Daily Rules, Proposed Rules, and Notices of the Federal Government
The Uruguay Round Agreements Act (“URAA”), enacted into law in 1994, changed the methodology used to determine whether a company is selling foreign merchandise into the United States at dumped prices in antidumping investigations. Prior to the URAA, the Department usually compared the six-month period of investigation average normal value to individual U.S. transaction prices to determine the margin of dumping (known as the average-to-transaction method). The URAA, however, directed the Department normally to calculate dumping margins by one of two methods: (1) By comparing weighted-average 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).
To address this possibility, Congress enacted a statutory provision that allows an exception to the above two comparison methodologies. Specifically, 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 preferred methods referred to above, the Department could compare the weighted average of the normal values to the export price of individual transactions for comparable merchandise (i.e., average-to-transaction comparisons).
Sections 19 CFR 351.414(f) and (g) of the Department's regulations establish certain criteria for analyzing allegations and making targeted dumping determinations in antidumping duty investigations. Section 19 CFR 351.301(d)(5) provides that an allegation of targeted dumping is due no later than 30 days before the scheduled date of the preliminary determination. The Department promulgated these provisions (
The Department may have established thresholds or other criteria that have prevented the use of this comparison methodology to unmask dumping, contrary to the Congressional intent. In that case, these provisions would act to deny relief to domestic industries suffering material injury from unfairly traded imports. Accordingly, immediate revocation of the provisions will facilitate the proper and efficient operation of the antidumping law.
The Department believes the withdrawal of this rule is not significant. Withdrawal will allow the Department to exercise the discretion intended by the statute and, thereby, develop a practice that will allow interested parties to pursue all statutory avenues of relief in this area.
The Department is not replacing these provisions with new provisions. Instead, the Department is returning to a case-by-case adjudication, until additional experience allows the Department to gain a greater understanding of the issue.
Parties are invited to comment on the Department's withdrawal of the regulatory provisions governing targeted dumping in antidumping duty investigations. Parties should submit to the address under the
It has been determined that this interim final rule is not significant for purposes of Executive Order 12866 of September 30, 1993 (“Regulatory Planning and Review”) (58 FR 51735 (October 4, 1993)).
This interim final rule contains no new collection of information subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.
This 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)).
The Assistant Secretary for Import Administration finds good cause to waive the requirement to provide prior notice and opportunity for public comment, pursuant to the authority set forth at 5 U.S.C. § 553(b)(B), as such requirement is impracticable and contrary to the public interest. Courts have determined that notice and comment is impracticable when “the agency could both follow section 553 and execute its statutory duties.”
Here, under the Tariff Act of 1930, as amended, the Department may employ the average-to-transaction comparison method in an investigation if: (i) There is a pattern of export prices (or constructed export prices) for comparable merchandise that differ significantly among purchasers, regions, or periods of time, and (ii) the agency explains why such differences cannot be taken into account using one of the preferred methods.
The Assistant Secretary for Import Administration also finds good cause to waive the 30-day delay in effectiveness, pursuant to the authority set forth at 5 U.S.C. 553(e), for the reasons given above. Significantly, the Department may employ the average-to-transaction comparison method in an antidumping duty investigation if certain conditions are met.
Because a notice and an opportunity for public comment are not required to be given for this rule under the Administrative Procedure Act or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601
Administrative practice and procedure, Antidumping duties, Business and industry, Cheese, Confidential business information, Investigations, Reporting and recordkeeping requirements.
5 U.S.C. 301; 19 U.S.C. 1202 note; 19 U.S.C. 1303 note; 19 U.S.C. 1671