De Facto, 40430-40434 [2013-16171]
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Federal Register / Vol. 78, No. 129 / Friday, July 5, 2013 / Notices
countervailing duty order on certain
hot-rolled carbon steel flat products
(‘‘hot-rolled steel’’) from India for the
period January 1, 2012, through
December 31, 2012.
DATES: Effective Date: July 5, 2013.
FOR FURTHER INFORMATION CONTACT:
Robert Copyak, AD/CVD Operations,
Office 8, Import Administration,
International Trade Administration,
U.S. Department of Commerce, 14th
Street and Constitution Avenue NW.,
Washington, DC 20230; telephone: (202)
482–2209.
SUPPLEMENTARY INFORMATION:
Background
The Department initiated an
administrative review of the
countervailing duty order on hot-rolled
steel from India covering the period
January 1, 2012, through December 31,
2012, based on requests by United
States Steel Corporation (‘‘U.S. Steel’’)
and Nucor Corporation (‘‘Nucor’’).1
U.S. Steel and Nucor withdrew their
requests for an administrative review in
their entirety on April 12, 2013, and
April 25, 2013, respectively.
instructions to CBP 15 days after
publication of this notice.
Notifications
This notice serves as a final reminder
to importers of their responsibility
under 19 CFR 351.402(f)(2) to file a
certificate regarding the reimbursement
of countervailing duties prior to
liquidation of the relevant entries
during this review period.
This notice also serves as a final
reminder to parties subject to
administrative protective order (‘‘APO’’)
of their responsibility concerning the
return or destruction of proprietary
information disclosed under APO in
accordance with 19 CFR 351.305(a)(3).
Timely written notification of the
return/destruction of APO materials or
conversion to judicial protective order is
hereby requested. Failure to comply
with the regulations and terms of an
APO is a violation that is subject to
sanction.
This notice is issued and published in
accordance with sections 751(a)(1) and
777(i)(1) of the Tariff Act of 1930, as
amended, and 19 CFR 351.213(d)(4).
SUMMARY:
Background
In proceedings involving NME
countries, the Department has had a
rebuttable presumption that the export
activities of all companies within the
country are subject to government
control and, thus, should be assessed a
single antidumping duty rate, i.e., the
NME-Entity rate.4 It has been the
Department’s practice to assign all
exporters of merchandise subject to an
antidumping investigation or review
from an NME country this single rate
unless an exporter can demonstrate that
it is sufficiently independent of the
government in its export activities, on
both a de jure and de facto basis, so as
to be entitled to a separate rate. The
Department has analyzed each entity
exporting the subject merchandise that
applies for a separate rate under a test
that was first articulated in Final
Determination of Sales at Less Than
Fair Value: Sparklers from the People’s
Republic of China, 56 FR 20588 (May 6,
1991) (‘‘Sparklers’’), as further
developed in Final Determination of
Sales at Less Than Fair Value: Silicon
1 The Department did not make a request for
comments on the de jure criteria currently
examined for purposes of establishing a company’s
separate rate.
2 See De Facto Criteria for Establishing a Separate
Rate in Antidumping Proceedings Involving NonMarket Economy Countries, 75 FR 78676 (December
16, 2010).
3 The Department currently considers the
following countries to be NME countries—Armenia,
Belarus, Georgia, the Kyrgyz Republic, Moldova, the
People’s Republic of China, the Republic of
Azerbaijan, the Socialist Republic of Vietnam,
Tajikistan, Turkmenistan and Uzbekistan.
4 See 19 CFR 107(d) (providing that ‘‘in an
antidumping proceeding involving imports from a
nonmarket economy country, ‘rates’ may consist of
a single dumping margin applicable to all exporters
and producers’’).
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Rescission of Review
Pursuant to 19 CFR 351.213(d)(1), the
Department will rescind an
administrative review, in whole or in
part, if the party that requested the
review withdraws its request within 90
days of the publication of the notice of
initiation of the requested review. In
this case, U.S. Steel and Nucor
withdrew their requests within the 90day deadline and no other parties
requested an administrative review of
the countervailing duty order.
Therefore, we are rescinding the
administrative review of hot-rolled steel
from India covering the period January
1, 2012, through December 31, 2012, in
its entirety.
Dated: June 27, 2013.
Christian Marsh,
Deputy Assistant Secretary for Antidumping
and Countervailing Duty Operations.
Assessment
The Department will instruct U.S.
Customs and Border Protection (‘‘CBP’’)
to assess countervailing duties on all
entries of hot-rolled steel from India
during the period of review at rates
equal to the cash deposit of estimated
countervailing duties required at the
time of entry or withdrawal from
warehouse for consumption, in
accordance with 19 CFR
351.212(c)(1)(i). The Department
intends to issue appropriate assessment
AGENCY:
1 See Initiation of Antidumping and
Countervailing Duty Administrative Reviews and
Request for Revocation in Part, 78 FR 6291 (January
30, 2013) (‘‘Initiation Notice’’), as corrected in
Initiation of Antidumping and Countervailing Duty
Administrative Reviews and Request for Revocation
in Part, 78 FR 25418, 25422 (May 1, 2013).
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economy (‘‘NME’’) countries. Through
that notice, the Department invited the
public to comment on the current test.2
Numerous parties filed comments in
response, addressing the Department’s
current practice and proposing
additional criteria for the Department to
consider in its analysis. The Department
has determined that several of these
comments warrant consideration on a
case-by-case basis, as discussed below,
when assessing whether a foreign
producer/exporter in an NME country is
sufficiently free of government control
of its export activities to warrant
separate rate status.3
DATES: Effective Date: Date of
publication in the Federal Register.
FOR FURTHER INFORMATION CONTACT:
Eugene Degnan, Program Manager,
Office 8, Import Administration, U.S.
Department of Commerce, 14th Street
and Constitution Avenue NW.,
Washington, DC 20230; telephone: (202)
482–0414.
SUPPLEMENTARY INFORMATION:
[FR Doc. 2013–16169 Filed 7–3–13; 8:45 am]
BILLING CODE 3510–DS–P
DEPARTMENT OF COMMERCE
International Trade Administration
[Docket No. 130612543–3543–01]
RIN 0625–XC007
De Facto Criteria for Establishing a
Separate Rate in Antidumping
Proceedings Involving Non-Market
Economy Countries
Import Administration,
International Trade Administration,
Department of Commerce.
ACTION: Determination to Address
Certain Criteria on a Case-by-Case Basis.
On December 16, 2010, the
Department of Commerce (‘‘the
Department’’) published a Federal
Register notice announcing that it was
considering revising its current practice
with respect to the de facto criteria 1
examined for purposes of determining
whether to grant separate rate status to
individual exporters in antidumping
proceedings involving non-market
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Carbide from the People’s Republic of
China, 59 FR 22585 (May 2, 1994)
(‘‘Silicon Carbide’’).5 However, if the
Department determined that an exporter
of NME-produced merchandise is
wholly foreign-owned or located in a
market economy (‘‘ME’’) country, the
exporter has not been subject to the
separate rates test.
On December 16, 2010, the
Department published a Federal
Register notice announcing that it was
considering revising its approach with
respect to the de facto criteria examined
for purposes of determining whether to
grant separate rate status to individual
exporters in antidumping proceedings
involving NME countries.6 Through that
notice, the Department invited the
public to comment on modifying the
test. Between January 18 and 31, 2011,
the Department received comments
from numerous parties.7 These
5 See also Policy Bulletin 05.1, which states:
‘‘[w]hile continuing the practice of assigning
separate rates only to exporters, all separate rates
that the Department will now assign in its NME
investigations will be specific to those producers
that supplied the exporter during the period of
investigation. Note, however, that one rate is
calculated for the exporter and all of the producers
which supplied subject merchandise to it during
the period of investigation. This practice applies
both to mandatory respondents receiving an
individually calculated separate rate as well as the
pool of non-investigated firms receiving the
weighted-average of the individually calculated
rates. This practice is referred to as the application
of ‘‘combination rates’’ because such rates apply to
specific combinations of exporters and one or more
producers. The cash-deposit rate assigned to an
exporter will apply only to merchandise both
exported by the firm in question and produced by
a firm that supplied the exporter during the period
of investigation.’’
6 See De Facto Criteria for Establishing a Separate
Rate in Antidumping Proceedings Involving NonMarket Economy Countries, 75 FR 78676 (December
16, 2010).
7 Commenters included: (1) the Ministry of
Commerce of the People’s Republic of China
(‘‘GOC’’); (2) the Ministry of Industry and Trade of
the Socialist Republic of Vietnam (‘‘GOV’’); (3) the
Committee to Support U.S. Trade Laws
(‘‘CSUSTL’’); (4) King and Spalding on behalf of:
(A) American Furniture Manufacturers Committee
for Legal Trade and its individual Members
(AFMC); (B) Polyethylene Retail Carrier Bag
Committee and its individual members (PRCB
Committee); (C) Laminated Woven Sacks
Committee and its individual members (LWS
Committee); (D) US Magnesium LLC; (E)
Bridgestone Americas, Inc. & Bridgestone Americas
Tire Operations LLC (collectively Bridgestone); and
(F) AK Steel Corporation; (5) Kelley Drye & Warren
LLP on behalf of: (A) American Honey Producers
Association; (B) American Spring Wire Corp., (C)
Christopher Ranch, LLC; (D) Council Tool Company
Inc.; (E) DAK Americas, LLC; (F) East Jordan Iron
Works Inc.; (G) The Garlic Company; (H) Insteel
Wire Products Company; (I) Neenah Foundry
Company; (J) Nashville Wire Products, Inc.; (K)
Norit Americas, Inc.; (L) SGL Carbon LLC; (M)
Sioux Honey Association; (N) Superior SSW
Holding Co., Inc.; (O) Sumiden Wire Products
Corp.; (P) U.S. Foundry & Manufacturing Co.; (Q)
Valley Garlic; (R) Vessey and Company; (6) Nucor;
(7) Retail Industry Leaders Association (‘‘RILA’’);
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comments and this Determination to
Address Certain Criteria on a Case-byCase Basis can be accessed using the
Federal eRulemaking Portal at https://
www.Regulations.gov under Docket
Number ITA–2011–0010.
The Separate Rate Test
Typically, the Department has
considered four criteria in evaluating
whether a respondent is subject to de
facto governmental control over its
export activities. They are: (1) Whether
the respondent’s export prices are set by
or are subject to the approval of a
governmental agency; (2) whether the
respondent has authority to negotiate
and sign contracts and other
agreements; (3) whether the respondent
has autonomy from the government in
making decisions regarding the
selection of management; and (4)
whether the respondent retains the
proceeds of its export sales and makes
independent decisions regarding the
disposition of profits or financing of
losses.8 The Department has determined
that an analysis of de facto control is
critical in determining whether an
exporter should receive a separate rate.
When conducting its de facto separate
rate analysis, the Department has asked
an exporter requesting a separate rate
questions regarding: (1) Ownership of
the exporter and whether any individual
owners hold office at any level of the
NME government; (2) export sales
negotiations and prices; (3) composition
of company management, the process
through which they were selected, and
whether any managers held government
positions; (4) the disposition of profits;
and (5) affiliations with any companies
involved in the production or sale in the
home market, third-country markets, or
the United States of merchandise which
would fall under the description of
merchandise covered by the scope of the
proceeding. The Department’s full
Separate Rate Status Application,
Separate Rate Certification, and NME
Antidumping Questionnaire are
available on the Department’s Web site
at https://www.trade.gov/ia.
Response to Comments
Case-by-case Consideration of Changes
The Department agrees that certain
suggestions by parties should be
considered on a case-by-case basis in
administrative proceedings where
(8) Stewart & Stewart; (9) the Southern Shrimp
Alliance (‘‘SSA); (10) US Steel; (11) Vietnam
Chamber of Commerce and Industry; and (12) ZhaoKing, LLC (‘‘ZK’’).
8 See Silicon Carbide; see also Notice of Final
Determination of Sales at Less Than Fair Value:
Furfuryl Alcohol From the People’s Republic of
China, 60 FR 22544, 22545 (May 8, 1995).
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record information indicates that such
consideration is warranted.
A. Refine the de facto Test With
Requests for Additional Documentary
Support and Additional Questions
Regarding the Relevant Criteria
Several commenters suggested that
the Department more closely examine
whether the government has direct or
indirect power to appoint, remove, or
control the selection of an entity’s
directors, senior officials, or other
members of senior management, and
whether it is able to direct the financial
affairs of the company by, e.g., making
selling or purchasing decisions. Several
commenters argue that the Department
currently conducts only a cursory
review of the separate rate criteria,
essentially shifting the burden to
petitioners to show government control.
They argue the burden should be shifted
back to respondents and the Department
should apply enhanced scrutiny to
determine if there are additional types
of documentation that would serve to
support, or undermine, a respondent’s
claim that it is entitled to a rate separate
from that of the NME-wide entity.
Several commenters also suggested that
the Department examine whether
members of the government or its ruling
party hold senior management positions
in the enterprise because the
government may maintain control over
certain industries or enterprises by
installing party members or government
officials in positions where they directly
participate in decision-making and
management. One commenter asserted
that the Department should find that a
respondent is materially dependent on
the government and deny the
respondent a separate rate where two or
more company managers or members of
the board of directors are members of
the local, provincial, or national
government. Another commenter argued
that the Department should consider
whether any of the directors or
managers of the respondent serve as
directors or managers for any stateowned entities.
As an initial matter, the Department
does not agree that it has shifted the
burden of proof onto petitioners or that
the de facto criteria are designed to
place an evidentiary burden on one
party versus another. Instead, the
criteria have been established because
they are necessary to determine whether
an exporter is sufficiently independent
in its export activities to be entitled to
a ‘‘separate rate.’’ The Department
agrees, however, that identifying and
reviewing additional information
regarding certain of the topics raised by
the commenters could be useful in
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evaluating the extent to which a
government controls an entity’s pricing,
selling and purchasing decisions as they
relate to the company’s export activities,
when the record does not already
clearly demonstrate the respondent’s
claimed independence. In general, the
respondent companies are the parties in
possession of the information regarding
their day-to-day operations. The
Department will therefore consider, on
a case-by-case basis, issuing
supplemental questionnaires to identify
and review additional documentation
and information that would directly or
indirectly relate to the issue of de facto
government control by any level of
government in cases where the
respondent’s initial questionnaire
responses do not provide sufficient
information to support its claim.
Depending on the record evidence, the
supplemental questions might address:
(1) Selection and removal of directors
and managers at the producing/
exporting company; (2) identification of
parties that have the authority to
approve contracts and bank
transactions, etc., on behalf of the
company; (3) ownership, including
individual and corporate (direct and
indirect shareholdings or equity
holdings); (4) whether any corporate
owners are state-owned, statecontrolled, or otherwise affiliated with
the State, at the national or sub-national
government levels; and (5) whether any
managers hold government positions at
the national or sub-national government
levels, among possible considerations.
The specific facts of each case would be
instructive to the Department in
deciding to issue such questionnaires
and what information such
questionnaires would address.
B. Conduct More Separate Rate
Verifications Where Budget and
Resources Allow
Several commenters suggested that
the Department should conduct more
verifications of entities claiming
eligibility for a separate rate,
particularly those entities for which
record evidence indicates their claim of
freedom from government control over
export activities is questionable. The
commenters suggest that such
verifications could include, for example,
the following: (1) Increased issuefocused verifications of exporters and
their producing suppliers; (2) more
focus on companies that have
previously failed verification; or (3)
enhanced verification of companies that
previously received partial or total
adverse facts available determinations
based on their failure to cooperate to the
best of their ability.
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The Department agrees that
conducting verification may be helpful
in enhancing the Department’s ability to
enforce the AD law, particularly when
the issue of freedom from government
control over a firm’s export activities is
brought into question by record
evidence and past practice. The
Department has conducted verification
in such cases in the past, where budget
and resources allow, and consistent
with this practice and these comments,
the Department will continue to
consider verification of separate rate
information where warranted, on a caseby-case basis.
C. Do Not Automatically Grant Separate
Rates to Firms With Trading Arms and/
or Producers Located in Market
Economies
One commenter suggested that the
Department should end its practice of
automatically granting separate rates to
companies with export offices in ME
countries because the respondent can
simply set up a shell company in an ME
to avoid a separate rate analysis.
We agree that there is a legitimate
concern that NME producers under
government control selling through
affiliated third-country resellers may, in
fact, control that reseller and, in such
cases, the reseller’s exporting activities
would also be under government
control. However, we do not consider
that the potential for this scenario
warrants a wholesale change in practice.
Rather, in cases where a respondent has
a producing entity in the PRC and an
affiliated reseller in an ME country, we
will endeavor to examine, on a case-bycase basis, whether any supplemental
information is required to determine if
the affiliated reseller is under
government control through the
producer located in the NME country. In
circumstances when the record
indicates there may be government
control through the NME producer, we
may require both the NME producer and
the ME exporter to provide information
similar to that requested in the NME
Separate Rate Application.
D. Deny the Respondent a Separate Rate
Where the Integrity of Its Data and
Recordkeeping Systems Does Not Allow
it To Provide Complete Ownership
Information, Because Such a Lack of
Information Precludes the Department
From Effectively Undertaking an
Adequate Separate Rate Analysis
The Department has discovered,
through its administration of the
antidumping duty law, that certain
respondents fail to disclose their
complete ownership, or substantiate
their claimed ownership, on the
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administrative record, despite the
Department’s request for those data.
This creates a substantial problem for
the Department. When the company
cannot demonstrate complete
ownership, the Department is effectively
precluded from conducting a full
separate rate analysis. For example,
absent such data, we are not able to
make meaningful determinations about
the: (1) Appointment of the Board of
Directors, (2) selection of management,
(3) day-to-day operational control of the
company, and (4) affiliation with other
parties, including those that might be
managed/operated by the government.
Thus, without complete and verifiable
ownership information on the
administrative record, the Department
generally is left with no evidentiary
basis to find that the company is
independent from de facto government
control of its export activities.
Accordingly, in these cases, the
Department has treated the respondent
as part of the NME-wide entity and
denies the respondent a separate rate.9
If a respondent withholds or
otherwise does not provide complete
ownership information, the Department
has normally concluded that the
respondent has failed to act to the best
of its ability in not providing such
necessary information, pursuant to
section 776(b) of the Act. That
conclusion was warranted because, in
the ordinary course of business, a
company is expected to maintain
complete ownership information.
Additionally, in such cases, as a result
of the failure to provide complete
ownership information, the Department
has applied an adverse inference in
assigning a facts available rate to the
NME-wide entity of which that
respondent is a part.10 Under this
analysis, the Department has not
determined that ownership by an NME
government automatically equated with
control by the government. Instead, the
Department determined that, when a
producer or exporter fails to supply
complete ownership information, we
lacked an adequate basis on which to
determine whether the respondent is
subject to government control of its
export activities. On the basis of the
9 See, e.g., Porcelain-on-Steel Cooking Ware from
the People’s Republic of China: Notice of Final
Results of Antidumping Duty Administrative
Review, 71 FR 24641 (April 26, 2006), and
accompanying Issues and Decision Memorandum at
Comment 1 (applying facts available because
Commerce could not verify the respondent’s
ownership information).
10 See id. at Comment 2. See also Certain Frozen
Warmwater Shrimp from the People’s Republic of
China: Preliminary Notice of Intent to Rescind
Antidumping Duty New Shipper Review, 72 FR
41058, 41060 (July 26, 2007).
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comments received, we see no reason to
deviate from this analytical approach.
Comments the Department Believes Do
Not Warrant a Reconsideration of
Department Practice at This Time
Numerous commenters asserted that
the de facto analysis should include a
threshold determination of state
ownership, which would be dispositive
of whether the NME government is
exercising control over an entity’s
export activities. Some commenters
further suggested that government
control should be found: (1) Where any
level of the NME government ownership
is five percent or more; (2) where the
separate rate applicant, or its parent
company or ultimate owner, is under
the supervision of a central, provisional,
or local State-owned Assets Supervision
and Administration Commission
(‘‘SASAC’’) in the PRC; or (3) where, in
a countervailing duty investigation, the
Department has previously found the
applicant to be so closely related to the
government to be an ‘‘authority’’ under
Section 771(5)(B) of the Tariff Act of
1930. Several other commenters argued
that the Department should examine
whether any shareholder owning more
than ten percent of company stock has
a leadership role in the Communist
Party. Other commenters asserted that
the Department should find that a
respondent is materially dependent on
the government and deny the
respondent a separate rate where two or
more company managers or members of
the board of directors are members of
the Communist Party or the PRC’s
People’s Liberation Army or where any
company manager, board member, or
shareholder owning more than ten
percent of company stock has a
leadership role in the Communist Party
or the local, provincial, or national state
offices of the Communist Party.
As the Department has stated in the
past, we do not believe that ownership
by the government, on its own, is
sufficient to warrant a determination
that the government controls the export
activities of a given exporter and/or
producer. In Silicon Carbide, we
determined that, while state-owned
enterprises were previously subject to
central government control, reform had
brought significant changes and
devolved control of government-owned
enterprises such that the application of
a single country-wide rate to all
respondents in an NME country was not
always warranted.11 As such, we
determined that an NME respondent
may receive a separate rate if it
establishes both de jure and de facto
11 See
Silicon Carbide.
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absence of governmental control of its
export activities.
Further, a determination by the
Department that a company is an
‘‘authority’’ in a countervailing duty
investigation is not the same as
determining the degree of control the
government has over a company’s
export activities for purposes of an
antidumping proceeding. Specifically,
an ‘‘authority’’ analysis, exclusive to the
countervailing duty law, is ultimately
concerned with whether the government
has provided a subsidy. On the other
hand, the focus of the antidumping law
with respect to the separate rates
analysis is to determine whether the
export activities of the respondent are
controlled by the government. The U.S.
antidumping and countervailing duty
laws are distinct and separate, operating
on different principles, concepts and
requirements and remedying distinct
unfair trade practices. Accordingly, we
have declined to incorporate these
proposed refinements to our separate
rate analysis.
Certain commenters argued that the
Department should require all
respondents to disclose the extent to
which they export subject merchandise
manufactured or supplied by another
party, in order to analyze the extent that
the respondent’s activities may be
directed by that party. Finally, one
commenter suggested that the
Department should require separate rate
applications from NME exporters and
their NME suppliers in combination to
address the possibilities of (a) statecontrolled producers using independent
exporters as conduits for subject
merchandise or (b) exporters benefiting
indirectly from government control of a
producer. The Department’s separate
rate test already requires that all NME
exporters demonstrate that they operate
free of government control of their
export activities. Generally, we do not
find it necessary to require the producer
to provide the same information already
provided by the exporter. However,
where, for example, the record indicates
that a government-controlled supplier
may control the export activities of the
respondent, we may deem it appropriate
to investigate the issue further.
Accordingly, we have declined to
incorporate these proposed refinements
to our separate rate analysis.
A number of commenters did not
address the de facto criteria of the
Department’s separate rate analysis as
applied to individual exporters. For
example, some commenters
representing either foreign producers/
exporters or the Chinese or Vietnamese
governments argued that the
Department should eliminate the
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separate rate test entirely or reverse the
presumption of government control.
One commenter argued that government
control should be found only if the
Department’s collapsing criteria are
satisfied with regard to the respondent
and the government. These comments
essentially argue for elimination of the
separate rate test and, thus, are not
responsive to the Department’s request
regarding enhancement of the de facto
criteria.
Other commenters suggested the
Department examine industry-wide or
national initiatives that go far beyond
government involvement in day-to-day
operational decisions. For example,
commenters asked the Department to
inquire into whether the industry was
subject to: (1) A government industrial
plan governing either imports, exports,
production or asset transfer; (2)
government rules or regulations
governing items such as foreign
investment, asset transfers, capacity
utilization, quality improvements,
technological innovation, and
purchasing decisions; (3) a mandatory
export price/quota scheme or import
price/quota scheme, as determined by a
government-entity or a trade
association; or (4) an export licensing
scheme.
The Department already examines
laws and regulations regarding export
licenses, certificates and other
restrictions to an entity’s ability to
export under our de jure analysis. See
the Department’s Separate Rate
Application at Section III. Thus, because
the Department’s analysis treats these
issues as relevant to the de jure analysis,
we consider them beyond the scope of
this request for comments on the de
facto criteria. Further, the remainder of
these comments refer to macro-level
factors which are not a part of the
separate rate analysis, but, instead,
relate more directly to an analysis of a
market-oriented industry (‘‘MOI’’) or a
market-economy status (‘‘MES’’) claim,
which do not involve a single entity, but
rather an industry or the economy as a
whole.
As the Department explained in its
December 16, 2010, Federal Register
notice, the Department requested
comments only on possible refinements
to the de facto criteria of its separate
rates test. We understand that certain
commenters wish to address the
separate rate analysis in its entirety, but
this is beyond the scope of the request
for comments and, accordingly, the
Department has not considered them
further.
E:\FR\FM\05JYN1.SGM
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Federal Register / Vol. 78, No. 129 / Friday, July 5, 2013 / Notices
Conclusion
In sum, after reviewing and
considering interested party comments
and concerns, the Department has
determined, as discussed above, that to
the extent that we agree with some of
the comments received, the Department
will consider addressing the issues
raised in those comments in our future
administrative proceedings on a caseby-case basis.
Dated: June 28, 2013.
Paul Piquado
Assistant Secretary for Import
Administration.
BILLING CODE 3510–DS–P
DEPARTMENT OF COMMERCE
International Trade Administration
Meeting of the Manufacturing Council
International Trade
Administration, U.S. Department of
Commerce.
ACTION: Notice of an open meeting.
AGENCY:
The Manufacturing Council
will hold a meeting to discuss the work
the Council will focus on for the
remainder of their term. This will be the
first meeting since the Council
established subcommittees. The
subcommittees—Workforce and Public
Perception of Manufacturing;
Innovation, Research and Development;
Tax Policy and Export Growth; and
Manufacturing Energy Policy—will
share with the full Council the key
issues they will address in their specific
subcommittees. The subcommittees will
present the scope of their proposed
work for the remainder of their term to
the full Council for discussion. The
Council was re-chartered on April 5,
2012, to advise the Secretary of
Commerce on government programs and
policies that affect U.S. manufacturing
and provide a means of ensuring regular
contact between the U.S. Government
and the manufacturing sector.
DATES: July 23, 2013, 10:00 a.m.–12:30
p.m. Eastern Daylight Time (EDT).
ADDRESSES: Department of Commerce,
1401 Constitution Avenue NW., Room
4830, Washington, DC 20230. Because
of building security, all non-government
attendees must pre-register. This
meeting will be physically accessible to
people with disabilities. Seating is
limited and will be on a first come, first
served basis. Requests for sign language
interpretation, other auxiliary aids, or
pre-registration, should be submitted no
later than July 16, 2013, to Elizabeth
tkelley on DSK3SPTVN1PROD with NOTICES
SUMMARY:
17:06 Jul 03, 2013
FOR FURTHER INFORMATION CONTACT:
Elizabeth Emanuel, the Manufacturing
Council, Room 4043, 1401 Constitution
Avenue NW., Washington, DC, 20230,
telephone: 202–482–1369, email:
elizabeth.emanuel@trade.gov.
A limited
amount of time, from 12:15–12:30, will
be made available for pertinent brief
oral comments from members of the
public attending the meeting. To
accommodate as many speakers as
possible, the time for public comments
will be limited to 3 minutes per person.
Individuals wishing to reserve speaking
time during the meeting must contact
Ms. Emanuel and submit a brief
statement of the general nature of the
comments, as well as the name and
address of the proposed speaker by 5:00
p.m. EDT on Thursday, July 18th. If the
number of registrants requesting to
make statements is greater than can be
reasonably accommodated during the
meeting, the International Trade
Administration may conduct a lottery to
determine the speakers. Speakers are
requested to bring at least 20 copies of
their oral comments for distribution to
the members of the Manufacturing
Council and to the public at the
meeting. Any member of the public may
submit pertinent written comments
concerning the Manufacturing Council’s
affairs at any time before or after the
meeting. Comments may be submitted
to Elizabeth Emanuel, the
Manufacturing Council, Room 4043,
1401 Constitution Avenue NW.,
Washington, DC, 20230, telephone: 202–
482–1369, email:
elizabeth.emanuel@trade.gov. To be
considered during the meeting, written
comments must be received by 5:00
p.m. EDT on Thursday, July 18, 2013, to
ensure transmission to the
Manufacturing Council prior to the
meeting. Comments received after that
date will be distributed to the members
but may not be considered at the
meeting. Copies of Council meeting
minutes will be available within 90 days
of the meeting.
SUPPLEMENTARY INFORMATION:
[FR Doc. 2013–16171 Filed 7–3–13; 8:45 am]
VerDate Mar<15>2010
Emanuel, the Manufacturing Council,
Room 4043, 1401 Constitution Avenue
NW., Washington, DC, 20230, telephone
202–482–1369,
elizabeth.emanuel@trade.gov. Last
minute requests will be accepted, but
may be impossible to fill.
Jkt 229001
Dated: July 1, 2013.
Elizabeth Emanuel,
Executive Secretary, the Manufacturing
Council.
[FR Doc. 2013–16174 Filed 7–3–13; 8:45 am]
BILLING CODE 3510–DR–P
PO 00000
Frm 00010
Fmt 4703
Sfmt 4703
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
Proposed Information Collection;
Comment Request; Survey of Fish
Processors and Disruptions Caused by
Hurricane Sandy
National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice.
AGENCY:
The Department of
Commerce, as part of its continuing
effort to reduce paperwork and
respondent burden, invites the general
public and other Federal agencies to
take this opportunity to comment on
proposed and/or continuing information
collections, as required by the
Paperwork Reduction Act of 1995.
DATES: Written comments must be
submitted on or before September 3,
2013.
SUMMARY:
Direct all written comments
to Jennifer Jessup, Departmental
Paperwork Clearance Officer,
Department of Commerce, Room 6616,
14th and Constitution Avenue NW.,
Washington, DC 20230 (or via the
Internet at JJessup@doc.gov).
FOR FURTHER INFORMATION CONTACT:
Requests for additional information or
copies of the information collection
instrument and instructions should be
directed to Min-Yang Lee, (508) 495–
2026, or Min-Yang.Lee@noaa.gov.
SUPPLEMENTARY INFORMATION:
ADDRESSES:
I. Abstract
This request is for a new information
collection.
The Northeast Fisheries Science
Center’s Social Sciences Branch seeks to
collect data on distribution networks
and business practices from fish
processors that process groundfish and
sea scallops in the Northeast United
States. It also seeks to collect data on
business disruptions due to Hurricane
Sandy for those firms. The data
collected will improve research and
analysis on the economic impacts of
potential fishery management actions,
consistent with the Magnuson-Stevens
Fishery Conservation and Management
Act and the Regulatory Flexibility Act.
II. Method of Collection
This information will be collected by
in-person, face-to-face interviews.
III. Data
OMB Control Number: None.
Form Number: None.
E:\FR\FM\05JYN1.SGM
05JYN1
]]>Agencies
[Federal Register Volume 78, Number 129 (Friday, July 5, 2013)]
[Notices]
[Pages 40430-40434]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-16171]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
[Docket No. 130612543-3543-01]
RIN 0625-XC007
De Facto Criteria for Establishing a Separate Rate in Antidumping
Proceedings Involving Non-Market Economy Countries
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Determination to Address Certain Criteria on a Case-by-Case
Basis.
-----------------------------------------------------------------------
SUMMARY: On December 16, 2010, the Department of Commerce (``the
Department'') published a Federal Register notice announcing that it
was considering revising its current practice with respect to the de
facto criteria \1\ examined for purposes of determining whether to
grant separate rate status to individual exporters in antidumping
proceedings involving non-market economy (``NME'') countries. Through
that notice, the Department invited the public to comment on the
current test.\2\ Numerous parties filed comments in response,
addressing the Department's current practice and proposing additional
criteria for the Department to consider in its analysis. The Department
has determined that several of these comments warrant consideration on
a case-by-case basis, as discussed below, when assessing whether a
foreign producer/exporter in an NME country is sufficiently free of
government control of its export activities to warrant separate rate
status.\3\
---------------------------------------------------------------------------
\1\ The Department did not make a request for comments on the de
jure criteria currently examined for purposes of establishing a
company's separate rate.
\2\ See De Facto Criteria for Establishing a Separate Rate in
Antidumping Proceedings Involving Non-Market Economy Countries, 75
FR 78676 (December 16, 2010).
\3\ The Department currently considers the following countries
to be NME countries--Armenia, Belarus, Georgia, the Kyrgyz Republic,
Moldova, the People's Republic of China, the Republic of Azerbaijan,
the Socialist Republic of Vietnam, Tajikistan, Turkmenistan and
Uzbekistan.
---------------------------------------------------------------------------
DATES: Effective Date: Date of publication in the Federal Register.
FOR FURTHER INFORMATION CONTACT: Eugene Degnan, Program Manager, Office
8, Import Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-
0414.
SUPPLEMENTARY INFORMATION:
Background
In proceedings involving NME countries, the Department has had a
rebuttable presumption that the export activities of all companies
within the country are subject to government control and, thus, should
be assessed a single antidumping duty rate, i.e., the NME-Entity
rate.\4\ It has been the Department's practice to assign all exporters
of merchandise subject to an antidumping investigation or review from
an NME country this single rate unless an exporter can demonstrate that
it is sufficiently independent of the government in its export
activities, on both a de jure and de facto basis, so as to be entitled
to a separate rate. The Department has analyzed each entity exporting
the subject merchandise that applies for a separate rate under a test
that was first articulated in Final Determination of Sales at Less Than
Fair Value: Sparklers from the People's Republic of China, 56 FR 20588
(May 6, 1991) (``Sparklers''), as further developed in Final
Determination of Sales at Less Than Fair Value: Silicon
[[Page 40431]]
Carbide from the People's Republic of China, 59 FR 22585 (May 2, 1994)
(``Silicon Carbide'').\5\ However, if the Department determined that an
exporter of NME-produced merchandise is wholly foreign-owned or located
in a market economy (``ME'') country, the exporter has not been subject
to the separate rates test.
---------------------------------------------------------------------------
\4\ See 19 CFR 107(d) (providing that ``in an antidumping
proceeding involving imports from a nonmarket economy country,
`rates' may consist of a single dumping margin applicable to all
exporters and producers'').
\5\ See also Policy Bulletin 05.1, which states: ``[w]hile
continuing the practice of assigning separate rates only to
exporters, all separate rates that the Department will now assign in
its NME investigations will be specific to those producers that
supplied the exporter during the period of investigation. Note,
however, that one rate is calculated for the exporter and all of the
producers which supplied subject merchandise to it during the period
of investigation. This practice applies both to mandatory
respondents receiving an individually calculated separate rate as
well as the pool of non-investigated firms receiving the weighted-
average of the individually calculated rates. This practice is
referred to as the application of ``combination rates'' because such
rates apply to specific combinations of exporters and one or more
producers. The cash-deposit rate assigned to an exporter will apply
only to merchandise both exported by the firm in question and
produced by a firm that supplied the exporter during the period of
investigation.''
---------------------------------------------------------------------------
On December 16, 2010, the Department published a Federal Register
notice announcing that it was considering revising its approach with
respect to the de facto criteria examined for purposes of determining
whether to grant separate rate status to individual exporters in
antidumping proceedings involving NME countries.\6\ Through that
notice, the Department invited the public to comment on modifying the
test. Between January 18 and 31, 2011, the Department received comments
from numerous parties.\7\ These comments and this Determination to
Address Certain Criteria on a Case-by-Case Basis can be accessed using
the Federal eRulemaking Portal at https://www.Regulations.gov under
Docket Number ITA-2011-0010.
---------------------------------------------------------------------------
\6\ See De Facto Criteria for Establishing a Separate Rate in
Antidumping Proceedings Involving Non-Market Economy Countries, 75
FR 78676 (December 16, 2010).
\7\ Commenters included: (1) the Ministry of Commerce of the
People's Republic of China (``GOC''); (2) the Ministry of Industry
and Trade of the Socialist Republic of Vietnam (``GOV''); (3) the
Committee to Support U.S. Trade Laws (``CSUSTL''); (4) King and
Spalding on behalf of: (A) American Furniture Manufacturers
Committee for Legal Trade and its individual Members (AFMC); (B)
Polyethylene Retail Carrier Bag Committee and its individual members
(PRCB Committee); (C) Laminated Woven Sacks Committee and its
individual members (LWS Committee); (D) US Magnesium LLC; (E)
Bridgestone Americas, Inc. & Bridgestone Americas Tire Operations
LLC (collectively Bridgestone); and (F) AK Steel Corporation; (5)
Kelley Drye & Warren LLP on behalf of: (A) American Honey Producers
Association; (B) American Spring Wire Corp., (C) Christopher Ranch,
LLC; (D) Council Tool Company Inc.; (E) DAK Americas, LLC; (F) East
Jordan Iron Works Inc.; (G) The Garlic Company; (H) Insteel Wire
Products Company; (I) Neenah Foundry Company; (J) Nashville Wire
Products, Inc.; (K) Norit Americas, Inc.; (L) SGL Carbon LLC; (M)
Sioux Honey Association; (N) Superior SSW Holding Co., Inc.; (O)
Sumiden Wire Products Corp.; (P) U.S. Foundry & Manufacturing Co.;
(Q) Valley Garlic; (R) Vessey and Company; (6) Nucor; (7) Retail
Industry Leaders Association (``RILA''); (8) Stewart & Stewart; (9)
the Southern Shrimp Alliance (``SSA); (10) US Steel; (11) Vietnam
Chamber of Commerce and Industry; and (12) Zhao-King, LLC (``ZK'').
---------------------------------------------------------------------------
The Separate Rate Test
Typically, the Department has considered four criteria in
evaluating whether a respondent is subject to de facto governmental
control over its export activities. They are: (1) Whether the
respondent's export prices are set by or are subject to the approval of
a governmental agency; (2) whether the respondent has authority to
negotiate and sign contracts and other agreements; (3) whether the
respondent has autonomy from the government in making decisions
regarding the selection of management; and (4) whether the respondent
retains the proceeds of its export sales and makes independent
decisions regarding the disposition of profits or financing of
losses.\8\ The Department has determined that an analysis of de facto
control is critical in determining whether an exporter should receive a
separate rate.
---------------------------------------------------------------------------
\8\ See Silicon Carbide; see also Notice of Final Determination
of Sales at Less Than Fair Value: Furfuryl Alcohol From the People's
Republic of China, 60 FR 22544, 22545 (May 8, 1995).
---------------------------------------------------------------------------
When conducting its de facto separate rate analysis, the Department
has asked an exporter requesting a separate rate questions regarding:
(1) Ownership of the exporter and whether any individual owners hold
office at any level of the NME government; (2) export sales
negotiations and prices; (3) composition of company management, the
process through which they were selected, and whether any managers held
government positions; (4) the disposition of profits; and (5)
affiliations with any companies involved in the production or sale in
the home market, third-country markets, or the United States of
merchandise which would fall under the description of merchandise
covered by the scope of the proceeding. The Department's full Separate
Rate Status Application, Separate Rate Certification, and NME
Antidumping Questionnaire are available on the Department's Web site at
https://www.trade.gov/ia.
Response to Comments
Case-by-case Consideration of Changes
The Department agrees that certain suggestions by parties should be
considered on a case-by-case basis in administrative proceedings where
record information indicates that such consideration is warranted.
A. Refine the de facto Test With Requests for Additional Documentary
Support and Additional Questions Regarding the Relevant Criteria
Several commenters suggested that the Department more closely
examine whether the government has direct or indirect power to appoint,
remove, or control the selection of an entity's directors, senior
officials, or other members of senior management, and whether it is
able to direct the financial affairs of the company by, e.g., making
selling or purchasing decisions. Several commenters argue that the
Department currently conducts only a cursory review of the separate
rate criteria, essentially shifting the burden to petitioners to show
government control. They argue the burden should be shifted back to
respondents and the Department should apply enhanced scrutiny to
determine if there are additional types of documentation that would
serve to support, or undermine, a respondent's claim that it is
entitled to a rate separate from that of the NME-wide entity. Several
commenters also suggested that the Department examine whether members
of the government or its ruling party hold senior management positions
in the enterprise because the government may maintain control over
certain industries or enterprises by installing party members or
government officials in positions where they directly participate in
decision-making and management. One commenter asserted that the
Department should find that a respondent is materially dependent on the
government and deny the respondent a separate rate where two or more
company managers or members of the board of directors are members of
the local, provincial, or national government. Another commenter argued
that the Department should consider whether any of the directors or
managers of the respondent serve as directors or managers for any
state-owned entities.
As an initial matter, the Department does not agree that it has
shifted the burden of proof onto petitioners or that the de facto
criteria are designed to place an evidentiary burden on one party
versus another. Instead, the criteria have been established because
they are necessary to determine whether an exporter is sufficiently
independent in its export activities to be entitled to a ``separate
rate.'' The Department agrees, however, that identifying and reviewing
additional information regarding certain of the topics raised by the
commenters could be useful in
[[Page 40432]]
evaluating the extent to which a government controls an entity's
pricing, selling and purchasing decisions as they relate to the
company's export activities, when the record does not already clearly
demonstrate the respondent's claimed independence. In general, the
respondent companies are the parties in possession of the information
regarding their day-to-day operations. The Department will therefore
consider, on a case-by-case basis, issuing supplemental questionnaires
to identify and review additional documentation and information that
would directly or indirectly relate to the issue of de facto government
control by any level of government in cases where the respondent's
initial questionnaire responses do not provide sufficient information
to support its claim. Depending on the record evidence, the
supplemental questions might address: (1) Selection and removal of
directors and managers at the producing/exporting company; (2)
identification of parties that have the authority to approve contracts
and bank transactions, etc., on behalf of the company; (3) ownership,
including individual and corporate (direct and indirect shareholdings
or equity holdings); (4) whether any corporate owners are state-owned,
state-controlled, or otherwise affiliated with the State, at the
national or sub-national government levels; and (5) whether any
managers hold government positions at the national or sub-national
government levels, among possible considerations. The specific facts of
each case would be instructive to the Department in deciding to issue
such questionnaires and what information such questionnaires would
address.
B. Conduct More Separate Rate Verifications Where Budget and Resources
Allow
Several commenters suggested that the Department should conduct
more verifications of entities claiming eligibility for a separate
rate, particularly those entities for which record evidence indicates
their claim of freedom from government control over export activities
is questionable. The commenters suggest that such verifications could
include, for example, the following: (1) Increased issue-focused
verifications of exporters and their producing suppliers; (2) more
focus on companies that have previously failed verification; or (3)
enhanced verification of companies that previously received partial or
total adverse facts available determinations based on their failure to
cooperate to the best of their ability.
The Department agrees that conducting verification may be helpful
in enhancing the Department's ability to enforce the AD law,
particularly when the issue of freedom from government control over a
firm's export activities is brought into question by record evidence
and past practice. The Department has conducted verification in such
cases in the past, where budget and resources allow, and consistent
with this practice and these comments, the Department will continue to
consider verification of separate rate information where warranted, on
a case-by-case basis.
C. Do Not Automatically Grant Separate Rates to Firms With Trading Arms
and/or Producers Located in Market Economies
One commenter suggested that the Department should end its practice
of automatically granting separate rates to companies with export
offices in ME countries because the respondent can simply set up a
shell company in an ME to avoid a separate rate analysis.
We agree that there is a legitimate concern that NME producers
under government control selling through affiliated third-country
resellers may, in fact, control that reseller and, in such cases, the
reseller's exporting activities would also be under government control.
However, we do not consider that the potential for this scenario
warrants a wholesale change in practice. Rather, in cases where a
respondent has a producing entity in the PRC and an affiliated reseller
in an ME country, we will endeavor to examine, on a case-by-case basis,
whether any supplemental information is required to determine if the
affiliated reseller is under government control through the producer
located in the NME country. In circumstances when the record indicates
there may be government control through the NME producer, we may
require both the NME producer and the ME exporter to provide
information similar to that requested in the NME Separate Rate
Application.
D. Deny the Respondent a Separate Rate Where the Integrity of Its Data
and Recordkeeping Systems Does Not Allow it To Provide Complete
Ownership Information, Because Such a Lack of Information Precludes the
Department From Effectively Undertaking an Adequate Separate Rate
Analysis
The Department has discovered, through its administration of the
antidumping duty law, that certain respondents fail to disclose their
complete ownership, or substantiate their claimed ownership, on the
administrative record, despite the Department's request for those data.
This creates a substantial problem for the Department. When the company
cannot demonstrate complete ownership, the Department is effectively
precluded from conducting a full separate rate analysis. For example,
absent such data, we are not able to make meaningful determinations
about the: (1) Appointment of the Board of Directors, (2) selection of
management, (3) day-to-day operational control of the company, and (4)
affiliation with other parties, including those that might be managed/
operated by the government. Thus, without complete and verifiable
ownership information on the administrative record, the Department
generally is left with no evidentiary basis to find that the company is
independent from de facto government control of its export activities.
Accordingly, in these cases, the Department has treated the respondent
as part of the NME-wide entity and denies the respondent a separate
rate.\9\
---------------------------------------------------------------------------
\9\ See, e.g., Porcelain-on-Steel Cooking Ware from the People's
Republic of China: Notice of Final Results of Antidumping Duty
Administrative Review, 71 FR 24641 (April 26, 2006), and
accompanying Issues and Decision Memorandum at Comment 1 (applying
facts available because Commerce could not verify the respondent's
ownership information).
---------------------------------------------------------------------------
If a respondent withholds or otherwise does not provide complete
ownership information, the Department has normally concluded that the
respondent has failed to act to the best of its ability in not
providing such necessary information, pursuant to section 776(b) of the
Act. That conclusion was warranted because, in the ordinary course of
business, a company is expected to maintain complete ownership
information. Additionally, in such cases, as a result of the failure to
provide complete ownership information, the Department has applied an
adverse inference in assigning a facts available rate to the NME-wide
entity of which that respondent is a part.\10\ Under this analysis, the
Department has not determined that ownership by an NME government
automatically equated with control by the government. Instead, the
Department determined that, when a producer or exporter fails to supply
complete ownership information, we lacked an adequate basis on which to
determine whether the respondent is subject to government control of
its export activities. On the basis of the
[[Page 40433]]
comments received, we see no reason to deviate from this analytical
approach.
---------------------------------------------------------------------------
\10\ See id. at Comment 2. See also Certain Frozen Warmwater
Shrimp from the People's Republic of China: Preliminary Notice of
Intent to Rescind Antidumping Duty New Shipper Review, 72 FR 41058,
41060 (July 26, 2007).
---------------------------------------------------------------------------
Comments the Department Believes Do Not Warrant a Reconsideration of
Department Practice at This Time
Numerous commenters asserted that the de facto analysis should
include a threshold determination of state ownership, which would be
dispositive of whether the NME government is exercising control over an
entity's export activities. Some commenters further suggested that
government control should be found: (1) Where any level of the NME
government ownership is five percent or more; (2) where the separate
rate applicant, or its parent company or ultimate owner, is under the
supervision of a central, provisional, or local State-owned Assets
Supervision and Administration Commission (``SASAC'') in the PRC; or
(3) where, in a countervailing duty investigation, the Department has
previously found the applicant to be so closely related to the
government to be an ``authority'' under Section 771(5)(B) of the Tariff
Act of 1930. Several other commenters argued that the Department should
examine whether any shareholder owning more than ten percent of company
stock has a leadership role in the Communist Party. Other commenters
asserted that the Department should find that a respondent is
materially dependent on the government and deny the respondent a
separate rate where two or more company managers or members of the
board of directors are members of the Communist Party or the PRC's
People's Liberation Army or where any company manager, board member, or
shareholder owning more than ten percent of company stock has a
leadership role in the Communist Party or the local, provincial, or
national state offices of the Communist Party.
As the Department has stated in the past, we do not believe that
ownership by the government, on its own, is sufficient to warrant a
determination that the government controls the export activities of a
given exporter and/or producer. In Silicon Carbide, we determined that,
while state-owned enterprises were previously subject to central
government control, reform had brought significant changes and devolved
control of government-owned enterprises such that the application of a
single country-wide rate to all respondents in an NME country was not
always warranted.\11\ As such, we determined that an NME respondent may
receive a separate rate if it establishes both de jure and de facto
absence of governmental control of its export activities.
---------------------------------------------------------------------------
\11\ See Silicon Carbide.
---------------------------------------------------------------------------
Further, a determination by the Department that a company is an
``authority'' in a countervailing duty investigation is not the same as
determining the degree of control the government has over a company's
export activities for purposes of an antidumping proceeding.
Specifically, an ``authority'' analysis, exclusive to the
countervailing duty law, is ultimately concerned with whether the
government has provided a subsidy. On the other hand, the focus of the
antidumping law with respect to the separate rates analysis is to
determine whether the export activities of the respondent are
controlled by the government. The U.S. antidumping and countervailing
duty laws are distinct and separate, operating on different principles,
concepts and requirements and remedying distinct unfair trade
practices. Accordingly, we have declined to incorporate these proposed
refinements to our separate rate analysis.
Certain commenters argued that the Department should require all
respondents to disclose the extent to which they export subject
merchandise manufactured or supplied by another party, in order to
analyze the extent that the respondent's activities may be directed by
that party. Finally, one commenter suggested that the Department should
require separate rate applications from NME exporters and their NME
suppliers in combination to address the possibilities of (a) state-
controlled producers using independent exporters as conduits for
subject merchandise or (b) exporters benefiting indirectly from
government control of a producer. The Department's separate rate test
already requires that all NME exporters demonstrate that they operate
free of government control of their export activities. Generally, we do
not find it necessary to require the producer to provide the same
information already provided by the exporter. However, where, for
example, the record indicates that a government-controlled supplier may
control the export activities of the respondent, we may deem it
appropriate to investigate the issue further. Accordingly, we have
declined to incorporate these proposed refinements to our separate rate
analysis.
A number of commenters did not address the de facto criteria of the
Department's separate rate analysis as applied to individual exporters.
For example, some commenters representing either foreign producers/
exporters or the Chinese or Vietnamese governments argued that the
Department should eliminate the separate rate test entirely or reverse
the presumption of government control. One commenter argued that
government control should be found only if the Department's collapsing
criteria are satisfied with regard to the respondent and the
government. These comments essentially argue for elimination of the
separate rate test and, thus, are not responsive to the Department's
request regarding enhancement of the de facto criteria.
Other commenters suggested the Department examine industry-wide or
national initiatives that go far beyond government involvement in day-
to-day operational decisions. For example, commenters asked the
Department to inquire into whether the industry was subject to: (1) A
government industrial plan governing either imports, exports,
production or asset transfer; (2) government rules or regulations
governing items such as foreign investment, asset transfers, capacity
utilization, quality improvements, technological innovation, and
purchasing decisions; (3) a mandatory export price/quota scheme or
import price/quota scheme, as determined by a government-entity or a
trade association; or (4) an export licensing scheme.
The Department already examines laws and regulations regarding
export licenses, certificates and other restrictions to an entity's
ability to export under our de jure analysis. See the Department's
Separate Rate Application at Section III. Thus, because the
Department's analysis treats these issues as relevant to the de jure
analysis, we consider them beyond the scope of this request for
comments on the de facto criteria. Further, the remainder of these
comments refer to macro-level factors which are not a part of the
separate rate analysis, but, instead, relate more directly to an
analysis of a market-oriented industry (``MOI'') or a market-economy
status (``MES'') claim, which do not involve a single entity, but
rather an industry or the economy as a whole.
As the Department explained in its December 16, 2010, Federal
Register notice, the Department requested comments only on possible
refinements to the de facto criteria of its separate rates test. We
understand that certain commenters wish to address the separate rate
analysis in its entirety, but this is beyond the scope of the request
for comments and, accordingly, the Department has not considered them
further.
[[Page 40434]]
Conclusion
In sum, after reviewing and considering interested party comments
and concerns, the Department has determined, as discussed above, that
to the extent that we agree with some of the comments received, the
Department will consider addressing the issues raised in those comments
in our future administrative proceedings on a case-by-case basis.
Dated: June 28, 2013.
Paul Piquado
Assistant Secretary for Import Administration.
[FR Doc. 2013-16171 Filed 7-3-13; 8:45 am]
BILLING CODE 3510-DS-P
