Modification to Regulation Concerning the Revocation of Antidumping and Countervailing Duty Orders, 29875-29884 [2012-12257]

Download as PDF Federal Register / Vol. 77, No. 98 / Monday, May 21, 2012 / Rules and Regulations Issued in Fort Worth, Texas, on May 11, 2012. Walter L. Tweedy, Acting Manager, Operations Support Group, ATO Central Service Center. [FR Doc. 2012–12170 Filed 5–18–12; 8:45 am] BILLING CODE 4910–13–P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA–2011–0903; Airspace Docket No. 11–ACE–20] Establishment of Class E Airspace; Houston, MO Federal Aviation Administration (FAA), DOT. ACTION: Final rule. AGENCY: This action establishes Class E airspace at Houston, MO. Controlled airspace is necessary to accommodate new Area Navigation (RNAV) Standard Instrument Approach Procedures at Houston Memorial Airport. The FAA is taking this action to enhance the safety and management of Instrument Flight Rule (IFR) operations at the airport. DATES: Effective date: 0901 UTC, July 26, 2012. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments. FOR FURTHER INFORMATION CONTACT: Scott Enander, Central Service Center, Operations Support Group, Federal Aviation Administration, Southwest Region, 2601 Meacham Blvd., Fort Worth, TX 76137; telephone 817–321– 7716. SUMMARY: SUPPLEMENTARY INFORMATION: ebenthall on DSK5SPTVN1PROD with RULES History On January 31, 2012, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish Class E airspace for the Houston, MO, area, creating controlled airspace at Houston Memorial Airport (77 FR 4711) Docket No. FAA–2011– 0903. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this VerDate Mar<15>2010 16:13 May 18, 2012 Jkt 226001 document will be published subsequently in the Order. PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS The Rule This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by establishing Class E airspace extending upward from 700 feet above the surface to accommodate new standard instrument approach procedures at Houston Memorial Airport, Houston, MO. This action is necessary for the safety and management of IFR operations at the airport. The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a ‘‘significant regulatory action’’ under Executive Order 12866; (2) is not a ‘‘significant rule’’ under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA’s authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency’s authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace at Houston Memorial Airport, Houston, MO. List of Subjects in 14 CFR Part 71 Airspace, Incorporation by reference, Navigation (air). Adoption of the Amendment In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows: PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 29875 1. The authority citation for 14 CFR part 71 continues to read as follows: ■ Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– 1963 Comp., p. 389. § 71.1 [Amended] 2. The incorporation by reference in 14 CFR 71.1 of the Federal Aviation Administration Order 7400.9V, Airspace Designations and Reporting Points, dated August 9, 2011, and effective September 15, 2011, is amended as follows: ■ Paragraph 6005 Class E airspace areas extending upward from 700 feet or more above the surface. * * * * * ACE MO E5 Houston, MO [New] Houston Memorial Airport, MO (Lat. 37°19′49″ N., long. 91°58′23″ W.) That airspace extending upward from 700 feet above the surface within a 7.6-mile radius of Houston Memorial Airport. Issued in Fort Worth, Texas, on May 10, 2012. Walter L. Tweedy, Acting Manager, Operations Support Group, ATO Central Service Center. [FR Doc. 2012–12085 Filed 5–18–12; 8:45 am] BILLING CODE 4910–13–P DEPARTMENT OF COMMERCE International Trade Administration 19 CFR Part 351 [Docket No. 110315198–1622–02] RIN 0625–AA86 Modification to Regulation Concerning the Revocation of Antidumping and Countervailing Duty Orders Import Administration, International Trade Administration, Department of Commerce. ACTION: Final rule. AGENCY: The Department of Commerce (the Department) is amending its regulations concerning the revocation of antidumping and countervailing duty orders in whole or in part, and the termination of suspended antidumping and countervailing duty investigations. This rule eliminates the provision for revocation of an antidumping or countervailing duty order with respect to individual exporters or producers SUMMARY: E:\FR\FM\21MYR1.SGM 21MYR1 29876 Federal Register / Vol. 77, No. 98 / Monday, May 21, 2012 / Rules and Regulations based on those individual exporters or producers having received antidumping rates of zero for three consecutive years, or countervailing duty rates of zero for five consecutive years. DATES: This Final Rule is effective June 20, 2012. This rule will apply to all reviews that are initiated on or after June 20, 2012. FOR FURTHER INFORMATION CONTACT: James Maeder at (202) 482–3330, Mark Ross at (202) 482–4794, or Jonathan Zielinski at (202) 482–4384. SUPPLEMENTARY INFORMATION: Background On March 21, 2011, the Department published a proposed rule entitled ‘‘Proposed Modification to Regulation Concerning the Revocation of Antidumping and Countervailing Duty Orders’’ that would modify its regulations concerning the revocation of antidumping and countervailing duty orders. (76 FR 15233). The Proposed Rule detailed proposed changes to the Department’s regulations that provide for revocation of antidumping and countervailing duty orders. Certain parties commented on the Proposed Rule, and the Department has addressed those comments in the section below entitled ‘‘Response to Comments on the Proposed Rule’’. After analyzing and carefully considering all of the comments that the Department received in response to the Proposed Rule, the Department is adopting the proposed changes and is amending its regulations to eliminate the provision for revocation of an antidumping or countervailing duty order with respect to individual exporters or producers based on those individual exporters or producers having received antidumping rates of zero for three consecutive years, or countervailing duty rates of zero for five consecutive years. The Proposed Rule, comments received, and this Final Rule can be accessed using the Federal eRulemaking Portal at http:// www.regulations.gov under Docket Number ITA–2011–0001. ebenthall on DSK5SPTVN1PROD with RULES Explanation of Changes to 19 CFR 351.222 To implement this rule, the Department is removing 19 CFR 351.222(b)(2) and (3) (dumping) and 351.222(c)(3) and (4) (countervailable subsidy), and is making conforming changes as necessary to the remaining paragraphs of 19 CFR 351.222. In addition, the Department is amending 19 CFR 351.222(f)(2) to make it clear that a request for revocation that does not conform with the requirements of VerDate Mar<15>2010 16:13 May 18, 2012 Jkt 226001 paragraph (e) does not require the Secretary to undertake the actions provided for in paragraphs (f)(2)(i) through (f)(2)(vi). The Department also is correcting a grammatical error in the third sentence of 19 CFR 351.222(a) (changing ‘‘have’’ to ‘‘has’’) and deleting 19 CFR 351.222(m) (a provision related to the Uruguay Round Agreements Act that is no longer applicable). Finally, the Department is correcting a typographical error in § 351.222(e)(1)(i) that was identified in comments on the Proposed Rule (changed ‘‘the person’’ to ‘‘they’’). The Department is retaining, with some conforming changes, the sections of 19 CFR 351.222 that regard revocations of orders in whole. The Department is not making any changes with respect to revocations as described under paragraphs (g) through (l) of 19 CFR 351.222. Response to Comments on the Proposed Rule The Department received numerous comments on the Proposed Rule. As indicated in the ‘‘Background’’ section, these comments can be accessed using the Federal eRulemaking Portal at http://www.regulations.gov under Docket Number ITA–2011–0001. The Department analyzed and carefully considered all of the comments received. Below is a summary of the comments, grouped by issue category and followed by the Department’s response. Comment 1—U.S. Law, the WTO Agreements, and Company-Specific Revocations Some commenters assert that the use of the word ‘‘may’’ in Section 751(d)(l) of the Tariff Act of 1930, as amended (the ‘‘Act’’), makes it clear that Congress fully delegated to the Department the authority to prescribe the specific conditions under which revocation of an order, whether in whole or in part, is appropriate. Some commenters also assert that, given the availability of revocation and termination in whole or in part in changed circumstances reviews and in whole in five-year sunset reviews, respondents seeking relief from antidumping or countervailing duties have more than ample opportunity to achieve that goal without the companyspecific avenue contained in 19 CFR 351.222(b)(2) and (b)(3) and 351.222(c)(3) and (c)(4). Further, in addition to not being required by U.S. law, some parties assert that the company-specific revocation provisions are not required by any of the relevant WTO agreements. These parties assert that the WTO dispute settlement panel in United States—Anti-Dumping PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 Measures on Oil Country Tubular Goods, paragraph 7.166, WT/DS282/R (adopted June 20, 2005) found that 19 CFR 351.222(b)(2) of the Department’s regulations was not required by the United States’ WTO obligations because there was an opportunity for foreign companies to request revocation under the changed circumstances review provisions (i.e., 19 CFR 351.222(g)). Some commenters suggest that further cost savings can be attained by withdrawing the regulations providing for country-wide revocations at 19 CFR 351.222(b)(l) (dumping) and 351.222(c)(1) and (2) (subsidies). They assert that, because as part of a sunset review the Department already considers whether there has been continued dumping or subsidies after issuance of an order, there is no compelling need to maintain the company-specific and country-wide revocation procedures set forth at 19 CFR 351.222(b) and (c). One commenter asserts that when a company demonstrates that it has not dumped its products over a certain period of time, the statue no longer justifies binding that company to costly administrative reviews. Another party asserts that the statute calls for revocation ‘‘in whole or in part’’ based on administrative review results, and that this is evidence of the drafters’ intent to allow for other means of revocation besides termination of the order itself. One party asserted that the proposed rule, if implemented, would essentially eliminate the only viable opportunity for revocation for individual exporters/producers. Several commenters note that company-specific revocations have been a practice for many years and assert that parties have relied upon that practice in the expectation of being granted a revocation in part. One commenter asserts that the additional risk inherent in the U.S. retrospective system is partly offset by the possibility of revocation, and requests that the Department take this into account in assessing whether to eliminate company-specific revocations of antidumping and countervailing duty orders. One party proposes that the Department’s current revocation provisions remain in effect for developing countries as a form of special and differential treatment per Article 15 of the Antidumping Agreement and Article 27 of the Agreement on Subsidies and Countervailing measures. Another commenter contends that pursuant to Articles 11 of the Antidumping Agreement, WTO members can only continue an antidumping duty order ‘‘to E:\FR\FM\21MYR1.SGM 21MYR1 ebenthall on DSK5SPTVN1PROD with RULES Federal Register / Vol. 77, No. 98 / Monday, May 21, 2012 / Rules and Regulations the extent necessary’’ to ‘‘counteract dumping’’ and must consider the request of ‘‘any interested party’’ to ‘‘examine whether the continued imposition of the duty is necessary to offset dumping.’’ Citing Amended Regulation Concerning the Revocation of Antidumping and Countervailing Duty Orders; Final Rule, 64 FR 51226 (September 22, 1999), the party asserts that in that Federal Register notice the Department concluded that Article 11.2 of the Antidumping Agreement requires the Department to revoke an antidumping order for any exporter who demonstrates the absence of dumping for three years, provided there is no evidence of record to the contrary. One party asserts that the Department vigorously defended company-specific revocations pursuant to Article 11 of the Antidumping Agreement in WTO litigation (citing report of WTO Panel, United States—Antidumping duty on Dynamic Random Access Memory Semiconductors from Korea, WT/DS99/ R (adopted March 19, 1999) (DRAMS). Response to Comments: Companyspecific revocations are not required by U.S. law, and thus, the elimination of such revocations is consistent with U.S. law. Section 751(d)(1) of the Act states, in relevant part, that the Department ‘‘may revoke, in whole or in part * * * .’’ an antidumping or countervailing duty order. As several parties note, the use of the word ‘‘may’’ indicates that revocations under this section of the Act, whether in whole or in part, are not required. Because the authority for company-specific revocations derives from section 751(d)(1) of the Act, those types of revocations are not mandatory. We agree that section 751(d)(1) of the Act permits revocations other than revocation of an order in whole, i.e., the provision permits the Department to revoke an order in part. The Act does not, however, define what it means to revoke an order in part. See Sahaviriya Steel Ind. Pub Co. Ltd. v. United States, No. 2010, slip op. at 9–10 (Fed. Cir. June 17, 2011). The Department has the discretion to interpret this provision, and is not required to interpret it to include company-specific revocations. The Proposed Rule does not affect other types of revocations in part. For example, orders may continue to be revoked in part if a party demonstrates a lack of interest in maintaining the order on a certain type of subject merchandise by substantially all of the domestic industry. See, e.g., Certain Pasta from Italy; Final Results of Countervailing Duty Changed Circumstances Review and Revocation, In Part, 76 FR 27634 (May 12, 2011). VerDate Mar<15>2010 16:13 May 18, 2012 Jkt 226001 Regarding the comment from several parties that company-specific revocations have been a practice for many years and that parties have relied upon that practice in the expectation of being granted a revocation in part, the age of a practice does not affect the legality of its elimination. Rather, the Department has the authority to change its practice at any time provided that it gives a reasoned explanation for its change. See Allegheny Ludlum Corp. v. United States, 346 F.3d 1368, 1373 (Fed. Cir. 2003) (Allegheny Ludlum). In the Proposed Rule and the below sections entitled ‘‘Comment 2—Whether the Department Provided a Reasoned Analysis for the Proposed Rule’’ and ‘‘Comment 4—Reasons for Discontinuing Company-Specific Revocations’’, the Department further explains its rationale for eliminating company-specific revocations. Moreover, the Department has provided parties ample notice of the change and opportunity to comment, and took those comments into consideration for this Final Rule. In any event, the statute and the regulation make clear that revocation is discretionary. Regarding the comments from several parties that the Proposed Rule would be contrary to the United States’ obligations under the Antidumping Agreement, we disagree. We note that the Act ‘‘is intended to bring U.S. law fully into compliance with U.S. obligations under [the WTO Agreements].’’ See SAA accompanying the URAA, HR Doc 316, Vol. 1, 103d Cong (1994) at 669. And, as explained above, U.S. law does not require company-specific revocations. Moreover, there is nothing in Article 11 of the Antidumping Agreement that requires company-specific revocations. We also note that the Department is not eliminating its practice, as codified in its regulations, of revoking an order in whole based on the absence of dumping. Regarding the argument that the Department defended company-specific revocations pursuant to Article 11 of the Antidumping Agreement in the DRAMS dispute, that dispute concerned the evidence that could be relied upon in determining whether revocation was proper. The Department’s regulation at the time required it to determine that sales of subject merchandise at below normal value in the future were not likely. The Panel considered whether this ‘‘not likely’’ standard was consistent with the requirements of Article 11.2 of the Antidumping Agreement, and determined that it was not. This dispute was not about whether company-specific revocations were required by the Antidumping PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 29877 Agreement, and the Panel’s findings did not involve that issue. Finally, with regard to the suggestion that the company-specific revocation regulations remain in effect for developing countries as a form of special and differential treatment per Article 15 of the Antidumping Agreement and Article 27 of the Agreement on Subsidies and Countervailing measures, neither Article requires company-specific revocations, and we have not adopted this suggestion. Comment 2—Whether the Department Provided a Reasoned Analysis for the Proposed Rule Several commenters assert that U.S. administrative law requires that the Department provide a ‘‘reasoned analysis’’ for this proposed change to the regulations, and that the Proposed Rule lacked a ‘‘reasoned analysis’’ because the Department did not explain why the Proposed Rule is being undertaken and why the facts and circumstances that underlay the existing revocation policy should be disregarded. They assert that, because the Department has not provided a reasoned analysis or the basic factual assumptions underlying the Proposed Rule, interested parties have been denied a meaningful opportunity to comment. One of these parties cites Motor Veh. Mfrs. Ass’n v. State Farm Ins., 463 U.S. 29, 42, in support of its assertion that U.S. administrative law requires that the Department provide a ‘‘reasoned analysis’’ for this proposed change to the regulations. It argues further that pursuant to the U.S. Supreme Court ruling in FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009), ‘‘a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy.’’ The same party cites that in a prior rulemaking exercise the Department stated that it ‘‘has consistently considered that an absence of dumping for three consecutive years was indicative that a foreign respondent was not likely to sell at less than normal value in the future.’’ See Proposed Regulation Concerning Revocation of Antidumping Duty Orders; Notice of Proposed Rulemaking, 64 FR 29818 (June 3, 1999). It contends that in the Proposed Rule the Department made no effort to refute this statement, and that by not explaining the proposed change the Department’s proposal runs afoul of the Administrative Procedures Act. The party also asserts that because the Department has not provided a reasoned analysis or the basic factual E:\FR\FM\21MYR1.SGM 21MYR1 ebenthall on DSK5SPTVN1PROD with RULES 29878 Federal Register / Vol. 77, No. 98 / Monday, May 21, 2012 / Rules and Regulations assumptions underlying the proposed change, interested parties have been denied a meaningful opportunity to comment. Response to Comments: The Department explained its reasons for eliminating company-specific revocations in the Proposed Rule. Specifically, the Department stated that it was proposing the elimination of company-specific revocations because: (1) The existing regulation requires the Department to expend additional resources in conducting administrative reviews where a request for companyspecific revocation is being considered; (2) only a small fraction of the companies the Department reviews are ultimately found to be eligible for a company-specific revocation; (3) to the extent that eligible companies maintain antidumping duty or countervailing duty rates of zero percent, the proposal would not change the amount of duties applied to subject entries; and (4) many of the companies for which reviews have been requested may not have the opportunity to amass the three antidumping rates of zero percent or five countervailing duty rates of zero percent necessary to be eligible for a company-specific revocation because the Department frequently is not able to examine all companies under review. The Department further stated that ‘‘[r]ather than administering the company-specific revocation regulations in a manner that does not afford equitable opportunity to all companies to seek revocation, and in light of the additional factors noted, the Department proposes to eliminate the companyspecific revocation regulations.’’ The Department may change its practice at any time as long as it provides a reasoned explanation for the change. See Allegheny Ludlum. Here, the Department provided a reasoned explanation. The Department explained the burden on its resources that company-specific revocation reviews entail. It is reasonable for the Department to make changes in response to its resource constraints. See Pakfood Public Co. Ltd. v. United States, 753 F. Supp 2d 1334 (Ct. of International Trade 2011) (holding that administrative convenience is a valid reason for a change in practice). The Department has not ignored the circumstances that supported the existence of the regulation in the first place, but rather has determined that it is no longer appropriate to continue the practice in light of current resources for the reasons described in the Proposed Rule. VerDate Mar<15>2010 16:13 May 18, 2012 Jkt 226001 Comment 3—Effective Date Some commenters ask that the Department adopt and implement the proposed change to the revocation regulations immediately (i.e., make the change applicable to all administrative reviews currently pending before the Department). Others request that the Department continue to allow for revocations in all ongoing reviews in which a revocation request has been made. One commenter suggests that the Department ‘‘grandfather in’’ any company that had reviews of itself initiated prior to the adoption of this rule to give them the opportunity to earn three zeros and, ultimately, revocation. Another party expresses concern that the proposal could undermine legitimate expectations of exporters, given uncertainty over entry into force of the proposed change. Response to Comments: As indicated in the DATES section above, this Final Rule will apply to all reviews that are initiated on or after June 20, 2012. The Department believes that this is a fair and reasonable approach to the effective date issue for this particular change. Importantly, implementing the Final Rule in this manner will provide parties that have requested revocation in ongoing reviews the opportunity to complete those reviews and obtain a revocation should they meet the regulatory requirements in effect when that review was initiated. Comment 4—Reasons for Discontinuing Company-Specific Revocations a. Conserve Resources Some commenters agree with the Department’s assertion that, pursuant to the existing regulation, the Department is required to expend additional resources, including additional mandatory verifications, in conducting administrative reviews when companyspecific revocations are being considered. They assert, therefore, that the change will help to conserve resources as the Department will save money by not having to conduct ‘‘mandatory verifications.’’ They also argue that the Department will have fewer requests for review, as companies that are already subject to low deposit rates will be less likely to request a review and there will be less of an incentive for companies to ‘‘engineer’’ sales for purposes of achieving revocation, rather than for normal commercial considerations. The parties contend that the Department will also save resources by not having to conduct the changed circumstance reviews that are currently needed to determine whether an exporter, once revoked, PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 needs to be reinstated in the order. Finally, they contend that removal of the country-wide revocation procedures is permissible and would result in further cost savings. Another party cites to burdens on the U.S. government that are created by circumvention and evasion of trade relief with respect to certain trade remedies, and asserts that such circumstances demonstrate the importance of the proposed changes to the revocation regulations. It asserts that the individual exporter exclusions provided for under the regulations at issue substantially complicate U.S. Customs and Border Protection’s responsibilities for enforcement of antidumping orders, and cites to certain duty evasion issues that the U.S. government experienced while administering certain antidumping measures. It contends that companyspecific exclusions can also necessitate a significant allocation of resources by the domestic industry to monitor shipments, and try and prevent circumvention of the trade relief. Some commenters assert that revocations actually reduce administrative burdens by eliminating the need for administrative reviews of companies that are revoked from an antidumping or countervailing duty order, and that by continuing to grant company-specific revocations the Department will free up resources to review other companies. One party asserts that there is no reason to presume that the availability of revocations increases the number of proceedings the Department must undertake. For example, it contends that in a case with a small number of exporters to the U.S. market, revocations could reduce the Department’s case load. Other commenters assert that it would be an inefficient use of resources to review companies over and over when they have demonstrated that they do not engage in dumping. A few parties contend that the Proposed Rule will consume more resources because companies will never have a chance for revocation and will bear the expense and burden of participating in more reviews. Some commenters request that the Department find other ways to reduce burdens so that it is able to continue to administer companyspecific revocations under the regulations at issue (e.g., create a more efficient and less rigorous process for administrative reviews, make verifications discretionary, allow exporters to certify they are not dumping when they believe that to be the case). E:\FR\FM\21MYR1.SGM 21MYR1 ebenthall on DSK5SPTVN1PROD with RULES Federal Register / Vol. 77, No. 98 / Monday, May 21, 2012 / Rules and Regulations One party argues that because the number of companies who are eligible for a company-specific revocation is so small, the additional resources, including additional mandatory verifications that the Department cites as a reason for the proposed change, cannot be so great. It also asserts that over time the proposed change will increase the resources expended on reviews as companies continue to request reviews to receive zero or low duty rates. The same party asserts that if the company-specific revocation regulations remain in effect, the Department and other U.S. federal agencies (e.g., Customs and Border Protection) may ultimately save resources as the pool of respondents subject to review diminishes over time. Another party asserts that since money is collected from respondent parties in the form of antidumping duties and it is relatively inexpensive to conduct a revocation proceeding, the Department should not eliminate the revocation provision in the name of resource constraints. It argues that any additional resources that may be required for considering a revocation request are minimal, and suggests that the Department instead conserve resources by limiting the ability of domestic producers to request verification. Response to Comments: The Department believes that the change will result in savings as it will no longer have to expend the additional resources associated with the conduct of administrative reviews, particularly mandatory verifications, when requests for company-specific revocations are being considered. In addition, the Department anticipates cost savings from not having to conduct changed circumstances reviews currently needed to determine whether an exporter, once excluded, should be reinstated in the order. With regard to various conflicting arguments that the change will result in either a decrease or an increase in the number of reviews that are requested and, therefore, that cost savings may or may not actually be realized, we find them to be based on speculation as to the motivations of individual parties who may request reviews. Pursuant to 19 CFR 351.213(b), an administrative review of an exporter or producer may be requested by a domestic interested party, a foreign government, an exporter or a producer, or an importer. The Department is in no position to determine for any given proceeding what a particular party’s motivations would be in deciding to request a review and how the change may VerDate Mar<15>2010 16:13 May 18, 2012 Jkt 226001 influence its decision. However, the Department would note that there would be no reason for a respondent, with a zero or de minimis cash deposit rate, to request another administrative review but for the possibility of revocation. Regarding the comment suggesting the elimination of the country-wide revocation procedures as an additional means to save resources, the Proposed Rule and this Federal Register notice only pertain to company-specific revocations and the issues the Department has experienced and hopes to resolve by eliminating those types of revocations. The Final Rule does not include any changes to the parts of the revocation regulations that concern country-wide revocations. With regard to the suggestion that company-specific revocations should be eliminated because they may be tied to circumvention or duty evasion issues that necessitate a significant allocation of resources by the domestic industry to monitor shipments, we have not relied on this claim as a basis for our decision to implement the proposed rule since we do not have evidence of increased burdens associated with such monitoring. With regard to the suggestion that the Department conserve resources by limiting the ability of domestic producers to request verifications, we find that our current regulations provide appropriate guidance and flexibility for the conduct of verifications requested by domestic producers in light of the Department’s resource considerations. Finally, if necessary, we may in the future consider additional cost-savings measures in addition to the savings associated with the changes made by this rule. b. A Small Portion of Reviewed Companies Have Been Found To Be Eligible for a Company-Specific Revocation Several commenters assert that the small portion of companies found to be eligible for company-specific revocation is not a relevant factor to cite in support of changing the regulations. One commenter asserts that such a statistic is simply a consequence of the difficulty of satisfying the requirements for revocation. Another asserts that this measurement is not relevant to the antidumping orders on exports from its country because a number of companies were revoked from one of those antidumping orders. Several commenters argue that the small number of company-specific revocations supports that the existing revocation PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 29879 regulations do not have a material impact on the Department’s resources. Response to Comments: We disagree with the assertion that the number of reviewed companies that the Department has ultimately found to be eligible for a company-specific revocation is not an important factor to cite in support of modifying 19 CFR 351.222. As indicated in the Proposed Rule, while the Department annually conducts administrative reviews of hundreds of foreign companies subject to antidumping or countervailing duty orders, only a small fraction of the reviewed companies are ultimately found to be eligible for a companyspecific revocation. Moreover, in evaluating this matter in terms of the burden and administrative procedures involved, it is important to consider that many of the companies that request a company-specific revocation under the regulations at issue go through the process of being reviewed but are, ultimately, not found to be eligible for a company-specific revocation. We examined the review requests for orders that were in effect between 2005 and 2009 and learned that roughly 75% of the company-specific revocation requests that we received ultimately were denied. Many of the companies that requested partial revocation under the regulations at issue did not obtain one because either: (1) The company was still dumping; (2) the company did not make sales in commercial quantities; (3) the company withdrew its request for revocation and/or review after we initiated the review; (4) a revocation of the entire order via the sunset review process took place prior to completion of our review of the company-specific revocation request; or (5) the company was not selected as a respondent because the Department did not have the resources to proceed with a company-specific examination. Thus, with the status quo, the Department can expect to continue to expend significant resources examining unsuccessful requests for company-specific revocations. Instead, the Department has determined, in part, to eliminate the disconnect between the large amount of resources expended conducting these company-specific revocation reviews and the few companies that benefit. We also disagree with the assertion by one commenter that, with respect to antidumping orders on exports from its country, the small fraction of the reviewed companies the Department ultimately found eligible for a companyspecific revocation is not a relevant factor to cite in support of modifying 19 CFR 351.222. The commenter indicates that a number of companies E:\FR\FM\21MYR1.SGM 21MYR1 29880 Federal Register / Vol. 77, No. 98 / Monday, May 21, 2012 / Rules and Regulations were revoked from one of the antidumping orders on imports from its country. Nonetheless, in evaluating and deciding on this particular change to the regulations our focus has been on all antidumping and countervailing duty orders/measures that are administered by the Department, not just revocation requests for one particular measure, industry, or country. ebenthall on DSK5SPTVN1PROD with RULES c. This Amendment Will Not Change the Amount of Duties Applied to Entries Subject to Antidumping or Countervailing Duty Orders Where the Duty Rates Remain Zero Some parties agree with the Department’s reliance on this factor. Others argue that, when companies maintain antidumping or countervailing duty rates of zero percent, both the Department and interested parties are expending resources on reviews of companies that are unlikely to dump or receive countervailable subsidies in the future. Another party asserts that the Department’s rationale does not take into account the unpredictability and costs imposed by antidumping and countervailing duty orders. One party comments that the Department appears to be saying that its proposal is revenue neutral because it would not affect the amount of duties applied, and asserts that the amount of revenue collected in antidumping or countervailing duties is not a matter within the jurisdiction of the Department. Response to Comments: The Department’s statement is a matter of fact—if a company maintains an antidumping or countervailing duty rate of zero, its duty liability will not change as a result of this amendment. As for arguments concerning the expenditure of resources in the conduct of reviews for companies that maintain zero dumping or countervailing duty rates, such arguments are based on conjecture about the future pricing behavior of those companies and future subsidization by governments. It also assumes that interested parties will request reviews of those companies. We are not in a position to predict such future behavior. The Department’s point is that, as long as a company maintains a dumping or countervailing duty rate of zero, it will incur no antidumping or countervailing duty liability. The Department’s reference to this change not impacting the amount of duties collected was simply an effort to consider the burden of the proposal on parties, and not in consideration of the impact on U.S. revenue. VerDate Mar<15>2010 16:13 May 18, 2012 Jkt 226001 d. Many Companies May Not Have the Opportunity To Amass the Three AD Rates of Zero Percent or Five CVD Rates of Zero Percent Certain commenters favoring the proposed change to the revocation regulations assert that it will result in a more equitable administration of the antidumping and countervailing duty proceedings for both the petitioners and respondents. One of these commenters claims that company-specific revocations can improperly advantage certain producers or exporters over others, and that such inequities also create difficulties for petitioners in ensuring that orders are effective in eliminating injurious dumping and subsidization. Several commenters assert that the current company-specific revocation regulations do a good job of promoting equity by revoking orders against companies that are not dumping or receiving countervailable subsidies. They also assert that when such revocations result in one less company to review, it permits companies not previously examined an opportunity to be selected for examination. One commenter contends that there is no reason to deny the important benefits of company-specific revocations simply because it may be impractical in every case. The party also asserts that there are other benefits in the antidumping and countervailing duty regime that are applied unevenly (notably, the ability to obtain one’s own margin, as opposed to an average of other rates). Some commenters suggest that the Department adopt new procedures that will allow for all interested and eligible exporters to participate in reviews to the extent necessary to achieve revocation. A few commenters assert that certain factors we cite in support of this change to the revocation regulations do not apply to the unique circumstances of trade remedy measures on their exports (e.g., certain cases involve a ‘‘manageable’’ number of companies and, therefore, the Department should not be concerned with companies in those cases not having an opportunity to be reviewed and amass the requisite zero rates). Response to Comments: The Department continues to find that this change to the regulations will, in general, result in a more equitable administration of the antidumping and countervailing duty proceedings. In particular, and as explained in the Proposed Rule, many of the companies for which reviews are requested may not have the opportunity to amass the three antidumping rates of zero percent (demonstrating an absence of dumping PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 for three consecutive years) or five countervailing duty rates of zero percent (demonstrating an absence of countervailable subsidies for five consecutive years) necessary to be eligible for a company-specific revocation. See Proposed Rule, 76 FR 15234. This is because it is often not practicable for the Department to examine all companies for which reviews have been requested, and where such circumstances exist, the Act permits the Department to limit the number of companies it individually examines. Rather than administering the company-specific revocation regulations in a manner that does not afford equitable opportunity to all companies to seek revocation, and in light of the comments and various factors noted in the Proposed Rule and this Federal Register notice, the Department is eliminating the company-specific revocation regulations. Moreover, by eliminating the need to obtain two/four subsequent reviews for revocation, the Department anticipates that fewer companies with zero or de minimis deposit rates will request reviews, freeing up limited resources to consider the antidumping or countervailing duty rates of other companies. With regard to the suggestion that the Department develop or adopt new company-specific revocation procedures, the Department has not identified any new procedures for company-specific revocations that would address all the reasons it has for discontinuing such revocations. As for the commenters that assert that our reasons for discontinuing companyspecific revocations do not apply to a particular antidumping or countervailing duty order, we do not find that any sort of differential treatment would be appropriate. e. Trade Law Enforcement Initiative One commenter states that the genesis of this proposal was an August 2010 announcement by the Secretary of Commerce to strengthen trade enforcement with a particular focus on illegal import practices from non-market economy countries. The commenter contends that there is little correlation between illegal import practices from non-market economies and the Proposed Rule, and asserts that the Secretary’s concerns are more appropriately addressed by other items mentioned in the August 2010 announcement. Response to Comments: This proposal was identified in the August 26, 2010, announcement of a Trade Law Enforcement Package to strengthen the administration of the nation’s trade E:\FR\FM\21MYR1.SGM 21MYR1 Federal Register / Vol. 77, No. 98 / Monday, May 21, 2012 / Rules and Regulations ebenthall on DSK5SPTVN1PROD with RULES remedy laws. In making the announcement about this initiative, addressing illegal import practices from non-market economies was highlighted as an objective, but that objective is secondary to the overall purpose of the initiative which is to strengthen the administration of the nation’s trade remedy laws. Further, in the Proposed Rule, and in the above sections of this notice, the Department provides a detailed explanation and information about the factors that warrant this amendment. Those factors and the rule change are not specific to imports from any one country or type of economy (market or non-market). Comment 5—Company-Specific Revocations Award Good Behavior Several commenters assert that the Department should maintain the existing rules for company-specific revocations as a direct incentive to induce individual foreign firms to adjust prices and eliminate dumping or receiving subsidies. Another party comments that such revocations give respondents hope that if they comply with the United States antidumping and countervailing duty laws, their efforts may be recognized and rewarded by revocation. Another party asserts that company-specific revocations ensure that U.S. manufacturers, retailers and consumers are not denied access to fairly traded goods. Response to Comments: While we appreciate that companies may wish to retain the opportunity to be revoked from an order, as we noted under Comment 1, there is no obligation under U.S. law or the WTO Agreements to provide for such company-specific revocations. Moreover, if a foreign firm stops dumping or receiving countervailable subsidies, it will eliminate its liability for antidumping and countervailing duties, and U.S. manufacturers will have full access to its fairly traded goods. Finally, the antidumping and countervailing duty laws do not exist to reward any behavior. Instead, these laws exist to provide a remedy for injurious marketdistorting unfair trade practices. The imposition of a remedial duty discourages such practices to the extent they are found to exist. As noted above, by maintaining a zero dumping margin or zero subsidy rate, companies avoid liability for these duties. Comment 6—Impact of the Proposed Change on the Economy and Trade Several commenters request that the Department not change its revocation policy until it conducts a review of the impact of the change on consuming VerDate Mar<15>2010 16:13 May 18, 2012 Jkt 226001 industries and other parties that utilize imports that are subject to antidumping or countervailing duty orders. They assert that such parties will be negatively affected as a result of the Department performing administrative reviews of individual companies that would have otherwise been revoked from an order. One commenter asserts that the proposed change would restrict the ability of U.S. retailers to provide consumers with a variety of high-quality products at affordable prices, undermine U.S. competitiveness, put U.S. jobs at risk, and undermine the Administration’s goal of doubling U.S. exports. Response to Comments: With respect to the comment about consuming industries and other parties that utilize imports that are subject to antidumping or countervailing duty orders, 5 U.S.C. 605(b) requires that the Department consider the ‘‘economic impact on a substantial number of small business entities’’ which includes such parties. The Department provided the analysis required by 5 U.S.C. 605(b) when it issued the Proposed Rule. See Proposed Rule, 76 FR at 15234. More specifically, the Department explained that in the past five years, despite conducting administrative reviews of well over five hundred companies, only 15 companies (of various sizes) have obtained a company-specific revocation under the relevant portions of 19 CFR 351.222. We also believe that in considering the economic impact that this change may have, it is important to take into account the fact that less than two percent of all imports of goods into the United States are subject to antidumping or countervailing duties, and only a very small portion of those imports will ever be affected by this change to the revocation regulations. For these reasons, we continue to find that this change to the revocation regulations will not have a significant economic impact. Comment 7—Calculation of the Margin for Non-Selected Companies One commenter urges that, in light of this regulatory change, the Department should consider carefully its methodology for calculating the rate that is assigned to respondents that are not selected for individual review when the Department limits its examination in an administrative review. It notes that when the Department limits its examination to the largest exporters, it applies to the non-examined companies the average of the individual margins assigned to the mandatory respondents, except for any margins that are zero, de minimis, or based on adverse facts PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 29881 available. It also notes that when all of the mandatory respondents receive margins that are zero, de minimis or based on adverse facts available, the Department bases the margin for the non-selected respondents on the most recently calculated affirmative margin from a previous administrative review. It asserts that this situation is likely to arise with far greater frequency once zeroing in administrative reviews is eliminated and the revocation regulations are modified. It also asserts that over time, a margin for non-selected companies identified in this manner could be based on a margin calculated several years in the past and it would no longer be a reasonable approximation of the pricing behavior of non-selected respondents. Response to Comments: With regard to the Department’s practice or methodology for calculating the rate that is assigned to respondents that are not selected for individual review when the Department limits its examination, we believe it would be premature to try and address that issue in the context of a change to the revocation regulations. It would be more appropriate to evaluate that issue in the context of future antidumping or countervailing duty proceedings. Comment 8—Zeroing in Relation to Company-Specific Revocations One company cites to the possible elimination of zeroing in AD reviews (see Antidumping Proceedings: Calculation of the Weighted Average Dumping Margin and Assessment Rate in Certain Antidumping Proceedings, 75 FR 81533 (December 28, 2010)), and asserts that if the Department stops zeroing, one would expect that a significant number of exporters may qualify for revocation in the years following the change. Another company suggests that eliminating zeroing while retaining the possibility of revocation should materially reduce the Department’s workload after a few years; however, if the Department eliminates both zeroing and revocation, then the Department will waste its resources in repetitious reviews of companies with zero margins. Response to Comments: On February 14, 2012, in response to several WTO dispute settlement reports, the Department adopted a revised methodology which allows for offsets when making average-to-average comparisons in reviews. See Antidumping Proceedings: Calculation of the Weighted-Average Dumping Margin and Assessment Rate in Certain Antidumping Duty Proceedings; Final Modification, 77 FR 8101 (February 14, E:\FR\FM\21MYR1.SGM 21MYR1 29882 Federal Register / Vol. 77, No. 98 / Monday, May 21, 2012 / Rules and Regulations ebenthall on DSK5SPTVN1PROD with RULES 2012). (‘‘Final Modification for Reviews’’). The Final Modification for Reviews makes clear that the revised methodology will apply to antidumping duty administrative reviews where the preliminary results are issued after April 16, 2012. The revision to our calculation methodology in antidumping duty administrative reviews was made to implement certain findings by the WTO Appellate Body with respect to that methodology in several disputes. See United StatesLaws, Regulations and Methodology for Calculating Dumping Margins, WT/ DS294/R, WT/DS294/AB/R, adopted May 9, 2006; United States-Measures Related to Zeroing and Sunset Reviews, WT/DS322/R, WT/DS322/AB/R, adopted Jan. 23, 2007; United StatesFinal Anti-Dumping Measures on Stainless Steel From Mexico, WT/ DS344/R, WT/DS344/AB/R, adopted May 20, 2008; United States-Continued Existence and Application of Zeroing Methodology, WT/DS350/R, WR/DS350/ AB/R, adopted Feb. 19, 2009. The Department’s decision to change the revocation regulations has been made without regard to, and irrespective of, the change in our calculation methodology as a result of the implementation. Moreover, the comments regarding the possible effects of the proposed revision to our calculation methodology in antidumping duty reviews are based solely upon speculation. Comment 9—Revocations of AD and CVD Measures—In Whole Several parties indicate that with respect to revocation or termination in whole, the Department’s regulations would remain substantively unchanged and, therefore, in addressing whether or not to award revocation or termination in whole, the Department will need to consider whether ‘‘all exporters and producers’’ have not dumped for at least three consecutive years or have not applied for or received any net countervailable subsidy for at least five consecutive years, respectively. In light of the fact that the Department often reviews individually only a small number of the foreign exporters and producers covered by an order, they ask the Department to consider and address how these prerequisites for revocation or termination in whole are to be satisfied. They propose that each foreign exporter or producer must demonstrate affirmatively that it met these conditions for the prescribed number of years before revocation or termination in whole will be granted by the Department. One of these parties also asked the Department to consider how VerDate Mar<15>2010 16:13 May 18, 2012 Jkt 226001 to address revocation requests when all mandatory respondents receive rates of zero percent for the requisite number of years under § 351.222(b)(1) and (c)(1)– (2); in particular, whether these rates would be assigned to all non-reviewed companies and, if so, whether the order in whole would then be eligible for revocation. One commenter suggests that in addition to withdrawing the regulations establishing companyspecific revocations at 19 CFR 351.222(b)(2) and (3) and 351.222(c)(3) and (4), the Department should withdraw its regulations providing for country-wide revocations. Response to Comments: We generally agree with the commenters’ assertion that each foreign exporter or producer would have to demonstrate that it met the regulatory requirements for the prescribed number of years before revocation or termination in whole could be granted by the Department. With regard to considering how to address revocation requests when all mandatory respondents receive rates of zero percent for the requisite number of years under §§ 351.222(b)(1) and (c)(1)– (2), we believe it is premature to decide whether such circumstances would warrant a revocation of an order in whole. We will address any such scenarios as they arise in the context of future antidumping or countervailing duty proceedings. In addition, we have not adopted the suggestion that in addition to withdrawing the regulations establishing company-specific revocations at 19 CFR 351.222(b)(2) and (3) and 351.222(c)(3) and (4), the Department should withdraw its regulations providing for country-wide revocations at 19 CFR 351.222(b)(l) (dumping) and 351.222(c)(1) and (2) (subsidies). The Proposed Rule and this Federal Register notice only pertain to company-specific revocations and the issues the Department has experienced and hopes to resolve by eliminating those types of revocations. See the Proposed Rule and Comment 4 above. sales at dumped prices or resume benefitting from countervailable subsidies in violation of trade remedy laws. They suggest that in light of the proposed amendments to 19 CFR 351.222, the Department should maintain the rules that would provide for the reinstatement of partially revoked antidumping and countervailing duty orders. One party suggests that the Department maintain the current version of § 351.222(b)(2)(i)(B), (c)(3)(i)(B), (e)(1)(iii), and (e)(2)(iii)(D) in its regulations but clarify that they apply only to orders that have been partially revoked prior to the effective date of the change in regulations. Response to Comments: We have not adopted the changes proposed by these parties. Any company that has been revoked from an antidumping or countervailing duty order will remain subject to its certified agreement to be reinstated with respect to that order if the Department finds it to have resumed dumping or to be benefitting from a countervailable subsidy. The modification does not absolve the company from its obligations under its existing agreement. Comment 10—Reinstatement of AD and CVD Measures Several commenters requested that the Department not withdraw the subsections of the revocation regulations that deal with the reinstatement of partially revoked orders (i.e., 19 CFR 351.222(b)(2)(i)(B), (e)(1)(iii) (antidumping duty orders) and (c)(3)(i)(B), (e)(2)(iii)(D) (countervailing duty orders)). They contend that if the subsections are removed, it is unclear what recourse would be available to the Department in the event that companies, for which orders have already been partially revoked, resume making U.S. Classification PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 Comment 11—Clerical Error in the Proposed Rule Two commenters assert that the Department made a typographical error in § 351.222(e)(1)(i) of the proposed amendment to the revocation regulations. One commenter suggests that the term ‘‘the person’’ may need to be changed to the plural form to conform to ‘‘all exporters and producers.’’ The other suggests that the reference to ‘‘the person’’ be changed to ‘‘the exporter or producer in each instance.’’ Response to Comments: We agree that there is a typographical error in § 351.222(e)(1)(i) of the Proposed Rule. The term ‘‘the person’’ needs to be in a plural form, so we have changed the term to ‘‘they’’. Executive Order 12866 The rule has been determined to be not significant for purposes of Executive Order 12866. Regulatory Flexibility Act The Chief Counsel for Regulation has certified to the Chief Counsel for Advocacy of the Small Business Administration (‘‘SBA’’) under the provisions of the Regulatory Flexibility Act, 5 U.S.C. 605(b), that the proposed rule would not have a significant economic impact on a substantial E:\FR\FM\21MYR1.SGM 21MYR1 Federal Register / Vol. 77, No. 98 / Monday, May 21, 2012 / Rules and Regulations number of small business entities. The factual basis for the certification was published in the Proposed Rule. The Department received comments regarding the factual basis for this decision, and has summarized and responded to those comments in the above section of this notice entitled ‘‘Comment 4—Reasons for Discontinuing Company-Specific Revocations’’. Based upon the Department’s analysis, as discussed above, the factual basis used in the Proposed Rule to determine that the rule, if promulgated, would not have a significant impact on a substantial number of small business entities did not change. As a result, a Final Regulatory Flexibility analysis is not required and has not been prepared. Paperwork Reduction Act This rule does not contain a collection of information for purposes of the Paperwork Reduction Act of 1980, as amended (44 U.S.C. 3501 et seq.). List of Subjects in 19 CFR Part 351 Administrative practice and procedure, Antidumping, Business and industry, Cheese, Confidential business information, Countervailing duties, Freedom of information, Investigations, Reporting and recordkeeping requirements. Dated: May 15, 2012. Paul Piquado, Assistant Secretary for Import Administration. For the reasons stated, 19 CFR part 351 is amended as follows: PART 351—ANTIDUMPING AND COUNTERVAILING DUTIES 1. The authority citation for 19 CFR 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. 2. In § 351.222, revise paragraphs (a), (b), (c), (e), and (f), remove paragraph (m), and redesignate paragraph (n) as paragraph (m) to read as follows: ■ ebenthall on DSK5SPTVN1PROD with RULES § 351.222 Revocation of orders; termination of suspended investigations. (a) Introduction. ‘‘Revocation’’ is a term of art that refers to the end of an antidumping or countervailing proceeding in which an order has been issued. ‘‘Termination’’ is the companion term for the end of a proceeding in which the investigation was suspended due to the acceptance of a suspension agreement. Generally, a revocation or termination may occur only after the Department or the Commission has conducted one or more reviews under section 751 of the Act. This section VerDate Mar<15>2010 17:16 May 18, 2012 Jkt 226001 contains rules regarding requirements for a revocation or termination; and procedures that the Department will follow in determining whether to revoke an order or terminate a suspended investigation. (b) Revocation or termination based on absence of dumping. (1) In determining whether to revoke an antidumping duty order or terminate a suspended antidumping investigation, the Secretary will consider: (i) Whether all exporters and producers covered at the time of revocation by the order or the suspension agreement have sold the subject merchandise at not less than normal value for a period of at least three consecutive years; and (ii) Whether the continued application of the antidumping duty order is otherwise necessary to offset dumping. (2) If the Secretary determines, based upon the criteria in paragraphs (b)(1)(i) and (ii) of this section, that the antidumping duty order or suspension of the antidumping duty investigation is no longer warranted, the Secretary will revoke the order or terminate the investigation. (c) Revocation or termination based on absence of countervailable subsidy. (1)(i) In determining whether to revoke a countervailing duty order or terminate a suspended countervailing duty investigation, the Secretary will consider: (A) Whether the government of the affected country has eliminated all countervailable subsidies on the subject merchandise by abolishing for the subject merchandise, for a period of at least three consecutive years, all programs that the Secretary has found countervailable; (B) Whether exporters and producers of the subject merchandise are continuing to receive any net countervailable subsidy from an abolished program referred to in paragraph (c)(1)(i)(A) of this section; and (C) Whether the continued application of the countervailing duty order or suspension of countervailing duty investigation is otherwise necessary to offset subsidization. (ii) If the Secretary determines, based upon the criteria in paragraphs (c)(1)(i)(A) through (C) of this section, that the countervailing duty order or suspension of the countervailing duty investigation is no longer warranted, the Secretary will revoke the order or terminate the suspended investigation. (2)(i) In determining whether to revoke a countervailing duty order or terminate a suspended countervailing duty investigation, the Secretary will consider: PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 29883 (A) Whether all exporters and producers covered at the time of revocation by the order or the suspension agreement have not applied for or received any net countervailable subsidy on the subject merchandise for a period of at least five consecutive years; and (B) Whether the continued application of the countervailing duty order or suspension of the countervailing duty investigation is otherwise necessary to offset subsidization. (ii) If the Secretary determines, based upon the criteria in paragraphs (c)(2)(i)(A) and (B) of this section, that the countervailing duty order or the suspension of the countervailing duty investigation is no longer warranted, the Secretary will revoke the order or terminate the suspended investigation. * * * * * (e) Request for revocation or termination—(1) Antidumping proceeding. During the third and subsequent annual anniversary months of the publication of an antidumping order or suspension of an antidumping investigation, any exporter or producer may request in writing that the Secretary revoke an order or terminate a suspended investigation under paragraph (b) of this section if the person submits with the request: (i) Certifications for all exporters and producers covered by the order or suspension agreement that they sold the subject merchandise at not less than normal value during the period of review described in § 351.213(e)(1), and that in the future they will not sell the merchandise at less than normal value; and (ii) Certifications for all exporters and producers covered by the order or suspension agreement that, during each of the consecutive years referred to in paragraph (b) of this section, they sold the subject merchandise to the United States in commercial quantities. (2) Countervailing duty proceeding. (i) During the third and subsequent annual anniversary months of the publication of a countervailing duty order or suspension of a countervailing duty investigation, the government of the affected country may request in writing that the Secretary revoke an order or terminate a suspended investigation under paragraph (c)(1) of this section if the government submits with the request its certification that it has satisfied, during the period of review described in § 351.213(e)(2), the E:\FR\FM\21MYR1.SGM 21MYR1 ebenthall on DSK5SPTVN1PROD with RULES 29884 Federal Register / Vol. 77, No. 98 / Monday, May 21, 2012 / Rules and Regulations requirements of paragraph (c)(1)(i) of this section regarding the abolition of countervailable subsidy programs, and that it will not reinstate for the subject merchandise those programs or substitute other countervailable subsidy programs; (ii) During the fifth and subsequent annual anniversary months of the publication of a countervailing duty order or suspended countervailing duty investigation, the government of the affected country may request in writing that the Secretary revoke an order or terminate a suspended investigation under paragraph (c)(2) of this section if the government submits with the request: (A) Certifications for all exporters and producers covered by the order or suspension agreement that they have not applied for or received any net countervailable subsidy on the subject merchandise for a period of at least five consecutive years (see paragraph (c)(2)(i) of this section); (B) Those exporters’ and producers’ certifications that they will not apply for or receive any net countervailable subsidy on the subject merchandise from any program the Secretary has found countervailable in any proceeding involving the affected country or from other countervailable programs (see paragraph (c)(2)(ii) of this section); and (C) A certification from each exporter or producer that, during each of the consecutive years referred to in paragraph (c)(2) of this section, that person sold the subject merchandise to the United States in commercial quantities. (f) Procedures. (1) Upon receipt of a timely request for revocation or termination under paragraph (e) of this section, the Secretary will consider the request as including a request for an administrative review and will initiate and conduct a review under § 351.213. (2) When the Secretary is considering a request for revocation or termination under paragraph (e) of this section, in addition to the requirements of § 351.221 regarding the conduct of an administrative review, the Secretary will: (i) Publish with the notice of initiation under § 351.221(b)(1), notice of ‘‘Request for Revocation of Order’’ or ‘‘Request for Termination of Suspended Investigation’’ (whichever is applicable); (ii) Conduct a verification under § 351.307; (iii) Include in the preliminary results of review under § 351.221(b)(4) the Secretary’s decision whether there is a reasonable basis to believe that the VerDate Mar<15>2010 16:13 May 18, 2012 Jkt 226001 requirements for revocation or termination are met; (iv) If the Secretary decides that there is a reasonable basis to believe that the requirements for revocation or termination are met, publish with the notice of preliminary results of review under § 351.221(b)(4) notice of ‘‘Intent To Revoke Order’’ or ‘‘Intent To Terminate Suspended Investigation’’ (whichever is applicable); (v) Include in the final results of review under § 351.221(b)(5) the Secretary’s final decision whether the requirements for revocation or termination are met; and (vi) If the Secretary determines that the requirements for revocation or termination are met, publish with the notice of final results of review under § 351.221(b)(5) notice of ‘‘Revocation of Order’’ or ‘‘Termination of Suspended Investigation’’ (whichever is applicable). (3) If the Secretary revokes an order, the Secretary will order the suspension of liquidation terminated for the merchandise covered by the revocation on the first day after the period under review, and will instruct the Customs Service to release any cash deposit or bond. * * * * * [FR Doc. 2012–12257 Filed 5–18–12; 8:45 am] BILLING CODE 3510–DS–P DEPARTMENT OF THE TREASURY RIN 1505—AC42 Assessment of Fees on Large Bank Holding Companies and Nonbank Financial Companies Supervised by the Federal Reserve Board To Cover the Expenses of the Financial Research Fund Departmental Offices, Treasury. Final rule and interim final rule. AGENCY: The Department of the Treasury is issuing this final rule and interim final rule to implement Section 155 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (‘‘Dodd-Frank Act’’), which directs the Treasury to establish by regulation an assessment schedule for bank holding companies with total consolidated assets of $50 billion or greater and nonbank financial companies supervised by the Board of Governors of the Federal Reserve (‘‘the Board’’) to collect assessments equal to the total expenses of the Office of Financial Research (‘‘OFR’’ or ‘‘the Office’’). SUMMARY: PO 00000 Frm 00032 Fmt 4700 Effective date for final rule: July 20, 2012. Effective date for interim final rule: Sections 150.2, 150.3(b), 150.5, and 150.6(a) and (b), which relate to nonbank financial companies, are effective on July 20, 2012 Comment due date: September 18, 2012. Comments are invited on §§ 150.2, 150.3(b)(4), 150.5, and 150.6(a) and (b), which relate to nonbank financial companies. DATES: Submit comments electronically through the Federal eRulemaking Portal: http:// www.regulations.gov, or by mail (if hard copy, preferably an original and two copies) to: The Treasury Department, Attn: Financial Research Fund Assessment Comments, 1500 Pennsylvania Avenue NW., Washington, DC 20220. Because paper mail in the Washington, DC area may be subject to delay, it is recommended that comments be submitted electronically. Please include your name, affiliation, address, email address, and telephone number in your comment. Comments will be available for public inspection on www.regulations.gov. In general comments received, including attachments and other supporting materials, are part of the public record and are available to the public. Do not submit any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure. ADDRESSES: 31 CFR Part 150 ACTION: Included in the Office’s expenses are expenses of the Financial Stability Oversight Council (‘‘FSOC’’ or ‘‘the Council’’), as provided under Section 118 of the Dodd-Frank Act, and certain expenses of the Federal Deposit Insurance Corporation (‘‘FDIC’’), as provided under Section 210 of the Dodd-Frank Act. The portion of this rule concerning the assessment schedule for bank holding companies is issued as a final rule. The portion of this rule related to the assessments for nonbank financial companies supervised by the Board is issued as an interim final rule, to allow for the consideration of additional comments in conjunction with related FSOC rules. This final rule and interim final rule establish the key elements of Treasury’s assessment program, which will collect semiannual assessment fees from these companies beginning on July 20, 2012. These rules take into account the comments received on the January 3, 2012 proposed rule and make minor revisions pursuant to the comments. Sfmt 4700 FOR FURTHER INFORMATION CONTACT: Jonathan Sokobin: (202) 927–8172. SUPPLEMENTARY INFORMATION: E:\FR\FM\21MYR1.SGM 21MYR1

Agencies

[Federal Register Volume 77, Number 98 (Monday, May 21, 2012)]
[Rules and Regulations]
[Pages 29875-29884]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-12257]


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DEPARTMENT OF COMMERCE

International Trade Administration

19 CFR Part 351

[Docket No. 110315198-1622-02]
RIN 0625-AA86


Modification to Regulation Concerning the Revocation of 
Antidumping and Countervailing Duty Orders

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

ACTION: Final rule.

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SUMMARY: The Department of Commerce (the Department) is amending its 
regulations concerning the revocation of antidumping and countervailing 
duty orders in whole or in part, and the termination of suspended 
antidumping and countervailing duty investigations. This rule 
eliminates the provision for revocation of an antidumping or 
countervailing duty order with respect to individual exporters or 
producers

[[Page 29876]]

based on those individual exporters or producers having received 
antidumping rates of zero for three consecutive years, or 
countervailing duty rates of zero for five consecutive years.

DATES: This Final Rule is effective June 20, 2012. This rule will apply 
to all reviews that are initiated on or after June 20, 2012.

FOR FURTHER INFORMATION CONTACT: James Maeder at (202) 482-3330, Mark 
Ross at (202) 482-4794, or Jonathan Zielinski at (202) 482-4384.

SUPPLEMENTARY INFORMATION: 

Background

    On March 21, 2011, the Department published a proposed rule 
entitled ``Proposed Modification to Regulation Concerning the 
Revocation of Antidumping and Countervailing Duty Orders'' that would 
modify its regulations concerning the revocation of antidumping and 
countervailing duty orders. (76 FR 15233). The Proposed Rule detailed 
proposed changes to the Department's regulations that provide for 
revocation of antidumping and countervailing duty orders. Certain 
parties commented on the Proposed Rule, and the Department has 
addressed those comments in the section below entitled ``Response to 
Comments on the Proposed Rule''.
    After analyzing and carefully considering all of the comments that 
the Department received in response to the Proposed Rule, the 
Department is adopting the proposed changes and is amending its 
regulations to eliminate the provision for revocation of an antidumping 
or countervailing duty order with respect to individual exporters or 
producers based on those individual exporters or producers having 
received antidumping rates of zero for three consecutive years, or 
countervailing duty rates of zero for five consecutive years. The 
Proposed Rule, comments received, and this Final Rule can be accessed 
using the Federal eRulemaking Portal at http://www.regulations.gov 
under Docket Number ITA-2011-0001.

Explanation of Changes to 19 CFR 351.222

    To implement this rule, the Department is removing 19 CFR 
351.222(b)(2) and (3) (dumping) and 351.222(c)(3) and (4) 
(countervailable subsidy), and is making conforming changes as 
necessary to the remaining paragraphs of 19 CFR 351.222. In addition, 
the Department is amending 19 CFR 351.222(f)(2) to make it clear that a 
request for revocation that does not conform with the requirements of 
paragraph (e) does not require the Secretary to undertake the actions 
provided for in paragraphs (f)(2)(i) through (f)(2)(vi). The Department 
also is correcting a grammatical error in the third sentence of 19 CFR 
351.222(a) (changing ``have'' to ``has'') and deleting 19 CFR 
351.222(m) (a provision related to the Uruguay Round Agreements Act 
that is no longer applicable). Finally, the Department is correcting a 
typographical error in Sec.  351.222(e)(1)(i) that was identified in 
comments on the Proposed Rule (changed ``the person'' to ``they''). The 
Department is retaining, with some conforming changes, the sections of 
19 CFR 351.222 that regard revocations of orders in whole. The 
Department is not making any changes with respect to revocations as 
described under paragraphs (g) through (l) of 19 CFR 351.222.

Response to Comments on the Proposed Rule

    The Department received numerous comments on the Proposed Rule. As 
indicated in the ``Background'' section, these comments can be accessed 
using the Federal eRulemaking Portal at http://www.regulations.gov 
under Docket Number ITA-2011-0001. The Department analyzed and 
carefully considered all of the comments received. Below is a summary 
of the comments, grouped by issue category and followed by the 
Department's response.

Comment 1--U.S. Law, the WTO Agreements, and Company-Specific 
Revocations

    Some commenters assert that the use of the word ``may'' in Section 
751(d)(l) of the Tariff Act of 1930, as amended (the ``Act''), makes it 
clear that Congress fully delegated to the Department the authority to 
prescribe the specific conditions under which revocation of an order, 
whether in whole or in part, is appropriate. Some commenters also 
assert that, given the availability of revocation and termination in 
whole or in part in changed circumstances reviews and in whole in five-
year sunset reviews, respondents seeking relief from antidumping or 
countervailing duties have more than ample opportunity to achieve that 
goal without the company-specific avenue contained in 19 CFR 
351.222(b)(2) and (b)(3) and 351.222(c)(3) and (c)(4). Further, in 
addition to not being required by U.S. law, some parties assert that 
the company-specific revocation provisions are not required by any of 
the relevant WTO agreements. These parties assert that the WTO dispute 
settlement panel in United States--Anti-Dumping Measures on Oil Country 
Tubular Goods, paragraph 7.166, WT/DS282/R (adopted June 20, 2005) 
found that 19 CFR 351.222(b)(2) of the Department's regulations was not 
required by the United States' WTO obligations because there was an 
opportunity for foreign companies to request revocation under the 
changed circumstances review provisions (i.e., 19 CFR 351.222(g)).
    Some commenters suggest that further cost savings can be attained 
by withdrawing the regulations providing for country-wide revocations 
at 19 CFR 351.222(b)(l) (dumping) and 351.222(c)(1) and (2) 
(subsidies). They assert that, because as part of a sunset review the 
Department already considers whether there has been continued dumping 
or subsidies after issuance of an order, there is no compelling need to 
maintain the company-specific and country-wide revocation procedures 
set forth at 19 CFR 351.222(b) and (c).
    One commenter asserts that when a company demonstrates that it has 
not dumped its products over a certain period of time, the statue no 
longer justifies binding that company to costly administrative reviews. 
Another party asserts that the statute calls for revocation ``in whole 
or in part'' based on administrative review results, and that this is 
evidence of the drafters' intent to allow for other means of revocation 
besides termination of the order itself. One party asserted that the 
proposed rule, if implemented, would essentially eliminate the only 
viable opportunity for revocation for individual exporters/producers. 
Several commenters note that company-specific revocations have been a 
practice for many years and assert that parties have relied upon that 
practice in the expectation of being granted a revocation in part.
    One commenter asserts that the additional risk inherent in the U.S. 
retrospective system is partly offset by the possibility of revocation, 
and requests that the Department take this into account in assessing 
whether to eliminate company-specific revocations of antidumping and 
countervailing duty orders. One party proposes that the Department's 
current revocation provisions remain in effect for developing countries 
as a form of special and differential treatment per Article 15 of the 
Antidumping Agreement and Article 27 of the Agreement on Subsidies and 
Countervailing measures. Another commenter contends that pursuant to 
Articles 11 of the Antidumping Agreement, WTO members can only continue 
an antidumping duty order ``to

[[Page 29877]]

the extent necessary'' to ``counteract dumping'' and must consider the 
request of ``any interested party'' to ``examine whether the continued 
imposition of the duty is necessary to offset dumping.'' Citing Amended 
Regulation Concerning the Revocation of Antidumping and Countervailing 
Duty Orders; Final Rule, 64 FR 51226 (September 22, 1999), the party 
asserts that in that Federal Register notice the Department concluded 
that Article 11.2 of the Antidumping Agreement requires the Department 
to revoke an antidumping order for any exporter who demonstrates the 
absence of dumping for three years, provided there is no evidence of 
record to the contrary. One party asserts that the Department 
vigorously defended company-specific revocations pursuant to Article 11 
of the Antidumping Agreement in WTO litigation (citing report of WTO 
Panel, United States--Antidumping duty on Dynamic Random Access Memory 
Semiconductors from Korea, WT/DS99/R (adopted March 19, 1999) (DRAMS).
    Response to Comments: Company-specific revocations are not required 
by U.S. law, and thus, the elimination of such revocations is 
consistent with U.S. law. Section 751(d)(1) of the Act states, in 
relevant part, that the Department ``may revoke, in whole or in part * 
* * .'' an antidumping or countervailing duty order. As several parties 
note, the use of the word ``may'' indicates that revocations under this 
section of the Act, whether in whole or in part, are not required. 
Because the authority for company-specific revocations derives from 
section 751(d)(1) of the Act, those types of revocations are not 
mandatory.
    We agree that section 751(d)(1) of the Act permits revocations 
other than revocation of an order in whole, i.e., the provision permits 
the Department to revoke an order in part. The Act does not, however, 
define what it means to revoke an order in part. See Sahaviriya Steel 
Ind. Pub Co. Ltd. v. United States, No. 2010, slip op. at 9-10 (Fed. 
Cir. June 17, 2011). The Department has the discretion to interpret 
this provision, and is not required to interpret it to include company-
specific revocations. The Proposed Rule does not affect other types of 
revocations in part. For example, orders may continue to be revoked in 
part if a party demonstrates a lack of interest in maintaining the 
order on a certain type of subject merchandise by substantially all of 
the domestic industry. See, e.g., Certain Pasta from Italy; Final 
Results of Countervailing Duty Changed Circumstances Review and 
Revocation, In Part, 76 FR 27634 (May 12, 2011).
    Regarding the comment from several parties that company-specific 
revocations have been a practice for many years and that parties have 
relied upon that practice in the expectation of being granted a 
revocation in part, the age of a practice does not affect the legality 
of its elimination. Rather, the Department has the authority to change 
its practice at any time provided that it gives a reasoned explanation 
for its change. See Allegheny Ludlum Corp. v. United States, 346 F.3d 
1368, 1373 (Fed. Cir. 2003) (Allegheny Ludlum). In the Proposed Rule 
and the below sections entitled ``Comment 2--Whether the Department 
Provided a Reasoned Analysis for the Proposed Rule'' and ``Comment 4--
Reasons for Discontinuing Company-Specific Revocations'', the 
Department further explains its rationale for eliminating company-
specific revocations. Moreover, the Department has provided parties 
ample notice of the change and opportunity to comment, and took those 
comments into consideration for this Final Rule. In any event, the 
statute and the regulation make clear that revocation is discretionary.
    Regarding the comments from several parties that the Proposed Rule 
would be contrary to the United States' obligations under the 
Antidumping Agreement, we disagree. We note that the Act ``is intended 
to bring U.S. law fully into compliance with U.S. obligations under 
[the WTO Agreements].'' See SAA accompanying the URAA, HR Doc 316, Vol. 
1, 103d Cong (1994) at 669. And, as explained above, U.S. law does not 
require company-specific revocations. Moreover, there is nothing in 
Article 11 of the Antidumping Agreement that requires company-specific 
revocations. We also note that the Department is not eliminating its 
practice, as codified in its regulations, of revoking an order in whole 
based on the absence of dumping.
    Regarding the argument that the Department defended company-
specific revocations pursuant to Article 11 of the Antidumping 
Agreement in the DRAMS dispute, that dispute concerned the evidence 
that could be relied upon in determining whether revocation was proper. 
The Department's regulation at the time required it to determine that 
sales of subject merchandise at below normal value in the future were 
not likely. The Panel considered whether this ``not likely'' standard 
was consistent with the requirements of Article 11.2 of the Antidumping 
Agreement, and determined that it was not. This dispute was not about 
whether company-specific revocations were required by the Antidumping 
Agreement, and the Panel's findings did not involve that issue.
    Finally, with regard to the suggestion that the company-specific 
revocation regulations remain in effect for developing countries as a 
form of special and differential treatment per Article 15 of the 
Antidumping Agreement and Article 27 of the Agreement on Subsidies and 
Countervailing measures, neither Article requires company-specific 
revocations, and we have not adopted this suggestion.

Comment 2--Whether the Department Provided a Reasoned Analysis for the 
Proposed Rule

    Several commenters assert that U.S. administrative law requires 
that the Department provide a ``reasoned analysis'' for this proposed 
change to the regulations, and that the Proposed Rule lacked a 
``reasoned analysis'' because the Department did not explain why the 
Proposed Rule is being undertaken and why the facts and circumstances 
that underlay the existing revocation policy should be disregarded. 
They assert that, because the Department has not provided a reasoned 
analysis or the basic factual assumptions underlying the Proposed Rule, 
interested parties have been denied a meaningful opportunity to 
comment. One of these parties cites Motor Veh. Mfrs. Ass'n v. State 
Farm Ins., 463 U.S. 29, 42, in support of its assertion that U.S. 
administrative law requires that the Department provide a ``reasoned 
analysis'' for this proposed change to the regulations. It argues 
further that pursuant to the U.S. Supreme Court ruling in FCC v. Fox 
Television Stations, Inc., 556 U.S. 502 (2009), ``a reasoned 
explanation is needed for disregarding facts and circumstances that 
underlay or were engendered by the prior policy.'' The same party cites 
that in a prior rulemaking exercise the Department stated that it ``has 
consistently considered that an absence of dumping for three 
consecutive years was indicative that a foreign respondent was not 
likely to sell at less than normal value in the future.'' See Proposed 
Regulation Concerning Revocation of Antidumping Duty Orders; Notice of 
Proposed Rulemaking, 64 FR 29818 (June 3, 1999). It contends that in 
the Proposed Rule the Department made no effort to refute this 
statement, and that by not explaining the proposed change the 
Department's proposal runs afoul of the Administrative Procedures Act. 
The party also asserts that because the Department has not provided a 
reasoned analysis or the basic factual

[[Page 29878]]

assumptions underlying the proposed change, interested parties have 
been denied a meaningful opportunity to comment.
    Response to Comments: The Department explained its reasons for 
eliminating company-specific revocations in the Proposed Rule. 
Specifically, the Department stated that it was proposing the 
elimination of company-specific revocations because: (1) The existing 
regulation requires the Department to expend additional resources in 
conducting administrative reviews where a request for company-specific 
revocation is being considered; (2) only a small fraction of the 
companies the Department reviews are ultimately found to be eligible 
for a company-specific revocation; (3) to the extent that eligible 
companies maintain antidumping duty or countervailing duty rates of 
zero percent, the proposal would not change the amount of duties 
applied to subject entries; and (4) many of the companies for which 
reviews have been requested may not have the opportunity to amass the 
three antidumping rates of zero percent or five countervailing duty 
rates of zero percent necessary to be eligible for a company-specific 
revocation because the Department frequently is not able to examine all 
companies under review. The Department further stated that ``[r]ather 
than administering the company-specific revocation regulations in a 
manner that does not afford equitable opportunity to all companies to 
seek revocation, and in light of the additional factors noted, the 
Department proposes to eliminate the company-specific revocation 
regulations.''
    The Department may change its practice at any time as long as it 
provides a reasoned explanation for the change. See Allegheny Ludlum. 
Here, the Department provided a reasoned explanation. The Department 
explained the burden on its resources that company-specific revocation 
reviews entail. It is reasonable for the Department to make changes in 
response to its resource constraints. See Pakfood Public Co. Ltd. v. 
United States, 753 F. Supp 2d 1334 (Ct. of International Trade 2011) 
(holding that administrative convenience is a valid reason for a change 
in practice).
    The Department has not ignored the circumstances that supported the 
existence of the regulation in the first place, but rather has 
determined that it is no longer appropriate to continue the practice in 
light of current resources for the reasons described in the Proposed 
Rule.

Comment 3--Effective Date

    Some commenters ask that the Department adopt and implement the 
proposed change to the revocation regulations immediately (i.e., make 
the change applicable to all administrative reviews currently pending 
before the Department). Others request that the Department continue to 
allow for revocations in all ongoing reviews in which a revocation 
request has been made. One commenter suggests that the Department 
``grandfather in'' any company that had reviews of itself initiated 
prior to the adoption of this rule to give them the opportunity to earn 
three zeros and, ultimately, revocation. Another party expresses 
concern that the proposal could undermine legitimate expectations of 
exporters, given uncertainty over entry into force of the proposed 
change.
    Response to Comments: As indicated in the DATES section above, this 
Final Rule will apply to all reviews that are initiated on or after 
June 20, 2012. The Department believes that this is a fair and 
reasonable approach to the effective date issue for this particular 
change. Importantly, implementing the Final Rule in this manner will 
provide parties that have requested revocation in ongoing reviews the 
opportunity to complete those reviews and obtain a revocation should 
they meet the regulatory requirements in effect when that review was 
initiated.

Comment 4--Reasons for Discontinuing Company-Specific Revocations

a. Conserve Resources
    Some commenters agree with the Department's assertion that, 
pursuant to the existing regulation, the Department is required to 
expend additional resources, including additional mandatory 
verifications, in conducting administrative reviews when company-
specific revocations are being considered. They assert, therefore, that 
the change will help to conserve resources as the Department will save 
money by not having to conduct ``mandatory verifications.'' They also 
argue that the Department will have fewer requests for review, as 
companies that are already subject to low deposit rates will be less 
likely to request a review and there will be less of an incentive for 
companies to ``engineer'' sales for purposes of achieving revocation, 
rather than for normal commercial considerations. The parties contend 
that the Department will also save resources by not having to conduct 
the changed circumstance reviews that are currently needed to determine 
whether an exporter, once revoked, needs to be reinstated in the order. 
Finally, they contend that removal of the country-wide revocation 
procedures is permissible and would result in further cost savings.
    Another party cites to burdens on the U.S. government that are 
created by circumvention and evasion of trade relief with respect to 
certain trade remedies, and asserts that such circumstances demonstrate 
the importance of the proposed changes to the revocation regulations. 
It asserts that the individual exporter exclusions provided for under 
the regulations at issue substantially complicate U.S. Customs and 
Border Protection's responsibilities for enforcement of antidumping 
orders, and cites to certain duty evasion issues that the U.S. 
government experienced while administering certain antidumping 
measures. It contends that company-specific exclusions can also 
necessitate a significant allocation of resources by the domestic 
industry to monitor shipments, and try and prevent circumvention of the 
trade relief.
    Some commenters assert that revocations actually reduce 
administrative burdens by eliminating the need for administrative 
reviews of companies that are revoked from an antidumping or 
countervailing duty order, and that by continuing to grant company-
specific revocations the Department will free up resources to review 
other companies. One party asserts that there is no reason to presume 
that the availability of revocations increases the number of 
proceedings the Department must undertake. For example, it contends 
that in a case with a small number of exporters to the U.S. market, 
revocations could reduce the Department's case load. Other commenters 
assert that it would be an inefficient use of resources to review 
companies over and over when they have demonstrated that they do not 
engage in dumping. A few parties contend that the Proposed Rule will 
consume more resources because companies will never have a chance for 
revocation and will bear the expense and burden of participating in 
more reviews. Some commenters request that the Department find other 
ways to reduce burdens so that it is able to continue to administer 
company-specific revocations under the regulations at issue (e.g., 
create a more efficient and less rigorous process for administrative 
reviews, make verifications discretionary, allow exporters to certify 
they are not dumping when they believe that to be the case).

[[Page 29879]]

    One party argues that because the number of companies who are 
eligible for a company-specific revocation is so small, the additional 
resources, including additional mandatory verifications that the 
Department cites as a reason for the proposed change, cannot be so 
great. It also asserts that over time the proposed change will increase 
the resources expended on reviews as companies continue to request 
reviews to receive zero or low duty rates. The same party asserts that 
if the company-specific revocation regulations remain in effect, the 
Department and other U.S. federal agencies (e.g., Customs and Border 
Protection) may ultimately save resources as the pool of respondents 
subject to review diminishes over time.
    Another party asserts that since money is collected from respondent 
parties in the form of antidumping duties and it is relatively 
inexpensive to conduct a revocation proceeding, the Department should 
not eliminate the revocation provision in the name of resource 
constraints. It argues that any additional resources that may be 
required for considering a revocation request are minimal, and suggests 
that the Department instead conserve resources by limiting the ability 
of domestic producers to request verification.
    Response to Comments: The Department believes that the change will 
result in savings as it will no longer have to expend the additional 
resources associated with the conduct of administrative reviews, 
particularly mandatory verifications, when requests for company-
specific revocations are being considered. In addition, the Department 
anticipates cost savings from not having to conduct changed 
circumstances reviews currently needed to determine whether an 
exporter, once excluded, should be reinstated in the order.
    With regard to various conflicting arguments that the change will 
result in either a decrease or an increase in the number of reviews 
that are requested and, therefore, that cost savings may or may not 
actually be realized, we find them to be based on speculation as to the 
motivations of individual parties who may request reviews. Pursuant to 
19 CFR 351.213(b), an administrative review of an exporter or producer 
may be requested by a domestic interested party, a foreign government, 
an exporter or a producer, or an importer. The Department is in no 
position to determine for any given proceeding what a particular 
party's motivations would be in deciding to request a review and how 
the change may influence its decision. However, the Department would 
note that there would be no reason for a respondent, with a zero or de 
minimis cash deposit rate, to request another administrative review but 
for the possibility of revocation.
    Regarding the comment suggesting the elimination of the country-
wide revocation procedures as an additional means to save resources, 
the Proposed Rule and this Federal Register notice only pertain to 
company-specific revocations and the issues the Department has 
experienced and hopes to resolve by eliminating those types of 
revocations. The Final Rule does not include any changes to the parts 
of the revocation regulations that concern country-wide revocations.
    With regard to the suggestion that company-specific revocations 
should be eliminated because they may be tied to circumvention or duty 
evasion issues that necessitate a significant allocation of resources 
by the domestic industry to monitor shipments, we have not relied on 
this claim as a basis for our decision to implement the proposed rule 
since we do not have evidence of increased burdens associated with such 
monitoring.
    With regard to the suggestion that the Department conserve 
resources by limiting the ability of domestic producers to request 
verifications, we find that our current regulations provide appropriate 
guidance and flexibility for the conduct of verifications requested by 
domestic producers in light of the Department's resource 
considerations. Finally, if necessary, we may in the future consider 
additional cost-savings measures in addition to the savings associated 
with the changes made by this rule.
b. A Small Portion of Reviewed Companies Have Been Found To Be Eligible 
for a Company-Specific Revocation
    Several commenters assert that the small portion of companies found 
to be eligible for company-specific revocation is not a relevant factor 
to cite in support of changing the regulations. One commenter asserts 
that such a statistic is simply a consequence of the difficulty of 
satisfying the requirements for revocation. Another asserts that this 
measurement is not relevant to the antidumping orders on exports from 
its country because a number of companies were revoked from one of 
those antidumping orders. Several commenters argue that the small 
number of company-specific revocations supports that the existing 
revocation regulations do not have a material impact on the 
Department's resources.
    Response to Comments: We disagree with the assertion that the 
number of reviewed companies that the Department has ultimately found 
to be eligible for a company-specific revocation is not an important 
factor to cite in support of modifying 19 CFR 351.222. As indicated in 
the Proposed Rule, while the Department annually conducts 
administrative reviews of hundreds of foreign companies subject to 
antidumping or countervailing duty orders, only a small fraction of the 
reviewed companies are ultimately found to be eligible for a company-
specific revocation. Moreover, in evaluating this matter in terms of 
the burden and administrative procedures involved, it is important to 
consider that many of the companies that request a company-specific 
revocation under the regulations at issue go through the process of 
being reviewed but are, ultimately, not found to be eligible for a 
company-specific revocation. We examined the review requests for orders 
that were in effect between 2005 and 2009 and learned that roughly 75% 
of the company-specific revocation requests that we received ultimately 
were denied. Many of the companies that requested partial revocation 
under the regulations at issue did not obtain one because either: (1) 
The company was still dumping; (2) the company did not make sales in 
commercial quantities; (3) the company withdrew its request for 
revocation and/or review after we initiated the review; (4) a 
revocation of the entire order via the sunset review process took place 
prior to completion of our review of the company-specific revocation 
request; or (5) the company was not selected as a respondent because 
the Department did not have the resources to proceed with a company-
specific examination. Thus, with the status quo, the Department can 
expect to continue to expend significant resources examining 
unsuccessful requests for company-specific revocations. Instead, the 
Department has determined, in part, to eliminate the disconnect between 
the large amount of resources expended conducting these company-
specific revocation reviews and the few companies that benefit.
    We also disagree with the assertion by one commenter that, with 
respect to antidumping orders on exports from its country, the small 
fraction of the reviewed companies the Department ultimately found 
eligible for a company-specific revocation is not a relevant factor to 
cite in support of modifying 19 CFR 351.222. The commenter indicates 
that a number of companies

[[Page 29880]]

were revoked from one of the antidumping orders on imports from its 
country. Nonetheless, in evaluating and deciding on this particular 
change to the regulations our focus has been on all antidumping and 
countervailing duty orders/measures that are administered by the 
Department, not just revocation requests for one particular measure, 
industry, or country.
c. This Amendment Will Not Change the Amount of Duties Applied to 
Entries Subject to Antidumping or Countervailing Duty Orders Where the 
Duty Rates Remain Zero
    Some parties agree with the Department's reliance on this factor. 
Others argue that, when companies maintain antidumping or 
countervailing duty rates of zero percent, both the Department and 
interested parties are expending resources on reviews of companies that 
are unlikely to dump or receive countervailable subsidies in the 
future. Another party asserts that the Department's rationale does not 
take into account the unpredictability and costs imposed by antidumping 
and countervailing duty orders. One party comments that the Department 
appears to be saying that its proposal is revenue neutral because it 
would not affect the amount of duties applied, and asserts that the 
amount of revenue collected in antidumping or countervailing duties is 
not a matter within the jurisdiction of the Department.
    Response to Comments: The Department's statement is a matter of 
fact--if a company maintains an antidumping or countervailing duty rate 
of zero, its duty liability will not change as a result of this 
amendment. As for arguments concerning the expenditure of resources in 
the conduct of reviews for companies that maintain zero dumping or 
countervailing duty rates, such arguments are based on conjecture about 
the future pricing behavior of those companies and future subsidization 
by governments. It also assumes that interested parties will request 
reviews of those companies. We are not in a position to predict such 
future behavior. The Department's point is that, as long as a company 
maintains a dumping or countervailing duty rate of zero, it will incur 
no antidumping or countervailing duty liability. The Department's 
reference to this change not impacting the amount of duties collected 
was simply an effort to consider the burden of the proposal on parties, 
and not in consideration of the impact on U.S. revenue.
d. Many Companies May Not Have the Opportunity To Amass the Three AD 
Rates of Zero Percent or Five CVD Rates of Zero Percent
    Certain commenters favoring the proposed change to the revocation 
regulations assert that it will result in a more equitable 
administration of the antidumping and countervailing duty proceedings 
for both the petitioners and respondents. One of these commenters 
claims that company-specific revocations can improperly advantage 
certain producers or exporters over others, and that such inequities 
also create difficulties for petitioners in ensuring that orders are 
effective in eliminating injurious dumping and subsidization.
    Several commenters assert that the current company-specific 
revocation regulations do a good job of promoting equity by revoking 
orders against companies that are not dumping or receiving 
countervailable subsidies. They also assert that when such revocations 
result in one less company to review, it permits companies not 
previously examined an opportunity to be selected for examination. One 
commenter contends that there is no reason to deny the important 
benefits of company-specific revocations simply because it may be 
impractical in every case. The party also asserts that there are other 
benefits in the antidumping and countervailing duty regime that are 
applied unevenly (notably, the ability to obtain one's own margin, as 
opposed to an average of other rates). Some commenters suggest that the 
Department adopt new procedures that will allow for all interested and 
eligible exporters to participate in reviews to the extent necessary to 
achieve revocation. A few commenters assert that certain factors we 
cite in support of this change to the revocation regulations do not 
apply to the unique circumstances of trade remedy measures on their 
exports (e.g., certain cases involve a ``manageable'' number of 
companies and, therefore, the Department should not be concerned with 
companies in those cases not having an opportunity to be reviewed and 
amass the requisite zero rates).
    Response to Comments: The Department continues to find that this 
change to the regulations will, in general, result in a more equitable 
administration of the antidumping and countervailing duty proceedings. 
In particular, and as explained in the Proposed Rule, many of the 
companies for which reviews are requested may not have the opportunity 
to amass the three antidumping rates of zero percent (demonstrating an 
absence of dumping for three consecutive years) or five countervailing 
duty rates of zero percent (demonstrating an absence of countervailable 
subsidies for five consecutive years) necessary to be eligible for a 
company-specific revocation. See Proposed Rule, 76 FR 15234. This is 
because it is often not practicable for the Department to examine all 
companies for which reviews have been requested, and where such 
circumstances exist, the Act permits the Department to limit the number 
of companies it individually examines. Rather than administering the 
company-specific revocation regulations in a manner that does not 
afford equitable opportunity to all companies to seek revocation, and 
in light of the comments and various factors noted in the Proposed Rule 
and this Federal Register notice, the Department is eliminating the 
company-specific revocation regulations. Moreover, by eliminating the 
need to obtain two/four subsequent reviews for revocation, the 
Department anticipates that fewer companies with zero or de minimis 
deposit rates will request reviews, freeing up limited resources to 
consider the antidumping or countervailing duty rates of other 
companies.
    With regard to the suggestion that the Department develop or adopt 
new company-specific revocation procedures, the Department has not 
identified any new procedures for company-specific revocations that 
would address all the reasons it has for discontinuing such 
revocations. As for the commenters that assert that our reasons for 
discontinuing company-specific revocations do not apply to a particular 
antidumping or countervailing duty order, we do not find that any sort 
of differential treatment would be appropriate.
e. Trade Law Enforcement Initiative
    One commenter states that the genesis of this proposal was an 
August 2010 announcement by the Secretary of Commerce to strengthen 
trade enforcement with a particular focus on illegal import practices 
from non-market economy countries. The commenter contends that there is 
little correlation between illegal import practices from non-market 
economies and the Proposed Rule, and asserts that the Secretary's 
concerns are more appropriately addressed by other items mentioned in 
the August 2010 announcement.
    Response to Comments: This proposal was identified in the August 
26, 2010, announcement of a Trade Law Enforcement Package to strengthen 
the administration of the nation's trade

[[Page 29881]]

remedy laws. In making the announcement about this initiative, 
addressing illegal import practices from non-market economies was 
highlighted as an objective, but that objective is secondary to the 
overall purpose of the initiative which is to strengthen the 
administration of the nation's trade remedy laws. Further, in the 
Proposed Rule, and in the above sections of this notice, the Department 
provides a detailed explanation and information about the factors that 
warrant this amendment. Those factors and the rule change are not 
specific to imports from any one country or type of economy (market or 
non-market).

Comment 5--Company-Specific Revocations Award Good Behavior

    Several commenters assert that the Department should maintain the 
existing rules for company-specific revocations as a direct incentive 
to induce individual foreign firms to adjust prices and eliminate 
dumping or receiving subsidies. Another party comments that such 
revocations give respondents hope that if they comply with the United 
States antidumping and countervailing duty laws, their efforts may be 
recognized and rewarded by revocation. Another party asserts that 
company-specific revocations ensure that U.S. manufacturers, retailers 
and consumers are not denied access to fairly traded goods.
    Response to Comments: While we appreciate that companies may wish 
to retain the opportunity to be revoked from an order, as we noted 
under Comment 1, there is no obligation under U.S. law or the WTO 
Agreements to provide for such company-specific revocations. Moreover, 
if a foreign firm stops dumping or receiving countervailable subsidies, 
it will eliminate its liability for antidumping and countervailing 
duties, and U.S. manufacturers will have full access to its fairly 
traded goods. Finally, the antidumping and countervailing duty laws do 
not exist to reward any behavior. Instead, these laws exist to provide 
a remedy for injurious market-distorting unfair trade practices. The 
imposition of a remedial duty discourages such practices to the extent 
they are found to exist. As noted above, by maintaining a zero dumping 
margin or zero subsidy rate, companies avoid liability for these 
duties.

Comment 6--Impact of the Proposed Change on the Economy and Trade

    Several commenters request that the Department not change its 
revocation policy until it conducts a review of the impact of the 
change on consuming industries and other parties that utilize imports 
that are subject to antidumping or countervailing duty orders. They 
assert that such parties will be negatively affected as a result of the 
Department performing administrative reviews of individual companies 
that would have otherwise been revoked from an order. One commenter 
asserts that the proposed change would restrict the ability of U.S. 
retailers to provide consumers with a variety of high-quality products 
at affordable prices, undermine U.S. competitiveness, put U.S. jobs at 
risk, and undermine the Administration's goal of doubling U.S. exports.
    Response to Comments: With respect to the comment about consuming 
industries and other parties that utilize imports that are subject to 
antidumping or countervailing duty orders, 5 U.S.C. 605(b) requires 
that the Department consider the ``economic impact on a substantial 
number of small business entities'' which includes such parties. The 
Department provided the analysis required by 5 U.S.C. 605(b) when it 
issued the Proposed Rule. See Proposed Rule, 76 FR at 15234. More 
specifically, the Department explained that in the past five years, 
despite conducting administrative reviews of well over five hundred 
companies, only 15 companies (of various sizes) have obtained a 
company-specific revocation under the relevant portions of 19 CFR 
351.222. We also believe that in considering the economic impact that 
this change may have, it is important to take into account the fact 
that less than two percent of all imports of goods into the United 
States are subject to antidumping or countervailing duties, and only a 
very small portion of those imports will ever be affected by this 
change to the revocation regulations. For these reasons, we continue to 
find that this change to the revocation regulations will not have a 
significant economic impact.

Comment 7--Calculation of the Margin for Non-Selected Companies

    One commenter urges that, in light of this regulatory change, the 
Department should consider carefully its methodology for calculating 
the rate that is assigned to respondents that are not selected for 
individual review when the Department limits its examination in an 
administrative review. It notes that when the Department limits its 
examination to the largest exporters, it applies to the non-examined 
companies the average of the individual margins assigned to the 
mandatory respondents, except for any margins that are zero, de 
minimis, or based on adverse facts available. It also notes that when 
all of the mandatory respondents receive margins that are zero, de 
minimis or based on adverse facts available, the Department bases the 
margin for the non-selected respondents on the most recently calculated 
affirmative margin from a previous administrative review. It asserts 
that this situation is likely to arise with far greater frequency once 
zeroing in administrative reviews is eliminated and the revocation 
regulations are modified. It also asserts that over time, a margin for 
non-selected companies identified in this manner could be based on a 
margin calculated several years in the past and it would no longer be a 
reasonable approximation of the pricing behavior of non-selected 
respondents.
    Response to Comments: With regard to the Department's practice or 
methodology for calculating the rate that is assigned to respondents 
that are not selected for individual review when the Department limits 
its examination, we believe it would be premature to try and address 
that issue in the context of a change to the revocation regulations. It 
would be more appropriate to evaluate that issue in the context of 
future antidumping or countervailing duty proceedings.

Comment 8--Zeroing in Relation to Company-Specific Revocations

    One company cites to the possible elimination of zeroing in AD 
reviews (see Antidumping Proceedings: Calculation of the Weighted 
Average Dumping Margin and Assessment Rate in Certain Antidumping 
Proceedings, 75 FR 81533 (December 28, 2010)), and asserts that if the 
Department stops zeroing, one would expect that a significant number of 
exporters may qualify for revocation in the years following the change. 
Another company suggests that eliminating zeroing while retaining the 
possibility of revocation should materially reduce the Department's 
workload after a few years; however, if the Department eliminates both 
zeroing and revocation, then the Department will waste its resources in 
repetitious reviews of companies with zero margins.
    Response to Comments: On February 14, 2012, in response to several 
WTO dispute settlement reports, the Department adopted a revised 
methodology which allows for offsets when making average-to-average 
comparisons in reviews. See Antidumping Proceedings: Calculation of the 
Weighted-Average Dumping Margin and Assessment Rate in Certain 
Antidumping Duty Proceedings; Final Modification, 77 FR 8101 (February 
14,

[[Page 29882]]

2012). (``Final Modification for Reviews''). The Final Modification for 
Reviews makes clear that the revised methodology will apply to 
antidumping duty administrative reviews where the preliminary results 
are issued after April 16, 2012. The revision to our calculation 
methodology in antidumping duty administrative reviews was made to 
implement certain findings by the WTO Appellate Body with respect to 
that methodology in several disputes. See United States-Laws, 
Regulations and Methodology for Calculating Dumping Margins, WT/DS294/
R, WT/DS294/AB/R, adopted May 9, 2006; United States-Measures Related 
to Zeroing and Sunset Reviews, WT/DS322/R, WT/DS322/AB/R, adopted Jan. 
23, 2007; United States-Final Anti-Dumping Measures on Stainless Steel 
From Mexico, WT/DS344/R, WT/DS344/AB/R, adopted May 20, 2008; United 
States-Continued Existence and Application of Zeroing Methodology, WT/
DS350/R, WR/DS350/AB/R, adopted Feb. 19, 2009. The Department's 
decision to change the revocation regulations has been made without 
regard to, and irrespective of, the change in our calculation 
methodology as a result of the implementation. Moreover, the comments 
regarding the possible effects of the proposed revision to our 
calculation methodology in antidumping duty reviews are based solely 
upon speculation.

Comment 9--Revocations of AD and CVD Measures--In Whole

    Several parties indicate that with respect to revocation or 
termination in whole, the Department's regulations would remain 
substantively unchanged and, therefore, in addressing whether or not to 
award revocation or termination in whole, the Department will need to 
consider whether ``all exporters and producers'' have not dumped for at 
least three consecutive years or have not applied for or received any 
net countervailable subsidy for at least five consecutive years, 
respectively. In light of the fact that the Department often reviews 
individually only a small number of the foreign exporters and producers 
covered by an order, they ask the Department to consider and address 
how these prerequisites for revocation or termination in whole are to 
be satisfied. They propose that each foreign exporter or producer must 
demonstrate affirmatively that it met these conditions for the 
prescribed number of years before revocation or termination in whole 
will be granted by the Department. One of these parties also asked the 
Department to consider how to address revocation requests when all 
mandatory respondents receive rates of zero percent for the requisite 
number of years under Sec.  351.222(b)(1) and (c)(1)-(2); in 
particular, whether these rates would be assigned to all non-reviewed 
companies and, if so, whether the order in whole would then be eligible 
for revocation. One commenter suggests that in addition to withdrawing 
the regulations establishing company-specific revocations at 19 CFR 
351.222(b)(2) and (3) and 351.222(c)(3) and (4), the Department should 
withdraw its regulations providing for country-wide revocations.
    Response to Comments: We generally agree with the commenters' 
assertion that each foreign exporter or producer would have to 
demonstrate that it met the regulatory requirements for the prescribed 
number of years before revocation or termination in whole could be 
granted by the Department. With regard to considering how to address 
revocation requests when all mandatory respondents receive rates of 
zero percent for the requisite number of years under Sec. Sec.  
351.222(b)(1) and (c)(1)-(2), we believe it is premature to decide 
whether such circumstances would warrant a revocation of an order in 
whole. We will address any such scenarios as they arise in the context 
of future antidumping or countervailing duty proceedings. In addition, 
we have not adopted the suggestion that in addition to withdrawing the 
regulations establishing company-specific revocations at 19 CFR 
351.222(b)(2) and (3) and 351.222(c)(3) and (4), the Department should 
withdraw its regulations providing for country-wide revocations at 19 
CFR 351.222(b)(l) (dumping) and 351.222(c)(1) and (2) (subsidies). The 
Proposed Rule and this Federal Register notice only pertain to company-
specific revocations and the issues the Department has experienced and 
hopes to resolve by eliminating those types of revocations. See the 
Proposed Rule and Comment 4 above.

Comment 10--Reinstatement of AD and CVD Measures

    Several commenters requested that the Department not withdraw the 
subsections of the revocation regulations that deal with the 
reinstatement of partially revoked orders (i.e., 19 CFR 
351.222(b)(2)(i)(B), (e)(1)(iii) (antidumping duty orders) and 
(c)(3)(i)(B), (e)(2)(iii)(D) (countervailing duty orders)). They 
contend that if the subsections are removed, it is unclear what 
recourse would be available to the Department in the event that 
companies, for which orders have already been partially revoked, resume 
making U.S. sales at dumped prices or resume benefitting from 
countervailable subsidies in violation of trade remedy laws. They 
suggest that in light of the proposed amendments to 19 CFR 351.222, the 
Department should maintain the rules that would provide for the 
reinstatement of partially revoked antidumping and countervailing duty 
orders. One party suggests that the Department maintain the current 
version of Sec.  351.222(b)(2)(i)(B), (c)(3)(i)(B), (e)(1)(iii), and 
(e)(2)(iii)(D) in its regulations but clarify that they apply only to 
orders that have been partially revoked prior to the effective date of 
the change in regulations.
    Response to Comments: We have not adopted the changes proposed by 
these parties. Any company that has been revoked from an antidumping or 
countervailing duty order will remain subject to its certified 
agreement to be reinstated with respect to that order if the Department 
finds it to have resumed dumping or to be benefitting from a 
countervailable subsidy. The modification does not absolve the company 
from its obligations under its existing agreement.

Comment 11--Clerical Error in the Proposed Rule

    Two commenters assert that the Department made a typographical 
error in Sec.  351.222(e)(1)(i) of the proposed amendment to the 
revocation regulations. One commenter suggests that the term ``the 
person'' may need to be changed to the plural form to conform to ``all 
exporters and producers.'' The other suggests that the reference to 
``the person'' be changed to ``the exporter or producer in each 
instance.''
    Response to Comments: We agree that there is a typographical error 
in Sec.  351.222(e)(1)(i) of the Proposed Rule. The term ``the person'' 
needs to be in a plural form, so we have changed the term to ``they''.

Classification

Executive Order 12866

    The rule has been determined to be not significant for purposes of 
Executive Order 12866.

Regulatory Flexibility Act

    The Chief Counsel for Regulation has certified to the Chief Counsel 
for Advocacy of the Small Business Administration (``SBA'') under the 
provisions of the Regulatory Flexibility Act, 5 U.S.C. 605(b), that the 
proposed rule would not have a significant economic impact on a 
substantial

[[Page 29883]]

number of small business entities. The factual basis for the 
certification was published in the Proposed Rule. The Department 
received comments regarding the factual basis for this decision, and 
has summarized and responded to those comments in the above section of 
this notice entitled ``Comment 4--Reasons for Discontinuing Company-
Specific Revocations''. Based upon the Department's analysis, as 
discussed above, the factual basis used in the Proposed Rule to 
determine that the rule, if promulgated, would not have a significant 
impact on a substantial number of small business entities did not 
change. As a result, a Final Regulatory Flexibility analysis is not 
required and has not been prepared.

Paperwork Reduction Act

    This rule does not contain a collection of information for purposes 
of the Paperwork Reduction Act of 1980, as amended (44 U.S.C. 3501 et 
seq.).

List of Subjects in 19 CFR Part 351

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

    Dated: May 15, 2012.
Paul Piquado,
Assistant Secretary for Import Administration.

    For the reasons stated, 19 CFR part 351 is amended as follows:

PART 351--ANTIDUMPING AND COUNTERVAILING DUTIES

0
1. The authority citation for 19 CFR 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.


0
2. In Sec.  351.222, revise paragraphs (a), (b), (c), (e), and (f), 
remove paragraph (m), and redesignate paragraph (n) as paragraph (m) to 
read as follows:


Sec.  351.222  Revocation of orders; termination of suspended 
investigations.

    (a) Introduction. ``Revocation'' is a term of art that refers to 
the end of an antidumping or countervailing proceeding in which an 
order has been issued. ``Termination'' is the companion term for the 
end of a proceeding in which the investigation was suspended due to the 
acceptance of a suspension agreement. Generally, a revocation or 
termination may occur only after the Department or the Commission has 
conducted one or more reviews under section 751 of the Act. This 
section contains rules regarding requirements for a revocation or 
termination; and procedures that the Department will follow in 
determining whether to revoke an order or terminate a suspended 
investigation.
    (b) Revocation or termination based on absence of dumping. (1) In 
determining whether to revoke an antidumping duty order or terminate a 
suspended antidumping investigation, the Secretary will consider:
    (i) Whether all exporters and producers covered at the time of 
revocation by the order or the suspension agreement have sold the 
subject merchandise at not less than normal value for a period of at 
least three consecutive years; and
    (ii) Whether the continued application of the antidumping duty 
order is otherwise necessary to offset dumping.
    (2) If the Secretary determines, based upon the criteria in 
paragraphs (b)(1)(i) and (ii) of this section, that the antidumping 
duty order or suspension of the antidumping duty investigation is no 
longer warranted, the Secretary will revoke the order or terminate the 
investigation.
    (c) Revocation or termination based on absence of countervailable 
subsidy. (1)(i) In determining whether to revoke a countervailing duty 
order or terminate a suspended countervailing duty investigation, the 
Secretary will consider:
    (A) Whether the government of the affected country has eliminated 
all countervailable subsidies on the subject merchandise by abolishing 
for the subject merchandise, for a period of at least three consecutive 
years, all programs that the Secretary has found countervailable;
    (B) Whether exporters and producers of the subject merchandise are 
continuing to receive any net countervailable subsidy from an abolished 
program referred to in paragraph (c)(1)(i)(A) of this section; and
    (C) Whether the continued application of the countervailing duty 
order or suspension of countervailing duty investigation is otherwise 
necessary to offset subsidization.
    (ii) If the Secretary determines, based upon the criteria in 
paragraphs (c)(1)(i)(A) through (C) of this section, that the 
countervailing duty order or suspension of the countervailing duty 
investigation is no longer warranted, the Secretary will revoke the 
order or terminate the suspended investigation.
    (2)(i) In determining whether to revoke a countervailing duty order 
or terminate a suspended countervailing duty investigation, the 
Secretary will consider:
    (A) Whether all exporters and producers covered at the time of 
revocation by the order or the suspension agreement have not applied 
for or received any net countervailable subsidy on the subject 
merchandise for a period of at least five consecutive years; and
    (B) Whether the continued application of the countervailing duty 
order or suspension of the countervailing duty investigation is 
otherwise necessary to offset subsidization.
    (ii) If the Secretary determines, based upon the criteria in 
paragraphs (c)(2)(i)(A) and (B) of this section, that the 
countervailing duty order or the suspension of the countervailing duty 
investigation is no longer warranted, the Secretary will revoke the 
order or terminate the suspended investigation.
* * * * *
    (e) Request for revocation or termination--(1) Antidumping 
proceeding. During the third and subsequent annual anniversary months 
of the publication of an antidumping order or suspension of an 
antidumping investigation, any exporter or producer may request in 
writing that the Secretary revoke an order or terminate a suspended 
investigation under paragraph (b) of this section if the person submits 
with the request:
    (i) Certifications for all exporters and producers covered by the 
order or suspension agreement that they sold the subject merchandise at 
not less than normal value during the period of review described in 
Sec.  351.213(e)(1), and that in the future they will not sell the 
merchandise at less than normal value; and
    (ii) Certifications for all exporters and producers covered by the 
order or suspension agreement that, during each of the consecutive 
years referred to in paragraph (b) of this section, they sold the 
subject merchandise to the United States in commercial quantities.
    (2) Countervailing duty proceeding. (i) During the third and 
subsequent annual anniversary months of the publication of a 
countervailing duty order or suspension of a countervailing duty 
investigation, the government of the affected country may request in 
writing that the Secretary revoke an order or terminate a suspended 
investigation under paragraph (c)(1) of this section if the government 
submits with the request its certification that it has satisfied, 
during the period of review described in Sec.  351.213(e)(2), the

[[Page 29884]]

requirements of paragraph (c)(1)(i) of this section regarding the 
abolition of countervailable subsidy programs, and that it will not 
reinstate for the subject merchandise those programs or substitute 
other countervailable subsidy programs;
    (ii) During the fifth and subsequent annual anniversary months of 
the publication of a countervailing duty order or suspended 
countervailing duty investigation, the government of the affected 
country may request in writing that the Secretary revoke an order or 
terminate a suspended investigation under paragraph (c)(2) of this 
section if the government submits with the request:
    (A) Certifications for all exporters and producers covered by the 
order or suspension agreement that they have not applied for or 
received any net countervailable subsidy on the subject merchandise for 
a period of at least five consecutive years (see paragraph (c)(2)(i) of 
this section);
    (B) Those exporters' and producers' certifications that they will 
not apply for or receive any net countervailable subsidy on the subject 
merchandise from any program the Secretary has found countervailable in 
any proceeding involving the affected country or from other 
countervailable programs (see paragraph (c)(2)(ii) of this section); 
and
    (C) A certification from each exporter or producer that, during 
each of the consecutive years referred to in paragraph (c)(2) of this 
section, that person sold the subject merchandise to the United States 
in commercial quantities.
    (f) Procedures. (1) Upon receipt of a timely request for revocation 
or termination under paragraph (e) of this section, the Secretary will 
consider the request as including a request for an administrative 
review and will initiate and conduct a review under Sec.  351.213.
    (2) When the Secretary is considering a request for revocation or 
termination under paragraph (e) of this section, in addition to the 
requirements of Sec.  351.221 regarding the conduct of an 
administrative review, the Secretary will:
    (i) Publish with the notice of initiation under Sec.  
351.221(b)(1), notice of ``Request for Revocation of Order'' or 
``Request for Termination of Suspended Investigation'' (whichever is 
applicable);
    (ii) Conduct a verification under Sec.  351.307;
    (iii) Include in the preliminary results of review under Sec.  
351.221(b)(4) the Secretary's decision whether there is a reasonable 
basis to believe that the requirements for revocation or termination 
are met;
    (iv) If the Secretary decides that there is a reasonable basis to 
believe that the requirements for revocation or termination are met, 
publish with the notice of preliminary results of review under Sec.  
351.221(b)(4) notice of ``Intent To Revoke Order'' or ``Intent To 
Terminate Suspended Investigation'' (whichever is applicable);
    (v) Include in the final results of review under Sec.  
351.221(b)(5) the Secretary's final decision whether the requirements 
for revocation or termination are met; and
    (vi) If the Secretary determines that the requirements for 
revocation or termination are met, publish with the notice of final 
results of review under Sec.  351.221(b)(5) notice of ``Revocation of 
Order'' or ``Termination of Suspended Investigation'' (whichever is 
applicable).
    (3) If the Secretary revokes an order, the Secretary will order the 
suspension of liquidation terminated for the merchandise covered by the 
revocation on the first day after the period under review, and will 
instruct the Customs Service to release any cash deposit or bond.
* * * * *
[FR Doc. 2012-12257 Filed 5-18-12; 8:45 am]
BILLING CODE 3510-DS-P