TITLE VII OF THE TARIFF ACT OF 1930
UPDATED THROUGH Pub.L. 103-465 (Uruguay Round Agreements Act-12/8/94)
COUNTERVAILING AND ANTIDUMPING DUTIES
Subtitle A Imposition of Countervailing Duties
Sec. 701. Countervailing duties imposed.
Sec. 702. Procedures for initiating a countervailing duty investigation.
Sec. 703. Preliminary determinations.
Sec. 704. Termination or suspension of investigation.
Sec. 705. Final determinations.
Sec. 706. Assessment of duty.
Sec. 707. Treatment of difference between deposit of estimated countervailing
duty and final assessed duty under countervailing duty order.
Sec. 708. Effect of derogation of Export-Import Bank financing.
Sec. 709. Conditional payment of countervailing duty.
Subtitle B Imposition of Antidumping Duties
Sec. 731. Antidumping duties imposed.
Sec. 732. Procedures for initiating an antidumping duty investigation.
Sec. 733. Preliminary determinations.
Sec. 734. Termination or suspension of investigation.
Sec. 735. Final determinations.
Sec. 736. Assessment of duty.
Sec. 737. Treatment of difference between deposit of estimated antidumping
duty and final assessed duty under antidumping duty order.
Sec. 738. Conditional payment of antidumping duty.
Sec. 739. Establishment of product categories for short life cycle
merchandise.
Subtitle C Reviews; Other Actions Regarding Agreements
Chapter 1 REVIEW OF AMOUNT OF DUTY AND AGREEMENTS OTHER THAN QUANTITATIVE
RESTRICTION AGREEMENTS
Sec. 751. Administrative review of determinations.
Sec. 752. Special rules for section 751(b) and 751(c) reviews.
Sec. 753. Special rules for injury investigations for certain section 303
countervailing duty orders and investigations.
Chapter 2 CONSULTATIONS AND DETERMINATIONS REGARDING QUANTITATIVE
RESTRICTION AGREEMENTS
Sec. 761. Required consultations.
Sec. 762. Required determinations.
Subtitle D General Provisions
Sec. 771. Definitions; special rules.
Sec. 771A. Upstream subsidies.
Sec. 771B. Calculation of countervailable subsidies on certain processed
agricultural products.
Sec. 772. Export price and constructed export price.
Sec. 773. Normal value.
Sec. 773A. Currency conversion.
Sec. 774. Hearings.
Sec. 775. Countervailable subsidy practices discovered during a proceeding.
Sec. 776. Determinations on the basis of the facts available.
Sec. 777. Access to information.
Sec. 777A. Sampling and averaging; determination of weighted average
dumping margin and countervailable subsidy rate.
Sec. 778. Interest on certain overpayments and underpayment.
Sec. 779. Drawback treatment.
Sec. 780. Downstream product monitoring.
Sec. 781. Prevention of circumvention of antidumping and countervailing
duty orders.
Sec. 782. Conduct of investigations and administrative reviews.
Sec. 783. Antidumping petitions by third countries.
Subtitle A Imposition of Countervailing Duties
Sec. 701
SEC. 701. COUNTERVAILING DUTIES IMPOSED.
(a) General Rule. If
(1) the administering authority determines that the government of a country or
any public entity within the territory of a country is providing, directly or
indirectly, a countervailable subsidy with respect to the manufacture,
production, or export of a class or kind of merchandise imported, or sold (or
likely to be sold) for importation, into the United States, and
(2) in the case of merchandise imported from a Subsidies Agreement country,
the Commission determines that
(A) an industry in the United States
(i) is materially injured, or
(ii) is threatened with material injury, or
(B) the establishment of an industry in the United States is materially
retarded, by reason of imports of that merchandise or by reason of sales (or the
likelihood of sales) of that merchandise for importation, then there shall be
imposed upon such merchandise a countervailing duty, in addition to any other
duty imposed, equal to the amount of the net countervailable subsidy. For
purposes of this subsection and section 705(b)(1), a reference to the sale of
merchandise includes the entering into of any leasing arrangement regarding
the merchandise that is equivalent to the sale of the merchandise.
(b) Subsidies Agreement Country. For purposes of this title, the term
"Subsidies Agreement country" means
(1) a WTO member country,
(2) a country which the President has determined has assumed obligations with
respect to the United States which are substantially equivalent to the
obligations under the Subsidies Agreement, or
(3) a country with respect to which the President determines that
(A) there is an agreement in effect between the United States and that country
which
(i) was in force on the date of the enactment of the Uruguay Round Agreements
Act, and
(ii) requires unconditional most-favored-nation treatment with respect to
articles imported into the United States, and
(B) the agreement described in subparagraph (A) does not expressly permit
(i) actions required or permitted by the GATT 1947 or GATT 1994, as defined in
section 2(1) of the Uruguay Round Agreements Act, or required by the Congress,
or
(ii) nondiscriminatory prohibitions or restrictions on importation which are
designed to prevent deceptive or unfair practices.
(c) Countervailing Duty Investigations Involving Imports Not Entitled to a
Material Injury Determination. In the case of any article or merchandise
imported from a country which is not a Subsidies Agreement country
(1) no determination by the Commission under section 703(a), 704, or 705(b)
shall be required,
(2) an investigation may not be suspended under section 704(c) or 704(l),
(3) no determination as to the presence of critical circumstances shall be
made under section 703(e) or 705(a)(2),
(4) section 706(c) shall not apply,
(5) any reference to a determination described in paragraph (1) or (3), or to
the suspension of an investigation under section 704(c) or 704(l), shall be
disregarded, and
(6) section 751(c) shall not apply.
(d) Treatment of International Consortia. For purposes of this subtitle, if
the members (or other participating entities) of an international consortium
that is engaged in the production of subject merchandise receive countervailable
subsidies from their respective home countries to assist, permit, or otherwise
enable their participation in that consortium through production or
manufacturing operations in their respective home countries, then the
administering authority shall cumulate all such countervailable subsidies, as
well as countervailable subsidies provided directly to the international
consortium, in determining any countervailing duty upon such merchandise.
(e) Upstream Subsidy. Whenever the administering authority has reasonable
grounds to believe or suspect that an upstream subsidy, as defined in section
771A(a)(1), is being paid or bestowed, the administering authority shall
investigate whether an upstream subsidy has in fact been paid or bestowed, and
if so, shall include the amount of the upstream subsidy as provided in section
771A(a)(3).
(19 U.S.C. 1671)
Sec. 702
SEC. 702. PROCEDURES FOR INITIATING A COUNTERVAILING DUTY INVESTIGATION.
(a) Initiation by Administering Authority. A countervailing duty
investigation shall be initiated whenever the administering authority
determines, from information available to it, that a formal investigation is
warranted into the question of whether the elements necessary for the imposition
of a duty under section 701(a) exist.
(b) Initiation by Petition.
(1) Petition requirements. A countervailing duty proceeding shall be
initiated whenever an interested party described in subparagraph (C), (D), (E),
(F), or (G) of section 771(9) files a petition with the administering authority,
on behalf of an industry, which alleges the elements necessary for the
imposition of the duty imposed by section 701(a), and which is accompanied by
information reasonably available to the petitioner supporting those allegations.
The petition may be amended at such time, and upon such conditions, as the
administering authority and the Commission may permit.
(2) Simultaneous filing with commission. The petitioner shall file a copy of
the petition with the Commission on the same day as it is filed with the
administering authority.
(3) Petition based upon a derogation of an international undertaking on
official export credits. If the sole basis of a petition filed under paragraph
(1) is the derogation of an international undertaking on official export
credits, the administering authority shall immediately notify the Secretary of
the Treasury who shall, in consultation with the administering authority, within
5 days after the date on which the administering authority initiates an
investigation under subsection (c), determine the existence and estimated value
of the derogation, if any, and shall publish such determination in the Federal
Register.
(4) Action with respect to petitions.
(A) Notification of governments. Upon receipt of a petition filed under
paragraph (1), the administering authority shall
(i) notify the government of any exporting country named in the petition by
delivering a public version of the petition to an appropriate representative of
such country; and
(ii) provide the government of any exporting country named in the petition
that is a Subsidies Agreement country an opportunity for consultations with
respect to the petition.
(B) Acceptance of communications. The administering authority shall not
accept any unsolicited oral or written communication from any person other than
an interested party described in section 771(9) (C), (D), (E), (F), or (G)
before the administering authority makes its decision whether to initiate an
investigation, except as provided in subparagraph (A)(ii) and subsection
(c)(4)(D), and except for inquiries regarding the status of the administering
authority's consideration of the petition.
(C) Nondisclosure of certain information. The administering authority and the
Commission shall not disclose information with regard to any draft petition
submitted for review and comment before it is filed under paragraph (1).
(c) Petition Determination.
(1) In general.
(A) Time for initial determination. Except as provided in subparagraph (B),
within 20 days after the date on which a petition is filed under subsection (b),
the administering authority shall
(i) after examining, on the basis of sources readily available to the
administering authority, the accuracy and adequacy of the evidence provided in
the petition, determine whether the petition alleges the elements necessary for
the imposition of a duty under section 701(a) and contains information
reasonably available to the petitioner supporting the allegations, and
(ii) determine if the petition has been filed by or on behalf of the industry.
(B) Extension of time. In any case in which the administering authority is
required to poll or otherwise determine support for the petition by the industry
under paragraph (4)(D), the administering authority may, in exceptional
circumstances, apply subparagraph (A) by substituting "a maximum of 40 days" for
"20 days".
(C) Time limits where petition involves same merchandise as an order that has
been revoked. If a petition is filed under this section with respect to
merchandise that was the subject merchandise of
(i) a countervailing duty order that was revoked under section 751(d) in the
24 months preceding the date the petition is filed, or
(ii) a suspended investigation that was terminated under section 751(d) in the
24 months preceding the date the petition is filed,
the administering authority and the Commission shall, to the maximum extent
practicable, expedite any investigation initiated under this section with
respect to the petition.
(2) Affirmative determinations. If the determinations under clauses (i) and
(ii) of paragraph (1)(A) are affirmative, the administering authority shall
initiate an investigation to determine whether a countervailable subsidy is
being provided with respect to the subject merchandise.
(3) Negative determinations. If the determination under clause (i) or (ii) of
paragraph (1)(A) is negative, the administering authority shall dismiss the
petition, terminate the proceeding, and notify the petitioner in writing of the
reasons for the determination.
(4) Determination of industry support.
(A) General rule. For purposes of this subsection, the administering
authority shall determine that the petition has been filed by or on behalf of
the industry, if
(i) the domestic producers or workers who support the petition account for at
least 25 percent of the total production of the domestic like product, and
(ii) the domestic producers or workers who support the petition account for
more than 50 percent of the production of the domestic like product produced by
that portion of the industry expressing support for or opposition to the
petition.
(B) Certain positions disregarded.
(i) Producers related to foreign producers. In determining industry support
under subparagraph (A), the administering authority shall disregard the
position of domestic producers who oppose the petition, if such producers are
related to foreign producers, as defined in section 771(4)(B)(ii), unless such
domestic producers demonstrate that their interests as domestic producers would
be adversely affected by the imposition of a countervailing duty order.
(ii) Producers who are importers. The administering authority may disregard
the position of domestic producers of a domestic like product who are importers
of the subject merchandise.
(C) Special rule for regional industries. If the petition alleges that the
industry is a regional industry, the administering authority shall determine
whether the petition has been filed by or on behalf of the industry by applying
subparagraph (A) on the basis of production in the region.
(D) Polling the industry. If the petition does not establish support of
domestic producers or workers accounting for more than 50 percent of the total
production of the domestic like product, the administering authority shall
(i) poll the industry or rely on other information in order to determine if
there is support for the petition as required by subparagraph (A), or
(ii) if there is a large number of producers in the industry, the
administering authority may determine industry support for the petition by using
any statistically valid sampling method to poll the industry.
(E) Comments by interested parties. Before the administering authority makes
a determination with respect to initiating an investigation, any person who
would qualify as an interested party under section 771(9) if an investigation
were initiated, may submit comments or information on the issue of industry
support. After the administering authority makes a determination with respect to
initiating an investigation, the determination regarding industry support shall
not be reconsidered.
(5) Definition of domestic producers or workers. For purposes of this
subsection, the term "domestic producers or workers" means those interested
parties who are eligible to file a petition under subsection (b)(1)(A).
(d) Notification to Commission of Determination. The administering authority
shall
(1) notify the Commission immediately of any determination it makes under
subsection (a) or (c), and
(2) if the determination is affirmative, make available to the Commission such
information as it may have relating to the matter under investigation, under
such procedures as the administering authority and the Commission may establish
to prevent disclosure, other than with the consent of the party providing it or
under protective order, of any information to which confidential treatment has
been given by the administering authority.
(e) Information Regarding Critical Circumstances. If, at any time after the
initiation of an investigation under this subtitle, the administering authority
finds a reasonable basis to suspect that the alleged countervailable subsidy is
inconsistent with the Subsidies Agreement, the administering authority may
request the Commissioner of Customs to compile information on an expedited basis
regarding entries of the subject merchandise. Upon receiving such request, the
Commissioner of Customs shall collect information regarding the volume and value
of entries of the class or kind of merchandise that is the subject of the
investigation and shall transmit such information to the administering authority
at such times as the administering authority shall direct (at least once every
30 days), until a final determination is made under section 705(a), the
investigation is terminated, or the administering authority withdraws the
request.
(19 U.S.C. 1671a)
Sec. 703
SEC. 703. PRELIMINARY DETERMINATIONS.
(a) Determination by Commission of Reasonable Indication of Injury.
(1) General rule. Except in the case of a petition dismissed by the
administering authority under section 702(c)(3), the Commission, within the time
specified in paragraph (2), shall determine, based on the information available
to it at the time of the determination, whether there is a reasonable indication
that
(A) an industry in the United States
(i) is materially injured, or
(ii) is threatened with material injury, or
(B) the establishment of an industry in the United States is materially
retarded,
by reason of imports of the subject merchandise and that imports of the
subject merchandise are not negligible. If the Commission finds that imports of
the subject merchandise are negligible or otherwise makes a negative
determination under this paragraph, the investigation shall be terminated.
(2) Time for commission determination. The Commission shall make the
determination described in paragraph (1)
(A) in the case of a petition filed under section 702(b)
(i) within 45 days after the date on which the petition is filed, or
(ii) if the time has been extended pursuant to section 702(c)(1)(B), within 25
days after the date on which the Commission receives notice from the
administering authority of initiation of the investigation, and
(B) in the case of an investigation initiated under section 702(a), within 45
days after the date on which the Commission receives notice from the
administering authority that an investigation has been initiated under such
section.
(b)(1) Preliminary Determination by Administering Authority. Within 65 days
after the date on which the administering authority initiates an investigation
under section 702(c) 1, or an investigation is initiated under section 702(a),
but not before an affirmative determination by the Commission under subsection
(a) of this section, the administering authority shall make a determination,
based upon the information available to it at the time of the determination, of
whether there is a reasonable basis to believe or suspect that a countervailable
subsidy is being provided with respect to the subject merchandise.
1 Section 212(b)(1)(C)(i)(I) of P.L. 103 465 amended this paragraph by
striking "85 days after the date on which the petition is filed under section
702(b)" and inserting "65 days after the date on which the administering
authority initiates an investigation under section 702(c)". The amendment
probably should have been to strike "85 days after the date on which a petition
is filed under section 702(b)".
(2) Notwithstanding paragraph (1), when the petition is one subject to section
702(b)(3), the administering authority shall, taking into account the nature of
the countervailable subsidy concerned, make the determination required by
paragraph (1) on an expedited basis and within 65 days after the date on which
the administering authority initiates an investigation under section 702(c)
unless the provisions of subsection (c) of this section apply.
(3) Preliminary Determination Under Waiver of Verification. Within 55 days
after the initiation of an investigation the administering authority shall cause
an official designated for such purpose to review the information concerning the
case received during the first 50 days of the investigation, and, if there
appears to be sufficient information available upon which the determination can
reasonably be based, to disclose to the petitioner and any interested party,
then a party to the proceedings that requests such disclosure, all available
nonconfidential information and all other information which is disclosed
pursuant to section 777. Within 3 days (not counting Saturdays, Sundays, or
legal public holidays) after such disclosure, the petitioner and each party
which is an interested party described in subparagraph (C), (D), (E), (F), or
(G) of section 771(9) to whom such disclosure was made may furnish to the
administering authority an irrevocable written waiver of verification of the
information received by the authority, and an agreement that it is willing to
have a determination made on the basis of the record then available to the
authority. If a timely waiver and agreement have been received from the
petitioner and each party which is an interested party described in subparagraph
(C), (D), (E), (F), or (G) of section 771(9) to whom the disclosure was made,
and the authority finds that sufficient information is then available upon which
the preliminary determination can reasonably be based, a preliminary
determination shall be made on an expedited basis on the basis of the record
established during the first 50 days after the investigation was initiated.
(4) 1 De minimis countervailable subsidy.
1 Indentation so in law.
(A) General rule. In making a determination under this subsection, the
administering authority shall disregard any de minimis countervailable subsidy.
For purposes of the preceding sentence, a countervailable subsidy is de minimis
if the administering authority determines that the aggregate of the net
countervailable subsidies is less than 1 percent ad valorem or the equivalent
specific rate for the subject merchandise.
(B) Exception for developing countries. In the case of subject merchandise
imported from a Subsidies Agreement country (other than a country to which
subparagraph (C) applies) designated by the Trade Representative as a developing
country in accordance with section 771(36), a countervailable subsidy is de
minimis if the administering authority determines that the aggregate of the net
countervailable subsidies does not exceed 2 percent ad valorem or the equivalent
specific rate for the subject merchandise.
(C) Certain other developing countries. In the case of subject merchandise
imported from a Subsidies Agreement country that is
(i) a least developed country, as determined by the Trade Representative in
accordance with section 771(36), or
(ii) a developing country with respect to which the Trade Representative has
notified the administering authority that the country has eliminated its export
subsidies on an expedited basis within the meaning of Article 27.11 of the
Subsidies Agreement, subparagraph (B) shall be applied by substituting
"3 percent" for "2 percent".
(D) Limitations on application of subparagraph (c).
(i) In general. In the case of a country described in subparagraph (C)(i),
the provisions of subparagraph (C) shall not apply after the date that is 8
years after the date the WTO Agreement enters into force.
(ii) Special rule for subparagraph (C)(ii) countries. In the case of a
country described in subparagraph (C)(ii), the provisions of subparagraph (C)
shall not apply after the earlier of
(I) the date that is 8 years after the date the WTO Agreement enters into
force, or
(II) the date on which the Trade Representative notifies the administering
authority that such country is providing an export subsidy.
(5) 1 Notification of article 8 violation. If the only subsidy under
investigation is a subsidy with respect to which the administering authority
received notice from the Trade Representative of a violation of Article 8 of the
Subsidies Agreement, paragraph (1) shall be applied by substituting "60 days"
for "65 days".
1 Indentation so in law.
(c) Extension of Period in Extraordinarily Complicated Cases.
(1) In general. If
(A) the petitioner makes a timely request for an extension of the period
within which the determination must be made under subsection (b), or
(B) the administering authority concludes that the parties concerned are
cooperating and determines that
(i) the case is extraordinarily complicated by reason of
(I) the number and complexity of the alleged countervailable subsidy
practices;
(II) the novelty of the issues presented;
(III) the need to determine the extent to which particular countervailable
subsidies are used by individual manufacturers, producers, and exporters; or
(IV) the number of firms whose activities must be investigated; and
(ii) additional time is necessary to make the preliminary determination,
then the administering authority may postpone making the preliminary
determination under subsection (b) until not later than the 130th day after the
date on which the administering authority initiates an investigation under
section 702(c), or an investigation is initiated under section 702(a).
(2) Notice of postponement. The administering authority shall notify the
parties to the investigation, not later than 20 days before the date on which
the preliminary determination would otherwise be required under subsection (b),
if it intends to postpone making the preliminary determination under paragraph
(1). The notification shall include an explanation of the reasons for the
postponement. Notice of the postponement shall be published in the Federal
Register.
(d) Effect of Determination by the Administering Authority. If the
preliminary determination of the administering authority under subsection (b) is
affirmative, the administering authority
(1)(A) shall
(i) determine an estimated individual countervailable subsidy rate for each
exporter and producer individually investigated, and, in accordance with section
705(c)(5), an estimated all-others rate for all exporters and producers not
individually investigated and for new exporters and producers within the meaning
of section 751(a)(2)(B), or
(ii) if section 777A(e)(2)(B) applies, determine a single estimated
country-wide subsidy rate, applicable to all exporters and producers, and
(B) shall order the posting of a cash deposit, bond, or other security, as the
administering authority deems appropriate, for each entry of the subject
merchandise in an amount based on the estimated individual countervailable
subsidy rate, the estimated all-others rate, or the estimated country-wide
subsidy rate, whichever is applicable,
(2) shall order the suspension of liquidation of all entries of merchandise
subject to the determination which are entered, or withdrawn from warehouse, for
consumption on or after the later of
(A) the date on which notice of the determination is published in the Federal
Register, or
(B) the date that is 60 days after the date on which notice of the
determination to initiate the investigation is published in the Federal
Register, and
(3) shall make available to the Commission all information upon which its
determination was based and which the Commission considers relevant to its
injury determination, under such procedures as the administering authority and
the Commission may establish to prevent disclosure, other than with the consent
of the party providing it or under protective order, of any information to which
confidential treatment has been given by the administering authority.
The instructions of the administering authority under paragraphs (1) and (2)
may not remain in effect for more than 4 months.
(e) Critical Circumstances Determinations.
(1) In general. If a petitioner alleges critical circumstances in its
original petition, or by amendment at any time more than 20 days before the date
of a final determination by the administering authority, then the administering
authority shall promptly (at any time after the initiation of the investigation
under this subtitle) determine, on the basis of the information available to it
at that time, whether there is a reasonable basis to believe or suspect that
(A) the alleged countervailable subsidy is inconsistent with the Subsidies
Agreement, and
(B) there have been massive imports of the subject merchandise over a
relatively short period.
(2) Suspension of liquidation. If the determination of the administering
authority under paragraph (1) is affirmative, then any suspension of liquidation
ordered under subsection (d)(2) shall apply, or, if notice of such suspension of
liquidation is already published, be amended to apply, to unliquidated entries
of merchandise entered, or withdrawn from warehouse, for consumption on or after
the later of
(A) the date which is 90 days before the date on which the suspension of
liquidation was first ordered, or
(B) the date on which notice of the determination to initiate the
investigation is published in the Federal Register.
(f) Notice of Determination. Whenever the Commission or the administering
authority makes a determination under this section, the Commission or the
administering authority, as the case may be, shall notify the petitioner, and
other parties to the investigation, and the Commission or the administering
authority (whichever is appropriate) of its determination. The administering
authority shall include with such notification the facts and conclusions on
which its determination is based. Not later than 5 days after the date on
which the determination is required to be made under subsection (a)(2), the
Commission shall transmit to the administering authority the facts and
conclusions on which its determination is based.
(g) Time Period Where Upstream Subsidization Involved.
(1) In general. Whenever the administering authority concludes prior to a
preliminary determination under section 703(b), that there is a reasonable basis
to believe or suspect that an upstream subsidy is being bestowed, the time
period within which a preliminary determination must be made shall be extended
to 250 days after the filing of a petition under section 702(b) or initiation of
an investigation under section 702(a) (310 days in cases declared
extraordinarily complicated under section 703(c)), if the administering
authority concludes that such additional time is necessary to make the required
determination concerning upstream subsidization.
(2) Exceptions. Whenever the administering authority concludes, after a
preliminary determination under section 703(b), that there is a reasonable basis
to believe or suspect that an upstream subsidy is being bestowed
(A) in cases in which the preliminary determination was negative, the time
period within which a final determination must be made shall be extended to 165
or 225 days, as appropriate, under section 705(a)(1); or
(B) in cases in which the preliminary determination is affirmative, the
determination concerning upstream subsidization
(i) need not be made until the conclusion of the first annual review under
section 751 of any eventual countervailing duty order, or, at the option of the
petitioner, or
(ii) will be made in the investigation and the time period within which a
final determination must be made shall be extended to 165 or 225 days, as
appropriate, under section 705(a)(1), as appropriate, except that the suspension
of liquidation ordered in the preliminary determination shall terminate at the
end of 120 days from the date of publication of that determination and not be
resumed unless and until the publication of a Countervailing Duty Order under
section 706(a).
There may be an extension of time for the making of a final determination
under this subsection only if the administering authority determines that such
additional time is necessary to make the required determination concerning
upstream subsidization.
(19 U.S.C. 1671b)
Sec. 704
SEC. 704. TERMINATION OR SUSPENSION OF INVESTIGATION.
(a) Termination of Investigation Upon Withdrawal of Petition.
(1) In general.
(A) Withdrawal of petition. Except as provided in paragraphs (2) and (3), an
investigation under this subtitle may be terminated by either the administering
authority or the Commission, after notice to all parties to the investigation,
upon withdrawal of the petition by the petitioner or by the administering
authority if the investigation was initiated under section 702(a).
(B) Refiling of petition. If, within 3 months after the withdrawal of a
petition under subparagraph (A), a new petition is filed seeking the imposition
of duties on both the subject merchandise of the withdrawn petition and the
subject merchandise from another country, the administering authority and the
Commission may use in the investigation initiated pursuant to the new petition
any records compiled in an investigation conducted pursuant to the withdrawn
petition. This subparagraph applies only with respect to the first withdrawal of
a petition.
(2) Special rules for quantitative restriction agreements.
(A) In general. Subject to subparagraphs (B) and (C), the administering
authority may not terminate an investigation under paragraph (1) by accepting,
with the government of the country in which the countervailable subsidy practice
is alleged to occur, an understanding or other kind of agreement to limit the
volume of imports into the United States of the subject merchandise unless the
administering authority is satisfied that termination on the basis of that
agreement is in the public interest.
(B) Public interest factors. In making a decision under subparagraph (A)
regarding the public interest, the administering authority shall take into
account
(i) whether, based upon the relative impact on consumer prices and the
availability of supplies of the merchandise, the agreement would have a greater
adverse impact on United States consumers than the imposition of countervailing
duties;
(ii) the relative impact on the international economic interests of the United
States; and
(iii) the relative impact on the competitiveness of the domestic industry
producing the like merchandise, including any such impact on employment and
investment in that industry.
(C) Prior consultations. Before making a decision under subparagraph (A)
regarding the public interest, the administering authority shall, to the extent
practicable, consult with
(i) potentially affected consuming industries; and
(ii) potentially affected producers and workers in the domestic industry
producing the like merchandise, including producers and workers not party to the
investigation.
(3) Limitation on termination by commission. The Commission may not terminate
an investigation under paragraph (1) before a preliminary determination is made
by the administering authority under section 703(b).
(b) Agreements To Eliminate or Offset Completely a Countervailable Subsidy or
To Cease Exports of Subject Merchandise. The administering authority may
suspend an investigation if the government of the country in which the
countervailable subsidy practice is alleged to occur agrees, or exporters who
account for substantially all of the imports of the subject merchandise agree
(1) to eliminate the countervailable subsidy completely or to offset
completely the amount of the net countervailable subsidy, with respect to that
merchandise exported directly or indirectly to the United States, within 6
months after the date on which the investigation is suspended, or
(2) to cease exports of that merchandise to the United States within 6 months
after the date on which the investigation is suspended.
(c) Agreements Eliminating Injurious Effect.
(1) General rule. If the administering authority determines that
extraordinary circumstances are present in a case, it may suspend an
investigation upon the acceptance of an agreement from a government described in
subsection (b), or from exporters described in subsection (b), if the agreement
will eliminate completely the injurious effect of exports to the United States
of the subject merchandise.
(2) Certain additional requirements. Except in the case of an agreement by a
foreign government to restrict the volume of imports of the subject merchandise
into the United States, the administering authority may not accept an agreement
under this subsection unless
(A) the suppression or undercutting of price levels of domestic products by
imports of that merchandise will be prevented, and
(B) at least 85 percent of the net countervailable subsidy will be offset.
(3) Quantitative restrictions agreements. The administering authority may
accept an agreement with a foreign government under this subsection to restrict
the volume of imports of subject merchandise into the United States, but it may
not accept such an agreement with exporters.
(4) Definition of extraordinary circumstances.
(A) Extraordinary circumstances. For purposes of this subsection, the term
"extraordinary circumstances" means circumstances in which
(i) suspension of an investigation will be more beneficial to the domestic
industry than continuation of the investigation, and
(ii) the investigation is complex.
(B) Complex. For purposes of this paragraph, the term "complex" means
(i) there are a large number of alleged countervailable subsidy practices and
the practices are complicated,
(ii) the issues raised are novel, or
(iii) the number of exporters involved is large.
(d) Additional Rules and Conditions.
(1) Public interest; monitoring. The administering authority shall not accept
an agreement under subsection (b) or (c) unless
(A) it is satisfied that suspension of the investigation is in the public
interest, and
(B) effective monitoring of the agreement by the United States is
practicable.
Where practicable, the administering authority shall provide to the exporters
who would have been subject to the agreement the reasons for not accepting the
agreement and, to the extent possible, an opportunity to submit comments
thereon. In applying subparagraph (A) with respect to any quantitative
restriction agreement under subsection (c), the administering authority shall
take into account, in addition to such other factors as are considered necessary
or appropriate, the factors set forth in subsection (a)(2)(B) (i), (ii), and
(iii) as they apply to the proposed suspension and agreement, after consulting
with the appropriate consuming industries, producers, and workers referred to in
subsection (a)(2)(C) (i) and (ii).
(2) Exports of merchandise to united states not to increase during interim
period. The administering authority may not accept any agreement under
subsection (b) unless that agreement provides a means of ensuring that the
quantity of the merchandise covered by that agreement exported to the United
States during the period provided for elimination or offset of the
countervailable subsidy or cessation of exports does not exceed the quantity of
such merchandise exported to the United States during the most recent
representative period determined by the administering authority.
(3) Regulations governing entry or withdrawals. In order to carry out an
agreement concluded under subsection (b) or (c), the administering authority is
authorized to prescribe regulations governing the entry, or withdrawal from
warehouse, for consumption of subject merchandise.
(e) Suspension of Investigation Procedure. Before an investigation may be
suspended under subsection (b) or (c) the administering authority shall
(1) notify the petitioner of, and consult with the petitioner concerning, its
intention to suspend the investigation, and notify other parties to the
investigation and the Commission not less than 30 days before the date on which
it suspends the investigation,
(2) provide a copy of the proposed agreement to the petitioner at the time of
the notification, together with an explanation of how the agreement will be
carried out and enforced (including any action required of foreign governments),
and of how the agreement will meet the requirements of subsections (b) and (d),
or (c) and (d), and
(3) permit all interested parties described in section 771(9) to submit
comments and information for the record before the date on which notice of
suspension of the investigation is published under subsection (f)(1)(A).
(f) Effects of Suspension of Investigation.
(1) In general. If the administering authority determines to suspend an
investigation upon acceptance of an agreement described in subsection (b) or
(c), then
(A) it shall suspend the investigation, publish notice of suspension of the
investigation, and issue an affirmative preliminary determination under section
703(b) with respect to the subject merchandise, unless it has previously issued
such a determination in the same investigation,
(B) the Commission shall suspend any investigation it is conducting with
respect to that merchandise, and
(C) the suspension of investigation shall take effect on the day on which such
notice is published.
(2) Liquidation of entries.
(A) Cessation of exports; complete elimination of net countervailable subsidy.
If the agreement accepted by the administering authority is an agreement
described in subsection (b), then
(i) notwithstanding the affirmative preliminary determination required under
paragraph (1)(A), the liquidation of entries of subject merchandise shall not be
suspended under section 703(d)(2),
(ii) if the liquidation of entries of such merchandise was suspended pursuant
to a previous affirmative preliminary determination in the same case with
respect to such merchandise, that suspension of liquidation shall terminate, and
(iii) the administering authority shall refund any cash deposit and release
any bond or other security deposited under section 703(d)(1)(B).
(B) Other agreements. If the agreement accepted by the administering
authority is an agreement described in subsection (c), then the liquidation of
entries of the subject merchandise shall be suspended under section 703(d)(2),
or, if the liquidation of entries of such merchandise was suspended pursuant to
a previous affirmative preliminary determination in the same case, that
suspension of liquidation shall continue in effect, subject to subsection
(h)(3), but the security required under section 703(d)(1)(B) may be adjusted to
reflect the effect of the agreement.
(3) Where investigation is continued. If, pursuant to subsection (g), the
administering authority and the Commission continue an investigation in which an
agreement has been accepted under subsection (b) or (c), then
(A) if the final determination by the administering authority or the
Commission under section 705 is negative, the agreement shall have no force or
effect and the investigation shall be terminated, or
(B) if the final determinations by the administering authority and the
Commission under such section are affirmative, the agreement shall remain in
force, but the administering authority shall not issue a countervailing duty
order in the case so long as
(i) the agreement remains in force,
(ii) the agreement continues to meet the requirements of subsections (b) and
(d) or (c) and (d), and
(iii) the parties to the agreement carry out their obligations under the
agreement in accordance with its terms.
(g) Investigation To Be Continued Upon Request. If the administering
authority, within 20 days after the date of publication of the notice of
suspension of an investigation, receives a request for the continuation of the
investigation from
(1) the government of the country in which the countervailable subsidy
practice is alleged to occur, or
(2) an interested party described in subparagraph (C), (D), (E), (F), or (G)
of section 771(9) which is a party to the investigation,
then the administering authority and the Commission shall continue the
investigation.
(h) Review of Suspension.
(1) In general. Within 20 days after the suspension of an investigation under
subsection (c), an interested party which is a party to the investigation and
which is described in subparagraph (C), (D), (E), (F), or (G) of section 771(9)
may, by petition filed with the Commission and with notice to the administering
authority, ask for a review of the suspension.
(2) Commission investigation. Upon receipt of a review petition under
paragraph (1), the Commission shall, within 75 days after the date on which the
petition is filed with it, determine whether the injurious effect of imports of
the subject merchandise is eliminated completely by the agreement. If the
Commission's determination under this subsection is negative, the investigation
shall be resumed on the date of publication of notice of such determination as
if the affirmative preliminary determination under section 703(b) had been made
on that date.
(3) Suspension of liquidation to continue during review period. The
suspension of liquidation of entries of the subject merchandise shall terminate
at the close of the 20-day period beginning on the day after the date on which
notice of suspension of the investigation is published in the Federal Register,
or, if a review petition is filed under paragraph (1) with respect to the
suspension of the investigation, in the case of an affirmative determination by
the Commission under paragraph (2), the date on which notice of the affirmative
determination by the Commission is published. If the determination of the
Commission under paragraph (2) is affirmative, then the administering authority
shall
(A) terminate the suspension of liquidation under section 703(d)(2), and
(B) release any bond or other security, and refund any cash deposit, required
under section 703(d)(1)(B).
(i) Violation of Agreement.
(1) In general. If the administering authority determines that an agreement
accepted under subsection (b) or (c) is being, or has been, violated, or no
longer meets the requirements of such subsection (other than the requirement,
under subsection (c)(1), of elimination of injury) and subsection (d), then, on
the date of publication of its determination, it shall
(A) suspend liquidation under section 703(d)(2) of unliquidated entries of the
merchandise made on or after the later of
(i) the date which is 90 days before the date of publication of the notice of
suspension of liquidation, or
(ii) the date on which the merchandise, the sale or export to the United
States of which was in violation of the agreement, or under an agreement which
no longer meets the requirements of subsections (b) and (d) or (c) and (d), was
first entered, or withdrawn from warehouse, for consumption.
(B) if the investigation was not completed, resume the investigation as if its
affirmative preliminary determination under section 703(b) were made on the date
of its determination under this paragraph,
(C) if the investigation was completed under subsection (g), issue a
countervailing duty order under section 706(a) effective with respect to entries
of merchandise the liquidation of which was suspended,
(D) if it considers the violation to be intentional, notify the Commissioner
of Customs who shall take appropriate action under paragraph (2), and
(E) notify the petitioner, interested parties who are or were parties to the
investigation, and the Commission of its action under this paragraph.
(2) Intentional violation to be punished by civil penalty. Any person who
intentionally violates an agreement accepted by the administering authority
under subsection (b) or (c) shall be subject to a civil penalty assessed in the
same amount, in the same manner, and under the same procedure, as the penalty
imposed for a fraudulent violation of section 592(a) of this Act.
(j) Determination Not To Take Agreement Into Account. In making a final
determination under section 705, or in conducting a review under section 751, in
a case in which the administering authority has terminated a suspension of
investigation under subsection (i)(1), or continued an investigation under
subsection (g), the Commission and the administering authority shall consider
all of the subject merchandise, without regard to the effect of any agreement
under subsection (b) or (c).
(k) Termination of Investigations Initiated by Administering Authority. The
administering authority may terminate any investigation initiated by the
administering authority under section 702(a) after providing notice of such
termination to all parties to the investigation.
(l) Special Rule for Regional Industry Investigations.
(1) Suspension agreements. If the Commission makes a regional industry
determination under section 771(4)(C), the administering authority shall offer
exporters of the subject merchandise who account for substantially all exports
of that merchandise for sale in the region concerned the opportunity to enter
into an agreement described in subsection (b) or (c).
(2) Requirements for suspension agreements. Any agreement described in
paragraph (1) shall be subject to all the requirements imposed under this
section for other agreements under subsection (b) or (c), except that if the
Commission makes a regional industry determination described in paragraph (1) in
the final affirmative determination under section 705(b) but not in the
preliminary affirmative determination under section 703(a), any agreement
described in paragraph (1) may be accepted within 60 days after the
countervailing duty order is published under section 706.
(3) Effect of suspension agreement on countervailing duty order. If an
agreement described in paragraph (1) is accepted after the countervailing duty
order is published, the administering authority shall rescind the order, refund
any cash deposit and release any bond or other security deposited under section
703(d)(1)(B), and instruct the Customs Service that entries of the subject
merchandise that were made during the period that the order was in effect shall
be liquidated without regard to countervailing duties.
(19 U.S.C. 1671c)
Sec. 705
SEC. 705. FINAL DETERMINATIONS.
(a) Final Determinations by Administering Authority.
(1) In general. Within 75 days after the date of the preliminary
determination under section 703(b), the administering authority shall make a
final determination of whether or not a countervailable subsidy is being
provided with respect to the subject merchandise; except that when an
investigation under this subtitle is initiated simultaneously with an
investigation under subtitle B, which involves imports of the same class or kind
of merchandise from the same or other countries, the administering authority, if
requested by the petitioner, shall extend the date of the final determination
under this paragraph to the date of the final determination of the administering
authority in such investigation initiated under subtitle B.
(2) Critical circumstances determinations. If the final determination of the
administering authority is affirmative, then that determination, in any
investigation in which the presence of critical circumstances has been alleged
under section 703(e), shall also contain a finding as to whether
(A) the countervailable subsidy is inconsistent with the Subsidies Agreement,
and
(B) there have been massive imports of the subject merchandise over a
relatively short period.
Such findings may be affirmative even though the preliminary determination
under section 703(e)(1) was negative.
(3) De minimis countervailable subsidy. In making a determination under this
subsection, the administering authority shall disregard any countervailable
subsidy that is de minimis as defined in section 703(b)(4).
(b) Final Determination by Commission.
(1) In general. The Commission shall make a final determination of whether
(A) an industry in the United States
(i) is materially injured, or
(ii) is threatened with material injury, or
(B) the establishment of an industry in the United States is materially
retarded,
by reason of imports, or sales (or the likelihood of sales) for importation,
of the merchandise with respect to which the administering authority has made an
affirmative determination under subsection (a). If the Commission determines
that imports of the subject merchandise are negligible, the investigation shall
be terminated.
(2) Period for injury determination following affirmative preliminary
determination by administering authority. If the preliminary determination by
the administering authority under section 703(b) is affirmative, then the
Commission shall make the determination required by paragraph (1) before the
later of
(A) the 120th day after the day on which the administering authority makes its
affirmative preliminary determination under section 703(b), or
(B) the 45th day after the day on which the administering authority makes its
affirmative final determination under subsection (a).
(3) Period for injury determination following negative preliminary
determination by administering authority. If the preliminary determination by
the administering authority under section 703(b) is negative, and its final
determination under subsection (a) is affirmative, then the final determination
by the Commission under this subsection shall be made within 75 days after the
date of that affirmative final determination.
(4) Certain additional findings.
(A) Commission standard for retroactive application.
(i) In general. If the finding of the administering authority under
subsection (a)(2) is affirmative, then the final determination of the Commission
shall include a finding as to whether the imports subject to the affirmative
determination under subsection (a)(2) are likely to undermine seriously the
remedial effect of the countervailing duty order to be issued under section 706.
(ii) Factors to consider. In making the evaluation under clause (i), the
Commission shall consider, among other factors it considers relevant
(I) the timing and the volume of the imports,
(II) any rapid increase in inventories of the imports, and
(III) any other circumstances indicating that the remedial effect of the
countervailing duty order will be seriously undermined.
(B) If the final determination of the Commission is that there is no material
injury but that there is threat of material injury, then its determination shall
also include a finding as to whether material injury by reason of imports of the
merchandise with respect to which the administering authority has made an
affirmative determination under subsection (a) would have been found but for any
suspension of liquidation of entries of that merchandise.
(c) Effect of Final Determinations.
(1) Effect of affirmative determination by the administering authority. If
the determination of the administering authority under subsection (a) is
affirmative, then
(A) the administering authority shall make available to the Commission all
information upon which such determination was based and which the Commission
considers relevant to its determination, under such procedures as the
administering authority and the Commission may establish to prevent disclosure,
other than with the consent of the party providing it or under protective order,
of any information to which confidential treatment has been given by the
administering authority,
(B)(i) the administering authority shall
(I) determine an estimated individual countervailable subsidy rate for each
exporter and producer individually investigated, and, in accordance with
paragraph (5), an estimated all-others rate for all exporters and producers not
individually investigated and for new exporters and producers within the meaning
of section 751(a)(2)(B), or
(II) if 777A(e)(2)(B) 1 applies, determine a single estimated country-wide
subsidy rate, applicable to all exporters and producers,
1 So in original. Probably should read "if section 777A(e)(2)(B) applies".
(ii) shall order the posting of a cash deposit, bond, or other security, as
the administering authority deems appropriate, for each entry of the subject
merchandise in an amount based on the estimated individual countervailable
subsidy rate, the estimated all-others rate, or the estimated country-wide
subsidy rate, whichever is applicable, and
(C) in cases where the preliminary determination by the administering
authority under section 703(b) was negative, the administering authority shall
order the suspension of liquidation under paragraph (2) of section 703(d).
(2) Issuance of order; effect of negative determination. If the
determinations of the administering authority and the Commission under
subsections (a)(1) and (b)(1) are affirmative, then the administering authority
shall issue a countervailing duty order under section 706(a). If either of such
determinations is negative, the investigation shall be terminated upon the
publication of notice of that negative determination and the administering
authority shall
(A) terminate the suspension of liquidation under section 703(d)(2), and
(B) release any bond or other security and refund any cash deposit required
under section 703(d)(1)(B).
(3) Effect of negative determinations under subsections (a)(2) and (b)(4)(a).
If the determination of the administering authority or the Commission under
subsection (a)(2) and (b)(4)(A), respectively, is negative, then the
administering authority shall
(A) terminate any retroactive suspension of liquidation required under
paragraph (4) or section 703(e)(2), and
(B) release any bond or other security, and refund any cash deposit required,
under section 703(d)(1)(B) with respect to entries of the merchandise the
liquidation of which was suspended retroactively under section 703(e)(2).
(4) Effect of affirmative determination under subsection (a)(2). If the
determination of the administering authority under subsection (a)(2) is
affirmative, then the administering authority shall
(A) in cases where the preliminary determinations by the administering
authority under sections 703(b) and 703(e)(1) were both affirmative, continue
the retroactive suspension of liquidation and the posting of a cash deposit,
bond, or other security previously ordered under section 703(e)(2);
(B) in cases where the preliminary determination by the administering
authority under section 703(b) was affirmative, but the preliminary
determination under section 703(e)(1) was negative, shall modify any suspension
of liquidation and security requirement previously ordered under section 703(d)
to apply to unliquidated entries of merchandise entered, or withdrawn from
warehouse, for consumption on or after the date which is 90 days before the date
on which suspension of liquidation was first ordered; or
(C) in cases where the preliminary determination by the administering
authority under section 703(b) and was negative, shall apply any suspension of
liquidation and security requirement ordered under subsection 705(c)(1)(B) to
unliquidated entries of merchandise entered, or withdrawn from warehouse, for
consumption on or after the date which is 90 days before the date on which
suspension of liquidation is first ordered.
(5) Method for determining the all-others rate and the country-wide subsidy
rate.
(A) All-others rate.
(i) General rule. For purposes of this subsection and section 703(d), the
all-others rate shall be an amount equal to the weighted average countervailable
subsidy rates established for exporters and producers individually investigated,
excluding any zero and de minimis countervailable subsidy rates, and any rates
determined entirely under section 776.
(ii) Exception. If the countervailable subsidy rates established for all
exporters and producers individually investigated are zero or de minimis rates,
or are determined entirely under section 776, the administering authority may
use any reasonable method to establish an all-others rate for exporters and
producers not individually investigated, including averaging the weighted
average countervailable subsidy rates determined for the exporters and producers
individually investigated.
(B) Country-wide subsidy rate. The administering authority may calculate a
single country-wide subsidy rate, applicable to all exporters and producers, if
the administering authority limits its examination pursuant to section
777A(e)(2)(B). The estimated country-wide rate determined under section
703(d)(1)(A)(ii) or paragraph (1)(B)(i)(II) of this subsection shall be based on
industry-wide data regarding the use of subsidies determined to be
countervailable.
(d) Publication of Notice of Determinations. Whenever the
administering authority or the Commission makes a determination under this
section, it shall notify the petitioner, other parties to the investigation, and
the other agency of its determination and of the facts and conclusions of law
upon which the determination is based, and it shall publish notice of its
determination in the Federal Register.
(e) Correction of Ministerial Errors. The administering authority shall
establish procedures for the correction of ministerial errors in final
determinations within a reasonable time after the determinations are issued
under this section. Such procedures shall ensure opportunity for interested
parties to present their views regarding any such errors. As used in this
subsection, the term "ministerial error" includes errors in addition,
subtraction or other arithmetic function, clerical errors resulting from
inaccurate copying, duplication, or the like, and any other type of
unintentional error which the administering authority considers ministerial.
(19 U.S.C. 1671d)
Sec. 706
SEC. 706. ASSESSMENT OF DUTY.
(a) Publication of Countervailing Duty Order. Within 7 days after being
notified by the Commission of an affirmative determination under section 705(b),
the administering authority shall publish a countervailing duty order which
(1) directs customs officers to assess a countervailing duty equal to the
amount of the net countervailable subsidy determined or estimated to exist,
within 6 months after the date on which the administering authority receives
satisfactory information upon which the assessment may be based, but in no event
later than 12 months after the end of the annual accounting period of the
manufacturer or exporter within which the merchandise is entered, or withdrawn
from warehouse, for consumption,
(2) includes a description of the subject merchandise, in such detail as the
administering authority deems necessary, and
(3) requires the deposit of estimated countervailing duties pending
liquidation of entries of merchandise at the same time as estimated normal
customs duties on that merchandise are deposited.
(b) Imposition of Duties.
(1) General rule. If the Commission, in its final determination under section
705(b), finds material injury or threat of material injury which, but for the
suspension of liquidation under section 703(d)(2), would have led to a finding
of material injury, then entries of the merchandise subject to the
countervailing duty order, the liquidation of which has been suspended under
section 703(d)(2), shall be subject to the imposition of countervailing duties
under section 701(a).
(2) Special rule. If the Commission, in its final determination under section
705(b), finds threat of material injury, other than threat of material injury
described in paragraph (1), or material retardation of the establishment of an
industry in the United States, then merchandise subject to a countervailing duty
order which is entered, or withdrawn from warehouse, for consumption on or after
the date of publication of notice of an affirmative determination of the
Commission under section 705(b) shall be subject to the imposition of
countervailing duties under section 701(a), and the administering authority
shall release any bond or other security, and refund any cash deposit made, to
secure the payment of countervailing duties with respect to entries of the
merchandise entered, or withdrawn from warehouse, for consumption before that
date.
(c) Special Rule for Regional Industries.
(1) In general. In an investigation under this subtitle in which the
Commission makes a regional industry determination under section 771(4)(C), the
administering authority shall, to the maximum extent possible, direct that
duties be assessed only on the subject merchandise of the specific exporters or
producers that exported the subject merchandise for sale in the region concerned
during the period of investigation.
(2) Exception for new exporters and producers. After publication of the
countervailing duty order, if the administering authority finds that a new
exporter or producer is exporting the subject merchandise for sale in the region
concerned, the administering authority shall direct that duties be assessed on
the subject merchandise of the new exporter or producer consistent with the
provisions of section 751(a)(2)(B).
(19 U.S.C. 1671e)
Sec. 707
SEC. 707. TREATMENT OF DIFFERENCE BETWEEN DEPOSIT OF ESTIMATED COUNTERVAILING
DUTY AND FINAL ASSESSED DUTY UNDER COUNTERVAILING DUTY ORDER.
(a) Deposit of Estimated Countervailing Duty Under Section 703(d)(1)(B). If
the amount of a cash deposit, or the amount of any bond or other security,
required as security for an estimated countervailing duty under section
703(d)(1)(B) is different from the amount of the countervailing duty determined
under a countervailing duty order issued under section 706, then the difference
for entries of merchandise entered, or withdrawn from warehouse, for consumption
before notice of the affirmative determination of the Commission under section
705(b) is published shall be
(1) disregarded, to the extent that the cash deposit, bond, or other security
is lower than the duty under the order, or
(2) refunded or released, to the extent that the cash deposit, bond, or other
security is higher than the duty under the order.
(b) Deposit of Estimated Countervailing Duty Under Section 706(a)(3). If the
amount of an estimated countervailing duty deposited under section 706(a)(3) is
different from the amount of the countervailing duty determined under a
countervailing duty order issued under section 706, then the difference for
entries of merchandise entered, or withdrawn from warehouse, for consumption
after notice of the affirmative determination of the Commission under section
705(b) is published shall be
(1) collected, to the extent that the deposit under section 706(a)(3) is lower
than the duty determined under the order, or
(2) refunded, to the extent that the deposit under section 706(a)(3) is higher
than the duty determined under the order,
together with interest as provided by section 778.
(19 U.S.C. 1671f)
Sec. 708
SEC. 708. EFFECT OF DEROGATION OF EXPORT-IMPORT BANKING FINANCING.
Nothing in this title shall be interpreted as superseding the provisions of
section 1912 of the Export-Import Bank Act Amendments of 1978, except that in
the event of an assessment of duty based on a derogation under section 706 or
action under section 703(d)(1)(B), the Secretary of the Treasury shall not
authorize the Bank to provide guarantees, insurance and credits to competing
United States sellers pursuant to section 1912 of such Act.
(19 U.S.C. 1671g)
Sec. 709
SEC. 709. CONDITIONAL PAYMENT OF COUNTERVAILING DUTY.
(a) In General. For all entries, or withdrawals from warehouse, for
consumption of merchandise subject to a countervailing duty order on or after
the date of publication of such order, no customs officer may deliver
merchandise of that class or kind to the person by whom or for whose account it
was imported unless that person complies with the requirement of subsection (b)
and deposits with the appropriate customs officer an estimated countervailing
duty in an amount determined by the administering authority.
(b) Importer Requirements. In order to meet the requirements of this
subsection, a person shall
(1) furnish, or arrange to have furnished, to the appropriate customs officer
such information as the administering authority deems necessary for ascertaining
any countervailing duty to be imposed under this subtitle,
(2) maintain and furnish to the customs officer such records concerning such
merchandise as the administering authority, by regulation, requires, and
(3) pay, or agree to pay on demand, to the customs officer the amount of
countervailing duty imposed under this subtitle on that merchandise.
(19 U.S.C. 1671h)
Subtitle B Imposition of Antidumping Duties
Sec. 731
SEC. 731. ANTIDUMPING DUTIES IMPOSED.
If
(1) the administering authority determines that a class or kind of foreign
merchandise is being, or is likely to be, sold in the United States at less than
its fair value, and
(2) the Commission determines that
(A) an industry in the United States
(i) is materially injured, or
(ii) is threatened with material injury, or
(B) the establishment of an industry in the United States is materially
retarded,
by reason of imports of that merchandise or by reason of sales (or the
likelihood of sales) of that merchandise for importation,
then there shall be imposed upon such merchandise an antidumping duty, in
addition to any other duty imposed, in an amount equal to the amount by which
the normal value exceeds the export price (or the constructed export price) for
the merchandise. For purposes of this subsection and section 735(b)(1), a
reference to the sale of foreign merchandise includes the entering into of any
leasing arrangement regarding the merchandise that is equivalent to the sale of
the merchandise.
(19 U.S.C. 1673)
Sec. 732
SEC. 732. PROCEDURES FOR INITIATING AN ANTIDUMPING DUTY INVESTIGATION.
(a) Initiation by Administering Authority.
(1) In general. An antidumping duty investigation shall be initiated whenever
the administering authority determines, from information available to it, that a
formal investigation is warranted into the question of whether the elements
necessary for the imposition of a duty under section 731 exist.
(2) Cases involving persistent dumping.
(A) Monitoring. The administering authority may establish a monitoring
program with respect to imports of a class or kind of merchandise from any
additional supplier country for a period not to exceed one year if
(i) more than one antidumping order is in effect with respect to that class or
kind of merchandise;
(ii) in the judgment of the administering authority there is reason to believe
or suspect an extraordinary pattern of persistent injurious dumping from one or
more additional supplier countries; and
(iii) in the judgment of the administering authority this extraordinary
pattern is causing a serious commercial problem for the domestic industry.
(B) If during the period of monitoring referred to in subparagraph (A), the
administering authority determines that there is sufficient information to
initiate 1 a formal investigation under this subsection regarding an additional
supplier country, the administering authority shall immediately commence 1 such
an investigation.
1 Section 233(a)(6)(C) of P.L. 103 465 amended this subparagraph by striking
"commence" and inserting "initiate". The word "commence" appears twice, but
executed the first place such term appears.
(C) Definition. For purposes of this paragraph, the term "additional supplier
country" means a country regarding which no antidumping investigation is
currently pending, and no antidumping duty order is currently in effect, with
respect to imports of the class or kind of merchandise covered by subparagraph
(A).
(D) Expeditious action. The administering authority and the Commission, to
the extent practicable, shall expedite proceedings under this subtitle
undertaken as a result of a formal investigation initiated under subparagraph
(B).
(b) Initiation by Petition.
(1) Petition requirements. An antidumping proceeding shall be initiated
whenever an interested party described in subparagraph (C), (D), (E), (F), or
(G) of section 771(9) files a petition with the administering authority, on
behalf of an industry, which alleges the elements necessary for the imposition
of the duty imposed by section 731, and which is accompanied by information
reasonably available to the petitioner supporting those allegations. The
petition may be amended at such time, and upon such conditions, as the
administering authority and the Commission may permit.
(2) Simultaneous filing with commission. The petitioner shall file a copy of
the petition with the Commission on the same day as it is filed with the
administering authority.
(3) Action with respect to petitions.
(A) Notification of governments. Upon receipt of a petition filed under
paragraph (1), the administering authority shall notify the government of any
exporting country named in the petition by delivering a public version of the
petition to an appropriate representative of such country.
(B) Acceptance of communications. The administering authority shall not
accept any unsolicited oral or written communication from any person other than
an interested party described in section 771(9) (C), (D), (E), (F), or (G)
before the administering authority makes its decision whether to initiate an
investigation, except as provided in subsection (c)(4)(D), and except for
inquiries regarding the status of the administering authority's consideration of
the petition.
(C) Nondisclosure of certain information. The administering authority and the
Commission shall not dis- close information with regard to any draft petition
sub- mitted for review and comment before it is filed under paragraph (1).
(c) Petition Determination.
(1) In general.
(A) Time for initial determination. Except as provided in subparagraph (B),
within 20 days after the date on which a petition is filed under subsection (b),
the administering authority shall
(i) after examining, on the basis of sources readily available to the
administering authority, the accuracy and adequacy of the evidence provided in
the petition, determine whether the petition alleges the elements necessary for
the imposition of a duty under section 731 and contains information reasonably
available to the petitioner supporting the allegations, and
(ii) determine if the petition has been filed by or on behalf of the industry.
(B) Extension of time. In any case in which the administering authority is
required to poll or otherwise determine support for the petition by the industry
under paragraph (4)(D), the administering authority may, in exceptional
circumstances, apply subparagraph (A) by substituting "a maximum of 40 days" for
"20 days".
(C) Time limits where petition involves same merchandise as an order that has
been revoked. If a petition is filed under this section with respect to
merchandise that was the subject merchandise of
(i) an antidumping duty order or finding that was revoked under section 751(d)
in the 24 months preceding the date the petition is filed, or
(ii) a suspended investigation that was terminated under section 751(d) in the
24 months preceding the date the petition is filed,
the administering authority and the Commission shall, to the maximum extent
practicable, expedite any investigation initiated under this section with
respect to the petition.
(2) Affirmative determinations. If the determinations under clauses (i) and
(ii) of paragraph (1)(A) are affirmative, the administering authority shall
initiate an investigation to determine whether the subject merchandise is being,
or is likely to be, sold in the United States at less than its fair value.
(3) Negative determinations. If the determination under clause (i) or (ii) of
paragraph (1)(A) is negative, the administering authority shall dismiss the
petition, terminate the proceeding, and notify the petitioner in writing of the
reasons for the determination.
(4) Determination of industry support.
(A) General rule. For purposes of this subsection, the administering
authority shall determine that the petition has been filed by or on behalf of
the industry, if
(i) the domestic producers or workers who support the petition account for at
least 25 percent of the total production of the domestic like product, and
(ii) the domestic producers or workers who support the petition account for
more than 50 percent of the production of the domestic like product produced by
that portion of the industry expressing support for or opposition to the
petition.
(B) Certain positions disregarded.
(i) Producers related to foreign producers. In determining industry support
under subparagraph (A), the administering authority shall disregard the
position of domestic producers who oppose the petition, if such producers are
related to foreign producers, as defined in section 771(4)(B)(ii), unless such
domestic producers demonstrate that their interests as domestic producers would
be adversely affected by the imposition of an antidumping duty order.
(ii) Producers who are importers. The administering authority may disregard
the position of domestic producers of a domestic like product who are importers
of the subject merchandise.
(C) Special rule for regional industries. If the petition alleges the
industry is a regional industry, the administering authority shall determine
whether the petition has been filed by or on behalf of the industry by applying
subparagraph (A) on the basis of production in the region.
(D) Polling the industry. If the petition does not establish support of
domestic producers or workers accounting for more than 50 percent of the total
production of the domestic like product, the administering authority shall
(i) poll the industry or rely on other information in order to determine if
there is support for the petition as required by subparagraph (A), or
(ii) if there is a large number of producers in the industry, the
administering authority may determine industry support for the petition by using
any statistically valid sampling method to poll the industry.
(E) Comments by interested parties. Before the administering authority makes
a determination with respect to initiating an investigation, any person who
would qualify as an interested party under section 771(9) if an investigation
were initiated, may submit comments or information on the issue of industry
support. After the administering authority makes a determination with respect to
initiating an investigation, the determination regarding industry support shall
not be reconsidered.
(5) Definition of domestic producers or workers. For purposes of this
subsection, the term "domestic producers or workers" means those interested
parties who are eligible to file a petition under subsection (b)(1)(A).
(d) Notification to Commission of Determination. The administering authority
shall
(1) notify the Commission immediately of any determination it makes under
subsection (a) or (c), and
(2) if the determination is affirmative, make available to the Commission such
information as it may have relating to the matter under investigation, under
such procedures as the administering authority and the Commission may establish
to prevent disclosure, other than with the consent of the party providing it or
under protective order, of any information to which confidential treatment has
been given by the administering authority.
(e) Information Regarding Critical Circumstances. If, at any time after the
initiation of an investigation under this subtitle, the administering authority
finds a reasonable basis to suspect that
(1) there is a history of dumping in the United States or elsewhere of the the
subject merchandise, or
(2) the person by whom, or for whose account, the merchandise was imported
knew, or should have known, that the exporter was selling the subject
merchandise at less than its fair value,
the administering authority may request the Commissioner of Customs to compile
information on an expedited basis regarding entries of the subject merchandise.
Upon receiving such request, the Commissioner of Customs shall collect
information regarding the volume and value of entries of the subject merchandise
and shall transmit such information to the administering authority at such times
as the administering authority shall direct (at least once every 30 days), until
a final determination is made under section 735(a), the investigation is
terminated, or the administering authority withdraws the request.
(19 U.S.C. 1673a)
Sec. 733
SEC. 733. PRELIMINARY DETERMINATIONS.
(a) Determination by Commission of Reasonable Indication of Injury.
(1) General rule. Except in the case of a petition dismissed by the
administering authority under section 732(c)(3), the Commission, within the time
specified in paragraph (2), shall determine, based on the information available
to it at the time of the determination, whether there is a reasonable indication
that
(A) an industry in the United States
(i) is materially injured, or
(ii) is threatened with material injury, or
(B) the establishment of an industry in the United States is materially
retarded,
by reason of imports of the subject merchandise and that imports of the
subject merchandise are not negligible. If the Commission finds that imports of
the subject merchandise are negligible or otherwise makes a negative
determination under this paragraph, the investigation shall be terminated.
(2) Time for commission determination. The Commission shall make the
determination described in paragraph (1)
(A) in the case of a petition filed under section 732(b)
(i) within 45 days after the date on which the petition is filed, or
(ii) if the time has been extended pursuant to section 732(c)(1)(B), within 25
days after the date on which the Commission receives notice from the
administering authority of initiation of the investigation, and
(B) in the case of an investigation initiated under section 732(a), within 45
days after the date on which the Commission receives notice from the
administering authority that an investigation has been initiated under such
section.
(b) Preliminary Determination by Administering Authority.
(1) Period of antidumping duty investigation.
(A) In general. Except as provided in subparagraph (B), within 140 days after
the date on which the administering authority initiates an investigation under
section 732(c), or an investigation is initiated under section 732(a), but not
before an affirmative determination by the Commission under subsection (a) of
this section, the administering authority shall make a determination, based upon
the information available to it at the time of the determination, of whether
there is a reasonable basis to believe or suspect that the merchandise is being
sold, or is likely to be sold at less than fair value.
(B) If certain short life cycle merchandise involved. If a petition filed
under section 732(b), or an investigation initiated under section 732(a),
concerns short life cycle merchandise that is included in a product category
established under section 739(a), subparagraph (A) shall be applied
(i) by substituting "100 days" for "140 days" if manufacturers that are second
offenders account for a significant proportion of the merchandise under
investigation, and
(ii) by substituting "80 days" for "140 days" if manufacturers that are
multiple offenders account for a significant proportion of the merchandise under
investigation.
(C) Definitions of offenders. For purposes of subparagraph (B)
(i) the term "second offender" means a manufacturer that is specified in 2
affirmative dumping determinations (within the meaning of section 739) as the
manufacturer of short life cycle merchandise that is
(I) specified in both such determinations, and
(II) within the scope of the product category referred to in subparagraph (B).
(ii) the term "multiple offender" means a manufacturer that is specified in 3
or more affirmative dumping determinations (within the meaning of section 739)
as the manufacturer of short life cycle merchandise that is
(I) specified in each of such determinations, and
(II) within the scope of the product category referred to in subparagraph (B).
(2) Preliminary determination under waiver of verification. Within 75 days
after the initiation of an investigation, the administering authority shall
cause an official designated for such purpose to review the information
concerning the case received during the first 60 days of the investigation, and,
if there appears to be sufficient information available upon which the
preliminary determination can reasonably be based, to disclose to the petitioner
and any interested party, then a party to the proceedings that requests such
disclosure, all available non-confidential information and all other information
which is disclosed pursuant to section 777. Within 3 days (not counting
Saturdays, Sundays, or legal public holidays) after such disclosure, the
petitioner and each party which is an interested party described in subparagraph
(C), (D), (E), (F), or (G) of section 771(9) to whom such disclosure was made
may furnish to the administering authority an irrevocable written waiver of
verification of the information received by the authority, and an agreement that
it is willing to have a preliminary determination made on the basis of the
record then available to the authority. If a timely waiver and agreement have
been received from the petitioner and each party which is an interested party
described in subparagraph (C), (D), (E), (F), or (G) of section 771(9) to whom
the disclosure was made, and the authority finds that sufficient information is
then available upon which the preliminary determination can reasonably be based,
a preliminary determination shall be made within 90 days after the initiation of
the investigation on the basis of the record established during the first 60
days after the investigation was initiated.
(3) De minimis dumping margin. In making a determination under this
subsection, the administering authority shall disregard any weighted average
dumping margin that is de minimis. For purposes of the preceding sentence, a
weighted average dumping margin is de minimis if the administering authority
determines that it is less than 2 percent ad valorem or the equivalent specific
rate for the subject merchandise.
(c) Extension of Period in Extraordinarily Complicated Cases.
(1) In general. If
(A) the petitioner makes a timely request for an extension of the period
within which the determination must be made under subsection (b)(1), or
(B) the administering authority concludes that the parties concerned are
cooperating and determines that
(i) the case is extraordinarily complicated by reason of
(I) the number and complexity of the transactions to be investigated or
adjustments to be considered,
(II) the novelty of the issues presented, or
(III) the number of firms whose activities must be investigated, and
(ii) additional time is necessary to make the preliminary determination,
then the administering authority may postpone making the preliminary
determination under subsection (b)(1) until not later than the 190th day after
the date on which the administering authority initiates an investigation under
section 732(c), or an investigation is initiated under section 732(a). No
extension of a determination date may be made under this paragraph for any
investigation in which a determination date provided for in subsection (b)(1)(B)
applies unless the petitioner submits written notice to the administering
authority of its consent to the extension.
(2) Notice of postponement. The administering authority shall notify the
parties to the investigation, not later than 20 days before the date on which
the preliminary determination would otherwise be required under subsection
(b)(1), if it intends to postpone making the preliminary determination under
paragraph (1). The notification shall include an explanation of the reasons for
the postponement, and notice of the postponement shall be published in the
Federal Register.
(d) Effect of Determination by the Administering Authority. If the
preliminary determination of the administering authority under subsection (b) is
affirmative, the administering authority
(1)(A) shall
(i) determine an estimated weighted average dumping margin for each exporter
and producer individually investigated, and
(ii) determine, in accordance with section 735(c)(5), an estimated all-others
rate for all exporters and producers not individually investigated, and
(B) shall order the posting of a cash deposit, bond, or other security, as the
administering authority deems appropriate, for each entry of the subject
merchandise in an amount based on the estimated weighted average dumping margin
or the estimated all-others rate, whichever is applicable,
(2) shall order the suspension of liquidation of all entries of merchandise
subject to the determination which are entered, or withdrawn from warehouse, for
consumption on or after the later of
(A) the date on which notice of the determination is published in the Federal
Register, or
(B) the date that is 60 days after the date on which notice of the
determination to initiate the investigation is published in the Federal
Register, and
(3) shall make available to the Commission all information upon which such
determination was based and which the Commission considers relevant to its
injury determination, under such procedures as the administering authority and
the Commission may establish to prevent disclosure, other than with the consent
of the party providing it or under protective order, of any information to which
confidential treatment has been given by the administering authority.
The instructions of the administering authority under paragraphs (1) and (2)
may not remain in effect for more than 4 months, except that the administering
authority may, at the request of exporters representing a significant proportion
of exports of the subject merchandise, extend that 4-month period to not more
than 6 months.
(e) Critical Circumstances Determinations.
(1) In general. If a petitioner alleges critical circumstances in its
original petition, or by amendment at any time more than 20 days before the date
of a final determination by the administering authority, then the administering
authority shall promptly (at any time after the initiation of the investigation
under this subtitle) determine, on the basis of the information available to it
at that time, whether there is a reasonable basis to believe or suspect that
(A)(i) there is a history of dumping and material injury by reason of dumped
imports in the United States or elsewhere of the subject merchandise, or
(ii) the person by whom, or for whose account, the merchandise was imported
knew or should have known that the exporter was selling the subject merchandise
at less than its fair value and that there was likely to be material injury by
reason of such sales, and
(B) there have been massive imports of the subject merchandise over a
relatively short period.
The administering authority shall be treated as having made an affirmative
determination under subparagraph (A) in any investigation to which subsection
(b)(1)(B) is applied.
(2) Suspension of liquidation. If the determination of the administering
authority under paragraph (1) is affirmative, then any suspension of liquidation
ordered under subsection (d)(2) shall apply, or, if notice of such suspension of
liquidation is already published, be amended to apply, to unliquidated entries
of merchandise entered, or withdrawn from warehouse, for consumption on or after
the later of
(A) the date which is 90 days before the date on which the suspension of
liquidation was first ordered, or
(B) the date on which notice of the determination to initiate the
investigation is published in the Federal Register.
(f) Notice of Determination. Whenever the Commission or the administering
authority makes a determination under this section, the Commission or the
administering authority, as the case may be, shall notify the petitioner, and
other parties to the investigation, and the Commission or the administering
authority (whichever is appropriate) of its determination. The administering
authority shall include with such notification the facts and conclusions on
which its determination is based. Not later than 5 days after the date on which
the determination is required to be made under subsection (a)(2), the Commission
shall transmit to the administering authority the facts and conclusions on which
its determination is based.
(19 U.S.C. 1673b)
Sec. 734
SEC. 734. TERMINATION OR SUSPENSION OF INVESTIGATION.
(a) Termination of Investigation Upon Withdrawal of Petition.
(1) In general.
(A) Withdrawal of petition. Except as provided in paragraphs (2) and (3), an
investigation under this subtitle may be terminated by either the administering
authority or the Commission, after notice to all parties to the investigation,
upon withdrawal of the petition by the petitioner or by the administering
authority if the investigation was initiated under section 732(a).
(B) Refiling of petition. If, within 3 months after the withdrawal of a
petition under subparagraph (A), a new petition is filed seeking the imposition
of duties on both the subject merchandise of the withdrawn petition and the
subject merchandise from another country, the administering authority and the
Commission may use in the investigation initiated pursuant to the new petition
any records compiled in an investigation conducted pursuant to the withdrawn
petition. This subparagraph applies only with respect to the first withdrawal of
a petition.
(2) Special rules for quantitative restriction agreements.
(A) In general. Subject to subparagraphs (B) and (C), the administering
authority may not terminate an investigation under paragraph (1) by accepting an
understanding or other kind of agreement to limit the volume of imports into the
United States of the subject merchandise unless the administering authority is
satisfied that termination on the basis of that agreement is in the public
interest.
(B) Public interest factors. In making a decision under subparagraph (A)
regarding the public interest the administering authority shall take into
account
(i) whether, based upon the relative impact on consumer prices and the
availability of supplies of the merchandise, the agreement would have a greater
adverse impact on United States consumers than the imposition of antidumping
duties;
(ii) the relative impact on the international economic interests of the United
States; and
(iii) the relative impact on the competitiveness of the domestic industry
producing the like merchandise, including any such impact on employment and
investment in that industry.
(C) Prior consultations. Before making a decision under subparagraph (A)
regarding the public interest, the administering authority shall, to the extent
practicable, consult with
(i) potentially affected consuming industries; and
(ii) potentially affected producers and workers in the domestic industry
producing the like merchandise, including producers and workers not party to the
investigation.
(3) Limitation on termination by commission. The Commission may not terminate
an investigation under paragraph (1) before a preliminary determination is made
by the administering authority under section 733(b).
(b) Agreements To Eliminate Completely Sales at Less Than Fair Value or To
Cease Exports of Merchandise. The administering authority may suspend an
investigation if the exporters of the subject merchandise who account for
substantially all of the imports of that merchandise agree
(1) to cease exports of the merchandise to the United States within 6 months
after the date on which the investigation is suspended, or
(2) to revise their prices to eliminate completely any amount by which the
normal value of the merchandise which is the subject of the agreement exceeds
the export price (or the constructed export price) of that merchandise.
(c) Agreements Eliminating Injurious Effect.
(1) General rule. If the administering authority determines that
extraordinary circumstances are present in a case, it may suspend an
investigation upon the acceptance of an agreement to revise prices from
exporters of the subject merchandise who account for substantially all of the
imports of that merchandise into the United States, if the agreement will
eliminate completely the injurious effect of exports to the United States of
that merchandise and if
(A) the suppression or undercutting of price levels of domestic products by
imports of that merchandise will be prevented, and
(B) for each entry of each exporter the amount by which the estimated normal
value exceeds the export price (or the constructed export price) will not exceed
15 percent of the weighted average amount by which the estimated normal value
exceeded the export price (or the constructed export price) for all
less-than-fair-value entries of the exporter examined during the course of the
investigation.
(2) Definition of extraordinary circumstances.
(A) Extraordinary circumstances. For purposes of this subsection, the term
"extraordinary circumstances" means circumstances in which
(i) suspension of an investigation will be more beneficial to the domestic
industry than continuation of the investigation, and
(ii) the investigation is complex.
(B) Complex. For purposes of this paragraph, the term "complex" means
(i) there are a large number of transactions to be investigated or adjustments
to be considered,
(ii) the issues raised are novel, or
(iii) the number of firms involved is large.
(d) Additional Rules and Conditions. The administering authority may not
accept an agreement under subsection (b) or (c) unless
(1) it is satisfied that suspension of the investigation is in the public
interest, and
(2) effective monitoring of the agreement by the United States is practicable.
Where practicable, the administering authority shall provide to the exporters
who would have been subject to the agreement the reasons for not accepting the
agreement and, to the extent possible, an opportunity to submit comments
thereon.
(e) Suspension of Investigation Procedure. Before an investigation may be
suspended under subsection (b) or (c) the administering authority shall
(1) notify the petitioner of, and consult with the petitioner concerning, its
intention to suspend the investigation, and notify other parties to the
investigation and the Commission not less than 30 days before the date on which
it suspends the investigation,
(2) provide a copy of the proposed agreement to the petitioner at the time of
the notification, together with an explanation of how the agreement will be
carried out and enforced, and of how the agreement will meet the requirements of
subsections (b) and (d) or (c) and (d), and
(3) permit all interested parties described in section 771(9) to submit
comments and information for the record before the date on which notice of
suspension of the investigation is published under subsection (f)(1)(A).
(f) Effects of Suspension of Investigation.
(1) In general. If the administering authority determines to suspend an
investigation upon acceptance of an agreement described in subsection (b) or
(c), then
(A) it shall suspend the investigation, publish notice of suspension of the
investigation, and issue an affirmative preliminary determination under section
733(b) with respect to the subject merchandise, unless it has previously issued
such a determination in the same investigation,
(B) the Commission shall suspend any investigation it is conducting with
respect to that merchandise, and
(C) the suspension of investigation shall take effect on the day on which such
notice is published.
(2) Liquidation of entries.
(A) Cessation of exports; complete elimination of dumping margin. If the
agreement accepted by the administering authority is an agreement described in
subsection (b), then
(i) notwithstanding the affirmative preliminary determination required under
paragraph (1)(A), the liquidation of entries of subject merchandise shall not be
suspended under section 733(d)(2),
(ii) if the liquidation of entries of such merchandise was suspended pursuant
to a previous affirmative preliminary determination in the same case with
respect to such merchandise, that suspension of liquidation shall terminate, and
(iii) the administering authority shall refund any cash deposit and release
any bond or other security deposited under section 733(d)(1)(B).
(B) Other agreements. If the agreement accepted by the administering
authority is an agreement described in subsection (c), the liquidation of
entries of the subject merchandise shall be suspended under section 733(d)(2),
or, if the liquidation of entries of such merchandise was suspended pursuant to
a previous affirmative preliminary determination in the same case, that
suspension of liquidation shall continue in effect, subject to subsection
(h)(3), but the security required under section 733(d)(1)(B) may be adjusted to
reflect the effect of the agreement.
(3) Where investigation is continued. If, pursuant to subsection (g), the
administering authority and the Commission continue an investigation in which an
agreement has been accepted under subsection (b) or (c), then
(A) if the final determination by the administering authority or the
Commission under section 735 is negative, the agreement shall have no force or
effect and the investigation shall be terminated, or
(B) if the final determinations by the administering authority and the
Commission under such section are affirmative, the agreement shall remain in
force, but the administering authority shall not issue an antidumping duty order
in the case so long as
(i) the agreement remains in force,
(ii) the agreement continues to meet the requirements of subsections (b) and
(d), or (c) and (d), and
(iii) the parties to the agreement carry out their obligations under the
agreement in accordance with its terms.
(g) Investigation To Be Continued Upon Request. If the administering
authority, within 20 days after the date of publication of the notice of
suspension of an investigation, receives a request for the continuation of the
investigation from
(1) an exporter or exporters accounting for a significant proportion of
exports to the United States of the subject merchandise, or
(2) an interested party described in subparagraph (C), (D), (E), (F), or (G)
of section 771(9) which is a party to the investigation,
then the administering authority and the Commission shall continue the
investigation.
(h) Review of Suspension.
(1) In general. Within 20 days after the suspension of an investigation under
subsection (c), an interested party which is a party to the investigation and
which is described in subparagraph (C), (D), (E), (F), or (G) of section 771(9)
may, by petition filed with the Commission and with notice to the administering
authority, ask for a review of the suspension.
(2) Commission investigation. Upon receipt of a review petition under
paragraph (1), the Commission shall, within 75 days after the date on which the
petition is filed with it, determine whether the injurious effect of imports of
the subject merchandise is eliminated completely by the agreement. If the
Commission's determination under this subsection is negative, the investigation
shall be resumed on the date of publication of notice of such determination as
if the affirmative preliminary determination under section 733(b) had been made
on that date.
(3) Suspension of liquidation to continue during review period. The
suspension of liquidation of entries of the subject merchandise shall terminate
at the close of the 20-day period beginning on the day after the date on which
notice of suspension of the investigation is published in the Federal Register,
or, if a review petition is filed under paragraph (1) with respect to the
suspension of the investigation, in the case of an affirmative determination by
the Commission under paragraph (2), the date on which notice of an affirmative
determination by the Commission is published. If the determination of the
Commission under paragraph (2) is affirmative, then the administering authority
shall
(A) terminate the suspension of liquidation under section 733(d)(2), and
(B) release any bond or other security, and refund any cash deposit, required
under section 733(d)(1)(B).
(i) Violation of Agreement.
(1) In general. If the administering authority determines that an agreement
accepted under subsection (b) or (c) is being, or has been, violated, or no
longer meets the requirements of such subsection (other than the requirement,
under subsection (c)(1), of elimination of injury) and subsection (d), then, on
the date of publication of its determination, it shall
(A) suspend liquidation under section 733(d)(2) of unliquidated entries of the
merchandise made on the later of
(i) the date which is 90 days before the date of publication of the notice of
suspension of liquidation, or
(ii) the date on which the merchandise, the sale or export to the United
States of which was in violation of the agreement, or under an agreement which
no longer meets the requirements of subsections (b) and (d) or (c) and (d), was
first entered, or withdrawn from warehouse, for consumption,
(B) if the investigation was not completed, resume the investigation as if its
affirmative preliminary determination were made on the date of its determination
under this paragraph,
(C) if the investigation was completed under subsection (g), issue an
antidumping duty order under section 736(a) effective with respect to entries of
merchandise liquidation of which was suspended,
(D) if it considers the violation to be intentional, notify the Commissioner
of Customs who shall take appropriate action under paragraph (2), and
(E) notify the petitioner, interested parties who are or were parties to the
investigation, and the Commission of its action under this paragraph.
(2) Intentional violation to be punished by civil penalty. Any person who
intentionally violates an agreement accepted by the administering authority
under subsection (b) or (c) shall be subject to a civil penalty assessed in the
same amount, in the same manner, and under the same procedures, as the penalty
imposed for a fraudulent violation of section 592(a) of this Act.
(j) Determination Not To Take Agreement Into Account. In making a final
determination under section 735, or in conducting a review under section 751, in
a case in which the administering authority has terminated a suspension of
investigation under subsection (i)(1), or continued an investigation under
subsection (g), the Commission and the administering authority shall consider
all of the subject merchandise, without regard to the effect of any agreement
under subsection (b) or (c).
(k) Termination of Investigation Initiated by Administering Authority. The
administering authority may terminate any investigation initiated by the
administering authority under section 732(a) after providing notice of such
termination to all parties to the investigation.
(l) Special Rule for Nonmarket Economy Countries.
(1) In general. The administering authority may suspend an investigation
under this subtitle upon acceptance of an agreement with a nonmarket economy
country to restrict the volume of imports into the United States of the
merchandise under investigation only if the administering authority determines
that
(A) such agreement satisfies the requirements of subsection (d), and
(B) will prevent the suppression or undercutting of price levels of domestic
products by imports of the merchandise under investigation.
(2) Failure of agreements. If the administering authority determines that an
agreement accepted under this subsection no longer prevents the suppression or
undercutting of domestic prices of merchandise manufactured in the United
States, the provisions of subsection (i) shall apply.
(m) Special Rule for Regional Industry Investigations.
(1) Suspension agreements. If the Commission makes a regional industry
determination under section 771(4)(C), the administering authority shall offer
exporters of the subject merchandise who account for substantially all exports
of that merchandise for sale in the region concerned the opportunity to enter
into an agreement described in subsection (b), (c), or (l).
(2) Requirements for suspension agreements. Any agreement described in
paragraph (1) shall be subject to all the requirements imposed under this
section for other agreements under subsection (b), (c), or (l), except that if
the Commission makes a regional industry determination described in paragraph
(1) in the final affirmative determination under section 735(b) but not in the
preliminary affirmative determination under section 733(a), any agreement
described in paragraph (1) may be accepted within 60 days after the antidumping
order is published under section 736.
(3) Effect of suspension agreement on antidumping duty order. If an agreement
described in paragraph (1) is accepted after the antidumping duty order is
published, the administering authority shall rescind the order, refund any cash
deposit and release any bond or other security deposited under section
733(d)(1)(B), and instruct the Customs Service that entries of the subject
merchandise that were made during the period that the order was in effect shall
be liquidated without regard to antidumping duties.
(19 U.S.C. 1673c)
Sec. 735
SEC. 735. FINAL DETERMINATIONS.
(a) Final Determination by Administering Authority.
(1) General rule. Within 75 days after the date of its preliminary
determination under section 733(b), the administering authority shall make a
final determination of whether the subject merchandise is being, or is likely to
be, sold in the United States at less than its fair value.
(2) Extension of period for determination. The administering authority may
postpone making the final determination under paragraph (1) until not later than
the 135th day after the date on which it published notice of its preliminary
determination under section 733(b) if a request in writing for such a
postponement is made by
(A) exporters who account for a significant proportion of exports of the
merchandise which is the subject of the investigation, in a proceeding in which
the preliminary determination by the administering authority under section
733(b) was affirmative, or
(B) the petitioner, in a proceeding in which the preliminary determination by
the administering authority under section 733(b) was negative.
(3) Critical circumstances determinations. If the final determination of the
administering authority is affirmative, then that determination, in any
investigation in which the presence of critical circumstances has been alleged
under section 733(e), shall also contain a finding of whether
(A)(i) there is a history of dumping and material injury by reason of dumped
imports in the United States or elsewhere of the subject merchandise, or
(ii) the person by whom, or for whose account, the merchandise was imported,
knew or should have known 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, and
(B) there have been massive imports of the subject merchandise over a
relatively short period.
Such findings may be affirmative even though the preliminary determination
under section 733(e)(1) was negative.
(4) De minimis dumping margin. In making a determination under this
subsection, the administering authority shall disregard any weighted average
dumping margin that is de minimis as defined in section 733(b)(3).
(b) Final Determination by Commission.
(1) In general. The Commission shall make a final determination of whether
(A) an industry in the United States
(i) is materially injured, or
(ii) is threatened with material injury, or
(B) the establishment of an industry in the United States is materially
retarded,
by reason of imports, or sales (or the likelihood of sales) for importation,
of the merchandise with respect to which the administering authority has made an
affirmative determination under subsection (a)(1). If the Commission determines
that imports of the subject merchandise are negligible, the investigation shall
be terminated.
(2) Period for injury determination following affirmative preliminary
determination by administering authority. If the preliminary determination by
the administering authority under section 733(b) is affirmative, then the
Commission shall make the determination required by paragraph (1) before the
later of
(A) the 120th day after the day on which the administering authority makes its
affirmative preliminary determination under section 733(b), or
(B) the 45th day after the day on which the administering authority makes its
affirmative final determination under subsection (a).
(3) Period for injury determination following negative preliminary
determination by administering authority. If the preliminary determination by
the administering authority under section 733(b) is negative, and its final
determination under subsection (a) is affirmative, then the final determination
by the Commission under this subsection shall be made within 75 days after the
date of that affirmative final determination.
(4) Certain additional findings.
(A) Commission standard for retroactive application.
(i) In general. If the finding of the administering authority under
subsection (a)(3) is affirmative, then the final determination of the Commission
shall include a finding as to whether the imports subject to the affirmative
determination under subsection (a)(3) are likely to undermine seriously the
remedial effect of the antidumping duty order to be issued under section 736.
(ii) Factors to consider. In making the evaluation under clause (i), the
Commission shall consider, among other factors it considers relevant
(I) the timing and the volume of the imports,
(II) a rapid increase in inventories of the imports, and
(III) any other circumstances indicating that the remedial effect of the
antidumping order will be seriously undermined.
(B) If the final determination of the Commission is that there is no material
injury but that there is threat of material injury, then its determination shall
also include a finding as to whether material injury by reason of the imports of
the merchandise with respect to which the administering authority has made an
affirmative determination under subsection (a) would have been found but for any
suspension of liquidation of entries of the merchandise.
(c) Effect of Final Determinations.
(1) Effect of affirmative determination by the administering authority. If
the determination of the administering authority under subsection (a) is
affirmative, then
(A) the administering authority shall make available to the Commission all
information upon which such determination was based and which the Commission
considers relevant to its determination, under such procedures as the
administering authority and the Commission may establish to prevent disclosure,
other than with the consent of the party providing it or under protective order,
of any information as to which confidential treatment has been given by the
administering authority,
(B)(i) the administering authority shall
(I) determine the estimated weighted average dumping margin for each exporter
and producer individually investigated, and
(II) determine, in accordance with paragraph (5), the estimated all-others
rate for all exporters and producers not individually investigated, and
(ii) the administering authority shall order the posting of a cash deposit,
bond, or other security, as the administering authority deems appropriate, for
each entry of the subject merchandise in an amount based on the estimated
weighted average dumping margin or the estimated all-others rate, whichever is
applicable, and
(C) in cases where the preliminary determination by the administering
authority under section 733(b) was negative, the administering authority shall
order the suspension of liquidation under section 733(d)(2).
(2) Issuance of order; effect of negative determination. If the
determinations of the administering authority and the Commission under
subsections (a)(1) and (b)(1) are affirmative, then the administering authority
shall issue an antidumping duty order under section 736(a). If either of such
determinations is negative, the investigation shall be terminated upon the
publication of notice of that negative determination and the administering
authority shall
(A) terminate the suspension of liqudation under section 703(d)(2), and
(B) release any bond or other security and refund any cash deposit, required
under section 733(d)(1)(B).
(3) Effect of negative determinations under subsections (a)(3) and (b)(4)(a).
If the determination of the administering authority or the Commission under
subsection (a)(3) or (b)(4)(A), respectively, is negative, then the
administering authority shall
(A) terminate any retroactive suspension of liquidation required under
paragraph (4) or section 733(e)(2), and
(B) release any bond or other security, and refund any cash deposit required,
under section 733(d)(1)(B) with respect to entries of the merchandise the
liquidation of which was suspended retroactively under section 733(e)(2).
(4) Effect of affirmative determination under subsection (a)(3). If the
determination of the administering authority under subsection (a)(3) is
affirmative, then the administering authority shall
(A) in cases where the preliminary determinations by the administering
authority under sections 733(b) and 733(e)(1) were both affirmative, continue
the retroactive suspension of liquidation and the posting of a cash deposit,
bond, or other security previously ordered under section 733(e)(2);
(B) in cases where the preliminary determination by the administering
authority under section 733(b) was affirmative, but the preliminary
determination under section 733(e)(1) was negative, shall modify any suspension
of liquidation and security requirement previously ordered under section 733(d)
to apply to unliquidated entries of merchandise entered, or withdrawn from
warehouse, for consumption on or after the date which is 90 days before the date
on which suspension of liquidation was first ordered; or
(C) in cases where the preliminary determination by the administering
authority under section 733(b) was negative, shall apply any suspension of
liquidation and security requirement ordered under subsection 735(c)(1)(B) to
unliquidated entries of merchandise entered, or withdrawn from warehouse, for
consumption on or after the date which is 90 days before the date on which
suspension of liquidation is first ordered.
(5) Method for determining estimated all-others rate.
(A) General rule. For purposes of this subsection and section 733(d), the
estimated all-others rate shall be an amount equal to the weighted average of
the estimated weighted average dumping margins established for exporters and
producers individually investigated, excluding any zero and de minimis margins,
and any margins determined entirely under section 776.
(B) Exception. If the estimated weighted average dumping margins established
for all exporters and producers individually investigated are zero or de minimis
margins, or are determined entirely under section 776, the administering
authority may use any reasonable method to establish the estimated all-others
rate for exporters and producers not individually investigated, including
averaging the estimated weighted average dumping margins determined for the
exporters and producers individually investigated.
(d) Publication of Notice of Determinations. Whenever the administering
authority or the Commission makes a determination under this section, it shall
notify the petitioner, other parties to the investigation, and the other agency
of its determination and of the facts and conclusions of law upon which the
determination is based, and it shall publish notice of its determination in the
Federal Register.
(e) Correction of Ministerial Errors. The administering authority shall
establish procedures for the correction of ministerial errors in final
determinations within a reasonable time after the determinations are issued
under this section. Such procedures shall ensure opportunity for interested
parties to present their views regarding any such errors. As used in this
subsection, the term "ministerial error" includes errors in addition,
subtraction, or other arithmetic function, clerical errors resulting from
inaccurate copying, duplication, or the like, and any other type of
unintentional error which the administering authority considers ministerial.
(19 U.S.C. 1673d)
Sec. 736
SEC. 736. ASSESSMENT OF DUTY.
(a) Publication of Antidumping Duty Order. Within 7 days after being notified
by the Commission of an affirmative determination under section 735(b), the
administering authority shall publish an antidumping duty order which
(1) directs customs officers to assess an antidumping duty equal to the amount
by which the normal value of the merchandise exceeds the export price (or the
constructed export price) of the merchandise, within 6 months after the date on
which the administering authority receives satisfactory information upon which
the assessment may be based, but in no event later than
(A) 12 months after the end of the annual accounting period of the
manufacturer or exporter within which the merchandise is entered, or withdrawn
from warehouse, for consumption, or
(B) in the case of merchandise not sold prior to its importation into the
United States, 12 months after the end of the annual accounting period of the
manufacturer or exporter within which it is sold in the United States to a
person who is not the exporter of that merchandise,
(2) includes a description of the subject merchandise, in such detail as the
administering authority deems necessary, and
(3) requires the deposit of estimated antidumping duties pending liquidation
of entries of merchandise at the same time as estimated normal customs duties on
that merchandise are deposited.
(b) Imposition of Duty.
(1) General rule. If the Commission, in its final determination under section
735(b), finds material injury or threat of material injury which, but for the
suspension of liquidation under section 733(d)(2) would have led to a finding of
material injury, then entries of the subject merchandise, the liquidation of
which has been suspended under section 733(d)(2), shall be subject to the
imposition of antidumping duties under section 731.
(2) Special rule. If the Commission, in its final determination under section
735(b), finds threat of material injury, other than threat of material injury
described in paragraph (1), or material retardation of the establishment of an
industry in the United States, then subject merchandise which is entered, or
withdrawn from warehouse, for consumption on or after the date of publication of
notice of an affirmative determination of the Commission under section 735(b)
shall be subject to the assessment of antidumping duties under section 731, and
the administering authority shall release any bond or other security, and refund
any cash deposit made, to secure the payment of antidumping duties with respect
to entries of the merchandise entered, or withdrawn from warehouse, for
consumption before that date.
(c) Security in Lieu of Estimated Duty Pending Early Determination of Duty.
(1) Conditions for waiver of deposit of estimated duties. The administering
authority may permit, for not more than 90 days after the date of publication of
an order under subsection (a), the posting of a bond or other security in lieu
of the deposit of estimated antidumping duties required under subsection (a)(3)
if
(A) the investigation has not been designated as extraordinarily complicated
by reason of
(i) the number and complexity of the transactions to be investigated or
adjustments to be considered,
(ii) the novelty of the issues presented, or
(iii) the number of firms whose activities must be investigated,
(B) the final determination in the investigation has not been postponed under
section 735(a)(2)(A);
(C) on the basis of information presented to the administering authority by
any manufacturer, producer, or exporter in such form and within such time as the
administering authority may require, the administering authority is satisfied
that a determination will be made, within 90 days after the date of publication
of an order under subsection (a), of the normal value and the export price (or
the constructed export price) for all merchandise of such manufacturer,
producer, or exporter described in that order which was entered, or withdrawn
from warehouse, for consumption on or after the date of publication of
(i) an affirmative preliminary determination by the adminstering authority
under section 733(b), or
(ii) if its determination under section 733(b) was negative, an affirmative
final determination by the administering authority under section 735(a),
and before the date of publication of the affirmative final determination by
the Commission under section 735(b);
(D) the party described in subparagraph (C) provides credible evidence that
the amount by which the normal value of the merchandise exceeds the export price
(or the constructed export price) of the merchandise is significantly less than
the amount of such excess specified in the antidumping duty order published
under subsection (a); and
(E) the data concerning the normal value and the export price (or the
constructed export price) apply to sales in the usual commercial quantities and
in the ordinary course of trade and the number of such sales are sufficient to
form an adequate basis for comparison.
(2) Notice; hearing. If the administering authority permits the posting of a
bond or other security in lieu of the deposit of estimated antidumping duties
under paragraph (1), it shall
(A) publish notice of its action in the Federal Register, and
(B) upon the request of any interested party, hold a hearing in accordance
with section 774 before determining the normal value and the export price (or
the constructed export price) of the merchandise.
(3) Determinations to be basis of antidumping duty. The administering
authority shall publish notice in the Federal Register of the results of its
determination of normal value and export price (or the constructed export
price), and that determination shall be the basis for the assessment of
antidumping duties on entries of merchandise to which the notice under this
subsection applies and also shall be the basis for the deposit of estimated
antidumping duties on future entries of merchandise of manufacturers, producers,
or exporters described in paragraph (1) to which the order issued under
subsection (a) applies.
(4) Provision of business proprietary information; written comments. Before
determining whether to permit the posting of bond or other security under
paragraph (1) in lieu of the deposit of estimated antidumping duties, the
administering authority shall
(A) make all business proprietary information supplied to the administering
authority under paragraph (1) available under a protective order in accordance
with section 777(c) to all interested parties described in subparagraph (C),
(D), (E), (F), or (G) of section 771(9), and
(B) afford all interested parties an opportunity to file written comments on
whether the posting of bond or other security under paragraph (1) in lieu of the
deposit of estimated antidumping duties should be permitted.
(d) Special Rule for Regional Industries.
(1) In general. In an investigation in which the Commission makes a regional
industry determination under section 771(4)(C), the administering authority
shall, to the maximum extent possible, direct that duties be assessed only on
the subject merchandise of the specific exporters or producers that exported the
subject merchandise for sale in the region concerned during the period of
investigation.
(2) Exception for new exporters and producers. After publication of the
antidumping duty order, if the administering authority finds that a new exporter
or producer is exporting the subject merchandise for sale in the region
concerned, the administering authority shall direct that duties be assessed on
the subject merchandise of the new exporter or producer consistent with the
provisions of section 751(a)(2)(B).
(19 U.S.C. 1673e)
Sec. 737
SEC. 737. TREATMENT OF DIFFERENCE BETWEEN DEPOSIT OF ESTIMATED ANTIDUMPING
DUTY AND FINAL ASSESSED DUTY UNDER ANTIDUMPING DUTY ORDER.
(a) Deposit of Estimated Antidumping Duty Under Section 733(d)(1)(B). If the
amount of a cash deposit collected as security for an estimated antidumping duty
under section 733(d)(1)(B) is different from the amount of the antidumping duty
determined under an antidumping duty order published under section 736, then the
difference for entries of merchandise entered, or withdrawn from warehouse, for
consumption before notice of the affirmative determination of the Commission
under section 735(b) is published shall be
(1) disregarded, to the extent the cash deposit collected is lower than the
duty under the order, or
(2) refunded, to the extent the cash deposit is higher than the duty under the
order.
(b) Deposit of Estimated Antidumping Duty Under Section 736(a)(3). If the
amount of an estimated antidumping duty deposited under section 736(a)(3) is
different from the amount of the antidumping duty determined under an
antidumping duty order published under section 736, then the difference for
entries of merchandise entered, or withdrawn from warehouse, for consumption
after notice of the affirmative determination of the Commission under section
735(b) is published shall be
(1) collected, to the extent that the deposit under section 736(a)(3) is lower
than the duty determined under the order, or
(2) refunded, to the extent that the deposit under section 736(a)(3) is higher
than the duty determined under the order,
together with interest as provided by section 778.
(19 U.S.C. 1673f)
Sec. 738
SEC. 738. CONDITIONAL PAYMENT OF ANTIDUMPING DUTY.
(a) General Rule. For all entries, or withdrawals from warehouse, for
consumption of merchandise subject to an antidumping duty order on or after the
date of publication of such order, no customs officer may deliver merchandise of
that class or kind to the person by whom or for whose account it was imported
unless that person complies with the requirements of subsection (b) and deposits
with the appropriate customs officer an estimated antidumping duty in an amount
determined by the administering authority.
(b) Importer Requirements. In order to meet the requirements of this
subsection, a person shall
(1) furnish, or arrange to have furnished, to the appropriate customs officer
such information as the administering authority deems necessary for determining
the export price (or the constructed export price) of the merchandise imported
by or for the account of that person, and such other information as the
administering authority deems necessary for ascertaining any antidumping duty to
be imposed under this title;
(2) maintain and furnish to the customs officer such records concerning the
sale of the merchandise as the administering authority, by regulation, requires;
(3) state under oath before the customs officer that he is not an exporter, or
if he is an exporter, declare under oath at the time of entry the constructed
export price of the merchandise to the customs officer if it is then known, or,
if not, so declare within 30 days after the merchandise has been sold, or has
been made the subject of an agreement to be sold, in the United States; and
(4) pay, or agree to pay on demand, to the customs officer the amount of
antidumping duty imposed under section 731 on that merchandise.
(19 U.S.C. 1673g)
Sec. 739
SEC. 739. ESTABLISHMENT OF PRODUCT CATEGORIES FOR SHORT LIFE CYCLE
MERCHANDISE.
(a) Establishment of Product Categories.
(1) Petitions.
(A) In general. An eligible domestic entity may file a petition with the
Commission requesting that a product category be established with respect to
short life cycle merchandise at any time after the merchandise becomes the
subject of 2 or more affirmative dumping determinations.
(B) Contents. A petition filed under subparagraph (A) shall
(i) identify the short life cycle merchandise that is the subject of the
affirmative dumping determinations,
(ii) specify the short life cycle merchandise that the petitioner seeks to
have included in the same product category as the merchandise that is subject to
the affirmative dumping determinations,
(iii) specify any short life cycle merchandise the petitioner particularly
seeks to have excluded from the product category,
(iv) provide reasons for the inclusions and exclusions specified under clauses
(ii) and (iii), and
(v) identify such merchandise in terms of the designations used in the
Harmonized Tariff Schedule of the United States.
(2) Determinations on sufficiency of petition. Upon receiving a petition
under paragraph (1), the Commission shall
(A) request the administering authority to confirm promptly the affirmative
determinations on which the petition is based, and
(B) upon receipt of such confirmation, determine whether the merchandise
covered by the confirmed affirmative determinations is short life cycle
merchandise and whether the petitioner is an eligible domestic entity.
(3) Notice; hearings. If the determinations under paragraph (2)(B) are
affirmative, the Commission shall
(A) publish notice in the Federal Register that the petition has been
received, and
(B) provide opportunity for the presentation of views regarding the
establishment of the requested product category, including a public hearing if
requested by any interested person.
(4) Determinations.
(A) In general. By no later than the date that is 90 days after the date on
which a petition is filed under paragraph (1), the Commission shall determine
the scope of the product category into which the short life cycle merchandise
that is the subject of the affirmative dumping determinations identified in such
petition shall be classified for purposes of this section.
(B) Modifications not requested by petition.
(i) In general. The Commission may, on its own initiative, make a
determination modifying the scope of any product category established under
subparagraph (A) at any time.
(ii) Notice and hearing. Determinations may be made under clause (i) only
after the Commission has
(I) published in the Federal Register notice of the proposed modification, and
(II) provided interested parties an opportunity for a hearing, and a period
for the submission of written comments, on the classification of merchandise
into the product categories to be affected by such determination.
(C) Basis of determinations. In making determinations under subparagraph (A)
or (B), the Commission shall ensure that each product category consists of
similar short life cycle merchandise which is produced by similar processes
under similar circumstances and has similar uses.
(b) Definitions. For purposes of this section
(1) Eligible domestic entity. The term "eligible domestic entity" means a
manufacturer or producer in the United States, or a certified union or
recognized union or group of workers which is representative of an industry in
the United States, that manufactures or produces short life cycle merchandise
that is
(A) like or directly competitive with other merchandise that is the subject of
2 or more affirmative dumping determinations, or
(B) is similar enough to such other merchandise as to be considered for
inclusion with such merchandise in a product monitoring category established
under this section.
(2) Affirmative dumping determination. The term "affirmative dumping
determination" means
(A) any affirmative final determination made by the administering authority
under section 735(a) during the 8-year period preceding the filing of the
petition under this section that results in the issuance of an antidumping duty
order under section 736 which requires the deposit of estimated antidumping
duties at a rate of not less than 15 percent ad valorem, or
(B) any affirmative preliminary determination that
(i) is made by the administering authority under section 733(b) during the
8-year period preceding the filing of the petition under this section in the
course of an investigation for which no final determination is made under
section 735 by reason of a suspension of the investigation under section 734,
and
(ii) includes a determination that the estimated average amount by which the
normal value of the merchandise exceeds the export price (or the constructed
export price) of the merchandise is not less than 15 percent ad valorem.
(3) Subject of affirmative dumping determination.
(A) In general. Short life cycle merchandise of a manufacturer shall be
treated as being the subject of an affirmative dumping determination only if the
administering authority
(i) makes a separate determination of the amount by which the normal value of
such merchandise of the manufacturer exceeds the export price (or the
constructed export price) of such merchandise of the manufacturer, and
(ii) specifically identifies the manufacturer by name with such amount in the
affirmative dumping determination or in an antidumping duty order issued as a
result of the affirmative dumping determination.
(B) Exclusion. Short life cycle merchandise of a manufacturer shall not be
treated as being the subject of an affirmative dumping determination if
(i) such merchandise of the manufacturer is part of a group of merchandise to
which the administering authority assigns (in lieu of making separate
determinations described in subparagraph (A)(i)(I)) an amount determined to be
the amount by which the normal value of the merchandise in such group exceeds
the export price (or the constructed export price) of the merchandise in such
group, and
(ii) the merchandise and the manufacturer are not specified by name in the
affirmative dumping determination or in any antidumping duty order issued as a
result of such affirmative dumping determination.
(4) Short life cycle merchandise. That term "short life cycle merchandise"
means any product that the Commission determines is likely to become outmoded
within 4 years, by reason of technological advances, after the product is
commercially available. For purposes of this paragraph, the term "outmoded"
refers to a kind of style that is no longer state-of-the-art.
(c) Transitional Rules.
(1) For purposes of this section and section 733(b)(1) (B) and (C), all
affirmative dumping determinations described in subsection (b)(2)(A) that were
made after December 31, 1980, and before the date of enactment of the Omnibus
Trade and Competitiveness Act of 1988, and all affirmative dumping
determinations described in subsection (b)(2)(B) that were made after December
31, 1984, and before the date of enactment of such Act, with respect to each
category of short life cycle merchandise of the same manufacturer shall be
treated as one affirmative dumping determination with respect to that category
for that manufacturer which was made on the date on which the latest of such
determinations was made.
(2) No affirmative dumping determination that
(A) is described in subsection (b)(2)(A) and was made before January 1, 1981,
or
(B) is described in subsection (b)(2)(B) and was made before January 1, 1985,
may be taken into account under this section or section 733(b)(1) (B) and (C).
(19 U.S.C. 1673h)
Subtitle C Reviews; Other Actions Regarding Agreements
CHAPTER 1 REVIEW OF AMOUNT OF DUTY AND AGREEMENTS OTHER THAN QUANTITATIVE
RESTRICTION AGREEMENTS
Sec. 751
SEC. 751. ADMINISTRATIVE REVIEW OF DETERMINATIONS.
(a) Periodic Review of Amount of Duty.
(1) In general. At least once during each 12-month period beginning on the
anniversary of the date of publication of a countervailing duty order under this
title or under section 303 of this Act, an antidumping duty order under this
title or a finding under the Antidumping Act, 1921, or a notice of the
suspension of an investigation, the administering authority, if a request for
such a review has been received and after publication of notice of such review
in the Federal Register, shall
(A) review and determine the amount of any net countervailable subsidy,
(B) review, and determine (in accordance with paragraph (2)), the amount of
any antidumping duty, and
(C) review the current status of, and compliance with, any agreement by reason
of which an investigation was suspended, and review the amount of any net
countervailable subsidy or dumping margin involved in the agreement,
and shall publish in the Federal Register the results of such review, together
with notice of any duty to be assessed, estimated duty to be deposited, or
investigation to be resumed.
(2) Determination of antidumping duties.
(A) In general. For the purpose of paragraph (1)(B), the administering
authority shall determine
(i) the normal value and export price (or constructed export price) of each
entry of the subject merchandise, and
(ii) the dumping margin for each such entry.
(B) Determination of antidumping or countervailing duties for new exporters
and producers.
(i) In general. If the administering authority receives a request from an
exporter or producer of the subject merchandise establishing that
(I) such exporter or producer did not export the merchandise that was the
subject of an antidumping duty or countervailing duty order 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, and
(II) such exporter or producer is not affiliated (within the meaning of
section 771(33)) 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 that
period,
the administering authority shall conduct a review under this subsection to
establish an individual weighted average dumping margin or an individual
countervailing duty rate (as the case may be) for such exporter or producer.
(ii) Time for review under clause (i). The administering authority shall
commence a review under clause (i) in the calendar month beginning after
(I) the end of the 6-month period beginning on the date of the countervailing
duty or antidumping duty order under review, or
(II) the end of any 6-month period occurring thereafter,
if the request for the review is made during that 6-month period.
(iii) Posting bond or security. The administering authority shall, at the
time a review under this subparagraph is initiated, direct the Customs Service
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.
(iv) Time limits. The administering authority shall make a preliminary
determination in a review conducted under this subparagraph within 180 days
after the date on which the review is initiated, and a final determination
within 90 days after the date the preliminary determination is issued, except
that if the administering authority concludes that the case is extraordinarily
complicated, it may extend the 180-day period to 300 days and may extend the
90-day period to 150 days.
(C) Results of determinations. The determination under this paragraph shall
be the basis for the assessment of countervailing or antidumping duties on
entries of merchandise covered by the determination and for deposits of
estimated duties.
(3) Time limits.
(A) Preliminary and final determinations. The administering authority shall
make a preliminary determination under subparagraph (A), (B), or (C) of
paragraph (1) within 245 days after the last day of the month in which occurs
the anniversary of the date of publication of the order, finding, or suspension
agreement for which the review under paragraph (1) is requested, and a final
determination under paragraph (1) within 120 days after the date on which the
preliminary determination is published. If it is not practicable to complete the
review within the foregoing time, the administering authority may extend that
245-day period to 365 days and may extend that 120-day period to 180 days. The
administering authority may extend the time for making a final determination
without extending the time for making a preliminary determination, if such final
determination is made not later than 300 days after the date on which the
preliminary determination is published.
(B) Liquidation of entries. If the administering authority orders any
liquidation of entries pursuant to a review under paragraph (1), such
liquidation shall be made promptly and, to the greatest extent practicable,
within 90 days after the instructions to Customs are issued. In any case in
which liquidation has not occurred within that 90-day period, the Secretary of
the Treasury shall, upon the request of the affected party, provide an
explanation thereof.
(C) Effect of pending review under section 516a. In a case in which a final
determination under paragraph (1) is under review under section 516A and a
liquidation of entries covered by the determination is enjoined under section
516A(c)(2) or suspended under section 516A(g)(5)(C), the administering authority
shall, within 10 days after the final disposition of the review under section
516A, transmit to the Federal Register for publication the final disposition and
issue instructions to the Customs Service with respect to the liquidation of
entries pursuant to the review. In such a case, the 90-day period referred to in
subparagraph (B) shall begin on the day on which the administering authority
issues such instructions.
(4) Absorption of antidumping duties. During any review under this subsection
initiated 2 years or 4 years after the publication of an antidumping duty order
under section 736(a), the administering authority, if requested, shall determine
whether antidumping duties have been absorbed by a foreign producer or exporter
subject to the order if the subject merchandise is sold in the United States
through an importer who is affiliated with such foreign producer or exporter.
The administering authority shall notify the Commission of its findings
regarding such duty absorption for the Commission to consider in conducting a
review under subsection (c).
(b) Reviews Based on Changed Circumstances.
(1) In general. Whenever the administering authority or the Commission
receives information concerning, or a request from an interested party for a
review of
(A) a final affirmative determination that resulted in an antidumping duty
order under this title or a finding under the Antidumping Act, 1921, or in a
countervailing duty order under this title or section 303,
(B) a suspension agreement accepted under section 704 or 734, or
(C) a final affirmative determination resulting from an investigation
continued pursuant to section 704(g) or 734(g),
which shows changed circumstances sufficient to warrant a review of such
determination or agreement, the administering authority or the Commission (as
the case may be) shall conduct a review of the determination or agreement after
publishing notice of the review in the Federal Register.
(2) Commission review. In conducting a review under this subsection, the
Commission shall
(A) in the case of a countervailing duty order or antidumping duty order or
finding, determine whether revocation of the order or finding is likely to lead
to continuation or recurrence of material injury,
(B) in the case of a determination made pursuant to section 704(h)(2) or
734(h)(2), determine whether the suspension agreement continues to eliminate
completely the injurious effects of imports of the subject merchandise, and
(C) in the case of an affirmative determination resulting from an
investigation continued under section 704(g) or 734(g), determine whether
termination of the suspended investigation is likely to lead to continuation or
recurrence of material injury.
(3) Burden of persuasion. During a review conducted by the Commission under
this subsection
(A) the party seeking revocation of an order or finding described in paragraph
(1)(A) shall have the burden of persuasion with respect to whether there are
changed circumstances sufficient to warrant such revocation, and
(B) the party seeking termination of a suspended investigation or a suspension
agreement shall have the burden of persuasion with respect to whether there are
changed circumstances sufficient to warrant such termination.
(4) Limitation on period for review. In the absence of good cause shown
(A) the Commission may not review a determination made under section 705(b) or
735(b), or an investigation suspended under section 704 or 734, and
(B) the administering authority may not review a determination made under
section 705(a) or 735(a), or an investigation suspended under section 704 or
734,
less than 24 months after the date of publication of notice of that
determination or suspension.
(c) Five-Year Review.
(1) In general. Notwithstanding subsection (b) and except in the case of a
transition order defined in paragraph (6), 5 years after the date of publication
of
(A) a countervailing duty order (other than a countervailing duty order to
which subparagraph (B) applies or which was issued without an affirmative
determination of injury by the Commission under section 303), an antidumping
duty order, or a notice of suspension of an investigation, described in
subsection (a)(1),
(B) a notice of injury determination under section 753 with respect to a
countervailing duty order, or
(C) a determination under this section to continue an order or suspension
agreement,
the administering authority and the Commission shall conduct a review to
determine, in accordance with section 752, whether revocation of the
countervailing or antidumping duty order or termination of the investigation
suspended under section 704 or 734 would be likely to lead to continuation or
recurrence of dumping or a countervailable subsidy (as the case may be) and of
material injury.
(2) Notice of initiation of review. Not later than 30 days before the fifth
anniversary of the date described in paragraph (1), the administering authority
shall publish in the Federal Register a notice of initiation of a review under
this subsection and request that interested parties submit
(A) a statement expressing their willingness to participate in the review by
providing information requested by the administering authority and the
Commission,
(B) a statement regarding the likely effects of revocation of the order or
termination of the suspended investigation, and
(C) such other information or industry data as the administering authority or
the Commission may specify.
(3) Responses to notice of initiation.
(A) No response. If no interested party responds to the notice of initiation
under this subsection, the administering authority shall issue a final
determination, within 90 days after the initiation of a review, revoking the
order or terminating the suspended investigation to which such notice relates.
For purposes of this paragraph, an interested party means a party described in
section 771(9) (C), (D), (E), (F), or (G).
(B) Inadequate response. If interested parties provide inadequate responses
to a notice of initiation, the administering authority, within 120 days after
the initiation of the review, or the Commission, within 150 days after such
initiation, may issue, without further investigation, a final determination
based on the facts available, in accordance with section 776.
(4) Waiver of participation by certain interested parties.
(A) In general. An interested party described in section 771(9) (A) or (B)
may elect not to participate in a review conducted by the administering
authority under this subsection and to participate only in the review conducted
by the Commission under this subsection.
(B) Effect of waiver. In a review in which an interested party waives its
participation pursuant to this paragraph, the administering authority shall
conclude that revocation of the order or termination of the investigation would
be likely to lead to continuation or recurrence of dumping or a countervailable
subsidy (as the case may be) with respect to that interested party.
(5) Conduct of review.
(A) Time limits for completion of review. Unless the review has been
completed pursuant to paragraph (3) or paragraph (4) applies, the administering
authority shall make its final determination pursuant to section 752 (b) or (c)
within 240 days after the date on which a review is initiated under this
subsection. If the administering authority makes a final affirmative
determination, the Commission shall make its final determination pursuant to
section 752(a) within 360 days after the date on which a review is initiated
under this subsection.
(B) Extension of time limit. The administering authority or the Commission
(as the case may be) may extend the period of time for making their respective
determinations under this subsection by not more than 90 days, if the
administering authority or the Commission (as the case may be) determines that
the review is extraordinarily complicated. In a review in which the
administering authority extends the time for making a final determination, but
the Commission does not extend the time for making a determination, the
Commission's determination shall be made not later than 120 days after the date
on which the final determination of the administering authority is published.
(C) Extraordinarily complicated. For purposes of this subsection, the
administering authority or the Commission (as the case may be) may treat a
review as extraordinarily complicated if
(i) there is a large number of issues,
(ii) the issues to be considered are complex,
(iii) there is a large number of firms involved,
(iv) the orders or suspended investigations have been grouped as described in
subparagraph (D), or
(v) it is a review of a transition order.
(D) Grouped reviews. The Commission, in consultation with the administering
authority, may group orders or suspended investigations for review if it
considers that such grouping is appropriate and will promote administrative
efficiency. Where orders or suspended investigations have been grouped, the
Commission shall, subject to subparagraph (B), make its final determination
under this subsection not later than 120 days after the date that the
administering authority publishes notice of its final determination with respect
to the last order or agreement in the group.
(6) Special transition rules.
(A) Schedule for reviews of transition orders.
(i) Initiation. The administering authority shall begin its review of
transition orders in the 42d calendar month after the date such orders are
issued. A review of all transition orders shall be initiated not later than the
5th anniversary after the date such orders are issued.
(ii) Completion. A review of a transition order shall be completed not later
than 18 months after the date such review is initiated. Reviews of all
transition orders shall be completed not later than 18 months after the 5th
anniversary of the date such orders are issued.
(iii) Subsequent reviews. The time limits set forth in clauses (i) and (ii)
shall be applied to all subsequent 5-year reviews of transition orders by
substituting "date of the determination to continue such orders" for "date such
orders are issued".
(iv) Revocation and termination. No transition order may be revoked under
this subsection before the date that is 5 years after the date the WTO Agreement
enters into force with respect to the United States.
(B) Sequence of transition reviews. The administering authority, in
consultation with the Commission, shall determine such sequence of review of
transition orders as it deems appropriate to promote administrative efficiency.
To the extent practicable, older orders shall be reviewed first.
(C) Definition of transition order. For purposes of this section, the term
"transition order" means
(i) a countervailing duty order under this title or under section 303,
(ii) an antidumping duty order under this title or a finding under the
Antidumping Act, 1921, or
(iii) a suspension of an investigation under section 704 or 734,
which is in effect on the date the WTO Agreement enters into force with
respect to the United States.
(D) Issue date for transition orders. For purposes of this subsection, a
transition order shall be treated as issued on the date the WTO Agreement enters
into force with respect to the United States, if such order is based on an
investigation conducted by both the administering authority and the Commission.
(d) Revocation of Order or Finding; Termination of Suspended Investigation.
(1) In general. The administering authority may revoke, in whole or in part,
a countervailing duty order or an antidumping duty order or finding, or
terminate a suspended investigation, after review under subsection (a) or (b).
The administering authority shall not revoke, in whole or in part, a
countervailing duty order or terminate a suspended investigation on the basis of
any export taxes, duties, or other charges levied on the export of the subject
merchandise to the United States which are specifically intended to offset the
countervailable subsidy received.
(2) Five-year reviews. In the case of a review conducted under subsection
(c), the administering authority shall revoke a countervailing duty order or an
antidumping duty order or finding, or terminate a suspended investigation,
unless
(A) the administering authority makes a determination that dumping or a
countervailable subsidy, as the case may be, would be likely to continue or
recur, and
(B) the Commission makes a determination that material injury would be likely
to continue or recur as described in section 752(a).
(3) Application of revocation or termination. A determination under this
section to revoke an order or finding or terminate a suspended investigation
shall apply with respect to unliquidated entries of the subject merchandise
which are entered, or withdrawn from warehouse, for consumption on or after the
date determined by the administering authority.
(e) Hearings. Whenever the administering authority or the Commission conducts
a review under this section, it shall, upon the request of an interested party,
hold a hearing in accordance with section 774(b) in connection with that review.
(f) Determination That Basis for Suspension No Longer Exists. If the
determination of the Commission under subsection (b)(2)(B) is negative, the
suspension agreement shall be treated as not accepted, beginning on the date of
publication of the Commission's determination, and the administering authority
and the Commission shall proceed, under section 704(i) or 734(i), as if the
suspension agreement had been violated on that date, except that no duty under
any order subsequently issued shall be assessed on merchandise entered, or
withdrawn from warehouse, for consumption before that date.
(g) Reviews To Implement Results of Subsidies Enforcement Proceeding.
(1) Violations of article 8 of the subsidies agreement. If
(A) the administering authority receives notice from the Trade Representative
of a violation of Article 8 of the Subsidies Agreement,
(B) the administering authority 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 of the Subsidies Agreement, and
(C) no review pursuant to subsection (a)(1) is in progress,
the administering authority shall conduct a 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. If the administering authority determines that the subject
merchandise is benefiting from the subsidy or subsidy program, it shall make
appropriate adjustments in the estimated duty to be deposited or appropriate
revisions to the terms of the suspension agreement.
(2) Withdrawal of subsidy or imposition of countermeasures. If the Trade
Representative notifies the administering authority that, pursuant to Article 4
or Article 7 of the Subsidies Agreement
(A)(i) the United States has imposed countermeasures, and
(ii) 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
(B) a WTO member country has withdrawn a countervailable subsidy provided with
respect to merchandise subject to a countervailing duty order,
the administering authority shall conduct a review to determine if the amount
of the estimated duty to be deposited should be adjusted or the order should be
revoked.
(3) Expedited review. The administering authority shall conduct reviews under
this subsection on an expedited basis, and shall publish the results of such
reviews in the Federal Register.
(h) Correction of Ministerial Errors. The administering authority shall
establish procedures for the correction of ministerial errors in final
determinations within a reasonable time after the determinations are issued
under this section. Such procedures shall ensure opportunity for interested
parties to present their views regarding any such errors. As used in this
subsection, the term "ministerial error" includes errors in addition,
subtraction, or other arithmetic function, clerical errors resulting from
inaccurate copying, duplication, or the like, and any other type of
unintentional error which the administering authority considers ministerial.
(19 U.S.C. 1675)
Sec. 752
SEC. 752. SPECIAL RULES FOR SECTION 751(b) AND 751(c) REVIEWS.
(a) Determination of Likelihood of Continuation or Recurrence of Material
Injury.
(1) In general. In a review conducted under section 751 (b) or (c), the
Commission shall determine whether revocation of an order, or termination of a
suspended investigation, would be likely to lead to continuation or recurrence
of material injury within a reasonably foreseeable time. The Commission shall
consider the likely volume, price effect, and impact of imports of the subject
merchandise on the industry if the order is revoked or the suspended
investigation is terminated. The Commission shall take into account
(A) its prior injury determinations, including the volume, price effect, and
impact of imports of the subject merchandise on the industry before the order
was issued or the suspension agreement was accepted,
(B) whether any improvement in the state of the industry is related to the
order or the suspension agreement,
(C) whether the industry is vulnerable to material injury if the order is
revoked or the suspension agreement is terminated, and
(D) in an antidumping proceeding under section 751(c), the findings of the
administering authority regarding duty absorption under section 751(a)(4).
(2) Volume. In evaluating the likely volume of imports of the subject
merchandise if the order is revoked or the suspended investigation is
terminated, the Commission shall consider whether the likely volume of imports
of the subject merchandise would be significant if the order is revoked or the
suspended investigation is terminated, either in absolute terms or relative to
production or consumption in the United States. In so doing, the Commission
shall consider all relevant economic factors, including
(A) any likely increase in production capacity or existing unused production
capacity in the exporting country,
(B) existing inventories of the subject merchandise, or likely increases in
inventories,
(C) the existence of barriers to the importation of such merchandise into
countries other than the United States, and
(D) the potential for product-shifting if production facilities in the foreign
country, which can be used to produce the subject merchandise, are currently
being used to produce other products.
(3) Price. In evaluating the likely price effects of imports of the subject
merchandise if the order is revoked or the suspended investigation is
terminated, the Commission shall consider whether
(A) there is likely to be significant price underselling by imports of the
subject merchandise as compared to domestic like products, and
(B) imports of the subject merchandise are likely to enter the United States
at prices that otherwise would have a significant depressing or suppressing
effect on the price of domestic like products.
(4) Impact on the industry. In evaluating the likely impact of imports of the
subject merchandise on the industry if the order is revoked or the suspended
investigation is terminated, the Commission shall consider all relevant economic
factors which are likely to have a bearing on the state of the industry in the
United States, including, but not limited to
(A) likely declines in output, sales, market share, profits, productivity,
return on investments, and utilization of capacity,
(B) likely negative effects on cash flow, inventories, employment, wages,
growth, ability to raise capital, and investment, and
(C) likely negative effects on the existing development and production efforts
of the industry, including efforts to develop a derivative or more advanced
version of the domestic like product.
The Commission shall evaluate all relevant economic factors described in this
paragraph within the context of the business cycle and the conditions of
competition that are distinctive to the affected industry.
(5) Basis for determination. The presence or absence of any factor which the
Commission is required to consider under this subsection shall not necessarily
give decisive guidance with respect to the Commission's determination of whether
material injury is likely to continue or recur within a reasonably foreseeable
time if the order is revoked or the suspended investigation is terminated. In
making that determination, the Commission shall consider that the effects of
revocation or termination may not be imminent, but may manifest themselves only
over a longer period of time.
(6) Magnitude of margin of dumping and net countervailable subsidy; nature of
countervailable subsidy. In making a determination under section 751 (b) or
(c), the Commission may consider the magnitude of the margin of dumping or the
magnitude of the net countervailable subsidy. If a countervailable subsidy is
involved the Commission shall consider information regarding the nature of the
countervailable subsidy and whether the subsidy is a subsidy described in
Article 3 or 6.1 of the Subsidies Agreement.
(7) Cumulation. For purposes of this subsection, the Commission may
cumulatively assess the volume and effect of imports of the subject merchandise
from all countries with respect to which reviews under section 751 (b) or (c)
were initiated on the same day, if such imports would be likely to compete with
each other and with domestic like products in the United States market. The
Commission shall not cumulatively assess the volume and effects of imports of
the subject merchandise in a case in which it determines that such imports are
likely to have no discernible adverse impact on the domestic industry.
(8) Special rule for regional industries. In a review under section 751 (b)
or (c) involving a regional industry, the Commission may base its determination
on the regional industry defined in the original investigation under this title,
another region that satisfies the criteria established in section 771(4)(C), or
the United States as a whole. In determining if a regional industry analysis is
appropriate for the determination in the review, the Commission shall consider
whether the criteria established in section 771(4)(C) are likely to be satisfied
if the order is revoked or the suspended investigation is terminated.
(b) Determination of Likelihood of Continuation or Recurrence of a
Countervailable Subsidy.
(1) In general. In a review conducted under section 751(c), the administering
authority shall determine whether revocation of a countervailing duty order or
termination of a suspended investigation under section 704 would be likely to
lead to continuation or recurrence of a countervailable subsidy. The
administering authority shall consider
(A) the net countervailable subsidy determined in the investigation and
subsequent reviews, and
(B) whether any change in the program which gave rise to the net
countervailable subsidy described in subparagraph (A) has occurred that is
likely to affect that net countervailable subsidy.
(2) Consideration of other factors. If good cause is shown, the administering
authority shall also consider
(A) programs determined to provide countervailable subsidies in other
investigations or reviews under this title, but only to the extent that such
programs
(i) can potentially be used by the exporters or producers subject to the
review under section 751(c), and
(ii) did not exist at the time that the countervailing duty order was issued
or the suspension agreement was accepted, and
(B) programs newly alleged to provide countervailable subsidies but only to
the extent that the administering authority makes an affirmative countervailing
duty determination with respect to such programs and with respect to the
exporters or producers subject to the review.
(3) Net countervailable subsidy. The administering authority shall provide to
the Commission the net countervailable subsidy that is likely to prevail if the
order is revoked or the suspended investigation is terminated. The administering
authority shall normally choose a net countervailable subsidy that was
determined under section 705 or subsection (a) or (b)(1) of section 751.
(4) Special rule.
(A) Treatment of zero and de minimis rates. A net countervailable subsidy
described in paragraph (1)(A) that is zero or de minimis shall not by itself
require the administering authority to determine that revocation of a
countervailing duty order or termination of a suspended investigation would not
be likely to lead to continuation or recurrence of a countervailable subsidy.
(B) Application of de minimis standards. For purposes of this paragraph, the
administering authority shall apply the de minimis standards applicable to
reviews conducted under subsections (a) and (b)(1) of section 751.
(c) Determination of Likelihood of Continuation or Recurrence of Dumping.
(1) In general. In a review conducted under section 751(c), the administering
authority shall determine whether revocation of an antidumping duty order or
termination of a suspended investigation under section 734 would be likely to
lead to continuation or recurrence of sales of the subject merchandise at less
than fair value. The administering authority shall consider
(A) the weighted average dumping margins determined in the investigation and
subsequent reviews, and
(B) the volume of imports of the subject merchandise for the period before and
the period after the issuance of the antidumping duty order or acceptance of the
suspension agreement.
(2) Consideration of other factors. If good cause is shown, the administering
authority shall also consider such other price, cost, market, or economic
factors as it deems relevant.
(3) Magnitude of the margin of dumping. The administering authority shall
provide to the Commission the magnitude of the margin of dumping that is likely
to prevail if the order is revoked or the suspended investigation is terminated.
The administering authority shall normally choose a margin that was determined
under section 735 or under subsection (a) or (b)(1) of section 751.
(4) Special rule.
(A) Treatment of zero or de minimis margins. A dumping margin described in
paragraph (1)(A) that is zero or de minimis shall not by itself require the
administering authority to determine that revocation of an antidumping duty
order or termination of a suspended investigation would not be likely to lead to
continuation or recurrence of sales at less than fair value.
(B) Application of de minimis standards. For purposes of this paragraph, the
administering authority shall apply the de minimis standards applicable to
reviews conducted under subsections (a) and (b) of section 751.
(19 U.S.C. 1675a)
Sec. 753
SEC. 753. SPECIAL RULES FOR INJURY INVESTIGATIONS FOR CERTAIN SECTION 303
COUNTERVAILING DUTY ORDERS AND INVESTIGATIONS.
(a) In General.
(1) Investigation by the commission upon request. In the case of a
countervailing duty order described in paragraph (2), which
(A) applies to merchandise that is the product of a Subsidies Agreement
country, and
(B)(i) is in effect on the date on which such country becomes a Subsidies
Agreement country, or
(ii) is issued on a date that is after the date described in clause (i)
pursuant to a court order in an action brought under section 516A,
the Commission, upon receipt of a request from an interested party described
in section 771(9) (C), (D), (E), (F), or (G) for an injury investigation with
respect to such order, shall initiate an investigation and shall determine
whether an industry in the United States is likely to be materially injured by
reason of imports of the subject merchandise if the order is revoked.
(2) Description of countervailing duty orders. A countervailing duty order
described in this paragraph is an order issued under section 303 with respect to
which the requirement of an affirmative determination of material injury under
section 303(a)(2) was not applicable at the time such order was issued.
(3) Requirements of request for investigation. A request for an investigation
under this subsection shall be submitted
(A) in the case of an order described in paragraph (1)(B)(i), within 6 months
after the date on which the country described in paragraph (1)(A) becomes a
Subsidies Agreement country, or
(B) in the case of an order described in paragraph (1)(B)(ii), within 6 months
after the date the order is issued.
(4) Suspension of liquidation. With respect to entries of subject merchandise
made on or after
(A) in the case of an order described in paragraph (1)(B)(i), the date on
which the country described in paragraph (1)(A) becomes a Subsidies Agreement
country, or
(B) in the case of an order described in paragraph (1)(B)(ii), the date on
which the order is issued,
liquidation shall be suspended at the cash deposit rate in effect on the date
described in subparagraph (A) or (B) (whichever is applicable).
(b) Investigation Procedure and Schedule.
(1) Commission procedure.
(A) In general. Except as otherwise provided in this section, the provisions
of this title regarding evidence in and procedures for investigations conducted
under subtitle A shall apply to investigations conducted by the Commission under
this section.
(B) Time for commission determination. Except as otherwise provided in
subparagraph (C), the Commission shall issue its determination under subsection
(a)(1), to the extent possible, not later than 1 year after the date on which
the investigation is initiated under this section.
(C) Special rule to permit administrative flexibility. In the case of
requests for investigations received under this section within 1 year after the
date on which the WTO Agreement enters into force with respect to the United
States, the Commission may, after consulting with the administering authority,
initiate its investigations in a manner that results in determinations being
made in all such investigations during the 4-year period beginning on such date.
(2) Net countervailable subsidy; nature of subsidy.
(A) Net countervailable subsidy. The administering authority shall provide to
the Commission the net countervailable subsidy that is likely to prevail if the
order which is the subject of the investigation is revoked. The administering
authority normally shall choose a net countervailable subsidy that was
determined under section 705 or subsection (a) or (b)(1) of section 751. If the
Commission considers the magnitude of the net countervailable subsidy in making
its determination under this section, the Commission shall use the net
countervailable subsidy provided by the administering authority.
(B) Nature of subsidy. The administering authority shall inform the
Commission of, and the Commission, in making its determination under this
section, shall consider, the nature of the countervailable subsidy and whether
the countervailable subsidy is a subsidy described in Article 3 or Article 6.1
of the Subsidies Agreement.
(3) Effect of commission determination.
(A) Affirmative determination. Upon being notified by the Commission that it
has made an affirmative determination under subsection (a)(1)
(i) the administering authority shall order the termination of the suspension
of liquidation required pursuant to subsection (a)(4), and
(ii) the countervailing duty order shall remain in effect until revoked, in
whole or in part, under section 751(d).
For purposes of section 751(c), a countervailing duty order described in this
section shall be treated as issued on the date of publication of the
Commission's determination under this subsection.
(B) Negative determination.
(i) In general. Upon being notified by the Commission that it has made a
negative determination under subsection (a)(1), the administering authority
shall revoke the countervailing duty order, and shall refund, with interest, any
estimated countervailing duties collected during the period liquidation was
suspended pursuant to subsection (a)(4).
(ii) Limitation on negative determination. A determination by the Commission
that revocation of the order is not likely to result in material injury to an
industry by reason of imports of the subject merchandise shall not be based, in
whole or in part, on any export taxes, duties, or other charges levied on the
export of the subject merchandise to the United States that were specifically
intended to offset the countervailable subsidy received.
(4) Countervailing duty orders with respect to which no request for injury
investigation is made. If, with respect to a countervailing duty order
described in subsection (a), a request for an investigation is not made within
the time required by subsection (a)(3), the Commission shall notify the
administering authority that a negative determination has been made under
subsection (a) and the provisions of paragraph (3)(B) shall apply with respect
to the order.
(c) Pending and Suspended Countervailing Duty Investigations. If, on the date
on which a country becomes a Subsidies Agreement country, there is a
countervailing duty investigation in progress or suspended under section 303
that applies to merchandise which is a product of that country and with respect
to which the requirement of an affirmative determination of material injury
under section 303(a)(2) was not applicable at the time the investigation was
initiated, the Commission shall
(1) in the case of an investigation in progress, make a final determination
under section 705(b) within 75 days after the date of an affirmative final
determination, if any, by the administering authority,
(2) in the case of a suspended investigation to which section 704(i)(1)(B)
applies, make a final determination under section 705(b) within 120 days after
receiving notice from the administering authority of the resumption of the
investigation pursuant to section 704(i), or within 45 days after the date of an
affirmative final determination, if any, by the administering authority,
whichever is later, or
(3) in the case of a suspended investigation to which section 704(i)(1)(C)
applies, treat the countervailing duty order issued pursuant to such section as
if it were
(A) an order issued under subsection (a)(1)(B)(ii) for purposes of subsection
(a)(3); and
(B) an order issued under subsection (a)(1)(B)(i) for purposes of subsection
(a)(4).
(d) Publication in Federal Register. The administering authority or the
Commission, as the case may be, shall publish in the Federal Register a notice
of the initiation of any investigation, and a notice of any determination or
revocation, made pursuant to this section.
(e) Request for Simultaneous Expedited Review Under Section 751(c).
(1) General rule.
(A) Requests for reviews. Notwithstanding section 751(c)(6)(A) and except as
provided in subparagraph (B), an interested party may request a review of an
order under section 751(c) at the same time the party requests an investigation
under subsection (a), if the order involves the same or comparable subject
merchandise. Upon receipt of such request, the administering authority, after
consulting with the Commission, shall initiate a review of the order under
section 751(c). The Commission shall combine such review with the investigation
under this section.
(B) Exception. If the administering authority determines that the interested
party who requested an investigation under this section is a related party or an
importer within the meaning of section 771(4)(B), the administering authority
may decline a request by such party to initiate a review of an order under
section 751(c) which involves the same or comparable subject merchandise.
(2) Cumulation. If a review under section 751(c) is initiated under paragraph
(1), such review shall be treated as having been initiated on the same day as
the investigation under this section, and the Commission may, in accordance with
section 771(7)(G), cumulatively assess the volume and effect of imports of the
subject merchandise from all countries with respect to which such investigations
are treated as initiated on the same day.
(3) Time and procedure for commission determination. The Commission shall
render its determination in the investigation conducted under this section at
the same time as the Commission's determination is made in the review under
section 751(c) that is initiated pursuant to this subsection. The Commission
shall in all other respects apply the procedures and standards set forth in
section 751(c) to such section 751(c) reviews.
(19 U.S.C. 1675b)
CHAPTER 2 CONSULTATIONS AND DETERMINATIONS REGARDING QUANTITATIVE RESTRICTION
AGREEMENTS
Sec. 761
SEC. 761. REQUIRED CONSULTATIONS.
(a) Agreements in Response to Countervailable Subsidies. Within 90 days after
the administering authority accepts a quantitative restriction agreement under
section 704(a)(2) or (c)(3), the President shall enter into consultations with
the government that is party to the agreement for purposes of
(1) eliminating the countervailable subsidy completely, or
(2) reducing the net countervailable subsidy to a level that eliminates
completely the injurious effect of exports to the United States of the
merchandise.
(b) Modification of Agreements on Basis of Consultations. At the direction of
the President, the administering authority shall modify a quantitative
restriction agreement as a result of consultations entered into under subsection
(a).
(c) Special Rule Regarding Agreements Under Section 704(c)(3). This chapter
shall cease to apply to a quantitative restriction agreement described in
section 704(c)(3) at such time as that agreement ceases to have force and effect
under section 704(f) or violation is found under section 704(i).
(19 U.S.C. 1676)
Sec. 762
SEC. 762. REQUIRED DETERMINATIONS.
(a) In General. Before the expiration date, if any, of a quantitative
restriction agreement accepted under section 704(a)(2) or 704(c)(3) (if
suspension of the related investigation is still in effect)
(1) the administering authority shall, at the direction of the President,
initiate a proceeding to determine whether any countervailable subsidy is being
provided with respect to the subject merchandise and, if being so provided, the
net countervailable subsidy; and
(2) if the administering authority initiates a proceeding under paragraph (1),
the Commission shall determine whether imports of the merchandise of the kind
subject to the agreement will, upon termination of the agreement, materially
injure, or threaten with material injury, an industry in the United States or
materially retard the establishment of such an industry.
(b) Determinations. The determinations required to be made by the
administering authority and the Commission under subsection (a) shall be made
under such procedures as the administering authority and the Commission,
respectively, shall by regulation prescribe, and shall be treated as final
determinations made under section 705 for purposes of judicial review under
section 516A. If the determinations by each are affirmative, the administering
authority shall
(1) issue a countervailing duty order under section 706 effective with respect
to merchandise entered on and after the date on which the agreement terminates;
and
(2) order the suspension of liquidation of all entries of subject merchandise
which are entered, or withdrawn from warehouse for consumption, on or after the
date of publication of the order in the Federal Register.
(c) Hearings. The determination proceedings required to be prescribed under
subsection (b) shall provide that the administering authority and the Commission
must, upon the request of any interested party, hold a hearing in accordance
with section 774 on the issues involved.
(19 U.S.C. 1676a)
Subtitle D General Provisions
Sec. 771
SEC. 771. DEFINITIONS; SPECIAL RULES.
For purposes of this title
(1) Administering authority. The term "administering authority" means the
Secretary of Commerce, or any other officer of the United States to whom the
responsibility for carrying out the duties of the administering authority under
this title are transferred by law.
(2) Commission. The term "Commission" means the United States International
Trade Commission.
(3) Country. The term "country" means a foreign country, a political
subdivision, dependent territory, or possession of a foreign country, and,
except for the purpose of antidumping proceedings, may include an association of
2 or more foreign countries, political subdivisions, dependent territories, or
possessions of countries into a customs union outside the United States.
(4) Industry.
(A) In general. The term "industry" means the producers as a whole of a
domestic like product, or those producers whose collective output of a domestic
like product constitutes a major proportion of the total domestic production of
the product.
(B) Related parties.
(i) If a producer of a domestic like product and an exporter or importer of
the subject merchandise are related parties, or if a producer of the domestic
like product is also an importer of the subject merchandise, the producer may,
in appropriate circumstances, be excluded from the industry.
(ii) For purposes of clause (i), a producer and an exporter or importer shall
be considered to be related parties, if
(I) the producer directly or indirectly controls the exporter or importer,
(II) the exporter or importer directly or indirectly controls the producer,
(III) a third party directly or indirectly controls the producer and the
exporter or importer, or
(IV) the producer and the exporter or importer directly or indirectly control
a third party and there is reason to believe that the relationship causes the
producer to act differently than a nonrelated producer.
For purposes of this subparagraph, a party shall be considered to directly or
indirectly control another party if the party is legally or operationally in a
position to exercise restraint or direction over the other party.
(C) Regional industries. In appropriate circumstances, the United States, for
a particular product market, may be divided into 2 or more markets and the
producers within each market may be treated as if they were a separate industry
if
(i) the producers within such market sell all or almost all of their
production of the domestic like product in question in that market, and
(ii) the demand in that market is not supplied, to any substantial degree, by
producers of the product in question located elsewhere in the United States.
In such appropriate circumstances, material injury, the threat of material
injury, or material retardation of the establishment of an industry may be found
to exist with respect to an industry even if the domestic industry as a whole,
or those producers whose collective output of a domestic like product
constitutes a major proportion of the total domestic production of that product,
is not injured, if there is a concentration of dumped imports or imports of
merchandise benefiting from a countervailable subsidy into such an isolated
market and if the producers of all, or almost all, of the production within that
market are being materially injured or threatened by material injury, or if the
establishment of an industry is being materially retarded, by reason of the
dumped imports or imports of merchandise benefiting from a countervailable
subsidy. The term "regional industry" means the domestic producers within a
region who are treated as a separate industry under this subparagraph.
(D) Product lines. The effect of dumped imports or imports of merchandise
benefiting from a countervailable subsidy shall be assessed in relation to the
United States production of a domestic like product if available data permit the
separate identification of production in terms of such criteria as the
production process or the producer's profits. If the domestic production of the
domestic like product has no separate identity in terms of such criteria, then
the effect of the dumped imports or imports of merchandise benefiting from a
countervailable subsidy shall be assessed by the examination of the production
of the narrowest group or range of products, which includes a domestic like
product, for which the necessary information can be provided.
(E) Industry producing processed agricultural products.
(i) In general. Subject to clause (v), in an investigation involving a
processed agricultural product produced from any raw agricultural product, the
producers or growers of the raw agricultural product may be considered part of
the industry producing the processed product if
(I) the processed agricultural product is produced from the raw agricultural
product through a single continuous line of production; and
(II) there is a substantial coincidence of economic interest between the
producers or growers of the raw agricultural product and the processors of the
processed agricultural product based upon relevant economic factors, which may,
in the discretion of the Commission, include price, added market value, or other
economic interrelationships (regardless of whether such coincidence of economic
interest is based upon any legal relationship).
(ii) Processing. For purposes of this subparagraph, the processed
agricultural product shall be considered to be processed from a raw agricultural
product through a single continuous line of production if
(I) the raw agricultural product is substantially or completely devoted to the
production of the processed agricultural product; and
(II) the processed agricultural product is produced substantially or
completely from the raw product.
(iii) Relevant economic factors. For purposes of clause (i)(II), in addition
to such other factors it considers relevant to the question of coincidence of
economic interest, the Commission shall
(I) if price is taken into account, consider the degree of correlation between
the price of the raw agricultural product and the price of the processed
agricultural product; and
(II) if added market value is taken into account, consider whether the value
of the raw agricultural product constitutes a significant percentage of the
value of the processed agricultural product.
(iv) Raw agricultural product. For purposes of this subparagraph, the term
"raw agricultural product" means any farm or fishery product.
(v) Termination of this subparagraph. This subparagraph shall cease to have
effect if the United States Trade Representative notifies the administering
authority and the Commission that the application of this subparagraph is
inconsistent with the international obligations of the United States.
(5) Countervailable subsidy.
(A) In general. Except as provided in paragraph (5B), a countervailable
subsidy is a subsidy described in this paragraph which is specific as described
in paragraph (5A).
(B) Subsidy described. A subsidy is described in this paragraph in the case
in which an authority
(i) provides a financial contribution,
(ii) provides any form of income or price support within the meaning of
Article XVI of the GATT 1994, or
(iii) makes a payment to a funding mechanism to provide a financial
contribution, or entrusts or directs a private entity to make a financial
contribution, if providing the contribution would normally be vested in the
government and the practice does not differ in substance from practices normally
followed by governments,
to a person and a benefit is thereby conferred. For purposes of this paragraph
and paragraphs (5A) and (5B), the term "authority" means a government of a
country or any public entity within the territory of the country.
(C) Other factors. The determination of whether a subsidy exists shall be
made without regard to whether the recipient of the subsidy is publicly or
privately owned and without regard to whether the subsidy is provided directly
or indirectly on the manufacture, production, or export of merchandise. The
administering authority is not required to consider the effect of the subsidy in
determining whether a subsidy exists under this paragraph.
(D) Financial contribution. The term "financial contribution" means
(i) the direct transfer of funds, such as grants, loans, and equity infusions,
or the potential direct transfer of funds or liabilities, such as loan
guarantees,
(ii) foregoing or not collecting revenue that is otherwise due, such as
granting tax credits or deductions from taxable income,
(iii) providing goods or services, other than general infrastructure, or
(iv) purchasing goods.
(E) Benefit conferred. A benefit shall normally be treated as conferred where
there is a benefit to the recipient, including
(i) in the case of an equity infusion, if the investment decision is
inconsistent with the usual investment practice of private investors, including
the practice regarding the provision of risk capital, in the country in which
the equity infusion is made,
(ii) in the case of a loan, if there is a difference between the amount the
recipient of the loan pays on the loan and the amount the recipient would pay on
a comparable commercial loan that the recipient could actually obtain on the
market,
(iii) in the case of a loan guarantee, if there is a difference, after
adjusting for any difference in guarantee fees, between the amount the recipient
of the guarantee pays on the guaranteed loan and the amount the recipient would
pay for a comparable commercial loan if there were no guarantee by the
authority, and
(iv) in the case where goods or services are provided, if such goods or
services are provided for less than adequate remuneration, and in the case where
goods are purchased, if such goods are purchased for more than adequate
remuneration.
For purposes of clause (iv), the adequacy of remuneration shall be determined
in relation to prevailing market conditions for the good or service being
provided or the goods being purchased in the country which is subject to the
investigation or review. Prevailing market conditions include price, quality,
availability, marketability, transportation, and other conditions of purchase
or sale.
(F) Change in ownership. A change in ownership of all or part of a foreign
enterprise or the productive assets of a foreign enterprise does not by itself
require a determination by the administering authority that a past
countervailable subsidy received by the enterprise no longer continues to be
countervailable, even if the change in ownership is accomplished through an
arm's length transaction.
(5A) Specificity.
(A) In general. A subsidy is specific if it is an export subsidy described in
subparagraph (B) or an import substitution subsidy described in subparagraph
(C), or if it is determined to be specific pursuant to subparagraph (D).
(B) Export subsidy. An export subsidy is a subsidy that is, in law or in
fact, contingent upon export performance, alone or as 1 of 2 or more conditions.
(C) Import substitution subsidy. An import substitution subsidy is a subsidy
that is contingent upon the use of domestic goods over imported goods, alone or
as 1 of 2 or more conditions.
(D) Domestic subsidy. In determining whether a subsidy (other than a subsidy
described in subparagraph (B) or (C)) is a specific subsidy, in law or in fact,
to an enterprise or industry within the jurisdiction of the authority providing
the subsidy, the following guidelines shall apply:
(i) Where the authority providing the subsidy, or the legislation pursuant to
which the authority operates, expressly limits access to the subsidy to an
enterprise or industry, the subsidy is specific as a matter of law.
(ii) Where the authority providing the subsidy, or the legislation pursuant to
which the authority operates, establishes objective criteria or conditions
governing the eligibility for, and the amount of, a subsidy, the subsidy is not
specific as a matter of law, if
(I) eligibility is automatic,
(II) the criteria or conditions for eligibility are strictly followed, and
(III) the criteria or conditions are clearly set forth in the relevant
statute, regulation, or other official document so as to be capable of
verification.
For purposes of this clause, the term "objective criteria or conditions" means
criteria or conditions that are neutral and that do not favor one enterprise or
industry over another.
(iii) Where there are reasons to believe that a subsidy may be specific as a
matter of fact, the subsidy is specific if one or more of the following factors
exist:
(I) The actual recipients of the subsidy, whether considered on an enterprise
or industry basis, are limited in number.
(II) An enterprise or industry is a predominant user of the subsidy.
(III) An enterprise or industry receives a disproportionately large amount of
the subsidy.
(IV) The manner in which the authority providing the subsidy has exercised
discretion in the decision to grant the subsidy indicates that an enterprise or
industry is favored over others.
In evaluating the factors set forth in subclauses (I), (II), (III), and (IV),
the administering authority shall take into account the extent of
diversification of economic activities within the jurisdiction of the authority
providing the subsidy, and the length of time during which the subsidy program
has been in operation.
(iv) Where a subsidy is limited to an enterprise or industry located within a
designated geographical region within the jurisdiction of the authority
providing the subsidy, the subsidy is specific.
For purposes of this paragraph and paragraph (5B), any reference to an
enterprise or industry is a reference to a foreign enterprise or foreign
industry and includes a group of such enterprises or industries.
(5B) Categories of noncountervailable subsidies.
(A) In general. Notwithstanding the provisions of paragraphs (5) and (5A), in
the case of merchandise imported from a Subsidies Agreement country, a subsidy
shall be treated as noncountervailable if the administering authority determines
in an investigation under subtitle A or a review under subtitle C that the
subsidy meets all of the criteria described in subparagraph (B), (C), or (D), as
the case may be, or the provisions of subparagraph (E)(i) apply.
(B) Research subsidy.
(i) In general. Except for a subsidy provided on the manufacture, production,
or export of civil aircraft, a subsidy for research activities conducted by a
person, or by a higher education or research establishment on a contract basis
with a person, shall be treated as noncountervailable, if the subsidy covers not
more than 75 percent of the costs of industrial research or not more than 50
percent of the costs of precompetitive development activity, and such subsidy is
limited exclusively to
(I) the costs of researchers, technicians, and other supporting staff employed
exclusively in the research activity,
(II) the costs of instruments, equipment, land, or buildings that are used
exclusively and permanently (except when disposed of on a commercial basis) for
the research activity,
(III) the costs of consultancy and equivalent services used exclusively for
the research activity, including costs for bought-in research, technical
knowledge, and patents,
(IV) additional overhead costs incurred directly as a result of the research
activity, and
(V) other operating costs (such as materials and supplies) incurred directly
as a result of the research activity.
(ii) Definitions. For purposes of this subparagraph
(I) Industrial research. The term "industrial research" means planned search
or critical investigation aimed at the discovery of new knowledge, with the
objective that such knowledge may be useful in developing new products,
processes, or services, or in bringing about a significant improvement to
existing products, processes, or services.
(II) Precompetitive development activity. The term "precompetitive
development activity" means the translation of industrial research findings into
a plan, blueprint, or design for new, modified, or improved products, processes,
or services, whether intended for sale or use, including the creation of a first
prototype that would not be capable of commercial use. The term also may include
the conceptual formulation and design of products, processes, or services
alternatives and initial demonstration or pilot projects, if these same projects
cannot be converted or used for industrial application or commercial
exploitation. The term does not include routine or periodic alterations to
existing products, production lines, manufacturing processes, services, or other
ongoing operations even if those alterations may represent improvements.
(iii) Calculation rules.
(I) In general. In the case of a research activity that spans both
industrial research and precompetitive development activity, the allowable level
of the noncountervailable subsidy shall not exceed 62.5 percent of the costs set
forth in subclauses (I), (II), (III), (IV), and (V) of clause (i).
(II) Total eligible costs. The allowable level of a noncountervailable
subsidy described in clause (i) shall be based on the total eligible costs
incurred over the duration of a particular project.
(C) Subsidy to disadvantaged regions.
(i) In general. A subsidy provided, pursuant to a general framework of
regional development, to a person located in a disadvantaged region within a
country shall be treated as noncountervailable, if it is not specific (within
the meaning of paragraph (5A)) within eligible regions and if the following
conditions are met:
(I) Each region identified as disadvantaged within the territory of a country
is a clearly designated, contiguous geographical area with a definable economic
and administrative identity.
(II) Each region is considered a disadvantaged region on the basis of neutral
and objective criteria indicating that the region is disadvantaged because of
more than temporary circumstances, and such criteria are clearly stated in the
relevant statute, regulation, or other official document so as to be capable of
verification.
(III) The criteria described in subclause (II) include a measurement of
economic development.
(IV) Programs provided within a general framework of regional development
include ceilings on the amount of assistance that can be granted to a subsidized
project. Such ceilings are differentiated according to the different levels of
development of assisted regions, and are expressed in terms of investment costs
or costs of job creation. Within such ceilings, the distribution of assistance
is sufficiently broad and even to avoid the predominant use of a subsidy by, or
the provision of disproportionately large amounts of a subsidy to, an enterprise
or industry as described in paragraph (5A)(D).
(ii) Measurement of economic development. For purposes of clause (i), the
measurement of economic development shall be based on one or more of the
following factors:
(I) Per capita income, household per capita income, or per capita gross
domestic product that does not exceed 85 percent of the average for the country
subject to investigation or review.
(II) An unemployment rate that is at least 110 percent of the average
unemployment rate for the country subject to investigation or review.
The measurement of economic development shall cover a 3-year period, but may
be a composite measurement and may include factors other than those set forth in
this clause.
(iii) Definitions. For purposes of this subparagraph
(I) General framework of regional development. The term "general framework of
regional development" means that the regional subsidy programs are part of an
internally consistent and generally applicable regional development policy, and
that regional development subsidies are not granted in isolated geographical
points having no, or virtually no, influence on the development of a region.
(II) Neutral and objective criteria. The term "neutral and objective
criteria" means criteria that do not favor certain regions beyond what is
appropriate for the elimination or reduction of regional disparities within the
framework of the regional development policy.
(D) Subsidy for adaptation of existing facilities to new environmental
requirements.
(i) In general. A subsidy that is provided to promote the adaptation of
existing facilities to new environmental requirements that are imposed by
statute or by regulation, and that result in greater constraints and financial
burdens on the recipient of the subsidy, shall be treated as noncountervailable,
if the subsidy
(I) is a one-time nonrecurring measure,
(II) is limited to 20 percent of the cost of adaptation,
(III) does not cover the cost of replacing and operating the subsidized
investment, a cost that must be fully borne by the recipient,
(IV) is directly linked and proportionate to the recipient's planned reduction
of nuisances and pollution, and does not cover any manufacturing cost savings
that may be achieved, and
(V) is available to all persons that can adopt the new equipment or production
processes.
(ii) Existing facilities. For purposes of this subparagraph, the term
"existing facilities" means facilities that have been in operation for at least
2 years before the date on which the new environmental requirements are imposed.
(E) Notified subsidy program.
(i) General rule. If a subsidy is provided pursuant to a program that has
been notified in accordance with Article 8.3 of the Subsidies Agreement, the
subsidy shall be treated as noncountervailable and shall not be subject to
investigation or review under this title.
(ii) Exception. Notwithstanding clause (i), a subsidy shall be treated as
countervailable if
(I) the Trade Representative notifies the administering authority that a
determination has been made pursuant to Article 8.4 or 8.5 of the Subsidies
Agreement that the subsidy, or the program pursuant to which the subsidy was
provided, does not satisfy the conditions and criteria of Article 8.2 of the
Subsidies Agreement; and
(II) the subsidy is specific within the meaning of paragraph (5A).
(F) Certain subsidies on agricultural products. Domestic support measures
that are provided with respect to products listed in Annex 1 to the Agreement on
Agriculture, and that the administering authority determines conform fully to
the provisions of Annex 2 to that Agreement, shall be treated as
noncountervailable. Upon request by the administering authority, the Trade
Representative shall provide advice regarding the interpretation and application
of Annex 2.
(G) Provisional application.
(i) Subparagraphs (B), (C), (D), and (E) shall not apply on or after the first
day of the month that is 66 months after the WTO Agreement enters into force,
unless the provisions of such subparagraphs are extended pursuant to section
282(c) of the Uruguay Round Agreements Act.
(ii) Subparagraph (F) shall not apply to imports from a WTO member country at
the end of the 9-year period beginning on January 1, 1995. The Trade
Representative shall determine the precise termination date for each WTO member
country in accordance with paragraph (i) of Article 1 of the Agreement on
Agriculture and such date shall be notified to the administering authority.
(6) Net countervailable subsidy. For the purpose of determining the net
countervailable subsidy, the administering authority may subtract from the gross
countervailable subsidy the amount of
(A) any application fee, deposit, or similar payment paid in order to qualify
for, or to receive, the benefit of the countervailable subsidy,
(B) any loss in the value of the countervailable subsidy resulting from its
deferred receipt, if the deferral is mandated by Government order, and
(C) export taxes, duties, or other charges levied on the export of merchandise
to the United States specifically intended to offset the countervailable subsidy
received.
(7) Material injury.
(A) In general. The term "material injury" means harm which is not
inconsequential, immaterial, or unimportant.
(B) Volume and consequent impact. In making determinations under sections
703(a), 705(b), 733(a), and 735(b), the Commission in each case
(i) shall consider
(I) the volume of imports of the subject merchandise,
(II) the effect of imports of that merchandise on prices in the United States
for like products 1, and
1 Section 233(a)(3)(B) of P.L. 103 465 amends this subclause by striking "like
product" and inserting "domestic like product". The phrase "like product" does
not appear.
(III) the impact of imports of such merchandise on domestic producers of like
products 1, but only in the context of production operations within the United
States; and
(ii) may consider such other economic factors as are relevant to the
determination regarding whether there is material injury by reason of imports.
In the notification required under section 705(d) or 735(d), as the case may
be, the Commission shall explain its analysis of each factor considered under
clause (i), and identify each factor considered under clause (ii) and explain in
full its relevance to the determination.
(C) Evaluation of relevant factors. For purposes of subparagraph (B)
(i) Volume. In evaluating the volume of imports of merchandise, the
Commission shall consider whether the volume of imports of the merchandise, or
any increase in that volume, either in absolute terms or relative to production
or consumption in the United States, is significant.
(ii) Price. In evaluating the effect of imports of such merchandise on
prices, the Commission shall consider whether
(I) there has been significant price underselling by the imported merchandise
as compared with the price of like products 1 of the United States, and
(II) the effect of imports of such merchandise otherwise depresses prices to a
significant degree or prevents price increases, which otherwise would have
occurred, to a significant degree.
(iii) Impact on affected domestic industry. In examining the impact required
to be considered under subparagraph (B)(i)(III), the Commission shall evaluate
all relevant economic factors which have a bearing on the state of the industry
in the United States, including, but not limited to
(I) actual and potential decline in output, sales, market share, profits,
productivity, return on investments, and utilization of capacity,
(II) factors affecting domestic prices,
(III) actual and potential negative effects on cash flow, inventories,
employment, wages, growth, ability to raise capital, and investment,
(IV) actual and potential negative effects on the existing development and
production efforts of the domestic industry, including efforts to develop a
derivative or more advanced version of the domestic like product, and
(V) in a proceeding under subtitle B, the magnitude of the margin of dumping.
The Commission shall evaluate all relevant economic factors described in this
clause within the context of the business cycle and conditions of competition
that are distinctive to the affected industry.
(iv) Captive production. If domestic producers internally transfer
significant production of the domestic like product for the production of a
downstream article and sell significant production of the domestic like product
in the merchant market, and the Commission finds that
(I) the domestic like product produced that is internally transferred for
processing into that downstream article does not enter the merchant market for
the domestic like product,
(II) the domestic like product is the predominant material input in the
production of that downstream article, and
(III) the production of the domestic like product sold in the merchant market
is not generally used in the production of that downstream article,
then the Commission, in determining market share and the factors affecting
financial performance set forth in clause (iii), shall focus primarily on the
merchant market for the domestic like product.
(D) Special rules for agricultural products.
(i) The Commission shall not determine that there is no material injury or
threat of material injury to the United States producers of an agricultural
commodity merely because the prevailing market price is at or above the minimum
support price.
(ii) In the case of agricultural products, the Commission shall consider any
increased burden on government income or price support programs.
(E) Special rules. For purposes of this paragraph
(i) Nature of countervailable subsidy. In determining whether there is a
threat of material injury, the Commission shall consider information provided to
it by the administering authority regarding the nature of the countervailable
subsidy granted by a foreign country (particularly whether the countervailable
subsidy is a subsidy described in Article 3 or 6.1 of the Subsidies Agreement)
and the effects likely to be caused by the countervailable subsidy.
(ii) Standard for determination. The presence or absence of any factor which
the Commission is required to evaluate under subparagraph (C) or (D) shall not
necessarily give decisive guidance with respect to the determination by the
Commission of material injury.
(F) Threat of material injury.
(i) In general. In determining whether an industry in the United States is
threatened with material injury by reason of imports (or sales for importation)
of the subject merchandise, the Commission shall consider, among other relevant
economic factors
(I) if a countervailable subsidy is involved, such information as may be
presented to it by the administering authority as to the nature of the subsidy
(particularly as to whether the countervailable subsidy is a subsidy described
in Article 3 or 6.1 of the Subsidies Agreement), and whether imports of the
subject merchandise are likely to increase,
(II) any existing unused production capacity or imminent, substantial increase
in production capacity in the exporting country indicating the likelihood of
substantially increased imports of the subject merchandise into the United
States, taking into account the availability of other export markets to absorb
any additional exports,
(III) a significant rate of increase of the volume or market penetration of
imports of the subject merchandise indicating the likelihood of substantially
increased imports,
(IV) whether imports of the subject merchandise are entering at prices that
are likely to have a significant depressing or suppressing effect on domestic
prices, and are likely to increase demand for further imports,
(V) inventories of the subject merchandise,
(VI) the potential for product-shifting if production facilities in the
foreign country, which can be used to produce the subject merchandise, are
currently being used to produce other products,
(VII) in any investigation under this title which involves imports of both a
raw agricultural product (within the meaning of paragraph (4)(E)(iv)) and any
product processed from such raw agricultural product, the likelihood that there
will be increased imports, by reason of product shifting, if there is an
affirmative determination by the Commission under section 705(b)(1) or 735(b)(1)
with respect to either the raw agricultural product or the processed
agricultural product (but not both),
(VIII) the actual and potential negative effects on the existing development
and production efforts of the domestic industry, including efforts to develop a
derivative or more advanced version of the domestic like product, and
(IX) any other demonstrable adverse trends that indicate the probability that
there is likely to be material injury by reason of imports (or sale for
importation) of the subject merchandise (whether or not it is actually being
imported at the time).
(ii) Basis for determination. The Commission shall consider the factors set
forth in clause (i) as a whole in making a determination of whether further
dumped or subsidized imports are imminent and whether material injury by reason
of imports would occur unless an order is issued or a suspension agreement is
accepted under this title. The presence or absence of any factor which the
Commission is required to consider under clause (i) shall not necessarily give
decisive guidance with respect to the determination. Such a determination may
not be made on the basis of mere conjecture or supposition.
(iii) Effect of dumping in third-country markets.
(I) In general. In investigations under subtitle B, the Commission shall
consider whether dumping in the markets of foreign countries (as evidenced by
dumping findings or antidumping remedies in other WTO member markets against the
same class or kind of merchandise manufactured or exported by the same party as
under investigation) suggests a threat of material injury to the domestic
industry. In the course of its investigation, the Commission shall request
information from the foreign manufacturer, exporter, or United States importer
concerning this issue.
(II) WTO member market. For purposes of this clause, the term "WTO member
market" means the market of any country which is a WTO member.
(III) European communities. For purposes of this clause, the European
Communities shall be treated as a foreign country.
(G) Cumulation for determining material injury.
(i) In general. For purposes of clauses (i) and (ii) of subparagraph (C), and
subject to clause (ii), the Commission shall cumulatively assess the volume and
effect of imports of the subject merchandise from all countries with respect to
which
(I) petitions were filed under section 702(b) or 732(b) on the same day,
(II) investigations were initiated under section 702(a) or 732(a) on the same
day, or
(III) petitions were filed under section 702(b) or 732(b) and investigations
were initiated under section 702(a) or 732(a) on the same day,
if such imports compete with each other and with domestic like products in the
United States market.
(ii) Exceptions. The Commission shall not cumulatively assess the volume and
effect of imports under clause (i)
(I) with respect to which the administering authority has made a preliminary
negative determination, unless the administering authority subsequently made a
final affirmative determination with respect to those imports before the
Commission's final determination is made;
(II) from any country with respect to which the investigation has been
terminated;
(III) from any country designated as a beneficiary country under the Caribbean
Basin Economic Recovery Act (19 U.S.C. 2701 et seq.) for purposes of making a
determination with respect to that country, except that the volume and effect of
imports of the subject merchandise from such country may be cumulatively
assessed with imports of the subject merchandise from any other country
designated as such a beneficiary country to the extent permitted by clause (i);
or
(IV) from any country that is a party to an agreement with the United States
establishing a free trade area, which entered into force and effect before
January 1, 1987, unless the Commission determines that a domestic industry is
materially injured or threatened with material injury by reason of imports from
that country.
(iii) Records in final investigations. In each final determination in which
it cumulatively assesses the volume and effect of imports under clause (i), the
Commission shall make its determinations based on the record compiled in the
first investigation in which it makes a final determination, except that when
the administering authority issues its final determination in a subsequently
completed investigation, the Commission shall permit the parties in the
subsequent investigation to submit comments concerning the significance of the
administering authority's final determination, and shall include such comments
and the administering authority's final determination in the record for the
subsequent investigation.
(iv) Regional industry determinations. In an investigation which involves a
regional industry, and in which the Commission decides that the volume and
effect of imports should be cumulatively assessed under this subparagraph, such
assessment shall be based upon the volume and effect of imports into the region
or regions determined by the Commission. The provisions of clause (iii) shall
apply to such investigations.
(H) Cumulation for determining threat of material injury. To the extent
practicable and subject to subparagraph (G)(ii), for purposes of clause (i)(III)
and (IV) of subparagraph (F), the Commission may cumulatively assess the volume
and price effects of imports of the subject merchandise from all countries with
respect to which
(i) petitions were filed under section 702(b) or 732(b) on the same day,
(ii) investigations were initiated under section 702(a) or 732(a) on the same
day, or
(iii) petitions were filed under section 702(b) or 732(b) and investigations
were initiated under section 702(a) or 732(a) on the same day,
if such imports compete with each other and with domestic like products in the
United States market.
(I) Consideration of post-petition information. The Commission shall consider
whether any change in the volume, price effects, or impact of imports of the
subject merchandise since the filing of the petition in an investigation under
subtitle A or B is related to the pendency of the investigation and, if so, the
Commission may reduce the weight accorded to the data for the period after the
filing of the petition in making its determination of material injury, threat of
material injury, or material retardation of the establishment of an industry in
the United States.
(8) Subsidies agreement; agreement on agriculture.
(A) Subsidies agreement. The term "Subsidies Agreement" means the Agreement
on Subsidies and Countervailing Measures referred to in section 101(d)(12) of
the Uruguay Round Agreements Act.
(B) Agreement on agriculture. The term "Agreement on Agriculture" means the
Agreement on Agriculture referred to in section 101(d)(2) of the Uruguay Round
Agreements Act.
(9) Interested party. The term "interested party" means
(A) a foreign manufacturer, producer, or exporter, or the United States
importer, of subject merchandise or a trade or business association a majority
of the members of which are producers, exporters, or importers of such
merchandise,
(B) the government of a country in which such merchandise is produced or
manufactured or from which such merchandise is exported,
(C) a manufacturer, producer, or wholesaler in the United States of a domestic
like product,
(D) a certified union or recognized union or group of workers which is
representative of an industry engaged in the manufacture, production, or
wholesale in the United States of a domestic like product,
(E) a trade or business association a majority of whose members manufacture,
produce, or wholesale a domestic like product in the United States,
(F) an association, a majority of whose members is composed of interested
parties described in subparagraph (C), (D), or (E) with respect to a domestic
like product, and
(G) in any investigation under this title involving an industry engaged in
producing a processed agricultural product, as defined in paragraph (4)(E), a
coalition or trade association which is representative of either
(i) processors,
(ii) processors and producers, or
(iii) processors and growers,
but this subparagraph shall cease to have effect if the United States Trade
Representative notifies the administering authority and the Commission that the
application of this subparagraph is inconsistent with the international
obligations of the United States.
(10) Domestic like product. The term "domestic like product" means a product
which is like, or in the absence of like, most similar in characteristics and
uses with, the article subject to an investigation under this title.
(11) Affirmative determinations by divided commission. If the Commissioners
voting on a determination by the Commission, including a determination under
section 751, are evenly divided as to whether the determination should be
affirmative or negative, the Commission shall be deemed to have made an
affirmative determination. For the purpose of applying this paragraph when the
issue before the Commission is to determine whether there is
(A) material injury to an industry in the United States,
(B) threat of material injury to such an industry, or
(C) material retardation of the establishment of an industry in the United
States,
by reason of imports of the merchandise, an affirmative vote on any of the
issues shall be treated as a vote that the determination should be affirmative.
(12) Attribution of merchandise to country of manufacture or production. For
purposes of subtitle A, merchandise shall be treated as the product of the
country in which it was manufactured or produced without regard to whether it is
imported directly from that country and without regard to whether it is imported
in the same condition as when exported from that country or in a changed
condition by reason of remanufacture or otherwise.
(13) [Repealed.]
(14) Sold or, in the absence of sales, offered for sale. The term "sold or,
in the absence of sales, offered for sale" means sold or, in the absence of
sales, offered
(A) to all purchasers in commercial quantities, or
(B) in the ordinary course of trade to one or more selected purchasers in
commercial quantities at a price which fairly reflects the market value of the
merchandise,
without regard to restrictions as to the disposition or use of the merchandise
by the purchaser except that, where such restrictions are found to affect the
market value of the merchandise, adjustment shall be made therefor in
calculating the price at which the merchandise is sold or offered for sale.
(15) Ordinary course of trade. The term "ordinary course of trade" means the
conditions and practices which, for a reasonable time prior to the exportation
of the subject merchandise, have been normal in the trade under consideration
with respect to merchandise of the same class or kind. The administering
authority shall consider the following sales and transactions, among others, to
be outside the ordinary course of trade:
(A) Sales disregarded under section 773(b)(1).
(B) Transactions disregarded under section 773(f)(2).
(16) Foreign like product. The term "foreign like product" means merchandise
in the first of the following categories in respect of which a determination for
the purposes of subtitle B of this title can be satisfactorily made:
(A) The subject merchandise and other merchandise which is identical in
physical characteristics with, and was produced in the same country by the same
person as, that merchandise.
(B) Merchandise
(i) produced in the same country and by the same person as the merchandise
which is the subject of the investigation 1,
1 Section 233(a)(4)(EE) of P.L. 103 465 attempted to amend section
771(16)(B)(i) by striking "merchandise which is the subject of an investigation"
and inserting "subject merchandise". The amendment probably should have stricken
"merchandise which is the subject of the investigation".
(ii) like that merchandise in component material or materials and in the
purposes for which used, and
(iii) approximately equal in commercial value to that merchandise.
(C) Merchandise
(i) produced in the same country and by the same person and of the same
general class or kind as the merchandise which is the subject of the
investigation,
(ii) like that merchandise in the purposes for which used, and
(iii) which the administering authority determines may reasonably be compared
with that merchandise.
(17) Usual commercial quantities. The term "usual commercial quantities", in
any case in which the subject merchandise is sold in the market under
consideration at different prices for different quantities, means the quantities
in which such merchandise is there sold at the price or prices for one quantity
in an aggregate volume which is greater than the aggregate volume sold at the
price or prices for any other quantity.
(18) Nonmarket economy country.
(A) In general. The term "nonmarket economy country" means any foreign
country that the administering authority determines does not operate on market
principles of cost or pricing structures, so that sales of merchandise in such
country do not reflect the fair value of the merchandise.
(B) Factors to be considered. In making determinations under subparagraph (A)
the administering authority shall take into account
(i) the extent to which the currency of the foreign country is convertible
into the currency of other countries;
(ii) the extent to which wage rates in the foreign country are determined by
free bargaining between labor and management,
(iii) the extent to which joint ventures or other investments by firms of
other foreign countries are permitted in the foreign country,
(iv) the extent of government ownership or control of the means of production,
(v) the extent of government control over the allocation of resources and over
the price and output decisions of enterprises, and
(vi) such other factors as the administering authority considers appropriate.
(C) Determination in effect.
(i) Any determination that a foreign country is a nonmarket economy country
shall remain in effect until revoked by the administering authority.
(ii) The administering authority may make a determination under subparagraph
(A) with respect to any foreign country at any time.
(D) Determinations not in issue. Notwithstanding any other provision of law,
any determination made by the administering authority under subparagraph (A)
shall not be subject to judicial review in any investigation conducted under
subtitle B.
(E) Collection of information. Upon request by the administering authority,
the Commissioner of Customs shall provide the administering authority a copy of
all public and proprietary information submitted to, or obtained by, the
Commissioner of Customs that the administering authority considers relevant to
proceedings involving merchandise from nonmarket economy countries. The
administering authority shall protect proprietary information obtained under
this section from public disclosure in accordance with section 777.
(19) Equivalency of leases to sales. In determining whether a lease is
equivalent to a sale for purposes of this title, the administering authority
shall consider
(A) the terms of the lease,
(B) commercial practice within the industry,
(C) the circumstances of the transaction,
(D) whether the product subject to the lease is integrated into the operations
of the lessee or importer,
(E) whether in practice there is a likelihood that the lease will be continued
or renewed for a significant period of time, and
(F) other relevant factors, including whether the lease transaction would
permit avoidance of antidumping or countervailing duties.
(20) Application to governmental importations.
(A) In general. Except as otherwise provided by this paragraph, merchandise
imported by, or for the use of, a department or agency of the United States
Government (including merchandise provided for under chapter 98 of the
Harmonized Tariff Schedule of the United States) is subject to the imposition of
countervailing duties or antidumping duties under this title or section 303.
(B) Exceptions. Merchandise imported by, or for the use of, the Department of
Defense shall not be subject to the imposition of countervailing or antidumping
duties under this title if
(i) the merchandise is acquired by, or for use of, such Department
(I) from a country with which such Department had a Memorandum of
Understanding which was in effect on January 1, 1988, and has continued to have
a comparable agreement (including renewals) or superseding agreements, and
(II) in accordance with terms of the Memorandum of Understanding in effect at
the time of importation, or
(ii) the merchandise has no substantial nonmilitary use.
(21) United states-canada agreement. The term "United States-Canada
Agreement" means the United States-Canada Free-Trade Agreement.
(22) NAFTA. The term "NAFTA" means the North American Free Trade Agreement.
(23) Entry. The term "entry" includes, in appropriate circumstances as
determined by the administering authority, a reconciliation entry created under
a reconciliation process, defined in section 401(s), that is initiated by an
importer. The liability of an importer under an antidumping or countervailing
duty proceeding for entries of merchandise subject to the proceeding will attach
to the corresponding reconciliation entry or entries. Suspension of liquidation
of the reconciliation entry or entries, for the purpose of enforcing this title,
is equivalent to the suspension of liquidation of the corresponding individual
entries; but the suspension of liquidation of the reconciliation entry or
entries for such purpose does not preclude liquidation for any other purpose.
(24) Negligible imports.
(A) In general.
(i) Less than 3 percent. Except as provided in clauses (ii) and (iv), imports
from a country of merchandise corresponding to a domestic like product
identified by the Commission are "negligible" if such imports account for less
than 3 percent of the volume of all such merchandise imported into the United
States in the most recent 12-month period for which data are available that
precedes
(I) the filing of the petition under section 702(b) or 732(b), or
(II) the initiation of the investigation, if the investigation was initiated
under section 702(a) or 732(a).
(ii) Exception. Imports that would otherwise be negligible under clause (i)
shall not be negligible if the aggregate volume of imports of the merchandise
from all countries described in clause (i) with respect to which investigations
were initiated on the same day exceeds 7 percent of the volume of all such
merchandise imported into the United States during the applicable 12-month
period.
(iii) Determination of aggregate volume. In determining aggregate volume
under clause (ii) or (iv), the Commission shall not consider imports from any
country specified in paragraph (7)(G)(ii).
(iv) Negligibility in threat analysis. Notwithstanding clauses (i) and (ii),
the Commission shall not treat imports as negligible if it determines that there
is a potential that imports from a country described in clause (i) will
imminently account for more than 3 percent of the volume of all such merchandise
imported into the United States, or that the aggregate volumes of imports from
all countries described in clause (ii) will imminently exceed 7 percent of the
volume of all such merchandise imported into the United States. The Commission
shall consider such imports only for purposes of determining threat of material
injury.
(B) Negligibility for certain countries in countervailing duty investigations.
In the case of an investigation under section 701, subparagraph (A) shall be
applied to imports of subject merchandise from developing countries by
substituting "4 percent" for "3 percent" in subparagraph (A)(i) and by
substituting "9 percent" for "7 percent" in subparagraph (A)(ii).
(C) Computation of import volumes. In computing import volumes for purposes
of subparagraphs (A) and (B), the Commission may make reasonable estimates on
the basis of available statistics.
(D) Regional industries. In an investigation in which the Commission makes a
regional industry determination under paragraph (4)(C), the Commission's
examination under subparagraphs (A) and (B) shall be based upon the volume of
subject merchandise exported for sale in the regional market in lieu of the
volume of all subject merchandise imported into the United States.
(25) Subject merchandise. The term "subject merchandise" means the class or
kind of merchandise that is within the scope of an investigation, a review, a
suspension agreement, an order under this title or section 303, or a finding
under the Antidumping Act, 1921.
(26) Section 303. The terms "section 303" and "303" mean section 303 of this
Act as in effect on the day before the effective date of title II of the Uruguay
Round Agreements Act.
(27) Suspension agreement. The term "suspension agreement" means an agreement
described in section 704(b), 704(c), 734(b), 734(c), or 734(l).
(28) Exporter or producer. The term "exporter or producer" means the exporter
of the subject merchandise, the producer of the subject merchandise, or both
where appropriate. For purposes of section 773, the term "exporter or producer"
includes both the exporter of the subject merchandise and the producer of the
same subject merchandise to the extent necessary to accurately calculate the
total amount incurred and realized for costs, expenses, and profits in
connection with production and sale of that merchandise.
(29) WTO agreement. The term "WTO Agreement" means the Agreement defined in
section 2(9) of the Uruguay Round Agreements Act.
(30) WTO member and wto member country. The terms "WTO member" and "WTO
member country" mean a state, or separate customs territory (within the meaning
of Article XII of the WTO Agreement), with respect to which the United States
applies the WTO agreement.
(31) GATT 1994. The term "GATT 1994" means the General Agreement on Tariffs
and Trade annexed to the WTO Agreement.
(32) Trade representative. The term "Trade Representative" means the United
States Trade Representative.
(33) Affiliated persons. The following persons shall be considered to be
"affiliated" or "affiliated persons":
(A) Members of a family, including brothers and sisters (whether by the whole
or half blood), spouse, ancestors, and lineal descendants.
(B) Any officer or director of an organization and such organization.
(C) Partners.
(D) Employer and employee.
(E) Any person directly or indirectly owning, controlling, or holding with
power to vote, 5 percent or more of the outstanding voting stock or shares of
any organization and such organization.
(F) Two or more persons directly or indirectly controlling, controlled by, or
under common control with, any person.
(G) Any person who controls any other person and such other person.
For purposes of this paragraph, a person shall be considered to control
another person if the person is legally or operationally in a position to
exercise restraint or direction over the other person.
(34) Dumped; dumping. The terms "dumped" and "dumping" refer to the sale or
likely sale of goods at less than fair value.
(35) Dumping margin; weighted average dumping margin.
(A) Dumping margin. The term "dumping margin" means the amount by which the
normal value exceeds the export price or constructed export price of the subject
merchandise.
(B) Weighted average dumping margin. The term "weighted average dumping
margin" is the percentage determined by dividing the aggregate dumping margins
determined for a specific exporter or producer by the aggregate export prices
and constructed export prices of such exporter or producer.
(C) Magnitude of the margin of dumping. The magnitude of the margin of
dumping used by the Commission shall be
(i) in making a preliminary determination under section 733(a) in an
investigation (including any investigation in which the Commission cumulatively
assesses the volume and effect of imports under paragraph (7)(G)(i)), the
dumping margin or margins published by the administering authority in its notice
of initiation of the investigation;
(ii) in making a final determination under section 735(b), the dumping margin
or margins most recently published by the administering authority prior to the
closing of the Commission's administrative record;
(iii) in a review under section 751(b)(2), the most recent dumping margin or
margins determined by the administering authority under section 752(c)(3), if
any, or under section 733(b) or 735(a); and
(iv) in a review under section 751(c), the dumping margin or margins
determined by the administering authority under section 752(c)(3).
(36) Developing and least developed country.
(A) Developing country. The term "developing country" means a country
designated as a developing country by the Trade Representative.
(B) Least developed country. The term "least developed country" means a
country which the Trade Representative determines is
(i) a country referred to as a least developed country within the meaning of
paragraph (a) of Annex VII to the Subsidies Agreement, or
(ii) any other country listed in Annex VII to the Subsidies Agreement, but
only if the country has a per capita gross national product of less than $1,000
per annum as measured by the most recent data available from the World Bank.
(C) Publication of list. The Trade Representative shall publish in the
Federal Register, and update as necessary, a list of
(i) developing countries that have eliminated their export subsidies on an
expedited basis within the meaning of Article 27.11 of the Subsidies Agreement,
and
(ii) countries determined by the Trade Representative to be least developed or
developing countries.
(D) Factors to consider. In determining whether a country is a developing
country under subparagraph (A), the Trade Representative shall consider such
economic, trade, and other factors which the Trade Representative considers
appropriate, including the level of economic development of such country (the
assessment of which shall include a review of the country's per capita gross
national product) and the country's share of world trade.
(E) Limitation on designation. A determination that a country is a developing
or least developed country pursuant to this paragraph shall be for purposes of
this title only and shall not affect the determination of a country's status as
a developing or least developed country with respect to any other law.
(19 U.S.C. 1677)
Sec. 771A
SEC. 771A. UPSTREAM SUBSIDIES.
(a) Definition. The term "upstream subsidy" means any countervailable
subsidy, other than an export subsidy, that
(1) is paid or bestowed by an authority (as defined in section 771(5)) with
respect to a product (hereafter in this section referred to as an "input
product") that is used in the same country as the authority in the manufacture
or production of merchandise which is the subject of a countervailing duty
proceeding;
(2) in the judgment of the administering authority bestows a competitive
benefit on the merchandise; and
(3) has a significant effect on the cost of manufacturing or producing the
merchandise.
In applying this subsection, an association of two or more foreign countries,
political subdivisions, dependent territories, or possessions of foreign
countries organized into a customs union outside the United States shall be
treated as being one country if the countervailable subsidy is provided by the
customs union.
(b) Determination of Competitive Benefit.
(1) In general. Except as provided in paragraph (2), the administering
authority shall decide that a competitive benefit has been bestowed when the
price for the input product referred to in subsection (a)(1) for such use is
lower than the price that the manufacturer or producer of merchandise which is
the subject of a countervailing duty proceeding would otherwise pay for the
product in obtaining it from another seller in an arms-length transaction.
(2) Adjustments. If the administering authority has determined in a previous
proceeding that a countervailable subsidy is paid or bestowed on the input
product that is used for comparison under paragraph (1), the administering
authority may (A) where appropriate, adjust the price that the manufacturer or
producer of merchandise which is the subject of such proceeding would otherwise
pay for the product to reflect the effects of the countervailable subsidy, or
(B) select in lieu of that price a price from another source.
(c) Inclusion of Amount of Subsidy. 1. If the administering authority
decides, during the course of a countervailing duty proceeding that an upstream
countervailable subsidy is being or has been paid or bestowed regarding the
subject merchandise, the administering authority shall include in the amount of
any countervailing duty imposed on the merchandise an amount equal to the amount
of the competitive benefit referred to in subparagraph (1)(B), except that in no
event shall the amount be greater than the amount of the countervailable subsidy
determined with respect to the upstream product.
1 Section 270(a)(2)(B) of P.L. 103 465 amended "section 771(A)(c)" in the
heading by striking "Subsidy" and inserting "Countervailable Subsidy". The
instructions probably should have amended "section 771A(c)" by striking
"Subsidy" and inserting "Countervailable Subsidy".
(19 U.S.C. 1677 1)
Sec. 771B
SEC. 771B. CALCULATION OF COUNTERVAILABLE SUBSIDIES ON CERTAIN PROCESSED
AGRICULTURAL PRODUCTS.
In the case of an agricultural product processed from a raw agricultural
product in which
(1) the demand for the prior stage product is substantially dependent on the
demand for the latter stage product, and
(2) the processing operation adds only limited value to the raw commodity,
countervailable subsidies found to be provided to either producers or
processors of the product shall be deemed to be provided with respect to the
manufacture, production, or exportation of the processed product.
(19 U.S.C. 1677 2)
Sec. 772
SEC. 772. EXPORT PRICE AND CONSTRUCTED EXPORT PRICE.
(a) Export Price. The term "export price" means the price at which the
subject merchandise is first sold (or agreed to be sold) before the date of
importation by the producer or exporter of the subject merchandise outside of
the United States to an unaffiliated purchaser in the United States or to an
unaffiliated purchaser for exportation to the United States, as adjusted under
subsection (c).
(b) Constructed Export Price. The term "constructed export price" means the
price at which the subject merchandise is first sold (or agreed to be sold) in
the United States before or after the date of importation by or for the account
of the producer or exporter of such merchandise or by a seller affiliated with
the producer or exporter, to a purchaser not affiliated with the producer or
exporter, as adjusted under subsections (c) and (d).
(c) Adjustments for Export Price and Constructed Export Price. The price used
to establish export price and constructed export price shall be
(1) increased by
(A) when not included in such price, the cost of all containers and coverings
and all other costs, charges, and expenses incident to placing the subject
merchandise in condition packed ready for shipment to the United States,
(B) the amount of any import duties imposed by the country of exportation
which have been rebated, or which have not been collected, by reason of the
exportation of the subject merchandise to the United States, and
(C) the amount of any countervailing duty imposed on the subject merchandise
under subtitle A to offset an export subsidy, and
(2) reduced by
(A) except as provided in paragraph (1)(C), the amount, if any, included in
such price, attributable to any additional costs, charges, or expenses, and
United States import duties, which are incident to bringing the subject
merchandise from the original place of shipment in the exporting country to the
place of delivery in the United States, and
(B) the amount, if included in such price, of any export tax, duty, or other
charge imposed by the exporting country on the exportation of the subject
merchandise to the United States, other than an export tax, duty, or other
charge described in section 771(6)(C).
(d) Additional Adjustments to Constructed Export Price. For purposes of this
section, the price used to establish constructed export price shall also be
reduced by
(1) the amount of any of the following expenses generally incurred by or for
the account of the producer or exporter, or the affiliated seller in the United
States, in selling the subject merchandise (or subject merchandise to which
value has been added)
(A) commissions for selling the subject merchandise in the United States;
(B) expenses that result from, and bear a direct relationship to, the sale,
such as credit expenses, guarantees and warranties;
(C) any selling expenses that the seller pays on behalf of the purchaser; and
(D) any selling expenses not deducted under subparagraph (A), (B), or (C);
(2) the cost of any further manufacture or assembly (including additional
material and labor), except in circumstances described in subsection (e); and
(3) the profit allocated to the expenses described in paragraphs (1) and (2).
(e) Special Rule for Merchandise With Value Added After Importation. Where
the subject merchandise is imported by a person affiliated with the exporter or
producer, and the value added in the United States by the affiliated person is
likely to exceed substantially the value of the subject merchandise, the
administering authority shall determine the constructed export price for such
merchandise by using one of the following prices if there is a sufficient
quantity of sales to provide a reasonable basis for comparison and the
administering authority determines that the use of such sales is appropriate:
(1) The price of identical subject merchandise sold by the exporter or
producer to an unaffiliated person.
(2) The price of other subject merchandise sold by the exporter or producer to
an unaffiliated person.
If there is not a sufficient quantity of sales to provide a reasonable basis
for comparison under paragraph (1) or (2), or the administering authority
determines that neither of the prices described in such paragraphs is
appropriate, then the constructed export price may be determined on any other
reasonable basis.
(f) Special Rule for Determining Profit.
(1) In general. For purposes of subsection (d)(3), profit shall be an amount
determined by multiplying the total actual profit by the applicable percentage.
(2) Definitions. For purposes of this subsection:
(A) Applicable percentage. The term "applicable percentage" means the
percentage determined by dividing the total United States expenses by the total
expenses.
(B) Total united states expenses. The term "total United States expenses"
means the total expenses described in subsection (d) (1) and (2).
(C) Total expenses. The term "total expenses" means all expenses in the first
of the following categories which applies and which are incurred by or on behalf
of the foreign producer and foreign exporter of the subject merchandise and by
or on behalf of the United States seller affiliated with the producer or
exporter with respect to the production and sale of such merchandise:
(i) The expenses incurred with respect to the subject merchandise sold in the
United States and the foreign like product sold in the exporting country if such
expenses were requested by the administering authority for the purpose of
establishing normal value and constructed export price.
(ii) The expenses incurred with respect to the narrowest category of
merchandise sold in the United States and the exporting country which includes
the subject merchandise.
(iii) The expenses incurred with respect to the narrowest category of
merchandise sold in all countries which includes the subject merchandise.
(D) Total actual profit. The term "total actual profit" means the total
profit earned by the foreign producer, exporter, and affiliated parties
described in subparagraph (C) with respect to the sale of the same merchandise
for which total expenses are determined under such subparagraph.
(19 U.S.C. 1677a)
Sec. 773
SEC. 773. NORMAL VALUE.
(a) Determination. In determining under this title whether subject
merchandise is being, or is likely to be, sold at less than fair value, a fair
comparison shall be made between the export price or constructed export price
and normal value. In order to achieve a fair comparison with the export price or
constructed export price, normal value shall be determined as follows:
(1) Determination of normal value.
(A) In general. The normal value of the subject merchandise shall be the
price described in subparagraph (B), at a time reasonably corresponding to the
time of the sale used to determine the export price or constructed export price
under section 772(a) or (b).
(B) Price. The price referred to in subparagraph (A) is
(i) the price at which the foreign like product is first sold (or, in the
absence of a sale, offered for sale) for consumption in the exporting country,
in the usual commercial quantities and in the ordinary course of trade and, to
the extent practicable, at the same level of trade as the export price or
constructed export price, or
(ii) in a case to which subparagraph (C) applies, the price at which the
foreign like product is so sold (or offered for sale) for consumption in a
country other than the exporting country or the United States, if
(I) such price is representative,
(II) the aggregate quantity (or, if quantity is not appropriate, value) of the
foreign like product sold by the exporter or producer in such other country is 5
percent or more of the aggregate quantity (or value) of the subject merchandise
sold in the United States or for export to the United States, and
(III) the administering authority does not determine that the particular
market situation in such other country prevents a proper comparison with the
export price or constructed export price.
(C) Third country sales. This subparagraph applies when
(i) the foreign like product is not sold (or offered for sale) for consumption
in the exporting country as described in subparagraph (B)(i),
(ii) the administering authority determines that the aggregate quantity (or,
if quantity is not appropriate, value) of the foreign like product sold in the
exporting country is insufficient to permit a proper comparison with the sales
of the subject merchandise to the United States, or
(iii) the particular market situation in the exporting country does not permit
a proper comparison with the export price or constructed export price.
For purposes of clause (ii), the aggregate quantity (or value) of the foreign
like product sold in the exporting country shall normally be considered to be
insufficient if such quantity (or value) is less than 5 percent of the aggregate
quantity (or value) of sales of the subject merchandise to the United States.
(2) Fictitious markets. No pretended sale or offer for sale, and no sale or
offer for sale intended to establish a fictitious market, shall be taken into
account in determining normal value. The occurrence of different movements in
the prices at which different forms of the foreign like product are sold (or, in
the absence of sales, offered for sale) in the exporting country after the
issuance of an antidumping duty order may be considered by the administering
authority as evidence of the establishment of a fictitious market for the
foreign like product if the movement in such prices appears to reduce the amount
by which the normal value exceeds the export price (or the constructed export
price) of the subject merchandise.
(3) Exportation from an intermediate country. Where the subject merchandise
is exported to the United States from an intermediate country, normal value
shall be determined in the intermediate country, except that normal value may be
determined in the country of origin of the subject merchandise if
(A) the producer knew at the time of the sale that the subject merchandise was
destined for exportation;
(B) the subject merchandise is merely transshipped through the intermediate
country;
(C) sales of the foreign like product in the intermediate country do not
satisfy the conditions of paragraph (1)(C); or
(D) the foreign like product is not produced in the intermediate country.
(4) Use of constructed value. If the administering authority determines that
the normal value of the subject merchandise cannot be determined under paragraph
(1)(B)(i), then, notwithstanding paragraph (1)(B)(ii), the normal value of the
subject merchandise may be the constructed value of that merchandise, as
determined under subsection (e).
(5) Indirect sales or offers for sale. If the foreign like product is sold
or, in the absence of sales, offered for sale through an affiliated party, the
prices at which the foreign like product is sold (or offered for sale) by such
affiliated party may be used in determining normal value.
(6) Adjustments. The price described in paragraph (1)(B) shall be
(A) increased by the cost of all containers and coverings and all other costs,
charges, and expenses incident to placing the subject merchandise in condition
packed ready for shipment to the United States;
(B) reduced by
(i) when included in the price described in paragraph (1)(B), the cost of all
containers and coverings and all other costs, charges, and expenses incident to
placing the foreign like product in condition packed ready for shipment to the
place of delivery to the purchaser,
(ii) the amount, if any, included in the price described in paragraph (1)(B),
attributable to any additional costs, charges, and expenses incident to bringing
the foreign like product from the original place of shipment to the place of
delivery to the purchaser, and
(iii) the amount of any taxes imposed directly upon the foreign like product
or components thereof which have been rebated, or which have not been collected,
on the subject merchandise, but only to the extent that such taxes are added to
or included in the price of the foreign like product, and
(C) increased or decreased by the amount of any difference (or lack thereof)
between the export price or constructed export price and the price described in
paragraph (1)(B) (other than a difference for which allowance is otherwise
provided under this section) that is established to the satisfaction of the
administering authority to be wholly or partly due to
(i) the fact that the quantities in which the subject merchandise is sold or
agreed to be sold to the United States are greater than or less than the
quantities in which the foreign like product is sold, agreed to be sold, or
offered for sale,
(ii) the fact that merchandise described in subparagraph (B) or (C) of section
771(16) is used in determining normal value, or
(iii) other differences in the circumstances of sale.
(7) Additional adjustments.
(A) Level of trade. The price described in paragraph (1)(B) shall also be
increased or decreased to make due allowance for any difference (or lack
thereof) between the export price or constructed export price and the price
described in paragraph (1)(B) (other than a difference for which allowance is
otherwise made under this section) that is shown to be wholly or partly due to a
difference in level of trade between the export price or constructed export
price and normal value, if the difference in level of trade
(i) involves the performance of different selling activities; and
(ii) is demonstrated to affect price comparability, based on a pattern of
consistent price differences between sales at different levels of trade in the
country in which normal value is determined.
In a case described in the preceding sentence, the amount of the adjustment
shall be based on the price differences between the two levels of trade in the
country in which normal value is determined.
(B) Constructed export price offset. When normal value is established at a
level of trade which constitutes a more advanced stage of distribution than the
level of trade of the constructed export price, but the data available do not
provide an appropriate basis to determine under subparagraph (A)(ii) a level of
trade adjustment, normal value shall be reduced by the amount of indirect
selling expenses incurred in the country in which normal value is determined on
sales of the foreign like product but not more than the amount of such expenses
for which a deduction is made under section 772(d)(1)(D).
(8) Adjustments to constructed value. Constructed value as determined under
subsection (e), may be adjusted, as appropriate, pursuant to this subsection.
(b) Sales at Less Than Cost of Production.
(1) Determination; sales disregarded. Whenever the administering authority
has reasonable grounds to believe or suspect that sales of the foreign like
product under consideration for the determination of normal value have been made
at prices which represent less than the cost of production of that product, the
administering authority shall determine whether, in fact, such sales were made
at less than the cost of production. If the administering authority determines
that sales made at less than the cost of production
(A) have been made within an extended period of time in substantial
quantities, and
(B) were not at prices which permit recovery of all costs within a reasonable
period of time,
such sales may be disregarded in the determination of normal value. Whenever
such sales are disregarded, normal value shall be based on the remaining sales
of the foreign like product in the ordinary course of trade. If no sales made in
the ordinary course of trade remain, the normal value shall be based on the
constructed value of the merchandise.
(2) Definitions and special rules. For purposes of this subsection
(A) Reasonable grounds to believe or suspect. There are reasonable grounds to
believe or suspect that sales of the foreign like product were made at prices
that are less than the cost of production of the product, if
(i) in an investigation initiated under section 732 or a review conducted
under section 751, an interested party described in subparagraph (C), (D), (E),
(F), or (G) of section 771(9) provides information, based upon observed prices
or constructed prices or costs, that sales of the foreign like product under
consideration for the determination of normal value have been made at prices
which represent less than the cost of production of the product; or
(ii) in a review conducted under section 751 involving a specific exporter,
the administering authority disregarded some or all of the exporter's sales
pursuant to paragraph (1) in the investigation or if a review has been
completed, in the most recently completed review.
(B) Extended period of time. The term "extended period of time" means a
period that is normally 1 year, but not less than 6 months.
(C) Substantial quantities. Sales made at prices below the cost of production
have been made in substantial quantities if
(i) the volume of such sales represents 20 percent or more of the volume of
sales under consideration for the determination of normal value, or
(ii) the weighted average per unit price of the sales under consideration for
the determination of normal value is less than the weighted average per unit
cost of production for such sales.
(D) Recovery of costs. If prices which are below the per unit cost of
production at the time of sale are above the weighted average per unit cost of
production for the period of investigation or review, such prices shall be
considered to provide for recovery of costs within a reasonable period of time.
(3) Calculation of cost of production. For purposes of this subtitle, the
cost of production shall be an amount equal to the sum of
(A) the cost of materials and of fabrication or other processing of any kind
employed in producing the foreign like product, during a period which would
ordinarily permit the production of that foreign like product in the ordinary
course of business;
(B) an amount for selling, general, and administrative expenses based on
actual data pertaining to production and sales of the foreign like product by
the exporter in question; and
(C) the cost of all containers and coverings of whatever nature, and all other
expenses incidental to placing the foreign like product in condition packed
ready for shipment.
For purposes of subparagraph (A), if the normal value is based on the price of
the foreign like product sold for consumption in a country other than the
exporting country, the cost of materials shall be determined without regard to
any internal tax in the exporting country imposed on such materials or their
disposition which are remitted or refunded upon exportation.
(c) Nonmarket Economy Countries.
(1) In general. If
(A) the subject merchandise is exported from a nonmarket economy country, and
(B) the administering authority finds that available information does not
permit the normal value of the subject merchandise to be determined under
subsection (a),
the administering authority shall determine the normal value of the subject
merchandise on the basis of the value of the factors of production utilized in
producing the merchandise and to which shall be added an amount for general
expenses and profit plus the cost of containers, coverings, and other expenses.
Except as provided in paragraph (2), the valuation of the factors of production
shall be based on the best available information regarding the values of such
factors in a market economy country or countries considered to be appropriate by
the administering authority.
(2) Exception. If the administering authority finds that the available
information is inadequate for purposes of determining the normal value of
subject merchandise under paragraph (1), the administering authority shall
determine the normal value on the basis of the price at which merchandise that
is
(A) comparable to the subject merchandise, and
(B) produced in one or more market economy countries that are at a level of
economic development comparable to that of the nonmarket economy country,
is sold in other countries, including the United States.
(3) Factors of production. For purposes of paragraph (1), the factors of
production utilized in producing merchandise include, but are not limited to
(A) hours of labor required,
(B) quantities of raw materials employed,
(C) amounts of energy and other utilities consumed, and
(D) representative capital cost, including depreciation.
(4) Valuation of factors of production. The administering authority, in
valuing factors of production under paragraph (1), shall utilize, to the extent
possible, the prices or costs of factors of production in one or more market
economy countries that are
(A) at a level of economic development comparable to that of the nonmarket
economy country, and
(B) significant producers of comparable merchandise.
(d) Special Rule for Certain Multinational Corporations. Whenever, in the
course of an investigation under this title, the administering authority
determines that
(1) subject merchandise exported to the United States is being produced in
facilities which are owned or controlled, directly or indirectly, by a person,
firm, or corporation which also owns or controls, directly or indirectly, other
facilities for the production of the foreign like product which are located in
another country or countries,
(2) subsection (a)(1)(C) applies, and
(3) the normal value of the foreign like product produced in one or more of
the facilities outside the exporting country is higher than the normal value of
the foreign like product produced in the facilities located in the exporting
country,
it shall determine the normal value of the subject merchandise by reference to
the normal value at which the foreign like product is sold in substantial
quantities from one or more facilities outside the exporting country. The
administering authority, in making any determination under this paragraph, shall
make adjustments for the difference between the cost of production (including
taxes, labor, materials, and overhead) of the foreign like product produced in
facilities outside the exporting country and costs of production of the foreign
like product produced in facilities in the exporting country, if such
differences are demonstrated to its satisfaction. For purposes of this
subsection, in determining the normal value of the foreign like product produced
in a country outside of the exporting country, the administering authority shall
determine its price at the time of exportation from the exporting country and
shall make any adjustments required by subsection (a) for the cost of all
containers and coverings and all other costs, charges, and expenses incident to
placing the merchandise in condition packed ready for shipment to the United
States by reference to such costs in the exporting country.
(e) Constructed Value. For purposes of this title, the constructed value of
imported merchandise shall be an amount equal to the sum of
(1) the cost of materials and fabrication or other processing of any kind
employed in producing the merchandise, during a period which would ordinarily
permit the production of the merchandise in the ordinary course of business;
(2)(A) the actual amounts incurred and realized by the specific exporter or
producer being examined in the investigation or review for selling, general, and
administrative expenses, and for profits, in connection with the production and
sale of a foreign like product, in the ordinary course of trade, for consumption
in the foreign country, or
(B) if actual data are not available with respect to the amounts described in
subparagraph (A), then
(i) the actual amounts incurred and realized by the specific exporter or
producer being examined in the investigation or review for selling, general, and
administrative expenses, and for profits, in connection with the production and
sale, for consumption in the foreign country, of merchandise that is in the same
general category of products as the subject merchandise,
(ii) the weighted average of the actual amounts incurred and realized by
exporters or producers that are subject to the investigation or review (other
than the exporter or producer described in clause (i)) for selling, general, and
administrative expenses, and for profits, in connection with the production and
sale of a foreign like product, in the ordinary course of trade, for consumption
in the foreign country, or
(iii) the amounts incurred and realized for selling, general, and
administrative expenses, and for profits, based on any other reasonable method,
except that the amount allowed for profit may not exceed the amount normally
realized by exporters or producers (other than the exporter or producer
described in clause (i)) in connection with the sale, for consumption in the
foreign country, of merchandise that is in the same general category of products
as the subject merchandise; and
(3) the cost of all containers and coverings of whatever nature, and all other
expenses incidental to placing the subject merchandise in condition packed ready
for shipment to the United States.
For purposes of paragraph (1), the cost of materials shall be determined
without regard to any internal tax in the exporting country imposed on such
materials or their disposition which are remitted or refunded upon exportation
of the subject merchandise produced from such materials.
(f) Special Rules for Calculation of Cost of Production and for Calculation of
Constructed Value. For purposes of subsections (b) and (e).
(1) Costs.
(A) In general. Costs shall normally be calculated based on the records of
the exporter or producer of the merchandise, if such records are kept in
accordance with the generally accepted accounting principles of the exporting
country (or the producing country, where appropriate) and reasonably reflect the
costs associated with the production and sale of the merchandise. The
administering authority shall consider all available evidence on the proper
allocation of costs, including that which is made available by the exporter or
producer on a timely basis, if such allocations have been historically used by
the exporter or producer, in particular for establishing appropriate
amortization and depreciation periods, and allowances for capital expenditures
and other development costs.
(B) Nonrecurring costs. Costs shall be adjusted appropriately for those
nonrecurring costs that benefit current or future production, or both.
(C) Startup costs.
(i) In general. Costs shall be adjusted appropriately for circumstances in
which costs incurred during the time period covered by the investigation or
review are affected by startup operations.
(ii) Startup operations. Adjustments shall be made for startup operations
only where
(I) a producer is using new production facilities or producing a new product
that requires substantial additional investment, and
(II) production levels are limited by technical factors associated with the
initial phase of commercial production.
For purposes of subclause (II), the initial phase of commercial production
ends at the end of the startup period. In determining whether commercial
production levels have been achieved, the administering authority shall consider
factors unrelated to startup operations that might affect the volume of
production processed, such as demand, seasonality, or business cycles.
(iii) Adjustment for startup operations. The adjustment for startup
operations shall be made by substituting the unit production costs incurred with
respect to the merchandise at the end of the startup period for the unit
production costs incurred during the startup period. If the startup period
extends beyond the period of the investigation or review under this title, the
administering authority shall use the most recent cost of production data that
it reasonably can obtain, analyze, and verify without delaying the timely
completion of the investigation or review. For purposes of this subparagraph,
the startup period ends at the point at which the level of commercial production
that is characteristic of the merchandise, producer, or industry concerned is
achieved.
(2) Transactions disregarded. A transaction directly or indirectly between
affiliated persons may be disregarded if, in the case of any element of value
required to be considered, the amount representing that element does not fairly
reflect the amount usually reflected in sales of merchandise under consideration
in the market under consideration. If a transaction is disregarded under the
preceding sentence and no other transactions are available for consideration,
the determination of the amount shall be based on the information available as
to what the amount would have been if the transaction had occurred between
persons who are not affiliated.
(3) Major input rule. If, in the case of a transaction between affiliated
persons involving the production by one of such persons of a major input to the
merchandise, the administering authority has reasonable grounds to believe or
suspect that an amount represented as the value of such input is less than the
cost of production of such input, then the administering authority may determine
the value of the major input on the basis of the information available regarding
such cost of production, if such cost is greater than the amount that would be
determined for such input under paragraph (2).
(19 U.S.C. 1677b)
SEC. 773A. CURRENCY CONVERSION.
(a) In General. In an antidumping proceeding under this title, the
administering authority shall convert foreign currencies into United States
dollars using the exchange rate in effect on the date of sale of the subject
merchandise, except that, if it is established that a currency transaction on
forward markets is directly linked to an export sale under consideration, the
exchange rate specified with respect to such currency in the forward sale
agreement shall be used to convert the foreign currency. Fluctuations in
exchange rates shall be ignored.
(b) Sustained Movement in Foreign Currency Value. In an investigation under
subtitle B, if there is a sustained movement in the value of the foreign
currency relative to the United States dollar, the administering authority shall
allow exporters at least 60 days to adjust their export prices to reflect such
sustained movement.
(19 U.S.C. 1677b 1)
Sec. 774
SEC. 774. HEARINGS.
(a) Investigation Hearings.
(1) In general. Except as provided in paragraph (2), the administering
authority and the Commission shall each hold a hearing in the course of an
investigation upon the request of any party to the investigation before making a
final determination under section 705 or 735.
(2) Exception. If investigations are initiated under subtitle A and subtitle
B regarding the same merchandise from the same country within 6 months of each
other (but before a final determination is made in either investigation), the
holding of a hearing by the Commission in the course of one of the
investigations shall be treated as compliance with paragraph (1) for both
investigations, unless the Commission considers that special circumstances
require that a hearing be held in the course of each of the investigations.
During any investigation regarding which the holding of a hearing is waived
under this paragraph, the Commission shall allow any party to submit such
additional written comment as it considers relevant.
(b) Procedures. Any hearing required or permitted under this title shall be
conducted after notice published in the Federal Register, and a transcript of
the hearing shall be prepared and made available to the public. The hearing
shall not be subject to the provisions of subchapter II of chapter 5 of title 5,
United States Code, or to section 702 of such title.
(19 U.S.C. 1677c)
Sec. 775
SEC. 775. COUNTERVAILABLE SUBSIDY PRACTICES DISCOVERED DURING A PROCEEDING.
If, in the course of a proceeding under this title, the administering
authority discovers a practice which appears to be a countervailable subsidy,
but was not included in the matters alleged in a countervailing duty petition,
or if the administering authority receives notice from the Trade Representative
that a subsidy or subsidy program is in violation of Article 8 of the Subsidies
Agreement, then the administering authority
(1) shall include the practice, subsidy, or subsidy program in the proceeding
if the practice, subsidy, or subsidy program appears to be a countervailable
subsidy with respect to the merchandise which is the subject of the proceeding,
or
(2) shall transfer the information (other than confidential information)
concerning the practice, subsidy, or subsidy program to the library maintained
under section 777(a)(1), if the practice, subsidy, or subsidy program appears to
be a countervailable subsidy with respect to any other merchandise.
(19 U.S.C. 1677d)
Sec. 776
SEC. 776. DETERMINATIONS ON THE BASIS OF THE FACTS AVAILABLE.
(a) In General. If
(1) necessary information is not available on the record, or
(2) an interested party or any other person
(A) withholds information that has been requested by the administering
authority or the Commission under this title,
(B) fails to provide such information by the deadlines for submission of the
information or in the form and manner requested, subject to subsections (c)(1)
and (e) of section 782,
(C) significantly impedes a proceeding under this title, or
(D) provides such information but the information cannot be verified as
provided in section 782(i),
the administering authority and the Commission shall, subject to section
782(d), use the facts otherwise available in reaching the applicable
determination under this title.
(b) Adverse Inferences. If the administering authority or the Commission (as
the case may be) 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 from
the administering authority or the Commission, the administering authority or
the Commission (as the case may be), in reaching the applicable determination
under this title, may use an inference that is adverse to the interests of that
party in selecting from among the facts otherwise available. Such adverse
inference may include reliance on information derived from
(1) the petition,
(2) a final determination in the investigation under this title,
(3) any previous review under section 751 or determination under section 753,
or
(4) any other information placed on the record.
(c) Corroboration of Secondary Information. When the administering authority
or the Commission relies on secondary information rather than on information
obtained in the course of an investigation or review, the administering
authority or the Commission, as the case may be, shall, to the extent
practicable, corroborate that information from independent sources that are
reasonably at their disposal.
(19 U.S.C. 1677e)
Sec. 777
SEC. 777. ACCESS TO INFORMATION.
(a) Information Generally Made Available.
(1) Public information function. There shall be established a library of
information relating to foreign subsidy practices and countervailing measures.
Copies of material in the library shall be made available to the public upon
payment of the costs of preparing such copies.
(2) Progress of investigation reports. The administering authority and the
Commission shall, from time to time upon request, inform the parties to an
investigation of the progress of that investigation.
(3) Ex parte meetings. The administering authority and the Commission shall
maintain a record of any ex parte meeting between
(A) interested parties or other persons providing factual information in
connection with a proceeding, and
(B) the person charged with making the determination, or any person charged
with making a final recommendation to that person, in connection with that
proceeding,
if information relating to that proceeding was presented or discussed at such
meeting. The record of such an ex parte meeting shall include the identity of
the persons present at the meeting, the date, time, and place of the meeting,
and a summary of the matters discussed or submitted. The record of the ex parte
meeting shall be included in the record of the proceeding.
(4) Summaries; non-proprietary submissions. The administering authority and
the Commission shall disclose
(A) any proprietary information received in the course of a proceeding if it
is disclosed in a form which cannot be associated with, or otherwise be used to
identify, operations of a particular person, and
(B) any information submitted in connection with a proceeding which is not
designated as proprietary by the person submitting it.
(b) Proprietary Information.
(1) Proprietary status maintained.
(A) In general. Except as provided in subsection (a)(4)(A) and subsection
(c), information submitted to the administering authority or the Commission
which is designated as proprietary by the person submitting the information
shall not be disclosed to any person without the consent of the person
submitting the information, other than
(i) to an officer or employee of the administering authority or the Commission
who is directly concerned with carrying out the investigation in connection with
which the information is submitted or any review under this title covering the
same subject merchandise, or
(ii) to an officer or employee of the United States Customs Service who is
directly involved in conducting an investigation regarding fraud under this
title.
(B) Additional requirements. The administering authority and the Commission
shall require that information for which proprietary treatment is requested be
accompanied by
(i) either
(I) a non-proprietary summary in sufficient detail to permit a reasonable
understanding of the substance of the information submitted in confidence, or
(II) a statement that the information is not susceptible to summary
accompanied by a statement of the reasons in support of the contention, and
(ii) either
(I) a statement which permits the administering authority or the Commission to
release under administrative protective order, in accordance with subsection
(c), the information submitted in confidence, or
(II) a statement to the administering authority or the Commission that the
business proprietary information is of a type that should not be released under
administrative protective order.
(2) Unwarranted designation. If the administering authority or the Commission
determines, on the basis of the nature and extent of the information or its
availability from public sources, that designation of any information as
proprietary is unwarranted, then it shall notify the person who submitted it and
ask for an explanation of the reasons for the designation. Unless that person
persuades the administering authority or the Commission that the designation is
warranted, or withdraws the designation, the administering authority or the
Commission, as the case may be, shall return it to the party submitting it. In a
case in which the administering authority or the Commission returns the
information to the person submitting it, the person may thereafter submit other
material concerning the subject matter of the returned information if the
submission is made within the time otherwise provided for submitting such
material.
(3) Section 751 reviews. Notwithstanding the provisions of paragraph (1),
information submitted to the administering authority or the Commission in
connection with a review under section 751(b) or 751(c) which is designated as
proprietary by the person submitting the information may, if the review results
in the revocation of an order or finding (or termination of a suspended
investigation) under section 751(d), be used by the agency to which the
information was originally submitted in any investigation initiated within 2
years after the date of the revocation or termination pursuant to a petition
covering the same subject merchandise.
(c) Limited Disclosure of Certain Proprietary Information Under Protective
Order.
(1) Disclosure by administering authority or commission.
(A) In general. Upon receipt of an application (before or after receipt of
the information requested) which describes in general terms the information
requested and sets forth the reasons for the request, the administering
authority or the Commission shall make all business proprietary information
presented to, or obtained by it, during a proceeding (except privileged
information, classified information, and specific information of a type for
which there is a clear and compelling need to withhold from disclosure)
available to interested parties who are parties to the proceeding under a
protective order described in subparagraph (B), regardless of when the
information is submitted during a proceeding. Customer names obtained during any
investigation which requires a determination under section 705(b) or 735(b) may
not be disclosed by the administering authority under protective order until
either an order is published under section 706(a) or 736(a) as a result of the
investigation or the investigation is suspended or terminated. The Commission
may delay disclosure of customer names under protective order during any such
investigation until a reasonable time prior to any hearing provided under
section 774.
(B) Protective order. The protective order under which information is made
available shall contain such requirements as the administering authority or the
Commission may determine by regulation to be appropriate. The administering
authority and the Commission shall provide by regulation for such sanctions as
the administering authority and the Commission determine to be appropriate,
including disbarment from practice before the agency.
(C) Time limitation on determinations. The administering authority or the
Commission, as the case may be, shall determine whether to make information
available under this paragraph
(i) not later than 14 days (7 days if the submission pertains to a proceeding
under section 703(a) or 733(a)) after the date on which the information is
submitted, or
(ii) if
(I) the person that submitted the information raises objection to its release,
or
(II) the information is unusually voluminous or complex,
not later than 30 days (10 days if the submission pertains to a proceeding
under section 703(a) or 733(a)) after the date on which the information is
submitted.
(D) Availability after determination. If the determination under subparagraph
(C) is affirmative, then
(i) the business proprietary information submitted to the administering
authority or the Commission on or before the date of the determination shall be
made available, subject to the terms and conditions of the protective order, on
such date; and
(ii) the business proprietary information submitted to the administering
authority or the Commission after the date of the determination shall be served
as required by subsection (d).
(E) Failure to disclose. If a person submitting information to the
administering authority refuses to disclose business proprietary information
which the administering authority determines should be released under a
protective order described in subparagraph (B), the administering authority
shall return the information, and any non confidential summary thereof, to the
person submitting the information and summary and shall not consider either.
(2) Disclosure under court order. If the administering authority denies a
request for information under paragraph (1), then application may be made to the
United States Customs Court for an order directing the administering authority
or the Commission to make the information available. After notification of all
parties to the investigation and after an opportunity for a hearing on the
record, the court may issue an order, under such conditions as the court deems
appropriate, which shall not have the effect of stopping or suspending the
investigation, directing the administering authority or the Commission to make
all or a portion of the requested information described in the preceding
sentence available under a protective order and setting forth sanctions for
violation of such order if the court finds that, under the standards applicable
in proceedings of the court, such an order is warranted, and that
(A) the administering authority or the Commission has denied access to the
information under subsection (b)(1),
(B) the person on whose behalf the information is requested is an interested
party who is a party to the investigation in connection with which the
information was obtained or developed, and
(C) the party which submitted the information to which the request relates has
been notified, in advance of the hearing, of the request made under this section
and of its right to appear and be heard.
(d) Service. Any party submitting written information, including business
proprietary information, to the administering authority or the Commission during
a proceeding shall, at the same time, serve the information upon all interested
parties who are parties to the proceeding, if the information is covered by a
protective order. The administering authority or the Commission shall not accept
any such information that is not accompanied by a certificate of service and a
copy of the protective order version of the document containing the information.
Business proprietary information shall only be served upon interested parties
who are parties to the proceeding that are subject to protective order; however,
a nonconfidential summary thereof shall be served upon all other interested
parties who are parties to the proceeding.
(e) [Repealed.]
(f) Disclosure of Proprietary Information Under Protective Orders Issued
Pursuant to the North American Free Trade Agreement or the United States-Canada
Agreement.
(1) Issuance of protective orders.
(A) In general. If binational panel review of a determination under this
title is requested pursuant to article 1904 of the NAFTA or the United
States-Canada Agreement, or an extraordinary challenge committee is convened
under Annex 1904.13 of the NAFTA or the United States-Canada Agreement, the
administering authority or the Commission, as appropriate, may make available to
authorized persons, under a protective order described in paragraph (2), a copy
of all proprietary material in the administrative record made during the
proceeding in question. If the administrating authority or the Commission claims
a privilege as to a document or portion of a document in the administrative
record of the proceeding in question and a binational panel or extraordinary
challenge committee finds that in camera inspection or limited disclosure of
that document or portion thereof is required by United States law, the
administering authority or the Commission, as appropriate, may restrict access
to such document or portion thereof to the authorized persons identified by the
panel or committee as requiring access and may require such persons to obtain
access under a protective order described in paragraph (2).
(B) Authorized persons. For purposes of this subsection, the term "authorized
persons" means
(i) the members of, and the appropriate staff of, the binational panel or the
extraordinary challenge committee, as the case may be, and the Secretariat,
(ii) counsel for parties to such panel or committee proceeding, and employees,
and persons under the direction and control, of such counsel,
(iii) any officer or employee of the United States Government designated by
the administering authority or the Commission, as appropriate, to whom
disclosure is necessary in order to make recommendations to the Trade
Representative regarding the convening of extraordinary challenge committees
under chapter 19 of the NAFTA or the Agreement, and
(iv) any officer or employee of the Government of a free trade area country
(as defined in section 516A(f)(10)) designated by an authorized agency of such
country to whom disclosure is necessary in order to make decisions regarding the
convening of extraordinary challenge committees under chapter 19 of the NAFTA or
the Agreement.
(C) Review. A decision concerning the disclosure or nondisclosure of material
under protective order by the administering authority or the Commission shall
not be subject to judicial review, and no court of the United States shall have
power or jurisdiction to review such decision on any question of law or fact by
an action in the nature of mandamus or otherwise.
(2) Contents of protective order. Each protective order issued under this
subsection shall be in such form and contain such requirements as the
administering authority or the Commission may determine by regulation to be
appropriate. The administering authority and the Commission shall ensure that
regulations issued pursuant to this paragraph shall be designed to provide an
opportunity for participation in the binational panel proceeding, including any
extraordinary challenge, equivalent to that available for judicial review of
determinations by the administering authority or the Commission that are not
subject to review by a binational panel.
(3) Prohibited acts. It is unlawful for any person to violate, to induce the
violation of, or knowingly to receive information the receipt of which
constitutes a violation of, any provision of a protective order issued under
this subsection or to violate, to induce the violation of, or knowingly to
receive information the receipt of which constitutes a violation of, any
provision of an undertaking entered into with an authorized agency of a free
trade area country (as defined in section 516A(f)(10)) to protect proprietary
material during binational panel or extraordinary challenge committee review
pursuant to article 1904 of the NAFTA or the United States-Canada Agreement.
(4) Sanctions for violation of protective orders. Any person, except a judge
appointed to a binational panel or an extraordinary challenge committee under
section 402(b) of the North American Free Trade Agreement Implementation Act,
who is found by the administering authority or the Commission, as appropriate,
after notice and an opportunity for a hearing in accordance with section 554 of
title 5, United States Code, to have committed an act prohibited by paragraph
(3) shall be liable to the United States for a civil penalty and shall be
subject to such other administrative sanctions, including, but not limited to,
debarment from practice before the administering authority or the Commission, as
the administering authority or the Commission determines to be appropriate. The
amount of the civil penalty shall not exceed $100,000 for each violation. Each
day of a continuing violation shall constitute a separate violation. The amount
of such civil penalty and other sanctions shall be assessed by the administering
authority or the Commission by written notice, except that assessment shall be
made by the administering authority for violation, or inducement of a violation
or receipt of information with reason to know that such information was
disclosed in violation, of an undertaking entered into by any person with an
authorized agency of a free trade area country (as defined in section
516A(f)(10)).
(5) Review of sanctions. Any person against whom sanctions are imposed under
paragraph (4) may obtain review of such sanctions by filing a notice of appeal
in the United States Court of International Trade within 30 days from the date
of the order imposing the sanction and by simultaneously sending a copy of such
notice by certified mail to the administering authority or the Commission, as
appropriate. The administering authority or the Commission shall promptly file
in such court a certified copy of the record upon which such violation was found
or such sanction imposed, as provided in section 2112 of title 28, United States
Code. The findings and order of the administering authority or the Commission
shall be set aside by the court only if the court finds that such findings and
order are not supported by substantial evidence, as provided in section 706(2)
of title 5, United States Code.
(6) Enforcement of sanctions. If any person fails to pay an assessment of a
civil penalty or to comply with other administrative sanctions after the order
imposing such sanctions becomes a final and unappealable order, or after the
United States Court of International Trade has entered final judgment in favor
of the administering authority or the Commission, an action may be filed in such
court to enforce the sanctions. In such action, the validity and appropriateness
of the final order imposing the sanctions shall not be subject to review.
(7) Testimony and production of papers.
(A) Authority to obtain information. For the purpose of conducting any
hearing and carrying out other functions and duties under this subsection, the
administering authority and the Commission, or their duly authorized agents
(i) shall have access to and the right to copy any pertinent document, paper,
or record in the possession of any individual, partnership, corporation,
association, organization, or other entity,
(ii) may summon witnesses, take testimony, and administer oaths,
(iii) and may require any individual or entity to produce pertinent documents,
books, or records.
Any member of the Commission, and any person so designated by the
administering authority, may sign subpoenas, and members and agents of the
administering authority and the Commission, when authorized by the administering
authority or the Commission, as appropriate, may administer oaths and
affirmations, examine witnesses, take testimony, and receive evidence.
(B) Witnesses and evidence. The attendance of witnesses who are authorized to
be summoned, and the production of documentary evidence authorized to be
ordered, under subparagraph (A) may be required from any place in the United
States at any designated place of hearing. In the case of disobedience to a
subpoena issued under subparagraph (A), an action may be filed in any district
or territorial court of the United States to require the attendance and
testimony of witnesses and the production of documentary evidence. Such court,
within the jurisdiction of which such inquiry is carried on, may, in case of
contumacy or refusal to obey a subpoena issued to any individual, partnership,
corporation, association, organization or other entity, issue any order
requiring such individual or entity to appear before the administering authority
or the Commission, or to produce documentary evidence if so ordered or to give
evidence concerning the matter in question. Any failure to obey such order of
the court may be punished by the court as a contempt thereof.
(C) Mandamus. Any court referred to in subparagraph (B) shall have
jurisdiction to issue writs of mandamus commanding compliance with the
provisions of this subsection or any order of the administering authority or the
Commission made in pursuance thereof.
(D) Depositions. For purposes of carrying out any functions or duties under
this subsection, the administering authority or the Commission may order
testimony to be taken by deposition. Such deposition may be taken before any
person designated by the administering authority or Commission and having power
to administer oaths. Such testimony shall be reduced to writing by the person
taking the deposition, or under the direction of such person, and shall then be
subscribed by the deponent. Any individual, partnership, corporation,
association, organization or other entity may be compelled to appear and depose
and to produce documentary evidence in the same manner as witnesses may be
compelled to appear and testify and produce documentary evidence before the
administering authority or Commission, as provided in this paragraph.
(E) Fees and mileage of witnesses. Witnesses summoned before the
administering authority or the Commission shall be paid the same fees and
mileage that are paid witnesses in the courts of the United States.
(g) Information Relating to Violations of Protective Orders and Sanctions.
The administering authority and the Commission may withhold from disclosure any
correspondence, private letters of reprimand, settlement agreements, and
documents and files compiled in relation to investigations and actions involving
a violation or possible violation of a protective order issued under subsection
(c) or (d), and such information shall be treated as information described in
section 552(b)(3) of title 5, United States Code.
(h) Opportunity for Comment by Consumers and Industrial Users. The
administering authority and the Commission shall provide an opportunity for
industrial users of the subject merchandise and, if the merchandise is sold at
the retail level, for representative consumer organizations, to submit relevant
information to the administering authority concerning dumping or a
countervailable subsidy, and to the Commission concerning material injury by
reason of dumped or subsidized imports.
(i) Publication of Determinations; Requirements for Final Determinations.
(1) In general. Whenever the administering authority makes a determination
under section 702 or 732 whether to initiate an investigation, or the
administering authority or the Commission makes a preliminary determination
under section 703 or 733, a final determination under section 705 or section
735, a preliminary or final determination in a review under section 751, a
determination to suspend an investigation under this title, or a determination
under section 753, the administering authority or the Commission, as the case
may be, shall publish the facts and conclusions supporting that determination,
and shall publish notice of that determination in the Federal Register.
(2) Contents of notice or determination. The notice or determination
published under paragraph (1) shall include, to the extent applicable
(A) in the case of a determination of the administering authority
(i) the names of the exporters or producers of the subject merchandise or,
when providing such names is impracticable, the countries exporting the subject
merchandise to the United States,
(ii) a description of the subject merchandise that is sufficient to identify
the subject merchandise for customs purposes,
(iii)(I) with respect to a determination in an investigation under subtitle A
or section 753 or in a review of a countervailing duty order, the amount of the
countervailable subsidy established and a full explanation of the methodology
used in establishing the amount, and
(II) with respect to a determination in an investigation under subtitle B or
in a review of an antidumping duty order, the weighted average dumping margins
established and a full explanation of the methodology used in establishing such
margins, and
(iv) the primary reasons for the determination; and
(B) in the case of a determination of the Commission
(i) considerations relevant to the determination of injury, and
(ii) the primary reasons for the determination.
(3) Additional requirements for final determinations. In addition to the
requirements set forth in paragraph (2)
(A) the administering authority shall include in a final determination
described in paragraph (1) an explanation of the basis for its determination
that addresses relevant arguments, made by interested parties who are parties to
the investigation or review (as the case may be), concerning the establishment
of dumping or a countervailable subsidy, or the suspension of the investigation,
with respect to which the determination is made; and
(B) the Commission shall include in a final determination of injury an
explanation of the basis for its determination that addresses relevant arguments
that are made by interested parties who are parties to the investigation or
review (as the case may be) concerning volume, price effects, and impact on the
industry of imports of the subject merchandise.
(19 U.S.C. 1677f)
Sec. 777A
SEC. 777A. SAMPLING AND AVERAGING; DETERMINATION OF WEIGHTED AVERAGE DUMPING
MARGIN AND COUNTERVAILABLE SUBSIDY RATE.
(a) In General. For purposes of determining the export price (or constructed
export price) under section 772 or the normal value under section 773, and in
carrying out reviews under section 751, the administering authority may
(1) use averaging and statistically valid samples, if there is a significant
volume of sales of the subject merchandise or a significant number or types of
products, and
(2) decline to take into account adjustments which are insignificant in
relation to the price or value of the merchandise.
(b) Selection of Averages and Samples. The authority to select averages and
statistically valid samples shall rest exclusively with the administering
authority. The administering authority shall, to the greatest extent possible,
consult with the exporters and producers regarding the method to be used to
select exporters, producers, or types of products under this section.
(c) Determination of Dumping Margin.
(1) General rule. In determining weighted average dumping margins under
section 733(d), 735(c), or 751(a), the administering authority shall determine
the individual weighted average dumping margin for each known exporter and
producer of the subject merchandise.
(2) Exception. If it is not practicable to make individual weighted average
dumping margin determinations under paragraph (1) because of the large number of
exporters or producers involved in the investigation or review, the
administering authority may determine the weighted average dumping margins for a
reasonable number of exporters or producers by limiting its examination to
(A) a sample of exporters, producers, or types of products that is
statistically valid based on the information available to the administering
authority at the time of selection, or
(B) exporters and producers accounting for the largest volume of the subject
merchandise from the exporting country that can be reasonably examined.
(d) Determination of Less Than Fair Value.
(1) Investigations.
(A) In general. In an investigation under subtitle B, the administering
authority shall determine whether the subject merchandise is being sold in the
United States at less than fair value
(i) by comparing the weighted average of the normal values to the weighted
average of the export prices (and constructed export prices) for comparable
merchandise, or
(ii) by comparing the normal values of individual transactions to the export
prices (or constructed export prices) of individual transactions for comparable
merchandise.
(B) Exception. The administering authority may determine whether the subject
merchandise is being sold in the United States at less than fair value by
comparing the weighted average of the normal values to the export prices (or
constructed export prices) of individual transactions for comparable
merchandise, if
(i) there is 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 administering authority explains why such differences cannot be taken
into account using a method described in paragraph (1)(A)(i) or (ii).
(2) Reviews. In a review under section 751, when comparing export prices (or
constructed export prices) of individual transactions to the weighted average
price of sales of the foreign like product, the administering authority shall
limit its averaging of prices to a period not exceeding the calendar month that
corresponds most closely to the calendar month of the individual export sale.
(e) Determination of Countervailable Subsidy Rate.
(1) General rule. In determining countervailable subsidy rates under section
703(d), 705(c), or 751(a), the administering authority shall determine an
individual countervailable subsidy rate for each known exporter or producer of
the subject merchandise.
(2) Exception. If the administering authority determines that it is not
practicable to determine individual countervailable subsidy rates under
paragraph (1) because of the large number of exporters or producers involved in
the investigation or review, the administering authority may
(A) determine individual countervailable subsidy rates for a reasonable number
of exporters or producers by limiting its examination to
(i) a sample of exporters or producers that the administering authority
determines is statistically valid based on the information available to the
administering authority at the time of selection, or
(ii) exporters and producers accounting for the largest volume of the subject
merchandise from the exporting country that the administering authority
determines can be reasonably examined; or
(B) determine a single country-wide subsidy rate to be applied to all
exporters and producers.
The individual countervailable subsidy rates determined under subparagraph (A)
shall be used to determine the all-others rate under section 705(c)(5).
(19 U.S.C. 1677f 1)
Sec. 778
SEC. 778. INTEREST ON CERTAIN OVERPAYMENTS AND UNDERPAYMENTS.
(a) General Rule. Interest shall be payable on overpayments and underpayments
of amounts deposited on merchandise entered, or withdrawn from warehouse, for
consumption on and after
(1) the date of publication of a countervailing or antidumping duty order
under this title or section 303, or
(2) the date of a finding under the Antidumping Act, 1921.
(b) Rate. The rate of interest payable under subsection (a) for any period of
time is the rate of interest established under section 6621 of the Internal
Revenue Code of 1954 for such period.
(19 U.S.C. 1677g)
Sec. 779
SEC. 779. DRAWBACK TREATMENT.
For purposes of any law relating to the drawback of customs duties,
countervailing duties and antidumping duties imposed by this title shall not be
treated as being regular customs duties.
(19 U.S.C. 1677h)
Sec. 780
SEC. 780. DOWNSTREAM PRODUCT MONITORING.
(a) Petition Requesting Monitoring.
(1) In general. A domestic producer of an article that is like a component
part or a downstream product may petition the administering authority to
designate a downstream product for monitoring under subsection (b). The petition
shall specify
(A) the downstream product,
(B) the component product incorporated into such downstream product, and
(C) 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 such
downstream product.
(2) Determination regarding petition. Within 14 days after receiving a
petition submitted under paragraph (1), the administering authority shall
determine
(A) whether there is a reasonable likelihood that imports into the United
States of the downstream product will increase as an indirect result of any
diversion with respect to the component part, and
(B) whether
(i) 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),
(ii) merchandise related to the component part and manufactured in the same
foreign country in which the component part is manufactured has been the subject
of a significant number of investigations suspended under section 704 or 734 or
countervailing or antidumping duty orders issued under this title or section
303, or
(iii) merchandise manufactured or exported by the manufacturer or exporter of
the component part that is similar in description and use to the component part
has been the subject of at least 2 investigations suspended under section 704 or
734 or countervailing or antidumping duty orders issued under this title or
section 303.
(3) Factors to take into account. In making a determination under paragraph
(2)(A), the administering authority may, if appropriate, take into account such
factors as
(A) the value of the component part in relation to the value of the downstream
product,
(B) the extent to which the component part has been substantially transformed
as a result of its incorporation into the downstream product, and
(C) the relationship between the producers of component parts and producers of
downstream products.
(4) Publication of determination. The administering authority shall publish
in the Federal Register notice of each determination made under paragraph (2)
and, if the determination made under paragraph (2)(A) and a determination made
under any subparagraph of paragraph (2)(B) are affirmative, shall transmit a
copy of such determinations and the petition to the Commission.
(5) Determinations not subject to judicial review. Notwithstanding any other
provision of law, any determination made by the administering authority under
paragraph (2) shall not be subject to judicial review.
(b) Monitoring by the Commission.
(1) In general. If the determination made under subsection (a)(2)(A) and a
determination made under any clause of subsection (a)(2)(B) with respect to a
petition are affirmative, the Commission shall immediately commence monitoring
of trade in the downstream product that is the subject of the determination made
under subsection (a)(2)(A). If the Commission finds that imports of a downstream
product being monitored increased during any calendar quarter by 5 percent or
more over the preceding quarter, the Commission shall analyze that increase in
the context of overall economic conditions in the product sector.
(2) Reports. The Commission shall make quarterly reports to the administering
authority regarding the monitoring and analyses conducted under paragraph (1).
The Commission shall make the reports available to the public.
(c) Action on Basis of Monitoring Reports. The administering authority shall
review the information in the reports submitted by the Commission under
subsection (b)(2) and shall
(1) consider the information in determining whether to initiate an
investigation under section 702(a) or 732(a) regarding any downstream product,
and
(2) request the Commission to cease monitoring any downstream product if the
information indicates that imports into the United States are not increasing and
there is no reasonable likelihood of diversion with respect to component parts.
(d) Definitions. For purposes of this section
(1) The term "component part" means any imported article that
(A) during the 5-year period ending on the date on which the petition is filed
under subsection (a), has been subject to
(i) a countervailing or antidumping duty order issued under this title or
section 303 that requires the deposit of estimated countervailing or antidumping
duties imposed at a rate of at least 15 percent ad valorem, or
(ii) an agreement entered into under section 704, 734, or 303 after a
preliminary affirmative determination under section 703(b), 733(b)(1), or 303
was made by the administering authority which included a determination that the
estimated net countervailable subsidy was at least 15 percent ad valorem or that
the estimated average amount by which the normal value exceeded the export price
(or the constructed export price) was at least 15 percent ad valorem, and
(B) because of its inherent characteristics, is routinely used as a major
part, component, assembly, subassembly, or material in a downstream product.
(2) The term "downstream product" means any manufactured article
(A) which is imported into the United States, and
(B) into which is incorporated any component part.
(19 U.S.C. 1677i)
Sec. 781
SEC. 781. PREVENTION OF CIRCUMVENTION OF ANTIDUMPING AND COUNTERVAILING DUTY
ORDERS.
(a) Merchandise Completed or Assembled in the United States.
(1) In general. If
(A) merchandise sold in the United States is of the same class or kind as any
other merchandise that is the subject of
(i) an antidumping duty order issued under section 736,
(ii) a finding issued under the Antidumping Act, 1921, or
(iii) a countervailing duty order issued under section 706 or section 303,
(B) such merchandise sold in the United States is completed or assembled in
the United States from parts or components produced in the foreign country with
respect to which such order or finding applies,
(C) the process of assembly or completion in the United States is minor or
insignificant, and
(D) the value of the parts or components referred to in subparagraph (B) is a
significant portion of the total value of the merchandise,
the administering authority, after taking into account any advice provided by
the Commission under subsection (e), may include within the scope of such order
or finding the imported parts or components referred to in subparagraph (B) that
are used in the completion or assembly of the merchandise in the United States
at any time such order or finding is in effect.
(2) Determination of whether process is minor or insignificant. In
determining whether the process of assembly or completion is minor or
insignificant under paragraph (1)(C), the administering authority shall take
into account
(A) the level of investment in the United States,
(B) the level of research and development in the United States,
(C) the nature of the production process in the United States,
(D) the extent of production facilities in the United States, and
(E) whether the value of the processing performed in the United States
represents a small proportion of the value of the merchandise sold in the United
States.
(3) Factors to consider. In determining whether to include parts or
components in a countervailing or antidumping duty order or finding under
paragraph (1), the administering authority shall take into account such factors
as
(A) the pattern of trade, including sourcing patterns,
(B) whether the manufacturer or exporter of the parts or components is
affiliated with the person who assembles or completes the merchandise sold in
the United States from the parts or components produced in the foreign country
with respect to which the order or finding described in paragraph (1) applies,
and
(C) whether imports into the United States of the parts or components produced
in such foreign country have increased after the initiation of the investigation
which resulted in the issuance of such order or finding.
(b) Merchandise Completed or Assembled in Other Foreign Countries.
(1) In general. If
(A) merchandise imported into the United States is of the same class or kind
as any merchandise produced in a foreign country that is the subject of
(i) an antidumping duty order issued under section 736,
(ii) a finding issued under the Antidumping Act, 1921, or
(iii) a countervailing duty order issued under section 706 or section 303,
(B) before importation into the United States, such imported merchandise is
completed or assembled in another foreign country from merchandise which
(i) is subject to such order or finding, or
(ii) is produced in the foreign country with respect to which such order or
finding applies,
(C) the process of assembly or completion in the foreign country referred to
in subparagraph (B) is minor or insignificant,
(D) the value of the merchandise produced in the foreign country to which the
antidumping duty order applies is a significant portion of the total value of
the merchandise exported to the United States, and
(E) the administering authority determines that action is appropriate under
this paragraph to prevent evasion of such order or finding,
the administering authority, after taking into account any advice provided by
the Commission under subsection (e), may include such imported merchandise
within the scope of such order or finding at any time such order or finding is
in effect.
(2) Determination of whether process is minor or insignificant. In
determining whether the process of assembly or completion is minor or
insignificant under paragraph (1)(C), the administering authority shall take
into account
(A) the level of investment in the foreign country,
(B) the level of research and development in the foreign country,
(C) the nature of the production process in the foreign country,
(D) the extent of production facilities in the foreign country, and
(E) whether the value of the processing performed in the foreign country
represents a small proportion of the value of the merchandise imported into the
United States.
(3) Factors to consider. In determining whether to include merchandise
assembled or completed in a foreign country in a countervailing duty order or an
antidumping duty order or finding under paragraph (1), the administering
authority shall take into account such factors as
(A) the pattern of trade, including sourcing patterns,
(B) whether the manufacturer or exporter of the merchandise described in
paragraph (1)(B) is affiliated with the person who uses the merchandise
described in paragraph (1)(B) to assemble or complete in the foreign country the
merchandise that is subsequently imported into the United States, and
(C) whether imports into the foreign country of the merchandise described in
paragraph (1)(B) have increased after the initiation of the investigation which
resulted in the issuance of such order or finding.
(c) Minor Alterations of Merchandise.
(1) In general. The class or kind of merchandise subject to
(A) an investigation under this title,
(B) an antidumping duty order issued under section 736,
(C) a finding issued under the Antidumping Act, 1921, or
(D) a countervailing duty order issued under section 706 or section 303,
shall include articles altered in form or appearance in minor respects
(including raw agricultural products that have undergone minor processing),
whether or not included in the same tariff classification.
(2) Exception. Paragraph (1) shall not apply with respect to altered
merchandise if the administering authority determines that it would be
unnecessary to consider the altered merchandise within the scope of the
investigation, order, or finding.
(d) Later-Developed Merchandise.
(1) In general. For purposes of determining whether merchandise developed
after an investigation is initiated under this title or section 303 (hereafter
in this paragraph referred to as the "later-developed merchandise") is within
the scope of an outstanding antidumping or countervailing duty order issued
under this title or section 303 as a result of such investigation, the
administering authority shall consider whether
(A) the later-developed merchandise has the same general physical
characteristics as the merchandise with respect to which the order was
originally issued (hereafter in this paragraph referred to as the "earlier
product"),
(B) the expectations of the ultimate purchasers of the later-developed
merchandise are the same as for the earlier product,
(C) the ultimate use of the earlier product and the later-developed
merchandise are the same,
(D) the later-developed merchandise is sold through the same channels of trade
as the earlier product, and
(E) the later-developed merchandise is advertised and displayed in a manner
similar to the earlier product.
The administering authority shall take into account any advice provided by the
Commission under subsection (e) before making a determination under this
subparagraph.
(2) Exclusion from orders. The administering authority may not exclude a
later-developed merchandise from a countervailing or antidumping duty order
merely because the merchandise
(A) is classified under a tariff classification other than that identified in
the petition or the administering authority's prior notices during the
proceeding, or
(B) permits the purchaser to perform additional functions, unless such
additional functions constitute the primary use of the merchandise and the cost
of the additional functions constitute more than a significant proportion of the
total cost of production of the merchandise.
(e) Commission Advice.
(1) Notification to commission of proposed action. Before making a
determination
(A) under subsection (a) with respect to merchandise completed or assembled in
the United States (other than minor completion or assembly),
(B) under subsection (b) with respect to merchandise completed or assembled in
other foreign countries, or
(C) under subsection (d) with respect to any later-developed merchandise which
incorporates a significant technological advance or significant alteration of an
earlier product,
with respect to an antidumping or countervailing duty order or finding as to
which the Commission has made an affirmative injury determination, the
administering authority shall notify the Commission of the proposed inclusion of
such merchandise in such countervailing or antidumping order or finding.
Notwithstanding any other provision of law, a decision by the administering
authority regarding whether any merchandise is within a category for which
notice is required under this paragraph is not subject to judicial review.
(2) Request for consultation. After receiving notice under paragraph (1), the
Commission may request consultations with the administering authority regarding
the inclusion. Upon the request of the Commission, the administering authority
shall consult with the Commission and any such consultation shall be completed
within 15 days after the date of the request.
(3) Commission advice. If the Commission believes, after consultation under
paragraph (2), that a significant injury issue is presented by the proposed
inclusion, the Commission may provide written advice to the administering
authority as to whether the inclusion would be inconsistent with the affirmative
determination of the Commission on which the order or finding is based. If the
Commission decides to provide such written advice, it shall promptly notify the
administering authority of its intention to do so, and must provide such advice
within 60 days after the date of notification under paragraph (1). For purposes
of formulating its advice with respect to merchandise completed or assembled in
the United States from parts or components produced in a foreign country, the
Commission shall consider whether the inclusion of such parts or components
taken as a whole would be inconsistent with its prior affirmative determination.
(f) Time Limits for Administering Authority Determinations. The administering
authority shall, to the maximum extent practicable, make the determinations
under this section within 300 days from the date of the initiation of a
countervailing duty or antidumping circumvention inquiry under this section.
(19 U.S.C. 1677j)
Sec. 782
SEC. 782. CONDUCT OF INVESTIGATIONS AND ADMINISTRATIVE REVIEWS.
(a) Treatment of Voluntary Responses in Countervailing or Antidumping Duty
Investigations and Reviews. In any investigation under subtitle A or B or a
review under section 751(a) in which the administering authority has, under
section 777A(c)(2) or section 777A(e)(2)(A) (whichever is applicable), limited
the number of exporters or producers examined, or determined a single
country-wide rate, the administering authority shall establish an individual
countervailable subsidy rate or an individual weighted average dumping margin
for any exporter or producer not initially selected for individual examination
under such sections who submits to the administering authority the information
requested from exporters or producers selected for examination, if
(1) such information is so submitted by the date specified
(A) for exporters and producers that were initially selected for examination,
or
(B) for the foreign government, in a countervailing duty case where the
administering authority has determined a single country-wide rate; and
(2) the number of exporters or producers who have submitted such information
is not so large that individual examination of such exporters or producers would
be unduly burdensome and inhibit the timely completion of the investigation.
(b) Certification of Submissions. Any person providing factual information to
the administering authority or the Commission in connection with a proceeding
under this title on behalf of the petitioner or any other interested party shall
certify that such information is accurate and complete to the best of that
person's knowledge.
(c) Difficulties in Meeting Requirements.
(1) Notification by interested party. If an interested party, promptly after
receiving a request from the administering authority or the Commission for
information, notifies the administering authority or the Commission (as the case
may be) that such party is unable to submit the information requested in the
requested form and manner, together with a full explanation and suggested
alternative forms in which such party is able to submit the information, the
administering authority or the Commission (as the case may be) shall consider
the ability of the interested party to submit the information in the requested
form and manner and may modify such requirements to the extent necessary to
avoid imposing an unreasonable burden on that party.
(2) Assistance to interested parties. The administering authority and the
Commission shall take into account any difficulties experienced by interested
parties, particularly small companies, in supplying information requested by the
administering authority or the Commission in connection with investigations and
reviews under this title, and shall provide to such interested parties any
assistance that is practicable in supplying such information.
(d) Deficient Submissions. If the administering authority or the Commission
determines that a response to a request for information under this title does
not comply with the request, the administering authority or the Commission (as
the case may be) shall promptly inform the person submitting the response of the
nature of the deficiency and shall, to the extent practicable, provide that
person with an opportunity to remedy or explain the deficiency in light of the
time limits established for the completion of investigations or reviews under
this title. If that person submits further information in response to such
deficiency and either
(1) the administering authority or the Commission (as the case may be) finds
that such response is not satisfactory, or
(2) such response is not submitted within the applicable time limits,
then the administering authority or the Commission (as the case may be) may,
subject to subsection (e), disregard all or part of the original and subsequent
responses.
(e) Use of Certain Information. In reaching a determination under section
703, 705, 733, 735, 751, or 753 the administering authority and the Commission
shall 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 administering authority or the Commission, if
(1) the information is submitted by the deadline established for its
submission,
(2) the information can be verified,
(3) the information is not so incomplete that it cannot serve as a reliable
basis for reaching the applicable determination,
(4) the interested party has demonstrated that it acted to the best of its
ability in providing the information and meeting the requirements established by
the administering authority or the Commission with respect to the information,
and
(5) the information can be used without undue difficulties.
(f) Nonacceptance of Submissions. If the administering authority or the
Commission declines to accept into the record any information submitted in an
investigation or review under this title, it shall, to the extent practicable,
provide to the person submitting the information a written explanation of the
reasons for not accepting the information.
(g) Public Comment on Information. Information that is submitted on a timely
basis to the administering authority or the Commission during the course of a
proceeding under this title shall be subject to comment by other parties to the
proceeding within such reasonable time as the administering authority or the
Commission shall provide. The administering authority and the Commission, before
making a final determination under section 705, 735, 751, or 753 shall cease
collecting information and shall provide the parties with a final opportunity to
comment on the information obtained by the administering authority or the
Commission (as the case may be) upon which the parties have not previously had
an opportunity to comment. Comments containing new factual information shall be
disregarded.
(h) Termination of Investigation or Revocation of Order for Lack of Interest.
The administering authority may
(1) terminate an investigation under subtitle A or B with respect to a
domestic like product if, prior to publication of an order under section 706 or
736, the administering authority determines that producers accounting for
substantially all of the production of that domestic like product have expressed
a lack of interest in issuance of an order; and
(2) revoke an order issued under section 706 or 736 with respect to a domestic
like product, or terminate an investigation suspended under section 704 or 734
with respect to a domestic like product, if the administering authority
determines that producers accounting for substantially all of the production of
that domestic like product, have expressed a lack of interest in the order or
suspended investigation.
(i) Verification. The administering authority shall verify all information
relied upon in making
(1) a final determination in an investigation,
(2) a revocation under section 751(d), and
(3) a final determination in a review under section 751(a), if
(A) verification is timely requested by an interested party as defined in
section 771(9)(C), (D), (E), (F), or (G), and
(B) no verification was made under this subparagraph during the 2 immediately
preceding reviews and determinations under section 751(a) of the same order,
finding, or notice, except that this clause shall not apply if good cause for
verification is shown.
(19 U.S.C. 1677m)
Sec. 783
SEC. 783. ANTIDUMPING PETITIONS BY THIRD COUNTRIES.
(a) Filing of Petition. The government of a WTO member may file with the
Trade Representative a petition requesting that an investigation be conducted to
determine if
(1) imports from another country are being sold in the United States at less
than fair value, and
(2) an industry in the petitioning country is materially injured by reason of
those imports.
(b) Initiation. The Trade Representative, after consultation with the
administering authority and the Commission and obtaining the approval of the WTO
Council for Trade in Goods, shall determine whether to initiate an investigation
described in subsection (a).
(c) Determinations. Upon initiation of an investigation under this section,
the Trade Representative shall request the following determinations be made
according to substantive and procedural requirements specified by the Trade
Representative, notwithstanding any other provision of this title:
(1) The administering authority shall determine whether imports into the
United States of the subject merchandise are being sold at less than fair value.
(2) The Commission shall determine whether an industry in the petitioning
country is materially injured by reason of imports of the subject merchandise
into the United States.
(d) Public Comment. An opportunity for public comment shall be provided, as
appropriate
(1) by the Trade Representative, in making the determination required by
subsection (b), and
(2) by the administering authority and the Commission, in making the
determination required by subsection (c).
(e) Issuance of Order. If the administering authority makes an affirmative
determination under paragraph (1) of subsection (c), and the Commission makes an
affirmative determination under paragraph (2) of subsection (c), the
administering authority shall issue an antidumping duty order in accordance with
section 736 and take such other actions as are required by section 736.
(f) Reviews of Determinations. For purposes of review under section 516A or
review under section 751, if an order is issued under subsection (d), the final
determinations of the administering authority and the Commission under this
section shall be treated as final determinations made under section 735.
(g) Access to Information. Section 777 shall apply to investigations under
this section, to the extent specified by the Trade Representative, after
consultation with the administering authority and the Commission.
(19 U.S.C. 1677n)