Non-Application of Previously Withdrawn Regulatory Provisions Governing Targeted Dumping in Antidumping Duty Investigations, 60240-60242 [2013-23646]

Agencies

• DEPARTMENT OF COMMERCE
• International Trade Administration

[Federal Register Volume 78, Number 190 (Tuesday, October 1, 2013)]
[Proposed Rules]
[Pages 60240-60242]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-23646]


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DEPARTMENT OF COMMERCE

International Trade Administration

19 CFR Part 351

[Docket No. 130917809-3809-01]
RIN 0625-AA96


Non-Application of Previously Withdrawn Regulatory Provisions 
Governing Targeted Dumping in Antidumping Duty Investigations

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


ACTION: Proposed rule and request for comments.

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SUMMARY:  Import Administration proposes not to apply, upon the 
effective date of this rule if implemented, the previously withdrawn 
regulatory provisions governing targeted dumping in antidumping duty 
investigations. Following the Court of International Trade's decision 
in Gold East (Jiangsu) Paper Co. v. United States, Import 
Administration is seeking comments from parties to clarify the status 
of the previously withdrawn regulatory provisions with regard to 
antidumping duty investigations. Import Administration also invites 
comment on the effect of this proposed rulemaking on recent 
modifications to its regulations concerning the calculation of the 
weighted-average dumping margin and assessment rate in certain 
antidumping proceedings.

DATES:  To be assured of consideration, written comments must be 
received no later than October 31, 2013.

ADDRESSES: All comments must be submitted through the Federal 
eRulemaking Portal at https://www.regulations.gov, Docket No. ITA-2013-
0002, unless the commenter does not have access to the Internet. 
Commenters that do not have access to the Internet may submit the 
original and one electronic copy of each set of comments by mail or 
hand delivery/courier. All comments should be addressed to Ronald K. 
Lorentzen, Deputy Assistant Secretary for Import Administration, Room 
1870, Department of Commerce, 14th Street and Constitution Ave. NW., 
Washington, DC 20230. Comments submitted to the Department will be 
uploaded to the eRulemaking Portal at www.Regulations.gov.
    The Department will consider all comments received before the close 
of the comment period. The Department will not accept comments 
accompanied by a request that part or all of the

[[Page 60241]]

material be treated confidentially because of its business proprietary 
nature or for any other reason. All comments responding to this notice 
will be a matter of public record and will be available on the Federal 
eRulemaking Portal at www.Regulations.gov.
    Any questions concerning file formatting, document conversion, 
access on the Internet, or other electronic filing issues should be 
addressed to Moustapha Sylla, Import Administration Webmaster, at (202) 
482-4685, email address: webmaster-support@ita.doc.gov.

FOR FURTHER INFORMATION CONTACT: James Maeder at (202) 482-3330; 
Charles Vannatta at (202) 482-4036; or Melissa Brewer (202) 482-1096.

SUPPLEMENTARY INFORMATION: 

Background

    On December 10, 2008, the Department of Commerce (``the 
Department'') withdrew certain regulatory provisions governing targeted 
dumping in antidumping investigations. Withdrawal of the Regulatory 
Provisions Governing Targeted Dumping in Antidumping Duty 
Investigations, 73 FR 74930 (Dec. 10, 2008) (``Withdrawal Notice''). In 
the Withdrawal Notice, the Department explained that in antidumping 
duty investigations it normally calculates dumping margins by one of 
two methods: (1) By comparing the weighted average of the normal values 
to the weighted average of the export prices for comparable merchandise 
(known as the average-to-average method); or (2) by comparing the 
normal values of individual transactions to the export prices of 
individual transactions for comparable merchandise (known as the 
transaction-to-transaction method). Id. at 74930 (citing 19 U.S.C. 
1677f-1(d)(1)(A)). The statute also provides for an exception to these 
two comparison methods when the Department finds that there is a 
pattern of export prices for comparable merchandise that differ 
significantly among purchasers, regions, or periods of time, and where 
such differences cannot be taken into account using one of the above-
described methods. Id. (citing 19 U.S.C. 1677f-1(d)(1)(B)). When these 
criteria are satisfied, the Department may compare the weighted average 
of the normal values to the export price of individual transactions for 
comparable merchandise (known as the average-to-transaction method). 
Id. In the Withdrawal Notice, the Department explained that in 
promulgating the regulations that established criteria for analyzing 
this issue, it ``may have established thresholds or other criteria that 
may have prevented the use of this comparison methodology to unmask 
dumping, contrary to the Congressional intent.'' Id. at 74931. For this 
reason, the Department withdrew the targeted dumping regulations, 
specifically 19 CFR 351.414(f) and (g), effective immediately. Id. 
Since the Withdrawal Notice, the Department has not applied the 
withdrawn regulations in antidumping duty investigations. No party has 
challenged as a stand-alone claim that this rulemaking violated the 
Administrative Procedure Act's (``APA'') requirements.
    On June 17, 2013, the Court of International Trade issued an 
opinion in Gold East (Jiangsu) Paper Co. v. United States, Ct. No. 10-
00371, Slip Op. 13-74 (June 17, 2013), remanding certain matters to the 
Department. Among them, the Court of International Trade ordered the 
Department, on remand, to reconsider its final determination in that 
proceeding as it applies to Gold East (Jiangsu) Paper Co. and to apply 
the withdrawn regulations. The Court disagreed with the Department's 
determination that the regulations were not applicable to Gold East 
(Jiangsu) Paper Co. in that antidumping investigation because the 
regulations had been properly withdrawn. During the underlying 
investigation, Gold East (Jiangsu) Paper Co. argued that the Department 
had improperly withdrawn the targeted dumping regulations because it 
did not satisfy the APA's notice and comment requirements.\1\ Gold East 
(Jiangsu) Paper Co. claimed that the regulations were still in effect 
and that the Department should apply the alternative comparison method 
to only the sales that are targeted rather than to all sales. See 19 
CFR 351.414(f)(2) (2007). The Department disagreed and determined that 
the regulations were properly withdrawn in 2008 in the Withdrawal 
Notice and, thus, did not apply to the underlying investigation. 
Therefore, the Department, consistent with its practice following the 
withdrawal of the regulations, applied the alternative comparison 
method to all of Gold East (Jiangsu) Paper Co.'s sales. Gold East 
(Jiangsu) Paper Co. appealed the Department's determination to apply 
the alternative comparison method to all sales to the Court of 
International Trade.
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    \1\ See Certain Coated Paper Suitable for High-Quality Print 
Graphics Using Sheet-Fed Presses from the People's Republic of 
China: Final Determination of Sales at Less than Fair Value, 75 FR 
59217 (Sept. 27, 2010), and Issues and Decision Memorandum at cmt. 
3, as amended by Certain Coated Paper Suitable for High-Quality 
Print Graphics Using Sheet-Fed Presses from the People's Republic of 
China: Amended Final Determination of Sales at Less than Fair Value 
and Antidumping Duty Order, 75 FR 70203 (Nov. 17, 2010) (``Final 
Determination'').
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    The Department continues to defend its position that the withdrawal 
of the targeted dumping regulations in the Withdrawal Notice was proper 
and that the withdrawn regulations are not operative. However, the 
Department recognizes that the Court of International Trade in Gold 
East (Jiangsu) Paper v. United States agreed with Gold East (Jiangsu) 
Paper Co.'s argument that the regulations should be applied to its 
dumping margin calculations in that proceeding because there was a 
procedural defect in the rulemaking process that withdrew the targeted 
dumping regulations. Therefore, without prejudice to the United States 
government's right to appeal the decision in Gold East (Jiangsu) Paper 
v. United States, or to argue in other cases before the Court of 
International Trade that the withdrawn regulations should not be 
applied in antidumping duty investigations after the withdrawal was 
made effective in 2008, the Department has determined to issue this 
proposed rule to clarify the status of the previously withdrawn 
regulations pursuant to APA notice and comment procedures and to invite 
comment.

Proposed Provision

    The Department proposes to continue to not apply the withdrawn 
provisions governing targeted dumping in antidumping investigations, 
implemented previously through the Withdrawal Notice. This rulemaking 
would be effective for proceedings initiated on or after 30 days 
following the date of publication of the final rule.
    The Department invites parties to comment on this proposed 
rulemaking and the proposed effective date. Further, any party may 
submit comments expressing its disagreement with the Department's 
proposal and may propose an alternative approach. If any party believes 
that the Department should reinstate the previously withdrawn 
regulations, that party should explain how to reinstate the withdrawn 
regulations and include suggestions on how to codify such 
reinstatement, as well as any suggestions on the effective date.
    The Department also invites comment on the effect of this proposed 
rulemaking on recent modifications to 19 CFR 351.414. On February 14, 
2012, the Department published Calculation of the Weighted-Average 
Dumping Margin and Assessment Rate in Certain Antidumping Proceedings; 
Final Modification, 77 FR 8101 (Feb. 14, 2012) (``Final Modification 
for Reviews''). In

[[Page 60242]]

the Final Modification for Reviews, the Department modified the 
regulations governing comparison methods to be applied in antidumping 
investigations and administrative reviews. The Final Modification for 
Reviews revised 19 CFR 351.414, the section of the regulations that 
previously included the withdrawn targeted dumping regulations. The 
Final Modification for Reviews applies to preliminary results of review 
issued after April 16, 2012.

Classifications

Executive Order 12866

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

Paperwork Reduction Act

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

Executive Order 13132

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

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 number of small business entities. A summary of the need 
for, objectives of, and legal basis for this rule is provided in the 
preamble, and is not repeated here.
    The entities upon which this rulemaking could have an impact 
include foreign exporters and producers, some of whom are affiliated 
with U.S. companies, and U.S. importers. IA currently does not have 
information on the number of entities that would be considered small 
under the Small Business Administration's size standard for small 
business. However, some of these entities may be considered small 
entities under that standard. Although this rule may impact small 
entities, this rule is not expected to have a significant economic 
impact. The administrative action proposed herein is a continuation of 
the Department's practice. No additional compliance measures or 
expenditure would be required of entities. Moreover, the previously 
withdrawn regulations did not regulate the entities that practice 
before the Department. Rather, the withdrawn regulations governed what 
methodology the Department applied in a particular case. Specifically, 
the withdrawn regulations instructed the Department on how to compare 
normal value and export price or constructed export price under certain 
factual scenarios. Therefore, the Department does not anticipate that 
the proposed rule would have a significant economic impact on a 
substantial number of small business entities. For this reason, an 
Initial Regulatory Flexibility Analysis is not required and one has not 
been prepared.

    Dated: September 20, 2013.
Paul Piquado,
Assistant Secretary for Import Administration.
[FR Doc. 2013-23646 Filed 9-30-13; 8:45 am]
BILLING CODE 3510-DS-P