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62062 Federal Register / Vol. 70, No. 208 / Friday, October 28, 2005 / Rules and Regulations
FOR FURTHER INFORMATION CONTACT: Explanation of Amendments paragraph (d)(2) of 19 CFR 351.218.
Stacy J. Ettinger or Patrick V. Gallagher, In finalizing the amendments to the First, with respect to so-called
Office of the Chief Counsel for Import Department’s regulations addressing the ‘‘affirmative waivers’’ set forth in
Administration, room 3622, U.S. procedures for participation in, and paragraph (d)(2)(i)—which provides that
Department of Commerce, Pennsylvania conduct of, sunset reviews, the a party may elect not to participate in
Avenue and 14th Street NW., Department carefully considered each of the Department’s sunset review by filing
Washington, DC 20230; telephone: (202) the comments it received. The following a ‘‘statement of waiver’’ within 30 days
482–4618 or (202) 482–5053, is an explanation of the amendments, as of initiation of the sunset review—the
respectively. well as a summary of the comments Department has amended the contents
received and the Department’s of a ‘‘statement of waiver’’ which are set
SUPPLEMENTARY INFORMATION: forth in paragraph (d)(2)(ii). Paragraph
responses to those comments.
(d)(2)(ii) now requires that a party filing
Background Section 351.218 a Statement of Waiver include a
On March 20, 1998, the Department Section 751(c)(4)(B) of the Tariff Act statement that it is likely to dump or
published regulations addressing the provides that where an interested party benefit from a countervailable subsidy
procedures for participation in, and ‘‘waives’’ its participation in a sunset (as the case may be) or, in the case of
conduct of, sunset reviews. See 63 FR review, the Department ‘‘shall conclude a foreign government in a CVD sunset
13516. On December 17, 2004, the that revocation of the order * * * review, provide a countervailable
Dispute Settlement Body (‘‘DSB’’) of the would be likely to lead to continuation subsidy, if the order is revoked or the
World Trade Organization adopted the or recurrence of dumping or a investigation is terminated. Second, we
reports of the Appellate Body and the countervailable subsidy (as the case may have eliminated paragraph (d)(2)(iii)—
dispute settlement panel in United be) with respect to that interested which provided that an interested party
States—Sunset Reviews of Anti- party.’’ Paragraph (d)(2) of 19 CFR is ‘‘deemed’’ to have waived
dumping Measures on Oil Country 351.218 deals with the procedure for participation in the sunset review by
Tubular Goods from Argentina, WT/ waiving participation in a sunset review failing to file a complete substantive
DS268/AB/R (November 29, 2004) and before the Department. Specifically, response to a notice of initiation. Thus,
WT/DS268/R (July 16, 2004), paragraph (d)(2)(i) provides for filing a the Department will no longer make
‘‘statement of waiver’’ for parties company-specific likelihood findings
respectively. The AB and the dispute
electing not to participate in the for companies that fail to file a
settlement panel found that the waiver
Department’s sunset review (so-called statement of waiver and fail to file a
provisions of section 751(c)(4)(B) of the
‘‘affirmative waiver’’), and paragraph substantive response to the notice of
Tariff Act of 1930 and section
(d)(2)(iii) provides that failure to file a initiation. Finally, we modified
351.218(d)(2)(iii) of Commerce’s sunset
complete substantive response to a paragraphs (d)(2)(iv)(C) and
regulations are inconsistent with (e)(1)(ii)(B)(3)—which address waiver of
Articles 6.1, 6.2, and 11.3 of the notice of initiation also will be treated
as a waiver of participation (so-called participation by a foreign government in
Antidumping Agreement. a CVD sunset review—to eliminate
‘‘deemed waiver’’). The panel and
Section 123 of the URAA governs the Appellate Body found that the operation cross-references to paragraph (d)(2)(iii)
process for changes to the Department’s of the statutory and regulatory waiver and to eliminate certain language that
regulations where a dispute settlement provisions was inconsistent with the might suggest the possibility that the
panel and/or the Appellate Body finds obligation under Article 11.3 to arrive at Department’s order-wide likelihood
a regulatory provision to be inconsistent a ‘‘reasoned conclusion’’ because the determination in a CVD sunset review
with any of the WTO agreements. Department’s order-wide likelihood would be based on assumptions about
Consistent with section 123(g)(1)(C), on determination would be based, at least likelihood of continuation or recurrence
August 15, 2005, the Department in part, on statutorily-mandated of a countervailable subsidy. In sum,
published proposed amendments to its ‘‘assumptions’’ about a company’s these three modifications to the waiver
regulations related to sunset reviews to likelihood of dumping. The AB and provisions of the Department’s sunset
conform the existing regulations to the panel also found that the operation of regulations ensure that there is no
United States’ obligations under Articles paragraph (d)(2)(iii) was inconsistent longer the possibility that the
6.1, 6.2, and 11.3 of the Antidumping with ‘‘due process rights’’ of Articles 6.1 Department’s order-wide likelihood
Agreement. The Department received and 6.2, because the Department could determinations might be based on
four sets of written public comments on assume likelihood with respect to a assumptions about likelihood of
the proposed amendments. The particular company even though that continuation or recurrence of dumping
Department has carefully considered party had filed a substantive response to or a countervailable subsidy. The
each of the comments it received, and the notice of initiation, albeit an Department will make its order-wide
has adopted a drafting suggestion from ‘‘incomplete’’ response. likelihood determinations on the basis
one commenter related to the issue of To implement the AB and panel of the facts and information available on
the basis for parties’ participating in a findings with respect to the operation of the record of the sunset review.
hearing in an expedited sunset review. the waiver provisions, the Department Two commenters argue that
This final rule is published pursuant to has modified its regulations to eliminate amendment or withdrawal of the
section 123(g)(1)(F) of the URAA. The the possibility that the Department’s statutory provision (section 751(c)(4)(B)
final rule amends the ‘‘waiver’’ order-wide likelihood determinations of the Act) found to be WTO-
provisions which govern treatment of would be based on assumptions about inconsistent was required in order to
interested parties who do not provide a likelihood of continuation or recurrence implement the AB/panel findings. We
complete substantive response to the of dumping or a countervailable subsidy disagree. By modifying its regulatory
Department’s Notice of Initiation of a due to interested parties’ waiver of waiver provisions, the Department has
sunset review and clarifies the basis for participation in sunset reviews. eliminated the possibility that its order-
parties’ participation in a public hearing Specifically, the Department has made wide likelihood determinations would
in an expedited sunset review. the following three modifications to be based on assumptions about
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Federal Register / Vol. 70, No. 208 / Friday, October 28, 2005 / Rules and Regulations 62063
likelihood of continuation or recurrence One commenter argued that providing congressional committees in accordance
of dumping or a countervailable subsidy for filing of case briefs in expedited with section 123 of the Uruguay Round
due to interested parties’ waiver of reviews could eliminate the distinction Agreements Act. After the publication of
participation in sunset reviews. Section between expedited and full sunset this final rule, the Department still must
751(c)(4)(B) of the Act only mandates an reviews. The commenter proposed, initiate the sunset review, provide
affirmative company-specific likelihood instead, that the regulations provide interested parties with 30 days to
finding as a consequence of a party respondents with an opportunity to submit their responses to the
electing to waive its participation in the supplement their substantive responses Department’s sunset questionnaire,
sunset review. Thus, the modified to correct identified deficiencies. We analyze the responses, and make a final
regulatory waiver requirements result in have not adopted this suggestion. The likelihood determination in the sunset
elimination of any assumptions about central distinction between an review before December 17, 2005. Thus,
likelihood because a party waiving expedited and full sunset review in order to meet the WTO-mandated
participation would have already remains. In a full sunset review, the implementation date and to ensure that
indicated to the Department that it was regulations provide that the Department interested parties have an opportunity
likely to dump or benefit from a will issue a preliminary determination to participate fully in the sunset review,
countervailable subsidy if the order and allow comments on that the Department finds good cause to
were revoked. determination; there is no provision for waive the 30-day delay in effectiveness
Two commenters also noted that the issuance of a preliminary determination of the final rule and makes these
regulations would not longer specify in an expedited sunset review. regulations effective on October 31,
how the Department will address the Clarifying the basis for parties’ 2005, upon conclusion of the 60-day
situation where a producer/exporter participation in a public hearing in an congressional consultation period
does not participate in a sunset review. expedited sunset review does not required by the Uruguay Round
The commenters are correct in part. change this distinction. The commenter Agreements Act.
While it is the statute that provides for also suggested that if the Department
determinations on the basis of facts Paperwork Reduction Act
permits the filing of case briefs in an
available where, inter alia, a party does expedited review, it should make a Notwithstanding any other provision
not provide requested information corresponding amendment to paragraph of law, no person is required to respond
(section 776 of the Act), there are (e)(1)(ii)(C)(2) of 19 CFR 351.218. We to nor shall a person be subject to a
specific provisions in the Department’s agree and have eliminated certain penalty for a failure to comply with a
regulations concerning use of facts language in paragraph (e)(1)(ii)(C)(2) collection of information subject to the
available in a sunset review (19 CFR that could be construed as inconsistent requirements of the Paperwork
351.308(f)). As a general matter, the with permitting parties to file case briefs Reduction Act unless that collection of
Department will make its order-wide in expedited sunset reviews. information displays a currently valid
likelihood determination on the basis of Office of Management and Budget
the facts and information available on Classification
(OMB) control number. This final rule
the record of the sunset review which E.O. 12866 involves collection-of-information
may include, where appropriate, use of
This final rule has been determined to requirements subject to the Paperwork
facts available as provided for in the
be not significant under E.O. 12866. Reduction Act, 44 U.S.C. Chapter 35.
statute and regulations.
The requirements have been approved
Section 351.309 Administrative Procedures Act by OMB under control numbers 0625–
The Appellate Body upheld the The Department finds good cause to 0105 and 0625–0148.
panel’s finding that the operation of waive the 30-day delay in effectiveness E.O. 12612
paragraph (d)(2)(iii) of 19 CFR 351.218 pursuant to 5 U.S.C. 553(d)(3) in order
was inconsistent with Article 6.2 in that to complete requirements mandated by This final rule does not contain
it allegedly denies an interested party the World Trade Organization (‘‘WTO’’) federalism implications warranting the
that is deemed to have waived its right Appellate Body by December 17, 2005. preparation of a Federalism Assessment.
to participate in a sunset review by On December 17, 2004, the WTO Regulatory Flexibility Act
submitting an incomplete substantive Appellate Body (‘‘AB’’) issued its
response the right to participate in a findings regarding the sunset review of The Chief Counsel for Regulation of
hearing. Paragraph (d)(2)(iii) does not the antidumping duty order on Oil the Department of Commerce has
explicitly address the issue of hearings; Country Tubular Goods (‘‘OCTG’’) from certified to the Chief Counsel for
nor do the regulations preclude hearings Argentina. The WTO-appointed Advocacy of the Small Business
in expedited sunset reviews resulting arbitrator determined, with reference to Administration that this final rule will
from the application of the waiver the Appellate Body report, that the not have a significant impact on a
provisions. Nevertheless, in the interest United States must bring its laws into substantial number of small entities.
of alleviating any perceived confusion compliance with the Antidumping The factual basis for the certification
with respect to participation in a Agreement and complete another sunset was published in the proposed rule and
hearing in an expedited sunset review, review of the antidumping duty order is not repeated here. No comments were
the Department is modifying paragraph on OCTG from Argentina not later than received regarding the economic impact
(c)(1)(iii) of 19 CFR 351.309 to clarify December 17, 2005. The Department of this action. As a result, a regulatory
that the Secretary will specify a due was informed of this deadline date on flexibility analysis was not prepared.
date for case briefs in an expedited June 7, 2005. On August 15, 2005 (70 FR List of Subjects in 19 CFR Part 351
sunset review. Case briefs provide the 47738), the Department published a
basis for parties’ affirmative proposed rule to solicit comments on Administrative practice and
presentations at a hearing. In addition, proposed revisions to its regulations procedure, Antidumping duties,
as discussed above, for other reasons we related to sunset reviews. In addition, Business and industry, Cheese,
have eliminated paragraph (d)(2)(iii) in the Department initiated consultations Confidential business information,
its entirety. for 60 days with the relevant Countervailing duties, Investigations,
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62064 Federal Register / Vol. 70, No. 208 / Friday, October 28, 2005 / Rules and Regulations
Reporting and recordkeeping (2) Normally will conduct an Guard District, Federal Building, 1st
requirements. expedited sunset review and, not later Floor, 431 Crawford Street, Portsmouth,
Dated: October 20, 2005. than 120 days after the date of VA 23704–5004 between 8 a.m. and 4
Joseph A. Spetrini,
publication in the Federal Register of p.m., Monday through Friday, except
the notice of initiation, issue final Federal holidays. The telephone number
Acting Assistant Secretary for Import
Administration.
results of review based on the facts is (757) 398–6222. Commander (obr),
available in accordance with Fifth Coast Guard District maintains the
■ For the reasons stated, 19 CFR part § 351.308(f) (see section 751(c)(3)(B) of
351 is amended as follows: public docket for this temporary
the Act and § 351.221(c)(5)(ii)). deviation.
PART 351—ANTIDUMPING AND * * * * *
FOR FURTHER INFORMATION CONTACT:
COUNTERVAILING DUTIES
Subpart C—Information and Argument Waverly W. Gregory, Jr., Bridge
Subpart B—Antidumping and Administrator, Fifth Coast Guard
■ 2. Section 351.309 is amended by District, at (757) 398–6222.
Countervailing Duty Procedures revising paragraph (c)(1)(iii) to read as
■ 1. Section 351.218 is amended by follows: SUPPLEMENTARY INFORMATION: The Route
revising paragraphs (d)(2)(ii) 71 Bridge, at mile 0.8 across Shark River
§ 351.309 Written argument.
introductory text, (d)(2)(iv)(C), (South Channel), a bascule-type
(e)(1)(ii)(B) introductory text, * * * * * drawbridge, has a vertical clearance in
(c) Case brief. (1) * * * the closed position to vessels of 13 feet,
(e)(1)(ii)(B)(3), and (e)(1)(ii)(C)(2), and
(iii) For the final results of an
removing and reserving paragraph at mean high water.
expedited sunset review, expedited
(d)(2)(iii), as follows: The New Jersey Department of
antidumping review, Article 8 violation
§ 351.218 Sunset reviews under section review, Article 4/Article 7 review, or Transportation, the bridge owner,
751(c) of the Act. section 753 review, a date specified by requested a temporary deviation from
* * * * * the Secretary. the operating regulations for the Route
(d) * * * * * * * * 71 Bridge, set out in 33 CFR 117.751, to
(2) * * * [FR Doc. 05–21468 Filed 10–28–05; 8:45 am] effect emergency repair and replacement
(ii) Contents of statement of waiver. BILLING CODE 3510–DS–P
of the span lock motor and gear box of
Every statement of waiver must include the draw span.
a statement indicating that the To facilitate the work, the Route 71
respondent interested party waives DEPARTMENT OF HOMELAND Bridge will provide vessel openings of
participation in the sunset review before SECURITY the draw span upon two hours advance
the Department; a statement that the notice each day from 8 a.m. to 3 p.m.
respondent interested party is likely to Coast Guard and from 6 p.m. to 10 p.m. beginning on
dump or benefit from a countervailable Monday, October 31, 2005 until and
subsidy (as the case may be) if the order 33 CFR Part 117 including Thursday, November 3, 2005.
is revoked or the investigation is [CGD05–05–127] At all other times, the bridge will
terminated; in the case of a foreign operate in accordance with 33 CFR
government in a CVD sunset review, a RIN 1625–AA–09
117.751.
statement that the government is likely
to provide a countervailable subsidy if Drawbridge Operation Regulations; The Coast Guard has informed the
the order is revoked or the investigation Shark River (South Channel), NJ known users of the waterway of the
is terminated; and the following AGENCY: Coast Guard, DHS. closure periods for the bridge so that
information: ACTION: Notice of temporary deviation these vessels can arrange their transits
* * * * * from regulations. to minimize any impact caused by the
(iv) * * * temporary deviation.
(C) Base the final results of review on SUMMARY: The Commander, Fifth Coast In accordance with 33 CFR 117.35(c),
the facts available in accordance with Guard District, has approved a this work will be performed with all due
351.308(f). temporary deviation from the speed in order to return the bridge to
* * * * * regulations governing the operation of normal operation as soon as possible.
(e) Conduct of sunset review—(1) the Route 71 Bridge, at mile 0.8, across This deviation from the operating
* * * Shark River (South Channel), at Belmar,
regulations is authorized under 33 CFR
(ii) * * * New Jersey. This deviation allows the
117.35.
drawbridge to provide vessel openings
(B) Failure of a foreign government to Dated: October 20, 2005.
upon two hours advance notice each
file a substantive response to a notice of
day from 8 a.m. to 3 p.m. and from 6 Waverly W. Gregory, Jr.,
initiation in a CVD sunset review. If a
p.m. to 10 p.m. beginning on Monday, Chief, Bridge Administration Branch, Fifth
foreign government fails to file a
October 31 until Thursday, November 3, Coast Guard District.
complete substantive response to a
2005, to facilitate emergency [FR Doc. 05–21501 Filed 10–27–05; 8:45 am]
notice of initiation in a CVD sunset
mechanical repairs.
review under paragraph (d)(3)(v) of this BILLING CODE 4910–15–P
section or waives participation in a CVD DATES: The deviation is effective from 8
sunset review under paragraph (d)(2)(i) a.m. to 3 a.m. and from 6 p.m. to 10 p.m.
of this section, the Secretary will: * * * from October 31 until November 3,
(3) Base the final results of review on 2005.
the facts available in accordance with ADDRESSES: Materials referred to in this
351.308(f). document are available for inspection or
(C) * * * copying at Commander (obr), Fifth Coast
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