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Notice

Targeted Dumping in Antidumping Investigations; Request for Comment

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Information about this document as published in the Federal Register.

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AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

The Department of Commerce (“the Department”) seeks public comment on its development of a methodology for determining whether targeted dumping is occurring in antidumping investigations. The Department seeks input on standards and tests that may be appropriate in a targeted dumping analysis.

DATES:

Comments must be submitted within thirty days from the publication of this notice.

ADDRESSES:

Written comments (original and six copies) should be sent to David Spooner, Assistant Secretary for Import Administration, U.S. Department of Commerce, Central Records Unit, Room 1870, 14th Street & Constitution Ave., NW, Washington, DC 20230.

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FOR FURTHER INFORMATION CONTACT:

Anthony Hill, Economist, Office of Policy, or Michael Rill, Director, Antidumping Policy, Import Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: 202-482-1843 or 202-482-3058, respectively.

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SUPPLEMENTARY INFORMATION:

Background

Pursuant to section 777A(d)(1) of the Tariff Act of 1930 (the “Act”), the Department normally will calculate antidumping duty margins in investigations by comparing weighted-average export prices with weighted-average normal values or transaction-specific export prices with transaction-specific normal values. Section 777A(d)(1)(B) of the Act allows the Department to use an alternative method for determining the existence of margins of dumping in an investigation using what is commonly referred to as the targeted dumping comparison methodology. The alternative method allows the Department to compare transaction-specific export prices to weighted-average normal values. In order to use this alternative method, the Act requires the Department to find that there is a pattern of export prices (or constructed export prices) that differ significantly among purchasers, regions, or periods of time. See 777A(D)(1)(B)(i) of the Act. In addition, the Act requires the Department to explain why the differences cannot be taken into account using one of the normal calculation methodologies. See 777A(D)(1)(B)(ii) of the Act. The Department's regulations at 19 CFR 351.414(f)(1)(i) further require that a determination of targeted dumping be made “through the use of, among other things, standard and appropriate statistical techniques.”

The Department's experience with regard to the use of this methodology has been very limited. In the antidumping investigation of certain pasta from Italy, petitioners made an allegation that targeted dumping was occurring, but the Department found that it was unsubstantiated and did not accept the allegation. See Notice of Final Determination of Sales at Less Than Fair Value: Certain Pasta from Italy, 61 FR 30326 (June 14, 1996). Reviewing that determination, the Court of International Trade found that the Department had dismissed the allegation even though it had not articulated a test by which an allegation should be made. See Borden, Inc. v. U.S., 4 F. Supp. 2d 1221, 1228-31 (CIT March 26, 1998) (“Borden”). On remand, the Department created a test (the “Pasta Test”) to analyze U.S. price data in that case, but found no targeted dumping. See Borden, Inc. v. U.S., 1999 WL 397968, *2 (CIT June 4, 1999) (“Borden Remand”) (citing Department's Remand Redetermination (“Remand Redetermination”) at 17). However, the Department noted that it reserved the discretion to alter its methodology in future cases. See Borden Remand, 1999 WL 397968, *1 (citing Remand Redetermination at 15).

An allegation of targeted dumping was made in the investigation of fresh tomatoes from Mexico. The Department determined that there was not an adequate basis on which to accept the allegation on the grounds that petitioners used a benchmark of ten percent to claim that price differences were significant even though prices for tomatoes were very volatile, changing by more than ten percent within a day, and petitioners did not establish that there was a pattern of price differences. See Notice of Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination: Fresh Tomatoes From Mexico, 61 FR 56608, 56610 (November 1, 1996).

Another allegation of targeted dumping was made in the investigation of stainless steel wire rod from Taiwan. Again, the Department found that the petitioners' analysis failed to meet the basic requirements of the statute. The allegation simply compared average prices to different customers without any further analysis. See Notice of Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination: Stainless Steel Wire Rod from Taiwan, 63 FR 10836, 10837 (March 5, 1998).

The Department's most recent experience was in the antidumping investigation of coated free sheet paper from the Republic of Korea. In that proceeding, petitioners alleged that certain respondents were targeting certain customers and regions. The Department accepted this allegation, finding that petitioners had met the statutory requirement for showing that there was a pattern of prices that differ significantly among purchasers and regions while also acknowledging that the Department had not yet established a general set of standards for analyzing an allegation of targeted dumping. See Memorandum to David M. Spooner entitled “Antidumping Duty Investigation of Coated Free Sheet Paper from South Korea - Targeted Dumping,” from Stephen J. Claeys, dated September 7, 2007.

Request for Comment

Given the Department's limited experience with targeted dumping allegations and analysis and certain undefined terms in the statute and regulations, the Department requests comments and suggestions on what guidelines, thresholds, and tests it should use in determining whether targeted dumping is occurring. For example, while the statute requires a showing that there is a “pattern” of price differences, there is no definition or explanation as to what constitutes a pattern. What standards or methods should be used to show a pattern of price differences? Another requirement is that price differences be “significant.” What threshold should there be, if any, for showing that price differences are significant? Furthermore, the regulations require the use of “standard and appropriate statistical techniques.” What would be the appropriate statistical techniques to use to show targeted dumping?

Submission of Comments

Persons wishing to comment should file a signed original and six copies of Start Printed Page 60652each set of comments by the date specified above. The Department will consider all comments received by the close of the comment period. Comments received after the end of the comment period will be considered, if possible, but their consideration cannot be assured. The Department will not accept comments accompanied by a request that a part or all of the material be treated confidentially because of its business proprietary nature or for any other reason. The Department will return such comments and materials to the persons submitting the comments and will not consider them in its development of a targeted dumping analysis. The Department requires that comments be submitted in written form. The Department also requests submission of comments in electronic form to accompany the required paper copies. Comments filed in electronic form should be submitted either by e-mail to the webmaster below, or on CD-ROM, as comments submitted on diskettes are likely to be damaged by postal radiation treatment.

Comments received in electronic form will be made available to the public in Portable Document Format (PDF) on the Internet at the Import Administration website at the following address: http:/ia.ita.doc.gov. Any questions concerning file formatting, document conversion, access on the Internet, or other electronic filing issues should be addressed to Andrew Lee Beller, Import Administration Webmaster, at (202) 482-0866, email address: webmaster-support@ita.doc.gov.

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Dated: October 17, 2007.

David M. Spooner,

Assistant Secretary for Import Administration.

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[FR Doc. E7-21045 Filed 10-24-07; 8:45 am]

BILLING CODE 3510-DS-S