initiation. Thus,
the Department will no longer make
company-specific likelihood findings
for companies that fail to file a
statement of waiver and fail to file a
substantive response to the notice of
initiation. Finally, we modified
paragraphs (d)(2)(iv)(C) and
(e)(1)(ii)(B)(3)—which address waiver of
participation by a foreign government in
a CVD sunset review—to eliminate
cross-references to paragraph (d)(2)(iii)
and to eliminate certain language that
might suggest the possibility that the
Department’s order-wide likelihood
determination in a CVD sunset review
would be based on assumptions about
likelihood of continuation or recurrence
of a countervailable subsidy. In sum,
these three modifications to the waiver
provisions of the Department’s sunset
regulations ensure that there is no
longer the possibility that the
Department’s order-wide likelihood
determinations might be based on
assumptions about likelihood of
continuation or recurrence of dumping
or a countervailable subsidy. The
Department will make its order-wide
likelihood determinations on the basis
of the facts and information available on
the record of the sunset review.
Two commenters argue that
amendment or withdrawal of the
statutory provision (section 751(c)(4)(B)
of the Act) found to be WTOinconsistent was required in order to
implement the AB/panel findings. We
disagree. By modifying its regulatory
waiver provisions, the Department has
eliminated the possibility that its orderwide likelihood determinations would
be based on assumptions about
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Federal Register / Vol. 70, No. 208 / Friday, October 28, 2005 / Rules and Regulations
likelihood of continuation or recurrence
of dumping or a countervailable subsidy
due to interested parties’ waiver of
participation in sunset reviews. Section
751(c)(4)(B) of the Act only mandates an
affirmative company-specific likelihood
finding as a consequence of a party
electing to waive its participation in the
sunset review. Thus, the modified
regulatory waiver requirements result in
elimination of any assumptions about
likelihood because a party waiving
participation would have already
indicated to the Department that it was
likely to dump or benefit from a
countervailable subsidy if the order
were revoked.
Two commenters also noted that the
regulations would not longer specify
how the Department will address the
situation where a producer/exporter
does not participate in a sunset review.
The commenters are correct in part.
While it is the statute that provides for
determinations on the basis of facts
available where, inter alia, a party does
not provide requested information
(section 776 of the Act), there are
specific provisions in the Department’s
regulations concerning use of facts
available in a sunset review (19 CFR
351.308(f)). As a general matter, the
Department will make its order-wide
likelihood determination on the basis of
the facts and information available on
the record of the sunset review which
may include, where appropriate, use of
facts available as provided for in the
statute and regulations.
One commenter argued that providing
for filing of case briefs in expedited
reviews could eliminate the distinction
between expedited and full sunset
reviews. The commenter proposed,
instead, that the regulations provide
respondents with an opportunity to
supplement their substantive responses
to correct identified deficiencies. We
have not adopted this suggestion. The
central distinction between an
expedited and full sunset review
remains. In a full sunset review, the
regulations provide that the Department
will issue a preliminary determination
and allow comments on that
determination; there is no provision for
issuance of a preliminary determination
in an expedited sunset review.
Clarifying the basis for parties’
participation in a public hearing in an
expedited sunset review does not
change this distinction. The commenter
also suggested that if the Department
permits the filing of case briefs in an
expedited review, it should make a
corresponding amendment to paragraph
(e)(1)(ii)(C)(2) of 19 CFR 351.218. We
agree and have eliminated certain
language in paragraph (e)(1)(ii)(C)(2)
that could be construed as inconsistent
with permitting parties to file case briefs
in expedited sunset reviews.
Section 351.309
The Appellate Body upheld the
panel’s finding that the operation of
paragraph (d)(2)(iii) of 19 CFR 351.218
was inconsistent with Article 6.2 in that
it allegedly denies an interested party
that is deemed to have waived its right
to participate in a sunset review by
submitting an incomplete substantive
response the right to participate in a
hearing. Paragraph (d)(2)(iii) does not
explicitly address the issue of hearings;
nor do the regulations preclude hearings
in expedited sunset reviews resulting
from the application of the waiver
provisions. Nevertheless, in the interest
of alleviating any perceived confusion
with respect to participation in a
hearing in an expedited sunset review,
the Department is modifying paragraph
(c)(1)(iii) of 19 CFR 351.309 to clarify
that the Secretary will specify a due
date for case briefs in an expedited
sunset review. Case briefs provide the
basis for parties’ affirmative
presentations at a hearing. In addition,
as discussed above, for other reasons we
have eliminated paragraph (d)(2)(iii) in
its entirety.
Administrative Procedures Act
The Department finds good cause to
waive the 30-day delay in effectiveness
pursuant to 5 U.S.C. 553(d)(3) in order
to complete requirements mandated by
the World Trade Organization (‘‘WTO’’)
Appellate Body by December 17, 2005.
On December 17, 2004, the WTO
Appellate Body (‘‘AB’’) issued its
findings regarding the sunset review of
the antidumping duty order on Oil
Country Tubular Goods (‘‘OCTG’’) from
Argentina. The WTO-appointed
arbitrator determined, with reference to
the Appellate Body report, that the
United States must bring its laws into
compliance with the Antidumping
Agreement and complete another sunset
review of the antidumping duty order
on OCTG from Argentina not later than
December 17, 2005. The Department
was informed of this deadline date on
June 7, 2005. On August 15, 2005 (70 FR
47738), the Department published a
proposed rule to solicit comments on
proposed revisions to its regulations
related to sunset reviews. In addition,
the Department initiated consultations
for 60 days with the relevant
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Classification
E.O. 12866
This final rule has been determined to
be not significant under E.O. 12866.
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62063
congressional committees in accordance
with section 123 of the Uruguay Round
Agreements Act. After the publication of
this final rule, the Department still must
initiate the sunset review, provide
interested parties with 30 days to
submit their responses to the
Department’s sunset questionnaire,
analyze the responses, and make a final
likelihood determination in the sunset
review before December 17, 2005. Thus,
in order to meet the WTO-mandated
implementation date and to ensure that
interested parties have an opportunity
to participate fully in the sunset review,
the Department finds good cause to
waive the 30-day delay in effectiveness
of the final rule and makes these
regulations effective on October 31,
2005, upon conclusion of the 60-day
congressional consultation period
required by the Uruguay Round
Agreements Act.
Paperwork Reduction Act
Notwithstanding any other provision
of law, no person is required to respond
to nor shall a person be subject to a
penalty for a failure to comply with a
collection of information subject to the
requirements of the Paperwork
Reduction Act unless that collection of
information displays a currently valid
Office of Management and Budget
(OMB) control number. This final rule
involves collection-of-information
requirements subject to the Paperwork
Reduction Act, 44 U.S.C. Chapter 35.
The requirements have been approved
by OMB under control numbers 0625–
0105 and 0625–0148.
E.O. 12612
This final rule does not contain
federalism implications warranting the
preparation of a Federalism Assessment.
Regulatory Flexibility Act
The Chief Counsel for Regulation of
the Department of Commerce has
certified to the Chief Counsel for
Advocacy of the Small Business
Administration that this final rule will
not have a significant impact on a
substantial number of small entities.
The factual basis for the certification
was published in the proposed rule and
is not repeated here. No comments were
received regarding the economic impact
of this action. As a result, a regulatory
flexibility analysis was not prepared.
List of Subjects in 19 CFR Part 351
Administrative practice and
procedure, Antidumping duties,
Business and industry, Cheese,
Confidential business information,
Countervailing duties, Investigations,
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Federal Register / Vol. 70, No. 208 / Friday, October 28, 2005 / Rules and Regulations
(2) Normally will conduct an
expedited sunset review and, not later
than 120 days after the date of
publication in the Federal Register of
the notice of initiation, issue final
results of review based on the facts
available in accordance with
§ 351.308(f) (see section 751(c)(3)(B) of
the Act and § 351.221(c)(5)(ii)).
*
*
*
*
*
Reporting and recordkeeping
requirements.
Dated: October 20, 2005.
Joseph A. Spetrini,
Acting Assistant Secretary for Import
Administration.
For the reasons stated, 19 CFR part
351 is amended as follows:
I
PART 351—ANTIDUMPING AND
COUNTERVAILING DUTIES
Subpart C—Information and Argument
Subpart B—Antidumping and
Countervailing Duty Procedures
2. Section 351.309 is amended by
revising paragraph (c)(1)(iii) to read as
follows:
I
1. Section 351.218 is amended by
revising paragraphs (d)(2)(ii)
introductory text, (d)(2)(iv)(C),
(e)(1)(ii)(B) introductory text,
(e)(1)(ii)(B)(3), and (e)(1)(ii)(C)(2), and
removing and reserving paragraph
(d)(2)(iii), as follows:
I
§ 351.309
§ 351.218 Sunset reviews under section
751(c) of the Act.
*
*
*
*
*
(d) * * *
(2) * * *
(ii) Contents of statement of waiver.
Every statement of waiver must include
a statement indicating that the
respondent interested party waives
participation in the sunset review before
the Department; a statement that the
respondent interested party is likely to
dump or benefit from a countervailable
subsidy (as the case may be) if the order
is revoked or the investigation is
terminated; in the case of a foreign
government in a CVD sunset review, a
statement that the government is likely
to provide a countervailable subsidy if
the order is revoked or the investigation
is terminated; and the following
information:
*
*
*
*
*
(iv) * * *
(C) Base the final results of review on
the facts available in accordance with
351.308(f).
*
*
*
*
*
(e) Conduct of sunset review—(1)
* * *
(ii) * * *
(B) Failure of a foreign government to
file a substantive response to a notice of
initiation in a CVD sunset review. If a
foreign government fails to file a
complete substantive response to a
notice of initiation in a CVD sunset
review under paragraph (d)(3)(v) of this
section or waives participation in a CVD
sunset review under paragraph (d)(2)(i)
of this section, the Secretary will: * * *
(3) Base the final results of review on
the facts available in accordance with
351.308(f).
(C) * * *
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Written argument.
*
*
*
*
*
(c) Case brief. (1) * * *
(iii) For the final results of an
expedited sunset review, expedited
antidumping review, Article 8 violation
review, Article 4/Article 7 review, or
section 753 review, a date specified by
the Secretary.
*
*
*
*
*
[FR Doc. 05–21468 Filed 10–28–05; 8:45 am]
BILLING CODE 3510–DS–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 117
[CGD05–05–127]
RIN 1625–AA–09
Drawbridge Operation Regulations;
Shark River (South Channel), NJ
Coast Guard, DHS.
Notice of temporary deviation
from regulations.
AGENCY:
ACTION:
SUMMARY: The Commander, Fifth Coast
Guard District, has approved a
temporary deviation from the
regulations governing the operation of
the Route 71 Bridge, at mile 0.8, across
Shark River (South Channel), at Belmar,
New Jersey. This deviation allows the
drawbridge to provide vessel openings
upon two hours advance notice each
day from 8 a.m. to 3 p.m. and from 6
p.m. to 10 p.m. beginning on Monday,
October 31 until Thursday, November 3,
2005, to facilitate emergency
mechanical repairs.
DATES: The deviation is effective from 8
a.m. to 3 a.m. and from 6 p.m. to 10 p.m.
from October 31 until November 3,
2005.
ADDRESSES: Materials referred to in this
document are available for inspection or
copying at Commander (obr), Fifth Coast
PO 00000
Frm 00010
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Guard District, Federal Building, 1st
Floor, 431 Crawford Street, Portsmouth,
VA 23704–5004 between 8 a.m. and 4
p.m., Monday through Friday, except
Federal holidays. The telephone number
is (757) 398–6222. Commander (obr),
Fifth Coast Guard District maintains the
public docket for this temporary
deviation.
FOR FURTHER INFORMATION CONTACT:
Waverly W. Gregory, Jr., Bridge
Administrator, Fifth Coast Guard
District, at (757) 398–6222.
The Route
71 Bridge, at mile 0.8 across Shark River
(South Channel), a bascule-type
drawbridge, has a vertical clearance in
the closed position to vessels of 13 feet,
at mean high water.
The New Jersey Department of
Transportation, the bridge owner,
requested a temporary deviation from
the operating regulations for the Route
71 Bridge, set out in 33 CFR 117.751, to
effect emergency repair and replacement
of the span lock motor and gear box of
the draw span.
To facilitate the work, the Route 71
Bridge will provide vessel openings of
the draw span upon two hours advance
notice each day from 8 a.m. to 3 p.m.
and from 6 p.m. to 10 p.m. beginning on
Monday, October 31, 2005 until and
including Thursday, November 3, 2005.
At all other times, the bridge will
operate in accordance with 33 CFR
117.751.
The Coast Guard has informed the
known users of the waterway of the
closure periods for the bridge so that
these vessels can arrange their transits
to minimize any impact caused by the
temporary deviation.
In accordance with 33 CFR 117.35(c),
this work will be performed with all due
speed in order to return the bridge to
normal operation as soon as possible.
This deviation from the operating
regulations is authorized under 33 CFR
117.35.
SUPPLEMENTARY INFORMATION:
Dated: October 20, 2005.
Waverly W. Gregory, Jr.,
Chief, Bridge Administration Branch, Fifth
Coast Guard District.
[FR Doc. 05–21501 Filed 10–27–05; 8:45 am]
BILLING CODE 4910–15–P
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[Federal Register Volume 70, Number 208 (Friday, October 28, 2005)]
[Rules and Regulations]
[Pages 62061-62064]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-21468]
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DEPARTMENT OF COMMERCE
International Trade Administration
19 CFR Part 351
[Docket No. 050803215-5260-02]
RIN 0625-AA69
Procedures for Conducting Five-Year (``Sunset'') Reviews of
Antidumping and Countervailing Duty Orders
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Final rule.
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SUMMARY: The Department of Commerce (``the Department'') is amending
its regulations related to sunset reviews to conform the existing
regulation to the United States' obligations under Articles 6.1, 6.2,
and 11.3 of the Agreement on the Implementation of Article VI of the
General Agreement on Tariffs and Trade 1994 (``Antidumping
Agreement''). The regulations amend the ``waiver'' provisions which
govern treatment of interested parties who do not provide a substantive
response to the Department's notice of initiation of a sunset review
and clarify the basis for parties' participation in a public hearing in
an expedited sunset review.
DATES: The effective date of this final rule is October 31, 2005. The
final rule will be applied in sunset reviews initiated on or after the
effective date.
[[Page 62062]]
FOR FURTHER INFORMATION CONTACT: Stacy J. Ettinger or Patrick V.
Gallagher, Office of the Chief Counsel for Import Administration, room
3622, U.S. Department of Commerce, Pennsylvania Avenue and 14th Street
NW., Washington, DC 20230; telephone: (202) 482-4618 or (202) 482-5053,
respectively.
SUPPLEMENTARY INFORMATION:
Background
On March 20, 1998, the Department published regulations addressing
the procedures for participation in, and conduct of, sunset reviews.
See 63 FR 13516. On December 17, 2004, the Dispute Settlement Body
(``DSB'') of the World Trade Organization adopted the reports of the
Appellate Body and the dispute settlement panel in United States--
Sunset Reviews of Anti-dumping Measures on Oil Country Tubular Goods
from Argentina, WT/DS268/AB/R (November 29, 2004) and WT/DS268/R (July
16, 2004), respectively. The AB and the dispute settlement panel found
that the waiver provisions of section 751(c)(4)(B) of the Tariff Act of
1930 and section 351.218(d)(2)(iii) of Commerce's sunset regulations
are inconsistent with Articles 6.1, 6.2, and 11.3 of the Antidumping
Agreement.
Section 123 of the URAA governs the process for changes to the
Department's regulations where a dispute settlement panel and/or the
Appellate Body finds a regulatory provision to be inconsistent with any
of the WTO agreements. Consistent with section 123(g)(1)(C), on August
15, 2005, the Department published proposed amendments to its
regulations related to sunset reviews to conform the existing
regulations to the United States' obligations under Articles 6.1, 6.2,
and 11.3 of the Antidumping Agreement. The Department received four
sets of written public comments on the proposed amendments. The
Department has carefully considered each of the comments it received,
and has adopted a drafting suggestion from one commenter related to the
issue of the basis for parties' participating in a hearing in an
expedited sunset review. This final rule is published pursuant to
section 123(g)(1)(F) of the URAA. The final rule amends the ``waiver''
provisions which govern treatment of interested parties who do not
provide a complete substantive response to the Department's Notice of
Initiation of a sunset review and clarifies the basis for parties'
participation in a public hearing in an expedited sunset review.
Explanation of Amendments
In finalizing the amendments to the Department's regulations
addressing the procedures for participation in, and conduct of, sunset
reviews, the Department carefully considered each of the comments it
received. The following is an explanation of the amendments, as well as
a summary of the comments received and the Department's responses to
those comments.
Section 351.218
Section 751(c)(4)(B) of the Tariff Act provides that where an
interested party ``waives'' its participation in a sunset review, the
Department ``shall conclude that revocation of the order * * * would be
likely to lead to continuation or recurrence of dumping or a
countervailable subsidy (as the case may be) with respect to that
interested party.'' Paragraph (d)(2) of 19 CFR 351.218 deals with the
procedure for waiving participation in a sunset review before the
Department. Specifically, paragraph (d)(2)(i) provides for filing a
``statement of waiver'' for parties electing not to participate in the
Department's sunset review (so-called ``affirmative waiver''), and
paragraph (d)(2)(iii) provides that failure to file a complete
substantive response to a notice of initiation also will be treated as
a waiver of participation (so-called ``deemed waiver''). The panel and
Appellate Body found that the operation of the statutory and regulatory
waiver provisions was inconsistent with the obligation under Article
11.3 to arrive at a ``reasoned conclusion'' because the Department's
order-wide likelihood determination would be based, at least in part,
on statutorily-mandated ``assumptions'' about a company's likelihood of
dumping. The AB and panel also found that the operation of paragraph
(d)(2)(iii) was inconsistent with ``due process rights'' of Articles
6.1 and 6.2, because the Department could assume likelihood with
respect to a particular company even though that party had filed a
substantive response to the notice of initiation, albeit an
``incomplete'' response.
To implement the AB and panel findings with respect to the
operation of the waiver provisions, the Department has modified its
regulations to eliminate the possibility that the Department's order-
wide likelihood determinations would be based on assumptions about
likelihood of continuation or recurrence of dumping or a
countervailable subsidy due to interested parties' waiver of
participation in sunset reviews. Specifically, the Department has made
the following three modifications to paragraph (d)(2) of 19 CFR
351.218. First, with respect to so-called ``affirmative waivers'' set
forth in paragraph (d)(2)(i)--which provides that a party may elect not
to participate in the Department's sunset review by filing a
``statement of waiver'' within 30 days of initiation of the sunset
review--the Department has amended the contents of a ``statement of
waiver'' which are set forth in paragraph (d)(2)(ii). Paragraph
(d)(2)(ii) now requires that a party filing a Statement of Waiver
include a statement that it is likely to dump or benefit from a
countervailable subsidy (as the case may be) or, in the case of a
foreign government in a CVD sunset review, provide a countervailable
subsidy, if the order is revoked or the investigation is terminated.
Second, we have eliminated paragraph (d)(2)(iii)--which provided that
an interested party is ``deemed'' to have waived participation in the
sunset review by failing to file a complete substantive response to a
notice of initiation. Thus, the Department will no longer make company-
specific likelihood findings for companies that fail to file a
statement of waiver and fail to file a substantive response to the
notice of initiation. Finally, we modified paragraphs (d)(2)(iv)(C) and
(e)(1)(ii)(B)(3)--which address waiver of participation by a foreign
government in a CVD sunset review--to eliminate cross-references to
paragraph (d)(2)(iii) and to eliminate certain language that might
suggest the possibility that the Department's order-wide likelihood
determination in a CVD sunset review would be based on assumptions
about likelihood of continuation or recurrence of a countervailable
subsidy. In sum, these three modifications to the waiver provisions of
the Department's sunset regulations ensure that there is no longer the
possibility that the Department's order-wide likelihood determinations
might be based on assumptions about likelihood of continuation or
recurrence of dumping or a countervailable subsidy. The Department will
make its order-wide likelihood determinations on the basis of the facts
and information available on the record of the sunset review.
Two commenters argue that amendment or withdrawal of the statutory
provision (section 751(c)(4)(B) of the Act) found to be WTO-
inconsistent was required in order to implement the AB/panel findings.
We disagree. By modifying its regulatory waiver provisions, the
Department has eliminated the possibility that its order-wide
likelihood determinations would be based on assumptions about
[[Page 62063]]
likelihood of continuation or recurrence of dumping or a
countervailable subsidy due to interested parties' waiver of
participation in sunset reviews. Section 751(c)(4)(B) of the Act only
mandates an affirmative company-specific likelihood finding as a
consequence of a party electing to waive its participation in the
sunset review. Thus, the modified regulatory waiver requirements result
in elimination of any assumptions about likelihood because a party
waiving participation would have already indicated to the Department
that it was likely to dump or benefit from a countervailable subsidy if
the order were revoked.
Two commenters also noted that the regulations would not longer
specify how the Department will address the situation where a producer/
exporter does not participate in a sunset review. The commenters are
correct in part. While it is the statute that provides for
determinations on the basis of facts available where, inter alia, a
party does not provide requested information (section 776 of the Act),
there are specific provisions in the Department's regulations
concerning use of facts available in a sunset review (19 CFR
351.308(f)). As a general matter, the Department will make its order-
wide likelihood determination on the basis of the facts and information
available on the record of the sunset review which may include, where
appropriate, use of facts available as provided for in the statute and
regulations.
Section 351.309
The Appellate Body upheld the panel's finding that the operation of
paragraph (d)(2)(iii) of 19 CFR 351.218 was inconsistent with Article
6.2 in that it allegedly denies an interested party that is deemed to
have waived its right to participate in a sunset review by submitting
an incomplete substantive response the right to participate in a
hearing. Paragraph (d)(2)(iii) does not explicitly address the issue of
hearings; nor do the regulations preclude hearings in expedited sunset
reviews resulting from the application of the waiver provisions.
Nevertheless, in the interest of alleviating any perceived confusion
with respect to participation in a hearing in an expedited sunset
review, the Department is modifying paragraph (c)(1)(iii) of 19 CFR
351.309 to clarify that the Secretary will specify a due date for case
briefs in an expedited sunset review. Case briefs provide the basis for
parties' affirmative presentations at a hearing. In addition, as
discussed above, for other reasons we have eliminated paragraph
(d)(2)(iii) in its entirety.
One commenter argued that providing for filing of case briefs in
expedited reviews could eliminate the distinction between expedited and
full sunset reviews. The commenter proposed, instead, that the
regulations provide respondents with an opportunity to supplement their
substantive responses to correct identified deficiencies. We have not
adopted this suggestion. The central distinction between an expedited
and full sunset review remains. In a full sunset review, the
regulations provide that the Department will issue a preliminary
determination and allow comments on that determination; there is no
provision for issuance of a preliminary determination in an expedited
sunset review. Clarifying the basis for parties' participation in a
public hearing in an expedited sunset review does not change this
distinction. The commenter also suggested that if the Department
permits the filing of case briefs in an expedited review, it should
make a corresponding amendment to paragraph (e)(1)(ii)(C)(2) of 19 CFR
351.218. We agree and have eliminated certain language in paragraph
(e)(1)(ii)(C)(2) that could be construed as inconsistent with
permitting parties to file case briefs in expedited sunset reviews.
Classification
E.O. 12866
This final rule has been determined to be not significant under
E.O. 12866.
Administrative Procedures Act
The Department finds good cause to waive the 30-day delay in
effectiveness pursuant to 5 U.S.C. 553(d)(3) in order to complete
requirements mandated by the World Trade Organization (``WTO'')
Appellate Body by December 17, 2005. On December 17, 2004, the WTO
Appellate Body (``AB'') issued its findings regarding the sunset review
of the antidumping duty order on Oil Country Tubular Goods (``OCTG'')
from Argentina. The WTO-appointed arbitrator determined, with reference
to the Appellate Body report, that the United States must bring its
laws into compliance with the Antidumping Agreement and complete
another sunset review of the antidumping duty order on OCTG from
Argentina not later than December 17, 2005. The Department was informed
of this deadline date on June 7, 2005. On August 15, 2005 (70 FR
47738), the Department published a proposed rule to solicit comments on
proposed revisions to its regulations related to sunset reviews. In
addition, the Department initiated consultations for 60 days with the
relevant congressional committees in accordance with section 123 of the
Uruguay Round Agreements Act. After the publication of this final rule,
the Department still must initiate the sunset review, provide
interested parties with 30 days to submit their responses to the
Department's sunset questionnaire, analyze the responses, and make a
final likelihood determination in the sunset review before December 17,
2005. Thus, in order to meet the WTO-mandated implementation date and
to ensure that interested parties have an opportunity to participate
fully in the sunset review, the Department finds good cause to waive
the 30-day delay in effectiveness of the final rule and makes these
regulations effective on October 31, 2005, upon conclusion of the 60-
day congressional consultation period required by the Uruguay Round
Agreements Act.
Paperwork Reduction Act
Notwithstanding any other provision of law, no person is required
to respond to nor shall a person be subject to a penalty for a failure
to comply with a collection of information subject to the requirements
of the Paperwork Reduction Act unless that collection of information
displays a currently valid Office of Management and Budget (OMB)
control number. This final rule involves collection-of-information
requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter
35. The requirements have been approved by OMB under control numbers
0625-0105 and 0625-0148.
E.O. 12612
This final rule does not contain federalism implications warranting
the preparation of a Federalism Assessment.
Regulatory Flexibility Act
The Chief Counsel for Regulation of the Department of Commerce has
certified to the Chief Counsel for Advocacy of the Small Business
Administration that this final rule will not have a significant impact
on a substantial number of small entities. The factual basis for the
certification was published in the proposed rule and is not repeated
here. No comments were received regarding the economic impact of this
action. As a result, a regulatory flexibility analysis was not
prepared.
List of Subjects in 19 CFR Part 351
Administrative practice and procedure, Antidumping duties, Business
and industry, Cheese, Confidential business information, Countervailing
duties, Investigations,
[[Page 62064]]
Reporting and recordkeeping requirements.
Dated: October 20, 2005.
Joseph A. Spetrini,
Acting Assistant Secretary for Import Administration.
0
For the reasons stated, 19 CFR part 351 is amended as follows:
PART 351--ANTIDUMPING AND COUNTERVAILING DUTIES
Subpart B--Antidumping and Countervailing Duty Procedures
0
1. Section 351.218 is amended by revising paragraphs (d)(2)(ii)
introductory text, (d)(2)(iv)(C), (e)(1)(ii)(B) introductory text,
(e)(1)(ii)(B)(3), and (e)(1)(ii)(C)(2), and removing and reserving
paragraph (d)(2)(iii), as follows:
Sec. 351.218 Sunset reviews under section 751(c) of the Act.
* * * * *
(d) * * *
(2) * * *
(ii) Contents of statement of waiver. Every statement of waiver
must include a statement indicating that the respondent interested
party waives participation in the sunset review before the Department;
a statement that the respondent interested party is likely to dump or
benefit from a countervailable subsidy (as the case may be) if the
order is revoked or the investigation is terminated; in the case of a
foreign government in a CVD sunset review, a statement that the
government is likely to provide a countervailable subsidy if the order
is revoked or the investigation is terminated; and the following
information:
* * * * *
(iv) * * *
(C) Base the final results of review on the facts available in
accordance with 351.308(f).
* * * * *
(e) Conduct of sunset review--(1) * * *
(ii) * * *
(B) Failure of a foreign government to file a substantive response
to a notice of initiation in a CVD sunset review. If a foreign
government fails to file a complete substantive response to a notice of
initiation in a CVD sunset review under paragraph (d)(3)(v) of this
section or waives participation in a CVD sunset review under paragraph
(d)(2)(i) of this section, the Secretary will: * * *
(3) Base the final results of review on the facts available in
accordance with 351.308(f).
(C) * * *
(2) Normally will conduct an expedited sunset review and, not later
than 120 days after the date of publication in the Federal Register of
the notice of initiation, issue final results of review based on the
facts available in accordance with Sec. 351.308(f) (see section
751(c)(3)(B) of the Act and Sec. 351.221(c)(5)(ii)).
* * * * *
Subpart C--Information and Argument
0
2. Section 351.309 is amended by revising paragraph (c)(1)(iii) to read
as follows:
Sec. 351.309 Written argument.
* * * * *
(c) Case brief. (1) * * *
(iii) For the final results of an expedited sunset review,
expedited antidumping review, Article 8 violation review, Article 4/
Article 7 review, or section 753 review, a date specified by the
Secretary.
* * * * *
[FR Doc. 05-21468 Filed 10-28-05; 8:45 am]
BILLING CODE 3510-DS-P
