Proposed Methodology for Implementation of Section 772(c)(2)(B) of the Tariff Act of 1930, as Amended, In Certain Non-Market Economy Antidumping Proceedings; Request for Comment, 4866-4867 [2011-1793]
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4866
Federal Register / Vol. 76, No. 18 / Thursday, January 27, 2011 / Notices
merchandise subject to the order is
currently classified in the Harmonized
Tariff Schedule of the United States
(‘‘HTSUS’’) at subheading 3912.31.00.1
This tariff classification is provided for
convenience and Customs purposes;
however, the written description of the
scope of the order is dispositive.
Final Results of Review
International Trade Administration
Proposed Methodology for
Implementation of Section 772(c)(2)(B)
of the Tariff Act of 1930, as Amended,
In Certain Non-Market Economy
Antidumping Proceedings; Request for
Comment
Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce
(the ‘‘Department’’) seeks public
comment on its proposed
methodological change to reduce the
export price or constructed export price
in certain non-market economy (‘‘NME’’)
antidumping proceedings by the amount
Weightedof an export tax, duty, or other charge,
average
Manufacturer/producer/exporter
pursuant to section 772(c)(2)(B) of the
margin
percentage Tariff Act of 1930, as amended.
DATES: To be assured of consideration,
Quimica Amtex .........................
12.61 comments must be received no later
All Others ..................................
12.61 than February 28, 2011.
FOR FURTHER INFORMATION CONTACT:
In accordance with section 752(c)(3)
Albert Hsu, Senior Economist, Office of
Policy, Import Administration, U.S.
of the Act, we will notify the
Department of Commerce, 14th Street
International Trade Commission of the
and Constitution Avenue, NW.,
final results of this full sunset review.
Washington, DC 20230; telephone: (202)
This notice also serves as the only
482–4491.
reminder to parties subject to
SUPPLEMENTARY INFORMATION:
administrative protective orders (‘‘APO’’)
of their responsibility concerning the
Background
return or destruction of proprietary
Pursuant to section 772(c)(2)(B) of the
information disclosed under APO in
Tariff Act of 1930, as amended (the
accordance with section 351.305 of the
‘‘Act’’), the Department is instructed to
Department’s regulations. Timely
reduce the export price or constructed
notification of the return or destruction
export price used in the dumping
of APO materials or conversion to
margin calculation by ‘‘the amount, if
judicial protective order is hereby
included in such price, of any export
requested. Failure to comply with the
tax, duty, or other charge imposed by
the exporting country on the exportation
regulations and terms of an APO is a
of the subject merchandise to the United
violation which is subject to sanction.
States, other than an export tax, duty, or
We are issuing and publishing this
other charge described in section
notice in accordance with sections
771(6)(C) {of the Act}.’’ However, the
751(c), 752(c), and 777(i)(1) of the Act.
Department’s administrative practice
Dated: January 20, 2011.
has been that it cannot apply section
772(c)(2)(B) in NME antidumping
Ronald K. Lorentzen,
proceedings because pervasive
Deputy Assistant Secretary for Import
government intervention in NMEs
Administration.
precluded proper valuation of taxes
[FR Doc. 2011–1797 Filed 1–26–11; 8:45 am]
paid by NME respondents to NME
BILLING CODE 3510–DS–P
governments. This practice originated in
the less-than-fair-value investigations of
1 Although HTSUS number 3912.31.00.10 may be
pure magnesium and magnesium alloy
more specific to subject merchandise, it was not
from the Russian Federation, which the
created until 2005. As such, we are relying on
Department then considered to be an
HTSUS number 3912.31.00 for purposes of this
sunset review because in determining whether
NME. See Pure Magnesium and Alloy
revocation of an order would likely lead to
Magnesium from the Russian
continuation or recurrence of dumping, the
Federation, 60 FR 16440 (Mar. 30, 1995)
Department considers the margins established in
(final determination of sales at less than
the investigation and/or reviews conducted during
fair value) (‘‘Russian Magnesium’’)
the sunset review period as well as the volume of
imports for the periods before and after the issuance (Comment 10). In those investigations,
of the order. See section 752(c)(1) of the Act.
the Department determined not to
We have made no changes to our
Preliminary Results, 75 FR 60084. We
continue to find that revocation of the
antidumping duty order with respect to
CMC from Mexico would likely lead to
a continuation or recurrence of dumping
at the following percentage weightedaverage margins:
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DEPARTMENT OF COMMERCE
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AGENCY:
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reduce the NME respondents’ U.S.
prices based upon an export tax paid to
the NME government, the Russian
Federation. Id.
The Russian Magnesium petitioners
subsequently challenged this
determination before the Court of
International Trade (‘‘CIT’’), and the CIT
granted the Department’s request for a
voluntary remand to further explain its
reasoning. See Magnesium Corp. of
America v. United States, 20 CIT 1092,
1113–14 (1996) (‘‘Mag. Corp. I’’). In its
remand results, the Department
explained its ‘‘uniform approach’’ to
transfers between NME governments
and NME companies. The Department
stated, in relevant part:
The {NME} is governed by a presumption
of widespread intervention and influence in
the economic activities of enterprises. An
export tax charged for one purpose may be
offset by government transfers provided for
another purpose. * * *
To make a deduction for export taxes
imposed by a NME government would
unreasonably isolate one part of the web of
transactions between government and
producer. The Department’s uniform
approach to intra-NME transfers can be seen
in its policy regarding transfers (or
‘‘subsidies’’) paid by a NME government to a
NME producer. The Department—with the
approval of the Court of Appeals—has
declined to find such transfers to be
subsidies given the nature of a {NME}. Such
an economy is riddled with distortions, with
the government influencing prices and cost
structures, regulating investment, wages and
private ownership, and allocating credit.
Attempts to isolate individual government
interventions in this setting—whether they
be transfers from the government or from
exporters to the government—make no sense.
See Remand Redetermination:
Magnesium Corp. of America, et al. v.
United States, at 6–8, dated Oct. 28,
1996 (‘‘Remand Redetermination’’)
(available at: https://ia.ita.doc.gov/tlei/
index.html).
The CIT upheld the Department’s
remand results. See Magnesium Corp. of
America v. United States, 20 CIT 1464,
1466 (1996) (‘‘Mag. Corp. II’’). The U.S.
Court of Appeals for the Federal Circuit
then affirmed the CIT’s decision, stating
that it agreed with the reasoning put
forward in the Department’s Remand
Redetermination. See Magnesium Corp.
of America, 166 F.3d 1364, 1370–71
(Fed. Cir. 1999) (‘‘Mag. Corp. III’’).
However, since Mag. Corp. III, the
Department has changed its practice
with respect to application of the
countervailing duty (‘‘CVD’’) law to
subsidized merchandise from China and
Vietnam, which the Department
continues to designate as NMEs. As
explained in the countervailing duty
investigations of Coated Free Sheet
E:\FR\FM\27JAN1.SGM
27JAN1
mstockstill on DSKH9S0YB1PROD with NOTICES
Federal Register / Vol. 76, No. 18 / Thursday, January 27, 2011 / Notices
Paper from China and Polyethylene
Retail Carrier Bags from Vietnam, the
present-day Chinese and Vietnamese
economies are sufficiently dissimilar
from Soviet-style economies that the
Department can determine whether the
Chinese or Vietnamese government have
bestowed an identifiable and
measurable benefit upon a producer,
and whether the benefit is specific,
including certain measures related to
taxation. See ‘‘Whether the Analytical
Elements of the Georgetown Steel
Opinion are Applicable to China’s
Present-Day Economy,’’ dated Mar. 29,
2007 (available at: https://ia.ita.doc.gov/
download/prc-cfsp/CFS%20China.
Georgetown%20applicability.pdf);
Polyethylene Retail Carrier Bags from
the Socialist Republic of Vietnam, 74 FR
45811, 45813–14 (Sept. 4, 2009) (prelim.
affirmative CVD determination),
unchanged in final determination, 75 FR
16428 (Apr. 1, 2010) (final affirmative
CVD determination), and accompanying
Issues and Decision Memo. at III
(Applicability of the CVD Law to
Vietnam).
Pursuant to its determination that
subsidies from certain NME
governments to NME companies can be
identified and measured, upon further
reflection, the Department has
reconsidered its administrative practice
that taxes paid by NME companies to
these NME governments cannot be
identified and measured. Specifically,
the Department proposes to change the
administrative practice set forth in
Russian Magnesium, as upheld in the
Mag. Corp. cases, with respect to China
and Vietnam. Accordingly, pursuant to
section 772(c)(2)(B), the Department
proposes to reduce the export price and
constructed export price used in NME
dumping margin calculations based
upon export taxes and similar charges,
including value added taxes (‘‘VAT’’)
applied to export sales, imposed by the
Chinese and Vietnamese governments in
future less-than-fair-value investigations
and administrative reviews of
antidumping duty orders. This
methodology may later be applied to
other NMEs, pursuant to a
determination that the NME at issue is
dissimilar from Soviet-style economies.
Therefore, as detailed below, the
Department is proposing the following
methodology to implement section
772(c)(2)(B) in future antidumping duty
investigations and administrative
reviews involving merchandise from
China and Vietnam.
Proposed Methodology
The Department would determine
whether, as a matter of law, regulation,
or other official action, the NME
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17:51 Jan 26, 2011
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government has imposed ‘‘an export tax,
duty, or other charge’’ upon the subject
merchandise during the period of
investigation or the period of review
(e.g., export tax or VAT that is not fully
refunded upon exportation). The
Department anticipates that parties
would place upon the record copies of
laws, regulations, other official
documents, or similar publicly available
information that is demonstrative of
government action in this regard. The
Department would also consider
evidence as to whether the particular
respondent(s) was, in some manner,
exempted from the requirement to pay
the export tax, duty, or other charge.
The Department anticipates that such
evidence would include official
documentation of the respondent’s
exemption.
Provided that the NME government
imposed an export tax, duty, or other
charge on subject merchandise as
contemplated by section 772(c)(2)(B),
and the respondent was not exempted
from it, the Department would reduce
the respondents’ export price and
constructed export price accordingly.
The Department anticipates that, in
most instances, the export tax, VAT,
duty, or other charge will be assessed as
a percentage of the price. In such cases,
the Department would adjust the export
price or constructed export price
downward by the same percentage. In
instances where the tax or charge is a
flat fee or similar charge denominated in
NME currency, the Department would
determine the ratio of the flat fee to the
respondent’s export price or constructed
export price as denominated in its
domestic currency, and would then
adjust the export price or constructed
export price downward by the same
ratio.
Submission of Comments: As
specified above, to be assured of
consideration, comments must be
received no later than February 28,
2011. All comments must be submitted
through the Federal eRulemaking Portal
at https://www.regulations.gov, Docket
No. ITA–2010–0008, unless the
commenter does not have access to the
Internet. Commenters that do not have
access to the Internet may submit the
original and two copies of each set of
comments by mail or hand delivery/
courier. All comments should be
addressed to the Secretary of Commerce,
Attn: Albert Hsu, Senior Economist,
Office of Policy, Room 1870,
Department of Commerce, 14th Street
and Constitution Ave., NW.,
Washington, DC 20230.
The Department will consider all
comments received before the close of
the comment period. The Department
PO 00000
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4867
will not accept comments accompanied
by a request that part or all of the
material be treated confidentially
because of its business proprietary
nature or for any other reason. All
comments responding to this notice will
be a matter of public record and will be
available for inspection at Import
Administration’s Central Records Unit
(Room 7046 of the Herbert C. Hoover
Building) and on the Department’s Web
site at https://www.trade.gov/ia/.
Any questions concerning file
formatting, document conversion,
access on the Internet, or other
electronic filing issues should be
addressed to Andrew Lee Beller, Import
Administration Webmaster, at (202)
482–0866, e-mail address: webmastersupport@ita.doc.gov.
Dated: January 21, 2011.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import
Administration.
[FR Doc. 2011–1793 Filed 1–26–11; 8:45 am]
BILLING CODE 3510–DS–P
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National Oceanic and Atmospheric
Administration
RIN 0648–XA172
Marine Mammals; File No. 15453
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice; receipt of application.
AGENCY:
Notice is hereby given that
the Waikiki Aquarium, 2777 Kalakaua
Avenue, Honolulu, HI 96815 (Dr.
Andrew Rossiter, Responsible Party),
has applied in due form for a permit to
conduct research on and enhancement
of captive Hawaiian monk seals.
DATES: Written, telefaxed, or e-mailed
comments must be received on or before
February 28, 2011.
ADDRESSES: The application and related
documents are available for review by
selecting ‘‘Records Open for Public
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Applications and Permits for Protected
Species (APPS) home page, https://
apps.nmfs.noaa.gov, and then selecting
File No. 15453 from the list of available
applications.
These documents are also available
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SUMMARY:
E:\FR\FM\27JAN1.SGM
27JAN1
]]>Agencies
[Federal Register Volume 76, Number 18 (Thursday, January 27, 2011)]
[Notices]
[Pages 4866-4867]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-1793]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
Proposed Methodology for Implementation of Section 772(c)(2)(B)
of the Tariff Act of 1930, as Amended, In Certain Non-Market Economy
Antidumping Proceedings; Request for Comment
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (the ``Department'') seeks public
comment on its proposed methodological change to reduce the export
price or constructed export price in certain non-market economy
(``NME'') antidumping proceedings by the amount of an export tax, duty,
or other charge, pursuant to section 772(c)(2)(B) of the Tariff Act of
1930, as amended.
DATES: To be assured of consideration, comments must be received no
later than February 28, 2011.
FOR FURTHER INFORMATION CONTACT: Albert Hsu, Senior Economist, Office
of Policy, Import Administration, U.S. Department of Commerce, 14th
Street and Constitution Avenue, NW., Washington, DC 20230; telephone:
(202) 482-4491.
SUPPLEMENTARY INFORMATION:
Background
Pursuant to section 772(c)(2)(B) of the Tariff Act of 1930, as
amended (the ``Act''), the Department is instructed to reduce the
export price or constructed export price used in the dumping margin
calculation by ``the amount, if included in such price, of any export
tax, duty, or other charge imposed by the exporting country on the
exportation of the subject merchandise to the United States, other than
an export tax, duty, or other charge described in section 771(6)(C) {of
the Act{time} .'' However, the Department's administrative practice has
been that it cannot apply section 772(c)(2)(B) in NME antidumping
proceedings because pervasive government intervention in NMEs precluded
proper valuation of taxes paid by NME respondents to NME governments.
This practice originated in the less-than-fair-value investigations of
pure magnesium and magnesium alloy from the Russian Federation, which
the Department then considered to be an NME. See Pure Magnesium and
Alloy Magnesium from the Russian Federation, 60 FR 16440 (Mar. 30,
1995) (final determination of sales at less than fair value) (``Russian
Magnesium'') (Comment 10). In those investigations, the Department
determined not to reduce the NME respondents' U.S. prices based upon an
export tax paid to the NME government, the Russian Federation. Id.
The Russian Magnesium petitioners subsequently challenged this
determination before the Court of International Trade (``CIT''), and
the CIT granted the Department's request for a voluntary remand to
further explain its reasoning. See Magnesium Corp. of America v. United
States, 20 CIT 1092, 1113-14 (1996) (``Mag. Corp. I''). In its remand
results, the Department explained its ``uniform approach'' to transfers
between NME governments and NME companies. The Department stated, in
relevant part:
The {NME{time} is governed by a presumption of widespread
intervention and influence in the economic activities of
enterprises. An export tax charged for one purpose may be offset by
government transfers provided for another purpose. * * *
To make a deduction for export taxes imposed by a NME government
would unreasonably isolate one part of the web of transactions
between government and producer. The Department's uniform approach
to intra-NME transfers can be seen in its policy regarding transfers
(or ``subsidies'') paid by a NME government to a NME producer. The
Department--with the approval of the Court of Appeals--has declined
to find such transfers to be subsidies given the nature of a
{NME{time} . Such an economy is riddled with distortions, with the
government influencing prices and cost structures, regulating
investment, wages and private ownership, and allocating credit.
Attempts to isolate individual government interventions in this
setting--whether they be transfers from the government or from
exporters to the government--make no sense.
See Remand Redetermination: Magnesium Corp. of America, et al. v.
United States, at 6-8, dated Oct. 28, 1996 (``Remand Redetermination'')
(available at: https://ia.ita.doc.gov/tlei/).
The CIT upheld the Department's remand results. See Magnesium Corp.
of America v. United States, 20 CIT 1464, 1466 (1996) (``Mag. Corp.
II''). The U.S. Court of Appeals for the Federal Circuit then affirmed
the CIT's decision, stating that it agreed with the reasoning put
forward in the Department's Remand Redetermination. See Magnesium Corp.
of America, 166 F.3d 1364, 1370-71 (Fed. Cir. 1999) (``Mag. Corp.
III'').
However, since Mag. Corp. III, the Department has changed its
practice with respect to application of the countervailing duty
(``CVD'') law to subsidized merchandise from China and Vietnam, which
the Department continues to designate as NMEs. As explained in the
countervailing duty investigations of Coated Free Sheet
[[Page 4867]]
Paper from China and Polyethylene Retail Carrier Bags from Vietnam, the
present-day Chinese and Vietnamese economies are sufficiently
dissimilar from Soviet-style economies that the Department can
determine whether the Chinese or Vietnamese government have bestowed an
identifiable and measurable benefit upon a producer, and whether the
benefit is specific, including certain measures related to taxation.
See ``Whether the Analytical Elements of the Georgetown Steel Opinion
are Applicable to China's Present-Day Economy,'' dated Mar. 29, 2007
(available at: https://ia.ita.doc.gov/download/prc-cfsp/CFS%20China.
Georgetown%20applicability.pdf); Polyethylene Retail Carrier Bags from
the Socialist Republic of Vietnam, 74 FR 45811, 45813-14 (Sept. 4,
2009) (prelim. affirmative CVD determination), unchanged in final
determination, 75 FR 16428 (Apr. 1, 2010) (final affirmative CVD
determination), and accompanying Issues and Decision Memo. at III
(Applicability of the CVD Law to Vietnam).
Pursuant to its determination that subsidies from certain NME
governments to NME companies can be identified and measured, upon
further reflection, the Department has reconsidered its administrative
practice that taxes paid by NME companies to these NME governments
cannot be identified and measured. Specifically, the Department
proposes to change the administrative practice set forth in Russian
Magnesium, as upheld in the Mag. Corp. cases, with respect to China and
Vietnam. Accordingly, pursuant to section 772(c)(2)(B), the Department
proposes to reduce the export price and constructed export price used
in NME dumping margin calculations based upon export taxes and similar
charges, including value added taxes (``VAT'') applied to export sales,
imposed by the Chinese and Vietnamese governments in future less-than-
fair-value investigations and administrative reviews of antidumping
duty orders. This methodology may later be applied to other NMEs,
pursuant to a determination that the NME at issue is dissimilar from
Soviet-style economies.
Therefore, as detailed below, the Department is proposing the
following methodology to implement section 772(c)(2)(B) in future
antidumping duty investigations and administrative reviews involving
merchandise from China and Vietnam.
Proposed Methodology
The Department would determine whether, as a matter of law,
regulation, or other official action, the NME government has imposed
``an export tax, duty, or other charge'' upon the subject merchandise
during the period of investigation or the period of review (e.g.,
export tax or VAT that is not fully refunded upon exportation). The
Department anticipates that parties would place upon the record copies
of laws, regulations, other official documents, or similar publicly
available information that is demonstrative of government action in
this regard. The Department would also consider evidence as to whether
the particular respondent(s) was, in some manner, exempted from the
requirement to pay the export tax, duty, or other charge. The
Department anticipates that such evidence would include official
documentation of the respondent's exemption.
Provided that the NME government imposed an export tax, duty, or
other charge on subject merchandise as contemplated by section
772(c)(2)(B), and the respondent was not exempted from it, the
Department would reduce the respondents' export price and constructed
export price accordingly. The Department anticipates that, in most
instances, the export tax, VAT, duty, or other charge will be assessed
as a percentage of the price. In such cases, the Department would
adjust the export price or constructed export price downward by the
same percentage. In instances where the tax or charge is a flat fee or
similar charge denominated in NME currency, the Department would
determine the ratio of the flat fee to the respondent's export price or
constructed export price as denominated in its domestic currency, and
would then adjust the export price or constructed export price downward
by the same ratio.
Submission of Comments: As specified above, to be assured of
consideration, comments must be received no later than February 28,
2011. All comments must be submitted through the Federal eRulemaking
Portal at https://www.regulations.gov, Docket No. ITA-2010-0008, unless
the commenter does not have access to the Internet. Commenters that do
not have access to the Internet may submit the original and two copies
of each set of comments by mail or hand delivery/courier. All comments
should be addressed to the Secretary of Commerce, Attn: Albert Hsu,
Senior Economist, Office of Policy, Room 1870, Department of Commerce,
14th Street and Constitution Ave., NW., Washington, DC 20230.
The Department will consider all comments received before the close
of the comment period. The Department will not accept comments
accompanied by a request that part or all of the material be treated
confidentially because of its business proprietary nature or for any
other reason. All comments responding to this notice will be a matter
of public record and will be available for inspection at Import
Administration's Central Records Unit (Room 7046 of the Herbert C.
Hoover Building) and on the Department's Web site at https://www.trade.gov/ia/.
Any questions concerning file formatting, document conversion,
access on the Internet, or other electronic filing issues should be
addressed to Andrew Lee Beller, Import Administration Webmaster, at
(202) 482-0866, e-mail address: webmaster-support@ita.doc.gov.
Dated: January 21, 2011.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2011-1793 Filed 1-26-11; 8:45 am]
BILLING CODE 3510-DS-P
