Commerce to Review Targeted Dumping in AD Cases After Court Remand
The Commerce Department is asking for comments on its withdrawal of regulations on “targeted dumping,” after the Court of International Trade in June 2013 found that withdrawal to be illegal. Commerce had decided to stop applying its “limiting rule” in antidumping proceedings in 2008. But in June 2013, the Court of International Trade found the agency didn’t allow for a notice and comment period, as required, and said the old regulations remain in effect. In response, Commerce is now issuing a proposed rule that would continue not to apply the former targeted dumping rule, and is asking for comments on the issue by Oct. 31.
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Targeted dumping occurs when a foreign company undersells a given product in certain circumstances, but not in others, based on the purchaser, region, or time period. In such circumstances, Commerce can compare the prices of individual transactions in order to ferret out dumping that may not be found using other methods. Until 2008, when Commerce found targeted dumping, it would “normally” limit use of its alternative average-to-transaction (A-T) method for calculating AD duties only to the sales that constituted targeted dumping. But in 2008, Commerce withdrew its “limiting rule,” deciding in some cases to use the alternative method for all sales when it found targeted dumping.
When Commerce didn’t abide by its limiting rule during a later AD case on a Chinese paper product, respondent Asia Pulp & Paper filed suit at CIT, arguing the 2008 withdrawal of the old regulations was illegal under the Administrative Procedure Act. Commerce was required to ask for public comment, but never really did so, APP China said. In June 2013, CIT agreed that Commerce never explicitly asked for comment on the limiting rule. And no exceptions to the notice-and-comment requirement applied to the withdrawal. Because it violated the APA, CIT found that “the repeal of the regulation was invalid, and the limiting rule is still in force” (see 13061826).
While refusing to concede that its 2008 withdrawal of the targeted dumping regulations was illegal, it appears Commerce will at least hear public input in response to CIT’s ruling. Commerce’s proposed rule, which is set for publication in the Oct. 1 Federal Register, would “continue to not apply the withdrawn provisions governing targeted dumping in antidumping investigations,” effective for proceedings initiated 30 days after eventual publication of a final rule. The agency also asked for comments on the original withdrawal of the regulations, continued non-application of the limiting rule, and any alternative approaches.
(Federal Register 10/01/13)