63 FR 55364, October 15, 1998 DEPARTMENT OF COMMERCE International Trade Administration Change in Policy Regarding Timing of Issuance of Critical Circumstances Determinations AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: The Department of Commerce (``the Department'') has revised its policy regarding the timing of issuance of critical circumstances determinations. We are now announcing this change in policy. DATES: This policy is effective October 7, 1998 with respect to all ongoing and future investigations. FOR FURTHER INFORMATION CONTACT: Bernard Carreau, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington D.C. 20230; telephone: (202) 482-1780. SUPPLEMENTARY INFORMATION: Policy Bulletin 98/4: Timing of Issuance of Critical Circumstances Determinations Statement of Issue Whether Commerce should make a determination of critical circumstances before issuing a preliminary determination in an antidumping investigation. Analysis Where critical circumstances exist, U.S. law and the WTO Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the Antidumping Agreement) provide for the imposition of antidumping measures retroactively for a period of 90 days prior to the preliminary determination of dumping. The purpose of this provision is to ensure that the statutory remedy is not undermined by massive imports following initiation of an investigation. Section 733(e) of the Tariff Act of 1930, as amended (the Act), permits the Department to make a preliminary critical circumstances determination at any time after initiation of an investigation. Changes in the Antidumping Agreement also provide for critical circumstances decisions prior to a preliminary determination of dumping. Consequently, Commerce is revising its critical circumstances practice to more fully utilize the flexibility provided by the statute and the Antidumping Agreement so that dumping is remedied to the fullest extent provided under the law. Under this new practice, a preliminary determination regarding critical circumstances may be made prior to the preliminary determination of dumping, assuming adequate evidence of critical circumstances is available. Section 733(e) of the Act directs Commerce to issue critical circumstances determinations ``promptly (at any time after the initiation of the investigation under this subtitle)'' as long as an allegation is made in the petition or at any time more than 20 days before the final determination. While there is no further guidance in the statute, the regulations provide that preliminary critical circumstances findings shall be made ``not later than the preliminary determination,'' if the allegation is submitted at least 20 days before the preliminary determination, and ``within 30 days after the petitioner submits the allegation,'' if the allegation is submitted later than 20 days before the preliminary determination. 19 CFR 351.206(c). In order to make a preliminary finding of critical circumstances, section 733(e) of the Act requires that there be a reasonable basis to believe or suspect that: 1. There is a history of dumping causing material injury, or, that the importer knew or should have known of dumping and likely injury; and 2. There have been massive imports of the subject merchandise over a relatively short period. The regulations define ``massive imports'' as an increase of 15 percent during the relatively short period. 19 CFR 351.206(h) The regulations define ``relatively short period'' as normally the three- month period after initiation of an investigation. 19 CFR Sec. 351.206(i) Thus, Commerce has traditionally compared the three- month period immediately after initiation with the three-month period immediately preceding initiation to determine whether there has been at least a 15 percent increase in imports of the subject merchandise. Because of constraints on the availability of data, as a practical matter, it is virtually impossible to make a critical circumstances finding much before the preliminary determination, as long as these two base periods are used. However, section 351.206(i) further provides that: * * * 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. Therefore, if the facts of a particular case show that importers, exporters or producers had reason to believe that a case was likely to be filed, the regulations make clear that earlier base periods can be used to measure massive imports. If earlier base periods are chosen, in accordance with this regulatory provision, and a comparison of these periods shows massive imports, the Secretary would still need to find that there has been a history of dumping and injury, or importer knowledge of dumping and likely injury, in order to make a critical circumstances finding. As with current practice, the Department would look at such factors as past U.S. dumping cases, cases in other countries, the International Trade Commission's (ITC) preliminary determination, information supplied in the petition, and other relevant information available at the time of the Department's critical circumstances determination. Because the ITC's preliminary determination of injury is normally important for this analysis, we anticipate that the earliest point at which a critical circumstances determination would be made is shortly after the ITC's preliminary injury determination, which normally occurs 45 days after the filing of the petition. Statement of Policy If the facts of a case show that importers, exporters, or producers had knowledge that a case was likely to be filed, and the other statutory and regulatory criteria for finding critical circumstances are met, Commerce should issue its preliminary finding on critical circumstances before the preliminary determination, and as soon as possible after initiation. Implementation This practice will be implemented in all ongoing and future cases where an allegation of critical circumstances is made and the facts of the case support an early critical circumstances finding, in accordance with the statutory and regulatory criteria. [[Page 55365]] Dated: October 8, 1998. Robert S. LaRussa, Assistant Secretary for Import Administration. [FR Doc. 98-27667 Filed 10-14-98; 8:45 am] BILLING CODE 3510-DS-P