Subpart-Price-Undercutting of Domestic Cheese by Quota Cheeses

AUTHORITY: Sec. 702, Pub. L. 96-39, 93 Stat. 144, 19 U.S.C. 1202 note.

SOURCE: 45 FR 9883, Feb. 13, 1980, unless otherwise noted.

§ 6.40 General.

This subpart sets forth the procedures applicable to the determination by the Secretary of Agriculture as to whether the price at which any article of quota cheese is being offered for sale in the United States on a dutypaid wholesale basis is less than the domestic wholesale market price of similar articles produced in the United States (i.e., price-undercutting) in accordance with section 702 of the Trade Agreements Act of 1979 (Pub. L. 96-39, 93 Stat. 144, 19 U.S.C. 1202 note) (hereinafter referred to as the Act).

§ 6.41 Definitions.

(a) “Complainant” means the person who has filed with the Investigating Authority, in accordance with the procedures set forth in this subpart, a written complaint alleging that priceundercutting is occurring.

(b) "Country of origin" means the country, as defined in 19 CFR 134.1(b), in which the quota article subject to this regulation was produced or manufactured.

(c) "Foreign government" means the government of the country of origin or, for purposes of determining whether a subsidy has been provided for the member states of the European Eco

nomic Community, the subsidy granting bodies of the European Economic Community.

(d) "Investigating Authority" means the Director, Dairy, Livestock and Poultry Division, Commodity Programs, Foreign Agricultural Service.

(e) "Quota cheese" means the articles provided for in the following items of the Tariff Schedules of the United States:

117.00 (except Stilton produced in the United Kingdom);

117.05 (except Stilton produced in the United Kingdom);

117.15;

117.20;

117.25;

117.42;

117.44;

117.55;

117.60 (except Gammelost and Nokkelost); 117.75 (except goat's milk cheeses and softripened cow's milk cheeses);

117.81; 117.86;

117.88 (except goat's milk cheeses and softripened cow's milk cheeses);

(f) "Secretary" means the Secretary of Agriculture.

(g) "Subsidy" has the same meaning as such term has in section 771(5) of the Tariff Act of 1930 as added by section 101 of the Trade Agreements Act of 1979 (19 USC 1677(5)).

(h) The "United States" means the Customs Territory of the United States, which is limited to the United States, District of Columbia and Puerto Rico.

§ 6.42 Complaints of price-undercutting.

(a) Submission of complaint. Any person who has reason to believe that the price at which any article of quota cheese is offered for sale or sold in the United States on a duty-paid wholesale price basis is less than the domestic wholesale market price of similar articiles produced in the United States and that a foreign government is providing a subsidy with respect to such article of quota cheese may file with the Investigating Authority a written complaint making such allegation.

(b) Contents of complaint. Such complaint shall contain, or be accompanied by, information to substantiate complainant's allegations, in substantially the following form:

(1) The name and address of the complainant.

(2) The location of the domestic wholesale market in which price-undercutting is alleged to be occurring.

(3) The article of quota cheese involved in the alleged price-undercutting.

(4) The country of origin of such article of quota cheese.

(5) The similar domestic article, the price of which the complainant believes is being undercut.

(6) The month and year that the complainant first concluded that the price-undercutting was taking place.

(7) To extent known to the complainant, all pertinent facts with regard to the alleged subsidy, and, if known, the statutory or other authority under which it is paid, the manner in which it is paid, and the value of such subsidy when received and used by producers or sellers of such quota cheese.

(8) All other information which the complainant believes substantiates the allegation of price-undercutting, including the complainant's estimate of the domestic wholesale market price of the similar article produced in the United States and the duty-paid wholesale price of the quota cheese involved. If available, samples of the domestic and imported cheese products should be submitted.

market" shall be one or more of the three major U.S. market areas, viz., New York City, Chicago, and San Francisco, and/or any other market area within the Customs Territory of the United States, which the Investigating Authority determines most representative of the area specified by the complainant as the one in which priceundercutting is alleged to be occurring (hereinafter referred to as "designated area").

(2) The "duty-paid wholesale price" determined by the Investigating Authority shall be the average of prices at which wholesalers have sold or offered for sale in the designated area the article of quota cheese alleged to be involved in price-undercutting, as obtained in a survey directed by the Investigating Authority during the investigation: Provided, That whenever the designated area is not or does not include one of the major market areas specified in paragraph (a)(1) of this section, the Investigating Authority may adjust the average of prices determined for such designated area on the basis of the average of prices determined for the major market area which is determined to be the most representative of the designated area, taking into consideration any special factors which may be affecting prices in the designated area.

(3) The "domestic wholesale market price" determined by the Investigating Authority for a similar article produced in the United States to that article of quota cheese which is alleged to be involved in price-undercutting shall be the average of prices at which wholesalers have sold the similar article produced in the United States in the designated area, as obtained in a survey directed by the Investigating Authority during the investigation: Provided, That whenever the designated area is not or does not include one of the major market areas specified in paragraph (a)(1) of this section, the Investigating Authority may adjust

the average of prices determined for such designated area on the basis of the average of prices determined for the major market area which is determined to be the most representative of the designated area, taking into consideration any special factors which may be affecting prices in the designated area.

(4) "Similar article produced in the United States" shall be an article of cheese, cheese product, or imitation cheese produced in the United States and marketed in the domestic wholesale market, which is determined by the Investigating Authority, based upon available information to be most like the imported article of quota cheese alleged to be involved in priceundercutting, in terms of its physical properties and end use. In making this determination, first consideration shall be given to the normal end uses of the article produced in the United States in comparison with the end use of the article of quota cheese alleged to be involved in price-undercutting. If the end use of both articles is determined to be the same (e.g., processing or retail sale), the physical characteristics of the two articles shall be considered.

If the common end use of the two articles is processing, the representative samples of the two articles shall be examined in terms of processing quality, taking special note of processing yields. If the common end use of the two articles is retail sale, representative samples of the two articles shall be examined in terms of similarities of taste, texture, general appearance, quality, age, and packaging. Imported imitation quota cheese shall only be compared with imitation domestic cheese. If it is determined that the domestic cheese the price of which is claimed to be undercut is not similar to the quota cheese allegedly undercutting it, there shall be no finding of price-undercutting.

(b) Reporting determinations. Determinations by the Secretary as to the validity of allegations of price-undercutting made under this Subpart shall be published in the FEDERAL REGISTER not later than 5 days after the date the determination is made.

§ 6.44 Delegation of authority.

The powers vested in the Administrator, FAS, insofar as such powers relate to the functions of the Investigating Authority by this regulation are hereby delegated to the Investigating Authority. This final rule has been reviewed under the USDA criteria established to implement Executive Order 12044, "Improving Government Regulations." a determination has been made that this action should not be classified "significant" under those criteria. A Final Impact Statement has been prepared and is available from Carol M. Harvey in Room 6622, South Agriculture Building, 14th and Independence Ave., SW., Washington, D.C. 20250.

Subpart-Section 22 Import Fees

EXEMPTION FROM FEES-SUGAR

AUTHORITY: Sec. 3, Pub. L. 80-897, 62 Stat. 1248, as amended (7 U.S.C. 624); secs. 701, 703, Pub. L. 96-39, 93 Stat. 268, 272 (19 U.S.C. 1202 note); Part 3 of the Appendix to the Tariff Schedules of the United States (19 U.S.C. 1202); sec. 501, Pub. L. 82-137, 65 Stat. 290, as amended (31 U.S.C. 9701).

SOURCE: 43 FR 32737, July 28, 1978, unless otherwise noted.

As used in this subpart:

(a) The term "person" means an individual, partnership, corporation, association, estate, trust, or other business enterprise or legal entity, and, wherever applicable, any unit, instrumentality, or agency of a government, domestic or foreign.

(b) The term "Department" means the U.S. Department of Agriculture.

(c) The term "Secretary" means the Secretary of Agriculture or any officer or employee of the Department to whom the Secretary has delegated the authority or to whom authority may hereafter be delegated to act in his place.

(d) The term "appropriate customs official" means the district or area Director of Customs, his designee, or any other customs officer of similar authority and responsibility, for the customs district in which the port of entry is located.

(e) The term "import license" means a license issued by the Secretary permitting the entry of sugar exempt from the fees provided for in items 956.05, 956.15, and 957.15 of the tariff schedules of the United States, on condition that such sugar will be used solely for the production (other than by distillation) of polyhydric alcohols, except polyhydric alcohols for use as a substitute for sugar in human food consumption.

(f) The term "manufacturer" means a person that is engaged in the production (other than by distillation) of polyhydric alcohols from sugar.

(g) The term "agent" means a licensed customhouse broker.

(h) The term "sugar" means sugars, sirups, and molasses as defined in items 956.05, 956.15, 957.15 of the tariff schedules of the United States.

§ 6.51

Issuance of an import license.

(a) An import license may be issued to a manufacturer which complies with the provisions of this subpart. The license shall state the time period during which the license shall be effective and the maximum amount of sugar which may be imported under the license. In no case shall the effective period of a license exceed 1 year, nor shall the maximum amount of sugar which may be imported under the license exceed the anticipated requirements of the manufacturer for the 12-month period following the effective date of the license. The license may contain such other conditions as the Secretary, in his discretion, deems

necessary.

(b) No more than one effective license may be issued and outstanding at any one time to any one manufacturer. In order to insure a dependable and orderly supply of sugar, a manufacturer may apply for a license prior to the expiraton of a previously issued license. The previously issued license shall be deemed to have expired on its stated expiration date, or on the effective date of the succeeding license, whichever is earlier. A succeeding license may not be issued until the previously issued license has been returned to the Horticultural and Tropical Products Division, Foreign Agricul

tural Service, U.S. Department of Agriculture, Washington, D.C. 20250.

§ 6.52 Transferability of an import license.

An import license may not be transfered or assigned by the manufacturer to any other person. Any attempt to transfer or assign an import license shall be null and void and shall constitute grounds for the revocation of the license by the Secretary.

§ 6.53 Entry of sugar.

(a) A manufacturer or its agent may enter sugar into the United States exempt from the fees contained in items 956.05, 956.15, 957.15 of the tariff schedules of the United States under an import license issued pursuant to this subpart. The import license must be presented to the appropriate customs official at the time of entry. Entry of the sugar exempt from fees shall be allowed only in conformity with the conditions of the import license, if any.

(b) The appropriate Customs official shall enter on the license: (1) The amount of sugar entered; (2) the date of entry; and (3) the customs entry number.

(c) A copy of the license, as marked by the appropriate customs official, shall be transmitted to the Horticultural and Tropical Products Division, Foreign Agricultural Service, U.S. Department of Agriculture, Washington, D.C. 20250, by the person entering the sugar, within 10 business days after each entry of sugar.

§ 6.54 Entry of sugar by an agent.

(a) In those cases where sugar is to be entered by an agent of the manufacturer, the agent shall produce for inspection by the appropriate customs official a written authorization by the manufacturer designating such person to act as the agent of the manufacturer for the purpose of entering sugar.

(b) A copy of such authorization shall be attached to the relevant copy of the import license that is transmitted to the Horticultural and Tropical Products Division pursuant to § 6.53(c).