Determining the Existence of a Particular Market Situation That Distorts Costs of Production, 69234-69235 [2022-25216]

Download as PDF 69234 Federal Register / Vol. 87, No. 222 / Friday, November 18, 2022 / Proposed Rules if requested using the procedures found in § 39.19. In accordance with § 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (j) of this AD and email it to: ANE-AD-AMOC@faa.gov. (2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/ certificate holding district office. (j) Additional Information For more information about this AD, contact Barbara Caufield, Aviation Safety Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: (781) 238–7146; email: barbara.caufield@faa.gov. (k) Material Incorporated by Reference (1) The Director of the Federal Register approved the incorporation by reference of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51. (2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise. (i) Transport Canada AD CF–2022–27, dated June 2, 2022. (ii) [Reserved] (3) For Transport Canada AD CF–2022–27, contact Transport Canada, Transport Canada National Aircraft Certification, 159 Cleopatra Drive, Nepean, Ontario K1A 0N5, Canada; phone: (888) 663–3639; email: AD-CN@ tc.gc.ca; website: tc.canada.ca/en/aviation. (4) You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 1200 District Avenue, Burlington, MA 01803. For information on the availability of this material at the FAA, call (817) 222–5110. (5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email: fr.inspection@nara.gov, or go to: www.archives.gov/federal-register/cfr/ibrlocations.html. Issued on November 10, 2022. Christina Underwood, Acting Director, Compliance & Airworthiness Division, Aircraft Certification Service. khammond on DSKJM1Z7X2PROD with PROPOSALS [FR Doc. 2022–25016 Filed 11–17–22; 8:45 am] BILLING CODE 4910–13–P VerDate Sep<11>2014 16:19 Nov 17, 2022 Jkt 259001 DEPARTMENT OF COMMERCE International Trade Administration 19 CFR Part 351 [Docket No. 221115–0239] RIN 0625–AB23 Determining the Existence of a Particular Market Situation That Distorts Costs of Production Enforcement and Compliance, International Trade Administration, Department of Commerce. ACTION: Advanced notice of proposed rulemaking. AGENCY: SUMMARY: Enforcement and Compliance (E&C), of the Department of Commerce (Commerce), administers the antidumping duty (AD) and countervailing duty (CVD) AD/CVD trade remedy laws of the Tariff Act of 1930, as amended (the Act). Section 773(e) of the Act provides for Commerce to address, in its antidumping calculations, the existence of a particular market situation (PMS), such that the cost of materials and fabrication do not accurately reflect the cost of production in the ordinary course of trade. Commerce seeks public comments as it considers revisiting its PMS methodology and issuing a new regulation that would identify information that Commerce should take into consideration and should not take into consideration in determining whether a PMS exists that distorts the cost of production. Commerce also seeks comments as it considers adjustments to calculations when the amount of distortion in the cost of production caused by a PMS cannot be quantified based on the record before it. DATES: Comments must be received no later than December 18, 2022. ADDRESSES: Submit electronic comments only through the Federal eRulemaking Portal at https:// www.Regulations.gov, Docket No. ITA– 2022–0012. Comments may also be submitted by mail or hand delivery/ courier, addressed to Lisa W. Wang, Assistant Secretary for Enforcement and Compliance, Room 18022, Department of Commerce, 1401 Constitution Ave. NW, Washington, DC 20230. An appointment must be made in advance with the APO/Dockets Unit at (202) 482–4920 to submit comments in person by hand delivery or courier. All comments submitted during the comment period permitted by this document will be a matter of public record and will generally be available on the Federal eRulemaking Portal at PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 https://www.Regulations.gov. Commerce will not accept comments accompanied by a request that part or all of the material be treated confidentially because of its business proprietary nature or for any other reason. Therefore, do not submit confidential business information or otherwise sensitive or protected information. Any questions concerning the process for submitting comments should be submitted to Enforcement & Compliance Communications office at (202) 482– 0063 or ECCommunications@trade.gov. FOR FURTHER INFORMATION CONTACT: Scott McBride at (202) 482–6292 and Hendricks Valenzuela at (202) 482– 4750. SUPPLEMENTARY INFORMATION: Background on Particular Market Situation In 2015, pursuant to the Trade Preferences Extension Act (TPEA), section 771(15) of the Act was amended to provide that Commerce consider sales to be outside the ‘‘ordinary course of trade’’ when there are situations in which Commerce ‘‘determines that the particular market situation prevents a proper comparison with the export price or constructed export price.’’ Further, section 773(e) of the Act was amended to provide that in determining the ‘‘costs of material and fabrication or other processing of any kind employed in producing the merchandise, during a period which would ordinarily permit the production of the merchandise in the ordinary course of trade,’’ for determining constructed value, ‘‘if a particular market situation exists such that the cost of materials and fabrication or other processing of any kind does not accurately reflect the cost of production in the ordinary course of trade,’’ Commerce ‘‘may use another calculation methodology under this subtitle or any other calculation methodology.’’ The Act does not (1) define a particular market situation (‘‘PMS’’), (2) identify the information which Commerce should consider in determining the existence of a PMS that ‘‘does not accurately reflect the costs of production in the ordinary course of trade,’’ or (3) provide Commerce with guidance as to the information which Commerce should consider in determining if a market situation is, or is not, ‘‘particular.’’ The legislative history of the costbased particular market situation reflects that Congress intended for Commerce to not only identify such situations, but to also effectively address them in its calculations. For example, in advocating for the TPEA language, one E:\FR\FM\18NOP1.SGM 18NOP1 Federal Register / Vol. 87, No. 222 / Friday, November 18, 2022 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS member of the House of Representatives argued that the legislation would ‘‘empower’’ Commerce ‘‘to be able to disregard prices or costs of inputs that foreign producers purchase if the Department of Commerce’’ determined that those input values were ‘‘subsidized’’ or otherwise outside the ordinary course of trade.1 Likewise, on the United States Senate floor, a Senator explained that the proposed legislation would ‘‘guarantee that Americans can find a more level playing field as we compete in the world economy. . . .’’ 2 The Senator emphasized that this legislation would help stop United States workers and manufacturers from ‘‘being cheated’’ by foreign industries that were not playing fair and ‘‘illegally subsidizing’’ the production of certain products.3 Since the Act was amended, Commerce has in certain instances identified a PMS and adjusted its calculations in response, which has been challenged before both the U.S. Court of International Trade and the U.S. Court of Appeals for the Federal Circuit (CAFC). One matter which has been at issue before the courts is the information Commerce should consider in determining the existence of a PMS. That matter came before the CAFC this past year in Nexteel v. United States, in which the CAFC held that Commerce’s finding that a PMS existed in Korea during the period of review was unsupported by substantial evidence.4 In analyzing Commerce’s PMS determination, the CAFC appeared to reach at least four conclusions. First, a PMS which distorts costs, as referenced in the Act, must cause costs to deviate from what they would have otherwise been in the ordinary course of trade.5 Second, a PMS must be particular to certain producers or exporters, inputs, or the market where the inputs are manufactured.6 Third, if there is a claim of a subsidy or government interference, there should be evidence that the producer or seller of the input at issue received, or should have received, that subsidy or government assistance, and that there is some form of impact on the price of the input as a result of that subsidy or government interference.7 Finally, Commerce is not required to quantify a distortion in costs by the 1 See Congressional Record-House, H4666, H4690 (June 25, 2015). 2 See Congressional Record-Senate, S2899, S2900 (May 14, 2015). 3 Id. 4 See Nexteel Co. v. United States, 28 F.4th 1226 (Fed. Cir. 2022). 5 Id. at 1234. 6 Id. at 1234, 1236. 7 Id. at 1235–36. VerDate Sep<11>2014 16:19 Nov 17, 2022 Jkt 259001 PMS to find the existence of a PMS, but if Commerce is able to quantify the distortion, such a quantification may help support a finding of the existence of a PMS.8 In light of the CAFC’s holding and analysis in Nexteel, as well as our experience in administering the PMS provision over the past several years, we have determined it is appropriate to revisit Commerce’s approach in certain instances to analyzing and determining the existence of a PMS that distorts costs of production. In revisiting Commerce’s approach, we have considered that the public and Commerce may benefit from the issuance of a regulation that addresses the information which Commerce should consider, or need not consider, in determining if a PMS exists that distorts costs of production. We also believe that a regulation that addresses the adjustments Commerce may make to its calculations if it determines the existence of a PMS that distorts costs of production might prove beneficial. We are therefore soliciting public comments on certain aspects of our PMS analysis pursuant to that exercise. Request for Comments We are issuing this advanced notice of proposed rulemaking to inform the public that Commerce is considering issuing a PMS regulation and to invite comments on that new regulation. Specifically, Commerce is inviting parties to provide comments on three issues: (1) identify information which they believe Commerce should consider in determining if a PMS exists which distorts the costs of production if that information is reasonably available and relevant to the PMS allegation; (2) identify information which they believe Commerce should not be required to consider when determining if a PMS exists, regardless of the PMS allegation; and (3) provide comments on adjustments which Commerce may make to its calculations when it determines the existence of a PMS, but the record before it does not allow for the quantification of cost distortions. Dated: November 15, 2022. Lisa W. Wang, Assistant Secretary for Enforcement and Compliance. [FR Doc. 2022–25216 Filed 11–17–22; 8:45 am] BILLING CODE 3510–DS–P 8 Id. PO 00000 at 1234. Frm 00028 Fmt 4702 Sfmt 4702 69235 DEPARTMENT OF COMMERCE Patent and Trademark Office 37 CFR Part 1 [Docket No.: PTO–P–2022–0008] RIN 0651–AD60 Standardization of the Patent Term Adjustment Statement Regarding Information Disclosure Statements United States Patent and Trademark Office, Department of Commerce. ACTION: Notice of proposed rulemaking; reopening of comment period. AGENCY: SUMMARY: The United States Patent and Trademark Office (USPTO) is reopening the comment period for the proposed rule titled ‘‘Standardization of the Patent Term Adjustment Statement Regarding Information Disclosure Statements’’ that was published in the Federal Register on July 12, 2022. The proposed rule’s comment period, which ended on September 12, 2022, is extended until December 2, 2022. In addition, the USPTO will treat as timely any comment that was received between September 12, 2022, and November 18, 2022. DATES: The USPTO is reopening the comment period for the proposed rule that published at 87 FR 41267 on July 12, 2022, and that requested comments by July 12, 2022. Comments on this proposed rule must be received on or before December 2, 2022. The USPTO will also treat as timely any comments received between September 12, 2022, and November 18, 2022. ADDRESSES: For reasons of government efficiency, comments must be submitted through the Federal eRulemaking Portal at www.regulations.gov. To submit comments via the portal, enter docket number PTO–P–2022–0008 on the homepage and click ‘‘Search.’’ The site will provide a search results page listing all documents associated with this docket. Find a reference to this document and click on the ‘‘Comment’’ icon, complete the required fields, and enter or attach your comments. Attachments to electronic comments will be accepted as various file types, including Adobe® portable document format (PDF) and Microsoft Word® format. Because comments will be made available for public inspection, information the submitter does not desire to make public, such as an address or phone number, should not be included in the comments. Visit the Federal eRulemaking Portal for additional instructions on providing E:\FR\FM\18NOP1.SGM 18NOP1

Agencies

[Federal Register Volume 87, Number 222 (Friday, November 18, 2022)]
[Proposed Rules]
[Pages 69234-69235]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-25216]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

International Trade Administration

19 CFR Part 351

[Docket No. 221115-0239]
RIN 0625-AB23


Determining the Existence of a Particular Market Situation That 
Distorts Costs of Production

AGENCY: Enforcement and Compliance, International Trade Administration, 
Department of Commerce.

ACTION: Advanced notice of proposed rulemaking.

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

SUMMARY: Enforcement and Compliance (E&C), of the Department of 
Commerce (Commerce), administers the antidumping duty (AD) and 
countervailing duty (CVD) AD/CVD trade remedy laws of the Tariff Act of 
1930, as amended (the Act). Section 773(e) of the Act provides for 
Commerce to address, in its antidumping calculations, the existence of 
a particular market situation (PMS), such that the cost of materials 
and fabrication do not accurately reflect the cost of production in the 
ordinary course of trade. Commerce seeks public comments as it 
considers revisiting its PMS methodology and issuing a new regulation 
that would identify information that Commerce should take into 
consideration and should not take into consideration in determining 
whether a PMS exists that distorts the cost of production. Commerce 
also seeks comments as it considers adjustments to calculations when 
the amount of distortion in the cost of production caused by a PMS 
cannot be quantified based on the record before it.

DATES: Comments must be received no later than December 18, 2022.

ADDRESSES: Submit electronic comments only through the Federal 
eRulemaking Portal at https://www.Regulations.gov, Docket No. ITA-2022-
0012. Comments may also be submitted by mail or hand delivery/courier, 
addressed to Lisa W. Wang, Assistant Secretary for Enforcement and 
Compliance, Room 18022, Department of Commerce, 1401 Constitution Ave. 
NW, Washington, DC 20230. An appointment must be made in advance with 
the APO/Dockets Unit at (202) 482-4920 to submit comments in person by 
hand delivery or courier. All comments submitted during the comment 
period permitted by this document will be a matter of public record and 
will generally be available on the Federal eRulemaking Portal at 
https://www.Regulations.gov. Commerce will not accept comments 
accompanied by a request that part or all of the material be treated 
confidentially because of its business proprietary nature or for any 
other reason. Therefore, do not submit confidential business 
information or otherwise sensitive or protected information.
    Any questions concerning the process for submitting comments should 
be submitted to Enforcement & Compliance Communications office at (202) 
482-0063 or [email protected].

FOR FURTHER INFORMATION CONTACT: Scott McBride at (202) 482-6292 and 
Hendricks Valenzuela at (202) 482-4750.

SUPPLEMENTARY INFORMATION:

Background on Particular Market Situation

    In 2015, pursuant to the Trade Preferences Extension Act (TPEA), 
section 771(15) of the Act was amended to provide that Commerce 
consider sales to be outside the ``ordinary course of trade'' when 
there are situations in which Commerce ``determines that the particular 
market situation prevents a proper comparison with the export price or 
constructed export price.'' Further, section 773(e) of the Act was 
amended to provide that in determining the ``costs of material and 
fabrication or other processing of any kind employed in producing the 
merchandise, during a period which would ordinarily permit the 
production of the merchandise in the ordinary course of trade,'' for 
determining constructed value, ``if a particular market situation 
exists such that the cost of materials and fabrication or other 
processing of any kind does not accurately reflect the cost of 
production in the ordinary course of trade,'' Commerce ``may use 
another calculation methodology under this subtitle or any other 
calculation methodology.'' The Act does not (1) define a particular 
market situation (``PMS''), (2) identify the information which Commerce 
should consider in determining the existence of a PMS that ``does not 
accurately reflect the costs of production in the ordinary course of 
trade,'' or (3) provide Commerce with guidance as to the information 
which Commerce should consider in determining if a market situation is, 
or is not, ``particular.''
    The legislative history of the cost-based particular market 
situation reflects that Congress intended for Commerce to not only 
identify such situations, but to also effectively address them in its 
calculations. For example, in advocating for the TPEA language, one

[[Page 69235]]

member of the House of Representatives argued that the legislation 
would ``empower'' Commerce ``to be able to disregard prices or costs of 
inputs that foreign producers purchase if the Department of Commerce'' 
determined that those input values were ``subsidized'' or otherwise 
outside the ordinary course of trade.\1\ Likewise, on the United States 
Senate floor, a Senator explained that the proposed legislation would 
``guarantee that Americans can find a more level playing field as we 
compete in the world economy. . . .'' \2\ The Senator emphasized that 
this legislation would help stop United States workers and 
manufacturers from ``being cheated'' by foreign industries that were 
not playing fair and ``illegally subsidizing'' the production of 
certain products.\3\
---------------------------------------------------------------------------

    \1\ See Congressional Record-House, H4666, H4690 (June 25, 
2015).
    \2\ See Congressional Record-Senate, S2899, S2900 (May 14, 
2015).
    \3\ Id.
---------------------------------------------------------------------------

    Since the Act was amended, Commerce has in certain instances 
identified a PMS and adjusted its calculations in response, which has 
been challenged before both the U.S. Court of International Trade and 
the U.S. Court of Appeals for the Federal Circuit (CAFC). One matter 
which has been at issue before the courts is the information Commerce 
should consider in determining the existence of a PMS. That matter came 
before the CAFC this past year in Nexteel v. United States, in which 
the CAFC held that Commerce's finding that a PMS existed in Korea 
during the period of review was unsupported by substantial evidence.\4\ 
In analyzing Commerce's PMS determination, the CAFC appeared to reach 
at least four conclusions. First, a PMS which distorts costs, as 
referenced in the Act, must cause costs to deviate from what they would 
have otherwise been in the ordinary course of trade.\5\ Second, a PMS 
must be particular to certain producers or exporters, inputs, or the 
market where the inputs are manufactured.\6\ Third, if there is a claim 
of a subsidy or government interference, there should be evidence that 
the producer or seller of the input at issue received, or should have 
received, that subsidy or government assistance, and that there is some 
form of impact on the price of the input as a result of that subsidy or 
government interference.\7\ Finally, Commerce is not required to 
quantify a distortion in costs by the PMS to find the existence of a 
PMS, but if Commerce is able to quantify the distortion, such a 
quantification may help support a finding of the existence of a PMS.\8\
---------------------------------------------------------------------------

    \4\ See Nexteel Co. v. United States, 28 F.4th 1226 (Fed. Cir. 
2022).
    \5\ Id. at 1234.
    \6\ Id. at 1234, 1236.
    \7\ Id. at 1235-36.
    \8\ Id. at 1234.
---------------------------------------------------------------------------

    In light of the CAFC's holding and analysis in Nexteel, as well as 
our experience in administering the PMS provision over the past several 
years, we have determined it is appropriate to revisit Commerce's 
approach in certain instances to analyzing and determining the 
existence of a PMS that distorts costs of production. In revisiting 
Commerce's approach, we have considered that the public and Commerce 
may benefit from the issuance of a regulation that addresses the 
information which Commerce should consider, or need not consider, in 
determining if a PMS exists that distorts costs of production. We also 
believe that a regulation that addresses the adjustments Commerce may 
make to its calculations if it determines the existence of a PMS that 
distorts costs of production might prove beneficial. We are therefore 
soliciting public comments on certain aspects of our PMS analysis 
pursuant to that exercise.

Request for Comments

    We are issuing this advanced notice of proposed rulemaking to 
inform the public that Commerce is considering issuing a PMS regulation 
and to invite comments on that new regulation. Specifically, Commerce 
is inviting parties to provide comments on three issues: (1) identify 
information which they believe Commerce should consider in determining 
if a PMS exists which distorts the costs of production if that 
information is reasonably available and relevant to the PMS allegation; 
(2) identify information which they believe Commerce should not be 
required to consider when determining if a PMS exists, regardless of 
the PMS allegation; and (3) provide comments on adjustments which 
Commerce may make to its calculations when it determines the existence 
of a PMS, but the record before it does not allow for the 
quantification of cost distortions.

    Dated: November 15, 2022.
Lisa W. Wang,
Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2022-25216 Filed 11-17-22; 8:45 am]
BILLING CODE 3510-DS-P
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.