Antidumping Duties; Countervailing Duties

Summary

The Department of Commerce (``the Department'') proposes to establish regulations to conform the Department's existing antidumping duty and countervailing duty regulations to the Uruguay Round Agreements Act, which implemented the results of the Uruguay Round multilateral trade negotiations. In addition to conforming changes, the Department has sought to issue regulations that: where appropriate and feasible, translate the principles of the implementing legislation into specific and predictable rules, thereby facilitating the administration of these laws and providing greater predictability for private parties affected by these laws; simplify and streamline the Department's administration of antidumping and countervailing duty proceedings in a manner consistent with the purpose of the statute and the President's regulatory principles; and codify certain administrative practices determined to be appropriate under the new statute and under the President's Regulatory Reform Initiative.

Full text

SUMMARY: The Department of Commerce (``the Department'') proposes to 
establish regulations to conform the Department's existing antidumping 
duty and countervailing duty regulations to the Uruguay Round 
Agreements Act, which implemented the results of the Uruguay Round 
multilateral trade negotiations. In addition to conforming changes, the 
Department has sought to issue regulations that: where appropriate and 
feasible, translate the principles of the implementing legislation into 
specific and predictable rules, thereby facilitating the administration 
of these laws and providing greater predictability for private parties 
affected by these laws; simplify and streamline the Department's 
administration of antidumping and countervailing duty proceedings in a 
manner consistent with the purpose of the statute and the President's 
regulatory principles; and codify certain administrative practices 
determined to be appropriate under the new statute and under the 
President's Regulatory Reform Initiative.

DATES: Written comments will be due on April 29, 1996.

ADDRESSES: Address written comments to Susan G. Esserman, Assistant 
Secretary for Import Administration, Central Records Unit, Room B-099, 
U.S. Department of Commerce, Pennsylvania Avenue and 14th Street, NW., 
Washington, D.C. 20230. Attention: Proposed Regulations/Uruguay Round 
Agreements Act. Each person submitting a comment is requested to 
include his or her name and address, and give reasons for any 
recommendation.

FOR FURTHER INFORMATION CONTACT: William D. Hunter (202) 482-1930, or 
Penelope Naas, (202) 482-3534.

SUPPLEMENTARY INFORMATION:

Background

    In March, 1995, President Clinton issued a directive to Federal 
agencies regarding their responsibilities under his Regulatory Reform 
Initiative. This initiative is part of the National Performance review, 
and calls for immediate, comprehensive regulatory reform. The President 
directed all agencies to undertake an exhaustive review of all their 
regulations, with an emphasis on eliminating or modifying those that 
are obsolete or otherwise in need of reform. This proposed rule 
represents one of the steps in the Import Administration's response to 
the President's directive.
    On January 3, 1995, the Department published an Advance Notice of 
Proposed Rulemaking and Request for Comments in the Federal Register 
(Antidumping Duties; Countervailing Duties; Article 1904 of the North 
American Free Trade Agreement, 60 FR 80 (``Advance Notice'')), as the 
first step in the process of developing regulations under the Uruguay 
Round Agreements Act (``URAA'').1 The Department took the step of 
requesting comments in advance of issuing a proposed rule in order to 
ensure that, at the earliest possible stage, we could consider and take 
account the views of the private sector entities that are subject to 
the antidumping and countervailing duty laws.2

    \1\ Among other things, the URAA amended the antidumping and 
countervailing duty provisions of the Tariff Act of 1930 to conform 
those provisions to the Agreement on Implementation of Article VI of 
the General Agreement on Tariffs and Trade 1994 (``AD Agreement'') 
and the Agreement on Subsidies and Countervailing Measures (``SCM 
Agreement''), both of which are part of the Marrakesh Agreement 
Establishing the World Trade Organization (``WTO Agreement'').
    \2\ On February 22, 1995, the Department published in the 
Federal Register (60 FR 9802) a notice extending until April 3, 
1995, the deadline for filing final comments pursuant to the Advance 
Notice. In addition, on May 11, 1995, the Department published in 
the Federal Register (60 FR 25130) a Notice of Interim Regulations 
and Request for Comments (``Interim Regulations''). The Interim 
Regulations dealt with certain new or revised procedures resulting 
from the URAA that would have an immediate impact on the orderly 
administration of the antidumping and countervailing duty laws. 
Although the Department invited immediate comments on the Interim 
Regulations, it allowed the deadline for comments on the Interim 
Regulations to coincide with the deadline for comments on this 
proposed rulemaking.
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    In these proposed regulations, the Department has been guided by 
the following objectives. First, the Department is proposing to revise 
the regulations to conform to the statutory amendments made by the 
URAA. Second, consistent with the Administration's commitment in the 
Statement of Administrative Action accompanying H.R. 5110 (H.R. Doc. 
No. 316, Vol. 1, 103d Cong., 2d Sess. (1994) (``SAA''), the Department 
has fleshed out through regulation certain statements contained in the 
SAA. Under section 102(d) of the URAA, the SAA constitutes an 
authoritative expression concerning the interpretation and application 
of the provisions of the URAA, including those provisions relating to 
antidumping and countervailing duties. Finally, the Department has 
developed proposed regulations mindful of President Clinton's 
Regulatory Reform Initiative and his directive to identify and either 
eliminate or modify obsolete and burdensome regulations.
    The Department has carefully reviewed its existing regulations, and 
has taken several steps to enhance their effectiveness and make them 
more accessible to the business community. We have consolidated the 
antidumping and countervailing duty regulations (which currently are 
contained in separate Parts 353 and 355) into a single Part 351. 
Because, for the most part, antidumping and countervailing duty 
procedures are identical, the consolidation of those portions of the 
regulations dealing with procedures will make the regulations easier to 
use, will make it easier to identify those instances where antidumping 
and countervailing duty procedures differ, and, by reducing the sheer 
size of the regulations, will make the regulations less burdensome to 
the non-expert.
    To the extent possible, we have proposed regulations that simplify 
and streamline the antidumping/countervailing duty process. For 
example, in the case of administrative reviews, we have added a new 
provision which allows, under certain circumstances, the Department to 
cover two review periods in a single review, an approach which should 
be more efficient for all parties concerned. We have attempted to 
harmonize, to the extent possible, the rules applicable to both the 
investigation and review phases of antidumping and countervailing duty 
proceedings. Because the maintenance of different rules for different 
phases of antidumping and countervailing duty proceedings merely adds 
another layer of complexity to an already complex area, we have 
attempted to eliminate needless differences. For example, in the case 
of correction of ministerial errors, we generally have made the 
procedures identical for both investigations and reviews.
    In addition, we have developed rules which reduce burdens and 
facilitate the use of the regulations and administrative procedures. 
For example, we have consolidated and harmonized the rules governing 
the submission of information. We have reduced the number of copies that parties must file when they make submissions to 
the Department. We also have included charts which set forth in a 
single place the various deadlines in antidumping and countervailing 
duty investigations and reviews.
    Further, where possible, we have proposed regulations that 
supplement, rather than repeat, the statute. We have included narrative 
explanations that put a particular regulation in context and explain 
how the regulation fits in the administrative process. We have also 
sought to use language that will be readily understood by members of 
the business community.
    Finally, where possible, we have tried to use these regulations as 
a vehicle for enhancing the predictability of the antidumping and 
countervailing duty laws. We recognize that there are many areas in 
which the statute provides the Department with discretion, and we have 
attempted to provide guidance as to how the Department will exercise 
that discretion. For example, in the regulation that deals with so-
called ``price averaging'' in antidumping proceedings, we have 
attempted to flesh out how the Department will apply this new 
methodology added to the law by the URAA.
    In this regard, however, there are limits as to the amount of 
detail that the Department can provide in these regulations at this 
time. In some instances, the statute or the SAA already provides 
extremely detailed rules, thereby obviating the need for additional 
regulatory guidance. In other instances, the SAA expressly directs the 
Department to take a case-by-case approach and to eschew hard-and-fast 
rules. Finally, in many instances, the URAA has created new procedural 
and methodological issues on which the Department has little, if any, 
experience. Absent such experience, the Department lacks a basis for 
promulgating detailed rules.
    Streamlining the regulations is only one part of a larger effort of 
the Department to simplify its practices. For example, we have been 
revising our standard questionnaires to make them more ``user 
friendly'' and efficient. We have made significant changes to our 
verification procedures in the interest of increased effectiveness. We 
also will publicly announce the issuance of Policy Bulletins and ensure 
that they are easily accessible to the public.

Timetable

    Certain regulations dealing with the treatment of business 
proprietary information and administrative protective order procedures 
were the subject of a separate Notice of Proposed Rulemaking and 
Request for Public Comment on [Insert date and citation when published] 
(``APO Rule''). However, the Department intends that, when it publishes 
final regulations, it will publish a single document that will include 
the regulations contained in this proposed rule, as well as those 
regulations contained in the APO Rule.
    In addition, the Department intends to publish separately proposed 
rules regarding countervailing duty methodology. When completed, these 
rules will be included as subpart E of proposed Part 351.
    The issuance of final regulations on this topic is a priority for 
the Department. After reviewing and analyzing comments on this proposed 
rule and the APO Rule, the Department intends to issue final 
regulations as soon as possible.

Comments--In General

    The Department wishes to emphasize that the regulations contained 
in this proposed rule reflect our best judgment at this time regarding 
the appropriate style and content of antidumping and countervailing 
duty regulations. We have not foreclosed consideration of any issue 
raised herein, and we would appreciate greatly public comment and 
suggestions. In particular, while there are certain matters on which, 
in our view, the statute and its legislative history give the 
Department relatively little flexibility, there are other matters where 
the Department has a much greater degree of discretion in interpreting 
and applying the statute. With respect to this latter category of 
matters, the fact that in these proposed regulations the Department has 
exercised its discretion in a particular manner (or has declined to 
exercise its discretion at all in the form of regulations) should not 
be construed as an indication that the Department's position on these 
matters is immutable. We welcome any and all suggestions.
    Therefore, we are very interested in receiving public comment on 
these proposed regulations. We have found the dialogue that commenced 
with the Advance Notice to be extremely useful, and we hope and expect 
that it will continue. We encourage the submission of new comments, as 
well as the resubmission of old comments if commentators believe that 
the Department did not fully understand or appreciate a comment the 
first time around.

Comments--Format and Number of Copies

    Each person submitting a comment should include his or her name and 
address, and give reasons for any recommendation. To facilitate their 
consideration by the Department, comments regarding these proposed 
regulations should be submitted in the following format: (1) Number 
each comment in accordance with the number designated for that issue as 
indicated in the list of issues set forth below; (2) begin each comment 
on a separate page; (3) concisely state the issue identified and 
discussed in the comment; and (4) provide a brief summary of the 
comment (a maximum of 3 sentences) and label this section ``summary of 
the comment.''
    To simplify the processing and distribution of comments, the 
Department encourages the submission of documents in electronic form 
accompanied by an original and two copies in paper form. We request 
that documents filed in electronic form be on DOS formatted 3.5'' 
diskettes and prepared in either WordPerfect 5.1 format or a format 
that the WordPerfect program can convert and import into WordPerfect 
5.1. Please submit comments on a separate file on the diskette and 
labeled by the number designated for that issue based upon the list of 
issues set forth below.
    Comments received on diskette will be made available to the public 
on the Internet at the following addresses:

FTP://FWUX.FEDWORLD.GOV/PUB/IMPORT or
FTP://FTP.FEDWORLD.GOV/PUB/IMPORT/IMPORT.HTM

In addition, the Department will make comments available to the public 
on 3.5'' diskettes, with specific instructions for accessing compressed 
data, at cost, and paper copies will be available for reading and 
photocopying in the Central Records Unit, Room B-099, U.S. Department 
of Commerce, Pennsylvania Avenue and 14th Street, NW., Washington, D.C. 
20230. Any questions concerning file formatting, document conversion, 
access on the Internet, or other file requirements should be addressed 
to Andrew Lee Beller, Director of Central Records, (202) 482-1248.

Classification of Issues for Comment

Antidumping Issues

    11. Comparison Methodology:
    a. Viability, third-country sales, intermediate country sales, and 
tolling;
    b. Constructed export price deductions and value-added deductions; c. Normal value adjustments;
    d. Level of trade matching, level of trade adjustments, and 
constructed export price offset;
    12. Start-up
    13. Profit and selling, general and administrative expenses in 
constructed value;
    14. Sales below cost of production and constructed value generally;
    15. Currency conversion;
    16. Price averaging;
    17. Anticircumvention;
    18. Affiliated persons (address separately for AD and CVD);
    19. AD methodology issues other than those outlined above;

Procedural issues

    20. Initiation of petitions;
    21. Evidence;
    22. Facts available;
    23. De Minimis (address separately for AD and CVD);
    24. Reviews, other than five-year reviews (if specific to AD or 
CVD, please specify);
    25. Five-year reviews and revocation;
    26. Repeal of Section 303;
    27. Regional industries;
    28. Critical circumstances;
    29. Simplification;
    30. Business proprietary information and administrative protective 
orders;
    31. Ministerial errors;
    32. Procedural issues other than those outlined above;
    33. Other issues.

Explanation of the Proposed Rules

General Background

Consolidation of Antidumping and Countervailing Duty Regulations
    As discussed above, in response to the President's Regulatory 
Reform Initiative, to reduce the amount of duplicative material in the 
regulations, the Department has consolidated the antidumping and 
countervailing duty regulations into a new Part 351, and is removing 
Parts 353 and 355.
    The structure of Part 351 is as follows. Subpart A (Scope and 
Definitions) is based on existing subpart A of Parts 353 and 355. Among 
other things, the regulations contained in subpart A deal with general 
definitions applicable to antidumping and countervailing duty 
proceedings, the record for such proceedings, and de minimis standards 
for countervailable subsidies and dumping margins.
    Subpart B (Antidumping and Countervailing Duty Procedures) is based 
on existing subpart B of Parts 353 and 355. As suggested by the title, 
subpart B deals with the procedural aspects of antidumping and 
countervailing duty proceedings. Where the procedures for antidumping 
and countervailing duty proceedings are different, the regulations in 
subpart B so specify.
    Subpart C (Information and Argument) is based on existing subpart C 
of Parts 353 and 355. Subpart C establishes rules for antidumping and 
countervailing proceedings regarding such matters as the submission of 
information, the treatment of proprietary information, the verification 
of information, and determinations based on the facts available. As 
noted, certain portions of Subpart C were contained in the APO Notice.
    Subpart D (Calculation of Export Price, Constructed Export Price, 
Fair Value, and Normal Value) is based on existing subpart D of Part 
353. Subpart D essentially deals with methodologies for identifying and 
measure dumping.
    Subpart E is designated ``[Reserved],'' but, as explained above, 
eventually will include rules dealing with countervailing duty 
methodology. Subpart E does not have a counterpart in existing Part 
355, although proposed methodological regulations were published in 
1989. 54 FR 23366 (1989).
    Subpart F (Cheese Subject to In-Quota Rate of Duty) is based on 
subpart D of existing Part 355, and implements section 702 of the Trade 
Agreements Act of 1979, as amended by the URAA.

Explanation of Particular Provisions

Part 351, Subpart A--Scope and Definitions

    Subpart A of Part 351 sets forth the scope of Part 351, 
definitions, and other general matters applicable to antidumping and 
countervailing duty proceedings.
Section 351.101
    Section 351.101 deals with the scope of Part 351, countervailing 
duty investigations involving imports from a country that is not a 
Subsidies Agreement country, and the application of antidumping and 
countervailing duties to importations by the United States Government.
Section 351.102
    Section 351.102 sets forth the definition of terms that are used in 
antidumping and countervailing duty proceedings, but that are not 
defined in the statute or that warrant clarification. A few definitions 
merit comment.
    Affiliated persons (and affiliated parties) is a new term that 
replaces prior definitions of ``related persons'' or ``related 
parties'' (the latter term continues to be governed by section 
771(4)(B)). Because the statute unintentionally uses inconsistent 
terminology, the regulation makes clear that the terms ``affiliated 
person'' and ``affiliated parties'' have the same meaning. The first 
sentence of the definition merely refers to the definition of 
``affiliated persons'' in section 771(33) of the Act. The second 
sentence elaborates on the meaning of ``control,'' a key term in the 
definition of ``affiliated persons'' under section 771(33). It reflects 
the statements in the SAA, at 838, that one person may be in a position 
to exercise restraint or direction over another person, and thus have 
``control'' over that person, by such means as corporate or family 
groupings, franchises or joint venture agreements, debt financing, or 
close supplier relationships. The definition of affiliation will also 
be applied for purposes of ``collapsing'' firms under section 
351.401(f).
    Several commentators suggested that the Department should specify 
precise thresholds for these indicia of control in order to provide a 
greater degree of predictability in the administration of the 
antidumping law. The Department appreciates the parties' desire for 
greater guidance concerning the definition of ``control.'' However, the 
Department does not believe that it is now in a position to establish 
such thresholds, but instead must develop thresholds, where 
appropriate, as it gains experience in applying the concept of control. 
``Affiliated persons'' is a new statutory term embodying new concepts, 
and the complexity of the relationships potentially covered by this 
term mitigate against the issuance of detailed regulations at this 
time. Moreover, some indicia of the ability to exercise restraint or 
direction over another party's pricing, cost, or production decisions 
may not lend themselves to the use of simple, black-and-white 
thresholds. Therefore, the Department intends to apply this new 
definition on a case-by-case basis, considering all relevant factors, 
including the indicia included in the regulatory definition. Mere 
identification of the presence of one or more of these or other indicia 
of control does not end our task. We will examine these indicia, in 
light of business and economic reality, to determine whether they are, 
in fact, evidence of control. Business and economic reality suggest 
that these relationships must be significant and not easily replaced. 
In addition, temporary market power, created by variations in supply 
and demand conditions, would not suffice.
    In addition, some commentators suggested that the Department should 
define ``control'' as existing only where there is evidence that control previously had been exercised. We have 
not adopted this suggestion because the statute, by its use of the 
phrase ``in a position to exercise restraint or direction,'' defines 
``control'' in terms of the ability to exercise restraint and 
direction. The actual exercise of restraint or direction would 
constitute evidence as to the existence of such ability.
    Finally, some commentators suggested that the Department establish 
in the regulations that if one or more of the factors listed in section 
771(33) is present, the Department should presume that the parties are 
affiliated. Other commentators suggested, conversely, that if certain 
factors are not present, the Department should presume that the parties 
are not affiliated. With regard to the former suggestion, the statute 
provides that if any one of the factors in section 771(33) is present, 
the Department is required to find that persons are affiliated, not 
merely presume that they are affiliated. With regard to the latter 
suggestion, the Department is required to consider evidence of any one 
of the factors. The only factor for which a presumption could be 
developed is the factor of control. However, as explained above, the 
Department is not yet in a position to develop such presumptions in 
these regulations.
    Domestic interested party is a new term intended to serve as a 
convenient, shorthand substitute for the more lengthy phrase used in 
the statute (``an interested party described in paragraph (C), (D), 
(E), (F), or (G) of section 771(9) of the Act'') and its existing 
regulatory counterpart (e.g., ``an interested party, as defined in 
paragraph (k)(3), (k)(4), (k)(5), or (k)(6) of Sec. 353.2''). In 
addition, the definition of ``domestic interested party'' reflects the 
creation of a new category of interested party relating to processed 
agricultural products. Omnibus Trade and Competitiveness Act of 1988, 
Public Law 100-418, section 1326(c).
    The definition of fair value is based on existing section 
353.42(a). The courts have long recognized that the Secretary possesses 
additional methodological flexibility in an antidumping investigation, 
see, e.g., Southwest Fla. Winter Veg. Growers Ass'n v. United States, 
584 F. Supp. 10, 17 (Ct. Int'l Trade 1984), and the definition of fair 
value is intended to reflect this fact.
    With respect to the definition of ordinary course of trade, 
generally, in calculating normal value, the Department must rely on 
sales and transactions that are in the ordinary course of trade. The 
first sentence of the definition refers to section 771(15) of the Act. 
The second sentence draws on the SAA, at 834, to elaborate on this 
definition, and contains examples of the types of sales or transactions 
that might be considered as outside the ordinary course of trade.
    Some commentators urged the Department to refrain from specifying 
criteria to be used in determining whether sales or transactions are 
outside the ordinary course of trade. We agree that it would be 
inappropriate to include in regulations a detailed list of criteria 
that the Department might consider, but we also believe that there 
should be some guidance to the public as to how the Department will 
analyze ``ordinary course of trade'' issues. Accordingly, as noted 
above, we have incorporated the relevant language from the SAA, which 
provides a general description of the standard to be applied.
    One commentator suggested that the Department clarify that the 
addition in the statute of two specific types of transactions deemed to 
be outside the ordinary course of trade does not affect the criteria 
the Department traditionally has used to determine whether other types 
of transactions are outside the ordinary course of trade. The second 
sentence of the regulatory definition addresses this concern.
    Two commentators suggested that the Department identify examples of 
the types of sales that would be considered as being outside the 
ordinary course of trade, including sales at aberrational prices. The 
second sentence of the regulatory definition responds to these 
comments, although we emphasize that the second sentence is not an 
exhaustive list of all of the possible types of sales or transactions 
that might be considered as being outside the ordinary course of trade.
    One commentator requested that the Department clarify that below-
cost sales and affiliated transactions are not always outside the 
ordinary course of trade. Further clarification is not needed, because 
section 771(15) of the Act is clear that not all sales below cost or 
affiliated transactions will be deemed automatically to be outside the 
ordinary course of trade. Instead, only sales or transactions that are 
disregarded under the pertinent statutory and regulatory provisions 
automatically will be deemed to be outside the ordinary course of 
trade. Of course, the fact that such sales or transactions are not 
automatically considered to be outside the ordinary course of trade 
does not mean that they never could be considered to be outside the 
ordinary course of trade. For example, in the case of a below-cost sale 
of an ``off-spec'' product, even if the sale is not disregarded as a 
below-cost sale under section 773(b) of the Act, it might be 
disregarded as not in the ordinary course of trade due to the ``off-
spec'' nature of the product.
    Rates is used in these regulations as a single shorthand expression 
for the various terms used in the Act. In addition, the second sentence 
of the definition clarifies that in an antidumping proceeding involving 
imports from a nonmarket economy (``NME'') country, the Secretary may 
calculate a single dumping margin applicable to all exporters and 
producers. Because the government of an NME country may control export 
activities, the Department currently presumes that a single rate will 
apply, but allows individual exporters or producers to receive their 
own separate rates if they can demonstrate independence from the NME 
government. See, e.g., Silicon Carbide from the People's Republic of 
China, 59 FR 22585 (1994).
    We have decided not to codify the current presumption in favor of a 
single rate or the so-called ``separate rates test,'' which outlines 
the type of information that an exporter or producer must present to 
obtain a separate rate. Because of the changing conditions in those NME 
countries most frequently subject to antidumping proceedings, this test 
(and the assumptions underlying the test) must be allowed to adjust to 
such changes on a case-by-case basis.
    The Department received comments proposing changes to the separate 
rates test, as well as objections to the proposed changes. Because we 
are codifying neither the single rate presumption nor the separate 
rates test, we are not addressing these comments at this time. However, 
we will take the comments into consideration as our policy in this area 
evolves.
    In addition, the Department is considering whether to promulgate 
special rules regarding the rates that should be applied to exporters 
that are not also producers, such as trading companies. In this 
situation, one alternative would be to calculate a separate rate for 
each exporter/producer combination, so that the rate to be applied to 
an exporter would depend upon the producer of the particular 
merchandise in question. However, before proceeding further, the 
Department would like to receive additional public comment on this 
issue.
    Respondent interested party is a counterpart to, and is intended to 
serve the same function as the term ``domestic interested party.'' A 
respondent interested party is an interested party described in 
paragraph (A) or (B) of section 771(9) of the Act.
    The term segment of the proceeding refers to discrete portions of 
the proceeding which are separately reviewable under section 516A of 
the Act. Thus, for example, an investigation and an administrative 
review are separate segments of a proceeding.
    The term third country applies in antidumping proceedings, and is 
intended to be a shorthand expression for the more lengthy statutory 
phrase ``a country other than the exporting country or the United 
States.''
Section 351.103
Section 351.103
    Section 351.103 describes the location and function of Import 
Administration's Central Records Unit, provides that documents must be 
filed with the Central Records Unit, and indicates that the Central 
Records Unit is responsible for maintaining the service list for each 
antidumping and countervailing duty proceeding.
Section 351.104
    Section 351.104 defines what constitutes the official and public 
records of an antidumping or countervailing duty proceeding, and 
prohibits the removal of a record or any portion thereof unless ordered 
by the Secretary or required by law.
    One change warranting discussion is the treatment of material 
returned by the Department to the submitter. The existing regulations 
provide that material which is not timely filed or which is returned to 
the submitter for some other reason shall not be retained in the 
official record. However, because parties have a right to seek judicial 
or binational panel review of a decision to reject a submission, as a 
matter of practice the Department has found it necessary to retain a 
copy of the returned materials in order to be able to document for the 
court or binational panel the reasons for the Department's decision to 
reject the submission. Therefore, paragraph (a)(2) conforms to current 
practice. Under paragraph (a)(2), the Department will include in the 
official record material that has been returned to the submitter for 
reasons other than untimeliness, but the Department will not use such 
material in its determinations. In the case of a submission rejected as 
untimely, it is unnecessary to retain a copy of the submission in the 
official record, because the timeliness/untimeliness of the submission 
can be documented by means other than retention of the submission.
Section 351.105
    Section 351.105 defines the four categories of information 
applicable to antidumping and countervailing duty proceedings: public, 
business proprietary, privileged, and classified. One change from the 
existing regulations is that paragraph (c)(10) provides that the 
position of domestic producers or workers regarding a petition may be 
treated as business proprietary information. The new statute requires 
that the Department make an affirmative determination of domestic 
industry support for a petition before initiating an antidumping or 
countervailing duty investigation. Some domestic producers or workers 
might be reluctant to communicate their positions regarding a petition 
for fear that their positions might become public information, thereby 
potentially subjecting them to commercial retaliation. Accordingly, it 
is essential that domestic producers and workers have the option of 
communicating their positions to the Department on a confidential 
basis.
Section 351.106
    Section 351.106 deals with the de minimis standard, and implements 
section 703(b)(4) and section 733(b)(3) of the Act. The Department has 
long applied a de minimis standard under which it treated net 
countervailable subsidies and weighted-average dumping margins that 
were less than 0.5 percent ad valorem (or the equivalent specific rate) 
as zero. The URAA incorporated the de minimis standards of the AD 
Agreement and the SCM Agreement into the statute, thereby modifying the 
prior Department standard in antidumping and countervailing duty 
investigations.
    Consistent with the statute and the SAA, paragraph (b)(1) provides 
that the de minimis standards set forth in section 703(b)(4) and 
section 733(b)(3) of the Act will apply to the investigatory segment of 
an antidumping or countervailing duty proceeding. Although not restated 
in paragraph (b)(1), these statutory standards are 2 percent ad valorem 
(or the equivalent specific rate) for antidumping duty investigations, 
and normally 1 percent ad valorem (or the equivalent specific rate) for 
countervailing duty investigations. However, the de minimis standard in 
a countervailing duty investigation may be 2 percent if the 
investigated merchandise is from a developing country, or 3 percent if 
the investigated merchandise is from a ``least developed country'' or 
from a country which has phased out its export subsidies prior to the 
deadline established in the SCM Agreement.
    Paragraph (b)(2) provides a transition rule for investigations that 
were initiated under pre-URAA law, suspended, and then later resumed 
due to a cancellation of the suspension agreement. Paragraph (b)(2) 
provides that in making a final determination in this situation, the 
Department will apply the de minimis standard which it would have used 
if the investigation never had been suspended (i.e., the old law 
standard for investigations of 0.5 percent). However, paragraph (b)(2) 
has no effect on the standard which the Department may apply in 
determining that a suspension agreement has been violated or that a 
violation is ``inadvertent or inconsequential'' within the meaning of 
section 351.209.
    The de minimis standards set forth in paragraph (b)(1) will apply 
only in antidumping or countervailing duty investigations. Paragraph 
(c)(1) provides that for all other antidumping or countervailing duty 
determinations, the de minimis standard will be 0.5 percent ad valorem, 
the standard set forth in existing sections 353.6 and 355.7. Several 
commentators suggested that the new de minimis standards set forth in 
paragraph (b)(1) should not be limited to the investigatory segment. 
The Department has not adopted these suggestions, because, as a matter 
of domestic law, the statute and the SAA are very clear that the new 
standards apply only to investigations. Moreover, as a matter of 
international law, neither the AD Agreement nor the SCM Agreement 
require that the new standards be applied outside of the investigatory 
segment.
    In this regard, several commentators suggested that the Department 
should abandon its practice of assessing antidumping duties even when 
the weighted-average dumping margin was de minimis, arguing that (1) 
this practice is in conflict with the statement in the SAA, at 844, 
that ``de minimis margins are regarded as zero margins,'' and (2) a 
failure to apply the de minimis standard to assessment effectively 
would negate that standard. The Department agrees that the language of 
the SAA suggests that the de minimis standard should not be applied 
solely to cash deposits, but to assessment of duties as well. The 0.5 
percent de minimis standard will apply to the assessment of both 
antidumping and countervailing duties, but, in the case of antidumping 
duties, the Department will apply this standard to the ``assessment rate'' calculated under new section 351.212(b)(1). As 
discussed in more detail below, the Department will calculate the 
assessment rate on an importer-by-importer basis. In situations where 
an exporter sells to one importer at dumped prices and to another 
importer at non-dumped prices, the application of the de minimis 
standard to these importer-specific assessment rates will prevent the 
dumped transactions from escaping the assessment of duties. With 
respect to the assessment of countervailing duties, the Department will 
continue to refrain from assessing duties where the countervailable 
subsidy rate (or the all-others or country-wide subsidy rate) is de 
minimis.

Subpart B--Antidumping Duty and Countervailing Duty Procedures

    Subpart B deals with antidumping duty and countervailing duty 
procedures and is based on subpart B of Part 353 and Part 355 of the 
Department's existing regulations.
Section 351.201
    Section 351.201 deals with the self-initiation of investigations by 
the Department, and is based on existing sections 353.11 and 355.11.
Section 351.202
    Section 351.202 deals with the contents of, and filing requirements 
for, antidumping and countervailing duty petitions, and is based on 
existing sections 353.12 and 355.12.
    Paragraph (b) is based on existing sections 353.12(b) and 
355.12(b), and retains the standard that a petition need only contain 
information that is reasonably available to the petitioner. The 
following changes in paragraph (b) merit comment.
    Paragraph (b)(3) is new and reflects the requirement that, before 
initiating an investigation, the Department must make an affirmative 
determination that the domestic industry supports the petition. 
Paragraph (b)(3) does not prescribe a single method by which a 
petitioner may seek to establish industry support, because the type of 
information establishing industry support may vary from industry to 
industry. However, as provided in the SAA, at 861, the petitioner must 
provide the volume and value of its own production of the domestic like 
product, as well as the production of that product by each member of 
the industry, to the extent that such information is reasonably 
available to the petitioner. In addition, the petitioner must provide 
information on the total volume and value of U.S. production of the 
domestic like product, to the extent that such information is 
reasonably available to the petitioner.
    In paragraph (b)(7)(ii)(C)(1), which deals with upstream subsidy 
allegations, the phrase ``Countervailable subsidies, other than an 
export subsidy'' replaces the phrase in existing Sec. 355.12(b)(8)(i), 
``Domestic subsidies described in section 771(5). * * *'' This change 
reflects the URAA amendment to section 771A of the Act, which, in turn, 
was due to the URAA's creation of a third category of subsidies, so-
called ``import substitution subsidies,'' in section 771(5)(C) of the 
Act.
    In paragraph (b)(10), the phrase ``and causation'' has been added. 
Petitioners always have been required to submit information indicating 
that dumped or subsidized imports cause, or threaten to cause, material 
injury to a domestic industry. The addition of this phrase is intended 
simply to document this requirement.
    Paragraph (b)(11), which deals with critical circumstances 
allegations, has been revised from existing Sec. 353.12(b)(12) to 
reflect the statutory amendments regarding the elements necessary for a 
finding of critical circumstances.
    Paragraph (e) deals with amendments to petitions, and is based on 
existing Secs. 353.12(e) and 355.12(e). In the first sentence, ``may'' 
has been substituted for ``will'' in order to more accurately reflect 
the discretion that the statute confers on the Department regarding the 
acceptance of amendments to petitions.
    Paragraph (i) is based on existing Secs. 353.12(i) and 355.12(j), 
but has been revised to reference sections 702(b)(4)(B) and 
733(b)(3)(B) of the Act, which now deal expressly with the issue of 
pre-initiation communications between the Department and outside 
parties. The last sentence of paragraph (i)(1) clarifies that the 
Department will not consider the filing of a notice of appearance in an 
antidumping or countervailing duty proceeding to constitute a 
communication. However, if any communication is appended to a notice of 
appearance on any subject other than industry support, the Department 
will consider the entire document to be prematurely filed. In addition, 
paragraph (i)(2) provides that, in a countervailing duty proceeding, 
the Department will take the initiative and ``invite'' the government 
of the exporting country involved for consultations, instead of taking 
a more passive approach and merely providing an opportunity for 
consultations.
    Several commentators suggested that the Department should solicit 
comments regarding the petition, such as comments concerning the 
accuracy of the information contained in the petition. However, the 
SAA, at 863-64, states that ``the pre-initiation right to comment will 
be limited solely to the issue of industry support for the petition.'' 
Thus, the legislative intent was to prohibit the type of communication 
contemplated by these commentators, and it would contravene this intent 
if the Department were to allow parties to submit such information by 
``requesting'' parties to provide it.
Section 351.203
    Section 351.203 deals with determinations regarding the sufficiency 
of a petition, and implements sections 702(c) and 732(c) of the Act. 
While based on existing Secs. 353.13 and 355.13, Sec. 351.203 contains 
several changes that reflect amendments to the statute.
    Paragraph (b)(1) provides that the Department normally will make 
the determination regarding the sufficiency of a petition within 20 
days of the date on which the petition is filed. In this regard, 
paragraph (b)(1) repeats the language of the statute with respect to 
the determination concerning the ``accuracy and adequacy'' of a 
petition. The Department does not believe that the new statutory 
standard constitutes a significant departure from past Department 
practice.
    Paragraph (b)(1) reflects the new statutory requirement that the 
Department examine sources readily available to it in determining the 
sufficiency of a petition. In the past, it was the Department's 
practice, in reviewing a petition, to note information that lacked 
sufficient support or that appeared aberrational, and to ask the 
petitioner to provide additional information. This practice is 
consistent with the type of review contemplated by the new statute. 
Under paragraph (b)(1), the Department will seek information from 
sources other than the petitioner where: (1) Support for a particular 
allegation is weak, but better information is unavailable to the 
petitioner, particularly where the allegation is central to the 
adequacy of the petition or has a significant impact on the alleged 
rates, or (2) the information, although supported, appears aberrational 
and is central to the adequacy of the petition or has a significant 
impact on the alleged rates. The Department will give the petitioner an 
opportunity to comment on any such information acquired by the 
Department.
    In this regard, the use of information ``readily available'' is 
intended to mean information that does not require extensive research 
by the Department to obtain. An example of such information would be the replacement of a 
significant factor of production value in a nonmarket economy 
antidumping petition with non-proprietary information used in a 
recently completed investigation or review.
    With respect to injury and causation, given the bifurcated 
responsibilities of the Department and the Commission under the Act, 
the Department will continue to work in cooperation with Commission 
staff in evaluating a petition.
    Paragraph (b)(2) deals with situations in which the Department 
extends the period for determining the sufficiency of a petition in 
order to poll or otherwise determine industry support for a petition. 
Under paragraph (b)(2), the Department will extend the period only by 
the amount of time required to gather and analyze information relevant 
to the question of industry support, and in no case will the Department 
exceed the maximum period of 40 days authorized by the statute.
    Paragraph (c)(2) is new and incorporates the requirements of the 
SAA, at 867, regarding the distribution of a public version of a 
petition once the Department has made a determination to initiate an 
investigation. Normally, the Department will provide a public version 
of the petition to all known exporters. However, in accordance with the 
SAA, at 867, where the number of exporters is very large, the 
Department may provide a copy of the petition to a trade association, 
with instructions to provide copies to all exporters. Alternatively, 
the Department may consider this obligation to have been satisfied by 
the delivery of a public version of the petition to the government of 
the exporting country under Sec. 351.202(f). In the latter case, the 
Department will notify the government in question that its obligation 
has been met through such delivery. In addition, to conserve resources, 
the Department is looking into the feasibility of making the petition 
available on computer diskette.
    Paragraph (e) is new and deals with the new statutory requirements 
regarding determinations of industry support for a petition. Paragraph 
(e)(1) deals with the measurement of domestic production, an important 
issue in light of the fact that expressions of support or opposition 
for a petition are weighted according to production. Consistent with 
the SAA, at 862, paragraph (e)(1) provides that the Department may 
measure production on the basis of volume or value. In addition, in 
order to provide a degree of predictability, paragraph (e)(1) also 
provides that the Department normally will measure production over a 
twelve-month period. Because in certain cases some period other than 
twelve months may be more appropriate, the Secretary retains the 
discretion to prescribe the precise period on a case-by-case basis. 
However, normally the Secretary will use the most recent twelve-month 
period for which data are available.
    The second sentence of paragraph (e)(1) provides that where the 
Department is satisfied that actual production data for the relevant 
period is not available, production levels may be established on the 
basis of alternative data that the Department determines to be 
indicative of production levels. For example, for some industries or 
firms, shipment data may correspond directly with production data, and, 
thus, be a reliable alternative. However, because of the vast array of 
industries that appear before it, the Department has not attempted to 
specify data that would be an acceptable surrogate in all cases for 
production data.
    Paragraph (e)(2) provides that the expression of a position 
regarding a petition may be treated as business proprietary information 
under Sec. 351.105(c)(10), discussed above. Several commentators 
expressed concern that, if parties were required to state publicly 
their position regarding a petition, they could face commercial 
retaliation. Therefore, business proprietary treatment may be necessary 
in order to encourage domestic producers and workers to present their 
candid views regarding a petition.
    Paragraph (e)(3) sets forth rules regarding the weight accorded to 
the positions of workers and management regarding a petition. 
Consistent with the SAA, at 862, an opinion expressed by workers will 
be considered to be of equal weight to an opinion expressed by 
management. Thus, for example, if a union expressed support for a 
petition, the Department would consider that support to be equal to the 
production of all of the firms that employ workers belonging to the 
union. On the other hand, if management and workers at a particular 
firm expressed opposite views with respect to a petition, the 
production of that firm would be treated as representing neither 
support for, nor opposition to, the petition.
    Paragraph (e)(4) reflects sections 702(c)(4)(B) and 734(c)(4)(B) of 
the Act and the SAA, at 858-859, which allow the Department to 
disregard, in certain situations, opposition to a petition by certain 
domestic producers. Paragraph (e)(4)(i) clarifies that a ``related'' 
domestic producer includes a domestic producer related to a foreign 
exporter, as well as a domestic producer related to a foreign producer. 
In this regard, the Department believes that the statutory requirement 
that the Department ``shall'' ignore the opposition of related domestic 
producers ``unless such domestic producers demonstrate that their 
interests as domestic producers would be adversely affected'' puts the 
burden of demonstrating such an effect on those producers. Paragraph 
(e)(4)(ii) clarifies that the Department may disregard the views of 
domestic producers who are also importers of the subject merchandise 
and domestic producers who are related to such importers within the 
meaning of section 771(4)(B)(ii) of the Act. In evaluating whether to 
disregard such producers, the Department may consider the import levels 
and percentage of ownership common to other members of the domestic 
industry.
    Paragraph (e)(5) deals with the question of industry support where 
the petition alleges the existence of a regional industry under section 
771(4)(C) of the Act. The SAA, at 863, states that industry support 
shall be assessed ``on the basis of production in the alleged region.'' 
Consistent with this statement, paragraph (e)(5) provides that, for 
purposes of assessing industry support, the applicable region will be 
the region specified in the petition.
    Paragraph (e)(6) deals with situations in which the Department may 
have to poll the industry in order to determine whether the industry 
supports a petition. Paragraph (e)(6) clarifies that in conducting such 
a poll, the Department will include in the poll unions, groups of 
workers, and trade and business associations.
    Paragraph (f) interprets sections 702(c)(1)(C) and 732(c)(1)(C) of 
the Act, which provide for expeditious investigations involving subject 
merchandise that previously was covered by an order that was revoked or 
a suspended investigation that was terminated. Paragraph (f) clarifies 
that these provisions of the Act apply if the revocation or termination 
occurred under a pre-URAA version of the statute.
Section 351.204
    Section 351.204 deals with issues relating to the transactions and 
persons to be examined in an investigation, voluntary respondents and 
exclusions. Paragraph (b) deals with the period of time covered by an 
investigation (``POI''). In a departure from existing Sec. 353.42(b), 
paragraph (b)(1) provides that the POI in an antidumping investigation 
normally will be the four most recently completed fiscal quarters (or, 
in a case involving a nonmarket economy, the two most recently completed fiscal quarters) as of the 
month preceding the month in which a petition is filed or in which the 
Department self-initiated an investigation. The use of fiscal quarters 
is intended to ease reporting requirements and permit more efficient 
verification of submitted information. However, paragraph (b)(1) would 
permit the Department to use an additional or alternative period in 
appropriate circumstances. Paragraph (b)(2) codifies existing practice 
regarding the POI in countervailing duty investigations.
    Paragraph (c) deals with the selection of the exporters and 
producers to be examined. In light of section 777A(c) of the Act, 
paragraph (c) does not retain the 60 and 85 percent thresholds of 
existing Sec. 353.42(b). Additionally, paragraph (c) permits the 
Department to decline to examine a particular exporter or producer 
where all parties agree. Such exporter or producer will be subject to 
the all-others rate, where such a rate is calculated.
    Paragraph (d) deals with the treatment of voluntary respondents 
under section 782(a) of the Act. Through its reference to section 
777A(e)(2)(A) of the Act, paragraph (d)(1) provides that the Department 
will not consider voluntary respondents in investigations conducted on 
an aggregate basis under section 777A(e)(2)(B) of the Act. As discussed 
below, however, in so-called ``aggregate cases,'' the Department will 
consider requests for exclusion under paragraph (e)(3) by individual 
exporters or producers. Paragraph (d)(2) provides that if the 
Department accepts a voluntary response, the voluntary respondent will 
be subject to the same requirements as those firms initially selected 
by the Department for individual examination, including, where 
applicable, the use of the facts available. The purpose of this 
provision is to ensure that the Department is not burdened with 
frivolous voluntary responses from parties that wish to see the 
preliminary all-others rate before deciding whether to withdraw their 
request to be investigated. Finally, paragraph (d)(3) provides for the 
exclusion of voluntary respondents from the calculation of the all-
others rate. The purpose of this provision is to prevent manipulation 
and to maintain the integrity of the all-others rate.
    Paragraph (e) deals with exclusions and constitutes a significant 
change from prior practice, as reflected in Secs. 353.14 and 355.14. 
With the exception of countervailing duty investigations conducted on 
an aggregate basis, paragraph (e)(1) eliminates the various 
certification requirements of the prior regulations and, instead, 
provides that any exporter or producer that is individually examined 
and that receives an individual weighted-average dumping margin or 
countervailable subsidy rate of zero or de minimis will be excluded 
from an order.
    In this regard, the Department is considering whether there should 
be separate exclusion rules for firms, such as trading companies, that 
sell, but do not produce, subject merchandise. For example, one 
alternative would be to limit the exclusion of a non-producing exporter 
to subject merchandise produced by those producers that supplied the 
exporter during the period of investigation. However, before issuing 
final rules, the Department is interested in receiving additional 
public comments regarding this issue.
    Paragraph (e)(2) clarifies that, while no exporter will be excluded 
from an investigation as a result of a preliminary determination, those 
found to have zero or de minimis rates will not be subject to 
provisional measures.
    Paragraph (e)(3) explains that, where a countervailing duty 
investigation is conducted on an aggregate basis under section 
777A(e)(2)(B) of the Act, individual responses will be accepted for 
purposes of establishing exclusion. However, consistent with section 
782(a)(2) of the Act, the number of such responses must not be so large 
that individual examination of such exporters or producers would be 
unduly burdensome and inhibit the timely completion of the 
investigation. Responses submitted in support of a request for 
exclusion must include a certification that the party received zero or 
de minimis net countervailable subsidies and a calculation 
demonstrating the basis for that conclusion. Additionally, because the 
countervailable subsidy rate for a reseller normally is based on the 
producer's rate, an exporter that is not the producer of subject 
merchandise must provide a certification from the suppliers or 
producers of the merchandise that the exporter sold during the period 
of investigation, stating that those persons also received zero or de 
minimis net countervailable subsidies. Finally, an exporter or producer 
seeking exclusion also must submit a certification from the government 
that the government did not provide the firm with net countervailable 
subsidies above de minimis. An exporter or producer requesting 
exclusion may be required to provide more detailed information 
regarding the nature and amount of any countervailable subsidies 
received. If the Department determines that an exporter or producer 
seeking exclusion has received net countervailable subsidies above de 
minimis, that firm will not be excluded from a countervailing duty 
order and will be subject to the country-wide subsidy rate.
Section 351.205
    Section 351.205 deals with preliminary antidumping and 
countervailing duty determinations, and is based on existing sections 
353.15 and 355.15.
Section 351.206
    Section 351.206 deals with critical circumstances findings, and is 
little changed from existing Secs. 353.16 and 355.15. However, the 
reader should note that the statutory prerequisites for a finding of 
critical circumstances have changed. See sections 705(a)(2) and 
735(a)(3) of the Act.
Section 351.207
    Section 351.207 deals with the termination of investigations, 
something that typically occurs through a withdrawal of the petition. 
Section 351.207 is based on existing Secs. 353.17 and 355.17, and the 
principal changes are: (1) the last sentence of paragraph (b)(1) 
contains a cross-reference to the statutory and regulatory provisions 
that deal with the treatment in a subsequent investigation of records 
compiled in an investigation in which the petition is withdrawn; and 
(2) paragraph (c) references the Department's authority, pursuant to 
section 782(h)(1) of the Act, to terminate an investigation due to lack 
of interest. As the SAA, at 864, makes clear, the Department's 
authority to carry out a no-interest termination is unaffected by those 
provisions of the statute prohibiting the post-initiation 
reconsideration of industry support for a petition.
Section 351.208
    Section 351.208 deals with suspension agreements and suspended 
investigations, and is based on existing Secs. 353.18 and 355.18. The 
most significant changes reflected in Sec. 351.208 relate to the new 
statutory provisions regarding suspension agreements in regional 
industry cases (paragraphs (f)(1)(ii), (f)(2)(ii), and (f)(3)). In this 
regard, paragraphs (f)(1)(ii) and (f)(2)(ii) address situations in 
which the Commission finds a regional industry in its final 
determination, but not in its preliminary determination. If the 
Commission finds a regional industry in its preliminary determination, 
the Secretary still could accept a regional industry suspension agreement under section 704(l) and section 734(m) of the Act, but the 
procedures and deadlines in paragraphs (f)(1)(i) and (f)(2)(i) would 
apply. In addition, it should be noted that paragraph (f)(2) lists 
some, but not all, of the procedural steps required by the Act with 
respect to the suspension of an investigation.
    In addition, the deadlines for initialling and signing suspension 
agreements have been advanced. Under current practice, consideration of 
a suspension agreement and briefing and drafting of comments in 
preparation for a final determination occur simultaneously, thereby 
creating an enormous burden on parties and on the Department. The 
proposed rule allows parties to propose a suspension agreement within 
15 days of a preliminary antidumping determination, or within 5 days of 
a preliminary countervailing duty determination. In an antidumping 
investigation, parties may also request an extension of the final 
determination. An extension will not affect the time allotted for 
consideration of a suspension agreement, only the time allotted for 
preparation of the final determination. In a countervailing duty 
investigation, the period for consideration of a suspension agreement 
would be expedited because no extension of the final determination is 
possible, unless the investigation is aligned with a companion 
antidumping investigation or an upstream investigation is initiated. 
While the suspension agreement is under consideration, the briefing and 
hearing schedule would be postponed. The proposed timeline will reduce 
burdens on all parties by eliminating the need to file case briefs, 
rebuttal briefs, and to participate in a hearing, if a suspension 
agreement is accepted.
Section 351.209
    Section 351.209 deals with the violation of suspension agreements. 
Although Sec. 351.209 is largely identical to existing Secs. 353.19 and 
355.19, there are a few changes worth noting. First, in several places, 
the term ``a signatory'' has been substituted for ``exporters.'' This 
change from the plural to the singular is intended to clarify that the 
actions of a single signatory can constitute a violation of a 
suspension agreement.
    Second, paragraph (b)(2) provides that if, as a result of a 
violation, the Department resumes a suspended investigation that had 
not been completed under sections 704(g) or 734(g) of the Act, the 
Department may update previously submitted information, where 
appropriate, for purposes of making a final determination. For example, 
if a considerable amount of time has passed since the POI of the 
original investigation or if there have been significant changes in 
market circumstances, it might be inappropriate to make a final 
determination on the basis of dated information. This issue has arisen 
in prior cases, and paragraph (b)(2) is intended to clarify the 
Department's authority to seek updated information in these types of 
situations.
Section 351.210
    Section 351.210 deals with final determinations in investigations, 
and is little changed from existing Secs. 353.20 and 355.20. One change 
worth noting is that because the URAA eliminated the preference for a 
country-wide rate in countervailing duty investigations, Sec. 351.210 
lacks a provision comparable to existing Sec. 355.20(d).
Section 351.211
    Section 351.211 deals with the issuance of antidumping duty and 
countervailing duty orders, and is based on existing Secs. 353.21 and 
355.21. The most significant new provision is paragraph (c), which 
implements sections 706(c) and 736(d) of the Act regarding the coverage 
of orders issued in investigations where the Commission has identified 
a regional industry. Paragraph (c) establishes procedures by which an 
exporter or producer that did not supply the region during the POI may 
be excepted from the assessment of duties.
Section 351.212
    Section 351.212 is new, and deals with matters related to the 
assessment of antidumping and countervailing duties. Although portions 
of Sec. 351.212 are based on provisions of the Department's current 
regulations, other portions are entirely new.
    Paragraph (b) deals with the assessment of duties as the result of 
a review. Paragraph (b)(1) establishes rules regarding the assessment 
of antidumping duties. By way of background, when the Department 
assumed responsibility for the administration of the antidumping law in 
1980, it inherited from its predecessor, the U.S. Customs Service, the 
practice of issuing assessment instructions in the form of so-called 
``master lists.'' Typically, a master list would list each entry (or 
each shipment). Over time, the Department encountered numerous problems 
in creating master lists. For example, because dumping margins are 
calculated on the basis of sales, the creation of a master list 
requires the ability to link each U.S. sale to a corresponding customs 
entry. Frequently, this is an impractical task for both the Department 
and exporters  

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