Procedures for Importation of Supplies for Use in Emergency Relief Work, 63230-63235 [E6-18193]

Download as PDF 63230 Federal Register / Vol. 71, No. 209 / Monday, October 30, 2006 / Rules and Regulations Willmar, MN, Willmar Muni-John L Rice Field, VOR OR GPS RWY 28, Amdt 2, CANCELLED Willmar, MN, Willmar Muni-John L Rice Field, Takeoff Minimums & Textual DPs, Amdt 5, CANCELLED Portsmouth, NH, Pease Intl Tradeport, ILS OR LOC RWY 16, Amdt 1 Portsmouth, NH, Pease Intl Tradeport, ILS OR LOC RWY 34, Amdt 2 Portsmouth, NH, Pease Intl Tradeport, RNAV (GPS) RWY 16, Amdt 1 Portsmouth, NH, Pease Intl Tradeport, RNAV (GPS) RWY 34, Orig Socorro, NM, Socorro Muni, NDB–B, Orig-A, CANCELLED Idabel, OK, McCurtain County Regional, NDB–A, Orig, CANCELLED Nashville, TN, John C. Tune, RNAV (GPS) RWY 2, Orig Nashville, TN, John C. Tune, RNAV (GPS) RWY 20, Orig Nashville, TN, John C. Tune, GPS RWY 20, Orig, CANCELLED Effective 21 December 2006 Kalispell, MT, Glacier Park Intl, RNAV (GPS) RWY 2, Amdt 1A Effective 18 January 2007 Kokhanok, AK, Kokhanok, RNAV (GPS) RWY 6, Orig Kokhanok, AK, Kokhanok, RNAV (GPS) RWY 24, Orig Kokhanok, AK, Kokhanok, Takeoff Minimums & Textual DPs, Orig The FAA published an Amendment in Docket No. 30513, Amdt No. 3184 to Part 97 of the Federal Aviation Regulations (Vol 71, FR. No. 179, Page 54404; dated September 15, 2006) under section 97. 27, effective 23 November 2006, published in TL 06–21 are hereby RESCINDED as follows: Saratoga, WY, Shively Field, NDB–A, Amdt 1 Saratoga, WY, Shively Field, RNAV (GPS)–B, Orig [FR Doc. E6–18084 Filed 10–27–06; 8:45 am] BILLING CODE 4910–13–P DEPARTMENT OF COMMERCE International Trade Administration 19 CFR Part 358 Docket No. 060602144–6270–02 RIN 0625–AA71 Procedures for Importation of Supplies for Use in Emergency Relief Work Import Administration, International Trade Administration, Department of Commerce. ACTION: Final rule. cprice-sewell on PROD1PC66 with RULES AGENCY: SUMMARY: The Department of Commerce (‘‘the Department’’) hereby establishes procedures for importation of supplies for use in emergency relief work free of antidumping and countervailing duties, as authorized under section 318(a) of VerDate Aug<31>2005 16:00 Oct 27, 2006 Jkt 211001 the Tariff Act of 1930, as amended (‘‘the Act’’) (19 U.S.C. 1318(a)). Such supplies would be for use in emergency relief work related to an emergency declared by the President. This rule is effective November 29, 2006. DATES: FOR FURTHER INFORMATION CONTACT: Stacy J. Ettinger, Office of the Chief Counsel for Import Administration, room 3622, U.S. Department of Commerce, 1401 Constitution Avenue, NW., Washington, DC, 20230; telephone: 202–482–4618. SUPPLEMENTARY INFORMATION: Background Section 318(a) of the Act (19 U.S.C. 1318(a)) gives the Secretary of the Treasury authority, on a temporary basis, to respond immediately where the President declares the existence of an emergency. Specifically, the Secretary may ‘‘permit ... the importation free of duty of ... supplies for use in emergency relief work.’’ This authority, insofar as it encompasses antidumping and countervailing duties, was delegated to the Secretary of Commerce in 1979, pursuant to Reorg. Plan No. 3 of 1979.1 Consistent with the Reorg. Plan, we have promulgated this rule in consultation with the Department of Treasury and the Department of Homeland Security. The rule establishes procedures for importation of supplies for use in emergency relief work free of antidumping and countervailing duties, as authorized under section 318(a) of the Act. Discussion of Comments On June 22, 2006, the Department published a proposed rule and request for public comment concerning procedures for importation of supplies for use in emergency relief work free of antidumping and countervailing duties, as authorized under section 318(a) of the Act (71 FR 35846, June 22, 2006). In finalizing these procedures, the Department carefully considered each of the comments it received. The following is an explanation of the provisions of the rule, as well as a summary of the comments received and the Department’s responses to those comments. 1 All functions of the Secretary of Treasury under this provision, with respect to the antidumping and countervailing duty functions, were transferred to Commerce pursuant to Reorg. Plan No. 3 of 1979, to be exercised in consultation with the Secretary of the Treasury. Reorg. Plan No. 3 is set out as notes under 19 U.S.C.A. 2171. Authority under section 318 of the Act was transferred to Commerce under section 5(a)(1)(E) of the Reorg. Plan. PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 Section 358.101 Section 358.101 sets forth the scope of Part 358, procedures for importation of supplies for use in emergency relief work free of antidumping and countervailing duties, as authorized under section 318(a) of the Act. Several commenters expressed support for the establishment of procedures for importation of supplies for use in emergency relief work free of antidumping and countervailing duties. The commenters argued that the temporary suspension of antidumping and countervailing duties during an emergency could provide needed relief after natural disasters and would have a positive impact on emergency relief and reconstruction efforts by reducing costs and ensuring availability of building and other emergency relief supplies. Other commenters argued that there is no need for such a rule or that there have been no circumstances where antidumping or countervailing duties have been shown to affect or delay the importation of emergency supplies. One commenter argued that the rule would exacerbate the previously demonstrated injury to the domestic industry by permitting an additional influx of unfairly traded goods. The Department is committed to strong enforcement of U.S. trade laws and will do everything within the parameters prescribed by Congress to ensure that domestic industries obtain effective relief from dumped and subsidized imports. Congress also, however, has authorized the Secretary to permit the importation of supplies for use in relief work free of antidumping and countervailing duties during a declared emergency. This rule establishes the procedures for importation of such supplies as authorized by Congress and is intended to facilitate access to needed resources in the event of a natural disaster or other emergency. Any waiver of antidumping and countervailing duties would be both temporary and limited to supplies for use in emergency relief work related to the emergency declared by the President. The Department does not believe that such temporary limited waivers will exacerbate injury to the domestic industry. Nevertheless, we recognize that we have no experience with the new waiver mechanism and that it is possible that the application of the waiver mechanism could have unintended consequences with regard to the protection afforded to U.S. industries found to be injured by dumped and/or subsidized imports. Therefore, we have added section 358.104, which provides that the E:\FR\FM\30OCR1.SGM 30OCR1 cprice-sewell on PROD1PC66 with RULES Federal Register / Vol. 71, No. 209 / Monday, October 30, 2006 / Rules and Regulations Secretary will review and issue a report on the first five years of the operation of the waiver mechanism. The report will consider the impact of the application of the waiver mechanism on U.S. parties injured by dumped and/or subsidized imports. Several commenters argued that the Department has no legal authority to promulgate a rule allowing for temporary waiver of antidumping and countervailing duties because Title VII of the Act does not provide such authority and/or the waiver authority under section 318(a) of the Act does not explicitly reference or encompass antidumping or countervailing duties. We do not agree with the commenters’ assertions. The Department’s authority to promulgate this rule arises under section 318(a) of the Act. Specifically, section 318(a) gives the Secretary of the Treasury authority, on a temporary basis, to respond immediately where the President declares the existence of an emergency. Under these circumstances, the Secretary may permit the importation free of duty of supplies for use in emergency relief work. Insofar as it encompasses antidumping and countervailing duties, this authority was explicitly delegated to the Secretary of Commerce in 1979, pursuant to section 5(a)(1)(E) of Reorg. Plan No. 3 of 1979. Regardless of whether Title VII of the Act permits temporary waiver of antidumping and countervailing duties, such waiver authority is specifically and explicitly contemplated under section 318(a) of the Act. One commenter argued that, based on certain language in Reorg. Plan No. 3, any rule regarding the application of section 318 of the Act must be ‘‘jointly promulgated’’ between the Department and the Department of Homeland Security (‘‘DHS’’). The Department disagrees with the commenter’s interpretation of Reorg. Plan No. 3. Nothing in section 318(a) or in Reorg. Plan No. 3 requires that this rule be ‘‘jointly promulgated’’ with DHS or any other agency. Rather, section 5(a)(1)(E) of the Reorg. Plan provides that all functions of the Secretary of Treasury under section 318(a) of the Act2 with respect to antidumping and countervailing duties, were transferred to the Secretary of Commerce ‘‘to be exercised in consultation with the Secretary of the Treasury.’’ In the course of promulgating this rule, the Department has, in fact, consulted with Treasury, as well as with the Bureau of 2 In 2002, Pub.L. 107-210, section 342(1), designated the former text of section 318 of the Act as subsection (a) of section 318 of the Act. Section 342(2) of Pub.L. 107-210 added new subsection (b) to section 318 of the Act. VerDate Aug<31>2005 16:00 Oct 27, 2006 Jkt 211001 Customs and Border Protection (‘‘CBP’’) and DHS. These interagency consultations satisfy the requirements of Reorg. Plan No. 3. One commenter suggested that there was no need for the rule because there are other emergency powers already available to the President and the federal government. The commenter is correct that there are other emergency powers available to the President and other federal agencies. For example, in addition to the authorities delegated to the Secretary of Commerce pursuant to Reorg. Plan No. 3, section 318 of the Act contains provisions that provide relief from duties other than countervailing and antidumping duties and also from other measures affecting importations. Section 322 of the Act also provides for other emergency relief authority with regard to importations. We note that this rule (Part 358) is in no way intended to limit the emergency relief available through other provisions of the Act, or limit the authority of the Secretary of the Treasury, or those to whom that authority has been delegated, to grant emergency relief of duties or take any other measure necessary to respond to a emergency or other threat pursuant to sections 318, 322, or any other provisions of the Act. However, the fact that there are other available emergency powers does not vitiate the need for this rule. The Department has determined to promulgate this rule in order to prescribe the process by which the Department will exercise its authority under section 318(a) of the Act. One commenter argued that the rule does not go far enough and that U.S. law should be amended to establish a ‘‘no or short supply’’ exception to the application of antidumping and countervailing duties in the form of either a public–interest test or a lesser– duty rule. Another commenter expressed concern that the rule could lead to an unnecessary short–supply provision and create a loophole benefitting its Brazilian orange juice competitors. One commenter proposed that the Department clarify that the rule does not apply to Mexican cement. This rule serves the limited function of establishing procedures for importation of supplies for use in emergency relief work free of antidumping and countervailing duties, in the context of and related to an emergency declared by the President. The rule does not limit the definition of supplies for use in emergency relief work to products for which there is insufficient U.S. production. In other words, the rule is not a so–called ‘‘short–supply’’ provision. The rule also does not exempt specific products (such PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 63231 as orange juice or cement) from consideration as supplies for use in emergency relief work for the reason that what supplies might be needed for use in emergency relief work will depend on the circumstances of a specific declared emergency and the particular needs of persons affected by that emergency. Section 358.102 Section 358.102 sets forth the definition of terms that are used in Part 358. With respect to the definition of ‘‘supplies for use in emergency relief work,’’ some commenters proposed that emergency relief work be broadly defined and that the rule clarify that eligible supplies include, for example, supplies for repairs or reconstruction work made necessary by the emergency. Other commenters argued that the definition of ‘‘supplies for use in emergency relief work’’ is broader than the definition authorized by Congress. These commenters argued that section 318(a) of the Act limits supplies for use in emergency relief work to humanitarian goods provided on a short–term basis, specifically food, clothing, and medical and surgical supplies. The commenters proposed that the rule be redrafted to reflect this limited definition. The Department’s proposed definition of ‘‘supplies for use in emergency relief work’’ was intended to reflect the statutory authority to permit the duty– free importation of supplies for use in emergency relief work. However, some commenters found the proposed definition too limited, while others found the proposed definition too broad. Given the mixed reaction to the proposed definition, the Department has modified the definition of ‘‘supplies for use in emergency relief work.’’ The definition will now track the language of section 318(a) of the Act. The Department does not agree with commenters’ assertions that the statute ‘‘limits’’ supplies for use in emergency relief work to humanitarian goods provided on a short–term basis such as food, clothing, medical and surgical supplies. The statute also permits duty waiver for ‘‘other supplies for use in emergency relief work.’’ As a general proposition, identification of needed supplies will be dependent on the circumstances of an actual declared emergency. While clothing and medical supplies might be needed for emergency relief work in certain circumstances, there may be other circumstances where supplies related to repair or reconstruction work are equally or more needed. E:\FR\FM\30OCR1.SGM 30OCR1 cprice-sewell on PROD1PC66 with RULES 63232 Federal Register / Vol. 71, No. 209 / Monday, October 30, 2006 / Rules and Regulations Section 358.103 Section 358.103 sets forth the procedures for importation of supplies for use in emergency relief work free of antidumping and countervailing duties. Where the President, acting under section 318 of the Act, authorizes the Secretary to permit the importation of supplies for use in emergency relief work, the Secretary will consider a request for importation free of antidumping and countervailing duties under the conditions set forth in paragraph (a). Paragraph (a)(1) requires that a request be in writing, identifies persons that may submit a request, indicates the number of copies required for filing, and states that a request must be filed with the Department’s Central Records Unit. Paragraph (a)(2) identifies the information required to be provided in a request. Two commenters proposed that the rule set time limits for submission of waiver requests, e.g., within 60 days after the date of declaration of the emergency and for the entry of merchandise, e.g., within 60 days after the date the waiver request is granted. The Department has not adopted a time limit for submission of waiver requests as suggested by the commenters. After declaring an emergency, and acting under section 318 of the Act, the President can authorize the Secretary to permit importation of supplies for use in emergency relief work free of antidumping and countervailing duties. Opportunity to request, and the Secretary’s determination to permit such importations are appropriate throughout the continuance of the declared emergency. A 60-day time limit on requests for importation of emergency relief supplies would frustrate the utility of the waiver mechanism by not allowing for differing circumstances or the duration of an actual emergency. The Department does, however, see merit in setting a deadline for entry of relief supplies once the Secretary has made a determination to permit such entry. A limited entry period is consistent with the entry–specific nature of a determination by the Secretary to waive duties, as well as the temporary duration of a declared emergency. Therefore, with one modification, the Department has adopted the 60-day time frame proposed by the commenters. Specifically, we have modified the proposal to allow a flexible approach to specific situations in which entry of duty–waiver merchandise will not occur within the 60-day time frame. This might occur, for example, where three shipments of VerDate Aug<31>2005 16:00 Oct 27, 2006 Jkt 211001 duty–waiver merchandise are scheduled to enter the United States over a three month period, i.e., one shipment per month. This flexible approach is reflected in our use of the word ‘‘normally’’ in new paragraph (c) of section 358.103, which provides that duty–waiver merchandise must enter the United States normally within 60 days after the date on which the Secretary notifies the person who submitted the request or the merchandise will be subject to antidumping and/or countervailing duties, as applicable. One commenter proposed that, given the changing needs and conditions during an emergency, the Department should include some flexibility in the information requirements set forth in paragraph (a)(2). The commenter also suggested that the Department should ensure that the paperwork required not frustrate the utility of this mechanism at a time of dire need. The Department acknowledges that changing needs and conditions during an emergency might affect a requester’s ability to provide all the information required for a waiver request at the time the request is submitted. However, the Department will need to have sufficient information to make a decision on a waiver request. The Department does not consider that the information requirements set forth in paragraph (a)(2) are particularly onerous, but welcomes any comments on reporting burdens associated with the information required for a waiver request. Other commenters proposed additional information requirements such as specification of the intended emergency use, identification of the U.S. customer, identification of the emergency relief–related project, and/or designation of the geographical limits for use of the merchandise. Two commenters argued that price, included in the list of required information, is not an appropriate element of any analysis of potential waiver because any price effects resulting from the emergency would similarly affect both fairly and unfairly traded goods. One commenter suggested that required information include a demonstration that the merchandise for which duty–free importation is requested be in short supply. As discussed above, this rule is not a short supply provision, and duty waiver on emergency relief supplies is not dependent on whether there is insufficient U.S. production. For this reason, the Department has not adopted the suggestion that information required under paragraph (a)(2) include a demonstration that there is insufficient PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 U.S. production of the merchandise for which duty–free importation is requested. The Department has adopted, however, the essence of certain other suggestions regarding required information. In particular, the Department believes that identification of the person for whose account the merchandise will be brought into the United States, as well as designation of the geographical location at which the merchandise will be used, are useful pieces of information. We have modified paragraph (a)(2) to reflect these additions. Paragraph (a)(2) already provides for identification of the use to be made of the merchandise and, for this reason, we have not adopted the suggestion to include identification of the emergency relief–related project. Moreover, the term ‘‘emergency relief– related project’’ proposed by the commenter implies a formal, government–sponsored or -countenanced emergency relief project, which is not a limitation prescribed in this rule or in the statute. We also have not adopted the suggestion that price be excluded from the list of required information. The commenters assume that analysis of price effects is a factor in waiver requests. No such assumption is warranted. Price information may be relevant in subsequent administrative or new shipper reviews, for example, for purposes of both checking the completeness of respondents’ reporting and providing an indication as to whether the merchandise was donated or sold. Paragraph (b) provides that, if the Secretary determines to permit importation of particular merchandise free of antidumping and countervailing duties, the Secretary will notify the person who submitted the request and instruct CBP to allow entry of the merchandise without regard to antidumping and countervailing duties. One commenter proposed that the Secretary allow importation of merchandise free of antidumping and countervailing duties only where necessary to meet an important need in emergency relief efforts, to address short–term immediate humanitarian needs, where short–term need cannot adequately be met through fairly traded merchandise, and in circumstances not likely to have any significant impact on the effectiveness of existing antidumping and countervailing duty orders or result in injury to a domestic industry. Another commenter proposed that importation of merchandise free of antidumping and countervailing duties should only be allowed where fairly traded merchandise cannot meet the short–term need. Other commenters E:\FR\FM\30OCR1.SGM 30OCR1 cprice-sewell on PROD1PC66 with RULES Federal Register / Vol. 71, No. 209 / Monday, October 30, 2006 / Rules and Regulations proposed that the rule only allow for waiver of antidumping and countervailing duties on merchandise considered necessary for relief by the Federal Emergency Management Agency (‘‘FEMA’’). One commenter also suggested that the Department require that supplies for use in emergency relief work be donated, not sold. We have not adopted these suggestions. This rule establishes the procedures for importation of supplies for use in relief work free of antidumping and countervailing duties during a declared emergency as authorized by Congress and is intended to facilitate access to needed resources in the event of a natural disaster or other emergency. What supplies might be needed for use in emergency relief work will depend on the circumstances of a specific declared emergency and the particular needs of persons affected by that emergency. While a FEMA list of needed emergency supplies, if created, could be instructive, the Department believes that it is appropriate for the Secretary to have maximum flexibility to review waiver requests in the context of a specific emergency and to make waiver determinations on an emergency–by-emergency basis. As discussed above, the Department does not believe that temporary limited waiver of antidumping and countervailing duties will exacerbate injury to the domestic industry. However, as set forth in new section 358.104, the Department will review the operation and impact of the waiver mechanism after five years. The Department also finds no reason to limit the definition of emergency relief supplies to only donated merchandise, as one commenter suggested, although the Secretary will consider whether the merchandise was donated or sold since that information is required to be included in a waiver request. Certain commenters suggested that there should be specific and/or short time limits on temporary waivers of antidumping and countervailing duties to prevent inappropriate long–term use of such waivers. Other commenters suggested that a waiver specify the allowable geographic limits for use of the imported merchandise. The Department agrees with these suggestions. To alleviate concerns about inappropriate long–term use of waivers, we have modified paragraph (b) to indicate that waiver of antidumping and countervailing duties on imports of merchandise for use in emergency relief work will be specific and limited to the merchandise explicitly identified in the waiver request. Pursuant to paragraph (a)(2), a waiver request must identify, VerDate Aug<31>2005 16:00 Oct 27, 2006 Jkt 211001 inter alia, the quantity of the merchandise to be imported, the proposed date of entry, the destination of the merchandise, and the use to be made of the merchandise at the designated destination. In addition, as discussed above, we have added paragraph (c) to require that waiver merchandise enter the United States normally within 60 days after the date on which the Secretary grants a waiver request or such merchandise will be subject to antidumping and/or countervailing duties, as applicable. Certain commenters proposed that the Department provide notice to, and an opportunity for, interested parties to comment on requests before the Secretary makes a determination to permit importation of particular merchandise for use in emergency relief work. We have not adopted this proposal. The speed with which the Secretary may need to address requests for importation of emergency relief supplies will be dependent on the circumstances of an actual declared emergency. In certain situations, the Secretary may need to respond immediately and an opportunity for notice and comment could have a detrimental impact on persons in need of emergency relief supplies. The Department’s regulations (19 CFR 351.104) already provide that the official record of each antidumping and countervailing duty proceeding will include material presented to the Secretary during the course of a proceeding, as well as determinations made by the Secretary, that pertain to the proceeding. As a result, requests for importation of emergency relief supplies and the Secretary’s determination to permit importation, if any, will be included on the record of the relevant proceeding(s). In addition, we have added language to paragraph (b) stating that notification of a determination by the Secretary will be posted on our website. Two commenters proposed that the Department be required to inform Congress about any application of the rule. The Department agrees that it is appropriate to inform Congress that it is establishing procedures for importation of supplies for use in emergency relief work free of antidumping and countervailing duties, as authorized by section 318(a) of the Act, and it will provide notice of this rulemaking upon publication. No changes to the rule are necessary. Paragraph (d) indicates possible penalties where merchandise entered for use in emergency relief work is used in the United States for some other purpose. The merchandise may be PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 63233 subject to seizure or other penalty, including under section 592 of the Act (19 U.S.C. 1592). This paragraph had been numbered as paragraph (c) in the proposed rule. One commenter proposed that, given the confused and unpredictable circumstances of a declared emergency, there should be a good–faith exception when merchandise is diverted away from the purpose identified in the initial request. The commenter suggested that financial penalties be limited to instances of bad–faith misuse of the duty–waiver mechanism. Other commenters proposed that there be stronger safeguards and/or oversight to ensure proper use of emergency supplies and/or to check on appropriate use after the fact. Several commenters suggested that importers should be required to file entry–specific certifications that the merchandise is for emergency relief. Some commenters proposed that the importer be subject to penalties for improper use of goods. Other commenters argued that the proposed rule does not include sufficient safeguards to prevent abuse by importers. The Department agrees with commenters that there is a need to ensure appropriate use of the duty– waiver mechanism and imported emergency relief supplies. For this reason, as set forth in paragraph (a)(2), a request for duty waiver must include, inter alia, a detailed description of the merchandise, state the quantity to be imported, identify a proposed date of entry, and indicate the destination of the merchandise. In response to comments, we also have added the requirements that the request identify the person for whose account the merchandise will be brought into the United States and the use to be made of the merchandise at the designated destination. As discussed above, the Secretary’s determination to grant a duty–waiver request will be specific to the described merchandise and stated entry date, use, and destination. The Secretary’s determination also will be made available in the public record of the relevant proceeding(s) and notification of the determination will appear on the Department’s website. Any party with specific concerns about improper use of particular imports of emergency relief supplies should contact the Department about those specific concerns. Based on receipt of such comments and on its own authority, the Department may consider the need for penalties or other action if specific instances of misuse arise. Paragraph (d) provides maximum flexibility in this regard because it does E:\FR\FM\30OCR1.SGM 30OCR1 cprice-sewell on PROD1PC66 with RULES 63234 Federal Register / Vol. 71, No. 209 / Monday, October 30, 2006 / Rules and Regulations not limit the range of possible penalties for improper use. The proposed rule clarified that merchandise entered for use in emergency relief work is subject to Department reporting requirements in antidumping and countervailing duty administrative reviews, but that such merchandise will be excluded from the calculation of assessment and cash deposit rates. In the final rule, these two provisions are set forth in paragraphs (e) and (f)(1), respectively. In addition, in paragraph (e) we have added a reference to new shipper reviews to clarify that duty–waiver merchandise also is subject to Department reporting requirements in new shipper reviews. One commenter argued that subjecting merchandise entered for use in emergency relief work to Department reporting requirements in antidumping and countervailing duty reviews creates a burden of unnecessary reporting and recordkeeping in an emergency situation. The Department disagrees with the commenter’s assertion. We expect that the data with respect to merchandise entered for use in emergency relief work already would be recorded in a producer’s books as a matter of normal recordkeeping. With respect to duty–waiver merchandise, respondents would need to report only the data necessary to allow the Department to identify and account for the emergency relief transactions. In addition, the time period of the emergency and the period during which the relevant review (i.e., the review related to the period during which the duty–waiver merchandise was sold or donated in the United States) is conducted are not likely to be contemporaneous. Finally, the foreign producer responding to the Department’s questionnaire in an administrative or new shipper review, and that producer’s bookkeeping activities, are unlikely to have been directly affected by an emergency within the United States. Certain commenters suggested that the rule clarify that duty–waiver merchandise does not count towards ‘‘commercial quantities’’ requirements in certain types of antidumping and countervailing duty proceedings. The commenter also suggested that the rule clarify the effect on suspension agreements and the effect on yearly quotas. We agree that we should clarify the treatment of merchandise entered for use in emergency relief work in certain other types of antidumping and countervailing duty proceedings and circumstances. Therefore, we have added paragraph (f) to section 351.103 to provide such clarification. VerDate Aug<31>2005 16:59 Oct 27, 2006 Jkt 211001 Paragraph (f)(1) clarifies that merchandise entered for use in emergency relief work will be excluded from the calculation of assessment and cash deposit rates in an administrative or new shipper review. Previously, this clarification was reflected in paragraph (d) of the proposed rule, although paragraph (f)(1) is modified to add a reference to new shipper reviews and a cross reference to the applicable statutory provision governing administrative and new shipper reviews. The remaining substance of paragraph (d) of the proposed rule is now reflected in paragraph (e) of the final rule, which provides that merchandise entered for use in emergency relief work is subject to Department reporting requirements in antidumping and countervailing duty administrative and new shipper reviews. Paragraph (f)(2) is new and clarifies that merchandise entered for use in emergency relief work will not count for purposes of any of the ‘‘commercial quantities’’ requirements set forth in 19 CFR 351.222. Paragraph (f)(3) also is new and clarifies that such merchandise also will not count for purposes of the quantity allowed by, or revised price requirements established pursuant to, a suspension agreement under section 704 or section 734 of the Act. E.O. 12612 This rule does not contain federalism implications warranting the preparation of a Federalism Assessment. Classification Sec. 358.101 358.102 358.103 358.104 E.O. 12866 This rule has been determined to be not significant under E.O. 12866. Paperwork Reduction Act Frm 00022 Fmt 4700 Sfmt 4700 List of Subjects in 19 CFR Part 358 Administrative practice and procedure, Antidumping duties, Business and industry, Countervailing duties, Emergency powers, Reporting and recordkeeping requirements. Dated: October 20, 2006. David M. Spooner, Assistant Secretary for Import Administration. For the reasons discussed in the preamble, the Department of Commerce adds 19 CFR Part 358 as follows: I PART 358—SUPPLIES FOR USE IN EMERGENCY RELIEF WORK Scope. Definitions. Importation of supplies. Report. Authority: 19 U.S.C. 1318(a). § 358.101 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 rule involves collection–of-information requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35. The information collection requirements in 19 CFR Part 358 are approved by OMB and assigned OMB control number 0625–0256. The public reporting burden for this collection of information is estimated at 10 total burden hours. This time is an estimate of the time required to complete a waiver request, review instructions, search existing data sources, gather and maintain the data needed, and complete and review the collection of information. PO 00000 Regulatory Flexibility Act The Chief Counsel for Regulation at the Department certified to the Chief Counsel for Advocacy, Small Business Administration that this rule would not have a significant economic impact on a substantial number of small entities. The factual basis of this certification was published in the proposed rule and is not repeated here. No comments were received on the economic impact of this rule. As a result, no Final Regulatory Flexibility Analysis was prepared. Scope. This part sets forth the procedures for importation of supplies for use in emergency relief work free of antidumping and countervailing duties, as authorized under section 318(a) of the Act. § 358.102 Definitions. For purposes of this part: Act means the Tariff Act of 1930, as amended. CBP means the Bureau of Customs and Border Protection of the United States Department of Homeland Security. Department means the United States Department of Commerce. Order means an order issued by the Secretary under section 303, section 706, or section 736 of the Act. Secretary means the Secretary of Commerce or a designee. Supplies for use in emergency relief work means food, clothing, and medical, surgical, and other supplies for use in emergency relief work. E:\FR\FM\30OCR1.SGM 30OCR1 Federal Register / Vol. 71, No. 209 / Monday, October 30, 2006 / Rules and Regulations cprice-sewell on PROD1PC66 with RULES § 358.103 Importation of supplies. (a) Where the President, acting under section 318 of the Act, authorizes the Secretary to permit the importation of supplies for use in emergency relief work free of antidumping and countervailing duties, the Secretary shall consider requests for such importation under the following conditions: (1) Before importation, a written request shall be submitted to the Secretary by the person in charge of sending the subject merchandise from the foreign country or by the person for whose account it will be brought into the United States. Three copies of the request should be submitted to the Secretary of Commerce, Attention: Import Administration, Central Records Unit, Room 1870, U.S. Department of Commerce, 1401 Constitution Avenue, NW., Washington, DC 20230. (2) The request shall state the Department antidumping and/or countervailing duty order case number, the producer of the merchandise, a detailed description of the merchandise, the current HTS number, the price in the United States, the quantity, the proposed date of entry, the proposed port of entry, the mode of transport, the person for whose account the merchandise will be brought into the United States, the destination, the use to be made of the merchandise at the designated destination, and any other information the person would like the Secretary to consider. (b) If the Secretary determines to permit duty–free importation of particular merchandise for use in emergency relief work, the Secretary will notify the person who submitted the request, instruct CBP to allow entry of the merchandise identified in the request submitted under paragraph (a) without regard to antidumping and countervailing duties, and post notification of the determination on the Department’s website. (c) Any subject merchandise entered under paragraph (b) of this section must enter the United States normally within 60 days after the date on which the Secretary notifies the person who submitted the request or the merchandise will be subject to antidumping and/or countervailing duties, as applicable. (d) Any subject merchandise entered under paragraph (b) of this section which is used in the United States other than for a purpose contemplated for it by section 318(a) of the Act may be subject to seizure or other penalty, including under section 592 of the Act. (e) Any subject merchandise entered under paragraph (b) of this section is VerDate Aug<31>2005 16:00 Oct 27, 2006 Jkt 211001 subject to the Department’s reporting requirements in its conduct of an antidumping and/or countervailing duty administrative or new shipper review, as applicable. (f) Any subject merchandise entered under paragraph (b) of this section will be excluded from: (1) The calculation of assessment and cash deposit rates in an administrative or new shipper review under section 751(a) of the Act; (2) ‘‘Commercial quantities’’ under 19 CFR 351.222; and (3) The quantity allowed by, or revised price requirements established pursuant to, a suspension agreement under section 704 or section 734 of the Act, as applicable. § 358.104 Report. The Secretary will review and issue a report on the first five years of the operation of Part 358. The report will consider the impact of determinations to permit importation of particular merchandise for use in emergency relief work under this Part, on U.S. parties injured by dumped and/or subsidized imports. [FR Doc. E6–18193 Filed 10–27–06; 8:45 am] BILLING CODE 3510–DS–S INTER-AMERICAN FOUNDATION 63235 The amendments also reflect changes in the contact office for requesting access to agency records from the Administration and Finance Division to the Office of the General Counsel and an increase in the hours of availability of IAF staff to respond to such requests. Publication of this document constitutes final action on these changes under the Administrative Procedure Act (5 U.S.C. 553). Notice and public procedures are unnecessary because the IAF is correcting nonsubstantive errors only. II. Rulemaking Analyses and Notices Because the amendments made by this document relate to management, organization, and practice, prior notice and opportunity for comment are unnecessary under 5 U.S.C. 553(b)(3)(A). In addition, prior notice and opportunity for comment are unnecessary pursuant to 5 U.S.C. 553(b)(3)(B) because the process of amending and updating the sections is merely technical in nature and proposes no substantive changes to which public comment could be solicited. This final rule is made effective upon publication in the Federal Register. The IAF finds that good cause exists for this final rule to be exempt from the 30-day delayed effective date requirement of 5 U.S.C. 553(d) because a delay in effective date is unnecessary and would not be in the public interest. 22 CFR Parts 1002 and 1005 List of Subjects Change of Address and Other Agency Contact Information; Technical Amendments 22 CFR Part 1002 AGENCY: Administrative practice and procedure, Availability of agency records. ACTION: 22 CFR Part 1005 Inter-American Foundation. Final rule; technical amendments. The Inter-American Foundation (IAF) is amending its regulations to reflect a change in the agency’s address, as well as in the contact office for requesting access to agency records and the hours during which staff may be reached. This action is editorial in nature and is intended to increase the accuracy of the IAFs regulations. SUMMARY: DATES: Effective Date: October 30, 2006. FOR FURTHER INFORMATION CONTACT: Rebecca Verreau, Office of the General Counsel, Inter-American Foundation, 901 N. Stuart St., 10th Floor, Arlington, VA 22203, rverreau@iaf.gov or 703– 306–4301. SUPPLEMENTARY INFORMATION: I. Background The IAF is amending its regulations to reflect a change in the agencys address. PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 Administrative practice and procedure, Prohibition of discrimination against persons with disabilities in IAF programs and activities. Therefore, the IAF amends 22 CFR parts 1002 and 1005 as set forth below: I PART 1002—AVAILABILITY OF RECORDS 1. The authority citation for part 1002 continues to read as follows: I Authority: 5 U.S.C. 552, and 31 U.S.C. 483(a). § 1002.3 [Amended] 2. Section 1002.3 is amended by: A. Removing ‘‘10 a.m. and 4 p.m.’’ and adding in its place ‘‘9 a.m. and 5 p.m.’’ I B. By removing ‘‘1515 Wilson Boulevard, Arlington, VA 22209’’ and adding in its place ‘‘901 N. Stuart St., 10th Floor, Arlington, VA 22203’’. I I E:\FR\FM\30OCR1.SGM 30OCR1

Agencies

[Federal Register Volume 71, Number 209 (Monday, October 30, 2006)]
[Rules and Regulations]
[Pages 63230-63235]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-18193]


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DEPARTMENT OF COMMERCE

International Trade Administration

19 CFR Part 358

Docket No. 060602144-6270-02
RIN 0625-AA71


Procedures for Importation of Supplies for Use in Emergency 
Relief Work

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Commerce (``the Department'') hereby 
establishes procedures for importation of supplies for use in emergency 
relief work free of antidumping and countervailing duties, as 
authorized under section 318(a) of the Tariff Act of 1930, as amended 
(``the Act'') (19 U.S.C. 1318(a)). Such supplies would be for use in 
emergency relief work related to an emergency declared by the 
President.

DATES: This rule is effective November 29, 2006.

FOR FURTHER INFORMATION CONTACT: Stacy J. Ettinger, Office of the Chief 
Counsel for Import Administration, room 3622, U.S. Department of 
Commerce, 1401 Constitution Avenue, NW., Washington, DC, 20230; 
telephone: 202-482-4618.

SUPPLEMENTARY INFORMATION:

Background

    Section 318(a) of the Act (19 U.S.C. 1318(a)) gives the Secretary 
of the Treasury authority, on a temporary basis, to respond immediately 
where the President declares the existence of an emergency. 
Specifically, the Secretary may ``permit ... the importation free of 
duty of ... supplies for use in emergency relief work.'' This 
authority, insofar as it encompasses antidumping and countervailing 
duties, was delegated to the Secretary of Commerce in 1979, pursuant to 
Reorg. Plan No. 3 of 1979.\1\ Consistent with the Reorg. Plan, we have 
promulgated this rule in consultation with the Department of Treasury 
and the Department of Homeland Security. The rule establishes 
procedures for importation of supplies for use in emergency relief work 
free of antidumping and countervailing duties, as authorized under 
section 318(a) of the Act.
---------------------------------------------------------------------------

    \1\ All functions of the Secretary of Treasury under this 
provision, with respect to the antidumping and countervailing duty 
functions, were transferred to Commerce pursuant to Reorg. Plan No. 
3 of 1979, to be exercised in consultation with the Secretary of the 
Treasury. Reorg. Plan No. 3 is set out as notes under 19 U.S.C.A. 
2171. Authority under section 318 of the Act was transferred to 
Commerce under section 5(a)(1)(E) of the Reorg. Plan.
---------------------------------------------------------------------------

Discussion of Comments

    On June 22, 2006, the Department published a proposed rule and 
request for public comment concerning procedures for importation of 
supplies for use in emergency relief work free of antidumping and 
countervailing duties, as authorized under section 318(a) of the Act 
(71 FR 35846, June 22, 2006). In finalizing these procedures, the 
Department carefully considered each of the comments it received. The 
following is an explanation of the provisions of the rule, as well as a 
summary of the comments received and the Department's responses to 
those comments.

Section 358.101

    Section 358.101 sets forth the scope of Part 358, procedures for 
importation of supplies for use in emergency relief work free of 
antidumping and countervailing duties, as authorized under section 
318(a) of the Act.
    Several commenters expressed support for the establishment of 
procedures for importation of supplies for use in emergency relief work 
free of antidumping and countervailing duties. The commenters argued 
that the temporary suspension of antidumping and countervailing duties 
during an emergency could provide needed relief after natural disasters 
and would have a positive impact on emergency relief and reconstruction 
efforts by reducing costs and ensuring availability of building and 
other emergency relief supplies. Other commenters argued that there is 
no need for such a rule or that there have been no circumstances where 
antidumping or countervailing duties have been shown to affect or delay 
the importation of emergency supplies. One commenter argued that the 
rule would exacerbate the previously demonstrated injury to the 
domestic industry by permitting an additional influx of unfairly traded 
goods.
    The Department is committed to strong enforcement of U.S. trade 
laws and will do everything within the parameters prescribed by 
Congress to ensure that domestic industries obtain effective relief 
from dumped and subsidized imports. Congress also, however, has 
authorized the Secretary to permit the importation of supplies for use 
in relief work free of antidumping and countervailing duties during a 
declared emergency. This rule establishes the procedures for 
importation of such supplies as authorized by Congress and is intended 
to facilitate access to needed resources in the event of a natural 
disaster or other emergency. Any waiver of antidumping and 
countervailing duties would be both temporary and limited to supplies 
for use in emergency relief work related to the emergency declared by 
the President. The Department does not believe that such temporary 
limited waivers will exacerbate injury to the domestic industry. 
Nevertheless, we recognize that we have no experience with the new 
waiver mechanism and that it is possible that the application of the 
waiver mechanism could have unintended consequences with regard to the 
protection afforded to U.S. industries found to be injured by dumped 
and/or subsidized imports. Therefore, we have added section 358.104, 
which provides that the

[[Page 63231]]

Secretary will review and issue a report on the first five years of the 
operation of the waiver mechanism. The report will consider the impact 
of the application of the waiver mechanism on U.S. parties injured by 
dumped and/or subsidized imports.
    Several commenters argued that the Department has no legal 
authority to promulgate a rule allowing for temporary waiver of 
antidumping and countervailing duties because Title VII of the Act does 
not provide such authority and/or the waiver authority under section 
318(a) of the Act does not explicitly reference or encompass 
antidumping or countervailing duties. We do not agree with the 
commenters' assertions. The Department's authority to promulgate this 
rule arises under section 318(a) of the Act. Specifically, section 
318(a) gives the Secretary of the Treasury authority, on a temporary 
basis, to respond immediately where the President declares the 
existence of an emergency. Under these circumstances, the Secretary may 
permit the importation free of duty of supplies for use in emergency 
relief work. Insofar as it encompasses antidumping and countervailing 
duties, this authority was explicitly delegated to the Secretary of 
Commerce in 1979, pursuant to section 5(a)(1)(E) of Reorg. Plan No. 3 
of 1979. Regardless of whether Title VII of the Act permits temporary 
waiver of antidumping and countervailing duties, such waiver authority 
is specifically and explicitly contemplated under section 318(a) of the 
Act.
    One commenter argued that, based on certain language in Reorg. Plan 
No. 3, any rule regarding the application of section 318 of the Act 
must be ``jointly promulgated'' between the Department and the 
Department of Homeland Security (``DHS''). The Department disagrees 
with the commenter's interpretation of Reorg. Plan No. 3. Nothing in 
section 318(a) or in Reorg. Plan No. 3 requires that this rule be 
``jointly promulgated'' with DHS or any other agency. Rather, section 
5(a)(1)(E) of the Reorg. Plan provides that all functions of the 
Secretary of Treasury under section 318(a) of the Act\2\ with respect 
to antidumping and countervailing duties, were transferred to the 
Secretary of Commerce ``to be exercised in consultation with the 
Secretary of the Treasury.'' In the course of promulgating this rule, 
the Department has, in fact, consulted with Treasury, as well as with 
the Bureau of Customs and Border Protection (``CBP'') and DHS. These 
interagency consultations satisfy the requirements of Reorg. Plan No. 
3.
---------------------------------------------------------------------------

    \2\ In 2002, Pub.L. 107-210, section 342(1), designated the 
former text of section 318 of the Act as subsection (a) of section 
318 of the Act. Section 342(2) of Pub.L. 107-210 added new 
subsection (b) to section 318 of the Act.
---------------------------------------------------------------------------

    One commenter suggested that there was no need for the rule because 
there are other emergency powers already available to the President and 
the federal government. The commenter is correct that there are other 
emergency powers available to the President and other federal agencies. 
For example, in addition to the authorities delegated to the Secretary 
of Commerce pursuant to Reorg. Plan No. 3, section 318 of the Act 
contains provisions that provide relief from duties other than 
countervailing and antidumping duties and also from other measures 
affecting importations. Section 322 of the Act also provides for other 
emergency relief authority with regard to importations. We note that 
this rule (Part 358) is in no way intended to limit the emergency 
relief available through other provisions of the Act, or limit the 
authority of the Secretary of the Treasury, or those to whom that 
authority has been delegated, to grant emergency relief of duties or 
take any other measure necessary to respond to a emergency or other 
threat pursuant to sections 318, 322, or any other provisions of the 
Act. However, the fact that there are other available emergency powers 
does not vitiate the need for this rule. The Department has determined 
to promulgate this rule in order to prescribe the process by which the 
Department will exercise its authority under section 318(a) of the Act.
    One commenter argued that the rule does not go far enough and that 
U.S. law should be amended to establish a ``no or short supply'' 
exception to the application of antidumping and countervailing duties 
in the form of either a public-interest test or a lesser-duty rule. 
Another commenter expressed concern that the rule could lead to an 
unnecessary short-supply provision and create a loophole benefitting 
its Brazilian orange juice competitors. One commenter proposed that the 
Department clarify that the rule does not apply to Mexican cement.
    This rule serves the limited function of establishing procedures 
for importation of supplies for use in emergency relief work free of 
antidumping and countervailing duties, in the context of and related to 
an emergency declared by the President. The rule does not limit the 
definition of supplies for use in emergency relief work to products for 
which there is insufficient U.S. production. In other words, the rule 
is not a so-called ``short-supply'' provision. The rule also does not 
exempt specific products (such as orange juice or cement) from 
consideration as supplies for use in emergency relief work for the 
reason that what supplies might be needed for use in emergency relief 
work will depend on the circumstances of a specific declared emergency 
and the particular needs of persons affected by that emergency.

Section 358.102

    Section 358.102 sets forth the definition of terms that are used in 
Part 358. With respect to the definition of ``supplies for use in 
emergency relief work,'' some commenters proposed that emergency relief 
work be broadly defined and that the rule clarify that eligible 
supplies include, for example, supplies for repairs or reconstruction 
work made necessary by the emergency. Other commenters argued that the 
definition of ``supplies for use in emergency relief work'' is broader 
than the definition authorized by Congress. These commenters argued 
that section 318(a) of the Act limits supplies for use in emergency 
relief work to humanitarian goods provided on a short-term basis, 
specifically food, clothing, and medical and surgical supplies. The 
commenters proposed that the rule be redrafted to reflect this limited 
definition.
    The Department's proposed definition of ``supplies for use in 
emergency relief work'' was intended to reflect the statutory authority 
to permit the duty-free importation of supplies for use in emergency 
relief work. However, some commenters found the proposed definition too 
limited, while others found the proposed definition too broad. Given 
the mixed reaction to the proposed definition, the Department has 
modified the definition of ``supplies for use in emergency relief 
work.'' The definition will now track the language of section 318(a) of 
the Act. The Department does not agree with commenters' assertions that 
the statute ``limits'' supplies for use in emergency relief work to 
humanitarian goods provided on a short-term basis such as food, 
clothing, medical and surgical supplies. The statute also permits duty 
waiver for ``other supplies for use in emergency relief work.'' As a 
general proposition, identification of needed supplies will be 
dependent on the circumstances of an actual declared emergency. While 
clothing and medical supplies might be needed for emergency relief work 
in certain circumstances, there may be other circumstances where 
supplies related to repair or reconstruction work are equally or more 
needed.

[[Page 63232]]

Section 358.103

    Section 358.103 sets forth the procedures for importation of 
supplies for use in emergency relief work free of antidumping and 
countervailing duties.
    Where the President, acting under section 318 of the Act, 
authorizes the Secretary to permit the importation of supplies for use 
in emergency relief work, the Secretary will consider a request for 
importation free of antidumping and countervailing duties under the 
conditions set forth in paragraph (a). Paragraph (a)(1) requires that a 
request be in writing, identifies persons that may submit a request, 
indicates the number of copies required for filing, and states that a 
request must be filed with the Department's Central Records Unit. 
Paragraph (a)(2) identifies the information required to be provided in 
a request.
    Two commenters proposed that the rule set time limits for 
submission of waiver requests, e.g., within 60 days after the date of 
declaration of the emergency and for the entry of merchandise, e.g., 
within 60 days after the date the waiver request is granted. The 
Department has not adopted a time limit for submission of waiver 
requests as suggested by the commenters. After declaring an emergency, 
and acting under section 318 of the Act, the President can authorize 
the Secretary to permit importation of supplies for use in emergency 
relief work free of antidumping and countervailing duties. Opportunity 
to request, and the Secretary's determination to permit such 
importations are appropriate throughout the continuance of the declared 
emergency. A 60-day time limit on requests for importation of emergency 
relief supplies would frustrate the utility of the waiver mechanism by 
not allowing for differing circumstances or the duration of an actual 
emergency.
    The Department does, however, see merit in setting a deadline for 
entry of relief supplies once the Secretary has made a determination to 
permit such entry. A limited entry period is consistent with the entry-
specific nature of a determination by the Secretary to waive duties, as 
well as the temporary duration of a declared emergency. Therefore, with 
one modification, the Department has adopted the 60-day time frame 
proposed by the commenters. Specifically, we have modified the proposal 
to allow a flexible approach to specific situations in which entry of 
duty-waiver merchandise will not occur within the 60-day time frame. 
This might occur, for example, where three shipments of duty-waiver 
merchandise are scheduled to enter the United States over a three month 
period, i.e., one shipment per month. This flexible approach is 
reflected in our use of the word ``normally'' in new paragraph (c) of 
section 358.103, which provides that duty-waiver merchandise must enter 
the United States normally within 60 days after the date on which the 
Secretary notifies the person who submitted the request or the 
merchandise will be subject to antidumping and/or countervailing 
duties, as applicable.
    One commenter proposed that, given the changing needs and 
conditions during an emergency, the Department should include some 
flexibility in the information requirements set forth in paragraph 
(a)(2). The commenter also suggested that the Department should ensure 
that the paperwork required not frustrate the utility of this mechanism 
at a time of dire need. The Department acknowledges that changing needs 
and conditions during an emergency might affect a requester's ability 
to provide all the information required for a waiver request at the 
time the request is submitted. However, the Department will need to 
have sufficient information to make a decision on a waiver request. The 
Department does not consider that the information requirements set 
forth in paragraph (a)(2) are particularly onerous, but welcomes any 
comments on reporting burdens associated with the information required 
for a waiver request.
    Other commenters proposed additional information requirements such 
as specification of the intended emergency use, identification of the 
U.S. customer, identification of the emergency relief-related project, 
and/or designation of the geographical limits for use of the 
merchandise. Two commenters argued that price, included in the list of 
required information, is not an appropriate element of any analysis of 
potential waiver because any price effects resulting from the emergency 
would similarly affect both fairly and unfairly traded goods. One 
commenter suggested that required information include a demonstration 
that the merchandise for which duty-free importation is requested be in 
short supply.
    As discussed above, this rule is not a short supply provision, and 
duty waiver on emergency relief supplies is not dependent on whether 
there is insufficient U.S. production. For this reason, the Department 
has not adopted the suggestion that information required under 
paragraph (a)(2) include a demonstration that there is insufficient 
U.S. production of the merchandise for which duty-free importation is 
requested. The Department has adopted, however, the essence of certain 
other suggestions regarding required information. In particular, the 
Department believes that identification of the person for whose account 
the merchandise will be brought into the United States, as well as 
designation of the geographical location at which the merchandise will 
be used, are useful pieces of information. We have modified paragraph 
(a)(2) to reflect these additions. Paragraph (a)(2) already provides 
for identification of the use to be made of the merchandise and, for 
this reason, we have not adopted the suggestion to include 
identification of the emergency relief-related project. Moreover, the 
term ``emergency relief-related project'' proposed by the commenter 
implies a formal, government-sponsored or -countenanced emergency 
relief project, which is not a limitation prescribed in this rule or in 
the statute. We also have not adopted the suggestion that price be 
excluded from the list of required information. The commenters assume 
that analysis of price effects is a factor in waiver requests. No such 
assumption is warranted. Price information may be relevant in 
subsequent administrative or new shipper reviews, for example, for 
purposes of both checking the completeness of respondents' reporting 
and providing an indication as to whether the merchandise was donated 
or sold.
    Paragraph (b) provides that, if the Secretary determines to permit 
importation of particular merchandise free of antidumping and 
countervailing duties, the Secretary will notify the person who 
submitted the request and instruct CBP to allow entry of the 
merchandise without regard to antidumping and countervailing duties.
    One commenter proposed that the Secretary allow importation of 
merchandise free of antidumping and countervailing duties only where 
necessary to meet an important need in emergency relief efforts, to 
address short-term immediate humanitarian needs, where short-term need 
cannot adequately be met through fairly traded merchandise, and in 
circumstances not likely to have any significant impact on the 
effectiveness of existing antidumping and countervailing duty orders or 
result in injury to a domestic industry. Another commenter proposed 
that importation of merchandise free of antidumping and countervailing 
duties should only be allowed where fairly traded merchandise cannot 
meet the short-term need. Other commenters

[[Page 63233]]

proposed that the rule only allow for waiver of antidumping and 
countervailing duties on merchandise considered necessary for relief by 
the Federal Emergency Management Agency (``FEMA''). One commenter also 
suggested that the Department require that supplies for use in 
emergency relief work be donated, not sold.
    We have not adopted these suggestions. This rule establishes the 
procedures for importation of supplies for use in relief work free of 
antidumping and countervailing duties during a declared emergency as 
authorized by Congress and is intended to facilitate access to needed 
resources in the event of a natural disaster or other emergency. What 
supplies might be needed for use in emergency relief work will depend 
on the circumstances of a specific declared emergency and the 
particular needs of persons affected by that emergency. While a FEMA 
list of needed emergency supplies, if created, could be instructive, 
the Department believes that it is appropriate for the Secretary to 
have maximum flexibility to review waiver requests in the context of a 
specific emergency and to make waiver determinations on an emergency-
by-emergency basis. As discussed above, the Department does not believe 
that temporary limited waiver of antidumping and countervailing duties 
will exacerbate injury to the domestic industry. However, as set forth 
in new section 358.104, the Department will review the operation and 
impact of the waiver mechanism after five years. The Department also 
finds no reason to limit the definition of emergency relief supplies to 
only donated merchandise, as one commenter suggested, although the 
Secretary will consider whether the merchandise was donated or sold 
since that information is required to be included in a waiver request.
    Certain commenters suggested that there should be specific and/or 
short time limits on temporary waivers of antidumping and 
countervailing duties to prevent inappropriate long-term use of such 
waivers. Other commenters suggested that a waiver specify the allowable 
geographic limits for use of the imported merchandise.
    The Department agrees with these suggestions. To alleviate concerns 
about inappropriate long-term use of waivers, we have modified 
paragraph (b) to indicate that waiver of antidumping and countervailing 
duties on imports of merchandise for use in emergency relief work will 
be specific and limited to the merchandise explicitly identified in the 
waiver request. Pursuant to paragraph (a)(2), a waiver request must 
identify, inter alia, the quantity of the merchandise to be imported, 
the proposed date of entry, the destination of the merchandise, and the 
use to be made of the merchandise at the designated destination. In 
addition, as discussed above, we have added paragraph (c) to require 
that waiver merchandise enter the United States normally within 60 days 
after the date on which the Secretary grants a waiver request or such 
merchandise will be subject to antidumping and/or countervailing 
duties, as applicable.
    Certain commenters proposed that the Department provide notice to, 
and an opportunity for, interested parties to comment on requests 
before the Secretary makes a determination to permit importation of 
particular merchandise for use in emergency relief work.
    We have not adopted this proposal. The speed with which the 
Secretary may need to address requests for importation of emergency 
relief supplies will be dependent on the circumstances of an actual 
declared emergency. In certain situations, the Secretary may need to 
respond immediately and an opportunity for notice and comment could 
have a detrimental impact on persons in need of emergency relief 
supplies. The Department's regulations (19 CFR 351.104) already provide 
that the official record of each antidumping and countervailing duty 
proceeding will include material presented to the Secretary during the 
course of a proceeding, as well as determinations made by the 
Secretary, that pertain to the proceeding. As a result, requests for 
importation of emergency relief supplies and the Secretary's 
determination to permit importation, if any, will be included on the 
record of the relevant proceeding(s). In addition, we have added 
language to paragraph (b) stating that notification of a determination 
by the Secretary will be posted on our website.
    Two commenters proposed that the Department be required to inform 
Congress about any application of the rule. The Department agrees that 
it is appropriate to inform Congress that it is establishing procedures 
for importation of supplies for use in emergency relief work free of 
antidumping and countervailing duties, as authorized by section 318(a) 
of the Act, and it will provide notice of this rulemaking upon 
publication. No changes to the rule are necessary.
    Paragraph (d) indicates possible penalties where merchandise 
entered for use in emergency relief work is used in the United States 
for some other purpose. The merchandise may be subject to seizure or 
other penalty, including under section 592 of the Act (19 U.S.C. 1592). 
This paragraph had been numbered as paragraph (c) in the proposed rule.
    One commenter proposed that, given the confused and unpredictable 
circumstances of a declared emergency, there should be a good-faith 
exception when merchandise is diverted away from the purpose identified 
in the initial request. The commenter suggested that financial 
penalties be limited to instances of bad-faith misuse of the duty-
waiver mechanism. Other commenters proposed that there be stronger 
safeguards and/or oversight to ensure proper use of emergency supplies 
and/or to check on appropriate use after the fact. Several commenters 
suggested that importers should be required to file entry-specific 
certifications that the merchandise is for emergency relief. Some 
commenters proposed that the importer be subject to penalties for 
improper use of goods. Other commenters argued that the proposed rule 
does not include sufficient safeguards to prevent abuse by importers.
    The Department agrees with commenters that there is a need to 
ensure appropriate use of the duty-waiver mechanism and imported 
emergency relief supplies. For this reason, as set forth in paragraph 
(a)(2), a request for duty waiver must include, inter alia, a detailed 
description of the merchandise, state the quantity to be imported, 
identify a proposed date of entry, and indicate the destination of the 
merchandise. In response to comments, we also have added the 
requirements that the request identify the person for whose account the 
merchandise will be brought into the United States and the use to be 
made of the merchandise at the designated destination. As discussed 
above, the Secretary's determination to grant a duty-waiver request 
will be specific to the described merchandise and stated entry date, 
use, and destination. The Secretary's determination also will be made 
available in the public record of the relevant proceeding(s) and 
notification of the determination will appear on the Department's 
website. Any party with specific concerns about improper use of 
particular imports of emergency relief supplies should contact the 
Department about those specific concerns. Based on receipt of such 
comments and on its own authority, the Department may consider the need 
for penalties or other action if specific instances of misuse arise. 
Paragraph (d) provides maximum flexibility in this regard because it 
does

[[Page 63234]]

not limit the range of possible penalties for improper use.
    The proposed rule clarified that merchandise entered for use in 
emergency relief work is subject to Department reporting requirements 
in antidumping and countervailing duty administrative reviews, but that 
such merchandise will be excluded from the calculation of assessment 
and cash deposit rates. In the final rule, these two provisions are set 
forth in paragraphs (e) and (f)(1), respectively. In addition, in 
paragraph (e) we have added a reference to new shipper reviews to 
clarify that duty-waiver merchandise also is subject to Department 
reporting requirements in new shipper reviews.
    One commenter argued that subjecting merchandise entered for use in 
emergency relief work to Department reporting requirements in 
antidumping and countervailing duty reviews creates a burden of 
unnecessary reporting and recordkeeping in an emergency situation. The 
Department disagrees with the commenter's assertion. We expect that the 
data with respect to merchandise entered for use in emergency relief 
work already would be recorded in a producer's books as a matter of 
normal recordkeeping. With respect to duty-waiver merchandise, 
respondents would need to report only the data necessary to allow the 
Department to identify and account for the emergency relief 
transactions. In addition, the time period of the emergency and the 
period during which the relevant review (i.e., the review related to 
the period during which the duty-waiver merchandise was sold or donated 
in the United States) is conducted are not likely to be 
contemporaneous. Finally, the foreign producer responding to the 
Department's questionnaire in an administrative or new shipper review, 
and that producer's bookkeeping activities, are unlikely to have been 
directly affected by an emergency within the United States.
    Certain commenters suggested that the rule clarify that duty-waiver 
merchandise does not count towards ``commercial quantities'' 
requirements in certain types of antidumping and countervailing duty 
proceedings. The commenter also suggested that the rule clarify the 
effect on suspension agreements and the effect on yearly quotas. We 
agree that we should clarify the treatment of merchandise entered for 
use in emergency relief work in certain other types of antidumping and 
countervailing duty proceedings and circumstances. Therefore, we have 
added paragraph (f) to section 351.103 to provide such clarification.
    Paragraph (f)(1) clarifies that merchandise entered for use in 
emergency relief work will be excluded from the calculation of 
assessment and cash deposit rates in an administrative or new shipper 
review. Previously, this clarification was reflected in paragraph (d) 
of the proposed rule, although paragraph (f)(1) is modified to add a 
reference to new shipper reviews and a cross reference to the 
applicable statutory provision governing administrative and new shipper 
reviews. The remaining substance of paragraph (d) of the proposed rule 
is now reflected in paragraph (e) of the final rule, which provides 
that merchandise entered for use in emergency relief work is subject to 
Department reporting requirements in antidumping and countervailing 
duty administrative and new shipper reviews.
    Paragraph (f)(2) is new and clarifies that merchandise entered for 
use in emergency relief work will not count for purposes of any of the 
``commercial quantities'' requirements set forth in 19 CFR 351.222. 
Paragraph (f)(3) also is new and clarifies that such merchandise also 
will not count for purposes of the quantity allowed by, or revised 
price requirements established pursuant to, a suspension agreement 
under section 704 or section 734 of the Act.

Classification

E.O. 12866

    This 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 rule involves collection-of-information 
requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 
35. The information collection requirements in 19 CFR Part 358 are 
approved by OMB and assigned OMB control number 0625-0256. The public 
reporting burden for this collection of information is estimated at 10 
total burden hours. This time is an estimate of the time required to 
complete a waiver request, review instructions, search existing data 
sources, gather and maintain the data needed, and complete and review 
the collection of information.

E.O. 12612

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

Regulatory Flexibility Act

    The Chief Counsel for Regulation at the Department certified to the 
Chief Counsel for Advocacy, Small Business Administration that this 
rule would not have a significant economic impact on a substantial 
number of small entities. The factual basis of this certification was 
published in the proposed rule and is not repeated here. No comments 
were received on the economic impact of this rule. As a result, no 
Final Regulatory Flexibility Analysis was prepared.

List of Subjects in 19 CFR Part 358

    Administrative practice and procedure, Antidumping duties, Business 
and industry, Countervailing duties, Emergency powers, Reporting and 
recordkeeping requirements.

    Dated: October 20, 2006.
David M. Spooner,
Assistant Secretary for Import Administration.

0
For the reasons discussed in the preamble, the Department of Commerce 
adds 19 CFR Part 358 as follows:

PART 358--SUPPLIES FOR USE IN EMERGENCY RELIEF WORK

Sec.
358.101 Scope.
358.102 Definitions.
358.103 Importation of supplies.
358.104 Report.

    Authority: 19 U.S.C. 1318(a).


Sec.  358.101  Scope.

    This part sets forth the procedures for importation of supplies for 
use in emergency relief work free of antidumping and countervailing 
duties, as authorized under section 318(a) of the Act.


Sec.  358.102  Definitions.

    For purposes of this part:
    Act means the Tariff Act of 1930, as amended.
    CBP means the Bureau of Customs and Border Protection of the United 
States Department of Homeland Security.
    Department means the United States Department of Commerce.
    Order means an order issued by the Secretary under section 303, 
section 706, or section 736 of the Act.
    Secretary means the Secretary of Commerce or a designee.
    Supplies for use in emergency relief work means food, clothing, and 
medical, surgical, and other supplies for use in emergency relief work.

[[Page 63235]]

Sec.  358.103  Importation of supplies.

    (a) Where the President, acting under section 318 of the Act, 
authorizes the Secretary to permit the importation of supplies for use 
in emergency relief work free of antidumping and countervailing duties, 
the Secretary shall consider requests for such importation under the 
following conditions:
    (1) Before importation, a written request shall be submitted to the 
Secretary by the person in charge of sending the subject merchandise 
from the foreign country or by the person for whose account it will be 
brought into the United States. Three copies of the request should be 
submitted to the Secretary of Commerce, Attention: Import 
Administration, Central Records Unit, Room 1870, U.S. Department of 
Commerce, 1401 Constitution Avenue, NW., Washington, DC 20230.
    (2) The request shall state the Department antidumping and/or 
countervailing duty order case number, the producer of the merchandise, 
a detailed description of the merchandise, the current HTS number, the 
price in the United States, the quantity, the proposed date of entry, 
the proposed port of entry, the mode of transport, the person for whose 
account the merchandise will be brought into the United States, the 
destination, the use to be made of the merchandise at the designated 
destination, and any other information the person would like the 
Secretary to consider.
    (b) If the Secretary determines to permit duty-free importation of 
particular merchandise for use in emergency relief work, the Secretary 
will notify the person who submitted the request, instruct CBP to allow 
entry of the merchandise identified in the request submitted under 
paragraph (a) without regard to antidumping and countervailing duties, 
and post notification of the determination on the Department's website.
    (c) Any subject merchandise entered under paragraph (b) of this 
section must enter the United States normally within 60 days after the 
date on which the Secretary notifies the person who submitted the 
request or the merchandise will be subject to antidumping and/or 
countervailing duties, as applicable.
    (d) Any subject merchandise entered under paragraph (b) of this 
section which is used in the United States other than for a purpose 
contemplated for it by section 318(a) of the Act may be subject to 
seizure or other penalty, including under section 592 of the Act.
    (e) Any subject merchandise entered under paragraph (b) of this 
section is subject to the Department's reporting requirements in its 
conduct of an antidumping and/or countervailing duty administrative or 
new shipper review, as applicable.
    (f) Any subject merchandise entered under paragraph (b) of this 
section will be excluded from:
    (1) The calculation of assessment and cash deposit rates in an 
administrative or new shipper review under section 751(a) of the Act;
    (2) ``Commercial quantities'' under 19 CFR 351.222; and
    (3) The quantity allowed by, or revised price requirements 
established pursuant to, a suspension agreement under section 704 or 
section 734 of the Act, as applicable.


Sec.  358.104  Report.

    The Secretary will review and issue a report on the first five 
years of the operation of Part 358. The report will consider the impact 
of determinations to permit importation of particular merchandise for 
use in emergency relief work under this Part, on U.S. parties injured 
by dumped and/or subsidized imports.

[FR Doc. E6-18193 Filed 10-27-06; 8:45 am]
BILLING CODE 3510-DS-S