Withdrawal of the Regulatory Provisions Governing Targeted Dumping in Antidumping Duty Investigations, 74930-74932 [E8-29225]

Download as PDF dwashington3 on PROD1PC60 with RULES 74930 Federal Register / Vol. 73, No. 238 / Wednesday, December 10, 2008 / Rules and Regulations Charles City, IA, Northeast Iowa Rgnl, RNAV (GPS) RWY 30, Orig Greensboro, NC, Piedmont Triad Intl, Takeoff Minimums and Obstacle DP, Orig Roxboro, NC, Person County, RNAV (GPS) RWY 24, Orig Washington, NC, Warren Field, RNAV (GPS) RWY 5, Amdt 1 Washington, NC, Warren Field, RNAV (GPS) RWY 17, Amdt 1 Washington, NC, Warren Field, RNAV (GPS) RWY 23, Amdt 1 Washington, NC, Warren Field, RNAV (GPS) RWY 35, Amdt 1 Broken Bow, NE, Broken Bow Muni, NDB RWY 14, Amdt 8, CANCELLED Batavia, NY, Genesee County, ILS OR LOC RWY 28, Amdt 6 Batavia, NY, Genesee County, RNAV (GPS) RWY 28, Orig Batavia, NY, Genesee County, VOR/DME–A, Amdt 5B Cleveland, OH, Cleveland-Hopkins Intl, ILS PRM RWY 24R (Simultaneous Close Parallel), Orig Cleveland, OH, Cleveland-Hopkins Intl, LDA/DME RWY 24L, Amdt 1 Cleveland, OH, Cleveland-Hopkins Intl, LDA PRM RWY 6R (Simultaneous Close Parallel), Amdt 1 Cleveland, OH, Cleveland-Hopkins Intl, LDA PRM RWY 24L (Simultaneous Close Parallel), Orig Norman, OK, University of Oklahoma Westheimer, RNAV (GPS) RWY 3, Amdt 1 Oklahoma City, OK, Will Rogers World, RNAV (GPS) RWY 17R, Amdt 2A Sparta, TN, Upper Cumberland Rgnl, RNAV (GPS) RWY 4, Orig Sparta, TN, Upper Cumberland Rgnl, RNAV (GPS) RWY 22, Orig Sparta, TN, Upper Cumberland Rgnl, Takeoff Minimums and Obstacle DP, Orig Abilene, TX, Abilene Rgnl, RNAV (GPS) RWY 22, Orig Abilene, TX, Abilene Rgnl, VOR RWY 22, Amdt 4 Childress, TX, Childress Muni, VOR RWY 35, Amdt 10 Midland, TX, Midland Intl, RNAV (GPS) RWY 10, Amdt 1 Midland, TX, Midland Intl, Takeoff Minimums and Obstacle DP, Orig Port Aransas, TX, Mustang Beach, Takeoff Minimums and Obstacle DP, Amdt 1 Spearman, TX, Spearman Muni, RNAV (GPS) RWY 2, Orig Spearman, TX, Spearman Muni, RNAV (GPS) RWY 20, Orig Spearman, TX, Spearman Muni, Takeoff Minimums and Obstacle DP, Orig Spearman, TX, Spearman Muni, VOR/DME RWY 2, Amdt 1 Victoria, TX, Victoria Rgnl, ILS OR LOC RWY 12L, Amdt 10 Victoria, TX, Victoria Rgnl, RNAV (GPS) RWY 12L, Orig Victoria, TX, Victoria Rgnl, RNAV (GPS) RWY 30R, Orig Victoria, TX, Victoria Rgnl, VOR RWY 12L, Amdt 16 Victoria, TX, Victoria Rgnl, VOR/DME RWY 30R, Amdt 6 Tangier, VA, Tangier Island, RNAV (GPS)–B, Orig Tangier, VA, Tangier Island, Takeoff Minimums and Obstacle DP, Orig VerDate Aug<31>2005 14:03 Dec 09, 2008 Jkt 217001 Tangier, VA, Tangier Island, VOR/DME–A, Orig Tangier, VA, Tangier Island, VOR/DME OR GPS RWY 2, Orig-C, CANCELLED [FR Doc. E8–29006 Filed 12–9–08; 8:45 am] BILLING CODE 4910–13–P DEPARTMENT OF COMMERCE International Trade Administration 19 CFR Part 351 RIN 0625–AA79 Withdrawal of the Regulatory Provisions Governing Targeted Dumping in Antidumping Duty Investigations AGENCY: International Trade Administration, Import Administration. ACTION: Interim final rule. SUMMARY: Import Administration issues this interim final rule for the purpose of withdrawing the regulatory provisions governing the targeted dumping analysis in antidumping duty investigations. DATES: This interim final rule is effective for all antidumping duty investigations initiated on or after December 10, 2008. Although the amendment made by this Interim Final Rule is effective on December 10, 2008, Import Administration seeks public comments. To be assured of consideration, written comments must be received not later than January 9, 2009. ADDRESSES: Comments on this Interim Final Rule must be sent to David M. Spooner, Assistant Secretary for Import Administration, Central Records Unit, Room 1870, U.S. Department of Commerce, Pennsylvania Avenue. FOR FURTHER INFORMATION CONTACT: Michael Rill, telephone 202–482–3058. SUPPLEMENTARY INFORMATION: The Uruguay Round Agreements Act (‘‘URAA’’), enacted into law in 1994, changed the methodology used to determine whether a company is selling foreign merchandise into the United States at dumped prices in antidumping investigations. Prior to the URAA, the Department usually compared the sixmonth period of investigation average normal value to individual U.S. transaction prices to determine the margin of dumping (known as the average-to-transaction method). The URAA, however, directed the Department normally to calculate dumping margins by one of two methods: (1) By comparing weightedaverage normal values to the weighted average of the export prices for PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 comparable merchandise (known as the average-to-average method); or (2) by comparing the normal values of individual transactions to the export prices of individual transactions for comparable merchandise (known as the transaction-to-transaction method). See 19 U.S.C. 1677f–1(d)(1)(A). Congress, however, was aware that these methodologies could mask certain types of dumping. ‘‘In such situations, the exporter may sell at a dumped price to particular customers or regions, while selling at higher prices to other customers or regions.’’ Uruguay Round Agreements Act, H.R. 103–826, Oct. 3, 1994, p. 98. To address this possibility, Congress enacted a statutory provision that allows an exception to the above two comparison methodologies. Specifically, when the Department finds that there is a pattern of export prices for comparable merchandise that differ significantly among purchasers, regions, or periods of time, and where such differences cannot be taken into account using one of the preferred methods referred to above, the Department could compare the weighted average of the normal values to the export price of individual transactions for comparable merchandise (i.e., average-to-transaction comparisons). See 19 U.S.C. 1677f– 1(d)(1)(B). Sections 19 CFR 351.414(f) and (g) of the Department’s regulations establish certain criteria for analyzing allegations and making targeted dumping determinations in antidumping duty investigations. Section 19 CFR 351.301(d)(5) provides that an allegation of targeted dumping is due no later than 30 days before the scheduled date of the preliminary determination. The Department promulgated these provisions (i.e., 19 CFR 351.414(f), (g), and 351.301(d)(5)) on May 19, 1997 (Antidumping Duties; Countervailing Duties; Final Rule, 62 FR 27296, 27374– 76 (May 19, 1997)). At that time, the Department had never performed a targeted dumping analysis. Therefore, the provisions were promulgated without the benefit of any departmental experience on the issue of targeted dumping. Until recently, there have been very few allegations or findings of targeted dumping. This situation has caused the Department to question whether, in the absence of any practical experience, it established an appropriate balance of interests in the provisions. The Department believes that withdrawal of the provisions will provide the agency with an opportunity to analyze extensively the concept of targeted dumping and develop a meaningful practice in this area as it E:\FR\FM\10DER1.SGM 10DER1 Federal Register / Vol. 73, No. 238 / Wednesday, December 10, 2008 / Rules and Regulations gains experience in evaluating such allegations. The Department may have established thresholds or other criteria that have prevented the use of this comparison methodology to unmask dumping, contrary to the Congressional intent. In that case, these provisions would act to deny relief to domestic industries suffering material injury from unfairly traded imports. Accordingly, immediate revocation of the provisions will facilitate the proper and efficient operation of the antidumping law. The Department believes the withdrawal of this rule is not significant. Withdrawal will allow the Department to exercise the discretion intended by the statute and, thereby, develop a practice that will allow interested parties to pursue all statutory avenues of relief in this area. The Department is not replacing these provisions with new provisions. Instead, the Department is returning to a case-by-case adjudication, until additional experience allows the Department to gain a greater understanding of the issue. Parties are invited to comment on the Department’s withdrawal of the regulatory provisions governing targeted dumping in antidumping duty investigations. Parties should submit to the address under the ADDRESSES heading a signed original and two copies of each set of comments including reasons for any recommendation, along with a cover letter identifying the commentator’s name and address. To be assured of consideration, written comments must be received not later than January 9, 2009. Classification Executive Order 12866 It has been determined that this interim final rule is not significant for purposes of Executive Order 12866 of September 30, 1993 (‘‘Regulatory Planning and Review’’) (58 FR 51735 (October 4, 1993)). Paperwork Reduction Act dwashington3 on PROD1PC60 with RULES This interim final rule contains no new collection of information subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35. Executive Order 13132 This rule does not contain policies with federalism implications as that term is defined in section 1(a) of Executive Order 13132, dated August 4, 1999 (64 FR 43255 (August 10, 1999)). VerDate Aug<31>2005 14:03 Dec 09, 2008 Jkt 217001 Administrative Procedure Act The Assistant Secretary for Import Administration finds good cause to waive the requirement to provide prior notice and opportunity for public comment, pursuant to the authority set forth at 5 U.S.C. § 553(b)(B), as such requirement is impracticable and contrary to the public interest. Courts have determined that notice and comment is impracticable when ‘‘the agency could both follow section 553 and execute its statutory duties.’’ Lavesque v. Block, 723 F.2d 175, 184 (5th Cir. 1980). It went further to clarify that the Administrative Procedure Act good cause waiver authorizes departures from the requirements ‘‘only when compliance would interfere with the agency’s ability to carry out its mission.’’ Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1485 (9th Cir. 1992). Here, under the Tariff Act of 1930, as amended, the Department may employ the average-to-transaction comparison method in an investigation if: (i) There is a pattern of export prices (or constructed export prices) for comparable merchandise that differ significantly among purchasers, regions, or periods of time, and (ii) the agency explains why such differences cannot be taken into account using one of the preferred methods. See 19 U.S.C. 1677f– 1(d)(1)(B)(i) and (ii). Sections 19 CFR 351.414(f) and (g) of the Department’s regulations establish certain criteria for analyzing targeted dumping allegations in antidumping investigations. These provisions were intended to clarify when the Department would use the average-to-transaction comparison method in antidumping duty investigations. As the provisions were promulgated without the benefit of any experience on the issue of targeted dumping, the Department may have established thresholds or other criteria that have prevented the use of this comparison methodology to unmask dumping. Likewise, 19 CFR 351.301(d)(5), the provision that establishes the deadline for submitting allegations, was promulgated without the benefit of any experience on the issue of targeted dumping. Consequentially, the Department may have established an impractical deadline for submitting such allegations. Given the above, sections 19 CFR 351.414(f), (g), and 351.301(d)(5) would act to deny relief to domestic industries suffering material injury from unfairly traded imports. This effect is contrary to the Department’s intention in promulgating the provisions, and inconsistent with the Department’s PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 74931 statutory mandate to provide relief to domestic industries materially injured by unfairly traded imports. Because the provisions are applicable to ongoing antidumping investigations, and because the application of the provisions can act to deny relief to domestic industries suffering material injury from unfairly traded imports, immediate revocation is necessary to ensure the proper and efficient operation of the antidumping law and to provide the relief intended by Congress. The Assistant Secretary for Import Administration also finds good cause to waive the 30-day delay in effectiveness, pursuant to the authority set forth at 5 U.S.C. 553(e), for the reasons given above. Significantly, the Department may employ the average-to-transaction comparison method in an antidumping duty investigation if certain conditions are met. See 19 U.S.C. 1677f– 1(d)(1)(B)(i) and (ii). Sections 19 CFR 351.414(f) and (g) of the Department’s regulations may have established thresholds or other criteria that have prevented the use of this comparison methodology to unmask dumping, contrary to the Congressional intent. Likewise, the Department may have established an impractical deadline when it promulgated section 351.301(d)(5). Given that the provisions are applicable to ongoing antidumping investigations, and because the application of the provisions can act to deny relief to domestic industries suffering material injury from unfairly trade imports, immediate revocation is necessary to ensure the proper and efficient operation of the antidumping law and to provide the relief intended by Congress. Regulatory Flexibility Act Because a notice and an opportunity for public comment are not required to be given for this rule under the Administrative Procedure Act or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable. Therefore, a regulatory flexibility analysis has not been prepared. List of Subjects in 19 CFR Part 351 Administrative practice and procedure, Antidumping duties, Business and industry, Cheese, Confidential business information, Investigations, Reporting and recordkeeping requirements. For the reasons stated above, amend 19 CFR part 351 as follows: ■ E:\FR\FM\10DER1.SGM 10DER1 74932 Federal Register / Vol. 73, No. 238 / Wednesday, December 10, 2008 / Rules and Regulations PART 351—ANTIDUMPING AND COUNTERVAILING DUTIES 1. The authority citation for part 351 continues to read as follows: ■ Authority: 5 U.S.C. 301; 19 U.S.C. 1202 note; 19 U.S.C. 1303 note; 19 U.S.C. 1671 et seq.; and 19 U.S.C. 3538. § 351.301. [Amended] 2. Amend § 351.301 by removing and reserving paragraph (d)(5). ■ § 351.414 [Amended] 3. Amend § 351.414 by removing and reserving paragraphs (f) and (g). ■ Dated: November 24, 2008. David M. Spooner, Assistant Secretary for Import Administration. [FR Doc. E8–29225 Filed 12–9–08; 8:45 am] BILLING CODE 3510–DS–P DEPARTMENT OF JUSTICE 28 CFR Part 28 RIN 1105–AB09; 1105–AB10; 1105–AB24 [OAG Docket Nos. 108, 109, 119; AG Order No. 3023–2008] DNA-Sample Collection and Biological Evidence Preservation in the Federal Jurisdiction dwashington3 on PROD1PC60 with RULES AGENCY: Department of Justice. ACTION: Final rule. SUMMARY: The Department of Justice by this publication is amending regulations relating to DNA-sample collection in the federal jurisdiction. This rule generally directs federal agencies to collect DNA samples from individuals who are arrested, facing charges, or convicted, and from non-United States persons who are detained under the authority of the United States, subject to certain limitations and exceptions. By this rule, the Department is also finalizing, without change, two related interim rules concerning the scope of qualifying federal offenses for purposes of DNA-sample collection and a requirement to preserve biological evidence in federal criminal cases in which defendants are under sentences of imprisonment. DATES: Effective Date: This rule is effective January 9, 2009. FOR FURTHER INFORMATION CONTACT: David J. Karp, Senior Counsel, Office of Legal Policy, Main Justice Building, 950 Pennsylvania Ave., NW., Washington, DC 20530. Telephone: (202) 514–3273. SUPPLEMENTARY INFORMATION: This final rule finalizes a proposed rule, DNA-Sample Collection Under the VerDate Aug<31>2005 14:03 Dec 09, 2008 Jkt 217001 DNA Fingerprint Act of 2005 and the Adam Walsh Child Protection and Safety Act of 2006 (OAG 119; RIN 1105AB24) (published April 18, 2008, at 73 FR 21083), which was designed to implement amendments made by section 1004 of the DNA Fingerprint Act of 2005, Public Law 109–162, and section 155 of the Adam Walsh Child Protection and Safety Act of 2006, Public Law 109–248, to section 3 of the DNA Analysis Backlog Elimination Act of 2000, Public Law 106–546. These regulatory provisions direct agencies of the United States that arrest or detain individuals, or that supervise individuals facing charges, to collect DNA samples from individuals who are arrested, facing charges, or convicted, and from non-United States persons who are detained under the authority of the United States. Unless otherwise directed by the Attorney General, the collection of DNA samples may be limited to individuals from whom an agency collects fingerprints. The Attorney General also may approve other limitations or exceptions. Agencies collecting DNA samples are directed to furnish the samples to the Federal Bureau of Investigation (‘‘FBI’’), or to other agencies or entities as authorized by the Attorney General, for purposes of analysis and entry into the Combined DNA Index System. The final rule also finalizes two interim rules. The first interim rule, DNA Sample Collection From Federal Offenders Under the Justice for All Act of 2004 (OAG 108; RIN 1105-AB09) (published on January 31, 2005, at 70 FR 4763), implemented section 203(b) of the Justice for All Act of 2004, Public Law 108–405. That statutory provision expanded the class of offenses constituting qualifying federal offenses for purposes of DNA-sample collection to include all felonies (as well as certain misdemeanors), thereby permitting the collection of DNA samples from all convicted federal felons. The second interim rule, Preservation of Biological Evidence Under 18 U.S.C. 3600A (OAG 109; RIN 1105-AB10) (published on April 28, 2005 at 70 FR 21951), implemented 18 U.S.C. 3600A. That statute requires the government to preserve biological evidence in federal criminal cases in which defendants are under sentences of imprisonment, subject to certain limitations and exceptions. Subsection (e) of the statute requires the Attorney General to promulgate regulations to implement and enforce the statute. The regulations issued for that purpose, which are finalized by this final rule, explain and interpret the evidence preservation requirement of 18 U.S.C. 3600A, and PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 include provisions concerning sanctions for violations of that requirement. Background All 50 States authorize the collection and analysis of DNA samples from convicted state offenders, and enter resulting DNA profiles into the Combined DNA Index System (‘‘CODIS’’), which the FBI has established pursuant to 42 U.S.C. 14132. In addition to collecting DNA samples from convicted state offenders, several states authorize the collection of DNA samples from individuals they arrest. This final rule addresses corresponding requirements and practices in the federal jurisdiction. The DNA Analysis Backlog Elimination Act of 2000 (the ‘‘Act’’) initially authorized DNA-sample collection by federal agencies only from persons convicted of certain ‘‘qualifying’’ federal, military, and District of Columbia offenses. Public Law 106–546 (2000). The Act also addressed the responsibility of the Federal Bureau of Prisons (‘‘BOP’’) and federal probation offices to collect DNA samples from convicted offenders in their custody or under their supervision, and the responsibility of the FBI to analyze and index DNA samples. On June 28, 2001, the Department of Justice published an interim rule, Regulations Under the DNA Analysis Backlog Elimination Act of 2000 (OAG 101I; RIN 1105–AA78), to implement these provisions. 66 FR 34363. The rule, in part, specified the qualifying federal offenses for which DNA samples could be collected and addressed responsibilities of BOP and the FBI under the Act. After publication of the June 2001 interim rule, Congress enacted the USA PATRIOT Act, Public Law 107–56. Section 503 of that Act added three additional categories of qualifying federal offenses for purposes of DNAsample collection: (1) Any offense listed in section 2332b(g)(5)(B) of title 18, United States Code; (2) any crime of violence (as defined in section 16 of title 18, United States Code); and (3) any attempt or conspiracy to commit any of the above offenses. The Department of Justice published a proposed rule, DNA Sampling of Federal Offenders Under the USA PATRIOT ACT of 2001 (OAG 105; RIN 1105–AA78) on March 11, 2003, to implement this expanded DNAsample collection authority. 68 FR 11481. On December 29, 2003, the Department published a final rule, Regulations Under the DNA Analysis Backlog Elimination Act of 2000 (OAG 101; RIN 1105-AA78), implementing this authority. 68 FR 74855. E:\FR\FM\10DER1.SGM 10DER1

Agencies

[Federal Register Volume 73, Number 238 (Wednesday, December 10, 2008)]
[Rules and Regulations]
[Pages 74930-74932]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-29225]


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DEPARTMENT OF COMMERCE

International Trade Administration

19 CFR Part 351

RIN 0625-AA79


Withdrawal of the Regulatory Provisions Governing Targeted 
Dumping in Antidumping Duty Investigations

AGENCY: International Trade Administration, Import Administration.

ACTION: Interim final rule.

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

SUMMARY: Import Administration issues this interim final rule for the 
purpose of withdrawing the regulatory provisions governing the targeted 
dumping analysis in antidumping duty investigations.

DATES: This interim final rule is effective for all antidumping duty 
investigations initiated on or after December 10, 2008. Although the 
amendment made by this Interim Final Rule is effective on December 10, 
2008, Import Administration seeks public comments. To be assured of 
consideration, written comments must be received not later than January 
9, 2009.

ADDRESSES: Comments on this Interim Final Rule must be sent to David M. 
Spooner, Assistant Secretary for Import Administration, Central Records 
Unit, Room 1870, U.S. Department of Commerce, Pennsylvania Avenue.

FOR FURTHER INFORMATION CONTACT: Michael Rill, telephone 202-482-3058.

SUPPLEMENTARY INFORMATION: The Uruguay Round Agreements Act (``URAA''), 
enacted into law in 1994, changed the methodology used to determine 
whether a company is selling foreign merchandise into the United States 
at dumped prices in antidumping investigations. Prior to the URAA, the 
Department usually compared the six-month period of investigation 
average normal value to individual U.S. transaction prices to determine 
the margin of dumping (known as the average-to-transaction method). The 
URAA, however, directed the Department normally to calculate dumping 
margins by one of two methods: (1) By comparing weighted-average normal 
values to the weighted average of the export prices for comparable 
merchandise (known as the average-to-average method); or (2) by 
comparing the normal values of individual transactions to the export 
prices of individual transactions for comparable merchandise (known as 
the transaction-to-transaction method). See 19 U.S.C. 1677f-1(d)(1)(A). 
Congress, however, was aware that these methodologies could mask 
certain types of dumping. ``In such situations, the exporter may sell 
at a dumped price to particular customers or regions, while selling at 
higher prices to other customers or regions.'' Uruguay Round Agreements 
Act, H.R. 103-826, Oct. 3, 1994, p. 98.
    To address this possibility, Congress enacted a statutory provision 
that allows an exception to the above two comparison methodologies. 
Specifically, when the Department finds that there is a pattern of 
export prices for comparable merchandise that differ significantly 
among purchasers, regions, or periods of time, and where such 
differences cannot be taken into account using one of the preferred 
methods referred to above, the Department could compare the weighted 
average of the normal values to the export price of individual 
transactions for comparable merchandise (i.e., average-to-transaction 
comparisons). See 19 U.S.C. 1677f-1(d)(1)(B).
    Sections 19 CFR 351.414(f) and (g) of the Department's regulations 
establish certain criteria for analyzing allegations and making 
targeted dumping determinations in antidumping duty investigations. 
Section 19 CFR 351.301(d)(5) provides that an allegation of targeted 
dumping is due no later than 30 days before the scheduled date of the 
preliminary determination. The Department promulgated these provisions 
(i.e., 19 CFR 351.414(f), (g), and 351.301(d)(5)) on May 19, 1997 
(Antidumping Duties; Countervailing Duties; Final Rule, 62 FR 27296, 
27374-76 (May 19, 1997)). At that time, the Department had never 
performed a targeted dumping analysis. Therefore, the provisions were 
promulgated without the benefit of any departmental experience on the 
issue of targeted dumping. Until recently, there have been very few 
allegations or findings of targeted dumping. This situation has caused 
the Department to question whether, in the absence of any practical 
experience, it established an appropriate balance of interests in the 
provisions. The Department believes that withdrawal of the provisions 
will provide the agency with an opportunity to analyze extensively the 
concept of targeted dumping and develop a meaningful practice in this 
area as it

[[Page 74931]]

gains experience in evaluating such allegations.
    The Department may have established thresholds or other criteria 
that have prevented the use of this comparison methodology to unmask 
dumping, contrary to the Congressional intent. In that case, these 
provisions would act to deny relief to domestic industries suffering 
material injury from unfairly traded imports. Accordingly, immediate 
revocation of the provisions will facilitate the proper and efficient 
operation of the antidumping law.
    The Department believes the withdrawal of this rule is not 
significant. Withdrawal will allow the Department to exercise the 
discretion intended by the statute and, thereby, develop a practice 
that will allow interested parties to pursue all statutory avenues of 
relief in this area.
    The Department is not replacing these provisions with new 
provisions. Instead, the Department is returning to a case-by-case 
adjudication, until additional experience allows the Department to gain 
a greater understanding of the issue.
    Parties are invited to comment on the Department's withdrawal of 
the regulatory provisions governing targeted dumping in antidumping 
duty investigations. Parties should submit to the address under the 
ADDRESSES heading a signed original and two copies of each set of 
comments including reasons for any recommendation, along with a cover 
letter identifying the commentator's name and address. To be assured of 
consideration, written comments must be received not later than January 
9, 2009.

Classification

Executive Order 12866

    It has been determined that this interim final rule is not 
significant for purposes of Executive Order 12866 of September 30, 1993 
(``Regulatory Planning and Review'') (58 FR 51735 (October 4, 1993)).

Paperwork Reduction Act

    This interim final rule contains no new collection of information 
subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.

Executive Order 13132

    This rule does not contain policies with federalism implications as 
that term is defined in section 1(a) of Executive Order 13132, dated 
August 4, 1999 (64 FR 43255 (August 10, 1999)).

Administrative Procedure Act

    The Assistant Secretary for Import Administration finds good cause 
to waive the requirement to provide prior notice and opportunity for 
public comment, pursuant to the authority set forth at 5 U.S.C. Sec.  
553(b)(B), as such requirement is impracticable and contrary to the 
public interest. Courts have determined that notice and comment is 
impracticable when ``the agency could both follow section 553 and 
execute its statutory duties.'' Lavesque v. Block, 723 F.2d 175, 184 
(5th Cir. 1980). It went further to clarify that the Administrative 
Procedure Act good cause waiver authorizes departures from the 
requirements ``only when compliance would interfere with the agency's 
ability to carry out its mission.'' Riverbend Farms, Inc. v. Madigan, 
958 F.2d 1479, 1485 (9th Cir. 1992).
    Here, under the Tariff Act of 1930, as amended, the Department may 
employ the average-to-transaction comparison method in an investigation 
if: (i) There is a pattern of export prices (or constructed export 
prices) for comparable merchandise that differ significantly among 
purchasers, regions, or periods of time, and (ii) the agency explains 
why such differences cannot be taken into account using one of the 
preferred methods. See 19 U.S.C. 1677f-1(d)(1)(B)(i) and (ii). Sections 
19 CFR 351.414(f) and (g) of the Department's regulations establish 
certain criteria for analyzing targeted dumping allegations in 
antidumping investigations. These provisions were intended to clarify 
when the Department would use the average-to-transaction comparison 
method in antidumping duty investigations. As the provisions were 
promulgated without the benefit of any experience on the issue of 
targeted dumping, the Department may have established thresholds or 
other criteria that have prevented the use of this comparison 
methodology to unmask dumping. Likewise, 19 CFR 351.301(d)(5), the 
provision that establishes the deadline for submitting allegations, was 
promulgated without the benefit of any experience on the issue of 
targeted dumping. Consequentially, the Department may have established 
an impractical deadline for submitting such allegations. Given the 
above, sections 19 CFR 351.414(f), (g), and 351.301(d)(5) would act to 
deny relief to domestic industries suffering material injury from 
unfairly traded imports. This effect is contrary to the Department's 
intention in promulgating the provisions, and inconsistent with the 
Department's statutory mandate to provide relief to domestic industries 
materially injured by unfairly traded imports. Because the provisions 
are applicable to ongoing antidumping investigations, and because the 
application of the provisions can act to deny relief to domestic 
industries suffering material injury from unfairly traded imports, 
immediate revocation is necessary to ensure the proper and efficient 
operation of the antidumping law and to provide the relief intended by 
Congress.
    The Assistant Secretary for Import Administration also finds good 
cause to waive the 30-day delay in effectiveness, pursuant to the 
authority set forth at 5 U.S.C. 553(e), for the reasons given above. 
Significantly, the Department may employ the average-to-transaction 
comparison method in an antidumping duty investigation if certain 
conditions are met. See 19 U.S.C. 1677f-1(d)(1)(B)(i) and (ii). 
Sections 19 CFR 351.414(f) and (g) of the Department's regulations may 
have established thresholds or other criteria that have prevented the 
use of this comparison methodology to unmask dumping, contrary to the 
Congressional intent. Likewise, the Department may have established an 
impractical deadline when it promulgated section 351.301(d)(5). Given 
that the provisions are applicable to ongoing antidumping 
investigations, and because the application of the provisions can act 
to deny relief to domestic industries suffering material injury from 
unfairly trade imports, immediate revocation is necessary to ensure the 
proper and efficient operation of the antidumping law and to provide 
the relief intended by Congress.

Regulatory Flexibility Act

    Because a notice and an opportunity for public comment are not 
required to be given for this rule under the Administrative Procedure 
Act or by any other law, the analytical requirements of the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.) are not applicable. Therefore, a 
regulatory flexibility analysis has not been prepared.

List of Subjects in 19 CFR Part 351

    Administrative practice and procedure, Antidumping duties, Business 
and industry, Cheese, Confidential business information, 
Investigations, Reporting and recordkeeping requirements.

0
For the reasons stated above, amend 19 CFR part 351 as follows:

[[Page 74932]]

PART 351--ANTIDUMPING AND COUNTERVAILING DUTIES

0
1. The authority citation for part 351 continues to read as follows:

    Authority: 5 U.S.C. 301; 19 U.S.C. 1202 note; 19 U.S.C. 1303 
note; 19 U.S.C. 1671 et seq.; and 19 U.S.C. 3538.


Sec.  351.301.  [Amended]

0
2. Amend Sec.  351.301 by removing and reserving paragraph (d)(5).


Sec.  351.414  [Amended]

0
3. Amend Sec.  351.414 by removing and reserving paragraphs (f) and 
(g).

    Dated: November 24, 2008.
David M. Spooner,
Assistant Secretary for Import Administration.
 [FR Doc. E8-29225 Filed 12-9-08; 8:45 am]
BILLING CODE 3510-DS-P