PART 351--ANTIDUMPING AND COUNTERVAILING DUTIES
Subpart A--Scope and Definitions
Sec.
351.101 Scope.
351.102 Definitions.
351.103 Central Records Unit.
351.104 Record of proceedings.
351.105 Public, business proprietary, privileged, and classified
information.
351.106 De minimis net countervailable subsidies and weighted-
average dumping margins disregarded.
351.107 Deposit rates for nonproducing exporters; rates in
antidumping proceedings involving a nonmarket economy country.
Subpart B--Antidumping and Countervailing Duty Procedures 351.201 Self-
initiation.
351.202 Petition requirements.
351.203 Determination of sufficiency of petition.
351.204 Transactions and persons examined; voluntary respondents;
exclusions.
351.205 Preliminary determination.
351.206 Critical circumstances.
351.207 Termination of investigation.
351.208 Suspension of investigation.
351.209 Violation of suspension agreement.
351.210 Final determination.
351.211 Antidumping order and countervailing duty order.
351.212 Assessment of antidumping and countervailing duties;
provisional measures deposit cap; interest on certain overpayments
and underpayments
351.213 Administrative review of orders and suspension agreements
under section 751(a)(1) of the Act.
351.214 New shipper reviews under section 751(a)(2)(B) of the Act.
351.215 Expedited antidumping review and security in lieu of
estimated duty under section 736(c) of the Act.
351.216 Changed circumstances review under section 751(b) of the
Act.
351.217 Reviews to implement results of subsidies enforcement
proceeding under section 751(g) of the Act.
351.218 Sunset reviews under section 751(c) of the Act.
351.219 Reviews of countervailing duty orders in connection with an
investigation under section 753 of the Act.
351.220 Countervailing duty review at the direction of the
President under section 762 of the Act.
351.221 Review procedures.
351.222 Revocation of orders; termination of suspended
investigations.
351.223 Procedures for initiation of downstream product monitoring.
351.224 Disclosure of calculations and procedures for the
correction of ministerial errors.
351.225 Scope rulings.
Subpart C--Information and Argument
351.301 Time limits for submission of factual information.
351.302 Extension of time limits; return of untimely filed or
unsolicited material.
351.303 Filing, format, translation, service, and certification of
documents.
351.304 Establishing business proprietary treatment of information
[Reserved].
351.305 Access to business proprietary information [Reserved].
351.306 Use of business proprietary information [Reserved].
351.307 Verification of information.
351.308 Determinations on the basis of the facts available.
351.309 Written argument.
351.310 Hearings.
351.311 Countervailable subsidy practice discovered during
investigation or review.
351.312 Industrial users and consumer organizations.
Subpart D--Calculation of Export Price, Constructed Export Price, Fair
Value, and Normal Value
351.401 In general.
351.402 Calculation of export price and constructed export price;
reimbursement of antidumping and countervailing duties.
351.403 Sales used in calculating normal value; transactions
between affiliated parties.
351.404 Selection of the market to be used as the basis for normal
value.
351.405 Calculation of normal value based on constructed value.
351.406 Calculation of normal value if sales are made at less than
the cost of production.
351.407 Calculation of constructed value and cost of production.
351.408 Calculation of normal value of merchandise from nonmarket
economy countries.
351.409 Differences in quantities.
351.410 Differences in circumstances of sale.
351.411 Differences in physical characteristics.
351.412 Levels of trade; adjustment for difference in level of
trade; constructed export price offset.
351.413 Disregarding insignificant adjustments.
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351.414 Comparison of normal value with export price (constructed
export price).
351.415 Conversion of currency.
Subpart E--[Reserved]
Subpart F--Subsidy Determinations Regarding Cheese Subject to an In-
Quota Rate of Duty
351.601 Annual list and quarterly update of subsidies.
351.602 Determination upon request.
351.603 Complaint of price-undercutting by subsidized imports.
351.604 Access to information.
Subpart G--Applicability Dates
351.701 Applicability dates.
Annex I--Deadlines for Parties in Countervailing Investigations
Annex II--Deadlines for Parties in Countervailing Administrative
Reviews
Annex III--Deadlines for Parties in Antidumping Investigations
Annex IV--Deadlines for Parties in Antidumping Administrative
Reviews
Annex V--Comparison of Prior and New Regulations
Annex VI--Countervailing Investigations Timeline
Annex VII--Antidumping Investigations Timeline
Authority: 5 U.S.C. 301; 19 U.S.C. 1202 note; 19 U.S.C. 1303
note; 19 U.S.C. 1671 et seq.; and 19 U.S.C. 3538.
PART 351--ANTIDUMPING AND COUNTERVAILING DUTIES
Subpart A--Scope and Definitions
Sec. 351.101 Scope.
(a) In general. This part contains procedures and rules applicable
to antidumping and countervailing duty proceedings under title VII of
the Act (19 U.S.C. 1671 et seq.), and also determinations regarding
cheese subject to an in-quota rate of duty under section 702 of the
Trade Agreements Act of 1979 (19 U.S.C. 1202 note). This part reflects
statutory amendments made by titles I, II, and IV of the Uruguay Round
Agreements Act, Pub. L. 103-465, which, in turn, implement into United
States law the provisions of the following agreements annexed to the
Agreement Establishing the World Trade Organization: Agreement on
Implementation of Article VI of the General Agreement on Tariffs and
Trade 1994; Agreement on Subsidies and Countervailing Measures; and
Agreement on Agriculture.
(b) Countervailing duty investigations involving imports not
entitled to a material injury determination. Under section 701(c) of
the Act, certain provisions of the Act do not apply to countervailing
duty proceedings involving imports from a country that is not a
Subsidies Agreement country and is not entitled to a material injury
determination by the Commission. Accordingly, certain provisions of
this part referring to the Commission may not apply to such
proceedings.
(c) Application to governmental importations. To the extent
authorized by section 771(20) of the Act, merchandise imported by, or
for the use of, a department or agency of the United States Government
is subject to the imposition of countervailing duties or antidumping
duties under this part.
Sec. 351.102 Definitions.
(a) Introduction. The Act contains many technical terms applicable
to antidumping and countervailing duty proceedings. In the case of
terms that are not defined in this section or other sections of this
part, readers should refer to the relevant provisions of the Act. This
section:
(1) Defines terms that appear in the Act but are not defined in the Act;
(2) Defines terms that appear in this Part but do not appear in the Act;
and
(3) Elaborates on the meaning of certain terms that are defined in the Act.
(b) Definitions.
Act. ``Act'' means the Tariff Act of 1930, as amended.
Administrative review. ``Administrative review'' means a review
under section 751(a)(1) of the Act.
Affiliated persons; affiliated parties. ``Affiliated persons'' and
``affiliated parties'' have the same meaning as in section 771(33) of
the Act. In determining whether control over another person exists,
within the meaning of section 771(33) of the Act, the Secretary will
consider the following factors, among others: corporate or family
groupings; franchise or joint venture agreements; debt financing; and
close supplier relationships. The Secretary will not find that control
exists on the basis of these factors unless the relationship has the
potential to impact decisions concerning the production, pricing, or
cost of the subject merchandise or foreign like product. The Secretary
will consider the temporal aspect of a relationship in determining
whether control exists; normally, temporary circumstances will not
suffice as evidence of control.
Aggregate basis. ``Aggregate basis'' means the calculation of a
country-wide subsidy rate based principally on information provided by
the foreign government.
Anniversary month. ``Anniversary month'' means the calendar month
in which the anniversary of the date of publication of an order or
suspension of investigation occurs.
APO. ``APO'' means an administrative protective order described in
section 777(c)(1) of the Act.
Applicant. ``Applicant'' means a representative of an interested
party that has applied for access to business proprietary information
under an administrative protective order.
Article 4/Article 7 Review. ``Article 4/Article 7 review'' means a
review under section 751(g)(2) of the Act.
Article 8 violation review. ``Article 8 violation review'' means a
review under section 751(g)(1) of the Act.
Authorized applicant. ``Authorized applicant'' means an applicant
that the Secretary has authorized to receive business proprietary
information under an APO under section 777(c)(1) of the Act.
Changed circumstances review. ``Changed circumstances review''
means a review under section 751(b) of the Act.
Customs Service. ``Customs Service'' means the United States
Customs Service of the United States Department of the Treasury.
Department. ``Department'' means the United States Department of
Commerce.
Domestic interested party. ``Domestic interested party'' means an
interested party described in subparagraph (C), (D), (E), (F), or (G)
of section 771(9) of the Act.
Expedited antidumping review. ``Expedited antidumping review''
means a review under section 736(c) of the Act.
Factual information. ``Factual information'' means:
(1) Initial and supplemental questionnaire responses;
(2) Data or statements of fact in support of allegations;
(3) Other data or statements of facts; and
(4) Documentary evidence.
Fair value. ``Fair value'' is a term used during an antidumping
investigation, and is an estimate of normal value.
Importer. ``Importer'' means the person by whom, or for whose
account, subject merchandise is imported.
Investigation. Under the Act and this Part, there is a distinction
between an antidumping or countervailing duty investigation and a
proceeding. An ``investigation'' is that segment of a proceeding that
begins on the date of publication of notice of initiation of
investigation and ends on the date of publication of the earliest of:
(1) Notice of termination of investigation,
(2) Notice of rescission of investigation,
(3) Notice of a negative determination that has the effect of
terminating the proceeding, or
(4) An order.
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New shipper review. ``New shipper review'' means a review under
section 751(a)(2) of the Act.
Order. An ``order'' is an order issued by the Secretary under
section 303, section 706, or section 736 of the Act or a finding under
the Antidumping Act, 1921.
Ordinary course of trade. ``Ordinary course of trade'' has the same
meaning as in section 771(15) of the Act. The Secretary may consider
sales or transactions to be outside the ordinary course of trade if the
Secretary determines, based on an evaluation of all of the
circumstances particular to the sales in question, that such sales or
transactions have characteristics that are extraordinary for the market
in question. Examples of sales that the Secretary might consider as
being outside the ordinary course of trade are sales or transactions
involving off-quality merchandise or merchandise produced according to
unusual product specifications, merchandise sold at aberrational prices
or with abnormally high profits, merchandise sold pursuant to unusual
terms of sale, or merchandise sold to an affiliated party at a non-
arm's length price.
Party to the proceeding. ``Party to the proceeding'' means any
interested party that actively participates, through written
submissions of factual information or written argument, in a segment of
a proceeding. Participation in a prior segment of a proceeding will not
confer on any interested party ``party to the proceeding'' status in a
subsequent segment.
Person. ``Person'' includes any interested party as well as any
other individual, enterprise, or entity, as appropriate.
Price adjustment. ``Price adjustment'' means any change in the
price charged for subject merchandise or the foreign like product, such
as discounts, rebates and post-sale price adjustments, that are
reflected in the purchaser's net outlay.
Proceeding. A ``proceeding'' begins on the date of the filing of a
petition under section 702(b) or section 732(b) of the Act or the
publication of a notice of initiation in a self-initiated investigation
under section 702(a) or section 732(a) of the Act, and ends on the date
of publication of the earliest notice of:
(1) Dismissal of petition,
(2) Rescission of initiation,
(3) Termination of investigation,
(4) A negative determination that has the effect of terminating the
proceeding,
(5) Revocation of an order, or
(6) Termination of a suspended investigation.
Rates. ``Rates'' means the individual weighted-average dumping
margins, the individual countervailable subsidy rates, the country-wide
subsidy rate, or the all-others rate, as applicable.
Respondent interested party. ``Respondent interested party'' means
an interested party described in subparagraph (A) or (B) of section
771(9) of the Act.
Sale. A ``sale'' includes a contract to sell and a lease that is
equivalent to a sale.
Secretary. ``Secretary'' means the Secretary of Commerce or a
designee. The Secretary has delegated to the Assistant Secretary for
Import Administration the authority to make determinations under title
VII of the Act and this Part.
Section 753 review. ``Section 753 review'' means a review under
section 753 of the Act.
Section 762 review. ``Section 762 review'' means a review under
section 762 of the Act.
Segment of proceeding.
(1) In general. An antidumping or countervailing duty proceeding
consists of one or more segments. ``Segment of a proceeding'' or
``segment of the proceeding'' refers to a portion of the proceeding
that is reviewable under section 516A of the Act.
(2) Examples. An antidumping or countervailing duty investigation
or a review of an order or suspended investigation, or a scope inquiry
under Sec. 351.225, each would constitute a segment of a proceeding.
Sunset review. ``Sunset review'' means a review under section
751(c) of the Act.
Suspension of liquidation. ``Suspension of liquidation'' refers to
a suspension of liquidation ordered by the Secretary under the
authority of title VII of the Act, the provisions of this Part, or
section 516a(g)(5)(C) of the Act, or by a court of the United States in
a lawsuit involving action taken, or not taken, by the Secretary under
title VII of the Act or the provisions of this Part.
Third country. For purposes of subpart D, ``third country'' means a
country other than the exporting country and the United States. Under
section 773(a) of the Act and subpart D, in certain circumstances the
Secretary may determine normal value on the basis of sales to a third
country.
URAA. ``URAA'' means the Uruguay Round Agreements Act.
Sec. 351.103 Central Records Unit.
(a) In general. Import Administration's Central Records Unit is
located at Room B-099, U.S. Department of Commerce, Pennsylvania Avenue
and 14th Street, NW., Washington, D.C. 20230. The office hours of the
Central Records Unit are between 8:30 A.M. and 5:00 P.M. on business
days. Among other things, the Central Records Unit is responsible for
maintaining an official and public record for each antidumping and
countervailing duty proceeding (see Sec. 351.104), the Subsidies
Library (see section 775(2) and section 777(a)(1) of the Act), and the
service list for each proceeding (see paragraph (c) of this section).
(b) Filing of documents with the Department. While persons are free
to provide Department officials with courtesy copies of documents, no
document will be considered as having been received by the Secretary
unless it is submitted to the Central Records Unit and is stamped by
the Central Records Unit with the date and time of receipt.
(c) Service list. The Central Records Unit will maintain and make
available a service list for each segment of a proceeding. Each
interested party that asks to be included on the service list for a
segment of a proceeding must designate a person to receive service of
documents filed in that segment. The service list for an application
for a scope ruling is described in Sec. 351.225(n).
Sec. 351.104 Record of proceedings.
(a) Official record. (1) In general. The Secretary will maintain in
the Central Records Unit an official record of each antidumping and
countervailing duty proceeding. The Secretary will include in the
official record all factual information, written argument, or other
material developed by, presented to, or obtained by the Secretary
during the course of a proceeding that pertains to the proceeding. The
official record will include government memoranda pertaining to the
proceeding, memoranda of ex parte meetings, determinations, notices
published in the Federal Register, and transcripts of hearings. The
official record will contain material that is public, business
proprietary, privileged, and classified. For purposes of section
516A(b)(2) of the Act, the record is the official record of each
segment of the proceeding.
(2) Material returned. (i) The Secretary, in making any
determination under this part, will not use factual information,
written argument, or other material that the Secretary returns to the
submitter.
(ii) The official record will include a copy of a returned
document, solely for purposes of establishing and documenting the basis
for returning the document to the submitter, if the document was
returned because:
(A) The document, although otherwise timely, contains untimely
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filed new factual information (see Sec. 351.301(b));
(B) The submitter made a nonconforming request for business
proprietary treatment of factual information (see Sec. 351.304);
(C) The Secretary denied a request for business proprietary
treatment of factual information (see Sec. 351.304);
(D) The submitter is unwilling to permit the disclosure of business
proprietary information under APO (see Sec. 351.304).
(iii) In no case will the official record include any document that
the Secretary returns to the submitter as untimely filed, or any
unsolicited questionnaire response unless the response is a voluntary
response accepted under Sec. 351.204(d) (see Sec. 351.302(d)).
(b) Public record. The Secretary will maintain in the Central
Records Unit a public record of each proceeding. The record will
consist of all material contained in the official record (see paragraph
(a) of this section) that the Secretary decides is public information
under Sec. 351.105(b), government memoranda or portions of memoranda
that the Secretary decides may be disclosed to the general public, and
public versions of all determinations, notices, and transcripts. The
public record will be available to the public for inspection and
copying in the Central Records Unit (see Sec. 351.103). The Secretary
will charge an appropriate fee for providing copies of documents.
(c) Protection of records. Unless ordered by the Secretary or
required by law, no record or portion of a record will be removed from
the Department.
Sec. 351.105 Public, business proprietary, privileged, and classified
information.
(a) Introduction. There are four categories of information in an
antidumping or countervailing duty proceeding: public, business
proprietary, privileged, and classified. In general, public information
is information that may be made available to the public, whereas
business proprietary information may be disclosed (if at all) only to
authorized applicants under an APO. Privileged and classified
information may not be disclosed at all, even under an APO. This
section describes the four categories of information.
(b) Public information. The Secretary normally will consider the
following to be public information:
(1) Factual information of a type that has been published or
otherwise made available to the public by the person submitting it;
(2) Factual information that is not designated as business
proprietary by the person submitting it;
(3) Factual information that, although designated as business
proprietary by the person submitting it, is in a form that cannot be
associated with or otherwise used to identify activities of a
particular person or that the Secretary determines is not properly
designated as business proprietary;
(4) Publicly available laws, regulations, decrees, orders, and
other official documents of a country, including English translations;
and
(5) Written argument relating to the proceeding that is not
designated as business proprietary.
(c) Business proprietary information. The Secretary normally will
consider the following factual information to be business proprietary
information, if so designated by the submitter:
(1) Business or trade secrets concerning the nature of a product or
production process;
(2) Production costs (but not the identity of the production
components unless a particular component is a trade secret);
(3) Distribution costs (but not channels of distribution);
(4) Terms of sale (but not terms of sale offered to the public);
(5) Prices of individual sales, likely sales, or other offers (but
not components of prices, such as transportation, if based on published
schedules, dates of sale, product descriptions (other than business or
trade secrets described in paragraph (c)(1) of this section), or order
numbers);
(6) Names of particular customers, distributors, or suppliers (but
not destination of sale or designation of type of customer,
distributor, or supplier, unless the destination or designation would
reveal the name);
(7) In an antidumping proceeding, the exact amount of the dumping
margin on individual sales;
(8) In a countervailing duty proceeding, the exact amount of the
benefit applied for or received by a person from each of the programs
under investigation or review (but not descriptions of the operations
of the programs, or the amount if included in official public
statements or documents or publications, or the ad valorem
countervailable subsidy rate calculated for each person under a
program);
(9) The names of particular persons from whom business proprietary
information was obtained;
(10) The position of a domestic producer or workers regarding a
petition; and
(11) Any other specific business information the release of which
to the public would cause substantial harm to the competitive position
of the submitter.
(d) Privileged information. The Secretary will consider information
privileged if, based on principles of law concerning privileged
information, the Secretary decides that the information should not be
released to the public or to parties to the proceeding. Privileged
information is exempt from disclosure to the public or to
representatives of interested parties.
(e) Classified information. Classified information is information
that is classified under Executive Order No. 12356 of April 2, 1982 (47
FR 14874 and 15557, 3 CFR 1982 Comp. p. 166) or successor executive
order, if applicable. Classified information is exempt from disclosure
to the public or to representatives of interested parties.
Sec. 351.106 De minimis net countervailable subsidies and weighted-
average dumping margins disregarded.
(a) Introduction. Prior to the enactment of the URAA, the
Department had a well-established and judicially sanctioned practice of
disregarding net countervailable subsidies or weighted-average dumping
margins that were de minimis. The URAA codified in the Act the
particular de minimis standards to be used in antidumping and
countervailing duty investigations. This section discussed the
application of the de minimis standards in antidumping or
countervailing duty proceedings.
(b) Investigations. (1) In general. In making a preliminary or
final antidumping or countervailing duty determination in an
investigation (see sections 703(b), 733(b), 705(a), and 735(a) of the
Act), the Secretary will apply the de minimis standard set forth in
section 703(b)(4) or section 733(b)(3) of the Act (whichever is
applicable).
(2) Transition rule. (i) If:
(A) the Secretary resumes an investigation that has been suspended
(see section 704(i)(1)(B) or section 734(i)(1)(B) of the Act); and
(B) the investigation was initiated before January 1, 1995, then
(ii) The Secretary will apply the de minimis standard in effect at
the time that the investigation was initiated.
(c) Reviews and other determinations. (1) In general. In making any
determination other than a preliminary or final antidumping or
countervailing duty determination in an investigation (see paragraph
(b) of this section), the Secretary will treat as de minimis any
weighted-average dumping margin or countervailable subsidy rate that is
less
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than 0.5 percent ad valorem, or the equivalent specific rate.
(2) Assessment of antidumping duties. The Secretary will instruct
the Customs Service to liquidate without regard to antidumping duties
all entries of subject merchandise during the relevant period of review
made by any person for which the Secretary calculates an assessment
rate under Sec. 351.212(b)(1) that is less than 0.5 percent ad valorem,
or the equivalent specific rate.
Sec. 351.107 Cash deposit rates for nonproducing exporters; rates in
antidumping proceedings involving a nonmarket economy country.
(a) Introduction. This section deals with the establishment of cash
deposit rates in situations where the exporter is not the producer of
subject merchandise, the selection of the appropriate cash deposit rate
in situations where entry documents do not indicate the producer of
subject merchandise, and the calculation of dumping margins in
antidumping proceedings involving imports from a nonmarket economy
country.
(b) Cash deposit rates for nonproducing exporters. (1) Use of
combination rates. (i) In general. In the case of subject merchandise
that is exported to the United States by a company that is not the
producer of the merchandise, the Secretary may establish a
``combination'' cash deposit rate for each combination of the exporter
and its supplying producer(s).
(ii) Example. A nonproducing exporter (Exporter A) exports to the
United States subject merchandise produced by Producers X, Y, and Z. In
such a situation, the Secretary may establish cash deposit rates for
Exporter A/Producer X, Exporter A/Producer Y, and Exporter A/Producer
Z.
(2) New supplier. In the case of subject merchandise that is
exported to the United States by a company that is not the producer of
the merchandise, if the Secretary has not established previously a
combination cash deposit rate under paragraph (b)(1)(i) of this section
for the exporter and producer in question or a noncombination rate for
the exporter in question, the Secretary will apply the cash deposit
rate established for the producer. If the Secretary has not previously
established a cash deposit rate for the producer, the Secretary will
apply the ``all-others rate'' described in section 705(c)(5) or section
735(c)(5) of the Act, as the case may be.
(c) Producer not identified. (1) In general. In situations where
entry documents do not identify the producer of subject merchandise, if
the Secretary has not established previously a noncombination rate for
the exporter, the Secretary may instruct the Customs Service to apply
as the cash deposit rate the higher of:
(i) the highest of any combination cash deposit rate established
for the exporter under paragraph (b)(1)(i) of this section;
(ii) the highest cash deposit rate established for any producer
other than a producer for which the Secretary established a combination
rate involving the exporter in question under paragraph (b)(1)(i) of
this section; or
(iii) the ``all-others rate'' described in section 705(c)(5) or
section 735(c)(5) of the Act, as the case may be.
(d) Rates in antidumping proceedings involving nonmarket economy
countries. In an antidumping proceeding involving imports from a
nonmarket economy country, ``rates'' may consist of a single dumping
margin applicable to all exporters and producers.
Subpart B--Antidumping and Countervailing Duty Procedures
Sec. 351.201 Self-initiation.
(a) Introduction. Antidumping and countervailing duty
investigations may be initiated as the result of a petition filed by a
domestic interested party or at the Secretary's own initiative. This
section contains rules regarding the actions the Secretary will take
when the Secretary self-initiates an investigation.
(b) In general. When the Secretary self-initiates an investigation
under section 702(a) or section 732(a) of the Act, the Secretary will
publish in the Federal Register notice of ``Initiation of Antidumping
(Countervailing Duty) Investigation.'' In addition, the Secretary will
notify the Commission at the time of initiation of the investigation,
and will make available to employees of the Commission directly
involved in the proceeding the information upon which the Secretary
based the initiation and which the Commission may consider relevant to
its injury determination.
(c) Persistent dumping monitoring. To the extent practicable, the
Secretary will expedite any antidumping investigation initiated as the
result of a monitoring program established under section 732(a)(2) of
the Act.
Sec. 351.202 Petition requirements.
(a) Introduction. The Secretary normally initiates antidumping and
countervailing duty investigations based on petitions filed by a
domestic interested party. This section contains rules concerning the
contents of a petition, filing requirements, notification of foreign
governments, pre-initiation communications with the Secretary, and
assistance to small businesses in preparing petitions. Petitioners are
also advised to refer to the Commission's regulations concerning the
contents of petitions, currently 19 CFR 207.11.
(b) Contents of petition. A petition requesting the imposition of
antidumping or countervailing duties must contain the following, to the
extent reasonably available to the petitioner:
(1) The name, address, and telephone number of the petitioner and
any person the petitioner represents;
(2) The identity of the industry on behalf of which the petitioner
is filing, including the names, addresses, and telephone numbers of all
other known persons in the industry;
(3) Information relating to the degree of industry support for the
petition, including:
(i) The total volume and value of U.S. production of the domestic
like product; and
(ii) The volume and value of the domestic like product produced by
the petitioner and each domestic producer identified;
(4) A statement indicating whether the petitioner has filed for
relief from imports of the subject merchandise under section 337 of the
Act (19 U.S.C. 1337, 1671a), sections 201 or 301 of the Trade Act of
1974 (19 U.S.C. 2251 or 2411), or section 232 of the Trade Expansion
Act of 1962 (19 U.S.C. 1862);
(5) A detailed description of the subject merchandise that defines
the requested scope of the investigation, including the technical
characteristics and uses of the merchandise and its current U.S. tariff
classification number;
(6) The name of the country in which the subject merchandise is
manufactured or produced and, if the merchandise is imported from a
country other than the country of manufacture or production, the name
of any intermediate country from which the merchandise is imported;
(7) (i) In the case of an antidumping proceeding:
(A) The names and addresses of each person the petitioner believes
sells the subject merchandise at less than fair value and the
proportion of total exports to the United States that each person
accounted for during the most recent 12-month period (if numerous,
provide information at least for persons that, based on publicly
available information, individually accounted for two percent or more
of the exports);
(B) All factual information (particularly documentary evidence)
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relevant to the calculation of the export price and the constructed
export price of the subject merchandise and the normal value of the
foreign like product (if unable to furnish information on foreign sales
or costs, provide information on production costs in the United States,
adjusted to reflect production costs in the country of production of
the subject merchandise);
(C) If the merchandise is from a country that the Secretary has
found to be a nonmarket economy country, factual information relevant
to the calculation of normal value, using a method described in
Sec. 351.408; or
(ii) In the case of a countervailing duty proceeding:
(A) The names and addresses of each person the petitioner believes
benefits from a countervailable subsidy and exports the subject
merchandise to the United States and the proportion of total exports to
the United States that each person accounted for during the most recent
12-month period (if numerous, provide information at least for persons
that, based on publicly available information, individually accounted
for two percent or more of the exports);
(B) The alleged countervailable subsidy and factual information
(particularly documentary evidence) relevant to the alleged
countervailable subsidy, including any law, regulation, or decree under
which it is provided, the manner in which it is paid, and the value of
the subsidy to exporters or producers of the subject merchandise;
(C) If the petitioner alleges an upstream subsidy under section
771A of the Act, factual information regarding:
(1) Countervailable subsidies, other than an export subsidy, that
an authority of the affected country provides to the upstream supplier;
(2) The competitive benefit the countervailable subsidies bestow on
the subject merchandise; and
(3) The significant effect the countervailable subsidies have on
the cost of producing the subject merchandise;
(8) The volume and value of the subject merchandise imported during
the most recent two-year period and any other recent period that the
petitioner believes to be more representative or, if the subject
merchandise was not imported during the two-year period, information as
to the likelihood of its sale for importation;
(9) The name, address, and telephone number of each person the
petitioner believes imports or, if there were no importations, is
likely to import the subject merchandise;
(10) Factual information regarding material injury, threat of
material injury, or material retardation, and causation;
(11) If the petitioner alleges ``critical circumstances'' under
section 703(e)(1) or section 733(e)(1) of the Act and Sec. 351.206,
factual information regarding:
(i) Whether imports of the subject merchandise are likely to
undermine seriously the remedial effect of any order issued under
section 706(a) or section 736(a) of the Act;
(ii) Massive imports of the subject merchandise in a relatively
short period; and
(iii) (A) In an antidumping proceeding, either:
(1) A history of dumping; or
(2) The importer's knowledge that the exporter was selling the
subject merchandise at less than its fair value, and that there would
be material injury by reason of such sales; or
(B) In a countervailing duty proceeding, whether the
countervailable subsidy is inconsistent with the Subsidies Agreement;
and
(12) Any other factual information on which the petitioner relies.
(c) Simultaneous filing and certification. The petitioner must file
a copy of the petition with the Commission and the Secretary on the
same day and so certify in submitting the petition to the Secretary.
Factual information in the petition must be certified, as provided in
Sec. 351.303(g). Other filing requirements are set forth in
Sec. 351.303.
(d) Business proprietary status of information. The Secretary will
treat as business proprietary any factual information for which the
petitioner requests business proprietary treatment and which meets the
requirements of Sec. 351.304.
(e) Amendment of petition. The Secretary may allow timely amendment
of the petition. The petitioner must file an amendment with the
Commission and the Secretary on the same day and so certify in
submitting the amendment to the Secretary. If the amendment consists of
new allegations, the timeliness of the new allegations will be governed
by Sec. 351.301.
(f) Notification of representative of the exporting country. Upon
receipt of a petition, the Secretary will deliver a public version of
the petition (see Sec. 351.304(c)) to a representative in Washington,
DC, of the government of any exporting country named in the petition.
(g) Petition based upon derogation of an international undertaking
on official export credits. In the case of a petition described in
section 702(b)(3) of the Act, the petitioner must file a copy of the
petition with the Secretary of the Treasury, as well as with the
Secretary and the Commission, and must so certify in submitting the
petition to the Secretary.
(h) Assistance to small businesses; additional information. (1) The
Secretary will provide technical assistance to eligible small
businesses, as defined in section 339 of the Act, to enable them to
prepare and file petitions. The Secretary may deny assistance if the
Secretary concludes that the petition, if filed, could not satisfy the
requirements of section 702(c)(1)(A) or section 732(c)(1)(A) of the Act
(whichever is applicable) (see Sec. 351.203).
(2) For additional information concerning petitions, contact the
Director for Policy and Analysis, Import Administration, International
Trade Administration, Room 3093, U.S. Department of Commerce,
Pennsylvania Avenue and 14th Street, NW, Washington, DC 20230; (202)
482-1768.
(i) Pre-initiation communications. (1) In general. During the
period before the Secretary's decision whether to initiate an
investigation, the Secretary will not consider the filing of a notice
of appearance to constitute a communication for purposes of section
702(b)(4)(B) or section 732(b)(3)(B) of the Act.
(2) Consultations with foreign governments in countervailing duty
proceedings. In a countervailing duty proceeding, the Secretary will
invite the government of any exporting country named in the petition
for consultations with respect to the petition. (The information
collection requirements in paragraph (a) of this section have been
approved by the Office of Management and Budget under control number
0625-0105.)
Sec. 351.203 Determination of sufficiency of petition.
(a) Introduction. When a petition is filed under Sec. 351.202, the
Secretary must determine that the petition satisfies the relevant
statutory requirements before initiating an antidumping or
countervailing duty investigation. This section sets forth rules
regarding a determination as to the sufficiency of a petition
(including the determination that a petition is supported by the
domestic industry), the deadline for making the determination, and the
actions to be taken once the Secretary has made the determination.
(b) Determination of sufficiency. (1) In general. Normally, not
later than 20 days after a petition is filed, the Secretary, on the
basis of sources readily
---- page 27385 ----
available to the Secretary, will examine the accuracy and adequacy of
the evidence provided in the petition and determine whether to initiate
an investigation under section 702(c)(1)(A) or section 732(c)(1)(A) of
the Act (whichever is applicable).
(2) Extension where polling required. If the Secretary is required
to poll or otherwise determine support for the petition under section
702(c)(4)(D) or section 732(c)(4)(D) of the Act, the Secretary may, in
exceptional circumstances, extend the 20-day period by the amount of
time necessary to collect and analyze the required information. In no
case will the period between the filing of a petition and the
determination whether to initiate an investigation exceed 40 days.
(c) Notice of initiation and distribution of petition. (1) Notice
of initiation. If the initiation determination of the Secretary under
section 702(c)(1)(A) or section 732(c)(1)(A) of the Act is affirmative,
the Secretary will initiate an investigation and publish in the Federal
Register notice of ``Initiation of Antidumping (Countervailing Duty)
Investigation.'' The Secretary will notify the Commission at the time
of initiation of the investigation and will make available to employees
of the Commission directly involved in the proceeding the information
upon which the Secretary based the initiation and which the Commission
may consider relevant to its injury determinations.
(2) Distribution of petition. As soon as practicable after
initiation of an investigation, the Secretary will provide a public
version of the petition to all known exporters (including producers who
sell for export to the United States) of the subject merchandise. If
the Secretary determines that there is a particularly large number of
exporters involved, instead of providing the public version to all
known exporters, the Secretary may provide the public version to a
trade association of the exporters or, alternatively, may consider the
requirement of the preceding sentence 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).
(d) Insufficiency of petition. If an initiation determination of
the Secretary under section 702(c)(1)(A) or section 732(c)(1)(A) of the
Act is negative, the Secretary will dismiss the petition, terminate the
proceeding, notify the petitioner in writing of the reasons for the
determination, and publish in the Federal Register notice of
``Dismissal of Antidumping (Countervailing Duty) Petition.''
(e) Determination of industry support. In determining industry
support for a petition under section 702(c)(4) or section 732(c)(4) of
the Act, the following rules will apply:
(1) Measuring production. The Secretary normally will measure
production over a twelve-month period specified by the Secretary, and
may measure production based on either value or volume. Where a party
to the proceeding establishes that production data for the relevant
period, as specified by the Secretary, is unavailable, production
levels may be established by reference to alternative data that the
Secretary determines to be indicative of production levels.
(2) Positions treated as business proprietary information. Upon
request, the Secretary may treat the position of a domestic producer or
workers regarding the petition and any production information supplied
by the producer or workers as business proprietary information under
Sec. 351.105(c)(10).
(3) Positions expressed by workers. The Secretary will consider the
positions of workers and management regarding the petition to be of
equal weight. The Secretary will assign a single weight to the
positions of both workers and management according to the production of
the domestic like product of the firm in which the workers and
management are employed. If the management of a firm expresses a
position in direct opposition to the position of the workers in that
firm, the Secretary will treat the production of that firm as
representing neither support for, nor opposition to, the petition.
(4) Certain positions disregarded. (i) The Secretary will disregard
the position of a domestic producer that opposes the petition if such
producer is related to a foreign producer or to a foreign exporter
under section 771(4)(B)(ii) of the Act, unless such domestic producer
demonstrates to the Secretary's satisfaction that its interests as a
domestic producer would be adversely affected by the imposition of an
antidumping order or a countervailing duty order, as the case may be;
and
(ii) The Secretary may disregard the position of a domestic
producer that is an importer of the subject merchandise, or that is
related to such an importer, under section 771(4)(B)(ii) of the Act.
(5) Polling the industry. In conducting a poll of the industry
under section 702(c)(4)(D)(i) or section 732(c)(4)(D)(i) of the Act,
the Secretary will include unions, groups of workers, and trade or
business associations described in paragraphs (9)(D) and (9)(E) of
section 771 of the Act.
(f) Time limits where petition involves same merchandise as that
covered by an order that has been revoked. Under section 702(c)(1)(C)
or section 732(c)(1)(C) of the Act, and in expediting an investigation
involving subject merchandise for which a prior order was revoked or a
suspended investigation was terminated, the Secretary will consider
``section 751(d)'' as including a predecessor provision.
Sec. 351.204 Time periods and persons examined; voluntary respondents;
exclusions.
(a) Introduction. Because the Act does not specify the precise
period of time that the Secretary should examine in an antidumping or
countervailing duty investigation, this section sets forth rules
regarding the period of investigation (``POI''). In addition, this
section includes rules regarding the selection of persons to be
examined, the treatment of voluntary respondents that are not selected
for individual examination, and the exclusion of persons that the
Secretary ultimately finds are not dumping or are not receiving
countervailable subsidies.
(b) Period of investigation. (1) Antidumping investigation. In an
antidumping investigation, the Secretary normally will examine
merchandise sold during the four most recently completed fiscal
quarters (or, in an investigation involving merchandise imported from a
nonmarket economy country, the two most recently completed fiscal
quarters) as of the month preceding the month in which the petition was
filed or in which the Secretary self-initiated an investigation.
However, the Secretary may examine merchandise sold during any
additional or alternate period that the Secretary concludes is
appropriate.
(2) Countervailing duty investigation. In a countervailing duty
investigation, the Secretary normally will rely on information
pertaining to the most recently completed fiscal year for the
government and exporters or producers in question. If the exporters or
producers have different fiscal years, the Secretary normally will rely
on information pertaining to the most recently completed calendar year.
If the investigation is conducted on an aggregate basis under section
777A(e)(2)(B) of the Act, the Secretary normally will rely on
information pertaining to the most recently completed fiscal year for
the government in question. However, the Secretary may rely on
information for
---- page 27386 ----
any additional or alternate period that the Secretary concludes is
appropriate.
(c) Exporters and producers examined. (1) In general. In an
investigation, the Secretary will attempt to determine an individual
weighted-average dumping margin or individual countervailable subsidy
rate for each known exporter or producer of the subject merchandise.
However, the Secretary may decline to examine a particular exporter or
producer if that exporter or producer and the petitioner agree.
(2) Limited investigation. Notwithstanding paragraph (c)(1) of this
section, the Secretary may limit the investigation by using a method
described in subsection (a), (c), or (e) of section 777A of the Act.
(d) Voluntary respondents. (1) In general. If the Secretary limits
the number of exporters or producers to be individually examined under
section 777A(c)(2) or section 777A(e)(2)(A) of the Act, the Secretary
will examine voluntary respondents (exporters or producers, other than
those initially selected for individual examination) in accordance with
section 782(a) of the Act.
(2) Acceptance of voluntary respondents. The Secretary will
determine, as soon as practicable, whether to examine a voluntary
respondent individually. A voluntary respondent accepted for individual
examination under subparagraph (d)(1) of this section will be subject
to the same requirements as an exporter or producer initially selected
by the Secretary for individual examination under section 777A(c)(2) or
section 777A(e)(2)(A) of the Act, including the requirements of section
782(a) of the Act and, where applicable, the use of the facts available
under section 776 of the Act and Sec. 351.308.
(3) Exclusion of voluntary respondents' rates from all-others rate.
In calculating an all-others rate under section 705(c)(5) or section
735(c)(5) of the Act, the Secretary will exclude weighted-average
dumping margins or countervailable subsidy rates calculated for
voluntary respondents.
(e) Exclusions. (1) In general. The Secretary will exclude from an
affirmative final determination under section 705(a) or section 735(a)
of the Act or an order under section 706(a) or section 736(a) of the
Act, any exporter or producer for which the Secretary determines an
individual weighted-average dumping margin or individual net
countervailable subsidy rate of zero or de minimis.
(2) Preliminary determinations. In an affirmative preliminary
determination under section 703(b) or section 733(b) of the Act, an
exporter or producer for which the Secretary preliminarily determines
an individual weighted-average dumping margin or individual net
countervailable subsidy of zero or de minimis will not be excluded from
the preliminary determination or the investigation. However, the
exporter or producer will not be subject to provisional measures under
section 703(d) or section 733(d) of the Act.
(3) Exclusion of nonproducing exporter. (i) In general. In the case
of an exporter that is not the producer of subject merchandise, the
Secretary normally will limit an exclusion of the exporter to subject
merchandise of those producers that supplied the exporter during the
period of investigation.
(ii) Example. During the period of investigation, Exporter A
exports to the United States subject merchandise produced by Producer
X. Based on an examination of Exporter A, the Secretary determines that
the dumping margins with respect to these exports are de minimis, and
the Secretary excludes Exporter A. Normally, the exclusion of Exporter
A would be limited to subject merchandise produced by Producer X. If
Exporter A began to export subject merchandise produced by Producer Y,
this merchandise would be subject to the antidumping duty order, if
any.
(4) Countervailing duty investigations conducted on an aggregate
basis and requests for exclusion from countervailing duty order. Where
the Secretary conducts a countervailing duty investigation on an
aggregate basis under section 777A(e)(2)(B) of the Act, the Secretary
will consider and investigate requests for exclusion to the extent
practicable. An exporter or producer that desires exclusion from an
order must submit:
(i) A certification by the exporter or producer that it received
zero or de minimis net countervailable subsidies during the period of
investigation;
(ii) If the exporter or producer received a countervailable
subsidy, calculations demonstrating that the amount of net
countervailable subsidies received was de minimis during the period of
investigation;
(iii) If the exporter is not the producer of the subject
merchandise, certifications from the suppliers and producers of the
subject merchandise that those persons received zero or de minimis net
countervailable subsidies during the period of the investigation; and
(iv) A certification from the government of the affected country
that the government did not provide the exporter (or the exporter's
supplier) or producer with more than de minimis net countervailable
subsidies during the period of investigation.
Sec. 351.205 Preliminary determination.
(a) Introduction. A preliminary determination in an antidumping or
countervailing duty investigation constitutes the first point at which
the Secretary may provide a remedy if the Secretary preliminarily finds
that dumping or countervailable subsidization has occurred. The remedy
(sometimes referred to as ``provisional measures'') usually takes the
form of a bonding requirement to ensure payment if antidumping or
countervailing duties ultimately are imposed. Whether the Secretary's
preliminary determination is affirmative or negative, the investigation
continues. This section contains rules regarding deadlines for
preliminary determinations, postponement of preliminary determinations,
notices of preliminary determinations, and the effects of affirmative
preliminary determinations.
(b) Deadline for preliminary determination. The deadline for a
preliminary determination under section 703(b) or section 733(b) of the
Act will be:
(1) Normally not later than 140 days in an antidumping
investigation (65 days in a countervailing duty investigation) after
the date on which the Secretary initiated the investigation (see
section 703(b)(1) or section 733(b)(1)(A) of the Act);
(2) Not later than 190 days in an antidumping investigation (130
days in a countervailing duty investigation) after the date on which
the Secretary initiated the investigation if the Secretary postpones
the preliminary determination at petitioner's request or because the
Secretary determines that the investigation is extraordinarily
complicated (see section 703(c)(1) or section 733(c)(1) of the Act);
(3) In a countervailing duty investigation, not later than 250 days
after the date on which the proceeding began if the Secretary postpones
the preliminary determination due to an upstream subsidy allegation (up
to 310 days if the Secretary also postponed the preliminary
determination at the request of the petitioner or because the Secretary
determined that the investigation is extraordinarily complicated) (see
section 703(c)(1) and section 703(g)(1) of the Act);
(4) Within 90 days after initiation in an antidumping
investigation, and on an expedited basis in a countervailing duty
investigation, where verification has
---- page 27387 ----
been waived (see section 703(b)(3) or section 733(b)(2) of the Act);
(5) In a countervailing duty investigation, on an expedited basis
and within 65 days after the date on which the Secretary initiated the
investigation if the sole subsidy alleged in the petition was the
derogation of an international undertaking on official export credits
(see section 702(b)(3) and section 703(b)(2) of the Act);
(6) In a countervailing duty investigation, not later than 60 days
after the date on which the Secretary initiated the investigation if
the only subsidy under investigation is a subsidy with respect to which
the Secretary received notice from the United States Trade
Representative of a violation of Article 8 of the Subsidies Agreement
(see section 703(b)(5) of the Act); and
(7) In an antidumping investigation, within the deadlines set forth
in section 733(b)(1)(B) of the Act if the investigation involves short
life cycle merchandise (see section 733(b)(1)(B) and section 739 of the
Act).
(c) Contents of preliminary determination and publication of
notice. A preliminary determination will include a preliminary finding
on critical circumstances, if appropriate, under section 703(e)(1) or
section 733(e)(1) of the Act (whichever is applicable). The Secretary
will publish in the Federal Register notice of ``Affirmative (Negative)
Preliminary Antidumping (Countervailing Duty) Determination,''
including the rates, if any, and an invitation for argument consistent
with Sec. 351.309.
(d) Effect of affirmative preliminary determination. If the
preliminary determination is affirmative, the Secretary will take the
actions described in section 703(d) or section 733(d) of the Act
(whichever is applicable). In making information available to the
Commission under section 703(d)(3) or section 733(d)(3) of the Act, the
Secretary will make available to the Commission and to employees of the
Commission directly involved in the proceeding the information upon
which the Secretary based the preliminary determination and which the
Commission may consider relevant to its injury determination.
(e) Postponement at the request of the petitioner. A petitioner
must submit a request for postponement of the preliminary determination
(see section 703(c)(1)(A) or section 733(c)(1)(A) of the Act) 25 days
or more before the scheduled date of the preliminary determination, and
must state the reasons for the request. The Secretary will grant the
request, unless the Secretary finds compelling reasons to deny the
request.
(f) Notice of postponement. (1) If the Secretary decides to
postpone the preliminary determination at the request of the petitioner
or because the investigation is extraordinarily complicated, the
Secretary will notify all parties to the proceeding not later than 20
days before the scheduled date of the preliminary determination, and
will publish in the Federal Register notice of ``Postponement of
Preliminary Antidumping (Countervailing Duty) Determination,'' stating
the reasons for the postponement (see section 703(c)(2) or section
733(c)(2) of the Act).
(2) If the Secretary decides to postpone the preliminary
determination due to an allegation of upstream subsidies, the Secretary
will notify all parties to the proceeding not later than the scheduled
date of the preliminary determination and will publish in the Federal
Register notice of ``Postponement of Preliminary Countervailing Duty
Determination,'' stating the reasons for the postponement.
Sec. 351.206 Critical circumstances.
(a) Introduction. Generally, antidumping or countervailing duties
are imposed on entries of merchandise made on or after the date on
which the Secretary first imposes provisional measures (most often the
date on which notice of an affirmative preliminary determination is
published in the Federal Register). However, if the Secretary finds
that ``critical circumstances'' exist, duties may be imposed
retroactively on merchandise entered up to 90 days before the
imposition of provisional measures. This section contains procedural
and substantive rules regarding allegations and findings of critical
circumstances.
(b) In general. If a petitioner submits to the Secretary a written
allegation of critical circumstances, with reasonably available factual
information supporting the allegation, 21 days or more before the
scheduled date of the Secretary's final determination, or on the
Secretary's own initiative in a self-initiated investigation, the
Secretary will make a finding whether critical circumstances exist, as
defined in section 705(a)(2) or section 735(a)(3) of the Act (whichever
is applicable).
(c) Preliminary finding. (1) If the petitioner submits an
allegation of critical circumstances 30 days or more before the
scheduled date of the Secretary's final determination, the Secretary,
based on the available information, will make a preliminary finding
whether there is a reasonable basis to believe or suspect that critical
circumstances exist, as defined in section 703(e)(1) or section
733(e)(1) of the Act (whichever is applicable).
(2) The Secretary will issue the preliminary finding:
(i) Not later than the preliminary determination, if the allegation
is submitted 20 days or more before the scheduled date of the
preliminary determination; or
(ii) Within 30 days after the petitioner submits the allegation, if
the allegation is submitted later than 20 days before the scheduled
date of the preliminary determination. The Secretary will notify the
Commission and publish in the Federal Register notice of the
preliminary finding.
(d) Suspension of liquidation. If the Secretary makes an
affirmative preliminary finding of critical circumstances, the
provisions of section 703(e)(2) or section 733(e)(2) of the Act
(whichever is applicable) regarding the retroactive suspension of
liquidation will apply.
(e) Final finding. For any allegation of critical circumstances
submitted 21 days or more before the scheduled date of the Secretary's
final determination, the Secretary will make a final finding on
critical circumstances, and will take appropriate action under section
705(c)(4) or section 735(c)(4) of the Act (whichever is applicable).
(f) Findings in self-initiated investigations. In a self-initiated
investigation, the Secretary will make preliminary and final findings
on critical circumstances without regard to the time limits in
paragraphs (c) and (e) of this section.
(g) Information regarding critical circumstances. The Secretary may
request the Commissioner of Customs to compile information on an
expedited basis regarding entries of the subject merchandise if, at any
time after the initiation of an investigation, the Secretary makes the
findings described in section 702(e) or section 732(e) of the Act
(whichever is applicable) regarding the possible existence of critical
circumstances.
(h) Massive imports. (1) In determining whether imports of the
subject merchandise have been massive under section 705(a)(2)(B) or
section 735(a)(3)(B) of the Act, the Secretary normally will examine:
(i) The volume and value of the imports;
(ii) Seasonal trends; and
(iii) The share of domestic consumption accounted for by the
imports.
(2) In general, unless the imports during the ``relatively short
period'' (see
---- page 27388 ----
paragraph (i) of this section) have increased by at least 15 percent
over the imports during an immediately preceding period of comparable
duration, the Secretary will not consider the imports massive.
(i) Relatively short period. Under section 705(a)(2)(B) or section
735(a)(3)(B) of the Act, the Secretary normally will consider a
``relatively short period'' as the period beginning on the date the
proceeding begins and ending at least three months later. However, if
the Secretary finds that importers, or exporters or producers, had
reason to believe, at some time prior to the beginning of the
proceeding, that a proceeding was likely, then the Secretary may
consider a period of not less than three months from that earlier time.
Sec. 351.207 Termination of investigation.
(a) Introduction. ``Termination'' is a term of art that refers to
the end of an antidumping or countervailing duty proceeding in which an
order has not yet been issued. The Act establishes a variety of
mechanisms by which an investigation may be terminated, most of which
are dealt with in this section. For rules regarding the termination of
a suspended investigation following a review under section 751 of the
Act, see Sec. 351.222.
(b) Withdrawal of petition; self-initiated investigations. (1) In
general. The Secretary may terminate an investigation under section
704(a)(1)(A) or section 734(a)(1)(A) (withdrawal of petition) or under
section 704(k) or section 734(k) (self-initiated investigation) of the
Act, provided that the Secretary concludes that termination is in the
public interest. If the Secretary terminates an investigation, the
Secretary will publish in the Federal Register notice of ``Termination
of Antidumping (Countervailing Duty) Investigation,'' together with,
when appropriate, a copy of any correspondence with the petitioner
forming the basis of the withdrawal and the termination. (For the
treatment in a subsequent investigation of records compiled in an
investigation in which the petition was withdrawn, see section
704(a)(1)(B) or section 734(a)(1)(B) of the Act.)
(2) Withdrawal of petition based on acceptance of quantitative
restriction agreements. In addition to the requirements of paragraph
(b)(1) of this section, if a termination is based on the acceptance of
an understanding or other kind of agreement to limit the volume of
imports into the United States of the subject merchandise, the
Secretary will apply the provisions of section 704(a)(2) or section
734(a)(2) of the Act (whichever is applicable) regarding public
interest and consultations with consuming industries and producers and
workers.
(c) Lack of interest. The Secretary may terminate an investigation
based upon lack of interest (see section 782(h)(1) of the Act). Where
the Secretary terminates an investigation under this paragraph, the
Secretary will publish the notice described in paragraph (b)(1) of this
section.
(d) Negative determination. An investigation terminates
automatically upon publication in the Federal Register of the
Secretary's negative final determination or the Commission's negative
preliminary or final determination.
(e) End of suspension of liquidation. When an investigation
terminates, if the Secretary previously ordered suspension of
liquidation, the Secretary will order the suspension ended on the date
of publication of the notice of termination referred to in paragraph
(b) of this section or on the date of publication of a negative
determination referred to in paragraph (d) of this section, and will
instruct the Customs Service to release any cash deposit or bond.
Sec. 351.208 Suspension of investigation.
(a) Introduction. In addition to the imposition of duties, the Act
also permits the Secretary to suspend an antidumping or countervailing
duty investigation by accepting a suspension agreement (referred to in
the WTO Agreements as an ``undertaking''). Briefly, in a suspension
agreement, the exporters and producers or the foreign government agree
to modify their behavior so as to eliminate dumping or subsidization or
the injury caused thereby. If the Secretary accepts a suspension
agreement, the Secretary will ``suspend'' the investigation and
thereafter will monitor compliance with the agreement. This section
contains rules for entering into suspension agreements and procedures
for suspending an investigation.
(b) In general. The Secretary may suspend an investigation under
section 704 or section 734 of the Act and this section.
(c) Definition of ``substantially all.'' Under section 704 and
section 734 of the Act, exporters that account for ``substantially
all'' of the merchandise means exporters and producers that have
accounted for not less than 85 percent by value or volume of the
subject merchandise during the period for which the Secretary is
measuring dumping or countervailable subsidization in the investigation
or such other period that the Secretary considers representative.
(d) Monitoring. In monitoring a suspension agreement under section
704(c), section 734(c), or section 734(l) of the Act (agreements to
eliminate injurious effects or to restrict the volume of imports), the
Secretary will not be obliged to ascertain on a continuing basis the
prices in the United States of the subject merchandise or of domestic
like products.
(e) Exports not to increase during interim period. The Secretary
will not accept a suspension agreement under section 704(b)(2) or
section 734(b)(1) of the Act (the cessation of exports) unless the
agreement ensures that the quantity of the subject merchandise exported
during the interim period set forth in the agreement does not exceed
the quantity of the merchandise exported during a period of comparable
duration that the Secretary considers representative.
(f) Procedure for suspension of investigation. (1) Submission of
proposed suspension agreement. (i) In general. As appropriate, the
exporters and producers or, in an antidumping investigation involving a
nonmarket economy country or a countervailing duty investigation, the
government, must submit to the Secretary a proposed suspension
agreement within:
(A) In an antidumping investigation, 15 days after the date of
issuance of the preliminary determination, or
(B) In a countervailing duty investigation, 7 days after the date
of issuance of the preliminary determination.
(ii) Postponement of final determination. Where a proposed
suspension agreement is submitted in an antidumping investigation, an
exporter or producer or, in an investigation involving a nonmarket
economy country, the government, may request postponement of the final
determination under section 735(a)(2) of the Act (see Sec. 351.210(e)).
Where the final determination in a countervailing duty investigation is
postponed under section 703(g)(2) or section 705(a)(1) of the Act (see
Sec. 351.210(b)(3) and Sec. 351.210(i)), the time limits in paragraphs
(f)(1)(i), (f)(2)(i), (f)(3), and (g)(1) of this section applicable to
countervailing duty investigations will be extended to coincide with
the time limits in such paragraphs applicable to antidumping
investigations.
(iii) Special rule for regional industry determination. If the
Commission makes a regional industry determination in its final
affirmative determination under
---- page 27389 ----
section 705(b) or section 735(b) of the Act but not in its preliminary
affirmative determination under section 703(a) or section 733(a) of the
Act, the exporters and producers or, in an antidumping investigation
involving a nonmarket economy country or a countervailing duty
investigation, the government, must submit to the Secretary any
proposed suspension agreement within 15 days of the publication in the
Federal Register of the antidumping or countervailing duty order.
(2) Notification and consultation. In fulfilling the requirements
of section 704 or section 734 of the Act (whichever is applicable), the
Secretary will take the following actions:
(i) In general. The Secretary will notify all parties to the
proceeding of the proposed suspension of an investigation and provide
to the petitioner a copy of the suspension agreement preliminarily
accepted by the Secretary (the agreement must contain the procedures
for monitoring compliance and a statement of the compatibility of the
agreement with the requirements of section 704 or section 734 of the
Act) within:
(A) In an antidumping investigation, 30 days after the date of
issuance of the preliminary determination, or
(B) In a countervailing duty investigation, 15 days after the date
of issuance of the preliminary determination; or
(ii) Special rule for regional industry determination. If the
Commission makes a regional industry determination in its final
affirmative determination under section 705(b) or section 735(b) of the
Act but not in its preliminary affirmative determination under section
703(a) or section 733(a) of the Act, the Secretary, within 15 days of
the submission of a proposed suspension agreement under paragraph
(f)(1)(iii) of this section, will notify all parties to the proceeding
of the proposed suspension agreement and provide to the petitioner a
copy of the agreement preliminarily accepted by the Secretary (such
agreement must contain the procedures for monitoring compliance and a
statement of the compatibility of the agreement with the requirements
of section 704 or section 734 of the Act); and
(iii) Consultation. The Secretary will consult with the petitioner
concerning the proposed suspension of the investigation.
(3) Opportunity for comment. The Secretary will provide all
interested parties, an industrial user of the subject merchandise or a
representative consumer organization, as described in section 777(h) of
the Act, and United States government agencies an opportunity to submit
written argument and factual information concerning the proposed
suspension of the investigation within:
(i) In an antidumping investigation, 50 days after the date of
issuance of the preliminary determination,
(ii) In a countervailing duty investigation, 35 days after the date
of issuance of the preliminary determination, or
(iii) In a regional industry case described in paragraph
(f)(1)(iii) of this section, 35 days after the date of issuance of an
order.
(g) Acceptance of suspension agreement. (1) The Secretary may
accept an agreement to suspend an investigation within:
(i) In an antidumping investigation, 60 days after the date of
issuance of the preliminary determination,
(ii) In a countervailing duty investigation, 45 days after the date
of issuance of the preliminary determination, or
(iii) In a regional industry case described in paragraph
(f)(1)(iii) of this section, 45 days after the date of issuance of an
order.
(2) If the Secretary accepts an agreement to suspend an
investigation, the Secretary will take the actions described in section
704(f), section 704(m)(3), section 734(f), or section 734(l)(3) of the
Act (whichever is applicable), and will publish in the Federal Register
notice of ``Suspension of Antidumping (Countervailing Duty)
Investigation,'' including the text of the agreement. If the Secretary
has not already published notice of an affirmative preliminary
determination, the Secretary will include that notice. In accepting an
agreement, the Secretary may rely on factual or legal conclusions the
Secretary reached in or after the affirmative preliminary
determination.
(h) Continuation of investigation. (1) A request to the Secretary
under section 704(g) or section 734(g) of the Act for the continuation
of the investigation must be made in writing. In addition, the request
must be simultaneously filed with the Commission, and the requester
must so certify in submitting the request to the Secretary.
(2) If the Secretary and the Commission make affirmative final
determinations in an investigation that has been continued, the
suspension agreement will remain in effect in accordance with the
factual and legal conclusions in the Secretary's final determination.
If either the Secretary or the Commission makes a negative final
determination, the agreement will have no force or effect.
(i) Merchandise imported in excess of allowed quantity. (1) The
Secretary may instruct the Customs Service not to accept entries, or
withdrawals from warehouse, for consumption of subject merchandise in
excess of any quantity allowed by a suspension agreement under section
704 or section 734 of the Act, including any quantity allowed during
the interim period (see paragraph (e) of this section).
(2) Imports in excess of the quantity allowed by a suspension
agreement, including any quantity allowed during the interim period
(see paragraph (e) of this section), may be exported or destroyed under
Customs Service supervision, except that if the agreement is under
section 704(c)(3) or section 734(l) of the Act (restrictions on the
volume of imports), the excess merchandise, with the approval of the
Secretary, may be held for future opening under the agreement by
placing it in a foreign trade zone or by entering it for warehouse.
Sec. 351.209 Violation of suspension agreement.
(a) Introduction. A suspension agreement remains in effect until
the underlying investigation is terminated (see Secs. 351.207 and
351.222). However, if the Secretary finds that a suspension agreement
has been violated or no longer meets the requirements of the Act, the
Secretary may either cancel or revise the agreement. This section
contains rules regarding cancellation and revision of suspension
agreements.
(b) Immediate determination. If the Secretary determines that a
signatory has violated a suspension agreement, the Secretary, without
providing interested parties an opportunity to comment, will:
(1) Order the suspension of liquidation in accordance with section
704(i)(1)(A) or section 734(i)(1)(A) of the Act (whichever is
applicable) of all entries of the subject merchandise entered, or
withdrawn from warehouse, for consumption on or after the later of:
(i) 90 days before the date of publication of the notice of
cancellation of the agreement; or
(ii) The date of first entry, or withdrawal from warehouse, for
consumption of the merchandise the sale or export of which was in
violation of the agreement;
(2) If the investigation was not completed under section 704(g) or
section 734(g) of the Act, resume the investigation as if the Secretary
had made an affirmative preliminary determination on the date of
publication
---- page 27390 ----
of the notice of cancellation and impose provisional measures by
instructing the Customs Service to require for each entry of the
subject merchandise suspended under paragraph (b)(1) of this section a
cash deposit or bond at the rates determined in the affirmative
preliminary determination;
(3) If the investigation was completed under section 704(g) or
section 734(g) of the Act, issue an antidumping order or countervailing
duty order (whichever is applicable) and, for all entries subject to
suspension of liquidation under paragraph (b)(1) of this section,
instruct the Customs Service to require for each entry of the
merchandise suspended under this paragraph a cash deposit at the rates
determined in the affirmative final determination;
(4) Notify all persons who are or were parties to the proceeding,
the Commission, and, if the Secretary determines that the violation was
intentional, the Commissioner of Customs; and
(5) Publish in the Federal Register notice of ``Antidumping
(Countervailing Duty) Order (Resumption of Antidumping (Countervailing
Duty) Investigation); Cancellation of Suspension Agreement.''
(c) Determination after notice and comment. (1) If the Secretary
has reason to believe that a signatory has violated a suspension
agreement, or that an agreement no longer meets the requirements of
section 704(d)(1) or section 734(d) of the Act, but the Secretary does
not have sufficient information to determine that a signatory has
violated the agreement (see paragraph (b) of this section), the
Secretary will publish in the Federal Register notice of ``Invitation
for Comment on Antidumping (Countervailing Duty) Suspension
Agreement.''
(2) After publication of the notice inviting comment and after
consideration of comments received the Secretary will:
(i) Determine whether any signatory has violated the suspension
agreement; or
(ii) Determine whether the suspension agreement no longer meets the
requirements of section 704(d)(1) or section 734(d) of the Act.
(3) If the Secretary determines that a signatory has violated the
suspension agreement, the Secretary will take appropriate action as
described in paragraphs (b)(1) through (b)(5) of this section.
(4) If the Secretary determines that a suspension agreement no
longer meets the requirements of section 704(d)(1) or section 734(d) of
the Act, the Secretary will:
(i) Take appropriate action as described in paragraphs (b)(1)
through (b)(5) of this section; except that, under paragraph (b)(1)(ii)
of this section, the Secretary will order the suspension of liquidation
of all entries of the subject merchandise entered, or withdrawn from
warehouse, for consumption on or after the later of:
(A) 90 days before the date of publication of the notice of
suspension of liquidation; or
(B) The date of first entry, or withdrawal from warehouse, for
consumption of the merchandise the sale or export of which does not
meet the requirements of section 704(d)(1) of the Act;
(ii) Continue the suspension of investigation by accepting a
revised suspension agreement under section 704(b) or section 734(b) of
the Act (whether or not the Secretary accepted the original agreement
under such section) that, at the time the Secretary accepts the revised
agreement, meets the applicable requirements of section 704(d)(1) or
section 734(d) of the Act, and publish in the Federal Register notice
of ``Revision of Agreement Suspending Antidumping (Countervailing Duty)
Investigation''; or
(iii) Continue the suspension of investigation by accepting a
revised suspension agreement under section 704(c), section 734(c), or
section 734(l) of the Act (whether or not the Secretary accepted the
original agreement under such section) that, at the time the Secretary
accepts the revised agreement, meets the applicable requirements of
section 704(d)(1) or section 734(d) of the Act, and publish in the
Federal Register notice of ``Revision of Agreement Suspending
Antidumping (Countervailing Duty) Investigation.'' If the Secretary
continues to suspend an investigation based on a revised agreement
accepted under section 704(c), section 734(c), or section 734(l) of the
Act, the Secretary will order suspension of liquidation to begin. The
suspension will not end until the Commission completes any requested
review of the revised agreement under section 704(h) or section 734(h)
of the Act. If the Commission receives no request for review within 20
days after the date of publication of the notice of the revision, the
Secretary will order the suspension of liquidation ended on the 21st
day after the date of publication, and will instruct the Customs
Service to release any cash deposit or bond. If the Commission
undertakes a review under section 704(h) or section 734(h) of the Act,
the provisions of sections 704(h)(2) and (3) and sections 734(h)(2) and
(3) of the Act will apply.
(5) If the Secretary decides neither to consider the suspension
agreement violated nor to revise the agreement, the Secretary will
publish in the Federal Register notice of the Secretary's decision
under paragraph (c)(2) of this section, including a statement of the
factual and legal conclusions on which the decision is based.
(d) Additional signatories. If the Secretary decides that a
suspension agreement no longer will completely eliminate the injurious
effect of exports to the United States of subject merchandise under
section 704(c)(1) or section 734(c)(1) of the Act, or that the
signatory exporters no longer account for substantially all of the
subject merchandise, the Secretary may revise the agreement to include
additional signatory exporters.
(e) Definition of ``violation.'' Under this section, ``violation''
means noncompliance with the terms of a suspension agreement caused by
an act or omission of a signatory, except, at the discretion of the
Secretary, an act or omission which is inadvertent or inconsequential.
Sec. 351.210 Final determination.
(a) Introduction. A ``final determination'' in an antidumping or
countervailing duty investigation constitutes a final decision by the
Secretary as to whether dumping or countervailable subsidization is
occurring. If the Secretary's final determination is affirmative, in
most instances the Commission will issue a final injury determination
(except in certain countervailing duty investigations). Also, if the
Secretary's preliminary determination was negative but the final
determination is affirmative, the Secretary will impose provisional
measures. If the Secretary's final determination is negative, the
proceeding, including the injury investigation conducted by the
Commission, terminates. This section contains rules regarding deadlines
for, and postponement of, final determinations, contents of final
determinations, and the effects of final determinations.
(b) Deadline for final determination. The deadline for a final
determination under section 705(a)(1) or section 735(a)(1) of the Act
will be:
(1) Normally, not later than 75 days after the date of the
Secretary's preliminary determination (see section 705(a)(1) or section
735(a)(1) of the Act);
(2) In an antidumping investigation, not later than 135 days after
the date of publication of the preliminary
---- page 27391 ----
determination if the Secretary postpones the final determination at the
request of:
(i) The petitioner, if the preliminary determination was negative
(see section 735(a)(2)(B) of the Act); or
(ii) Exporters or producers who account for a significant
proportion of exports of the subject merchandise, if the preliminary
determination was affirmative (see section 735(a)(2)(A) of the Act);
(3) In a countervailing duty investigation, not later than 165 days
after the preliminary determination, if, after the preliminary
determination, the Secretary decides to investigate an upstream subsidy
allegation and concludes that additional time is needed to investigate
the allegation (see section 703(g)(2) of the Act); or
(4) In a countervailing duty investigation, the same date as the
date of the final antidumping determination, if:
(i) In a situation where the Secretary simultaneously initiated
antidumping and countervailing duty investigations on the subject
merchandise (from the same or other countries), the petitioner requests
that the final countervailing duty determination be postponed to the
date of the final antidumping determination; and
(ii) If the final countervailing duty determination is not due on a
later date because of postponement due to an allegation of upstream
subsidies under section 703(g) of the Act (see section 705(a)(1) of the
Act).
(c) Contents of final determination and publication of notice. The
final determination will include, if appropriate, a final finding on
critical circumstances under section 705(a)(2) or section 735(a)(3) of
the Act (whichever is applicable). The Secretary will publish in the
Federal Register notice of ``Affirmative (Negative) Final Antidumping
(Countervailing Duty) Determination,'' including the rates, if any.
(d) Effect of affirmative final determination. If the final
determination is affirmative, the Secretary will take the actions
described in section 705(c)(1) or section 735(c)(1) of the Act
(whichever is applicable). In addition, in the case of a countervailing
duty investigation involving subject merchandise from a country that is
not a Subsidies Agreement country, the Secretary will instruct the
Customs Service to require a cash deposit, as provided in section
706(a)(3) of the Act, for each entry of the subject merchandise
entered, or withdrawn from warehouse, for consumption on or after the
date of publication of the order under section 706(a) of the Act.
(e) Request for postponement of final antidumping determination.
(1) In general. A request to postpone a final antidumping determination
under section 735(a)(2) of the Act (see paragraph (b)(2) of this
section) must be submitted in writing within the scheduled date of the
final determination. The Secretary may grant the request, unless the
Secretary finds compelling reasons to deny the request.
(2) Requests by exporters. In the case of a request submitted under
paragraph (e)(1) of this section by exporters who account for a
significant proportion of exports of subject merchandise (see section
735(a)(2)(A) of the Act), the Secretary will not grant the request
unless those exporters also submit a request described in the last
sentence of section 733(d) of the Act (extension of provisional
measures from a 4-month period to not more than 6 months).
(f) Deferral of decision concerning upstream subsidization to
review. Notwithstanding paragraph (b)(3) of this section, if the
petitioner so requests in writing and the preliminary countervailing
duty determination was affirmative, the Secretary, instead of
postponing the final determination, may defer a decision concerning
upstream subsidization until the conclusion of the first administrative
review of a countervailing duty order, if any (see section
703(g)(2)(B)(i) of the Act).
(g) Notification of postponement. If the Secretary postpones a
final determination under paragraph (b)(2), (b)(3), or (b)(4) of this
section, the Secretary will notify promptly all parties to the
proceeding of the postponement, and will publish in the Federal
Register notice of ``Postponement of Final Antidumping (Countervailing
Duty) Determination,'' stating the reasons for the postponement.
(h) Termination of suspension of liquidation in a countervailing
duty investigation. If the Secretary postpones a final countervailing
duty determination, the Secretary will end any suspension of
liquidation ordered in the preliminary determination not later than 120
days after the date of publication of the preliminary determination,
and will not resume it unless and until the Secretary publishes a
countervailing duty order.
(i) Postponement of final countervailing duty determination for
simultaneous investigations. A request by the petitioner to postpone a
final countervailing duty determination to the date of the final
antidumping determination must be submitted in writing within five days
of the date of publication of the preliminary countervailing duty
determination (see section 705(a)(1) and paragraph (b)(4) of this
section).
(j) Commission access to information. If the final determination is
affirmative, the Secretary will make available to the Commission and to
employees of the Commission directly involved in the proceeding the
information upon which the Secretary based the final determination and
that the Commission may consider relevant to its injury determination
(see section 705(c)(1)(A) or section 735(c)(1)(A) of the Act).
(k) Effect of negative final determination. An investigation
terminates upon publication in the Federal Register of the Secretary's
or the Commission's negative final determination, and the Secretary
will take the relevant actions described in section 705(c)(2) or
section 735(c)(2) of the Act (whichever is applicable).
Sec. 351.211 Antidumping order and countervailing duty order.
(a) Introduction. The Secretary issues an order when both the
Secretary and the Commission (except in certain countervailing duty
investigations) have made final affirmative determinations. The
issuance of an order ends the investigative phase of a proceeding.
Generally, upon the issuance of an order, importers no longer may post
bonds as security for antidumping or countervailing duties, but instead
must make a cash deposit of estimated duties. An order remains in
effect until it is revoked. This section contains rules regarding the
issuance of orders in general, as well as special rules for orders
where the Commission has found a regional industry to exist.
(b) In general. Not later than seven days after receipt of notice
of an affirmative final injury determination by the Commission under
section 705(b) or section 735(b) of the Act, or, in a countervailing
duty proceeding involving subject merchandise from a country not
entitled to an injury test (see Sec. 351.101(b)), simultaneously with
publication of an affirmative final countervailing duty determination
by the Secretary, the Secretary will publish in the Federal Register an
``Antidumping Order'' or ``Countervailing Duty Order'' that:
(1) Instructs the Customs Service to assess antidumping duties or
countervailing duties (whichever is applicable) on the subject
merchandise, in accordance with the Secretary's instructions at the
completion of each review requested under Sec. 351.213(b)
(administrative review), Sec. 351.214(b) (new shipper review), or
Sec. 351.215(b) (expedited antidumping review), or if a
---- page 27392 ----
review is not requested, in accordance with the Secretary's assessment
instructions under Sec. 351.212(c);
(2) Instructs the Customs Service to require a cash deposit of
estimated antidumping or countervailing duties at the rates included in
the Secretary's final determination; and
(3) Orders the suspension of liquidation ended for all entries of
the subject merchandise entered, or withdrawn from warehouse, for
consumption before the date of publication of the Commission's final
determination, and instructs the Customs Service to release the cash
deposit or bond on those entries, if in its final determination, the
Commission found a threat of material injury or material retardation of
the establishment of an industry, unless the Commission in its final
determination also found that, absent the suspension of liquidation
ordered under section 703(d)(2) or section 733(d)(2) of the Act, it
would have found material injury (see section 706(b) or section 736(b)
of the Act).
Sec. 351.212 Assessment of antidumping and countervailing duties;
provisional measures deposit cap; interest on certain overpayments and
underpayments.
(a) Introduction. Unlike the systems of some other countries, the
United States uses a ``retrospective'' assessment system under which
final liability for antidumping and countervailing duties is determined
after merchandise is imported. Generally, the amount of duties to be
assessed is determined in a review of the order covering a discrete
period of time. If a review is not requested, duties are assessed at
the rate established in the completed review covering the most recent
prior period or, if no review has been completed, the cash deposit rate
applicable at the time merchandise was entered. This section contains
rules regarding the assessment of duties, the provisional measures
deposit cap, and interest on over- or undercollections of estimated
duties.
(b) Assessment of antidumping and countervailing duties as the
result of a review. (1) Antidumping duties. If the Secretary has
conducted a review of an antidumping order under Sec. 351.213
(administrative review), Sec. 351.214 (new shipper review), or
Sec. 351.215 (expedited antidumping review), the Secretary normally
will calculate an assessment rate for each importer of subject
merchandise covered by the review. The Secretary normally will
calculate the assessment rate by dividing the dumping margin found on
the subject merchandise examined by the entered value of such
merchandise for normal customs duty purposes. The Secretary then will
instruct the Customs Service to assess antidumping duties by applying
the assessment rate to the entered value of the merchandise.
(2) Countervailing duties. If the Secretary has conducted a review
of a countervailing duty order under Sec. 351.213 (administrative
review) or Sec. 351.214 (new shipper review), the Secretary normally
will instruct the Customs Service to assess countervailing duties by
applying the rates included in the final results of the review to the
entered value of the merchandise.
(c) Automatic assessment of antidumping and countervailing duties
if no review is requested. (1) If the Secretary does not receive a
timely request for an administrative review of an order (see paragraph
(b)(1), (b)(2), or (b)(3) of Sec. 351.213), the Secretary, without
additional notice, will instruct the Customs Service to:
(i) Assess antidumping duties or countervailing duties, as the case
may be, on the subject merchandise described in Sec. 351.213(e) at
rates equal to the cash deposit of, or bond for, estimated antidumping
duties or countervailing duties required on that merchandise at the
time of entry, or withdrawal from warehouse, for consumption; and
(ii) To continue to collect the cash deposits previously ordered.
(2) If the Secretary receives a timely request for an
administrative review of an order (see paragraph (b)(1), (b)(2), or
(b)(3) of Sec. 351.213), the Secretary will instruct the Customs
Service to assess antidumping duties or countervailing duties, and to
continue to collect cash deposits, on the merchandise not covered by
the request in accordance with paragraph (c)(1) of this section.
(3) The automatic assessment provisions of paragraphs (c)(1) and
(c)(2) of this section will not apply to subject merchandise that is
the subject of a new shipper review (see Sec. 351.214) or an expedited
antidumping review (see Sec. 351.215).
(d) Provisional measures deposit cap. This paragraph applies to
subject merchandise entered, or withdrawn from warehouse, for
consumption before the date of publication of the Commission's notice
of an affirmative final injury determination or, in a countervailing
duty proceeding that involves merchandise from a country that is not
entitled to an injury test, the date of the Secretary's notice of an
affirmative final countervailing duty determination. If the amount of
duties that would be assessed by applying the rates included in the
Secretary's affirmative preliminary or affirmative final antidumping or
countervailing duty determination (``provisional duties'') is different
from the amount of duties that would be assessed by applying the
assessment rate under paragraphs (b)(1) and (b)(2) of this section
(``final duties''), the Secretary will instruct the Customs Service to
disregard the difference to the extent that the provisional duties are
less than the final duties, and to assess antidumping or countervailing
duties at the assessment rate if the provisional duties exceed the
final duties.
(e) Interest on certain overpayments and underpayments. Under
section 778 of the Act, the Secretary will instruct the Customs Service
to calculate interest for each entry on or after the publication of the
order from the date that a cash deposit is required to be deposited for
the entry through the date of liquidation of the entry.
(f) Special rule for regional industry cases. (1) In general. If
the Commission, in its final injury determination, found a regional
industry under section 771(4)(C) of the Act, the Secretary may direct
that duties not be assessed on subject merchandise of a particular
exporter or producer if the Secretary determines that:
(i) The exporter or producer did not export subject merchandise for
sale in the region concerned during or after the Department's period of
investigation;
(ii) The exporter or producer has certified that it will not export
subject merchandise for sale in the region concerned in the future so
long as the antidumping or countervailing duty order is in effect; and
(iii) No subject merchandise of the exporter or producer was
entered into the United States outside of the region and then sold into
the region during or after the Department's period of investigation.
(2) Procedures for obtaining an exception from the assessment of
duties. (i) Request for exception. An exporter or producer seeking an
exception from the assessment of duties under paragraph (f)(1) of this
section must request, subject to the provisions of Sec. 351.213 or
Sec. 351.214, an administrative review or a new shipper review to
determine whether subject merchandise of the exporter or producer in
question should be excepted from the assessment of duties under
paragraph (f)(1) of this section. The exporter or producer making the
request may request that the review be limited to a determination as to
whether the requirements of paragraph (f)(1) of this section are
satisfied. The request for a review must be accompanied by:
---- page 27393 ----
(A) A certification by the exporter or producer that it did not
export subject merchandise for sale in the region concerned during or
after the Department's period of investigation, and that it will not do
so in the future so long as the antidumping or countervailing duty
order is in effect; and
(B) A certification from each of the exporter's or producer's U.S.
importers of the subject merchandise that no subject merchandise of
that exporter or producer was entered into the United States outside
such region and then sold into the region during or after the
Department's period of investigation.
(ii) Limited review. If the Secretary initiates an administrative
review or a new shipper review based on a request for review that
includes a request for an exception from the assessment of duties under
paragraph (f)(2)(i) of this section, the Secretary, if requested, may
limit the review to a determination as to whether an exception from the
assessment of duties should be granted under paragraph (f)(1) of this
section.
(3) Exception granted. If, in the final results of the
administrative review or the new shipper review, the Secretary
determines that the requirements of paragraph (f)(1) of this section
are satisfied, the Secretary will instruct the Customs Service to
liquidate, without regard to antidumping or countervailing duties
(whichever is appropriate), entries of subject merchandise of the
exporter or producer concerned.
(4) Exception not granted. If, in the final results of the
administrative review or the new shipper review, the Secretary
determines that the requirements of paragraph (f)(1) are not satisfied,
the Secretary:
(i) Will issue assessment instructions to the Customs Service in
accordance with paragraph (b) of this section; or
(ii) If the review was limited to a determination as to whether an
exception from the assessment of duties should be granted, the
Secretary will instruct the Customs Service to assess duties in
accordance with paragraph (f)(1) or (f)(2) of this section, whichever
is appropriate (automatic assessment if no review is requested).
Sec. 351.213 Administrative review of orders and suspension agreements
under section 751(a)(1) of the Act.
(a) Introduction. As noted in Sec. 351.212(a), the United States
has a ``retrospective'' assessment system under which final liability
for antidumping and countervailing duties is determined after
merchandise is imported. Although duty liability may be determined in
the context of other types of reviews, the most frequently used
procedure for determining final duty liability is the administrative
review procedure under section 751(a)(1) of the Act. This section
contains rules regarding requests for administrative reviews and the
conduct of such reviews.
(b) Request for administrative review. (1) Each year during the
anniversary month of the publication of an antidumping or
countervailing duty order, a domestic interested party or an interested
party described in section 771(9)(B) of the Act (foreign government)
may request in writing that the Secretary conduct an administrative
review under section 751(a)(1) of the Act of specified individual
exporters or producers covered by an order (except for a countervailing
duty order in which the investigation or prior administrative review
was conducted on an aggregate basis), if the requesting person states
why the person desires the Secretary to review those particular
exporters or producers.
(2) During the same month, an exporter or producer covered by an
order (except for a countervailing duty order in which the
investigation or prior administrative review was conducted on an
aggregate basis) may request in writing that the Secretary conduct an
administrative review of only that person.
(3) During the same month, an importer of the merchandise may
request in writing that the Secretary conduct an administrative review
of only an exporter or producer (except for a countervailing duty order
in which the investigation or prior administrative review was conducted
on an aggregate basis) of the subject merchandise imported by that
importer.
(4) Each year during the anniversary month of the publication of a
suspension of investigation, an interested party may request in writing
that the Secretary conduct an administrative review of all producers or
exporters covered by an agreement on which the suspension of
investigation was based.
(c) Deferral of administrative review. (1) In general. The
Secretary may defer the initiation of an administrative review, in
whole or in part, for one year if:
(i) The request for administrative review is accompanied by a
request that the Secretary defer the review, in whole or in part; and
(ii) None of the following persons objects to the deferral: the
exporter or producer for which deferral is requested, an importer of
subject merchandise of that exporter or producer, a domestic interested
party and, in a countervailing duty proceeding, the foreign government.
(2) Timeliness of objection to deferral. An objection to a deferral
of the initiation of administrative review under paragraph (c)(1)(ii)
of this section must be submitted within 15 days after the end of the
anniversary month in which the administrative review is requested.
(3) Procedures and deadlines. If the Secretary defers the
initiation of an administrative review, the Secretary will publish
notice of the deferral in the Federal Register. The Secretary will
initiate the administrative review in the month immediately following
the next anniversary month, and the deadline for issuing preliminary
results of review (see paragraph (h)(1) of this section) and submitting
factual information (see Sec. 351.302(b)(2)) will run from the last day
of the next anniversary month.
(d) Rescission of administrative review. (1) Withdrawal of request
for review. The Secretary will rescind an administrative review under
this section, in whole or in part, if a party that requested a review
withdraws the request within 90 days of the date of publication of
notice of initiation of the requested review. The Secretary may extend
this time limit if the Secretary decides that it is reasonable to do
so.
(2) Self-initiated review. The Secretary may rescind an
administrative review that was self-initiated by the Secretary.
(3) No shipments. The Secretary may rescind an administrative
review, in whole or only with respect to a particular exporter or
producer, if the Secretary concludes that, during the period covered by
the review, there were no entries, exports, or sales of the subject
merchandise, as the case may be.
(4) Notice of rescission. If the Secretary rescinds an
administrative review (in whole or in part), the Secretary will publish
in the Federal Register notice of ``Rescission of Antidumping
(Countervailing Duty) Administrative Review'' or, if appropriate,
``Partial Rescission of Antidumping (Countervailing Duty)
Administrative Review.''
(e) Period of review. (1) Antidumping proceedings. (i) Except as
provided in paragraph (e)(1)(ii) of this section, an administrative
review under this section normally will cover, as appropriate, entries,
exports, or sales of the subject merchandise during the 12 months
immediately preceding the most recent anniversary month.
(ii) For requests received during the first anniversary month after
publication of an order or suspension of investigation, an
administrative review
---- page 27394 ----
under this section will cover, as appropriate, entries, exports, or
sales during the period from the date of suspension of liquidation
under this part or suspension of investigation to the end of the month
immediately preceding the first anniversary month.
(2) Countervailing duty proceedings. (i) Except as provided in
paragraph (e)(2)(ii) of this section, an administrative review under
this section normally will cover entries or exports of the subject
merchandise during the most recently completed calendar year. If the
review is conducted on an aggregate basis, the Secretary normally will
cover entries or exports of the subject merchandise during the most
recently completed fiscal year for the government in question.
(ii) For requests received during the first anniversary month after
publication of an order or suspension of investigation, an
administrative review under this section will cover entries or exports,
as appropriate, during the period from the date of suspension of
liquidation under this part or suspension of investigation to the end
of the most recently completed calendar or fiscal year as described in
paragraph (e)(2)(i) of this section.
(f) Voluntary respondents. In an administrative review, the
Secretary will examine voluntary respondents in accordance with section
782(a) of the Act and Sec. 351.204(d).
(g) Procedures. The Secretary will conduct an administrative review
under this section in accordance with Sec. 351.221.
(h) Time limits. (1) In general. The Secretary will issue
preliminary results of review (see Sec. 351.221(b)(4)) within 245 days
after the last day of the anniversary month of the order or suspension
agreement for which the administrative review was requested, and final
results of review (see Sec. 351.221(b)(5)) within 120 days after the
date on which notice of the preliminary results was published in the
Federal Register.
(2) Exception. If the Secretary determines that it is not
practicable to complete the review within the time specified in
paragraph (h)(1) of this section, the Secretary may extend the 245-day
period to 365 days and may extend the 120-day period to 180 days. If
the Secretary does not extend the time for issuing preliminary results,
the Secretary may extend the time for issuing final results from 120
days to 300 days.
(i) Possible cancellation or revision of suspension agreement. If
during an administrative review the Secretary determines or has reason
to believe that a signatory has violated a suspension agreement or that
the agreement no longer meets the requirements of section 704 or
section 734 of the Act (whichever is applicable), the Secretary will
take appropriate action under section 704(i) or section 734(i) of the
Act and Sec. 351.209. The Secretary may suspend the time limit in
paragraph (h) of this section while taking action under Sec. 351.209.
(j) Absorption of antidumping duties. (1) During any administrative
review covering all or part of a period falling between the first and
second or third and fourth anniversary of the publication of an
antidumping order under Sec. 351.211, or a determination under
Sec. 351.218(d) (sunset review), the Secretary, if requested by a
domestic interested party within 30 days of the date of publication of
the notice of initiation of the review, will determine whether
antidumping duties have been absorbed by an exporter or producer
subject to the review if the subject merchandise is sold in the United
States through an importer that is affiliated with such exporter or
producer. The request must include the name(s) of the exporter or
producer for which the inquiry is requested.
(2) For transition orders defined in section 751(c)(6) of the Act,
the Secretary will apply paragraph (j)(1) of this section to any
administrative review initiated in 1996 or 1998.
(3) In determining under paragraph (j)(1) of this section whether
antidumping duties have been absorbed, the Secretary will examine the
antidumping duties calculated in the administrative review in which the
absorption inquiry is requested.
(4) The Secretary will notify the Commission of the Secretary's
determination if:
(i) In the case of an administrative review other than one to which
paragraph (j)(2) of this section applies, the administrative review
covers all or part of a time period falling between the third and
fourth anniversary month of an order; or
(ii) In the case of an administrative review to which paragraph
(j)(2) of this section applies, the Secretary initiated the
administrative review in 1998.
(k) Administrative reviews of countervailing duty orders conducted
on an aggregate basis. (1) Request for zero rate. Where the Secretary
conducts an administrative review of a countervailing duty on an
aggregate basis under section 777A(e)(2)(B) of the Act, the Secretary
will consider and review requests for individual assessment and cash
deposit rates of zero to the extent practicable. An exporter or
producer that desires a zero rate must submit:
(i) A certification by the exporter or producer that it received
zero or de minimis net countervailable subsidies during the period of
review;
(ii) If the exporter or producer received a countervailable
subsidy, calculations demonstrating that the amount of net
countervailable subsidies received was de minimis during the period of
review;
(iii) If the exporter is not the producer of the subject
merchandise, certifications from the suppliers and producers of the
subject merchandise that those persons received zero or de minimis net
countervailable subsidies during the period of the review; and
(iv) A certification from the government of the affected country
that the government did not provide the exporter (or the exporter's
supplier) or producer with more than de minimis net countervailable
subsidies during the period of review.
(2) Application of country-wide subsidy rate. With the exception of
assessment and cash deposit rates of zero determined under paragraph
(k)(1) of this section, if, in the final results of an administrative
review under this section of a countervailing duty order, the Secretary
calculates a single country-wide subsidy rate under section
777A(e)(2)(B) of the Act, that rate will supersede, for cash deposit
purposes, all rates previously determined in the countervailing duty
proceeding in question.
(l) Exception from assessment in regional industry cases. For
procedures relating to a request for the exception from the assessment
of antidumping or countervailing duties in a regional industry case,
see Sec. 351.212(f).
Sec. 351.214 New shipper reviews under section 751(a)(2)(B) of the
Act.
(a) Introduction. The URAA established a new procedure by which so-
called ``new shippers'' can obtain their own individual dumping margin
or countervailable subsidy rate on an expedited basis. In general, a
new shipper is an exporter or producer that did not export, and is not
affiliated with an exporter or producer that did export, to the United
States during the period of investigation. This section contains rules
regarding requests for new shipper reviews and procedures for
conducting such reviews. In addition, this section contains rules
regarding requests for expedited reviews by noninvestigated exporters
in certain countervailing duty proceedings and procedures for
conducting such reviews.
---- page 27395 ----
(b) Request for new shipper review. (1) Requirement of sale or
export. Subject to the requirements of section 751(a)(2)(B) of the Act
and this section, an exporter or producer may request a new shipper
review if it has exported, or sold for export, subject merchandise to
the United States.
(2) Contents of request. A request for a new shipper review must
contain the following:
(i) If the person requesting the review is both the exporter and
producer of the merchandise, a certification that the person requesting
the review did not export subject merchandise to the United States (or,
in the case of a regional industry, did not export the subject
merchandise for sale in the region concerned) during the period of
investigation;
(ii) If the person requesting the review is the exporter, but not
the producer, of the subject merchandise:
(A) The certification described in paragraph (b)(2)(i) of this
section; and
(B) A certification from the person that produced or supplied the
subject merchandise to the person requesting the review that that
producer or supplier did not export the subject merchandise to the
United States (or, in the case of a regional industry, did not export
the subject merchandise for sale in the region concerned) during the
period of investigation;
(iii)(A) A certification that, since the investigation was
initiated, such exporter or producer has never been affiliated with any
exporter or producer who exported the subject merchandise to the United
States (or in the case of a regional industry, who exported the subject
merchandise for sale in the region concerned) during the period of
investigation, including those not individually examined during the
investigation;
(B) In an antidumping proceeding involving imports from a nonmarket
economy country, a certification that the export activities of such
exporter or producer are not controlled by the central government;
(iv) Documentation establishing:
(A) The date on which subject merchandise of the exporter or
producer making the request was first entered, or withdrawn from
warehouse, for consumption, or, if the exporter or producer cannot
establish the date of first entry, the date on which the exporter or
producer first shipped the subject merchandise for export to the United
States;
(B) The volume of that and subsequent shipments; and
(C) The date of the first sale to an unaffiliated customer in the
United States; and
(v) In the case of a review of a countervailing duty order, a
certification that the exporter or producer has informed the government
of the exporting country that the government will be required to
provide a full response to the Department's questionnaire.
(c) Deadline for requesting review. An exporter or producer may
request a new shipper review within one year of the date referred to in
paragraph (b)(2)(iv)(A) of this section.
(d) Time for new shipper review. (1) In general. The Secretary will
initiate a new shipper review under this section in the calendar month
immediately following the anniversary month or the semiannual
anniversary month if the request for the review is made during the 6-
month period ending with the end of the anniversary month or the
semiannual anniversary month (whichever is applicable).
(2) Semiannual anniversary month. The semiannual anniversary month
is the calendar month which is 6 months after the anniversary month.
(3) Example. An order is published in January. The anniversary
month would be January, and the semiannual anniversary month would be
July. If the Secretary received a request for a new shipper review at
any time during the period February-July, the Secretary would initiate
a new shipper review in August. If the Secretary received a request for
a new shipper review at any time during the period August-January, the
Secretary would initiate a new shipper review in February.
(e) Suspension of liquidation; posting bond or security. When the
Secretary initiates a new shipper review under this section, the
Secretary will direct the Customs Service to suspend liquidation of any
unliquidated entries of the subject merchandise from the relevant
exporter or producer, and to allow, at the option of the importer, the
posting, until the completion of the review, of a bond or security in
lieu of a cash deposit for each entry of the subject merchandise.
(f) Rescission of new shipper review. (1) Withdrawal of request for
review. The Secretary may rescind a new shipper review under this
section, in whole or in part, if a party that requested a review
withdraws its request not later than 60 days after the date of
publication of notice of initiation of the requested review.
(2) Absence of entry and sale to an unaffiliated customer. The
Secretary may rescind a new shipper review, in whole or in part, if the
Secretary concludes that:
(i) As of the end of the normal period of review referred to in
paragraph (g) of this section, there has not been an entry and sale to
an unaffiliated customer in the United States of subject merchandise;
and
(ii) An expansion of the normal period of review to include an
entry and sale to an unaffiliated customer in the United States of
subject merchandise would be likely to prevent the completion of the
review within the time limits set forth in paragraph (i) of this
section.
(3) Notice of Rescission. If the Secretary rescinds a new shipper
review (in whole or in part), the Secretary will publish in the Federal
Register notice of ``Rescission of Antidumping (Countervailing Duty)
New Shipper Review'' or, if appropriate, ``Partial Rescission of
Antidumping (Countervailing Duty) New Shipper Review.''
(g) Period of review. (1) Antidumping proceeding. (i) In general.
Except as provided in paragraph (g)(1)(ii) of this section, in an
antidumping proceeding, a new shipper review under this section
normally will cover, as appropriate, entries, exports, or sales during
the following time periods:
(A) If the new shipper review was initiated in the month
immediately following the anniversary month, the twelve-month period
immediately preceding the anniversary month; or
(B) If the new shipper review was initiated in the month
immediately following the semiannual anniversary month, the period of
review will be the six-month period immediately preceding the
semiannual anniversary month.
(ii) Exceptions. (A) If the Secretary initiates a new shipper
review under this section in the month immediately following the first
anniversary month, the review normally will cover, as appropriate,
entries, exports, or sales during the period from the date of
suspension of liquidation under this part to the end of the month
immediately preceding the first anniversary month.
(B) If the Secretary initiates a new shipper review under this
section in the month immediately following the first semiannual
anniversary month, the review normally will cover, as appropriate,
entries, exports, or sales during the period from the date of
suspension of liquidation under this part to the end of the month
immediately preceding the first semiannual anniversary month.
---- page 27396 ----
(2) Countervailing duty proceeding. In a countervailing duty
proceeding, the period of review for a new shipper review under this
section will be the same period as that specified in Sec. 351.213(e)(2)
for an administrative review.
(h) Procedures. The Secretary will conduct a new shipper review
under this section in accordance with Sec. 351.221.
(i) Time limits. (1) In general. Unless the time limit is waived
under paragraph (j)(3) of this section, the Secretary will issue
preliminary results of review (see Sec. 351.221(b)(4)) within 180 days
after the date on which the new shipper review was initiated, and final
results of review (see Sec. 351.221(b)(5)) within 90 days after the
date on which the preliminary results were issued.
(2) Exception. If the Secretary concludes that a new shipper review
is extraordinarily complicated, the Secretary may extend the 180-day
period to 300 days, and may extend the 90-day period to 150 days.
(j) Multiple reviews. Notwithstanding any other provision of this
subpart, if a review (or a request for a review) under Sec. 351.213
(administrative review), Sec. 351.214 (new shipper review),
Sec. 351.215 (expedited antidumping review), or Sec. 351.216 (changed
circumstances review) covers merchandise of an exporter or producer
subject to a review (or to a request for a review) under this section,
the Secretary may, after consulting with the exporter or producer:
(1) Rescind, in whole or in part, a review in progress under this
subpart;
(2) Decline to initiate, in whole or in part, a review under this
subpart; or
(3) Where the requesting party agrees in writing to waive the time
limits of paragraph (i) of this section, conduct concurrent reviews, in
which case all other provisions of this section will continue to apply
with respect to the exporter or producer.
(k) Expedited reviews in countervailing duty proceedings for
noninvestigated exporters. (1) Request for review. If, in a
countervailing duty investigation, the Secretary limited the number of
exporters or producers to be individually examined under section
777A(e)(2)(A) of the Act, an exporter that the Secretary did not select
for individual examination or that the Secretary did not accept as a
voluntary respondent (see Sec. 351.204(d)) may request a review under
this paragraph (k). An exporter must submit a request for review within
30 days of the date of publication in the Federal Register of the
countervailing duty order. A request must be accompanied by a
certification that:
(i) The requester exported the subject merchandise to the United
States during the period of investigation;
(ii) The requester is not affiliated with an exporter or producer
that the Secretary individually examined in the investigation; and
(iii) The requester has informed the government of the exporting
country that the government will be required to provide a full response
to the Department's questionnaire.
(2) Initiation of review. (i) In general. The Secretary will
initiate a review in the month following the month in which a request
for review is due under paragraph (k)(1) of this section.
(ii) Example. The Secretary publishes a countervailing duty order
on January 15. An exporter would have to submit a request for a review
by February 14. The Secretary would initiate a review in March.
(3) Conduct of review. The Secretary will conduct a review under
this paragraph (k) in accordance with the provisions of this section
applicable to new shipper reviews, subject to the following exceptions:
(i) The period of review will be the period of investigation used
by the Secretary in the investigation that resulted in the publication
of the countervailing duty order (see Sec. 351.204(b)(2));
(ii) The Secretary will not permit the posting of a bond or
security in lieu of a cash deposit under paragraph (e) of this section;
(iii) The final results of a review under this paragraph (k) will
not be the basis for the assessment of countervailing duties; and
(iv) The Secretary may exclude from the countervailing duty order
in question any exporter for which the Secretary determines an
individual net countervailable subsidy rate of zero or de minimis (see
Sec. 351.204(e)(1)), provided that the Secretary has verified the
information on which the exclusion is based.
(l) Exception from assessment in regional industry cases. For
procedures relating to a request for the exception from the assessment
of antidumping or countervailing duties in a regional industry case,
see Sec. 351.212(f).
Sec. 351.215 Expedited antidumping review and security in lieu of
estimated duty under section 736(c) of the Act.
(a) Introduction. Exporters and producers individually examined in
an investigation normally cannot obtain a review of entries until an
administrative review is requested. In addition, when an antidumping
order is published, importers normally must begin to make a cash
deposit of estimated antidumping duties upon the entry of subject
merchandise. Section 736(c), however, establishes a special procedure
under which exporters or producers may request an expedited review, and
bonds, rather than cash deposits, may continue to be posted for a
limited period of time if several criteria are satisfied. This section
contains rules regarding requests for expedited antidumping reviews and
the procedures applicable to such reviews.
(b) In general. If the Secretary determines that the criteria of
section 736(c)(1) of the Act are satisfied, the Secretary:
(1) May permit, for not more than 90 days after the date of
publication of an antidumping order, the posting of a bond or other
security instead of the deposit of estimated antidumping duties
required under section 736(a)(3) of the Act; and
(2) Will initiate an expedited antidumping review. Before making
such a determination, the Secretary will make business proprietary
information available, and will provide interested parties with an
opportunity to file written comments, in accordance with section
736(c)(4) of the Act.
(c) Procedures. The Secretary will conduct an expedited antidumping
review under this section in accordance with Sec. 351.221.
Sec. 351.216 Changed circumstances review under section 751(b) of the
Act.
(a) Introduction. Section 751(b) of the Act provides for what is
known as a ``changed circumstances'' review. This section contains
rules regarding requests for changed circumstances reviews and
procedures for conducting such reviews.
(b) Requests for changed circumstances review. At any time, an
interested party may request a changed circumstances review, under
section 751(b) of the Act, of an order or a suspended investigation.
Within 45 days after the date on which a request is filed, the
Secretary will determine whether to initiate a changed circumstances
review.
(c) Limitation on changed circumstances review. Unless the
Secretary finds that good cause exists, the Secretary will not review a
final determination in an investigation (see section 705(a) or section
735(a) of the Act) or a suspended investigation (see section 704 or
section 734 of the Act) less than 24 months after the date of
publication of notice of the final determination or the suspension of
the investigation.
---- page 27397 ----
(d) Procedures. If the Secretary decides that changed circumstances
sufficient to warrant a review exist, the Secretary will conduct a
changed circumstances review in accordance with Sec. 351.221.
(e) Time limits. The Secretary will issue final results of review
(see Sec. 351.221(b)(5)) within 270 days after the date on which the
changed circumstances review is initiated, or within 45 days if all
parties to the proceeding agree to the outcome of the review.
Sec. 351.217 Reviews to implement results of subsidies enforcement
proceeding under section 751(g) of the Act.
(a) Introduction. Section 751(g) provides a mechanism for
incorporating into an ongoing countervailing duty proceeding the
results of certain subsidy-related disputes under the WTO Subsidies
Agreement. Where the United States, in the WTO, has successfully
challenged the ``nonactionable'' (e.g., noncountervailable) status of a
foreign subsidy, or where the United States has successfully challenged
a prohibited or actionable subsidy, the Secretary may conduct a review
to determine the effect, if any, of the successful outcome on an
existing countervailing duty order or suspended investigation. This
section contains rules regarding the initiation and conduct of reviews
under section 751(g).
(b) Violations of Article 8 of the Subsidies Agreement. If:
(1) The Secretary receives notice from the Trade Representative of
a violation of Article 8 of the Subsidies Agreement;
(2) The Secretary has reason to believe that merchandise subject to
an existing countervailing duty order or suspended investigation is
benefiting from the subsidy or subsidy program found to have been in
violation of Article 8; and
(3) No administrative review is in progress, the Secretary will
initiate an Article 8 violation review of the order or suspended
investigation to determine whether the subject merchandise benefits
from the subsidy or subsidy program found to have been in violation of
Article 8 of the Subsidies Agreement.
(c) Withdrawal of subsidy or imposition of countermeasures. If the
Trade Representative notifies the Secretary that, under Article 4 or
Article 7 of the Subsidies Agreement:
(1)(i)(A) The United States has imposed countermeasures; and
(B) Such countermeasures are based on the effects in the United
States of imports of merchandise that is the subject of a
countervailing duty order; or
(ii) A WTO member country has withdrawn a countervailable subsidy
provided with respect to merchandise subject to a countervailing duty
order, then
(2) The Secretary will initiate an Article 4/Article 7 review of
the order to determine if the amount of estimated duty to be deposited
should be adjusted or the order should be revoked.
(d) Procedures. The Secretary will conduct an Article 8 violation
review or an Article 4/Article 7 review under this section in
accordance with Sec. 351.221.
(e) Expedited reviews. The Secretary will conduct reviews under
this section on an expedited basis.
Sec. 351.218 Sunset reviews under section 751(c) of the Act.
(a) Introduction. The URAA added a new procedure, commonly referred
to as ``sunset reviews,'' in section 751(c) of the Act. In general, no
later than once every five years, the Secretary must determine whether
dumping or countervailable subsidies would be likely to continue or
resume if an order were revoked or a suspended investigation were
terminated. The Commission must conduct a similar review to determine
whether injury would be likely to continue or resume in the absence of
an order or suspended investigation. If the determinations under
section 751(c) of both the Secretary and the Commission are
affirmative, the order (or suspended investigation) remains in place.
If either determination is negative, the order will be revoked (or the
suspended investigation will be terminated). This section contains
rules regarding the procedures for sunset reviews.
(b) In general. The Secretary will conduct a sunset review, under
section 751(c) of the Act, of each antidumping and countervailing duty
order and suspended investigation, and, under section 752(b) or section
752(c) (whichever is applicable), will determine whether revocation of
an antidumping or countervailing duty order or termination of a
suspended investigation would be likely to lead to continuation or
recurrence of dumping or a countervailable subsidy.
(c) Notice of initiation of review; early initiation. (1) Initial
sunset review. No later than 30 days before the fifth anniversary date
of an order or suspension of an investigation (see section 751(c)(1) of
the Act), the Secretary will publish a notice of initiation of a sunset
review (see section 751(c)(2) of the Act).
(2) Subsequent sunset reviews. In the case of an order or suspended
investigation that is continued following a sunset review initiated
under paragraph (c)(1) of this section, no later than 30 days before
the fifth anniversary of the date of the last determination by the
Commission to continue the order or suspended investigation, the
Secretary will publish a notice of initiation of a sunset review (see
section 751(c)(2) of the Act).
(3) Early initiation. The Secretary may publish a notice of
initiation at an earlier date than the dates described in paragraph (c)
(1) and (2) of this section if a domestic interested party demonstrates
to the Secretary's satisfaction that an early initiation would promote
administrative efficiency. However, if the Secretary determines that
the domestic interested party that requested early initiation is a
related party or an importer under section 771(4)(B) of the Act and
Sec. 351.203(e)(4), the Secretary may decline the request for early
initiation.
(4) Transition orders. The Secretary will initiate sunset reviews
of transition orders, as defined in section 751(c)(6)(C) of the Act, in
accordance with section 751(c)(6) of the Act.
(d) Conduct of review. Upon receipt of responses to the notice of
initiation that the Secretary deems adequate to conduct a sunset
review, the Secretary will conduct a sunset review in accordance with
Sec. 351.221.
(e) Time limits. (1) In general. Unless the review has been
completed under section 751(c)(3) of the Act (no or inadequate
response) or, under section 751(c)(4)(B) of the Act, all respondent
interested parties waived their participation in the Secretary's sunset
review, the Secretary will issue final results of review within 240
days after the date on which the review was initiated. If the Secretary
concludes that the sunset review is extraordinarily complicated (see
section 751(c)(5)(C) of the Act), the Secretary may extend the period
for issuing final results by not more than 90 days.
(2) Transition orders. The time limits described in paragraph
(e)(1) of this section will not apply to a sunset review of a
transition order (see section 751(c)(6) of the Act).
Sec. 351.219 Reviews of countervailing duty orders in connection with
an investigation under section 753 of the Act.
(a) Introduction. Section 753 of the Act is a transition provision
for countervailing duty orders that were issued under section 303 of
the Act without an injury determination by the Commission. Under the
Subsidies Agreement, one country may not impose countervailing duties
on imports from another WTO Member without first
---- page 27398 ----
making a determination that such imports have caused injury to a
domestic industry. Section 753 provides a mechanism for providing an
injury test with respect to those ``no-injury'' orders under section
303 that apply to merchandise from WTO Members. This section contains
rules regarding requests for section 753 investigations by a domestic
interested party; and the procedures that the Department will follow in
reviewing a countervailing duty order and providing the Commission with
advice regarding the amount and nature of a countervailable subsidy.
(b) Notification of domestic interested parties. The Secretary will
notify directly domestic interested parties as soon as possible after
the opportunity arises for requesting an investigation by the
Commission under section 753 of the Act.
(c) Initiation and conduct of section 753 review. Where the
Secretary deems it necessary in order to provide to the Commission
information on the amount or nature of a countervailable subsidy (see
section 753(b)(2) of the Act), the Secretary may initiate a section 753
review of the countervailing duty order in question. The Secretary will
conduct a section 753 review in accordance with Sec. 351.221.
Sec. 351.220 Countervailing duty review at the direction of the
President under section 762 of the Act.
At the direction of the President or a designee, the Secretary will
conduct a review under section 762(a)(1) of the Act to determine if a
countervailable subsidy is being provided with respect to merchandise
subject to an understanding or other kind of quantitative restriction
agreement accepted under section 704(a)(2) or section 704(c)(3) of the
Act. The Secretary will conduct a review under this section in
accordance with Sec. 351.221. If the Secretary's final results of
review under this section and the Commission's final results of review
under section 762(a)(2) of the Act are both affirmative, the Secretary
will issue a countervailing duty order and order suspension of
liquidation in accordance with section 762(b) of the Act.
Sec. 351.221 Review procedures.
(a) Introduction. The procedures for reviews are similar to those
followed in investigations. This section details the procedures
applicable to reviews in general, as well as procedures that are unique
to certain types of reviews.
(b) In general. After receipt of a timely request for a review, or
on the Secretary's own initiative when appropriate, the Secretary will:
(1) Promptly publish in the Federal Register notice of initiation
of the review;
(2) Before or after publication of notice of initiation of the
review, send to appropriate interested parties or other persons (or, if
appropriate, a sample of interested parties or other persons)
questionnaires requesting factual information for the review;
(3) Conduct, if appropriate, a verification under Sec. 351.307;
(4) Issue preliminary results of review, based on the available
information, and publish in the Federal Register notice of the
preliminary results of review that include:
(i) the rates determined, if the review involved the determination
of rates; and
(ii) an invitation for argument consistent with Sec. 351.309;
(5) Issue final results of review and publish in the Federal
Register notice of the final results of review that include the rates
determined, if the review involved the determination of rates;
(6) If the type of review in question involves a determination as
to the amount of duties to be assessed, promptly after publication of
the notice of final results instruct the Customs Service to assess
antidumping duties or countervailing duties (whichever is applicable)
on the subject merchandise covered by the review, except as otherwise
provided in Sec. 351.106(c) with respect to de minimis duties; and
(7) If the review involves a revision to the cash deposit rates for
estimated antidumping duties or countervailing duties, instruct the
Customs Service to collect cash deposits at the revised rates on future
entries.
(c) Special rules. (1) Administrative reviews and new shipper
reviews. In an administrative review under section 751(a)(1) of the Act
and Sec. 351.213 and a new shipper review under section 751(a)(2)(B) of
the Act and Sec. 351.214 the Secretary:
(i) Will publish the notice of initiation of the review no later
than the last day of the month following the anniversary month or the
semiannual anniversary month (as the case may be); and
(ii) Normally will send questionnaires no later than 30 days after
the date of publication of the notice of initiation.
(2) Expedited antidumping review. In an expedited antidumping
review under section 736(c) of the Act and Sec. 351.215, the Secretary:
(i) Will include in the notice of initiation of the review an
invitation for argument consistent with Sec. 351.309, and a statement
that the Secretary is permitting the posting of a bond or other
security instead of a cash deposit of estimated antidumping duties;
(ii) Will instruct the Customs Service to accept, instead of the
cash deposit of estimated antidumping duties under section 736(a)(3) of
the Act, a bond for each entry of the subject merchandise entered, or
withdrawn from warehouse, for consumption on or after the date of
publication of the notice of initiation of the investigation and
through the date not later than 90 days after the date of publication
of the order; and
(iii) Will not issue preliminary results of review.
(3) Changed circumstances review. In a changed circumstances review
under section 751(b) of the Act and Sec. 351.216, the Secretary:
(i) Will include in the preliminary results of review and the final
results of review a description of any action the Secretary proposed
based on the preliminary or final results;
(ii) May combine the notice of initiation of the review and the
preliminary results of review in a single notice if the Secretary
concludes that expedited action is warranted; and
(iii) May refrain from issuing questionnaires under paragraph
(b)(2) of this section.
(4) Article 8 Violation review and Article 4/Article 7 review. In
an Article 8 Violation review or an Article 4/Article 7 review under
section 751(g) of the Act and Sec. 351.217, the Secretary:
(i) Will include in the notice of initiation of the review an
invitation for argument consistent with Sec. 351.309 and will notify
all parties to the proceeding at the time the Secretary initiates the
review;
(ii) Will not issue preliminary results of review; and
(iii) In the final results of review will indicate the amount, if
any, by which the estimated duty to be deposited should be adjusted,
and, in an Article 4/Article 7 review, any action, including
revocation, that the Secretary will take based on the final results.
(5) Sunset review. In a sunset review under section 751(c) of the
Act and Sec. 351.218:
(i) The notice of initiation of the review will contain a request
for the information described in section 751(c)(2) of the Act; and
(ii) The Secretary, without issuing preliminary results of review,
may issue final results of review under paragraphs (3) or (4) of
subsection 751(c) of the Act if the conditions of those paragraphs are
satisfied.
(6) Section 753 review. In a section 753 review under section 753
of the Act and Sec. 351.219, the Secretary:
---- page 27399 ----
(i) Will include in the notice of initiation of the review an
invitation for argument consistent with Sec. 351.309, and will notify
all parties to the proceeding at the time the Secretary initiates the
review; and
(ii) May decline to issue preliminary results of review.
(7) Countervailing duty review at the direction of the President.
In a countervailing duty review at the direction of the President under
section 762 of the Act and Sec. 351.220, the Secretary will:
(i) Include in the notice of initiation of the review a description
of the merchandise, the period under review, and a summary of the
available information which, if accurate, would support the imposition
of countervailing duties;
(ii) Notify the Commission of the initiation of the review and the
preliminary results of review;
(iii) Include in the preliminary results of review the
countervailable subsidy, if any, during the period of review and a
description of official changes in the subsidy programs made by the
government of the affected country that affect the estimated
countervailable subsidy; and
(iv) Include in the final results of review the countervailable
subsidy, if any, during the period of review and a description of
official changes in the subsidy programs, made by the government of the
affected country not later than the date of publication of the notice
of preliminary results, that affect the estimated countervailable
subsidy.
Sec. 351.222 Revocation of orders; termination of suspended
investigations.
(a) Introduction. ``Revocation'' is a term of art that refers to
the end of an antidumping or countervailing proceeding in which an
order has been issued. ``Termination'' is the companion term for the
end of a proceeding in which the investigation was suspended due to the
acceptance of a suspension agreement. Generally, a revocation or
termination may occur only after the Department or the Commission have
conducted one or more reviews under section 751 of the Act. This
section contains rules regarding requirements for a revocation or
termination; and procedures that the Department will follow in
determining whether to revoke an order or terminate a suspended
investigation.
(b) Revocation or termination based on absence of dumping. (1) The
Secretary may revoke an antidumping order or terminate a suspended
antidumping investigation if the Secretary concludes that:
(i) All exporters and producers covered at the time of revocation
by the order or the suspension agreement have sold the subject
merchandise at not less than normal value for a period of at least
three consecutive years; and
(ii) It is not likely that those persons will in the future sell
the subject merchandise at less than normal value.
(2) The Secretary may revoke an antidumping order in part if the
Secretary concludes that:
(i) One or more exporters or producers covered by the order have
sold the merchandise at not less than normal value for a period of at
least three consecutive years;
(ii) It is not likely that those persons will in the future sell
the subject merchandise at less than normal value; and
(iii) For any exporter or producer that the Secretary previously
has determined to have sold the subject merchandise at less than normal
value, the exporter or producer agrees in writing to its immediate
reinstatement in the order, as long as any exporter or producer is
subject to the order, if the Secretary concludes that the exporter or
producer, subsequent to the revocation, sold the subject merchandise at
less than normal value.
(3) Revocation of nonproducing exporter. In the case of an exporter
that is not the producer of subject merchandise, the Secretary normally
will revoke an order in part under paragraph (b)(2) of this section
only with respect to subject merchandise produced or supplied by those
companies that supplied the exporter during the time period that formed
the basis for the revocation.
(c) Revocation or termination based on absence of countervailable
subsidy. (1) The Secretary may revoke a countervailing duty order or
terminate a suspended countervailing duty investigation if the
Secretary concludes that:
(i) The government of the affected country has eliminated all
countervailable subsidies on the subject merchandise by abolishing for
the subject merchandise, for a period of at least three consecutive
years, all programs that the Secretary has found countervailable;
(ii) It is not likely that the government of the affected country
will in the future reinstate for the subject merchandise those programs
or substitute other countervailable programs; and
(iii) Exporters and producers of the subject merchandise are not
continuing to receive any net countervailable subsidy from an abolished
program referred to in paragraph (c)(1)(i) of this section.
(2) The Secretary may revoke a countervailing duty order or
terminate a suspended countervailing duty investigation if the
Secretary concludes that:
(i) All exporters and producers covered at the time of revocation
by the order or the suspension agreement have not applied for or
received any net countervailable subsidy on the subject merchandise for
a period of at least five consecutive years; and
(ii) It is not likely that those persons will in the future apply
for or receive any net countervailable subsidy on the subject
merchandise from those programs the Secretary has found countervailable
in any proceeding involving the affected country or from other
countervailable programs.
(3) The Secretary may revoke a countervailing duty order in part if
the Secretary concludes that:
(i) One or more exporters or producers covered by the order have
not applied for or received any net countervailable subsidy on the
subject merchandise for a period of at least five consecutive years;
(ii) It is not likely that those persons will in the future apply
for or receive any net countervailable subsidy on the subject
merchandise from those programs the Secretary has found countervailable
in any proceeding involving the affected country or from other
countervailable programs; and
(iii) Except for exporters or producers that the Secretary
previously has determined have not received any net countervailable
subsidy on the subject merchandise, the exporters or producers agree in
writing to their immediate reinstatement in the order, as long as any
exporter or producer is subject to the order, if the Secretary
concludes that the exporter or producer, subsequent to the revocation,
has received any net countervailable subsidy on the subject
merchandise.
(4) Revocation of nonproducing exporter. In the case of an exporter
that is not the producer of subject merchandise, the Secretary normally
will revoke an order in part under paragraph (c)(3) of this section
only with respect to subject merchandise produced or supplied by those
companies that supplied the exporter during the time period that formed
the basis for the revocation.
(d) Treatment of unreviewed intervening years. (1) In general. The
Secretary will not revoke an order or terminate a suspended
investigation under paragraphs (b) or (c) of this section unless the
Secretary has
---- page 27400 ----
conducted a review under this subpart of the first and third (or fifth)
years of the three-and five-year consecutive time periods referred to
in those paragraphs. The Secretary need not have conducted a review of
an intervening year (see paragraph (d)(2) of this section). However,
except in the case of a revocation or termination under paragraph
(c)(1) of this section (government abolition of countervailable subsidy
programs), before revoking an order or terminating a suspended
investigation, the Secretary must be satisfied that, during each of the
three (or five) years, there were exports to the United States in
commercial quantities of the subject merchandise to which a revocation
or termination will apply.
(2) Intervening year. ``Intervening year'' means any year between
the first and final year of the consecutive period on which revocation
or termination is conditioned.
(e) Request for revocation or termination. (1) Antidumping
proceeding. During the third and subsequent annual anniversary months
of the publication of an antidumping order or suspension of an
antidumping investigation, an exporter or producer may request in
writing that the Secretary revoke an order or terminate a suspended
investigation under paragraph (b) of this section with regard to that
person if the person submits with the request:
(i) The person's certification that the person sold the subject
merchandise at not less than normal value during the period of review
described in Sec. 351.213(e)(1), and that in the future the person will
not sell the merchandise at less than normal value;
(ii) the person's certification that, during each of the
consecutive years referred to in paragraph (b) of this section, the
person sold the subject merchandise to the United States in commercial
quantities; and
(iii) If applicable, the agreement regarding reinstatement in the
order or suspended investigation described in paragraph (b)(2)(iii) of
this section.
(2) Countervailing duty proceeding. (i) During the third and
subsequent annual anniversary months of the publication of a
countervailing duty order or suspension of a countervailing duty
investigation, the government of the affected country may request in
writing that the Secretary revoke an order or terminate a suspended
investigation under paragraph (c)(1) of this section if the government
submits with the request its certification that it has satisfied,
during the period of review described in Sec. 351.213(e)(2), the
requirements of paragraph (c)(1)(i) of this section regarding the
abolition of countervailable subsidy programs, and that it will not
reinstate for the subject merchandise those programs or substitute
other countervailable subsidy programs;
(ii) During the fifth and subsequent annual anniversary months of
the publication of a countervailing duty order or suspended
countervailing duty investigation, the government of the affected
country may request in writing that the Secretary revoke an order or
terminate a suspended investigation under paragraph (c)(2) of this
section if the government submits with the request:
(A) Certifications for all exporters and producers covered by the
order or suspension agreement that they have not applied for or
received any net countervailable subsidy on the subject merchandise for
a period of at least five consecutive years (see paragraph (c)(2)(i) of
this section);
(B) Those exporters' and producers' certifications that they will
not apply for or receive any net countervailable subsidy on the subject
merchandise from any program the Secretary has found countervailable in
any proceeding involving the affected country or from other
countervailable programs (see paragraph (c)(2)(ii) of this section);
and
(C) A certification from each exporter or producer that, during
each of the consecutive years referred to in paragraph (c)(2) of this
section, that person sold the subject merchandise to the United States
in commercial quantities; or
(iii) During the fifth and subsequent annual anniversary months of
the publication of a countervailing duty order, an exporter or producer
may request in writing that the Secretary revoke the order with regard
to that person if the person submits with the request:
(A) A certification that the person has not applied for or received
any net countervailable subsidy on the subject merchandise for a period
of at least five consecutive years (see paragraph (c)(3)(i) of this
section), including calculations demonstrating the basis for the
conclusion that the person received zero or de minimis net
countervailable subsidies during the review period of the
administrative review in connection with which the person has submitted
the request for revocation;
(B) A certification that the person will not apply for or receive
any net countervailable subsidy on the subject merchandise from any
program the Secretary has found countervailable in any proceeding
involving the affected country or from other countervailable programs
(see paragraph (c)(3)(ii) of this section);
(C) The person's certification that, during each of the consecutive
years referred to in paragraph (c)(3) of this section, the person sold
the subject merchandise to the United States in commercial quantities;
and
(D) The agreement described in paragraph (c)(3)(iii) of this
section (reinstatement in order).
(f) Procedures. (1) Upon receipt of a timely request for revocation
or termination under paragraph (e) of this section, the Secretary will
consider the request as including a request for an administrative
review and will initiate and conduct a review under Sec. 351.213.
(2) In addition to the requirements of Sec. 351.221 regarding the
conduct of an administrative review, the Secretary will:
(i) Publish with the notice of initiation under Sec. 351.221(b)(1),
notice of ``Request for Revocation of Order (in part)'' or ``Request
for Termination of Suspended Investigation'' (whichever is applicable);
(ii) Conduct a verification under Sec. 351.307;
(iii) Include in the preliminary results of review under
Sec. 351.221(b)(4) the Secretary's decision whether there is a
reasonable basis to believe that the requirements for revocation or
termination are met;
(iv) If the Secretary decides that there is a reasonable basis to
believe that the requirements for revocation or termination are met,
publish with the notice of preliminary results of review under
Sec. 351.221(b)(4) notice of ``Intent to Revoke Order (in Part)'' or
``Intent to Terminate Suspended Investigation'' (whichever is
applicable);
(v) Include in the final results of review under Sec. 351.221(b)(5)
the Secretary's final decision whether the requirements for revocation
or termination are met; and
(vi) If the Secretary determines that the requirements for
revocation or termination are met, publish with the notice of final
results of review under Sec. 351.221(b)(5) notice of ``Revocation of
Order (in Part)'' or ``Termination of Suspended Investigation''
(whichever is applicable).
(3) If the Secretary revokes an order in whole or in part, the
Secretary will order the suspension of liquidation terminated for the
merchandise covered by the revocation on the first day after the period
under review, and will instruct the Customs Service to release any cash
deposit or bond.
(g) Revocation or termination based on changed circumstances. (1)
The
---- page 27401 ----
Secretary may revoke an order, in whole or in part, or terminate a
suspended investigation if the Secretary concludes that:
(i) Producers accounting for substantially all of the production of
the domestic like product to which the order (or the part of the order
to be revoked) or suspended investigation pertains have expressed a
lack of interest in the order, in whole or in part, or suspended
investigation (see section 782(h) of the Act); or
(ii) Other changed circumstances sufficient to warrant revocation
or termination exist.
(2) If at any time the Secretary concludes from the available
information that changed circumstances sufficient to warrant revocation
or termination may exist, the Secretary will conduct a changed
circumstances review under Sec. 351.216.
(3) In addition to the requirements of Sec. 351.221, the Secretary
will:
(i) Publish with the notice of initiation (see Sec. 353.221(b)(1),
notice of ``Consideration of Revocation of Order (in Part)'' or
``Consideration of Termination of Suspended Investigation'' (whichever
is applicable);
(ii) If the Secretary's conclusion regarding the possible existence
of changed circumstances (see paragraph (g)(2) of this section), is not
based on a request, the Secretary, not later than the date of
publication of the notice of ``Consideration of Revocation of Order (in
Part)'' or ``Consideration of Termination of Suspended Investigation''
(whichever is applicable) (see paragraph (g)(3)(i) of this section),
will serve written notice of the consideration of revocation or
termination on each interested party listed on the Department's service
list and on any other person that the Secretary has reason to believe
is a domestic interested party;
(iii) Conduct a verification, if appropriate, under Sec. 351.307;
(iv) Include in the preliminary results of review, under
Sec. 351.221(b)(4), the Secretary's decision whether there is a
reasonable basis to believe that changed circumstances warrant
revocation or termination;
(v) If the Secretary's preliminary decision is that changed
circumstances warrant revocation or termination, publish with the
notice of preliminary results of review, under Sec. 351.221(b)(4),
notice of ``Intent to Revoke Order (in Part)'' or ``Intent to Terminate
Suspended Investigation'' (whichever is applicable);
(vi) Include in the final results of review, under
Sec. 351.221(b)(5), the Secretary's final decision whether changed
circumstances warrant revocation or termination; and
(vii) If the Secretary's determines that changed circumstances
warrant revocation or termination, publish with the notice of final
results of review, under Sec. 351.221(b)(5), notice of ``Revocation of
Order (in Part)'' or ``Termination of Suspended Investigation''
(whichever is applicable).
(4) If the Secretary revokes an order, in whole or in part, under
paragraph (g) of this section, the Secretary will order the suspension
of liquidation ended for the merchandise covered by the revocation on
the effective date of the notice of revocation, and will instruct the
Customs Service to release any cash deposit or bond.
(h) Revocation or termination based on injury reconsideration. If
the Commission determines in a changed circumstances review under
section 751(b)(2) of the Act that the revocation of an order or
termination of a suspended investigation is not likely to lead to
continuation or recurrence of material injury, the Secretary will
revoke, in whole or in part, the order or terminate the suspended
investigation, and will publish in the Federal Register notice of
``Revocation of Order (in Part)'' or ``Termination of Suspended
Investigation'' (whichever is applicable).
(i) Revocation or termination based on sunset review. (1) In
general. In the case of a sunset review under Sec. 351.218, the
Secretary will revoke an order or terminate a suspended investigation,
unless:
(i) The Secretary makes a determination that revocation or
termination would be likely to lead to continuation or recurrence of a
countervailable subsidy or dumping (see section 752(b) and section
752(c) of the Act); and
(ii) The Commission makes a determination that revocation or
termination would be likely to lead to continuation or recurrence of
material injury (see section 752(a) of the Act).
(2) Exception for transition orders. Before January 1, 2000, the
Secretary will not revoke a transition order (see section 751(c)(6) of
the Act) as the result of a sunset review under Sec. 351.218.
(j) Revocation of countervailing duty order based on Commission
negative determination under section 753 of the Act. The Secretary will
revoke a countervailing duty order, and will order the refund, with
interest, of any estimated countervailing duties collected during the
period liquidation was suspended under section 753(a)(4) of the Act
upon being notified by the Commission that:
(1) The Commission has determined that an industry in the United
States is not likely to be materially injured if the countervailing
duty order in question is revoked (see section 753(a)(1) of the Act);
or
(2) A domestic interested party did not make a timely request for
an investigation under section 753(a) of the Act (see section 753(a)(3)
of the Act).
(k) Revocation based on Article 4/Article 7 review.
(1) In general. The Secretary may revoke a countervailing duty
order, in whole or in part, following an Article 4/Article 7 review
under Sec. 351.217(c), due to the imposition of countermeasures by the
United States or the withdrawal of a countervailable subsidy by a WTO
member country (see section 751(g)(2) of the Act).
(2) Additional Requirements. In addition to the requirements of
Sec. 351.221, if the Secretary determines to revoke an order as the
result of an Article 4/Article 7 review, the Secretary will:
(i) Conduct a verification, if appropriate, under Sec. 351.307;
(ii) Include in the final results of review, under
Sec. 351.221(b)(5), the Secretary's final decision whether the order
should be revoked;
(iii) If the Secretary's final decision is that the order should be
revoked:
(A) Determine the effective date of the revocation;
(B) Publish with the notice of final results of review, under
Sec. 351.221(b)(5), a notice of ``Revocation of Order (in Part),'' that
will include the effective date of the revocation; and
(C) Order any suspension of liquidation ended for merchandise
covered by the revocation that was entered on or after the effective
date of the revocation, and instruct the Customs Service to release any
cash deposit or bond.
(l) Revocation under section 129. The Secretary may revoke an order
under section 129 of the URAA (implementation of WTO dispute
settlement).
(m) Transition rule. In the case of time periods that, under
section 291(a)(2) of the URAA, are subject to review under the
provisions of the Act prior to its amendment by the URAA, and for
purposes of determining whether the three-or five-year requirements of
paragraphs (b) and (c) of this section are satisfied, the following
rules will apply:
(1) Antidumping proceedings. The Secretary will consider sales at
not less than foreign market value to be equivalent to sales at not
less than normal value.
---- page 27402 ----
(2) Countervailing duty proceedings. The Secretary will consider
the absence of a subsidy, as defined in section 771(5) of the Act prior
to its amendment by the URAA, to be equivalent to the absence of a
countervailable subsidy, as defined in section 771(5) of the Act, as
amended by the URAA.
(n) Cross-reference. For the treatment in a subsequent
investigation of business proprietary information submitted to the
Secretary in connection with a changed circumstances review under
Sec. 351.216 or a sunset review under Sec. 351.218 that results in the
revocation of an order (or termination of a suspended investigation),
see section 777(b)(3) of the Act.
Sec. 351.223 Procedures for initiation of downstream product
monitoring.
(a) Introduction. Section 780 of the Act establishes a mechanism
for monitoring imports of ``downstream products.'' In general, section
780 is aimed at situations where, following the issuance of an
antidumping or countervailing duty order on a product that is used as a
component in another product, exports to the United States of that
other (or ``downstream'') product increase. Although the Department is
responsible for determining whether trade in the downstream product
should be monitored, the Commission is responsible for conducting the
actual monitoring. The Commission must report the results of its
monitoring to the Department, and the Department must consider the
reports in determining whether to self-initiate an antidumping or
countervailing duty investigation on the downstream product. This
section contains rules regarding applications for the initiation of
downstream product monitoring and decisions regarding such
applications.
(b) Contents of application. An application to designate a
downstream product for monitoring under section 780 of the Act must
contain the following information, to the extent reasonably available
to the applicant:
(1) The name and address of the person requesting the monitoring
and a description of the article it produces which is the basis for
filing its application;
(2) A detailed description of the downstream product in question;
(3) A detailed description of the component product that is
incorporated into the downstream product, including the value of the
component part in relation to the value of the downstream product, and
the extent to which the component part has been substantially
transformed as a result of its incorporation into the downstream
product;
(4) The name of the country of production of both the downstream
and component products and the name of any intermediate country from
which the merchandise is imported;
(5) The name and address of all known producers of component parts
and downstream products in the relevant countries and a detailed
description of any relationship between such producers;
(6) Whether the component part is already subject to monitoring to
aid in the enforcement of a bilateral arrangement within the meaning of
section 804 of the Trade and Tariff Act of 1984;
(7) A list of all antidumping or countervailing duty investigations
that have been suspended, or antidumping or countervailing duty orders
that have been issued, on merchandise that is related to the component
part and that is manufactured in the same foreign country in which the
component part is manufactured;
(8) A list of all antidumping or countervailing duty investigations
that have been suspended, or antidumping or countervailing duty orders
that have been issued, on merchandise that is manufactured or exported
by the manufacturer or exporter of the component part and that is
similar in description and use to the component part; and
(9) The reasons for suspecting that the imposition of antidumping
or countervailing duties has resulted in a diversion of exports of the
component part into increased production and exportation to the United
States of the downstream product.
(c) Determination of sufficiency of application. Within 14 days
after an application is filed under paragraph (b) of this section, the
Secretary will rule on the sufficiency of the application by making the
determinations described in section 780(a)(2) of the Act.
(d) Notice of Determination. The Secretary will publish in the
Federal Register notice of each affirmative or negative ``monitoring''
determination made under section 780(a)(2) of the Act, and if the
determination under section 780(a)(2)(A) of the Act and a determination
made under any clause of section 780(a)(2)(B) of the Act are
affirmative, will transmit to the Commission a copy of the
determination and the application. The Secretary will make available to
the Commission, and to its employees directly involved in the
monitoring, the information upon which the Secretary based the
initiation.
Sec. 351.224 Disclosure of calculations and procedures for the
correction of ministerial errors.
(a) Introduction. In the interests of transparency, the Department
has long had a practice of providing parties with the details of its
antidumping and countervailing duty calculations. This practice has
come to be referred to as a ``disclosure.'' This section contains rules
relating to requests for disclosure and procedures for correcting
ministerial errors.
(b) Disclosure. The Secretary will disclose to a party to the
proceeding calculations performed, if any, in connection with a
preliminary determination under section 703(b) or section 733(b) of the
Act, a final determination under section 705(a) or section 735(a) of
the Act, and a final results of a review under section 736(c), section
751, or section 753 of the Act, normally within five days after the
date of any public announcement or, if there is no public announcement
of, within five days after the date of publication of, the preliminary
determination, final determination, or final results of review
(whichever is applicable). The Secretary will disclose to a party to
the proceeding calculations performed, if any, in connection with a
preliminary results of review under section 751 or section 753 of the
Act, normally not later than ten days after the date of the public
announcement of, or, if there is no public announcement, within five
days after the date of publication of, the preliminary results of
review.
(c) Comments regarding ministerial errors. (1) In general. A party
to the proceeding to whom the Secretary has disclosed calculations
performed in connection with a preliminary determination may submit
comments concerning a significant ministerial error in such
calculations. A party to the proceeding to whom the Secretary has
disclosed calculations performed in connection with a final
determination or the final results of a review may submit comments
concerning any ministerial error in such calculations. Comments
concerning ministerial errors made in the preliminary results of a
review should be included in a party's case brief.
(2) Time limits for submitting comments. A party to the proceeding
must file comments concerning ministerial errors within five days after
the earlier of:
(i) The date on which the Secretary released disclosure documents
to that party; or
(ii) The date on which the Secretary held a disclosure meeting with
that party.
---- page 27403 ----
(3) Replies to comments. Replies to comments submitted under
paragraph (c)(1) of this section must be filed within five days after
the date on which the comments were filed with the Secretary. The
Secretary will not consider replies to comments submitted in connection
with a preliminary determination.
(4) Extensions. A party to the proceeding may request an extension
of the time limit for filing comments concerning a ministerial error in
a final determination or final results of review under Sec. 351.302(c)
within three days after the date of any public announcement, or, if
there is no public announcement, within five days after the date of
publication of the final determination or final results of review, as
applicable. The Secretary will not extend the time limit for filing
comments concerning a significant ministerial error in a preliminary
determination.
(d) Contents of comments and replies. Comments filed under
paragraph (c)(1) of this section must explain the alleged ministerial
error by reference to applicable evidence in the official record, and
must present what, in the party's view, is the appropriate correction.
In addition, comments concerning a preliminary determination must
demonstrate how the alleged ministerial error is significant (see
paragraph (g) of this section) by illustrating the effect on individual
weighted-average dumping margin or countervailable subsidy rate, the
all-others rate, or the country-wide subsidy rate (whichever is
applicable). Replies to any comments must be limited to issues raised
in such comments.
(e) Corrections. The Secretary will analyze any comments received
and, if appropriate, correct any significant ministerial error by
amending the preliminary determination, or correct any ministerial
error by amending the final determination or the final results of
review (whichever is applicable). Where practicable, the Secretary will
announce publicly the issuance of a correction notice, and normally
will do so within 30 days after the date of public announcement, or, if
there is no public announcement, within 30 days after the date of
publication, of the preliminary determination, final determination, or
final results of review (whichever is applicable). In addition, the
Secretary will publish notice of such corrections in the Federal
Register. A correction notice will not alter the anniversary month of
an order or suspended investigation for purposes of requesting an
administrative review (see Sec. 351.213) or a new shipper review (see
Sec. 351.214) or initiating a sunset review (see Sec. 351.218).
(f) Definition of ``ministerial error.'' Under this section,
ministerial error means an error in addition, subtraction, or other
arithmetic function, clerical error resulting from inaccurate copying,
duplication, or the like, and any other similar type of unintentional
error which the Secretary considers ministerial.
(g) Definition of ``significant ministerial error.'' Under this
section, significant ministerial error means a ministerial error (see
paragraph (f) of this section), the correction of which, either singly
or in combination with other errors:
(1) Would result in a change of at least five absolute percentage
points in, but not less than 25 percent of, the weighted-average
dumping margin or the countervailable subsidy rate (whichever is
applicable) calculated in the original (erroneous) preliminary
determination; or
(2) Would result in a difference between a weighted-average dumping
margin or countervailable subsidy rate (whichever is applicable) of
zero (or de minimis) and a weighted-average dumping margin or
countervailable subsidy rate of greater than de minimis, or vice versa.
Sec. 351.225 Scope rulings.
(a) Introduction. Issues arise as to whether a particular product
is included within the scope of an antidumping or countervailing duty
order or a suspended investigation. Such issues can arise because the
descriptions of subject merchandise contained in the Department's
determinations must be written in general terms. At other times, a
domestic interested party may allege that changes to an imported
product or the place where the imported product is assembled
constitutes circumvention under section 781 of the Act. When such
issues arise, the Department issues ``scope rulings'' that clarify the
scope of an order or suspended investigation with respect to particular
products. This section contains rules regarding scope rulings, requests
for scope rulings, procedures for scope inquiries, and standards used
in determining whether a product is within the scope of an order or
suspended investigation.
(b) Self-initiation. If the Secretary determines from available
information that an inquiry is warranted to determine whether a product
is included within the scope of an antidumping or countervailing duty
order or a suspended investigation, the Secretary will initiate an
inquiry, and will notify all parties on the Department's scope service
list of its initiation of a scope inquiry.
(c) By application. (1) Contents and service of application. Any
interested party may apply for a ruling as to whether a particular
product is within the scope of an order or a suspended investigation.
The application must be served upon all parties on the scope service
list described in paragraph (n) of this section, and must contain the
following, to the extent reasonably available to the interested party:
(i) A detailed description of the product, including its technical
characteristics and uses, and its current U.S. Tariff Classification
number;
(ii) A statement of the interested party's position as to whether
the product is within the scope of an order or a suspended
investigation, including:
(A) A summary of the reasons for this conclusion,
(B) Citations to any applicable statutory authority, and
(C) Any factual information supporting this position, including
excerpts from portions of the Secretary's or the Commission's
investigation, and relevant prior scope rulings.
(2) Deadline for action on application. Within 45 days of the date
of receipt of an application for a scope ruling, the Secretary will
issue a final ruling under paragraph (d) of this section or will
initiate a scope inquiry under paragraph (e) of this section.
(d) Ruling based upon the application. If the Secretary can
determine, based solely upon the application and the descriptions of
the merchandise referred to in paragraph (k)(1) of this section,
whether a product is included within the scope of an order or a
suspended investigation, the Secretary will issue a final ruling as to
whether the product is included within the order or suspended
investigation. The Secretary will notify all persons on the
Department's scope service list (see paragraph (n) of this section) of
the final ruling.
(e) Ruling where further inquiry is warranted. If the Secretary
finds that the issue of whether a product is included within the scope
of an order or a suspended investigation cannot be determined based
solely upon the application and the descriptions of the merchandise
referred to in paragraph (k)(1) of this section, the Secretary will
notify by mail all parties on the Department's scope service list of
the initiation of a scope inquiry.
(f) Notice and procedure. (1) Notice of the initiation of a scope
inquiry issued under paragraph (b) or (e) of this section will include:
---- page 27404 ----
(i) A description of the product that is the subject of the scope
inquiry; and
(ii) An explanation of the reasons for the Secretary's decision to
initiate a scope inquiry;
(iii) A schedule for submission of comments that normally will
allow interested parties 20 days in which to provide comments on, and
supporting factual information relating to, the inquiry, and 10 days in
which to provide any rebuttal to such comments.
(2) The Secretary may issue questionnaires and verify submissions
received, where appropriate.
(3) Whenever the Secretary finds that a scope inquiry presents an
issue of significant difficulty, the Secretary will issue a preliminary
scope ruling, based upon the available information at the time, as to
whether there is a reasonable basis to believe or suspect that the
product subject to a scope inquiry is included within the order or
suspended investigation. The Secretary will notify all parties on the
Department's scope service list (see paragraph (n) of this section) of
the preliminary scope ruling, and will invite comment. Unless otherwise
specified, interested parties will have within twenty days from the
date of receipt of the notification in which to submit comments, and
ten days thereafter in which to submit rebuttal comments.
(4) The Secretary will issue a final ruling as to whether the
product which is the subject of the scope inquiry is included within
the order or suspended investigation, including an explanation of the
factual and legal conclusions on which the final ruling is based. The
Secretary will notify all parties on the Department's scope service
list (see paragraph (n) of this section) of the final scope ruling.
(5) The Secretary will issue a final ruling under paragraph (k) of
this section (other scope rulings) normally within 120 days of the
initiation of the inquiry under this section. The Secretary will issue
a final ruling under paragraph (g), (h), (i), or (j) of this section
(circumvention rulings under section 781 of the Act) normally within
300 days from the date of the initiation of the scope inquiry.
(6) When an administrative review under Sec. 351.213, a new shipper
review under Sec. 351.214, or an expedited antidumping review under
Sec. 351.215 is in progress at the time the Secretary provides notice
of the initiation of a scope inquiry (see paragraph (e)(1) of this
section), the Secretary may conduct the scope inquiry in conjunction
with that review.
(7)(i) The Secretary will notify the Commission in writing of the
proposed inclusion of products in an order prior to issuing a final
ruling under paragraph (f)(4) of this section based on a determination
under:
(A) Section 781(a) of the Act with respect to merchandise completed
or assembled in the United States (other than minor completion or
assembly);
(B) Section 781(b) of the Act with respect to merchandise completed
or assembled in other foreign countries; or
(C) Section 781(d) of the Act with respect to later-developed
products which incorporate a significant technological advance or
significant alteration of an earlier product.
(ii) If the Secretary notifies the Commission under paragraph
(f)(7)(i) of this section, upon the written request of the Commission,
the Secretary will consult with the Commission regarding the proposed
inclusion, and any such consultation will be completed within 15 days
after the date of such request. If, after consultation, the Commission
believes that a significant injury issue is presented by the proposed
inclusion of a product within an order, the Commission may provide
written advice to the Secretary as to whether the inclusion would be
inconsistent with the affirmative injury determination of the
Commission on which the order is based.
(g) Products completed or assembled in the United States. Under
section 781(a) of the Act, the Secretary may include within the scope
of an antidumping or countervailing duty order imported parts or
components referred to in section 781(a)(1)(B) of the Act that are used
in the completion or assembly of the merchandise in the United States
at any time such order is in effect. In making this determination, the
Secretary will not consider any single factor of section 781(a)(2) of
the Act to be controlling. In determining the value of parts or
components purchased from an affiliated person under section
781(a)(1)(D) of the Act, or of processing performed by an affiliated
person under section 781(a)(2)(E) of the Act, the Secretary may
determine the value of the part or component on the basis of the cost
of producing the part or component under section 773(f)(3) of the Act.
(h) Products completed or assembled in other foreign countries.
Under section 781(b) of the Act, the Secretary may include within the
scope of an antidumping or countervailing duty order, at any time such
order is in effect, imported merchandise completed or assembled in a
foreign country other than the country to which the order applies. In
making this determination, the Secretary will not consider any single
factor of section 781(b)(2) of the Act to be controlling. In
determining the value of parts or components purchased from an
affiliated person under section 781(b)(1)(D) of the Act, or of
processing performed by an affiliated person under section 781(b)(2)(E)
of the Act, the Secretary may determine the value of the part or
component on the basis of the cost of producing the part or component
under section 773(f)(3) of the Act.
(i) Minor alterations of merchandise. Under section 781(c) of the
Act, the Secretary may include within the scope of an antidumping or
countervailing duty order articles altered in form or appearance in
minor respects.
(j) Later-developed merchandise. In determining whether later-
developed merchandise is within the scope of an antidumping or
countervailing duty order, the Secretary will apply section 781(d) of
the Act.
(k) Other scope determinations. With respect to those scope
determinations that are not covered under paragraphs (g) through (j) of
this section, in considering whether a particular product is included
within the scope of an order or a suspended investigation, the
Secretary will take into account the following:
(1) The descriptions of the merchandise contained in the petition,
the initial investigation, and the determinations of the Secretary
(including prior scope determinations) and the Commission.
(2) When the above criteria are not dispositive, the Secretary will
further consider:
(i) The physical characteristics of the product;
(ii) The expectations of the ultimate purchasers;
(iii) The ultimate use of the product;
(iv) The channels of trade in which the product is sold; and
(v) The manner in which the product is advertised and displayed.
(l) Suspension of liquidation. (1) When the Secretary conducts a
scope inquiry under paragraph (b) or (e) of this section, and the
product in question is already subject to suspension of liquidation,
that suspension of liquidation will be continued, pending a preliminary
or a final scope ruling, at the cash deposit rate that would apply if
the product were ruled to be included within the scope of the order.
(2) If the Secretary issues a preliminary scope ruling under
paragraph (f)(3) of this section to the effect that the product in
question is included within the scope of the order, any suspension of
liquidation described in paragraph (l)(1) of this section will
---- page 27405 ----
continue. If liquidation has not been suspended, the Secretary will
instruct the Customs Service to suspend liquidation and to require a
cash deposit of estimated duties, at the applicable rate, for each
unliquidated entry of the product entered, or withdrawn from warehouse,
for consumption on or after the date of initiation of the scope
inquiry. If the Secretary issues a preliminary scope ruling to the
effect that the product in question is not included within the scope of
the order, the Secretary will order any suspension of liquidation on
the product ended, and will instruct the Customs Service to refund any
cash deposits or release any bonds relating to that product.
(3) If the Secretary issues a final scope ruling, under either
paragraph (d) or (f)(4) of this section, to the effect that the product
in question is included within the scope of the order, any suspension
of liquidation under paragraph (l)(1) or (l)(2) of this section will
continue. Where there has been no suspension of liquidation, the
Secretary will instruct the Customs Service to suspend liquidation and
to require a cash deposit of estimated duties, at the applicable rate,
for each unliquidated entry of the product entered, or withdrawn from
warehouse, for consumption on or after the date of initiation of the
scope inquiry. If the Secretary's final scope ruling is to the effect
that the product in question is not included within the scope of the
order, the Secretary will order any suspension of liquidation on the
subject product ended and will instruct the Customs Service to refund
any cash deposits or release any bonds relating to this product.
(4) If, within 90 days of the initiation of a review of an order or
a suspended investigation under this subpart, the Secretary issues a
final ruling that a product is included within the scope of the order
or suspended investigation that is the subject of the review, the
Secretary, where practicable, will include sales of that product for
purposes of the review and will seek information regarding such sales.
If the Secretary issues a final ruling after 90 days of the initiation
of the review, the Secretary may consider sales of the product for
purposes of the review on the basis of non-adverse facts available.
However, notwithstanding the pendency of a scope inquiry, if the
Secretary considers it appropriate, the Secretary may request
information concerning the product that is the subject of the scope
inquiry for purposes of a review under this subpart.
(m) Orders covering identical products. Except for a scope inquiry
and a scope ruling that involves section 781(a) or section 781(b) of
the Act (assembly of parts or components in the United States or in a
third country), if more than one order or suspended investigation cover
the same subject merchandise, and if the Secretary considers it
appropriate, the Secretary may conduct a single inquiry and issue a
single scope ruling that applies to all such orders or suspended
investigations.
(n) Service of applications; scope service list. The requirements
of Sec. 351.303(f) apply to this section, except that an application
for a scope ruling must be served on all persons on the Department's
scope service list. For purposes of this section, the ``scope service
list'' will include all persons that have participated in any segment
of the proceeding. If an application for a scope ruling in one
proceeding results in a single inquiry that will apply to another
proceeding (see paragraph (m) of this section), the Secretary will
notify persons on the scope service list of the other proceeding of the
application for a scope ruling.
(o) Publication of list of scope rulings. On a quarterly basis, the
Secretary will publish in the Federal Register a list of scope rulings
issued within the last three months. This list will include the case
name, reference number, and a brief description of the ruling.
Subpart C--Information and Argument
Sec. 351.301 Time limits for submission of factual information.
(a) Introduction. The Department obtains most of its factual
information in antidumping and countervailing duty proceedings from
submissions made by interested parties during the course of the
proceeding. This section sets forth the time limits for submitting such
factual information, including information in questionnaire responses,
publicly available information to value factors in nonmarket economy
cases, allegations concerning market viability, allegations of sales at
prices below the cost of production, countervailable subsidy
allegations, and upstream subsidy allegations. Section 351.302 sets
forth the procedures for requesting an extension of such time limits.
Section 351.303 contains the procedural rules regarding filing, format,
translation, service, and certification of documents.
(b) Time limits in general. Except as provided in paragraphs (c)
and (d) of this section and Sec. 351.302, a submission of factual
information is due no later than:
(1) For a final determination in a countervailing duty
investigation or an antidumping investigation, seven days before the
date on which the verification of any person is scheduled to commence,
except that factual information requested by the verifying officials
from a person normally will be due no later than seven days after the
date on which the verification of that person is completed;
(2) For the final results of an administrative review, 140 days
after the last day of the anniversary month, except that factual
information requested by the verifying officials from a person normally
will be due no later than seven days after the date on which the
verification of that person is completed;
(3) For the final results of a changed circumstances review, sunset
review, or section 762 review, 140 days after the date of publication
of notice of initiation of the review, except that factual information
requested by the verifying officials from a person normally will be due
no later than seven days after the date on which the verification of
that person is completed;
(4) For the final results of a new shipper review, 100 days after
the date of publication of notice of initiation of the review, except
that factual information requested by the verifying officials from a
person normally will be due no later than seven days after the date on
which the verification of that person is completed; and
(5) For the final results of an expedited antidumping review,
Article 8 violation review, Article 4/Article 7 review, or section 753
review, a date specified by the Secretary.
(c) Time limits for certain submissions. (1) Rebuttal,
clarification, or correction of factual information. Any interested
party may submit factual information to rebut, clarify, or correct
factual information submitted by any other interested party at any time
prior to the deadline provided in this section for submission of such
factual information. If factual information is submitted less than 10
days before, on, or after (normally only with the Department's
permission) the applicable deadline for submission of such factual
information, an interested party may submit factual information to
rebut, clarify, or correct the factual information no later than 10
days after the date such factual information is served on the
interested party or, if appropriate, made available under APO to the
authorized applicant.
(2) Questionnaire responses and other submissions on request. (i)
Notwithstanding paragraph (b) of this section, the Secretary may
request any person to submit factual information at any time during a
proceeding.
---- page 27406 ----
(ii) In the Secretary's written request to an interested party for
a response to a questionnaire or for other factual information, the
Secretary will specify the following: the time limit for the response;
the information to be provided; the form and manner in which the
interested party must submit the information; and that failure to
submit requested information in the requested form and manner by the
date specified may result in use of the facts available under section
776 of the Act and Sec. 351.308.
(iii) Interested parties will have at least 30 days from the date
of receipt to respond to the full initial questionnaire. The time limit
for response to individual sections of the questionnaire, if the
Secretary requests a separate response to such sections, may be less
than the 30 days allotted for response to the full questionnaire. The
date of receipt will be seven days from the date on which the initial
questionnaire was transmitted.
(iv) A notification by an interested party, under section 782(c)(1)
of the Act, of difficulties in submitting information in response to a
questionnaire issued by the Secretary is to be submitted in writing
within 14 days after the date of receipt of the initial questionnaire.
(v) A respondent interested party may request in writing that the
Secretary conduct a questionnaire presentation. The Secretary may
conduct a questionnaire presentation if the Secretary notifies the
government of the affected country and that government does not object.
(3) Submission of publicly available information to value factors
under Sec. 351.408(c). Notwithstanding paragraph (b) of this section,
interested parties may submit publicly available information to value
factors under Sec. 351.408(c) within:
(i) For a final determination in an antidumping investigation, 40
days after the date of publication of the preliminary determination;
(ii) For the final results of an administrative review, new shipper
review, or changed circumstances review, 20 days after the date of
publication of the preliminary results of review; and
(iii) For the final results of an expedited antidumping review, a
date specified by the Secretary.
(d) Time limits for certain allegations. (1) Market viability and
the basis for determining a price-based normal value. In an antidumping
investigation or administrative review, allegations regarding market
viability, including the exceptions in Sec. 351.404(c)(2), are due,
with all supporting factual information, within 40 days after the date
on which the initial questionnaire was transmitted, unless the
Secretary alters this time limit.
(2) Sales at prices below the cost of production. An allegation of
sales at prices below the cost of production made by the petitioner or
other domestic interested party is due within:
(i) In an antidumping investigation,
(A) On a country-wide basis, 20 days after the date on which the
initial questionnaire was transmitted to any person, unless the
Secretary alters this time limit; or
(B) On a company-specific basis, 20 days after a respondent
interested party files the response to the relevant section of the
questionnaire, unless the relevant questionnaire response is, in the
Secretary's view, incomplete, in which case the Secretary will
determine the time limit;
(ii) In an administrative review, new shipper review, or changed
circumstances review, on a company-specific basis, 20 days after a
respondent interested party files the response to the relevant section
of the questionnaire, unless the relevant questionnaire response is, in
the Secretary's view, incomplete, in which case the Secretary will
determine the time limit; or
(iii) In an expedited antidumping review, on a company-specific
basis, 10 days after the date of publication of the notice of
initiation of the review.
(3) Purchases of major inputs from an affiliated party at prices
below the affiliated party's cost of production. An allegation of
purchases of major inputs from an affiliated party at prices below the
affiliated party's cost of production made by the petitioner or other
domestic interested party is due within 20 days after a respondent
interested party files the response to the relevant section of the
questionnaire, unless the relevant questionnaire response is, in the
Secretary's view, incomplete, in which case the Secretary will
determine the time limits.
(4) Countervailable subsidy; upstream subsidy. (i) In general. A
countervailable subsidy allegation made by the petitioner or other
domestic interested party is due no later than:
(A) In a countervailing duty investigation, 40 days before the
scheduled date of the preliminary determination; or
(B) In an administrative review, new shipper review, or changed
circumstances review, 20 days after all responses to the initial
questionnaire are filed with the Department, unless the Secretary
alters this time limit.
(ii) Exception for upstream subsidy allegation in an investigation.
In a countervailing duty investigation, an allegation of upstream
subsidies made by the petitioner or other domestic interested party is
due no later than:
(A) 10 days before the scheduled date of the preliminary
determination; or
(B) 15 days before the scheduled date of the final determination.
(5) Targeted dumping. In an antidumping investigation, an
allegation of targeted dumping made by the petitioner or other domestic
interested party under Sec. 351.414(f)(3) is due no later than 30 days
before the scheduled date of the preliminary determination.
Sec. 351.302 Extension of time limits; return of untimely filed or
unsolicited material.
(a) Introduction. This section sets forth the procedures for
requesting an extension of a time limit. In addition, this section
explains that certain untimely filed or unsolicited material will be
returned to the submitter together with an explanation of the reasons
for the return of such material.
(b) Extension of time limits. Unless expressly precluded by
statute, the Secretary may, for good cause, extend any time limit
established by this part.
(c) Requests for extension of specific time limit. Before the
applicable time limit specified under Sec. 351.301 expires, a party may
request an extension pursuant to paragraph (b) of this section. The
request must be in writing and state the reasons for the request. An
extension granted to a party must be approved in writing.
(d) Return of untimely filed or unsolicited material. (1) Unless
the Secretary extends a time limit under paragraph (b) of this section,
the Secretary will not consider or retain in the official record of the
proceeding:
(i) Untimely filed factual information, written argument, or other
material that the Secretary returns to the submitter, except as
provided under Sec. 351.104(a)(2); or
(ii) Unsolicited questionnaire responses, except as provided under
Sec. 351.204(d)(2).
(2) The Secretary will return such information, argument, or other
material, or unsolicited questionnaire response with, to the extent
practicable, written notice stating the reasons for return.
Sec. 351.303 Filing, format, translation, service, and certification
of documents.
(a) Introduction. This section contains the procedural rules
regarding filing, format, service, translation, and certification of
documents and applies to all persons submitting documents to the
Department for consideration in an antidumping or countervailing duty
proceeding.
---- page 27407 ----
(b) Where to file; time of filing. Persons must address and submit
all documents to the Secretary of Commerce, Attention: Import
Administration, Central Records Unit, Room 1870, U.S. Department of
Commerce, 14th Street and Constitution Avenue, NW, Washington, DC
20230, between the hours of 8:30 a.m. and 5:00 p.m. on business days
(see Sec. 351.103(b)). If the applicable time limit expires on a non-
business day, the Secretary will accept documents that are filed on the
next business day.
(c) Number of copies; filing of business proprietary and public
versions under the one-day lag rule; information in double brackets.
(1) In general. Except as provided in paragraphs (c)(2) and (c)(3) of
this section, a person must file six copies of each submission with the
Department.
(2) Application of the one-day lag rule. (i) Filing the business
proprietary version. A person must file one copy of the business
proprietary version of any document with the Department within the
applicable time limit. Business proprietary version means the version
of a document containing information for which a person claims business
proprietary treatment under Sec. 351.304.
(ii) Filing the final business proprietary version; bracketing
corrections. By the close of business one business day after the date
the business proprietary version is filed under paragraph (c)(2)(i) of
this section, a person must file six copies of the final business
proprietary version of the document with the Department. The final
business proprietary version must be identical to the business
proprietary version filed on the previous day except for any bracketing
corrections. Although a person must file six copies of the complete
final business proprietary version with the Department, the person may
serve other persons with only those pages containing bracketing
corrections.
(iii) Filing the public version. Simultaneously with the filing of
the final business proprietary version under paragraph (c)(2)(ii) of
this section, a person also must file three copies of the public
version of such document (see Sec. 351.304(c)) with the Department.
(iv) Information in double brackets. If a person serves authorized
applicants with a business proprietary version of a document that
excludes information in double brackets pursuant to Sec. 351.304(b)(2),
the person simultaneously must file with the Department one copy of
those pages in which information in double brackets has been excluded.
(3) Computer media and printouts. The Secretary may require
submission of factual information on computer media unless the
Secretary modifies such requirements under section 782(c) of the Act
(see Sec. 351.301(c)(2)(iv)). The computer medium must be accompanied
by the number of copies of any computer printout specified by the
Secretary. All information on computer media must be releasable under
APO (see Sec. 351.305).
(d) Format of copies. (1) In general. Unless the Secretary alters
the requirements of this section, documents filed with the Department
must conform to the specification and marking requirements under
paragraph (d)(2) of this section or the Secretary may refuse to accept
such documents for the official record of the proceeding.
(2) Specifications and markings. A person must submit documents on
letter-size paper, single-sided and double-spaced, and must securely
bind each copy as a single document with any letter of transmittal as
the first page of the document. A submitter must mark the first page of
each document in the upper right-hand corner with the following
information in the following format:
(i) On the first line, except for a petition, indicate the
Department case number;
(ii) On the second line, indicate the total number of pages in the
document including cover pages, appendices, and any unnumbered pages;
(iii) On the third line, indicate whether the document is for an
investigation, scope inquiry, circumvention inquiry, downstream product
monitoring application, or review and, if the latter, indicate the
inclusive dates of the review, the type of review, and the section
number of the Act corresponding to the type of review;
(iv) On the fourth line, indicate the Department office conducting
the proceeding;
(v) On the fifth and subsequent lines, indicate whether any portion
of the document contains business proprietary information and, if so,
list the applicable page numbers and state either ``Document May be
Released Under APO'' or ``Document May Not be Released Under APO.''
Indicate ``Business Proprietary Treatment Requested'' on the top of
each page containing business proprietary information. In addition,
include the warning ``Bracketing of Business Proprietary Information is
Not Final for One Business Day After Date of Filing'' on the top of
each page containing business proprietary information in the copy of
the business proprietary version filed under Sec. 351.303(c)(2)(i)
(one-day lag rule). Do not include this warning in the copies of the
final business proprietary version filed on the next business day under
Sec. 351.303(c)(2)(ii) (see Sec. 351.303(c)(2) and Sec. 351.304(c));
and
(vi) For public versions of business proprietary documents required
under Sec. 351.304(c), complete the marking as required in paragraphs
(d)(2)(i)-(v) of this section for the business proprietary document,
but conspicuously mark the first page ``Public Version.''
(e) Translation to English. A document submitted in a foreign
language must be accompanied by an English translation of the entire
document or of only pertinent portions, where appropriate, unless the
Secretary waives this requirement for an individual document. A party
must obtain the Department's approval for submission of an English
translation of only portions of a document prior to submission to the
Department.
(f) Service of copies on other persons. (1)(i) In general. Except
as provided in Sec. 351.202(c) (filing of petition), Sec. 351.207(f)(1)
(submission of proposed suspension agreement), and paragraph (f)(3) of
this section, a person filing a document with the Department
simultaneously must serve a copy of the document on all other persons
on the service list by personal service or first class mail.
(ii) Service of public versions or a party's own business
proprietary information. Notwithstanding paragraphs (f)(1)(i) and
(f)(3) of this section, service of the public version of a document or
of the business proprietary version of a document containing only the
server's own business proprietary information, on persons on the
service list, may be made by facsimile transmission or other electronic
transmission process, with the consent of the person to be served.
(2) Certificate of service. Each document filed with the Department
must include a certificate of service listing each person served
(including agents), the type of document served, and the date and
method of service on each person. The Secretary may refuse to accept
any document that is not accompanied by a certificate of service.
(3) Service requirements for certain documents. (i) Briefs. In
addition to the certificate of service requirements contained in
paragraph (f)(2) of this section, a person filing a case or rebuttal
brief with the Department simultaneously must serve a copy of that
brief on all persons on the service list and on any U.S. Government
agency that has submitted a case or rebuttal brief in the segment of
the proceeding. If, under Sec. 351.103(c), a person has
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designated an agent to receive service that is located in the United
States, service on that person must be either by personal service on
the same day the brief is filed or by overnight mail or courier on the
next day. If the person has designated an agent to receive service that
is located outside the United States, service on that person must be by
first class airmail.
(ii) Request for review. In addition to the certificate of service
requirements under paragraph (f)(2) of this section, an interested
party that files with the Department a request for an expedited
antidumping review, an administrative review, a new shipper review, or
a changed circumstances review must serve a copy of the request by
personal service or first class mail on each exporter or producer
specified in the request and on the petitioner by the end of the
anniversary month or within ten days of filing the request for review,
whichever is later. If the interested party that files the request is
unable to locate a particular exporter or producer, or the petitioner,
the Secretary may accept the request for review if the Secretary is
satisfied that the party made a reasonable attempt to serve a copy of
the request on such person.
(g) Certifications. A person must file with each submission
containing factual information the certification in paragraph (g)(1) of
this section and, in addition, if the person has legal counsel or
another representative, the certification in paragraph (g)(2) of this
section:
(1) For the person's officially responsible for presentation of the
factual information:
I, (name and title), currently employed by (person), certify
that (1) I have read the attached submission, and (2) the
information contained in this submission is, to the best of my
knowledge, complete and accurate.
(2) For the person's legal counsel or other representative:
I, (name), of (law or other firm), counsel or representative to
(person), certify that (1) I have read the attached submission, and
(2) based on the information made available to me by (person), I
have no reason to believe that this submission contains any material
misrepresentation or omission of fact.
Sec. 351.304 Establishing business proprietary treatment of
information [Reserved].
Sec. 351.305 Access to business proprietary information [Reserved].
Sec. 351.306 Use of business proprietary information [Reserved].
Sec. 351.307 Verification of information.
(a) Introduction. Prior to making a final determination in an
investigation or issuing final results of review, the Secretary may
verify relevant factual information. This section clarifies when
verification will occur, the contents of a verification report, and the
procedures for verification.
(b) In general. (1) Subject to paragraph (b)(4) of this section,
the Secretary will verify factual information upon which the Secretary
relies in:
(i) A final determination in a continuation of a previously
suspended countervailing duty investigation (section 704(g) of the
Act), countervailing duty investigation, continuation of a previously
suspended antidumping investigation (section 705(a) of the Act), or
antidumping investigation;
(ii) The final results of an expedited antidumping review;
(iii) A revocation under section 751(d) of the Act;
(iv) The final results of an administrative review, new shipper
review, or changed circumstances review, if the Secretary decides that
good cause for verification exists; and
(v) The final results of an administrative review if:
(A) A domestic interested party, not later than 100 days after the
date of publication of the notice of initiation of review, submits a
written request for verification; and
(B) The Secretary conducted no verification under this paragraph
during either of the two immediately preceding administrative reviews.
(2) The Secretary may verify factual information upon which the
Secretary relies in a proceeding or a segment of a proceeding not
specifically provided for in paragraph (b)(1) of this section.
(3) If the Secretary decides that, because of the large number of
exporters or producers included in an investigation or administrative
review, it is impractical to verify relevant factual information for
each person, the Secretary may select and verify a sample.
(4) The Secretary may conduct verification of a person if that
person agrees to verification and the Secretary notifies the government
of the affected country and that government does not object. If the
person or the government objects to verification, the Secretary will
not conduct verification and may disregard any or all information
submitted by the person in favor of use of the facts available under
section 776 of the Act and Sec. 351.308.
(c) Verification report. The Secretary will report the methods,
procedures, and results of a verification under this section prior to
making a final determination in an investigation or issuing final
results in a review.
(d) Procedures for verification. The Secretary will notify the
government of the affected country that employees of the Department
will visit with the persons listed below in order to verify the
accuracy and completeness of submitted factual information. The
notification will, where practicable, identify any member of the
verification team who is not an officer of the U.S. Government. As part
of the verification, employees of the Department will request access to
all files, records, and personnel which the Secretary considers
relevant to factual information submitted of:
(1) Producers, exporters, or importers;
(2) Persons affiliated with the persons listed in paragraph (d)(1)
of this section, where applicable;
(3) Unaffiliated purchasers, or
(4) The government of the affected country as part of verification
in a countervailing duty proceeding.
Sec. 351.308 Determinations on the basis of the facts available.
(a) Introduction. The Secretary may make determinations on the
basis of the facts available whenever necessary information is not
available on the record, an interested party or any other person
withholds or fails to provide information requested in a timely manner
and in the form required or significantly impedes a proceeding, or the
Secretary is unable to verify submitted information. If the Secretary
finds that an interested party ``has failed to cooperate by not acting
to the best of its ability to comply with a request for information,''
the Secretary may use an inference that is adverse to the interests of
that party in selecting from among the facts otherwise available. This
section lists some of the sources of information upon which the
Secretary may base an adverse inference and explains the actions the
Secretary will take with respect to corroboration of information.
(b) In general. The Secretary may make a determination under the
Act and this part based on the facts otherwise available in accordance
with section 776(a) of the Act.
(c) Adverse Inferences. For purposes of section 776(b) of the Act,
an adverse inference may include reliance on:
(1) Secondary information, such as information derived from:
(i) The petition;
(ii) A final determination in a countervailing duty investigation
or an antidumping investigation;
(iii) Any previous administrative review, new shipper review,
expedited antidumping review, section 753 review, or section 762
review; or
---- page 27409 ----
(2) Any other information placed on the record.
(d) Corroboration of secondary information. Under section 776(c) of
the Act, when the Secretary relies on secondary information, the
Secretary will, to the extent practicable, corroborate that information
from independent sources that are reasonably at the Secretary's
disposal. Independent sources may include, but are not limited to,
published price lists, official import statistics and customs data, and
information obtained from interested parties during the instant
investigation or review. Corroborate means that the Secretary will
examine whether the secondary information to be used has probative
value. The fact that corroboration may not be practicable in a given
circumstance will not prevent the Secretary from applying an adverse
inference as appropriate and using the secondary information in
question.
(e) Use of certain information. In reaching a determination under
the Act and this part, the Secretary will not decline to consider
information that is submitted by an interested party and is necessary
to the determination but does not meet all the applicable requirements
established by the Secretary if the conditions listed under section
782(e) of the Act are met.
Sec. 351.309 Written argument.
(a) Introduction. Written argument may be submitted during the
course of an antidumping or countervailing duty proceeding. This
section sets forth the time limits for submission of case and rebuttal
briefs and provides guidance on what should be contained in these
documents.
(b) Written argument. (1) In general. In making the final
determination in a countervailing duty investigation or antidumping
investigation or the final results of an administrative review, new
shipper review, expedited antidumping review, section 753 review, or
section 762 review, the Secretary will consider written arguments in
case or rebuttal briefs filed within the time limits in this section.
(2) Written argument on request. Notwithstanding paragraph (b)(1)
of this section, the Secretary may request written argument on any
issue from any person or U.S. Government agency at any time during a
proceeding.
(c) Case brief. (1) Any interested party or U.S. Government agency
may submit a ``case brief'' within:
(i) For a final determination in a countervailing duty
investigation or antidumping investigation, 50 days after the date of
publication of the preliminary determination, unless the Secretary
alters this time limit;
(ii) For the final results of an administrative review, new shipper
review, changed circumstances review, or section 762 review, 30 days
after the date of publication of the preliminary results of review,
unless the Secretary alters the time limit; or
(iii) For the final results of an expedited antidumping review,
sunset review, Article 8 violation review, Article 4/Article 7 review,
or section 753 review, a date specified by the Secretary.
(2) The case brief must present all arguments that continue in the
submitter's view to be relevant to the Secretary's final determination
or final results, including any arguments presented before the date of
publication of the preliminary determination or preliminary results. As
part of the case brief, parties are encouraged to provide a summary of
the arguments not to exceed five pages and a table of statutes,
regulations, and cases cited.
(d) Rebuttal brief. (1) Any interested party or U.S. Government
agency may submit a ``rebuttal brief'' within five days after the time
limit for filing the case brief, unless the Secretary alters this time
limit.
(2) The rebuttal brief may respond only to arguments raised in case
briefs and should identify the arguments to which it is responding. As
part of the rebuttal brief, parties are encouraged to provide a summary
of the arguments not to exceed five pages and a table of statutes,
regulations, and cases cited.
Sec. 351.310 Hearings.
(a) Introduction. This section sets forth the procedures for
requesting a hearing, indicates that the Secretary may consolidate
hearings, and explains when the Secretary may hold closed hearing
sessions.
(b) Pre-hearing conference. The Secretary may conduct a telephone
pre-hearing conference with representatives of interested parties to
facilitate the conduct of the hearing.
(c) Request for hearing. Any interested party may request that the
Secretary hold a public hearing on arguments to be raised in case or
rebuttal briefs within 30 days after the date of publication of the
preliminary determination or preliminary results of review, unless the
Secretary alters this time limit, or in a proceeding where the
Secretary will not issue a preliminary determination, not later than a
date specified by the Secretary. To the extent practicable, a party
requesting a hearing must identify arguments to be raised at the
hearing. At the hearing, an interested party may make an affirmative
presentation only on arguments included in that party's case brief and
may make a rebuttal presentation only on arguments included in that
party's rebuttal brief.
(d) Hearings in general. (1) If an interested party submits a
request under paragraph (c) of this section, the Secretary will hold a
public hearing on the date stated in the notice of the Secretary's
preliminary determination or preliminary results of administrative
review (or otherwise specified by the Secretary in an expedited
antidumping review), unless the Secretary alters the date. Ordinarily,
the hearing will be held two days after the scheduled date for
submission of rebuttal briefs.
(2) The hearing is not subject to 5 U.S.C. Secs. 551-559, and
Sec. 702 (Administrative Procedure Act). Witness testimony, if any,
will not be under oath or subject to cross-examination by another
interested party or witness. During the hearing, the chair may question
any person or witness and may request persons to present additional
written argument.
(e) Consolidated hearings. At the Secretary's discretion, the
Secretary may consolidate hearings in two or more cases.
(f) Closed hearing sessions. An interested party may request a
closed session of the hearing no later than the date the case briefs
are due in order to address limited issues during the course of the
hearing. The requesting party must identify the subjects to be
discussed, specify the amount of time requested, and justify the need
for a closed session with respect to each subject. If the Secretary
approves the request for a closed session, only authorized applicants
and other persons authorized by the regulations may be present for the
closed session (see Sec. 351.305).
(g) Transcript of hearing. The Secretary will place a verbatim
transcript of the hearing in the public and official records of the
proceeding and will announce at the hearing how interested parties may
obtain copies of the transcript.
Sec. 351.311 Countervailable subsidy practice discovered during
investigation or review.
(a) Introduction. During the course of a countervailing duty
investigation or review, Department officials may discover or receive
notice of a practice that appears to provide a countervailable subsidy.
This section explains when the Secretary will examine such a practice.
(b) Inclusion in proceeding. If during a countervailing duty
investigation or a
---- page 27410 ----
countervailing duty administrative review the Secretary discovers a
practice that appears to provide a countervailable subsidy with respect
to the subject merchandise and the practice was not alleged or examined
in the proceeding, or if, pursuant to section 775 of the Act, the
Secretary receives notice from the United States Trade Representative
that a subsidy or subsidy program is in violation of Article 8 of the
Subsidies Agreement, the Secretary will examine the practice, subsidy,
or subsidy program if the Secretary concludes that sufficient time
remains before the scheduled date for the final determination or final
results of review.
(c) Deferral of examination. If the Secretary concludes that
insufficient time remains before the scheduled date for the final
determination or final results of review to examine the practice,
subsidy, or subsidy program described in paragraph (b) of this section,
the Secretary will:
(1) During an investigation, allow the petitioner to withdraw the
petition without prejudice and resubmit it with an allegation with
regard to the newly discovered practice, subsidy, or subsidy program;
or
(2) During an investigation or review, defer consideration of the
newly discovered practice, subsidy, or subsidy program until a
subsequent administrative review, if any.
(d) Notice. The Secretary will notify the parties to the proceeding
of any practice the Secretary discovers, or any subsidy or subsidy
program with respect to which the Secretary receives notice from the
United States Trade Representative, and whether or not it will be
included in the then ongoing proceeding.
Sec. 351.312 Industrial users and consumer organizations.
(a) Introduction. The URAA provides for opportunity for comment by
consumer organizations and industrial users on matters relevant to a
particular determination of dumping, subsidization, or injury. This
section indicates under what circumstances such persons may submit
relevant information and argument.
(b) Opportunity to submit relevant information and argument. In an
antidumping or countervailing duty proceeding under title VII of the
Act and this part, an industrial user of the subject merchandise or a
representative consumer organization, as described in section 777(h) of
the Act, may submit relevant factual information and written argument
to the Department under paragraphs (b), (c)(1), and (c)(3) of
Sec. 351.301 and paragraphs (c) and (d) of Sec. 351.309 concerning
dumping or a countervailable subsidy. All such submissions must be
filed in accordance with Sec. 351.303.
(c) Business proprietary information. Persons described in
paragraph (b) of this section may request business proprietary
treatment of information under Sec. 351.304, but will not be granted
access under Sec. 351.305 to business proprietary information submitted
by other persons.
Subpart D--Calculation of Export Price, Constructed Export Price,
Fair Value, and Normal Value
Sec. 351.401 In general.
(a) Introduction. In general terms, an antidumping analysis
involves a comparison of export price or constructed export price in
the United States with normal value in the foreign market. This section
establishes certain general rules that apply to the calculation of
export price, constructed export price and normal value. (See section
772, section 773, and section 773A of the Act.)
(b) Adjustments in general. In making adjustments to export price,
constructed export price, or normal value, the Secretary will adhere to
the following principles:
(1) The interested party that is in possession of the relevant
information has the burden of establishing to the satisfaction of the
Secretary the amount and nature of a particular adjustment; and
(2) The Secretary will not double-count adjustments.
(c) Use of price net of price adjustments. In calculating export
price, constructed export price, and normal value (where normal value
is based on price), the Secretary will use a price that is net of any
price adjustment, as defined in Sec. 351.102(b), that is reasonably
attributable to the subject merchandise or the foreign like product
(whichever is applicable).
(d) Delayed payment or pre-payment of expenses. Where cost is the
basis for determining the amount of an adjustment to export price,
constructed export price, or normal value, the Secretary will not
factor in any delayed payment or pre-payment of expenses by the
exporter or producer.
(e) Adjustments for movement expenses. (1) Original place of
shipment. In making adjustments for movement expenses to establish
export price or constructed export price under section 772(c)(2)(A) of
the Act, or normal value under section 773(a)(6)(B)(ii) of the Act, the
Secretary normally will consider the production facility as being the
``original place of shipment. However, where the Secretary bases export
price, constructed export price, or normal value on a sale by an
unaffiliated reseller, the Secretary may treat the original place from
which the reseller shipped the merchandise as the ``original place of
shipment.''
(2) Warehousing. The Secretary will consider warehousing expenses
that are incurred after the subject merchandise or foreign like product
leaves the original place of shipment as movement expenses.
(f) Treatment of affiliated producers in antidumping proceedings.
(1) In general. In an antidumping proceeding under this part, the
Secretary will treat two or more affiliated producers as a single
entity where those producers have production facilities for similar or
identical products that would not require substantial retooling of
either facility in order to restructure manufacturing priorities and
the Secretary concludes that there is a significant potential for the
manipulation of price or production.
(2) Significant potential for manipulation. In identifying a
significant potential for the manipulation of price or production, the
factors the Secretary may consider include:
(i) The level of common ownership;
(ii) The extent to which managerial employees or board members of
one firm sit on the board of directors of an affiliated firm; and
(iii) Whether operations are intertwined, such as through the
sharing of sales information, involvement in production and pricing
decisions, the sharing of facilities or employees, or significant
transactions between the affiliated producers.
(g) Allocation of expenses and price adjustments. (1) In general.
The Secretary may consider allocated expenses and price adjustments
when transaction-specific reporting is not feasible, provided the
Secretary is satisfied that the allocation method used does not cause
inaccuracies or distortions.
(2) Reporting allocated expenses and price adjustments. Any party
seeking to report an expense or a price adjustment on an allocated
basis must demonstrate to the Secretary's satisfaction that the
allocation is calculated on as specific a basis as is feasible, and
must explain why the allocation methodology used does not cause
inaccuracies or distortions.
(3) Feasibility. In determining the feasibility of transaction-
specific reporting or whether an allocation is calculated on as
specific a basis as is
---- page 27411 ----
feasible, the Secretary will take into account the records maintained
by the party in question in the ordinary course of its business, as
well as such factors as the normal accounting practices in the country
and industry in question and the number of sales made by the party
during the period of investigation or review.
(4) Expenses and price adjustments relating to merchandise not
subject to the proceeding. The Secretary will not reject an allocation
method solely because the method includes expenses incurred, or price
adjustments made, with respect to sales of merchandise that does not
constitute subject merchandise or a foreign like product (whichever is
applicable).
(h) Treatment of subcontractors (``tolling'' operations). The
Secretary will not consider a toller or subcontractor to be a
manufacturer or producer where the toller or subcontractor does not
acquire ownership, and does not control the relevant sale, of the
subject merchandise or foreign like product.
(i) Date of sale. In identifying the date of sale of the subject
merchandise or foreign like product, the Secretary normally will use
the date of invoice, as recorded in the exporter or producer's records
kept in the ordinary course of business. However, the Secretary may use
a date other than the date of invoice if the Secretary is satisfied
that a different date better reflects the date on which the exporter or
producer establishes the material terms of sale.
Sec. 351.402 Calculation of export price and constructed export price;
reimbursement of antidumping and countervailing duties.
(a) Introduction. In order to establish export price, constructed
export price, and normal value, the Secretary must make certain
adjustments to the price to the unaffiliated purchaser (often called
the ``starting price'') in both the United States and foreign markets.
This regulation clarifies how the Secretary will make certain of the
adjustments to the starting price in the United States that are
required by section 772 of the Act.
(b) Additional adjustments to constructed export price. In
establishing constructed export price under section 772(d) of the Act,
the Secretary will make adjustments for expenses associated with
commercial activities in the United States that relate to the sale to
an unaffiliated purchaser, no matter where or when paid. The Secretary
will not make an adjustment for any expense that is related solely to
the sale to an affiliated importer in the United States, although the
Secretary may make an adjustment to normal value for such expenses
under section 773(a)(6)(C)(iii) of the Act.
(c) Special rule for merchandise with value added after
importation. (1) Merchandise imported by affiliated persons. In
applying section 772(e) of the Act, merchandise imported by and value
added by a person affiliated with the exporter or producer includes
merchandise imported and value added for the account of such an
affiliated person.
(2) Estimation of value added. The Secretary normally will
determine that the value added in the United States by the affiliated
person is likely to exceed substantially the value of the subject
merchandise if the Secretary estimates the value added to be at least
65 percent of the price charged to the first unaffiliated purchaser for
the merchandise as sold in the United States. The Secretary normally
will estimate the value added based on the difference between the price
charged to the first unaffiliated purchaser for the merchandise as sold
in the United States and the price paid for the subject merchandise by
the affiliated person. The Secretary normally will base this
determination on averages of the prices and the value added to the
subject merchandise.
(3) Determining dumping margins. For purposes of determining
dumping margins under paragraphs (1) and (2) of section 772(e) of the
Act, the Secretary may use the weighted-average dumping margins
calculated on sales of identical or other subject merchandise sold to
unaffiliated persons.
(d) Special rule for determining profit. This paragraph sets forth
rules for calculating profit in establishing constructed export price
under section 772(f) of the Act.
(1) Basis for total expenses and total actual profit. In
calculating total expenses and total actual profit, the Secretary
normally will use the aggregate of expenses and profit for all subject
merchandise sold in the United States and all foreign like products
sold in the exporting country, including sales that have been
disregarded as being below the cost of production. (See section 773(b)
of the Act (sales at less than cost of production).)
(2) Use of financial reports. For purposes of determining profit
under section 772(d)(3) of the Act, the Secretary may rely on any
appropriate financial reports, including public, audited financial
statements, or equivalent financial reports, and internal financial
reports prepared in the ordinary course of business.
(3) Voluntary reporting of costs of production. The Secretary will
not require the reporting of costs of production solely for purposes of
determining the amount of profit to be deducted from the constructed
export price. The Secretary will base the calculation of profit on
costs of production if such costs are reported voluntarily by the date
established by the Secretary, and provided that it is practicable to do
so and the costs of production are verifiable.
(e) Treatment of payments between affiliated persons. Where a
person affiliated with the exporter or producer incurs any of the
expenses deducted from constructed export price under section 772(d) of
the Act and is reimbursed for such expenses by the exporter, producer
or other affiliate, the Secretary normally will make an adjustment
based on the actual cost to the affiliated person. If the Secretary is
satisfied that information regarding the actual cost to the affiliated
person is unavailable to the exporter or producer, the Secretary may
determine the amount of the adjustment on any other reasonable basis,
including the amount of the reimbursement to the affiliated person if
the Secretary is satisfied that such amount reflects the amount usually
paid in the market under consideration.
(f) Reimbursement of antidumping duties and countervailing duties.
(1) In general. (i) In calculating the export price (or the constructed
export price), the Secretary will deduct the amount of any antidumping
duty or countervailing duty which the exporter or producer:
(A) Paid directly on behalf of the importer; or
(B) Reimbursed to the importer.
(ii) The Secretary will not deduct the amount of any antidumping
duty or countervailing duty paid or reimbursed if the exporter or
producer granted to the importer before initiation of the antidumping
investigation in question a warranty of nonapplicability of antidumping
duties or countervailing duties with respect to subject merchandise
which was:
(A) Sold before the date of publication of the Secretary's order
applicable to the merchandise in question; and
(B) Exported before the date of publication of the Secretary's
final antidumping determination.
(iii) Ordinarily, under paragraph (f)(1)(i) of this section, the
Secretary will deduct the amount reimbursed only once in the
calculation of the export price (or constructed export price).
(2) Certificate. The importer must file prior to liquidation a
certificate in the
---- page 27412 ----
following form with the appropriate District Director of Customs:
I hereby certify that I (have) (have not) entered into any
agreement or understanding for the payment or for the refunding to
me, by the manufacturer, producer, seller, or exporter, of all or
any part of the antidumping duties or countervailing duties assessed
upon the following importations of (commodity) from (country): (List
entry numbers) which have been purchased on or after (date of
publication of antidumping notice suspending liquidation in the
Federal Register) or purchased before (same date) but exported on or
after (date of final determination of sales at less than fair
value).
(3) Presumption. The Secretary may presume from an importer's
failure to file the certificate required in paragraph (f)(2) of this
section that the exporter or producer paid or reimbursed the
antidumping duties or countervailing duties.
Sec. 351.403 Sales used in calculating normal value; transactions
between affiliated parties.
(a) Introduction. This section clarifies when the Secretary may use
offers for sale in determining normal value. Additionally, this section
clarifies the authority of the Secretary to use sales to or through an
affiliated party as a basis for normal value. (See section 773(a)(5) of
the Act (indirect sales or offers for sale).)
(b) Sales and offers for sale. In calculating normal value, the
Secretary normally will consider offers for sale only in the absence of
sales and only if the Secretary concludes that acceptance of the offer
can be reasonably expected.
(c) Sales to an affiliated party. If an exporter or producer sold
the foreign like product to an affiliated party, the Secretary may
calculate normal value based on that sale only if satisfied that the
price is comparable to the price at which the exporter or producer sold
the foreign like product to a person who is not affiliated with the
seller.
(d) Sales through an affiliated party. If an exporter or producer
sold the foreign like product through an affiliated party, the
Secretary may calculate normal value based on the sale by such
affiliated party. However, the Secretary normally will not calculate
normal value based on the sale by an affiliated party if sales of the
foreign like product by an exporter or producer to affiliated parties
account for less than five percent of the total value (or quantity) of
the exporter's or producer's sales of the foreign like product in the
market in question or if sales to the affiliated party are comparable,
as defined in paragraph (c) of this section.
Sec. 351.404 Selection of the market to be used as the basis for
normal value.
(a) Introduction. Although in most circumstances sales of the
foreign like product in the home market are the most appropriate basis
for determining normal value, section 773 of the Act also permits use
of sales to a third country or constructed value as the basis for
normal value. This section clarifies the rules for determining the
basis for normal value.
(b) Determination of viable market. (1) In general. The Secretary
will consider the exporting country or a third country as constituting
a viable market if the Secretary is satisfied that sales of the foreign
like product in that country are of sufficient quantity to form the
basis of normal value.
(2) Sufficient quantity. ``Sufficient quantity'' normally means
that the aggregate quantity (or, if quantity is not appropriate, value)
of the foreign like product sold by an exporter or producer in a
country is 5 percent or more of the aggregate quantity (or value) of
its sales of the subject merchandise to the United States.
(c) Calculation of price-based normal value in viable market. (1)
In general. Subject to paragraph (c)(2) of this section:
(i) If the exporting country constitutes a viable market, the
Secretary will calculate normal value on the basis of price in the
exporting country (see section 773(a)(1)(B)(i) of the Act (price used
for determining normal value)); or
(ii) If the exporting country does not constitute a viable market,
but a third country does constitute a viable market, the Secretary may
calculate normal value on the basis of price to a third country (see
section 773(a)(1)(B)(ii) of the Act (use of third country prices in
determining normal value)).
(2) Exception. The Secretary may decline to calculate normal value
in a particular market under paragraph (c)(1) of this section if it is
established to the satisfaction of the Secretary that:
(i) In the case of the exporting country or a third country, a
particular market situation exists that does not permit a proper
comparison with the export price or constructed export price (see
section 773(a)(1)(B)(ii)(III) or section 773(a)(1)(C)(iii) of the Act);
or
(ii) In the case of a third country, the price is not
representative (see section 773(a)(1)(B)(ii)(I) of the Act).
(d) Allegations concerning market viability and the basis for
determining a price-based normal value. In an antidumping investigation
or review, allegations regarding market viability or the exceptions in
paragraph (c)(2) of this section, must be filed, with all supporting
factual information, in accordance with Sec. 351.301(d)(1).
(e) Selection of third country. For purposes of calculating normal
value based on prices in a third country, where prices in more than one
third country satisfy the criteria of section 773(a)(1)(B)(ii) of the
Act and this section, the Secretary generally will select the third
country based on the following criteria:
(1) The foreign like product exported to a particular third country
is more similar to the subject merchandise exported to the United
States than is the foreign like product exported to other third
countries;
(2) The volume of sales to a particular third country is larger
than the volume of sales to other third countries;
(3) Such other factors as the Secretary considers appropriate.
(f) Third country sales and constructed value. The Secretary
normally will calculate normal value based on sales to a third country
rather than on constructed value if adequate information is available
and verifiable (see section 773(a)(4) of the Act (use of constructed
value)).
Sec. 351.405 Calculation of normal value based on constructed value.
(a) Introduction. In certain circumstances, the Secretary may
determine normal value by constructing a value based on the cost of
manufacture, selling general and administrative expenses, and profit.
The Secretary may use constructed value as the basis for normal value
where: neither the home market nor a third country market is viable;
sales below the cost of production are disregarded; sales outside the
ordinary course of trade, or sales the prices of which are otherwise
unrepresentative, are disregarded; sales used to establish a fictitious
market are disregarded; no contemporaneous sales of comparable
merchandise are available; or in other circumstances where the
Secretary determines that home market or third country prices are
inappropriate. (See section 773(e) and section 773(f) of the Act.) This
section clarifies the meaning of certain terms relating to constructed
value.
(b) Profit and selling, general, and administrative expenses. In
determining the amount to be added to constructed value for profit and
for selling, general, and administrative expenses, the following rules
will apply:
(1) Under section 773(e)(2)(A) of the Act, ``foreign country''
means the country in which the merchandise is produced or a third
country selected by the Secretary under Sec. 351.404(e), as
appropriate.
---- page 27413 ----
(2) Under section 773(e)(2)(B) of the Act, ``foreign country''
means the country in which the merchandise is produced.
Sec. 351.406 Calculation of normal value if sales are made at less
than cost of production.
(a) Introduction. In determining normal value, the Secretary may
disregard sales of the foreign like product made at prices that are
less than the cost of production of that product. However, such sales
will be disregarded only if they are made within an extended period of
time, in substantial quantities, and are not at prices which permit
recovery of costs within a reasonable period of time. (See section
773(b) of the Act.) This section clarifies the meaning of the term
``extended period of time'' as used in the Act.
(b) Extended period of time. The ``extended period of time'' under
section 773(b)(1)(A) of the Act normally will coincide with the period
in which the sales under consideration for the determination of normal
value were made.
Sec. 351.407 Calculation of constructed value and cost of production.
(a) Introduction. This section sets forth certain rules that are
common to the calculation of constructed value and the cost of
production. (See section 773(f) of the Act.)
(b) Determination of value under the major input rule. For purposes
of section 773(f)(3) of the Act, the Secretary normally will determine
the value of a major input purchased from an affiliated person based on
the higher of:
(1) The price paid by the exporter or producer to the affiliated
person for the major input;
(2) The amount usually reflected in sales of the major input in the
market under consideration; or
(3) The cost to the affiliated person of producing the major input.
(c) Allocation of costs. In determining the appropriate method for
allocating costs among products, the Secretary may take into account
production quantities, relative sales values, and other quantitative
and qualitative factors associated with the manufacture and sale of the
subject merchandise and the foreign like product.
(d) Startup costs. (1) In identifying startup operations under
section 773(f)(1)(C)(ii) of the Act:
(i) ``New production facilities'' includes the substantially
complete retooling of an existing plant. Substantially complete
retooling involves the replacement of nearly all production machinery
or the equivalent rebuilding of existing machinery.
(ii) A ``new product'' is one requiring substantial additional
investment, including products which, though sold under an existing
nameplate, involve the complete revamping or redesign of the product.
Routine model year changes will not be considered a new product.
(iii) Mere improvements to existing products or ongoing
improvements to existing facilities will not be considered startup
operations.
(iv) An expansion of the capacity of an existing production line
will not qualify as a startup operation unless the expansion
constitutes such a major undertaking that it requires the construction
of a new facility and results in a depression of production levels due
to technical factors associated with the initial phase of commercial
production of the expanded facilities.
(2) In identifying the end of the startup period under clauses (ii)
and (iii) of section 773(f)(1)(C) of the Act:
(i) The attainment of peak production levels will not be the
standard for identifying the end of the startup period, because the
startup period may end well before a company achieves optimum capacity
utilization.
(ii) The startup period will not be extended to cover improvements
and cost reductions that may occur over the entire life cycle of a
product.
(3) In determining when a producer reaches commercial production
levels under section 773(f)(1)(C)(ii) of the Act:
(i) The Secretary will consider the actual production experience of
the merchandise in question, measuring production on the basis of units
processed.
(ii) To the extent necessary, the Secretary will examine factors in
addition to those specified in section 773(f)(1)(C)(ii) of the Act,
including historical data reflecting the same producer's or other
producers' experiences in producing the same or similar products. A
producer's projections of future volume or cost will be accorded little
weight.
(4) In making an adjustment for startup operations under section
773(f)(1)(C)(iii) of the Act:
(i) The Secretary will determine the duration of the startup period
on a case-by-case basis.
(ii) The difference between actual costs and the costs of
production calculated for startup costs will be amortized over a
reasonable period of time subsequent to the startup period over the
life of the product or machinery, as appropriate.
(iii) The Secretary will consider unit production costs to be items
such as depreciation of equipment and plant, labor costs, insurance,
rent and lease expenses, material costs, and factory overhead. The
Secretary will not consider sales expenses, such as advertising costs,
or other general and administrative or non-production costs (such as
general research and development costs), as startup costs.
Sec. 351.408 Calculation of normal value of merchandise from nonmarket
economy countries.
(a) Introduction. In identifying dumping from a nonmarket economy
country, the Secretary normally will calculate normal value by valuing
the nonmarket economy producers' factors of production in a market
economy country. (See section 773(c) of the Act.) This section
clarifies when and how this special methodology for nonmarket economies
will be applied.
(b) Economic Comparability. In determining whether a country is at
a level of economic development comparable to the nonmarket economy
under section 773(c)(2)(B) or section 773(c)(4)(A) of the Act, the
Secretary will place primary emphasis on per capita GDP as the measure
of economic comparability.
(c) Valuation of Factors of Production. For purposes of valuing the
factors of production, general expenses, profit, and the cost of
containers, coverings, and other expenses (referred to collectively as
``factors'') under section 773(c)(1) of the Act the following rules
will apply:
(1) Information used to value factors. The Secretary normally will
use publicly available information to value factors. However, where a
factor is purchased from a market economy supplier and paid for in a
market economy currency, the Secretary normally will use the price paid
to the market economy supplier. In those instances where a portion of
the factor is purchased from a market economy supplier and the
remainder from a nonmarket economy supplier, the Secretary normally
will value the factor using the price paid to the market economy
supplier.
(2) Valuation in a single country. Except for labor, as provided in
paragraph (d)(3) of this section, the Secretary normally will value all
factors in a single surrogate country.
(3) Labor. For labor, the Secretary will use regression-based wage
rates reflective of the observed relationship between wages and
national income in market economy countries. The Secretary will
calculate the wage rate to
---- page 27414 ----
be applied in nonmarket economy proceedings each year. The calculation
will be based on current data, and will be made available to the
public.
(4) Manufacturing overhead, general expenses, and profit. For
manufacturing overhead, general expenses, and profit, the Secretary
normally will use non-proprietary information gathered from producers
of identical or comparable merchandise in the surrogate country.
Sec. 351.409 Differences in quantities.
(a) Introduction. Because the quantity of merchandise sold may
affect the price, in comparing export price or constructed export price
with normal value, the Secretary will make a reasonable allowance for
any difference in quantities to the extent the Secretary is satisfied
that the amount of any price differential (or lack thereof) is wholly
or partly due to that difference in quantities. (See section
773(a)(6)(C)(i) of the Act.)
(b) Sales with quantity discounts in calculating normal value. The
Secretary normally will calculate normal value based on sales with
quantity discounts only if:
(1) During the period examined, or during a more representative
period, the exporter or producer granted quantity discounts of at least
the same magnitude on 20 percent or more of sales of the foreign like
product for the relevant country; or
(2) The exporter or producer demonstrates to the Secretary's
satisfaction that the discounts reflect savings specifically
attributable to the production of the different quantities.
(c) Sales with quantity discounts in calculating weighted-average
normal value. If the exporter or producer does not satisfy the
conditions of paragraph (b) of this section, the Secretary will
calculate normal value based on weighted-average prices that include
sales at a discount.
(d) Price lists. In determining whether a discount has been
granted, the existence or lack of a published price list reflecting
such a discount will not be controlling. Ordinarily, the Secretary will
give weight to a price list only if, in the line of trade and market
under consideration, the exporter or producer demonstrates that it has
adhered to its price list.
(e) Relationship to level of trade adjustment. If adjustments are
claimed for both differences in quantities and differences in level of
trade, the Secretary will not make an adjustment for differences in
quantities unless the Secretary is satisfied that the effect on price
comparability of differences in quantities has been identified and
established separately from the effect on price comparability of
differences in the levels of trade.
Sec. 351.410 Differences in circumstances of sale
(a) Introduction. In calculating normal value the Secretary may
make adjustments to account for certain differences in the
circumstances of sales in the United States and foreign markets. (See
section 773(a)(6)(C)(iii) of the Act.) This section clarifies certain
terms used in the statute regarding circumstances of sale adjustments
and describes the adjustment when commissions are paid only in one
market.
(b) In general. With the exception of the allowance described in
paragraph (e) of this section concerning commissions paid in only one
market, the Secretary will make circumstances of sale adjustments under
section 773(a)(6)(C)(iii) of the Act only for direct selling expenses
and assumed expenses.
(c) Direct selling expenses. ``Direct selling expenses'' are
expenses, such as commissions, credit expenses, guarantees, and
warranties, that result from, and bear a direct relationship to, the
particular sale in question.
(d) Assumed expenses. Assumed expenses are selling expenses that
are assumed by the seller on behalf of the buyer, such as advertising
expenses.
(e) Commissions paid in one market. The Secretary normally will
make a reasonable allowance for other selling expenses if the Secretary
makes a reasonable allowance for commissions in one of the markets
under considerations, and no commission is paid in the other market
under consideration. The Secretary will limit the amount of such
allowance to the amount of the other selling expenses incurred in the
one market or the commissions allowed in the other market, whichever is
less.
(f) Reasonable allowance. In deciding what is a reasonable
allowance for any difference in circumstances of sale, the Secretary
normally will consider the cost of such difference to the exporter or
producer but, if appropriate, may also consider the effect of such
difference on the market value of the merchandise.
Sec. 351.411 Differences in physical characteristics.
(a) Introduction. In comparing United States sales with foreign
market sales, the Secretary may determine that the merchandise sold in
the United States does not have the same physical characteristics as
the merchandise sold in the foreign market, and that the difference has
an effect on prices. In calculating normal value, the Secretary will
make a reasonable allowance for such differences. (See section
773(a)(6)(C)(ii) of the Act.)
(b) Reasonable allowance. In deciding what is a reasonable
allowance for differences in physical characteristics, the Secretary
will consider only differences in variable costs associated with the
physical differences. Where appropriate, the Secretary may also
consider differences in the market value. The Secretary will not
consider differences in cost of production when compared merchandise
has identical physical characteristics.
Sec. 351.412 Levels of trade; adjustment for difference in level of
trade; constructed export price offset.
(a) Introduction. In comparing United States sales with foreign
market sales, the Secretary may determine that sales in the two markets
were not made at the same level of trade, and that the difference has
an effect on the comparability of the prices. The Secretary is
authorized to adjust normal value to account for such a difference.
(See section 773(a)(7) of the Act.)
(b) Adjustment for difference in level of trade. The Secretary will
adjust normal value for a difference in level of trade if:
(1) The Secretary calculates normal value at a different level of
trade from the level of trade of the export price or the constructed
export price (whichever is applicable); and
(2) The Secretary determines that the difference in level of trade
has an effect on price comparability.
(c) Identifying levels of trade and differences in levels of trade.
(1) Basis for identifying levels of trade. The Secretary will identify
the level of trade based on:
(i) In the case of export price, the starting price;
(ii) In the case of constructed export price, the starting price,
as adjusted under section 772(d) of the Act; and
(iii) In the case of normal value, the starting price or
constructed value.
(2) Differences in levels of trade. The Secretary will determine
that sales are made at different levels of trade if they are made at
different marketing stages (or their equivalent). Substantial
differences in selling activities are a necessary, but not sufficient,
condition for determining that there is a difference in the stage of
marketing. Some overlap in selling activities will not preclude a
determination that two sales are at different stages of marketing.
(d) Effect on price comparability. (1) In general. The Secretary
will determine that a difference in level of trade has an
---- page 27415 ----
effect on price comparability only if it is established to the
satisfaction of the Secretary that there is a pattern of consistent
price differences between sales in the market in which normal value is
determined:
(i) At the level of trade of the export price or constructed export
price (whichever is appropriate); and
(ii) At the level of trade at which normal value is determined.
(2) Relevant sales. Where possible, the Secretary will make the
determination under paragraph (d)(1) of this section on the basis of
sales of the foreign like product by the producer or exporter. Where
this is not possible, the Secretary may use sales of different or
broader product lines, sales by other companies, or any other
reasonable basis.
(e) Amount of adjustment. The Secretary normally will calculate the
amount of a level of trade adjustment by:
(1) Calculating the weighted-averages of the prices of sales at the
two levels of trade identified in paragraph (d), after making any other
adjustments to those prices appropriate under section 773(a)(6) of the
Act and this subpart;
(2) Calculating the average of the percentage differences between
those weighted-average prices; and
(3) Applying the percentage difference to normal value, where it is
at a different level of trade from the export price or constructed
export price (whichever is applicable), after making any other
adjustments to normal value appropriate under section 773(a)(6) of the
Act and this subpart.
(f) Constructed export price offset. (1) In general. The Secretary
will grant a constructed export price offset only where:
(i) Normal value is compared to constructed export price;
(ii) Normal value is determined at a more advanced level of trade
than the level of trade of the constructed export price; and
(iii) Despite the fact that a person has cooperated to the best of
its ability, the data available do not provide an appropriate basis to
determine under paragraph (d) of this section whether the difference in
level of trade affects price comparability.
(2) Amount of the offset. The amount of the constructed export
price offset will be the amount of indirect selling expenses included
in normal value, up to the amount of indirect selling expenses deducted
in determining constructed export price. In making the constructed
export price offset, ``indirect selling expenses'' means selling
expenses, other than direct selling expenses or assumed selling
expenses (see Sec. 351.410), that the seller would incur regardless of
whether particular sales were made, but that reasonably may be
attributed, in whole or in part, to such sales.
(3) Where data permit determination of affect on price
comparability. Where available data permit the Secretary to determine
under paragraph (d) of this section whether the difference in level of
trade affects price comparability, the Secretary will not grant a
constructed export price offset. In such cases, if the Secretary
determines that price comparability has been affected, the Secretary
will make a level of trade adjustment. If the Secretary determines that
price comparability has not been affected, the Secretary will not grant
either a level of trade adjustment or a constructed export price
offset.
Sec. 351.413 Disregarding insignificant adjustments.
Ordinarily, under section 777A(a)(2) of the Act, an ``insignificant
adjustment'' is any individual adjustment having an ad valorem effect
of less than 0.33 percent, or any group of adjustments having an ad
valorem effect of less than 1.0 percent, of the export price,
constructed export price, or normal value, as the case may be. Groups
of adjustments are adjustments for differences in circumstances of sale
under Sec. 351.410, adjustments for differences in the physical
characteristics of the merchandise under Sec. 351.411, and adjustments
for differences in the levels of trade under Sec. 351.412.
Sec. 351.414 Comparison of normal value with export price (constructed
export price).
(a) Introduction. The Secretary normally will average prices used
as the basis for normal value and, in an investigation, prices used as
the basis for export price or constructed export price as well. This
section explains when and how the Secretary will average prices in
making comparisons of export price or constructed export price with
normal value. (See section 777A(d) of the Act.)
(b) Description of methods of comparison. (1) Average-to-average
method. The ``average-to-average'' method involves a comparison of the
weighted average of the normal values with the weighted average of the
export prices (and constructed export prices) for comparable
merchandise.
(2) Transaction-to-transaction method. The ``transaction-to-
transaction'' method involves a comparison of the normal values of
individual transactions with the export prices (or constructed export
prices) of individual transactions for comparable merchandise.
(3) Average-to-transaction method. The ``average-to-transaction''
method involves a comparison of the weighted average of the normal
values to the export prices (or constructed export prices) of
individual transactions for comparable merchandise.
(c) Preferences. (1) In an investigation, the Secretary normally
will use the average-to-average method. The Secretary will use the
transaction-to-transaction method only in unusual situations, such as
when there are very few sales of subject merchandise and the
merchandise sold in each market is identical or very similar or is
custom-made.
(2) In a review, the Secretary normally will use the average-to-
transaction method.
(d) Application of the average-to-average method. (1) In general.
In applying the average-to-average method, the Secretary will identify
those sales of the subject merchandise to the United States that are
comparable, and will include such sales in an ``averaging group.'' The
Secretary will calculate a weighted average of the export prices and
the constructed export prices of the sales included in the averaging
group, and will compare this weighted average to the weighted average
of the normal values of such sales.
(2) Identification of the averaging group. An averaging group will
consist of subject merchandise that is identical or virtually identical
in all physical characteristics and that is sold to the United States
at the same level of trade. In identifying sales to be included in an
averaging group, the Secretary also will take into account, where
appropriate, the region of the United States in which the merchandise
is sold, and such other factors as the Secretary considers relevant.
(3) Time period over which weighted average is calculated. When
applying the average-to-average method, the Secretary normally will
calculate weighted averages for the entire period of investigation or
review, as the case may be. However, when normal values, export prices,
or constructed export prices differ significantly over the course of
the period of investigation or review, the Secretary may calculate
weighted averages for such shorter period as the Secretary deems
appropriate.
(e) Application of the average-to-transaction method. (1) In
general. In applying the average-to-transaction method in a review,
when normal value is based on the weighted average of sales of the
foreign like product, the
---- page 27416 ----
Secretary will limit the averaging of such prices to sales incurred
during the contemporaneous month.
(2) Contemporaneous month. Normally, the Secretary will select as
the contemporaneous month the first of the following which applies:
(i) The month during which the particular U.S. sale under
consideration was made;
(ii) If there are no sales of the foreign like product during this
month, the most recent of the three months prior to the month of the
U.S. sale in which there was a sale of the foreign like product.
(iii) If there are no sales of the foreign like product during any
of these months, the earlier of the two months following the month of
the U.S. sale in which there was a sale of the foreign like product.
(f) Targeted dumping. (1) In general. Notwithstanding paragraph
(c)(1) of this section, the Secretary may apply the average-to-
transaction method, as described in paragraph (e) of this section, in
an antidumping investigation if:
(i) As determined through the use of, among other things, standard
and appropriate statistical techniques, there is targeted dumping in
the form of a pattern of export prices (or constructed export prices)
for comparable merchandise that differ significantly among purchasers,
regions, or periods of time; and
(ii) The Secretary determines that such differences cannot be taken
into account using the average-to-average method or the transaction-to-
transaction method and explains the basis for that determination.
(2) Limitation of average-to-transaction method to targeted
dumping. Where the criteria for identifying targeted dumping under
paragraph (f)(1) of this section are satisfied, the Secretary normally
will limit the application of the average-to-transaction method to
those sales that constitute targeted dumping under paragraph (f)(1)(i)
of this section.
(3) Allegations concerning targeted dumping. The Secretary normally
will examine only targeted dumping described in an allegation, filed
within the time indicated in Sec. 351.301(d)(5). Allegations must
include all supporting factual information, and an explanation as to
why the average-to-average or transaction-to-transaction method could
not take into account any alleged price differences.
(g) Requests for information. In an investigation, the Secretary
will request information relevant to the identification of averaging
groups under paragraph (d)(2) of this section and to the analysis of
possible targeted dumping under paragraph (f) of this section. If a
response to a request for such information is such as to warrant the
application of the facts otherwise available, within the meaning of
section 776 of the Act and Sec. 351.308, the Secretary may apply the
average-to-transaction method to all the sales of the producer or
exporter concerned.
Sec. 351.415 Conversion of currency.
(a) In general. In an antidumping proceeding, the Secretary will
convert foreign currencies into United States dollars using the rate of
exchange on the date of sale of the subject merchandise.
(b) Exception. If the Secretary establishes that a currency
transaction on forward markets is directly linked to an export sale
under consideration, the Secretary will use the exchange rate specified
with respect to such foreign currency in the forward sale agreement to
convert the foreign currency.
(c) Exchange rate fluctuations. The Secretary will ignore
fluctuations in exchange rates.
(d) Sustained movement in foreign currency value. In an antidumping
investigation, if there is a sustained movement increasing the value of
the foreign currency relative to the United States dollar, the
Secretary will allow exporters 60 days to adjust their prices to
reflect such sustained movement.
Subpart E--[Reserved]
Subpart F--Subsidy Determinations Regarding Cheese Subject to an
In-Quota Rate of Duty
Sec. 351.601 Annual list and quarterly update of subsidies.
The Secretary will make the determinations called for by section
702(a) of the Trade Agreements Act of 1979, as amended (19 U.S.C. 1202
note) based on the available information, and will publish the annual
list and quarterly updates described in such section in the Federal
Register.
Sec. 351.602 Determination upon request.
(a) Request for determination. (1) Any person, including the
Secretary of Agriculture, who has reason to believe there have been
changes in or additions to the latest annual list published under
Sec. 351.601 may request in writing that the Secretary determine under
section 702(a)(3) of the Trade Agreements Act of 1979 whether there are
any changes or additions. The person must file the request with the
Central Records Unit (see Sec. 351.103). The request must allege either
a change in the type or amount of any subsidy included in the latest
annual list or quarterly update or an additional subsidy not included
in that list or update provided by a foreign government, and must
contain the following, to the extent reasonably available to the
requesting person:
(i) The name and address of the person;
(ii) The article of cheese subject to an in-quota rate of duty
allegedly benefitting from the changed or additional subsidy;
(iii) The country of origin of the article of cheese subject to an
in-quota rate of duty; and
(iv) The alleged subsidy or changed subsidy and relevant factual
information (particularly documentary evidence) regarding the alleged
changed or additional subsidy including the authority under which it is
provided, the manner in which it is paid, and the value of the subsidy
to producers or exporters of the article.
(2) The requirements of Sec. 351.303 (c) and (d) apply to this
section.
(b) Determination. Not later than 30 days after receiving an
acceptable request, the Secretary will:
(1) In consultation with the Secretary of Agriculture, determine
based on the available information whether there has been any change in
the type or amount of any subsidy included in the latest annual list or
quarterly update or an additional subsidy not included in that list or
update is being provided by a foreign government;
(2) Notify the Secretary of Agriculture and the person making the
request of the determination; and
(3) Promptly publish in the Federal Register notice of any changes
or additions.
Sec. 351.603 Complaint of price-undercutting by subsidized imports.
Upon receipt of a complaint filed with the Secretary of Agriculture
under section 702(b) of the Trade Agreements Act concerning price-
undercutting by subsidized imports, the Secretary will promptly
determine, under section 702(a)(3) of the Trade Agreements Act of 1979,
whether or not the alleged subsidies are included in or should be added
to the latest annual list or quarterly update.
Sec. 351.604 Access to information.
Subpart C of this part applies to factual information submitted in
connection with this subpart.
Subpart G--Applicability Dates
Sec. 351.701 Applicability dates.
The regulations contained in this part 351 apply to all
administrative reviews initiated on the basis of requests made
---- page 27417 ----
on or after the first day of July, 1997, to all investigations and
other segments of proceedings initiated on the basis of petitions filed
or requests made after June 18, 1997 and to segments of proceedings
self-initiated by the Department after June 18, 1997. Segments of
proceedings to which part 351 do not apply will continue to be governed
by the regulations in effect on the date the petitions were filed or
requests were made for those segments, to the extent that those
regulations were not invalidated by the URAA or replaced by the interim
final regulations published on May 11, 1995 (60 FR 25130 (1995)). For
segments of proceedings initiated on the basis of petitions filed or
requests made after January 1, 1995, but before part 351 applies, part
351 will serve as a restatement of the Department's interpretation of
the requirements of the Act as amended by the URAA.
Annex I.--Deadlines for Parties in Countervailing Investigations
------------------------------------------------------------------------
Day {1} Event Regulation
------------------------------------------------------------------------
0 days...................... Initiation.......... ....................
31 days {2}................. Notification of 351.301(c)(2)(iv)
difficulty in (14 days after date
responding to of receipt of
questionnaire. initial
questionnaire).
37 days..................... Application for an 351.305(b)(3).
administrative
protective order.
40 days..................... Request for 351.205(e) (25 days
postponement by or more before
petitioner. preliminary
determination).
45 days..................... Allegation of 351.206(c)(2)(i) (20
critical days before
circumstances. preliminary
determination).
47 days..................... Questionnaire 351.301(c)(2)(iii)
response. (30 days from date
of receipt of
initial
questionnaire).
55 days..................... Allegation of 351.301(d)(4)(ii)(A)
upstream subsidies. (10 days before
preliminary
determination).
65 days (Can be extended)... Preliminary 351.205(b)(1).
determination.
72 days..................... Submission of 351.208(f)(1)(B) (7
proposed suspension days after
agreement. preliminary
determination).
75 days {3}................. Submission of 351.301(b)(1) (7
factual information. days before date on
which verification
is to commence).
75 days..................... Submission of 351.224(c)(2) (5
ministerial error days after release
comments. of disclosure
documents).
77 days {4}................. Request to align a 351.210(i) (5 days
CVD case with a after date of
concurrent AD case. publication of
preliminary
determination).
102 days.................... Request for a 351.310(c) (30 days
hearing. after date of
publication of
preliminary
determination).
119 days.................... Critical 351.206(e) (21 days
circumstances or more before
allegation. final
determination).
122 days.................... Requests for closed 351.310(f) (No later
hearing sessions. than the date the
case briefs are
due).
122 days.................... Submission of briefs 351.309(c)(1)(i) (50
days after date of
publication of
preliminary
determination).
125 days.................... Allegation of 351.301(d)(4)(ii)(B)
upstream subsidies. (15 days before
final
determination).
127 days.................... Submission of 351.309(d) (5 days
rebuttal briefs. after dead-line for
filing case brief).
129 days.................... Hearing............. 351.310(d)(1) (2
days after
submission of
rebuttal briefs).
140 days (Can be extended).. Final determination. 351.210(b)(1) (75
days after
preliminary
determination).
150 days.................... Submission of 351.224(c)(2) (5
ministerial error days after release
comments. of disclosure
documents).
155 days.................... Submission of 351.224(c)(3) (5
replies to days after filing
ministerial error of comments).
comments.
192 days.................... Order issued........ 351.211(b).
------------------------------------------------------------------------
{1} Indicates the number of days from the date of initiation. Most of
the deadlines shown here are approximate. The actual deadline in any
particular segment of a proceeding may depend on the date of an
earlier event or be established by the Secretary.
{2} Assumes that the Department sends out the questionnaire within 10
days of the initiation and allows 7 days for receipt of the
questionnaire from the date on which it was transmitted.
{3} Assumes about 17 days between the preliminary determination and
verification.
{4} Assumes that the preliminary determination is published 7 days after
issuance (i.e., signature).
Annex II.--Deadlines for Parties in Countervailing Administrative
Reviews
------------------------------------------------------------------------
Day {1} Event Regulation
------------------------------------------------------------------------
0 days...................... Request for review.. 351.213(b) (Last day
of the anniversary
month).
30 days..................... Publication of 351.221(c)(1)(i)
initiation notice. (End of month
following the
anniversary month).
66 days {2}................. Notification of 351.301(c)(2)(iv)
difficulty in (14 days after date
responding to of receipt of
questionnaire. initial
questionnaire).
75 days..................... Application for an 351.305(b)(3).
administrative
protective order.
---- page 27418 ----
90 days {3}................. Questionnaire 351.301(c)(2)(iii)
response. (At least 30 days
after date of
receipt of initial
questionnaire).
120 days.................... Withdrawal of 351.213(d)(1) (90
request for review. days after date of
publication of
initiation).
130 days.................... Request for 351.307(b)(1)(v)
verification. (100 days after
date of publication
of initiation).
140 days.................... Submission of 351.301(b)(2).
factual information.
245 days (Can be extended).. Preliminary results 351.213(h)(1).
of review.
282 days {4}................ Request for a 351.310(c);
hearing and/or 351.310(f) (30 days
closed hearing after date of
session. publication of
preliminary
results).
282 days.................... Submission of briefs 351.309(c)(1)(ii)
(30 days after date
of publication of
preliminary
results).
287 days.................... Submission of 351.309(d)(1) (5
rebuttal briefs. days after deadline
for filing case
briefs).
289 days.................... Hearing............. 351.310(d)(1) (2
days after
submission of
rebuttal briefs).
372 days (Can be extended).. Final results of 351.213(h)(1) (120
review. days after date of
publication of
preliminary
results).
382 days.................... Submission of 351.224(c)(2) (5
ministerial error days after release
comments. of disclosure
documents).
387 days.................... Replies to 351.224(c)(3) (5
ministerial error days after filing
comments. of comments).
------------------------------------------------------------------------
{1} Indicates the number of days from the end of the anniversary month.
Most of the deadlines shown here are approximate. The actual deadline
in any particular segment of a proceeding may depend on the date of an
earlier event or be established by the Secretary.
{2} Assumes that the Department sends out the questionnaire 45 days
after the last day of the anniversary month and allows 7 days for
receipt of the questionnaire from the date on which it was
transmitted.
{3} Assumes that the Department sends out the questionnaire on day 45
and the response is due 45 days later.
{4} Assumes that the preliminary results are published 7 days after
issuance (i.e., signature).
Annex III.--Deadlines for Parties in Antidumping Investigations
------------------------------------------------------------------------
Day {1} Event Regulation
------------------------------------------------------------------------
0 days...................... Initiation.......... ....................
37 days..................... Application for an 351.305(b)(3).
administrative
protective order.
50 days..................... Country-wide cost 351.301(d)(2)(i)(A)
allegation. (20 days after date
on which initial
questionnaire was
transmitted).
51 days {2}................. Notification of 351.301(c)(2)(iv)
difficulty in (Within 14 days
responding to after date of
questionnaire. receipt of initial
questionnaire).
51 days..................... Section A response.. None.
67 days..................... Sections B, C, D, E 351.301(c)(2)(iii)
responses. (At least 30 days
after date of
receipt of initial
questionnaire).
70 days..................... Viability arguments. 351.301(d)(1) (40
days after date on
which initial
questionnaire was
transmitted).
87 days..................... Company-specific 351.301(d)(2)(i)(B).
cost allegations.
87 days..................... Major input cost 351.301(d)(3).
allegations.
115 days.................... Request for 351.205(e) (25 days
postponement by or more before
petitioner. preliminary
determination).
120 days.................... Allegation of 351.206(c)(2)(i) (20
critical days before
circumstances. preliminary
determination).
140 days (Can be extended).. Preliminary 351.205(b)(1).
determination.
150 days.................... Submission of 351.224(c)(2) (5
ministerial error days after release
comments. of disclosure
documents).
155 days.................... Submission of 351.208(f)(1)(A) (15
proposed suspension days after
agreement. preliminary
determination).
161 days {3}................ Submission of 351.301(b)(1) (7
factual information. days before date on
which verification
is to commence).
177 days {4}................ Request for a 351.310(c) (30 days
hearing. after date of
publication of
preliminary
determination).
187 days.................... Submission of 351.301(c)(3)(i) (40
publicly available days after date of
information to publication of
value factors preliminary
(NME's). determination).
194 days.................... Critical 351.206(e) (21 days
circumstance before final
allegation. determination).
197 days (Can be changed)... Request for closed 351.310(f) (No later
hearing sessions. than the date the
case briefs are
due).
197 days (Can be changed)... Submission of briefs 351.309(c)(1)(i) (50
days after date of
publication of
preliminary
determination).
202 days.................... Submission of 351.309(d) (5 days
rebuttal briefs. after dealine for
filing case
briefs).
204 days.................... Hearing............. 351.310(d)(1) (2
days after
submission of
rebuttal briefs).
---- page 27419 ----
215 days.................... Request for 351.210(e).
postponement of the
final determination.
215 days (Can be extended).. Final determination. 351.210(b)(1) (75
days after
preliminary
determination).
225 days.................... Submission 351.224(c)(2) (5
ministerial error days after release
comments. of disclosure
documents).
230 days.................... Replies to 351.224(c)(3) (5
ministerial error days after filing
comments. of comments).
267 days.................... Order issued........ 351.211(b).
------------------------------------------------------------------------
{1} Indicates the number of days from the date of initiation. Most of
the deadlines shown here are approximate. The actual deadline in any
particular segment of a proceeding may depend on the date of an
earlier event or be established by the Secretary.
{2} Assumes that the Department sends out the questionnaire 5 days after
the ITC vote and allows 7 days for receipt of the questionnaire from
the date on which it was transmitted.
{3} Assumes about 28 days between the preliminary determination and
verification.
{4} Assumes that the preliminary determination is published 7 days after
issuance (i.e., signature).
Annex IV.--Deadlines for Parties in Antidumping Administrative Reviews
------------------------------------------------------------------------
Day{1} Event Regulation
------------------------------------------------------------------------
0 days...................... Request for review.. 351.213(b) (Last day
of the anniversary
month).
30 days..................... Publication of 351.221 (c)(1)(i)
initiation. (End of month
following the
anniversary month).
37 days..................... Application for an 351.305(b)(3).
administrative
protective order.
60 days..................... Request to examine 351.213(j) (30 days
absorption of after date of
duties (AD). publication of
initiation).
66 days {2}................. Notification of 351.301(c)(2)(iv)
difficulty in (14 days after date
responding to of receipt of
questionnaire. initial
questionnaire).
66 days..................... Section A response.. None.
85 days..................... Viability arguments. 351.301(d)(1) (40
days after date of
transmittal of
initial
questionnaire).
90 days{3}.................. Sections B, C, D, E 351.301(c)(2)(iii)
response. (At least 30 days
after date of
receipt of initial
questionnaire).
110 days.................... Company-specific 351.301(d)(2)(i)(B)
cost allegations. (20 days after
relevant section is
filed).
110 days.................... Major input cost 351.301(d)(3) (20
allegations. days after relevant
section is filed).
120 days.................... Withdrawal of 351.213(d)(1) (90
request for review. days after date of
publication of
initiation)
130 days.................... Request for 351.307(b)(1)(v)
verification. (100 days after
date of publication
of initiation).
140 days.................... Submission of 351.301(b)(2).
factual information.
245 days (Can be extended).. Preliminary results 351.213(h)(1).
of review.
272 days{4}................. Submission of 351.301(c)(3)(ii)
publicly available (20 days after date
information to of publication of
value factors preliminary
(NME's). results).
282 days.................... Request for a 351.310(c);
hearing and/or 351.310(f) (30 days
closed hearing after date of
session. publication of
preliminary
results).
282 days.................... Submission of briefs 351.309(c)(1)(ii)
(30 days after date
of publication of
preliminary
results).
287 days.................... Submission of 351.309(d)(1) (5
rebuttal briefs. days after deadline
for filing case
briefs).
289 days.................... Hearing; closed 351.310(d)(1) (2
hearing session. days after
submission of
rebuttal briefs).
372 days (Can be extended).. Final results of 351.213(h)(1) (120
review. days after date of
publication of
preliminary
results).
382 days.................... Ministerial error 351.224(c)(2) (5
comments. days after release
of disclosure
documents).
387 days.................... Replies to 351.224(c)(3) (5
ministerial error days after filing
comments. of comments).
------------------------------------------------------------------------
{1} Indicates the number of days from the end of the anniversary month.
Most of the deadlines shown here are approximate. The actual deadline
in any particular segment of a proceeding may depend on the date of an
earlier event or be established by the Secretary.
{2} Assumes that the Department sends out the questionnaire 45 days
after the last day of the anniversary month and allows 7 days for
receipt of the questionnaire from the date on which it was
transmitted.
{3} Assumes that the Department sends out the questionnaire on day 45
and the response is due 45 days later.
{4} Assumes that the preliminary results are published 7 days after
issuance (i.e., signature).
---- page 27420 ----
Annex V.--Comparison of Prior and New Regulations
----------------------------------------------------------------------------------------------------------------
Prior New Description
----------------------------------------------------------------------------------------------------------------
PART 353--ANTIDUMPING DUTIES
----------------------------------------------------------------------------------------------------------------
Subpart A--Scope and Definitions
----------------------------------------------------------------------------------------------------------------
353.1.................................... 351.101................................. Scope of regulations.
353.2.................................... 351.102................................. Definitions.
353.3.................................... 351.104................................. Record of proceedings.
353.4.................................... 351.105................................. Public, proprietary,
privileged & classified.
353.5.................................... Removed................................. Trade and Tariff Act of
1984 amendments.
353.6.................................... 351.106................................. De minimis weighted-average
dumping margin.
----------------------------------------------------------------------------------------------------------------
Subpart B--Antidumping Duty Procedures
----------------------------------------------------------------------------------------------------------------
353.11................................... 351.201................................. Self-initiation.
353.12................................... 351.202................................. Petition requirements.
353.13................................... 351.203................................. Determination of
sufficiency of petition.
353.14................................... 351.204(e).............................. Exclusion from antidumping
duty order.
353.15................................... 351.205................................. Preliminary determination.
353.16................................... 351.206................................. Critical circumstances.
353.17................................... 351.207................................. Termination of
investigation.
353.18................................... 351.208................................. Suspension of
investigation.
353.19................................... 351.209................................. Violation of suspension
agreement.
353.20................................... 351.210................................. Final determination.
353.21................................... 351.211................................. Antidumping duty order.
353.21(c)................................ 351.204(e).............................. Exclusion from antidumping
duty order.
1353.22 (a)-(d).......................... 351.213,................................ Administrative reviews
351.221................................. under 751(a) of the Act.
353.22(e)................................ 351.212(c).............................. Automatic assessment of
duties.
353.22(f)................................ 351.216,................................ Changed circumstances
351.221(c)(3)........................... reviews.
353.22(g)................................ 351.215,................................ Expedited antidumping
351.221(c)(2)........................... review.
353.23................................... 351.212(d).............................. Provisional measures
deposit cap.
353.24................................... 351.212(e).............................. Interest on overpayments
and under-payments.
353.25................................... 351.222................................. Revocation of orders;
termination of suspended
investigations.
353.26................................... 351.402(f).............................. Reimbursement of duties.
353.27................................... 351.223................................. Downstream product
monitoring.
353.28................................... 351.224................................. Correction of ministerial
errors.
353.29................................... 351.225................................. Scope rulings.
----------------------------------------------------------------------------------------------------------------
Subpart C--Information and Argument
----------------------------------------------------------------------------------------------------------------
353.31 (a)-(c)........................... 351.301................................. Time Limits for submission
of factual information.
353.31(a)(3)............................. 351.301(d),............................. Return of untimely
351.104(a)(2)........................... material.
353.31(b)(3)............................. 351.302(c).............................. Request for extension of
time.
353.31 (d)-(i)........................... 351.303................................. Filing, format,
translation, service and
certification.
353.32................................... 351.304................................. Request for proprietary
treatment of information.
353.33................................... 351.104, 351.304(a)(2).................. Information exempt from
disclosure.
353.34................................... 351.305, 351.306........................ Disclosure of information
under protective order.
353.35................................... Removed................................. Ex parte meeting.
353.36................................... 351.307................................. Verification.
353.37................................... 351.308................................. Determination on the basis
of the facts available.
353.38 (a)-(e)........................... 351.309................................. Written argument.
353.38(f)................................ 351.310................................. Hearings.
----------------------------------------------------------------------------------------------------------------
Subpart D--Calculation of Export Price, Constructed Export Price, Fair Value and Normal Value
----------------------------------------------------------------------------------------------------------------
353.41................................... 351.402................................. Calculation of export
price.
353.42(a)................................ 351.102................................. Fair value (definition).
353.42(b)................................ 351.104(c).............................. Transaction and persons
examined.
353.43................................... 351.403(b).............................. Sales used in calculating
normal value.
353.44................................... Removed................................. Sales at varying prices.
353.45................................... 351.403................................. Transactions between
affiliated parties.
353.46................................... 351.404................................. Selection of home market as
the basis for normal
value.
353.47................................... Removed................................. Intermediate countries.
353.48................................... 351.404................................. Basis for normal value if
home market sales are
inadequate.
353.49................................... 351.404................................. Sales to a third country.
353.50................................... 351.405, 351.407........................ Calculation of normal value
based on constructed
value.
353.51................................... 351.406, 351.407........................ Sales at less than the cost
of production.
353.52................................... 351.408................................. Nonmarket economy
countries.
353.53................................... Removed................................. Multinational corporations.
---- page 27421 ----
353.54................................... 351.401(b).............................. Claims for adjustments.
353.55................................... 351.409................................. Differences in quantities.
353.56................................... 351.410................................. Differences in
circumstances of sale.
353.57................................... 351.411................................. Differences in physical
characteristics.
353.58................................... 351.412................................. Levels of trade.
353.59(a)................................ 351.413................................. Insignificant adjustments.
353.59(b)................................ 351.414................................. Use of averaging.
353.60................................... 351.415................................. Conversion of currency.
----------------------------------------------------------------------------------------------------------------
PART 355--COUNTERVAILING DUTIES
----------------------------------------------------------------------------------------------------------------
Subpart A--Scope and Definitions
----------------------------------------------------------------------------------------------------------------
355.1.................................... 351.001................................. Scope of regulations.
355.2.................................... 351.002................................. Definitions.
355.3.................................... 351.004................................. Record of proceeding.
355.4.................................... 351.005................................. Public, proprietary,
privileged & classified.
355.5.................................... 351.003(a).............................. Subsidy library.
355.6.................................... Removed................................. Trade and Tariff Act of
1984 amendments.
355.7.................................... 351.006................................. De minimis net subsidies.
----------------------------------------------------------------------------------------------------------------
Subpart B--Countervailing Duty Procedures
----------------------------------------------------------------------------------------------------------------
355.11................................... 351.101................................. Delf-initiation.
355.12................................... 351.102................................. Petition requirements.
355.13................................... 351.103................................. Determination of
sufficiency of petition.
355.14................................... 351.104(e).............................. Exclusion from
countervailing duty order.
355.15................................... 351.105................................. Preliminary determination.
355.16................................... 351.106................................. Critical circumstances.
355.17................................... 351.107................................. Termination of
investigation.
355.18................................... 351.108................................. Suspension of
investigation.
355.19................................... 351.109................................. Violation of agreement.
355.20................................... 351.110................................. Final determination.
355.21................................... 351.111................................. Countervailing duty order.
355.21(c)................................ 351.104(e).............................. Exclusion from
countervailing duty order.
355.22 (a)-(c)........................... 351.113, 351.121........................ Administrative reviews
under 751(a) of the Act.
355.22(d)................................ Removed................................. Calculation of individual
rates.
355.22(e)................................ 351.113(h).............................. Possible cancellation or
revision of suspension
agreements.
355.22(f)................................ Removed................................. Review of individual
producer or exporter.
355.22(g)................................ 351.112(c).............................. Automatic assessment of
duties
355.22(h)................................ 351.116,................................ Changed circumstances
351.121(c)(3)........................... review
355.22(i)................................ 351.120,................................ Review at the direction of
351.221(c)(7)........................... the President.
355.23................................... 351.112(d).............................. Provisional measures
deposit cap
355.24................................... 351.112(e).............................. Interest on overpayments
and underpayments.
355.25................................... 351.112................................. Revocation of orders;
termination of suspended
investigations.
355.27................................... 351.123................................. Downstream product
monitoring.
355.28................................... 351.124................................. Correction of ministerial
errors.
355.29................................... 351.125................................. Scope determinations.
----------------------------------------------------------------------------------------------------------------
Subpart C--Information and Argument
----------------------------------------------------------------------------------------------------------------
355.31 (a)-(c)........................... 351.301................................. Time limits for submission
of factual information.
355.31(a)(3)............................. 351.302(d),............................. Return of untimely
351.104(a)(2)........................... material.
355.31(b)(3)............................. 351.302(c).............................. Request for extension of
time.
355.31 (d)-(i)........................... 351.303................................. Filing, format,
translation, service and
certification.
355.32................................... 351.304................................. Request for proprietary
treatment of information.
355.33................................... 351.104,................................ Information exempt from
351.304(a)(2)........................... disclosure.
355.34................................... 351.305,................................ Disclosure of information
351.306................................. under protective order.
355.35................................... Removed................................. Ex parte meeting.
355.36................................... 351.307................................. Verification.
355.37................................... 351.308................................. Determinations on the basis
of the facts available.
355.38 (a)-(e)........................... 351.309................................. Written argument.
355.38(f)................................ 351.310................................. Hearings.
355.39................................... 351.311................................. Subsidy practice discovered
during investigation or
review.
----------------------------------------------------------------------------------------------------------------
Subpart D--Quota Cheese Subsidy Determinations
----------------------------------------------------------------------------------------------------------------
355.41................................... Removed................................. Definition of subsidy.
---- page 27422 ----
355.42................................... 351.601................................. Annual list and quarterly
update.
355.43................................... 351.602................................. Determination upon request.
355.44................................... 351.603................................. Complaint of price-
undercutting.
355.45................................... 351.604................................. Access to information.
----------------------------------------------------------------------------------------------------------------
---- page 27423 ----
Annex VI--Countervailing Investigations Timeline
>>>>27423_01 See the accompanying hardcopy volume for non-
machine-readable data that appears at this point. <<<<
---- page 27424 ----
Annex VII--Antidumping Investigations Timeline
>>>>27424_01 See the accompanying hardcopy volume for non-
machine-readable data that appears at this point. <<<<