A. SUMMARY OF PROVISIONS
The Agreement on Implementation of Article VI (Antidumping Agreement or
Agreement) provides substantive and procedural rules for the conduct of
antidumping investigations. Substantively, the Agreement preserves the
ability of U.S. industries to obtain meaningful relief from dumped imports
into the U.S. market and ensures U.S. exporters fair treatment in foreign
antidumping investigations. Procedurally, the Agreement closely parallels
existing U.S. law and practice. Unlike the 1979 Tokyo Round Antidumping Code
(the 1979 Code), all countries which become members of the World Trade
Organization (WTO) will be subject to the same antidumping rules.
Application of the WTO dispute settlement procedures in antidumping cases will
greatly improve the ability of the United States to contest foreign
antidumping actions against U.S. exporters that are inconsistent with the
Agreement. The Antidumping Agreement also contains a special standard of
review to be applied by WTO panels in resolving antidumping disputes. This
standard will preclude panels from second-guessing U.S. antidumping determinations
and from rewriting the terms of the Antidumping Agreement under the
guise of legal interpretation.
The Agreement significantly improves on the 1979 Code in a number of ways. It
incorporates many fundamental aspects of U.S. antidumping practice, including
the right of workers to file and support petitions, the use of cumulative
analysis in injury determinations, and the exclusion of below-cost sales in
determining the fair price of imports. A Ministerial Decision accompanying
the Agreement effectively acknowledges the legitimacy of anticircumvention
measures, and, thus, does not inhibit the application of such measures by the
United States. In addition, the Agreement adopts U.S. standards of
transparency and procedural fairness, thereby ensuring that U.S. exporters
will have the opportunity to defend their interests in foreign antidumping
proceedings. In these and many other respects, the more detailed rules of
the Agreement reflect existing U.S. law and practice.
The Agreement does require a number of changes in U.S. law, such as new standards for determining whether dumping margins are de minimis or import volumes are negligible and a new five-year "sunset" review provision. These changes do not diminish in any meaningful way the level of protection afforded U.S. industries from dumped imports.
1. Determination of Dumping
Article 1 sets forth the general principle that antidumping measures
must be applied only under the circumstances provided for in Article VI of
GATT 1994 and consistently with the procedures set forth in the Antidumping
Agreement. Article VI, like U.S. law, permits action to be taken against
dumped imports causing or threatening material injury to an established
domestic industry or materially retarding the establishment of a domestic
industry.
Article 2 provides, in much greater detail than the 1979 Code, specific
rules for determining whether and to what extent dumping exists. It adopts
the standard definition of dumping, i.e., a product is dumped within the
meaning of the Agreement if its export price is less than its normal value.
"Normal value" is defined as the comparable price for a product "like" the
imported product when sold, in the ordinary course of trade, for consumption
in the exporting country.
The Agreement recognizes that foreign home market prices may not always
be available or usable as a basis for normal value. There may be no, or low
volumes of, home market sales, or home market sales may be unusable because of
a particular market situation. In the absence of usable home market prices,
Article 2 provides that national authorities may establish normal value on the
basis of either: (1) a representative price of the like product to an
appropriate third country; or (2) the cost of producing the product plus a
reasonable amount for administrative, selling and any other costs, and for
profit, i.e., constructed value.
Footnote 2 clarifies the standard for determining when the volume of
home market sales is viable. The home market normally is viable if home
market sales constitute at least five percent of the volume of sales of the
product to the country conducting the investigation. The five percent
benchmark reflects existing Department of Commerce (Commerce) regulations and
practice, but the use of sales to the country conducting the investigation as
the basis for calculating the benchmark is a departure from existing U.S. law,
which refers to export sales to countries other than the United States.
Article 2 reflects, for the first time, the U.S. practice of
disregarding, for purposes of determining normal value, home or third country
sales that are below the cost of production. Under Article 2.2.1, below-cost
sales may be disregarded as not being in the ordinary course of trade if the
sales are made:
in substantial quantities within an extended period of time
(normally one year, but not less than six months); and
at prices which do not provide for the recovery of all costs
within a reasonable period of time.
Footnote 5 provides that below-cost sales are in substantial quantities
when either: (1) the weighted-average price of the merchandise in the period
of investigation is lower than the weighted-average cost of that merchandise;
or (2) below-cost sales constitute at least twenty percent of the volume sold
in the home (or third country) market. Under Article 2.2.1, prices which are
below cost at the time of sale but above the weighted-average unit cost of the
merchandise over the period of the investigation provide for the recovery of
costs within a reasonable time.
Again reflecting current U.S. practice and improving on the 1979 Code,
Article 2.2 provides that national authorities should calculate costs on the
basis of exporter's and producer's records, provided that such records are in
accordance with generally accepted accounting principles in the exporting
country and reasonably reflect the costs associated with producing and selling
the merchandise. The Agreement provides more detailed rules regarding
adjustments for non-recurring items of cost that benefit future and/or current
production. It also includes the new requirement that cost calculations (for
both constructed value and cost of production purposes) be adjusted
"appropriately" for startup operations. Pursuant to footnote 6, this startup
adjustment reflects costs at the end of the startup period or the most recent
costs which reasonably can be taken into account if the startup period
continues after the period of investigation.
Article 2.2.2 requires the national authorities to base profit and
general selling and administrative costs on actual data pertaining to the
exporter's or producer's production and sales in the ordinary course of trade
(i.e., data pertaining to above-cost sales) of the foreign like product.
When profits and costs cannot be determined this way, Article 2.2.2 sets forth
three alternative methods of calculation, with no prescribed hierarchy:
costs and profits incurred by the producer or exporter in question
on production and sales in its home market for the same general
category of products;
the weighted-average of costs and profits incurred by other
producers or exporters on production and sales of the same like
product in the same market; and
any other reasonable method, as long as the amount calculated for
profit does not exceed the amount generally realized by other
producers or exporters on sales of the same general category of
products in the same market.
Under current U.S. law, Commerce uses specified minimum percentages rather
than actual data to calculate profit and general selling and administrative costs.
Article 2.4 establishes guidelines for comparing normal value and export
price to calculate the margin of dumping. It includes a general requirement
that comparisons be fair and provides specific requirements to achieve this,
including requirements that comparisons be made at the same level of trade,
normally at the ex-factory level, and between sales made as nearly as possible
at the same time. As under existing U.S. law, Article 2.4 instructs national
authorities to adjust for differences that affect price comparability, such as
differences in conditions and terms of sale, taxation, levels of trade,
quantities, physical characteristics, and other differences that are also
demonstrated to affect price comparability. Footnote 7 recognizes that some
of these elements may overlap, and admonishes national authorities not to
double count adjustments.
If the importer is related to the exporter, Article 2.3 permits the use
of the first sale to an independent buyer as the basis for constructed export
price. Article 2.4 provides for additional adjustments to the constructed
export price for costs, including duties and taxes, incurred between
importation and resale, and for profits. National authorities also may make a
level of trade adjustment to normal value if it is at a different level of
trade than the constructed export price and this difference affects price
comparability.
Finally, Article 2.4 requires the authorities to: (1) inform exporters
of the information they must submit to ensure a fair comparison; and (2) not
impose an unreasonable burden of proof on exporters.
Article 2.4.1 establishes rules for currency conversions. In a typical
antidumping proceeding, prices or costs are denominated in a foreign currency
and must be converted into U.S. dollars. Article 2.4.1 specifies that
currency conversions should be made using the rate of exchange on the date of
sale, which is defined as a date when the material terms of sale are
established. Where a sale of foreign currency on forward markets is directly
linked to the export sale, national authorities shall use the rate of exchange
on the forward sale. Authorities are to ignore fluctuations in exchange
rates, and, for purposes of investigations (not reviews) exporters are given
at least sixty days to adjust their prices to reflect sustained changes in
exchange rates which occurred during the period of investigation.
In a departure from current U.S. law, Article 2.4.2 provides that in
investigations (not reviews), national authorities normally will establish
dumping margins by comparing either:
a weighted-average of normal values to a weighted-average of
export prices of comparable merchandise; or
normal value and export price on a transaction-to-transaction
basis.
Where such comparisons are inappropriate, however, the United States' current
methodology is authorized. Authorities may compare a weighted-average normal
value to individual export transactions, provided that there is a pattern of
prices that differs significantly and that they explain why a weighted-average-
to-weighted-average or transaction-to-transaction comparison is not appropriate.
2. Determination of Injury
Article 3 prescribes standards for injury determinations that, with
limited exceptions, are little changed from those in the 1979 Code and current
U.S. law.
Article 3.3 expressly authorizes the longstanding U.S. practice of
cumulating the impact of imports from multiple countries simultaneously
subject to investigations. National authorities may cumulate imports if: (1)
the dumping margin for each country is more than de minimis; (2) the
volume of imports from each country is not negligible; and (3) a cumulative
assessment is appropriate in light of the conditions of competition between
the imported products and between the imports and the domestic like product.
In addition to the factors listed in the 1979 Code that national
authorities must examine in determining the impact of dumped imports on the
domestic industry, Article 3.4 adds a requirement to consider the magnitude of
the margin of dumping. As with the 1979 Code, however, the list of factors is
not exhaustive, and no one or several of the factors necessarily gives
decisive guidance.
Like the 1979 Code and U.S. law, Article 3.5 requires that national
authorities examine all the information presented and determine whether there
is a sufficient causal link between unfairly traded imports and the injury to
the domestic industry. The Agreement also requires that national authorities
examine factors other than unfairly traded imports which may be injuring the
domestic industry. Article 3.5 cautions authorities not to attribute injury
from such other factors to the dumped imports.
Consistent with the 1979 Code and current U.S. law, Article 3.7 requires that a determination of threat of material injury be based on facts, and not merely on allegation, conjecture, or remote possibility. The Agreement adds a non-exhaustive list of factors that national authorities must examine in considering the existence of threat of material injury. The list is similar to, but less extensive than, the one in current U.S. law. As in U.S. law, no one of these factors can necessarily give decisive guidance. Instead, the totality of the factors considered must lead to the conclusion that further dumped imports are imminent and that material injury would occur unless action is taken. Article 3.8 provides that national authorities shall consider and decide threat of material injury with special care.
3. Definition of Domestic Industry
The definition of domestic industry in Article 4 is virtually identical
to that in the 1979 Code and current U.S. law. The domestic industry consists
of domestic producers as a whole of products that are like the merchandise
under investigation, or those producers whose collective output constitutes a
major proportion of the total domestic production of such products. Producers
who are related to the exporters or importers, or who are themselves importers
of the allegedly dumped product, may be excluded from the industry. Footnote
11 defines "related" in terms of one entity's ability to control another.
Consistent with the 1979 Code and U.S. law, Article 4 also permits
national authorities to define the domestic industry to include regional
industries. If the constitution of a WTO member, such as the U.S.
Constitution, does not permit the levying of duties only on imported
merchandise consigned for final consumption to the region in question, duties
may be levied on a nation-wide basis only if: (1) the national authorities
give exporters to the region an opportunity to enter into suspension agreements;
and (2) the duties cannot be levied only on the products of those
specific foreign producers that supply the region in question.
4. Procedural Rules for Investigations and Collection of Evidence
Articles 5 and 6 significantly improve the procedural rules governing
the initiation and conduct of antidumping investigations, making them more
transparent and objective. Article 5.2 contains new requirements for
applications to initiate antidumping investigations (i.e., petitions) which
closely parallel current U.S. practice. Article 5.2 also requires that an
application contain evidence reasonably available to the applicant regarding
dumping, injury, and causation and that simple assertion, unsubstantiated by
relevant evidence, is not sufficient. Article 5.3 adds a new requirement that
national authorities examine the accuracy and adequacy of the information in
an application to determine whether the evidence is sufficient to justify
initiation of an investigation.
Article 5.4 establishes a predictable standard for determining whether
an application is supported by the domestic industry. Current U.S. law
presumes that a petition is filed on behalf of the domestic industry unless
producers accounting for a majority of U.S. production of the like product
object. In contrast, Article 5.4 requires that domestic producers accounting
for more than twenty-five percent of total domestic production of the like
product expressly support a petition, and requires more support than opposition
from those members of the domestic industry expressing a view on the
application. National authorities may use statistically valid samples to
determine industry support for fragmented industries involving an
exceptionally large number of producers. In addition, in an important
recognition of the role of labor, footnote 14 acknowledges that both management
and labor may file and support applications for the initiation of an
investigation.
Article 5.5 prohibits publicizing an application prior to the decision
to initiate an investigation, and requires that the government of the
exporting country be notified of the receipt of a properly documented
application prior to initiation.
Article 5.8 establishes a new requirement that the national authorities
must terminate an investigation if the authorities satisfy themselves that the
margin of dumping is de minimis, which is defined as less than two percent of
the export price, or the volume of imports is negligible, which is defined as
normally less than three percent of the volume of total imports of the like
product into the importing country. The negligibility rule does not apply if
those countries whose imports are simultaneously subject to investigation and
who individually account for less than three percent of imports collectively
account for more than seven percent of such imports. Margins are de minimis
if less than 0.5 percent under current Commerce standards. The U.S.
International Trade Commission (Commission) currently does not have any
specified numerical thresholds for negligible imports.
Article 6 establishes more detailed rules than the 1979 Code regarding
the gathering of evidence and the general procedures for antidumping
investigations. These rules generally parallel existing U.S. rules and
practices, and should result in a substantial improvement in the transparency
and procedural fairness of antidumping proceedings conducted by foreign
authorities.
In addition to the existing procedures in the 1979 Code, Article 6
specifies that foreign exporters or producers will be given at least 30 days
to respond to questionnaires, and encourages national authorities to grant
extensions whenever practicable. Interested parties may present information
orally, provided that the information is reduced to writing and made available
to other interested parties. To promote transparency, Article 6 requires the
national authorities to provide the full text of the application to known
exporters and written evidence submitted by one interested party to other
interested parties, subject to confidentiality requirements.
All interested parties must be given timely opportunities to: (1) see
all non-confidential information that is relevant to their cases and that is
used by the authorities; and (2) present their views on the basis of such
information. The term "interested parties" includes, but is not limited to,
exporters, foreign producers, importers, the government of the exporting
country, producers of like products in the importing country, and trade
associations.
Article 6 requires an interested party supplying confidential information
to provide a meaningful non-confidential summary of the information,
unless that party explains why the information cannot be summarized. This
requirement is derived from current U.S. practice. The definition of
confidential information continues to be the same as that in the United States
for "business proprietary information."
In an addition to the 1979 Code, Article 6.6 requires that national
authorities check the accuracy of the information supplied by interested
parties if the authorities rely on such information, unless the authorities
use the information as "facts available" (i.e., "best information available"
under current U.S. law). Annex I to the Agreement provides detailed
procedural rules for "on-the-spot investigations" (i.e., "verifications" under
U.S. law) which balance the investigating country's need for information, the
exporting country's sovereignty, and the investigated parties' need for
reasonable advance notice of verification and protection of confidential
information. Annex I recognizes the use of non-governmental experts in
verifications. Article 6.7 requires the authorities to provide the results of
verification in a foreign country to the firms concerned and to persons who
filed the application for an investigation, subject to confidentiality
requirements.
Like the 1979 Code and U.S. law, the Agreement permits national
authorities to base preliminary and final determinations on the "facts
available" whenever an interested party refuses access to, or otherwise does
not provide, necessary information within a reasonable period, or
significantly impedes the investigation. Annex II sets the standards for
using "facts available," including: (1) how national authorities should gather
and use information; (2) what weight should be given to information not
submitted in the form requested; (3) use of secondary sources; and (4) the
consequences of failure to cooperate in an investigation.
Article 6.9 requires national authorities, before making a final
determination, to inform all interested parties of the essential facts under
consideration which form the basis for the determination, in sufficient time
for the parties to defend their interests.
Consistent with existing U.S. practice, Article 6.10 establishes as a
general rule that national authorities calculate an individual margin of
dumping for each known exporter or producer. If there is a large number of
parties or types of products involved which makes the calculation of
individual dumping margins for all companies impracticable, the authorities
may limit their examination either: (1) to a reasonable number of interested
parties or products by using statistically valid samples; or (2) to the
largest percentage of the export volume which reasonably can be investigated.
Article 6.10 expresses a preference that, in limiting an investigation,
national authorities consult with concerned exporters, producers, or importers
and obtain their consent.
Article 6.10.2 specifically allows national authorities to use an "all-others"
rate for firms that are not individually investigated. The
authorities, however, should calculate individual rates for firms who
voluntarily provide information, except where the number of such voluntary
respondents is so large that the calculation of individual dumping margins for
all such respondents would be unduly burdensome to the authorities and would
prevent the timely completion of the investigation. Article 9.4 defines the
"all others" rate as the weighted-average margin of dumping for the exporters
examined, excluding zero or de minimis margins and margins based on facts
available.
Article 6.12 ensures that industrial users of the product under investigation
and representative consumer organizations, if the product is commonly
sold at retail, have adequate opportunities to submit relevant information
regarding dumping, injury, and causality. This provision is fully consistent
with existing U.S. practice which permits any party to submit comments to
Commerce and the Commission. Article 6.13 requires that authorities take due
account of difficulties experienced by interested persons, particularly small
companies, in supplying requested information and provide any assistance
practicable, given the statutory deadlines authorities must meet. Commerce
and the Commission currently provide such assistance.
Article 6.14 provides that the procedures set forth in Article 6 are not
intended to prevent national authorities from expeditiously initiating,
conducting, or concluding an investigation in accordance with the provisions
of the Agreement.
5. Provisional Measures
Article 7 specifies rules for the application of provisional measures
(i.e., under U.S. law, the suspension of liquidation of entries of merchandise
subject to an antidumping proceeding and the imposition of a security
requirement for potential antidumping duties). Article 7 allows national
authorities to apply provisional measures if: (1) an investigation, with
public notice, has been properly initiated and interested parties have been
given adequate opportunities to submit information and make comments; (2)
there is a preliminary affirmative determination of dumping and injury; (3)
provisional measures are judged necessary to prevent injury during the
investigation; and (4) at least sixty days have passed from the date of
initiation of the investigation. The sixty-day rule was added because some
countries imposed provisional measures only a few days after initiating an
investigation, thereby depriving exporters of any opportunity to defend their
interests. Other rules regarding the application of provisional measures
generally follow the 1979 Code.
6. Price Undertakings
Article 8, is little changed from the 1979 Code and sets forth the rules
applicable to price undertakings (i.e., suspension agreements under U.S. law).
During the Uruguay Round, some countries proposed that national authorities be
required to provide detailed, case-specific justifications for declining to
enter into suspension agreements. The United States successfully resisted
these proposals, and the relevant provisions of the Agreement expressly
recognize that authorities may decline to enter into undertakings where
acceptance would be impractical, (e.g., if the number of actual or potential
exporters is too great) or for other reasons, including reasons of general
policy. Article 8 also provides that the authorities must issue affirmative
preliminary determinations of dumping and injury before seeking or accepting
price undertakings. To the extent practicable, authorities should provide
exporters with the reasons for rejecting an undertaking, and, to the extent
possible, provide exporters an opportunity to comment on the rejection.
7. Imposition and Collection of Antidumping Duties
Repeating the basic provisions of the 1979 Code, Article 9 sets forth
rules regarding the imposition and collection of antidumping duties once a
definitive duty (i.e., an "antidumping duty order" under U.S. law) is imposed.
National authorities must collect duties, if imposed, in appropriate amounts
on a non-discriminatory basis not exceeding the dumping margin. National
authorities have discretion to decide whether to impose antidumping duties and
whether to make such duties equal to the full dumping margin.
Article 9.3 establishes new rules regarding the assessment of antidumping
duties on a retrospective basis, as in the United States, and on a
prospective basis, as in some other countries and the European Union. If the
antidumping duties are assessed retrospectively, the determination of final
liability for antidumping duties normally will be made within twelve months,
and in no case more than eighteen months, after the request for a final
assessment is made. The national authorities must promptly pay any refunds
due, normally within ninety days after the determination of final assessment,
and provide an explanation, if requested, for any delay. These deadlines may
be delayed if the duty order is challenged in court.
Article 9.3 also establishes a standard for making refunds when
authorities use a constructed export price. Article 9.4 adopts new rules for
applying antidumping duties to non-investigated firms, expressly authorizing
the application of an "all others" rate to such firms. Finally, Article 9.5
establishes special procedures for imposing antidumping duties on exporters or
producers who did not export the product to the importing country during the
original period of investigation (so-called "new shippers"). National
authorities must initiate and conduct new shipper reviews on an accelerated
basis, as compared to normal assessment and review proceedings. Authorities
may not levy final antidumping duties on exports from new shippers while the
review is pending, but may apply provisional measures to ensure that final
duties, if any, can be levied retroactively on entries of subject merchandise
covered by the review.
8. Retroactivity
Article 10 sets forth rules regarding the retroactive application of
antidumping duties, making few changes to the 1979 Code on which current U.S.
law is based. It establishes the general principle that provisional measures,
in the case of a preliminary determination, and antidumping duties, in the
case of a final determination, will apply to imports entered for consumption
after the respective determinations are made.
Article 10 provides several exceptions to this general principle that
permit the national authorities to apply final duties to imports entered at an
earlier stage of an investigation. First, as under current U.S. law, national
authorities may apply definitive antidumping duties from the date of
application of provisional measures if the final injury determination is based
on present material injury. Second, as under current law, national
authorities may apply definitive antidumping duties from the date of
application of provisional measures if the final injury determination is based
on threat of material injury if the authorities determine that but for the
application of provisional measures injury would have occurred. Third, as
under current law, national authorities may apply final antidumping duties up
to ninety days prior to the application of provisional measures if the
authorities determine that "critical circumstances" exist.
Article 10.7 permits national authorities to apply measures such as
withholding of appraisement to make it possible to collect final duties
retroactively. In no case, however, may authorities levy duties on products
imported before the date of initiation of the investigation.
9. Duration and Review of Antidumping Duties and Price Undertakings
Article 11 addresses the duration and review of antidumping duties and
price undertakings. As in the 1979 Code, it requires that antidumping
measures remain in force only as long as they are necessary to counteract
injurious dumping. It also gives interested parties the right to request
authorities to review whether the continued imposition of dumping duties is
necessary to offset dumping or whether injury would be likely to continue or
recur if the duty were removed or varied.
For the first time, the Agreement sets a time limit on the imposition of
antidumping measures. Article 11.3 requires that duties or price undertakings
terminate (or "sunset") not later than five years from the date of: (1) their
imposition; (2) the most recent review that covered both dumping and injury;
or (3) the most recent "sunset" review. During the negotiations, some
countries proposed that antidumping and countervailing duty orders and
suspended investigations should be revoked or terminated immediately if they
had been in effect for more than five years as of the date of entry into force
of the WTO Agreement. The United States resisted these efforts, and the
transition rules in Article 18.3 provide that existing antidumping and
countervailing duty measures shall be deemed to be issued as of the date of
entry into force of the WTO Agreement for the particular member imposing the
measure.
Either as a result of a request from the domestic industry or on their
own initiative, national authorities may conduct a "five-year" review to
determine whether termination of the antidumping measure would be likely to
lead to the continuation or recurrence of dumping and injury. The duty may
remain in force pending the outcome of such a review, and may continue for
another five years if the authorities make affirmative findings of likely
continuation or recurrence of dumping and injury. A zero or de minimis
dumping margin at the time of the five-year review does not mean there is no
likelihood of the continuation or recurrence of dumping and injury.
10. Requirement for Public Notice and Explanation of Determinations
In a significant improvement over the 1979 Code, the Agreement
establishes detailed rules regarding public notice and explanation of
determinations. To make national antidumping systems more transparent,
Article 12, consistent with U.S. law, requires public notice of all
significant determinations during the course of an antidumping proceeding with
sufficiently detailed explanations of material issues at each stage of the
antidumping proceeding. Footnote 23 permits authorities to publish
abbreviated public notices, provided that the details of the determination are
included in a separate report that is readily available to the public. This
preserves the Commission's existing practice of publishing a notice of its
determinations in the Federal Register and its full determinations in a
separate publication.
11. Judicial Review
In another improvement over the 1979 Code, Article 13 requires that each
WTO member with an antidumping law maintain judicial, arbitral, or administrative tribunals or procedures for the prompt review of final antidumping determinations in investigations and reviews. Such tribunals or procedures must be
independent of the authorities responsible for the determination or review in
question. The current U.S. system of judicial and binational panel review (in
the case of antidumping proceedings involving Canada or Mexico) satisfies the
requirements of Article 13.
12. Consultation and Dispute Settlement
Article 17 acknowledges the application of the Dispute Settlement Understanding (DSU) to disputes arising under the Antidumping Agreement. The
provisions set forth in Articles 17.4 through 17.7 are special and additional
dispute settlement rules within the meaning of Article 1.2 of the DSU. As
such, they supersede the DSU rules to the extent of any difference.
Article 17.5(ii) provides that in reviewing antidumping actions taken by
national authorities, the "scope" of WTO panel review will be based upon "the
facts made available in conformity with appropriate domestic procedures to the
authorities of the importing Member." Thus, as is the case in domestic
judicial review, WTO panel review should be limited to the facts made
available to the agency in conformity with the agency's procedures. Further,
panel review should not constitute a reconsideration of the administrative
proceedings, but should determine whether the agency's investigation of facts
was properly conducted and its evaluation was unbiased and objective.
Article 17.6 contains a special standard of review, which is analogous
to the deferential standard applied by U.S. courts in reviewing actions by
Commerce and the Commission. It provides that:
a WTO panel may not reevaluate the factual findings of the
national authorities if the national authorities' determination
was objective and unbiased, even though the panel might have
reached a different conclusion; and
where the language of the Agreement may be interpreted in more
than one way, a panel must confirm a determination by national
authorities that conforms to one of the permissible
interpretations of the Agreement.
Article 17.6 ensures that WTO panels will not second-guess the factual
conclusions of the agencies, even in situations where the panel might have
reached a conclusion different from that of the agency. In addition, Article
17.6 ensures that panels will not be able to rewrite, under the guise of legal
interpretation, the provisions of the Agreement, many of which were
deliberately drafted to accommodate a variety of methodologies.
A Ministerial Declaration accompanying the Uruguay Round Agreements
provides for the "consistent resolution" of disputes arising from the
imposition of antidumping and countervailing duty measures through the
application of the Article 17.6 standard of review to both types of disputes.
A separate Ministerial Decision provides that Article 17.6 will be reviewed
three years after entry into force of the WTO to consider whether it should be
applied to other agreements.
13. Miscellaneous Provisions
Articles 14, 15, and 16 incorporate provisions from the 1979 Code
regarding antidumping actions on behalf of a third country, application of the
rules to developing country members, and the establishment of a Committee on
Antidumping Practices. Article 18 contains miscellaneous provisions,
including transition rules regarding the application of the Agreement to
outstanding antidumping measures. Article 18.3 makes clear that the Agreement
applies only to investigations or reviews initiated pursuant to applications
made on or after the date the WTO Agreement enters into force for a member.
Thus, for example, the United States need not apply the provisions of the
Agreement to investigations or reviews that are pending as of the date the WTO
Agreement enters into force for the United States. Article 18.3 does not
require or suggest that the rules contained in the Agreement apply equally to
investigations and administrative reviews.
There are two express exceptions to the general transition rule in
Article 18.3. In the case of refund procedures under Article 9.3, national
authorities will use the rules in effect at the time of the most recent determination or review applicable to the calculation of dumping margins. In
addition, the five-year period for sunset reviews of existing antidumping
measures will commence on the date the WTO Agreement enters into force for a
Member. Therefore, the five-year period for U.S. antidumping duty orders,
findings, and suspension agreements in existence on the date of entry into
force of the WTO Agreement for the United States will begin on that date.
14. Decision on Anticircumvention
The draft Antidumping Agreement of the December 1991 Draft Final Act
(referred to as the "Dunkel Draft") contained very weak anticircumvention
provisions. The Administration succeeded in deleting these provisions from
the final Antidumping Agreement and in obtaining a Ministerial Decision that
recognizes the "problem" of circumvention and the desirability of having
uniform rules on anticircumvention as soon as possible. The Decision refers
the matter to the Committee on Anti-Dumping Practices for resolution. The
Ministerial Decision constitutes a recognition of the legitimacy of anti-circumvention measures and does not preclude members from maintaining,
modifying, or enacting anticircumvention measures at this time.
B. ACTION REQUIRED OR APPROPRIATE TO IMPLEMENT THE AGREEMENT
Amendments to the antidumping statute are either necessary or appropriate to
implement Article 2 of the Antidumping Agreement, which establishes rules
regarding the identification and measurement of dumping, and Article 14 of the
Antidumping Agreement, which addresses antidumping investigations initiated on
behalf of a third country. Amendments necessary or appropriate to implement
both the Antidumping Agreement and the Agreement on Subsidies and
Countervailing Measures (Subsidies Agreement) are discussed in Part C below.
The following discussion includes not only a description of the legislation
itself, but also a description of how the Department of Commerce (Commerce)
will apply the law. The Administration intends that Commerce will amend the
applicable regulations, 19 CFR 353, to reflect the changes described below.
Except where otherwise noted, these amendments are made to provisions of title
VII of the Tariff Act of 1930, as amended (the Act) (19 USC 1671 et seq.).
Various sections of the bill change the nomenclature of the existing statute
to conform to the terminology used in the Agreement. The term "export price"
replaces the term "purchase price," and "constructed export price" replaces
the term "exporters sales price." "Normal value" replaces the term "foreign
market value." Because the Agreement uses the term "like product" to refer to
both foreign and domestic merchandise, the term "foreign like product" is
substituted for "such or similar merchandise," and the term "domestic like
product" is substituted for the term "like product." What formerly was
referred to as the "class or kind" of merchandise subject to investigation or
covered by an order is now referred to simply as the "subject merchandise."
The substitution of terms from the Agreement is not, in itself, intended to
affect the meaning ascribed by administrative and judicial interpretation to
the replaced terms. Also, the bill is not intended to codify or overturn
various benchmarks or rules of thumb that Commerce has developed for purposes
of administering the antidumping law, except where such benchmarks or rules
would be inconsistent with the Agreement.
1. Definition of Dumping
Sections 223 and 224 of the bill amend sections 772 and 773 of the Act,
establishing new rules regarding the determination of export price or
constructed export price and normal value. Under new section 773(a), as under
existing law, the preferred method for identifying and measuring dumping is to
compare home market sales of the foreign like product to export sales to the
United States. Consistent with the Agreement, if home market sales of a
foreign like product do not exist or are not useable as a basis for
determining normal value, Commerce may identify and measure dumping by
comparing the export price or constructed export price to normal value based
on either: (1) sales of the foreign like product to a country other than the
United States; or (2) constructed value. The requirement of Article 2.4 of
the Agreement that a fair comparison be made between the export price or
constructed export price and normal value is stated in and implemented by
section 773. To achieve such a fair comparison, section 773 provides for the
selection and adjustment of normal value to avoid or adjust for differences
between sales which affect price comparability.
2. Price-to-Price Comparisons
Amended sections 773(a) (which defines, in part, normal value) and 772
(which defines export price) provide for the identification and measurement of
dumping on the basis of price-to-price comparisons.
a. Market Viability and Third Country Sales
(1) Market Viability
New section 773(a)(1)(C) establishes general rules for
determining when Commerce may base normal value on home market sales in the
exporting country. (In Commerce practice, this is referred to as determining
the "viability" of the home market.) The volume of sales in the home market
normally will be deemed insufficient, i.e., the home market will not be
considered usable if the quantity of sales by the exporter in the home market
is less than five percent of the quantity of sales by the exporter to the U.S.
market. This is a change from current law, under which the volume of home
market sales is compared to the volume of sales to countries other than the
United States.
The Administration has adopted the standard in the Antidumping Agreement that sales in the home market "normally" will be considered of
sufficient quantity to render the home market viable if they are five percent
or more of sales to the United States. The Administration intends that
Commerce will normally use the five percent threshold except where some
unusual situation renders its application inappropriate. A clear standard
governing most cases is necessary because Commerce must determine whether the
home market is viable at an early stage in each proceeding to inform exporters
which sales to report. In unusual situations, however, home market sales
constituting less than five percent of sales to the United States could be
considered viable and home market sales constituting more than five percent of
sales to the United States could be considered not viable.
The five percent test normally will be applied by comparing
the quantity of merchandise sold in the home market to the quantity of
merchandise sold in the U.S. market. In measuring the quantity of sales,
Commerce may consider the number of items, weight, or other measures it
considers appropriate. Occasionally, however, (such as when the merchandise
in question is composed of both finished products and parts), the quantity
sold will not be a reliable indicator of volume. In such cases, Commerce may
measure viability on the basis of the value of merchandise sold.
The five percent benchmark is derived from current U.S.
regulations. However, the use of sales to the United States as the benchmark
for determining the viability of the home market is a change from the current
statute, which requires that the quantity of goods sold in the home market be
compared to quantities sold to countries other than the United States. This
change will prevent the use of "thin" home markets as the basis for
identifying dumping. The viability of a market will be assessed based on
sales of all merchandise subject to an antidumping proceeding, not on a
product-by-product or model-by-model basis.
Consistent with the Agreement, new section 773(a)(1)(C)(iii)
provides that Commerce may determine that home market sales are inappropriate
as a basis for determining normal value if the particular market situation
would not permit a proper comparison. The Agreement does not define
"particular market situation," but such a situation might exist where a single
sale in the home market constitutes five percent of sales to the United States
or where there is government control over pricing to such an extent that home
market prices cannot be considered to be competitively set. It also may be
the case that a particular market situation could arise from differing
patterns of demand in the United States and in the foreign market. For
example, if significant price changes are closely correlated with holidays
which occur at different times of the year in the two markets, the prices in
the foreign market may not be suitable for comparison to prices to the United
States.
Finally, the legislation makes conforming changes to section
773(d) of the Act, which addresses the viability of the home market in
situations involving multinational enterprises.
(2) Third Country Sales
New section 773(a)(1)(B)(ii) establishes rules for using
third country sales. Unlike the existing law, which permits the use of sales
to multiple third countries, this section permits only the use of sales to a
single third country. As with home market sales, the third country market
must be "viable" (i.e., sales to the third country must not be less than five
percent of sales to the United States), and the particular market situation in
the third country must not prevent a proper comparison. In addition,
consistent with the Agreement, the price to the third country must be
representative.
b. Export Price and Constructed Export Price
(1) Identification of the Starting Price
New section 772 retains the distinction in existing law
between "purchase price" (now called the "export price") and "exporters sales
price" (now called "constructed export price"). If the first sale to an
unaffiliated purchaser in the United States, or to an unaffiliated purchaser
for export to the United States, is made by the producer or exporter in the
home market prior to the date of importation, then Commerce will base its
calculation on export price. If, before or after the time of importation, the
first sale to an unaffiliated person is made by (or for the account of) the
producer or exporter or by a seller in the United States who is affiliated
with the producer or exporter, then Commerce will base its calculation on
constructed export price. Notwithstanding the change in terminology, no
change is intended in the circumstances under which export price (formerly
"purchase price") versus constructed export price (formerly "exporters sales
price") are used. The bill adds a new definition of "affiliated person" at
section 771(33) which is described below. The use of this definition renders
obsolete existing section 771(13), which defines "exporter," and that section
is eliminated by section 222(i)(2) of the bill.
(2) Adjustments to Export Price and Constructed Export
Price
Under new section 772(c)(1), Commerce will calculate export
price and constructed export price by adding to the starting prices: (1)
packing costs for shipment to the United States, if not included in the price;
(2) import duties that are rebated or not collected due to the exportation of
the merchandise (duty drawback); and (3) countervailing duties attributable to
export subsidies. Section 772(c)(2) requires that Commerce reduce export
price to account for: (1) transportation and other expenses, including
warehousing expenses, incurred in bringing the subject merchandise from the
original place of shipment in the exporting country to the place of delivery
in the United States; and (2) if included in the price, export taxes or other
charges imposed by the exporting country. These adjustments have not changed
from current law.
Additionally, under new section 772(d), constructed export
price will be calculated by reducing the price of the first sale to an
unaffiliated customer in the United States by the amount of the following
expenses (and profit) associated with economic activities occurring in the
United States: (1) any commissions paid in selling the subject merchandise;
(2) any expenses which result from, and bear a direct relationship to, selling
activities in the United States; (3) any selling expenses which the seller
pays on behalf of the purchaser (assumptions); (4) any "indirect selling
expenses" (defined as selling expenses not deducted under any of the first
three categories of deductions); (5) any expenses resulting from a
manufacturing process or assembly performed on the merchandise after its
importation into the United States (except in the limited circumstances
discussed below); and (6) an allowance, as explained below, for profit
allocable to the selling, distribution, and further manufacturing expenses
incurred in the United States. The deduction of profit is a new adjustment in
U.S. law, consistent with the language of the Agreement, which reflects that
constructed export price is now calculated to be, as closely as possible, a
price corresponding to an export price between non-affiliated exporters and
importers.
As under current law, Commerce is directed by section
772(d)(1)(A) to deduct commissions from constructed export price, but only to
the extent that they are incurred in the United States on sales of the subject
merchandise.
Direct selling expenses are defined as expenses which result
from and bear a direct relationship to the particular sale in question.
Section 772(d)(1)(B) provides a non-exhaustive list of examples of expenses
that Commerce typically will consider as direct selling expenses when reported
on an appropriate transaction-specific basis, and will deduct from constructed
export price to the extent they are incurred after importation. The
Administration does not intend to change Commerce's current practice, sustained by the courts, of allowing companies to allocate these expenses when
transaction-specific reporting is not feasible, provided that the allocation
method used does not cause inaccuracies or distortions.
Section 772(d)(1)(C) provides for the deduction of selling
expenses which are assumed by the seller on behalf of the buyer. In practice,
Commerce has treated these expenses in the same manner as the direct selling
expenses in section 772(d)(1)(B). Their separate treatment in the statute is
intended merely to provide a more precise definition, and not to change the
calculation of export price or constructed export price.
Section 772(d)(1)(D) provides for the deduction of indirect
selling expenses from constructed export price. Indirect selling expenses are
expenses which do not meet the criteria of "resulting from and bearing a
direct relationship to" the sale of the subject merchandise, do not qualify as
assumptions, and are not commissions. Such expenses would be incurred by the
seller regardless of whether the particular sales in question are made, but
reasonably may be attributed (at least in part) to such sales.
Section 772(d)(2) is not intended to effect any substantive
change in the deduction made under the current statute for value added from
processing or assembly in the United States, with two exceptions. First,
Commerce's current calculation of profit on value added from processing or
assembly will be discontinued because the deduction for profit is now made
under section 772(d)(3). Second, new section 772(e) establishes a special
rule that allows Commerce to calculate constructed export price where a
substantial amount of value is added after importation, as discussed below.
Section 772(d)(3) requires Commerce, in determining the
constructed export price, to identify and deduct from the starting price in
the U.S. market an amount for profit allocable to selling, distribution and
further manufacturing activities in the United States. The profit to be
deducted from the starting price in the U.S. market is that proportion of the
total profit equal to the proportion which the U.S. manufacturing and selling
expenses constitute of the total manufacturing and selling expenses. Thus,
the profit to be deducted from the starting price in the U.S. market will be
calculated by multiplying the total profit by the percentage obtained by
dividing total U.S. expenses by total expenses. The total U.S. expenses are
all of the expenses deducted under Section 772(d)(1) and (2) in determining
the constructed export price. The total expenses are all expenses incurred by
or on behalf of the foreign producer and exporter and the affiliated seller in
the United States with respect to the production and sale of the first of the
following alternatives which applies: (1) the subject merchandise sold in the
United States and the foreign like product sold in the exporting country (if
Commerce requested this information in order to determine the normal value and
the constructed export price); (2) if Commerce did not request the information
required to determine total expenses under (1), the narrowest category of
merchandise sold in the United States and the exporting country which includes
the subject merchandise; or (3) if the data necessary to determine total
expenses under (1) and (2) is not available, the narrowest category of
merchandise sold in all countries which includes the subject merchandise. The
total profit is calculated on the same basis as the total expenses.
Commerce will request the information necessary to determine
total expenses under the first alternative if Commerce is conducting a cost of
production investigation. If Commerce is not conducting a cost of production
investigation, the respondent may submit the necessary information on a
voluntary basis. In such cases, Commerce will use the information if it is
practicable to do so and the information can be verified. Under the second
two alternatives, the information is obtained from financial reports. Whether
alternative (2) or (3) is used will depend on the detail in which such reports
break down total production and selling expenses and profits.
This same formula applies regardless of which of the three
methods is used to determine total expenses. No distortion in the profit
allocable to U.S. sales is created if total profit is determined on the basis
of a broader product-line than the subject merchandise, because the total
expenses are also determined on the basis of the same expanded product line.
Thus, the larger profit pool is multiplied by a commensurately smaller
percentage.
If there is no profit to be allocated (because the
affiliated entity is operating at a loss in the United States and foreign
markets) Commerce will make no adjustment under section 772(d)(3). This
calculation of profit has no relationship to, nor effect upon, the calculation
of transfer pricing under section 482 of the Internal Revenue Code. The
transfer price between exporters or producers and the affiliated importer is
irrelevant in determining the amount of profit to be deducted from constructed
export price.
(3) Special Rule for Merchandise With Value Added After
Importation
New section 772(e) establishes a simpler and more effective
method for determining export price in situations where an affiliated importer
adds value to subject merchandise after importation. For example, if roller
chain subject to an antidumping order is imported by an affiliated importer
for incorporation into a motorcycle which then is sold to an independent
party, there would be an enormous burden on Commerce if it were required to
"back out" from the price of the motorcycle all of the value added in the
United States to work back to the constructed export price of the roller
chain. For this reason, the legislative history of the Trade Act of 1974
indicates that Congress did not intend that Commerce engage in such an
exercise. S. Rep. No. 1298, 93rd Cong., 2nd Sess. 173 (1974); H.R. Rep. No.
571, 93rd Cong., 1st Sess. 70 (1973). However, under existing law, in some
situations, Commerce has been left with no choice but to exempt imported
components from the assessment of antidumping duties.
To avoid imposing an unnecessary burden on Commerce, section
772(e) authorizes Commerce to determine export price based on alternative
methods when it appears that the value added after importation is likely to
"exceed substantially" the value of the imported product. While Commerce is
not required to calculate precisely the level of value added after importation
into the United States, "exceed substantially" means that the value added in
the United States is estimated to be substantially more than half of the price
of the merchandise as sold in the United States.
The alternative methods for establishing export price are:
(1) the price of identical subject merchandise sold by the exporter or
producer to an unaffiliated person; or (2) the price of other subject
merchandise sold by the exporter or producer to an unaffiliated person. There
is no hierarchy between these alternative methods of establishing the export
price. If there is not a sufficient quantity of sales under either of these
alternatives to provide a reasonable basis for comparison, or if Commerce
determines that neither of these alternatives is appropriate, Commerce may use
any other reasonable method to determine constructed export price, provided
that it provides to interested parties a description of the method chosen and
an explanation of the basis for its selection. Such a method may be based
upon the price paid to the exporter or producer by the affiliated person for
the subject merchandise, if Commerce determines that such a price is
appropriate. Unlike the practice under current law, the imported components
will not be exempt from antidumping duties.
In addition, for purposes of estimating whether the value added in the United States is likely to substantially exceed the value of the imported product, it is the Administration's intent that Commerce not be required to perform a precise calculation of the value added. Requiring such a precise calculation would defeat the purpose of the new rule of saving Commerce the considerable effort of measuring precisely the U.S. value added. Commerce will provide interested parties, normally as part of the preliminary determination, with a description of the method chosen and an explanation regarding the selection of such method. c. Normal Value
New section 773(a) establishes rules for determining normal value
in situations where Commerce relies on home market prices or prices to a third
country.
(1) Identification of the Starting Price
Like the existing statute, new section 773(a)(1)(B) permits (but does not require) Commerce to base normal value on sales to related (now affiliated) parties in the home market. However, Commerce will continue to ignore sales to affiliated parties which cannot be demonstrated to be at arm's length prices for purposes of calculating normal value. See Section 773(a)(5). In addition, section 773(a)(1)(B)(i) codifies Commerce's current practice of calculating normal value, to the extent practicable, on the basis of home market sales that are made at the same level of trade as the constructed export price or the starting price for the export price. Under section 773(a)(1)(B)(ii), these same rules would apply to the calculation of normal value based on third country sales.
New section 773(a)(2) retains the requirement of section
773(a)(5) in existing law that Commerce not base normal value on home market
sales which were made to establish a fictitious market. Section 773(a)(2)
clarifies that Commerce will not determine normal value on the basis of
pretended sales or offers, or sales or offers intended to establish a
fictitious market. The changes in terminology and relocation of this
provision are not intended to alter current law.
(2) Basic Adjustments to Normal Value
New section 773(a)(6) provides for adjustments to normal
value. Section 773(a)(6)(A) requires that Commerce increase normal value for
U.S. packing costs. Section 773(a)(6)(B) requires that Commerce reduce normal
value to account for: (1) the cost of packing for shipment in the exporting
country or to a third country; (2) if included in the price, transportation
and other expenses, including warehousing expenses, incurred in bringing the
merchandise from the original place of shipment in the exporting country to
the place of delivery in the exporting country or a third country; and (3) the
amount of any indirect taxes imposed on the foreign like product or components
thereof that have been rebated or not collected, but only to the extent that
such taxes are added to or included in the price of the foreign like product.
The existing statute requires the deduction of transportation and other movement-related expenses from export price, but is silent
regarding similar costs in foreign markets. New section 773(a)(6)(B)
explicitly provides for the deduction of movement charges from normal value.
Failure to deduct all movement charges from the foreign price would result in
a distorted comparison. This change reflects Article 2.4 of the Agreement,
which requires that prices normally be compared at the ex-factory level.
The deduction from normal value for indirect taxes constitutes a change from the existing statute. The change is intended to ensure
that dumping margins will be tax-neutral. The requirement that the home-market consumption taxes in question be "added to or included in the price" of
the foreign like product is intended to insure that such taxes actually have
been charged and paid on the home market sales used to calculate normal value,
rather than charged on sales of such merchandise in the home market generally.
It would be inappropriate to reduce a foreign price by the amount of the tax,
unless a tax liability had actually been incurred on that sale.
(3) Additional Adjustments to Normal Value
Section 773(a)(6)(C) also authorizes Commerce to adjust
normal value to account for other differences (or the lack thereof) between
export price (or constructed export price) and normal value that are wholly or
partly due to differences in quantities, physical characteristics, or other
differences in the circumstances of sale. With respect to each of these
adjustments, as well as with all other adjustments, Commerce will ensure that
there is no overlap or double-counting of adjustments.
Section 773(a)(6)(C)(i) provides that Commerce may adjust normal value to account for the fact that the transactions involving the subject merchandise may involve greater or lesser quantities of merchandise than the transactions involving the foreign like product.
Section 773(a)(6)(C)(ii) provides for adjustments to account
for any differences in costs attributable to physical differences between the
merchandise exported to the United States and the merchandise sold in the home
or third country market. The Administration intends that Commerce will
continue its current practice of limiting this adjustment to differences in
variable costs associated with the physical differences. Thus, for example,
Commerce will not make an adjustment under this section for cost differences
attributable to: (1) the fact that the exporter is charged different prices
for its inputs depending on the destination of the finished product; or (2)
the fact that the domestic and exported products are produced in different
facilities with differing production efficiencies.
Section 773(a)(6)(C)(iii) retains Commerce's authority to
make adjustments for differences in the circumstances of sales used to
establish normal value, and those used to establish export price and
constructed export price. The Administration intends Commerce's current
practice with respect to this adjustment to remain unchanged, except with
respect to the "constructed export price offset" (discussed below). Thus,
Commerce will continue to employ the circumstance-of-sale adjustment to adjust
for differences in direct expenses and differences in selling expenses of the
purchaser assumed by the foreign seller, between normal value and both export
price and constructed export price. In constructed export price situations
Commerce will deduct direct expenses incurred in the United States from the
starting price in calculating the constructed export price. However, direct
expenses and assumptions of expenses incurred in the foreign country on sales
to the affiliated importer will form a part of the circumstances of sale
adjustment. Moreover, Commerce's practice with respect to assumptions by the
seller of the buyer's selling expenses and commissions will remain the same.
(4) Level of Trade Adjustments
The Agreement provides that, where authorities use a constructed export price and the use of such a price results in the comparison of
sales at different levels of trade, authorities shall either: (1) establish
the normal value at a level of trade equivalent to the level of trade of the
constructed export price; or (2) make due allowance as warranted. The
statutory scheme, which provides for comparison at the same level of trade or,
when levels of trade are different, consideration of a level of trade
adjustment or constructed export price offset, is designed to ensure that a
proper comparison is made. The bill implements this provision in two
different ways.
First, as noted above, new section 773(a)(1)(B) requires
that Commerce, to the extent practicable, establish normal value based on home
market (or third country) sales at the same level of trade as the constructed
export price or the starting price for the export price. If Commerce is able
to compare sales at the same level of trade, it will not make any level of
trade adjustment or constructed export price offset in lieu of a level of
trade adjustment.
Second, when sales in the U.S. and foreign markets cannot be
compared at the same level of trade, an adjustment to normal value may be
appropriate. New section 773(a)(7)(A) provides that, after making all
appropriate adjustments to export price or constructed export price and normal
value, Commerce shall adjust normal value to account for any differences in
these prices that are demonstrated to be attributable to differences in the
level of trade of the comparison sales in each market. This adjustment may
either increase or decrease normal value. Commerce will grant such
adjustments only where: (1) there is a difference in the level of trade (i.e.,
there is a difference between the actual functions performed by the sellers at
the different levels of trade in the two markets); and (2) the difference
affects price comparability.
Commerce will carefully investigate whether a level of trade
adjustment should be made to increase or decrease normal value. However, if a
respondent claims an adjustment to decrease normal value, as with all
adjustments which benefit a responding firm, the respondent must demonstrate
the appropriateness of such adjustment.
Commerce will require evidence from the foreign producers
that the functions performed by the sellers at the same level of trade in the
U.S. and foreign markets are similar, and that different selling activities
are actually performed at the allegedly different levels of trade. Nominal
reference to a company as a "wholesaler," for example, will not be sufficient.
On the other hand, Commerce need not find that the two levels involve no
common selling activities to determine that there are two levels of trade.
Because level of trade adjustments may be susceptible to manipulation,
Commerce will closely scrutinize claims for such adjustments. For example, a
sales subsidiary created merely to perform the role of a de facto sales
department is not an appropriate basis for adjustment.
The effect on price comparability is measured by examining
price differences between goods sold to different levels of trade in the
foreign market where normal value is being established. Commerce will measure
any effect on price comparability by determining if there is a pattern of
price differences between sales at the different levels of trade in the
foreign market. While the pattern of pricing at the two levels of trade under
section 773(a)(7)(A) must be different, the prices at the levels need not be
mutually exclusive; there may be some overlap between prices at the different
levels of trade.
Any adjustment under section 773(a)(7)(A) will be calculated
as the percentage by which the weighted-average prices at each of the two
levels of trade differ in the market used to establish normal value. The
Administration intends that Commerce normally will base the calculation of the
adjustment on sales of the same product by the same company; however, if
information on the same product and company is not available, the adjustment
may also be based on sales of other products by the same company. In the
absence of any sales, including those in recent time periods, to different
levels of trade by the exporter or producer under investigation, Commerce may
consider the selling experience of other producers in the foreign market for
the same product or other products. Where different products, company
experiences, or time periods are used, Commerce will ensure that price
differences reflect differences in levels of trade that are relevant to the
product under consideration rather than differences in the nature of the
products, companies or time periods.
Commerce will not make an adjustment based on the fact that
expenses or costs differ between the two levels of trade. An effect on price
comparability must be identified and measured by observed differences between
prices at different levels of trade. Commerce will isolate the price effect,
if any, attributable to the sale at different levels of trade, and will ensure
that expenses previously deducted from normal value are not deducted a second
time through a level of trade adjustment. For example, Commerce will ensure
that a percentage difference in price is not more appropriately attributable
to differences in the quantities purchased in individual sales.
Where it is established that there are different levels of
trade based on the performance of different selling activities, but the data
establish that there is a pattern of no price differences, the level of trade
adjustment will be zero. No further adjustment is necessary.
Only where different functions at different levels of trade
are established under section 773(a)(7)(A)(i), but the data available do not
form an appropriate basis for determining a level of trade adjustment under
section 773(a)(7)(A)(ii), will Commerce make a constructed export price offset
adjustment under section 773(a)(7)(B). The adjustment will be "capped" by the
amount of indirect expenses deducted from constructed export price under new
section 772(d)(1)(D). In some circumstances, the data may not permit Commerce
to determine the amount of the level of trade adjustment. For example, there
may be no, or very few sales of a sufficiently similar product by a seller to
independent customers at different levels of trade. This could be the case
where there is only one foreign respondent and all sales are to affiliated
purchasers. Also, there could be restrictive business practices which result
in too few appropriate sales to determine a price effect. Similarly, the data
could indicate a clearly contradictory result, for example contradictory
patterns during different periods. In such situations, although an adjustment
might have been warranted, Commerce may be unable to determine whether there
is an effect on price comparability. In such situations, although there is a
difference in levels of trade, Commerce may be unable to quantify the
adjustment. Where this occurs, Commerce will make a capped "constructed
export price offset" adjustment under section 773(a)(7)(B), in lieu of the
level of trade adjustment that would be warranted under section 773(a)(7)(A).
The constructed export price offset adjustment will be made
only where normal value is established at a level of trade more remote from
the factory than the level of trade of the constructed export price; i.e.
where the adjustment under 773(a)(7)(A), if it could have been quantified,
would likely have resulted in a reduction of the normal value. The capped
constructed export price offset adjustment will not be available to parties
that refuse to provide necessary level of trade data.
(5) Adjustments to Constructed Value
New section 773(a)(8) ensures continuation of the ability to
make appropriate adjustments to constructed value when amended section 773(e)
serves as the basis for normal value. Such adjustments will be made under the
same conditions as under current law.
3. Exclusion of Sales Below Cost from Determination of Normal Value
Since 1974, U.S. law has provided for the exclusion of below-cost
foreign market sales as a basis for determining foreign market (normal) value.
Section 773(b) of the Act currently provides that Commerce will determine
whether foreign market sales are at prices below cost when it has "reasonable
grounds to believe or suspect" that such sales have occurred. Such sales must
be excluded from the determination of foreign market value if such sales
occurred: (1) in substantial quantities; (2) over an extended period of time;
and (3) at prices that do not permit the recovery of all costs within a
reasonable period of time. If remaining above-cost sales are inadequate,
Commerce is directed to base foreign market value on constructed value.
New section 773(b) incorporates the requirements of the Agreement,
which, but for a few changes, are based on the existing U.S. law. Overall,
these changes provide improved criteria for determining when to exclude below-cost sales as a basis for normal value.
The current statutory requirement that below-cost sales occur over an
extended period of time is replaced by the requirement that such sales occur
within an extended period of time. As in the Agreement, the term "extended
period of time" is defined in new section 773(b)(2)(B) as being normally one
year, but not less than six months. This is a change from current Commerce
practice, under which the below-cost inquiry is confined to the normal six-month period of the initial antidumping investigation. By providing that
below-cost sales need occur only within (rather than over) an extended period
of time, Commerce no longer must find that below-cost sales occurred in a
minimum number of months before excluding such sales from its analysis. In
addition, the use of the term "within" means that for purposes of calculating
the quantity of below-cost sales, Commerce will examine below-cost sales
occurring during the entire period of investigation or review, as opposed to a
shorter time period.
Another change concerns the definition of "substantial quantities."
Under existing practice, Commerce considers below-cost sales to be in
substantial quantities if they account for ten percent of total sales. Under
new section 773(b)(2)(C), the benchmark is twenty percent. Commerce also may
consider below-cost sales to be in substantial quantities if the weighted-average per unit price of the sales under consideration is less than the
weighted-average per unit cost of production for such sales. This latter rule
closely corresponds to the current Commerce practice of determining
substantial quantities of sales below cost for highly perishable agricultural
products, and will be the measurement of substantial quantities for such
products in the future.
In addition, new section 773(b)(2)(D) specifies when particular prices
provide for cost recovery within a reasonable period of time. Under current
law, there is no clear definition of cost recovery -- the measure of cost
recovery could have been based on speculative estimates of future production
costs. Under the amended law, if prices which are below costs at the time of
sale are above weighted-average costs for the period of investigation or
review, such prices shall be considered to provide for recovery of costs
within a reasonable period of time.
The determination of cost recovery is based on an analysis of actual
weighted-average prices and costs during the period of investigation or
review, except that, before testing for cost recovery, such costs incurred
during the period of investigation or review may be adjusted as appropriate to
take account of variations in unit costs caused by periodic temporary
disruptions to production that occur on a less frequent than annual basis.
For example, major maintenance may be scheduled every three years. While this
maintenance is performed, output is suspended or reduced. This results in
unit costs being artificially increased in years when the maintenance is
performed and depressed in other years. To account for this, Commerce will
spread out the effect of such disruptions over the appropriate period of time
so that a proportional effect is recognized. The party claiming the
adjustment must demonstrate that the disruptions have recurred at regular and
predictable intervals. Although not a matter of cost recovery, when an
unforeseen disruption in production occurs which is beyond management's
control (e.g., destruction of production facilities by fire), Commerce will
continue its current practice such as using the costs incurred for production
prior to such unforeseen event. As under current practice, the cost test
generally will be performed on no wider than a model-specific basis.
If home market (or third country) sales are below-cost and all of the
criteria of section 773(b) are satisfied, Commerce may exclude such sales for
purposes of determining normal value. The Administration intends that
Commerce will disregard sales when the conditions in the law are met.
However, in some cases, below-cost sales may be used to determine normal value
if those sales are of obsolete or end-of-model-year merchandise. Such
merchandise is often sold at less than cost as was recognized in the
legislative history of the Trade Act of 1974. H. Rep. No. 571, 93rd Cong.,
1st Sess. 70-71 (1973); S. Rep. No. 1298, 93rd Cong., 2nd Sess., 173 (1974).
It is appropriate to use these sales as the basis of normal value when the
merchandise exported to the United States is similarly obsolete or end-of-model year.
The existing statute provides that where below-cost sales are
disregarded, Commerce shall use the remaining above-cost sales as the basis
for determining foreign market (normal) value if such sales are "adequate."
As a matter of practice, Commerce has used above-cost sales where they account
for ten percent or more of total sales. New section 773(b)(1) changes this
practice by requiring Commerce to use above-cost sales if they exist, and if
such sales are otherwise in the ordinary course of trade. Only if there are
no above-cost sales in the ordinary course of trade in the foreign market
under consideration will Commerce resort to constructed value.
New section 773(b)(2)(A) retains the current requirement that Commerce
have "reasonable grounds to believe or suspect" that below-cost sales have
occurred before initiating such an investigation. "Reasonable grounds" will
exist when an interested party provides specific factual information on costs
and prices, observed or constructed, indicating that sales in the foreign
market in question are at below-cost prices. In addition, new section
773(b)(2)(A)(ii), which codifies existing Commerce practice, provides that in
the context of administrative reviews of antidumping orders, reasonable
grounds exist if Commerce has excluded below-cost sales of a particular
exporter or producer from the determination of normal value in the most
recently completed segment of the antidumping proceeding.
The Administration intends that an allegation of sales below cost need
not be specific to a particular exporter or producer, although a petitioner
would be free to limit a below-cost allegation to a particular exporter or
producer. Commerce will consider allegations of below-cost sales in the
aggregate for a foreign country, just as Commerce currently considers
allegations of sales at less than fair value on a country-wide basis for
purposes of initiating an antidumping investigation. It is the
Administration's intent that the standard for initiation of a sales below-cost
investigation should be the same as the current standard for initiating an
antidumping investigation based on a comparison of prices.
The changes described above are intended to permit Commerce to initiate
below-cost inquiries at the outset of a case, thereby enhancing Commerce's
ability to complete investigations and reviews in a timely, transparent, and
effective manner. The ability to substantiate a below-cost allegation on the
basis of observed or constructed prices and costs will enable Commerce to
address the allegation of below-cost sales at an earlier stage of a proceeding
than possible under current practice, thereby providing all parties with a
greater opportunity to comment on Commerce's analysis.
4. Ordinary Course of Trade
Section 222(h) of the bill amends section 771(15) to specify additional
types of transactions that Commerce may consider to be outside the ordinary
course of trade, including: (1) sales disregarded as being below-cost under
new section 773(b)(1); and (2) transactions disregarded under new section
773(f)(2), i.e., transactions between affiliated persons that are disregarded
for purposes of calculating cost. Commerce may consider other types of sales
or transactions to be outside the ordinary course of trade when such sales or
transactions have characteristics that are not ordinary as compared to sales
or transactions generally made in the same market. Examples of such sales or
transactions include merchandise produced according to unusual product
specifications, merchandise sold at aberrational prices, or merchandise sold
pursuant to unusual terms of sale. As under existing law, amended section
771(15) does not establish an exhaustive list, but the Administration intends
that Commerce will interpret section 771(15) in a manner which will avoid
basing normal value on sales which are extraordinary for the market in
question, particularly when the use of such sales would lead to irrational or
unrepresentative results.
5. Calculation of Costs
Section 224 of the bill adds new section 773(f) to incorporate the
provisions of the Agreement regarding the calculation of costs. In addition,
section 773(f) harmonizes the methods of calculating cost for purposes of
examining sales below cost and determining constructed value.
a. Calculation of Costs in General
Consistent with existing practice, new section 773(f)(1)(A)
provides that Commerce normally will calculate costs on the basis of records
kept by the exporter or producer of the merchandise, provided such records are
kept in accordance with generally accepted accounting principles of the
exporting (or producing) country and reasonably reflect the costs associated
with the production and sale of the merchandise. Commerce will consider all
available evidence submitted by the exporter or producer on a timely basis
regarding the proper allocation of costs. The exporter or producer will be
expected to demonstrate that it has historically utilized such allocations,
particularly with regard to the establishment of appropriate amortization and
depreciation periods and allowances for capital expenditures and other
development costs.
In determining whether a company's records reasonably reflect costs, Commerce will consider U.S. generally accepted accounting principles employed by the industry in question. For example, a company's records might not fairly allocate the cost of an asset if a firm's financial statements reflect an extremely large amount of depreciation for the first year of an asset's life, or if there is no depreciation expense reflected for assets that have been idle. In such a situation, it would be appropriate for Commerce to adjust depreciation expenses. Costs shall be allocated using a method that reasonably reflects and accurately captures all of the actual costs incurred in producing and selling the product under investigation or review. In determining whether to accept the cost allocation methods proposed by a specific producer, Commerce will consider the production cost information available to the producer and whether such information could reasonably be used to compute a representative measure of the materials, labor and other costs, including financing costs, incurred to produce the subject merchandise, or the foreign like product. Commerce also will consider whether the producer historically used its submitted cost allocation methods to compute the cost of the subject merchandise prior to the investigation or review and in the normal course of its business operation. Also, if Commerce determines that costs, including financing costs, have been shifted away from production of the subject merchandise, or the foreign like product, it will adjust costs appropriately, to ensure they are not artificially reduced. b. Identification of Costs To Be Calculated
Section 222(i)(1) of the bill adds section 771(28) to the Act
which defines the term "exporter or producer" to include, where appropriate,
both the exporter and producer of merchandise subject to an antidumping
proceeding. The purpose of section 771(28), which is consistent with current
Commerce practice, is to clarify that where different firms perform the
production and selling functions, Commerce may include the costs, expenses,
and profits of each firm in calculating cost of production and constructed
value.
c. Non-recurring Costs
Section 224 of the bill adds section 773(f)(1)(B) to the Act to
incorporate the provisions of the Agreement regarding the treatment of non-recurring costs. This section is consistent with current practice, under
which Commerce associates expenditures with all production benefitting from
the expenditure. For example, in the case of pre-production expenses, such as
research and development costs, Commerce typically allocates such expenses
over current and future production.
d. Startup Costs
Section 224 of the bill also adds section 773(f)(1)(C) to the Act
to incorporate the provisions of the Agreement regarding the treatment of
startup costs. In calculating cost of production and constructed value, it is
appropriate to take into account that a firm may experience unusually high
costs when it is "starting up" a new product or new production facilities.
However, any adjustment for such startup costs must be carefully limited to
ensure that such an adjustment is not transformed into a license to dump.
Section 773(f)(1)(C) accomplishes these objectives.
(1) Defining Startup
Under section 773(f)(1)(C)(ii), Commerce may make an adjustment for startup costs only if the following two conditions are satisfied: (1) a company is using new production facilities or producing a new product that requires substantial additional investment, and (2) production levels are limited by technical factors associated with the initial phase of commercial production. Mere improvements to existing products or ongoing improvements to existing facilities will not qualify for a startup adjustment. Commerce also will not consider an expansion of the capacity of an existing production line to be a startup operation unless the expansion constitutes such a major undertaking that it requires the construction of a new facility and results in a depression of production levels due to technical factors associated with the initial phase of commer cial production of the expanded facilities.
"New production facilities" includes the substantially
complete retooling of an existing plant. Substantially complete retooling
involves the replacement of nearly all production machinery or the equivalent
rebuilding of existing machinery. A "new product" is one requiring
substantial additional investment, including products which, though sold under
an existing nameplate, involve the complete revamping or redesign of the
product. This would not include routine model year changes. For example, a
new model year automobile with incremental changes would not be considered a
new product, but a completely redesigned model with a new structure would be
so considered. Similarly, a 16 megabyte Dynamic Random Access Memory (DRAM)
chip, for example, would be considered a new product if the latest version of
the product had been a 4 megabyte chip. However, an improved version of a 16
megabyte chip (e.g., a physically smaller version) would not be considered a
new product.
(2) Duration of the Startup Period
Under new section 773(f)(1)(C)(ii), startup will be
considered to end at the time the level of commercial production
characteristic of the merchandise, producer, or industry concerned is
achieved. The attainment of peak production levels will not be the standard
for identifying the end of the startup period, because the startup period may
end well before a company achieves optimum capacity utilization. In addition,
consistent with the basic definition of a startup situation, Commerce will not
extend the startup period so as to cover improvements and cost reductions that
may occur over the entire life cycle of a product.
To determine when a company reaches commercial production
levels, Commerce will consider first the actual production experience of the
merchandise in question. Production levels will be measured based on units
processed. To the extent necessary, Commerce also will examine other factors,
including historical data reflecting the same producer's or other producers'
experiences in producing the same or similar products. A producer's
projections of future volume or cost will be accorded little weight, as actual
data regarding production are much more reliable than a producer's
expectations.
In determining whether commercial production levels have
been achieved and that the startup period is measured appropriately, Commerce
will consider factors unrelated to startup operations that may have affected
the volume of production processed, such as demand, seasonality, or business
cycles. For example, commercial production levels may be low not because a
company is in a startup situation, but because the industry in question is in
the trough of its business cycle.
The Administration recognizes that the nature and timing of
startup operations will vary from industry to industry and from product to
product, and that any determination of the appropriate startup period involves
a fact-intensive inquiry. In some industries, the startup period could be as
short as one or two months; in others it could be much longer. For this
reason, the Administration intends that Commerce determine the duration of the
startup period on a case-by-case basis.
(3) Startup Adjustment Methodology
New section 773(f)(1)(C)(iii) sets out the basic methodology
for making startup adjustments. If the criteria for making a startup
adjustment are satisfied, Commerce will replace unit production costs incurred
during the startup period with unit production costs incurred at the end of
the startup period. An adjustment for startup may result in the exclusion
from the cost calculation of actual costs incurred by a company during the
startup period. As the startup adjustment results in some actual costs not
being counted during the startup phase, the difference between actual costs
and the costs of production calculated for startup costs will be amortized
over a reasonable period of time subsequent to the startup phase over the life
of the product or machinery, as appropriate.
In certain situations, the startup period may extend beyond the period of the investigation or administrative review, possibly even beyond the deadline for Commerce's final determination. In such cases, Commerce must cut off the submission of additional information to allow itself time to analyze and verify the data, as well as to provide interested parties with an opportunity to comment on the data. Consistent with the Agreement, Commerce will use as startup costs the most recent costs incurred prior to the end of the startup period that Commerce reasonably can take into account without delaying the timely completion of the investigation or administrative review.
Commerce will consider unit production costs to be items such as depreciation of equipment and plant, labor costs, insurance, rent and lease expenses, material costs, and overhead. However, sales expenses, such as advertising costs, or other non-production costs, will not be considered startup costs because they are not directly tied to the manufacturing of the product.
The Administration intends that the burden will be on
companies to demonstrate their entitlement to a startup adjustment.
Specifically, companies must demonstrate that, for the period under
investigation or review, production levels were limited by technical factors
associated with the initial phase of commercial production and not by factors
unrelated to startup, such as marketing difficulties or chronic production
problems. In addition, to receive a startup adjustment, companies will be
required to explain their production situation and identify those technical
difficulties associated with startup that resulted in the underutilization of
facilities. This is consistent with the general rule in antidumping practice
that a party seeking an adjustment has the burden of establishing entitlement
to that adjustment as both a legal and factual matter.
e. Affiliated Party Transactions
Current law contains two definitions of persons who may be
considered to be related, sections 773(e)(4) and 771(13). Section 222(i)(1)
of the bill amends section 773(e)(4) by redesignating it as section 771(33),
retitling it "Affiliated Persons," and adding new subparagraph (G), which
provides that any person who controls any other person and that other person
will be considered affiliated persons. Consistent with the Agreement,
"control" exists if one person is legally or operationally in a position to
exercise restraint or direction over another person. The Administration
believes that including control in the definition of "affiliated" will permit
a more sophisticated analysis which better reflects the realities of the
marketplace.
The traditional focus on control through stock ownership fails to
address adequately modern business arrangements, which often find one firm
"operationally in a position to exercise restraint or direction" over another
even in the absence of an equity relationship. A company may be in a position
to exercise restraint or direction, for example, through corporate or family
groupings, franchises or joint venture agreements, debt financing, or close
supplier relationships in which the supplier or buyer becomes reliant upon the
other.
The question of affiliation is relevant to a number of price and
cost issues in an antidumping investigation or review. One example is the
special rule for major inputs in existing section 773(e)(3), a provision added
to the law in 1988 to address diversionary input dumping by authorizing
Commerce to inquire whether the transfer between "related" persons (i.e.,
"affiliated" persons under section 773(f)(3)) of such an input is at a price
below the input's production cost. H. Rep. 576, 100th Cong., 2d Sess. 595
(1988). Under the amended definition of "affiliated persons," Commerce may
examine such transactions when the purchaser of the major input is in a
position to exercise restraint or direction over the input supplier (or vice
versa).
Paragraphs (2) and (3) of new section 773(f) address the treatment
of transactions between affiliated parties for purposes of calculating cost.
Under the existing statute, these provisions literally apply only to the
calculation of constructed value, and the legislation relocates these
paragraphs to section 773(f) to clarify that they apply for purposes of
analyzing sales below cost of production and constructed value.
Under existing law, Commerce applies the definition of "exporter"
in existing section 771(13) primarily to determine when an importer is
"connected" to the exporter so as to warrant the use of "exporters sales
price" as the basis for U.S. price. Section 222(i)(2) of the bill repeals
section 771(13) of the Act because the new term "affiliated" is used for the
purpose of determining export price and constructed export price in new
sections 772(a) and (b).
6. Profit and Selling, General, and Administrative Expenses for
Constructed Value
Section 224 of the bill adds section 773(e)(2) to implement the
provisions of the Agreement regarding constructed value and the calculation of
amounts for profits and selling, general, and administrative expenses (SG&A).
Constructed value is used as the basis for normal value where home market
sales of the merchandise in question are either nonexistent, in inadequate
numbers, or inappropriate to serve as a benchmark for a fair price, such as
where sales are disregarded because they are sold at below-cost prices.
Because constructed value serves as a proxy for a sales price, and because a
fair sales price would recover SG&A expenses and would include an element of
profit, constructed value must include an amount for SG&A expenses and for
profit.
Existing section 773(e)(1)(B) provides that Commerce calculate these
amounts based on the average experience of producers in the country of
exportation in selling merchandise of the same general class or kind as the
merchandise under investigation. The statute also establishes minimum amounts
for SG&A expenses and profit. As a matter of administrative practice,
Commerce has calculated these amounts based on the experience of individual
producers in selling the particular merchandise under investigation.
Moreover, Commerce has used an average profit rate, which includes below-cost
sales for which the profit is zero.
New section 773(e)(2) establishes new methods of calculating SG&A
expenses and profits consistent with the methods provided for in the
Agreement. Although section 773(e)(2) does not retain the current statutory
minimums for profit and SG&A expenses, the Administration does not believe
that this will diminish the ability of domestic industries to obtain relief
under the antidumping law.
First, consistent with the Agreement, new section 773(e)(2)(A)
establishes as a general rule that Commerce will base amounts for SG&A
expenses and profit only on amounts incurred and realized in connection with
sales in the ordinary course of trade of the particular merchandise in
question (foreign like product). Commerce may ignore sales that it disregards
as a basis for normal value, such as those disregarded because they are made
at below-cost prices. Other examples of sales that Commerce could consider to
be outside the ordinary course of trade include sales of off-quality
merchandise, sales to related parties at non-arm's length prices, and sales
with abnormally high profits. Unlike current practice, under section
773(e)(2)(A), in most cases Commerce would use profitable sales as the basis
for calculating profit for purposes of constructed value.
Second, new section 773(e)(2)(B) establishes alternative methods for
calculating amounts for SG&A expenses and profit in those instances where the
method described in section 773(e)(2)(A) cannot be used, either because there
are no home market sales of the foreign like product or because all such sales
are at below-cost prices. These methods are: (1) actual amounts incurred or
realized by the same producer on home market sales of the same general
category of products; (2) the weighted-average of actual amounts incurred or
realized by other investigated companies on home market sales in the ordinary
course of trade (i.e., profitable sales) of the foreign like product; or (3)
any other reasonable method, provided that the amount for profit does not
exceed the profit normally realized by other companies on home market sales of
the same general category of products (the so-called profit cap).
At the outset, it should be emphasized that, consistent with the
Antidumping Agreement, new section 773(e)(2)(B) does not establish a hierarchy
or preference among these alternative methods. Further, no one approach is
necessarily appropriate for use in all cases. While, as discussed below,
Commerce has had some experience with certain aspects of these alternatives,
its experience is insufficient to warrant any sort of ranking of the three
alternatives. The Administration intends that the selection of an alternative
will be made on a case-by-case basis, and will depend, to an extent, on
available data. Commerce will explain the basis for the selection of a
particular methodology in a given case. If alternative (3) is selected,
Commerce will provide to interested parties a description of the method chosen
and an explanation of why it was selected.
With respect to alternative (1), this methodology is consistent with the
existing practice of relying on a producer's sales of products in the same
"general class or kind of merchandise." The term "general category of
merchandise" encompasses a category of merchandise broader than the "foreign
like product." As under existing practice, the Administration intends that,
if Commerce uses alternative (1), it will establish appropriate categories on
a case-by-case basis. In addition, profits used by Commerce must be from
reliable independent sources (e.g., financial reports), prepared in accordance
with generally accepted accounting principles, and capable of verification.
With respect to alternative (2), although it relies on the sales
experience of other companies, this alternative requires the use of sales in
the ordinary course of trade, i.e., profitable sales. Absent this
requirement, if Commerce could not calculate profit for a particular foreign
producer under the general rule because all of that producer's sales were at
below-cost prices, that producer would benefit perversely from its own unfair
pricing, because its profit figure would be based on an average of other
producers' profitable and unprofitable sales.
With respect to alternative (3), which provides for the use of "any
other reasonable method," given the absence of a comparable standard in
existing law, the Administration does not believe that it is appropriate at
this time to establish particular methods and benchmarks for applying this
alternative. Instead, the Administration intends that Commerce will develop
this alternative through practice, and that Commerce will determine on a case-by-case basis the profits "normally realized" by other companies on
merchandise of the same general category.
The Administration does not intend Commerce to require companies to
submit all data necessary to apply each alternative. For example, Commerce
will not require a company which has provided profit information on its own
sales of the particular foreign like product also to submit profit information
on its sales of the same general category of products solely to enable
Commerce to use the latter information to calculate profit for a different
company. Likewise, the Administration does not intend that Commerce would
engage in an analysis of whether sales in the same general category are above-cost or otherwise in the ordinary course of trade.
The Administration also recognizes that where, due to the absence of
data, Commerce cannot determine amounts for profit under alternatives (1) and
(2) or a "profit cap" under alternative (3), it might have to apply
alternative (3) on the basis of "the facts available." This ensures that
Commerce can use alternative (3) when it cannot calculate the profit normally
realized by other companies on sales of the same general category of products.
In such a situation, the Administration intends that Commerce will not make an
adverse inference in applying the facts available, unless the company in
question withheld information requested by Commerce.
Finally, in situations where the producer and the exporter are separate
companies, the Administration intends that Commerce may continue to calculate
constructed value based on the total profit and total SG&A expenses realized
and incurred by both companies. In such situations, failing to include the
expenses and profits of both companies would understate the true cost of
production and constructed value of the merchandise.
7. Currency Conversions
Section 225 of the bill adds new section 773A to implement the
requirements of the Agreement regarding currency conversions. Typically in
antidumping proceedings, the prices or costs used to determine normal value
are denominated in a foreign currency. To determine whether dumping exists,
these prices or costs must be converted to U.S. dollars. To a large extent,
the Agreement tracks existing practice, the goal of which is to ensure that
the process of currency conversion does not distort dumping margins. The
Administration intends that Commerce will promulgate regulations implementing
the requirements of section 773A. To the extent that the requirements of the
Agreement apply only to investigations, as opposed to reviews, the regulations
will reflect this distinction.
Under new section 773A, the general rule will be to convert foreign
currencies based on the dollar exchange rate in effect on the date of sale.
Under current practice, Commerce utilizes a quarterly rate, unless the daily
rate varies by more than five percent from the rate in effect on the first day
of the quarter. Some firms, including U.S. firms, commonly engage in hedging
on forward currency markets to minimize their exposure to exchange rate
losses. Therefore, as under existing practice, where a company demonstrates
that a sale of foreign currency on forward markets is directly linked to a
particular export sale, Commerce will use the rate of exchange in the forward
currency sale agreement. Group sales of foreign currency on forward markets
will be allowed, provided that sufficient documentation to establish the link
between the currency purchase and the particular export sale is provided.
Section 773A also provides that Commerce will ignore fluctuations in
exchange rates. In addition, in an investigation, Commerce will allow
exporters at least sixty days in which to adjust their prices to reflect a
sustained increase in the value of a foreign currency relative to the U.S.
dollar.
8. Price Averaging
Section 229 of the bill adds new section 777A(d) to implement the
provisions of the Agreement regarding the use of average normal values and
export prices for purposes of calculating dumping margins. Although current
U.S. law permits the use of averages on both sides of the dumping equation,
Commerce's preferred practice has been to compare an average normal value to
individual export prices in investigations and reviews. In part, the
reluctance to use an average-to-average methodology has been based on a
concern that such a methodology could conceal "targeted dumping." In such
situations, an exporter may sell at a dumped price to particular customers or
regions, while selling at higher prices to other customers or regions.
Consistent with the Agreement, new section 777A(d)(1)(A)(i) provides
that in an investigation, Commerce normally will establish and measure dumping
margins on the basis of a comparison of a weighted-average of normal values
with a weighted-average of export prices or constructed export prices. To
ensure that these averages are meaningful, Commerce will calculate averages
for comparable sales of subject merchandise to the U.S. and sales of foreign
like products. In determining the comparability of sales for purposes of
inclusion in a particular average, Commerce will consider factors it deems
appropriate, such as the physical characteristics of the merchandise, the
region of the country in which the merchandise is sold, the time period, and
the class of customer involved. For example, in the case of 13" and 21"
televisions, average normal values would be calculated for each size of
television, not a single average for sales of both sizes of televisions.
In addition to the use of averages, section 777A(d)(1)(A)(ii) also
permits the calculation of dumping margins on a transaction-by-transaction
basis. Such a methodology would be appropriate in situations where there are
very few sales and the merchandise sold in each market is identical or very
similar or is custom-made. However, given past experience with this
methodology and the difficulty in selecting appropriate comparison
transactions, the Administration expects that Commerce will use this
methodology far less frequently than the average-to-average methodology.
New section 777A(d)(1)(B) provides for a comparison of average normal
values to individual export prices or constructed export prices in situations
where an average-to-average or transaction-to-transaction methodology cannot
account for a pattern of prices that differ significantly among purchasers,
regions, or time periods, i.e., where targeted dumping may be occurring.
Before relying on this methodology, however, Commerce must establish and
provide an explanation why it cannot account for such differences through the
use of an average-to-average or transaction-to-transaction comparison. In
addition, the Administration intends that in determining whether a pattern of
significant price differences exist, Commerce will proceed on a case-by-case
basis, because small differences may be significant for one industry or one
type of product, but not for another.
In this regard, so that the exceptions are properly applied, the
Administration intends that Commerce will continue to require that foreign
companies report sales on a transaction-specific basis, and that Commerce will
request information on sales to particular customers and regions.
Transaction-specific information must be made available so Commerce may
determine: (1) the appropriate product and/or transaction categories for which
averages should be calculated; and (2) whether the exception for targeted
dumping is applicable. The information submitted by interested parties for
this purpose will be subject to disclosure to representatives of domestic
interested parties under Administrative Protective Orders, except for the
limited exceptions set out in existing section 777(c).
The Agreement reflects the express intent of the negotiators that the
preference for the use of an average-to-average or transaction-to-transaction
comparison be limited to the "investigation phase" of an antidumping
proceeding. Therefore, as permitted by Article 2.4.2, the preferred
methodology in reviews will be to compare average to individual export prices.
New section 777A(d)(2) provides that, when comparing prices of individual
export transactions to weighted-average foreign prices, Commerce will 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.
When constructed value is used for normal value, it is normally based on
yearly data. However, when costs are rapidly changing, it may be appropriate
to use shorter periods, such as quarters or months, which may allow a more
appropriate association of costs with sales prices. However, where costs are
incurred seasonally, such as in most agricultural products, costs are
currently annualized, and the Administration intends that Commerce continue
this practice.
9. Intermediate Country Sales
Article 2.5 of the Agreement continues to provide that, where products
are exported from an intermediate country, rather than directly from the
country of origin, national authorities generally will determine normal value
based on sales or cost in the intermediate country. However, authorities may
determine normal value in the country of origin in certain circumstances.
While section 773(f) of the Act requires that normal value will be based on
prices in the country of origin, it allows normal value to be based on sales
in the intermediate country if a list of conditions is satisfied. In
contrast, Article 2.5 of the Agreement requires that normal value ordinarily
will be based on sales in the intermediate country, but provides an
illustrative list of conditions that would justify finding normal value based
on sales prices in the country of origin.
Section 224 of the bill redesignates and amends existing section 773(f)
of the Act as new section 773(a)(3). New section 773(a)(3) paraphrases the
requirement in current law that Commerce may use sales in the intermediate
country as a basis for normal value only if the producer in the country of
origin did not know that the merchandise sold to a reseller was intended to be
exported to an intermediate country. The producer in the country of origin
might sell at a lower price if it knows that the merchandise is to be exported
than if the merchandise is intended for domestic consumption. This reflects
the fact that dumping is primarily a matter of price discrimination between
domestic and export markets. It would be inappropriate to determine fair
value by reference to subsequent sales in or from the intermediate country if
the sale to the intermediate country is dumped.
New section 773(a)(3) describes other situations in which it would be
inappropriate to use the intermediate country as a basis for determining
normal value, such as where goods are merely transshipped through the
intermediate country, the foreign like product is not produced in the
intermediate country, or the market in the intermediate country is not viable
within the meaning of new section 773(a)(1)(C). New section 773(a)(3)
eliminates the requirement of existing law that merchandise not be
substantially transformed in the intermediate country. Outside of a situation
involving circumvention of an antidumping duty order, a substantial
transformation of a good in an intermediate country would render the resulting
merchandise a product of the intermediate country rather than the original
country of production.
e. De Minimis Dumping Margins
In conformity with Article 5.8 of the Antidumping Agreement,
section 213 of the bill amends sections 733(b) and 735(a) of the Act to
require that, in antidumping investigations, Commerce treat the weighted-average
dumping margin of any producer or exporter which is below two percent ad valorem
as de minimis. De minimis margins are regarded as zero margins.
Exporters or producers with de minimis margins will be excluded from any
affirmative determination. In practice this will have its major impact on
final determinations, since it is only at that time that the margins are known
with certainty. Margins calculated in preliminary determinations have not
been subjected to full comment or verification and, as a result, are not
suitable as a basis for final termination of a proceeding. This requirement
applies only to investigations and not to reviews of orders or agreements.
The requirements of Article 5.8 apply only to investigations, not
to reviews of antidumping duty orders or suspended investigations. The
Administration intends that Commerce will continue its present practice in
reviews of waiving the collection of estimated cash deposits if the deposit
rate is below 0.5 percent ad valorem, the existing regulatory standard for de
minimis. Section 229(b) of the bill adds section 771(35) which defines the
terms "dumping margin" and "weighted-average dumping margin" in a manner
consistent with existing Commerce regulations, 19 CFR 353.2(f).
10. Antidumping Investigations on Behalf of a Third Country
Section 232 of the bill adds section 783 to incorporate the provisions
of Article 14 of the Antidumping Agreement, and establish a framework for
taking antidumping actions on behalf of a third country. Current U.S. law
authorizes the Trade Representative (Trade Representative) to request that
other countries take action against dumping in their markets that injures U.S.
exporters, but does not allow Commerce or the Commission to take action in
response to similar requests by other governments.
New section 783(a) allows any WTO member to file a petition with the
Trade Representative requesting an antidumping investigation based on
allegations that a product is being dumped in the United States by exporters
from another WTO member and thereby injuring the industry producing a like
product in the requesting country. New section 783(b) requires the Trade
Representative to consult with Commerce and the Commission prior to initiating
a third-country action.
Subsection (b) also incorporates the provision of the Antidumping
Agreement requiring the approval of the WTO Council for Trade in Goods prior
to initiating such an investigation. In determining whether to initiate an
investigation, the Trade Representative will take into account whether the
petitioning country provides an equivalent opportunity for the United States
to seek the initiation of antidumping investigation.
New section 783(c) authorizes the Trade Representative to request: (1)
from Commerce a determination as to whether imports are being sold in the U.S.
at less than fair value; and (2) from the Commission a determination as to
whether there is material injury to an industry in the requesting country by
reason of imports into the United States of the subject merchandise. The
legislation does not itself establish the substantive and procedural standards
that Commerce and the Commission will apply in third-country antidumping
investigations. Instead, the Trade Representative will specify the
substantive and procedural standards to be used by the agencies in such
investigations.
New section 783(d) requires the Trade Representative to provide an
opportunity for public comment in determining whether to initiate an
investigation. Similarly, this section also requires Commerce and the
Commission to provide an opportunity for public comment in making their
respective determinations under section 783(c).
The Administration intends that the Trade Representative will develop
consistent, transparent standards of general applicability that provide
meaningful guidance to the agencies, while according them the necessary
flexibility to develop appropriate procedures. With respect to procedural
issues, the Trade Representative will indicate the deadlines (if any)
applicable to such investigations, the persons who may participate as parties
in such investigations, and the applicability of requirements such as hearings
and exchanges of information pursuant to administrative protective order.
The Trade Representative will articulate the extent to which substantive
rules, (particularly with respect to Commission injury investigations)
applicable to antidumping investigations filed on behalf of U.S. industries --
such as like product, related parties, and cumulation -- are also applicable
in third-country investigations. The Administration intends that these
standards should, to a considerable extent, permit the Commission to
incorporate by analogy the standards it uses concerning injury to U.S.
industries. Nevertheless, certain concepts, such as regional industries, may
have little applicability in third-country investigations. In such
circumstances, the Commission should have the flexibility in third-country
investigations to deviate from the standards used in antidumping
investigations of U.S. industries.
In the event both Commerce and the Commission make affirmative
determinations, Commerce will publish an antidumping duty order and take other
actions necessary to assess antidumping duties. These orders will be subject
to reviews for duty liability, changed circumstances, and sunset, and will be
subject to judicial review under section 516A of the Act.
C. ACTION REQUIRED OR APPROPRIATE TO IMPLEMENT THE ANTIDUMPING AND
SUBSIDIES AGREEMENTS
Amendments are either required or appropriate to implement the remaining
articles of the Antidumping Agreement and the Subsidies Agreement (the
Agreements). In most cases, the relevant provisions of the Agreements are
identical. The following discussion includes not only a description of the
legislation itself, but also a description of how the statute will be applied
by Commerce and the Commission. The agencies will amend the applicable
regulations, 19 CFR Parts 207, 353, 355, to reflect the changes described
below.
Many of the amendments discussed in this section of the Statement of
Administrative Action reflect the achievement of one of the United States'
principal negotiating objectives -- to strengthen the procedural safeguards in
antidumping and countervailing duty proceedings. In recent years, an
increasing number of countries have begun to adopt and apply antidumping and
countervailing duty laws. Some countries denied even minimal due process
protections to exporters. Although the 1979 Tokyo Round Antidumping and
Subsidies Codes purported to provide procedural safeguards, many of these
provisions lacked sufficient detail.
To protect U.S. exporters from arbitrary actions by foreign antidumping and
countervailing duty authorities, the United States negotiated procedural and
evidentiary safeguards consistent with U.S. standards of transparency and
procedural fairness. These procedural and evidentiary improvements in the
Agreements ensure that U.S. exporters will be able to defend their interests
in foreign antidumping and countervailing duty proceedings.
Most of the statutory amendments concerning antidumping and countervailing
duty procedural and evidentiary requirements codify existing practices of
Commerce and the Commission. Nevertheless, the Administration believes that
it is important to reflect, in the statute itself or in regulations, the
standards of the Agreements relating to transparency and procedural fairness.
First, the codification of existing agency practices will document clearly for
our trading partners that the United States adheres to these standards.
Second, codification will make clear to our trading partners that the United
States considers transparency and procedural fairness to be extremely
important, and that the United States expects other countries to accord U.S.
exporters similar procedural treatment.
1. Determination of Injury
The Agreements make relatively few changes to the substantive standards
for determining injury and causation set forth in the 1979 Codes. The most
significant change reflected in the Agreements is the express recognition of
cumulative analysis.
a. Cumulative Analysis
Cumulative analysis has long been a critical component of U.S.
antidumping and countervailing duty law and practice. In general, under
current cumulative analysis, when determining whether a U.S. industry has been
injured by unfairly traded imports, the Commission cumulatively assesses the
volume and effect of imports from all countries subject to the investigation
if those imports compete with each other and with the domestic like product.
This analysis recognizes that a domestic industry can be injured by a
particular volume of imports and their effects regardless of whether those
imports come from one source or many sources. Although existing U.S. law and
practice is largely consistent with the cumulation provisions of the
Agreements, certain modifications to the statute are necessary to ensure
complete consistency. These changes are incorporated in section 222(e) of the
bill, which adds section 771(7)(G) to the Act.
Section 222(d) of the bill repeals current section 771(7)(C)(v),
which treats negligible imports as an exception to the cumulation requirement.
As discussed below, section 222(d) of the bill adds section 771(24) to the
Act, which implements the provisions of the Agreements concerning negligible
imports.
(1) Competition Requirement
As under current law, new section 771(7)(G)(i) requires
imports to compete with each other and with the domestic like product to be
eligible for cumulation. The new section will not affect current Commission
practice under which the statutory requirement is satisfied if there is a
reasonable overlap of competition, based on consideration of relevant factors.
See Fundicao Tupy, S.A. v. United States, 678 F. Supp. 898, 902 (Ct. Int'l
Trade), aff'd, 859 F.2d 915 (Fed. Cir. 1988).
(2) Simultaneous Filing or Self-Initiation
In conformity with the Agreements, new section 771(7)(G)(i)
provides that the Commission cumulate imports only from countries as to which
investigations under sections 702 or 732 were filed or self-initiated on the
same day. The requirement of simultaneous filing will promote certainty in
antidumping and countervailing duty investigations by defining, at the time of
filing, the countries potentially subject to cumulative analysis.
Virtually all investigations are initiated based upon a
petition filed by a domestic interested party. If, however, Commerce were to
self-initiate an investigation under sections 702(a) or 732(a) without
receiving a petition, that investigation would be eligible for cumulation with
other investigations initiated pursuant to petitions filed on that same day.
The schedules for investigations that are filed on the same
day may become staggered if parties in some, but not all, of the
investigations request extensions of Commerce determinations. By basing the
cumulation analysis on simultaneously filed investigations, section 771(7)(G)
eliminates the incentive in multi-country investigations for respondents to
seek extensions of individual Commerce determinations just to avoid
cumulation.
While only imports in simultaneously filed (or self-initiated)
investigations will be eligible for cumulative analysis, the
Administration intends that the Commission retain the discretion to consider
whether prior unfair imports have rendered the domestic industry more
vulnerable to injury by reason of later dumped or subsidized imports.
New section 771(7)(G)(iii) provides that the Commission will
make its determination in each of the staggered investigations based upon the
record compiled in the first final investigation in which it makes a
determination. This eliminates the need for the Commission to consider
whether imports from the first-decided investigation that are subject to
antidumping or countervailing duty orders have a "continuing effect" on "vote
day" of each subsequent investigation. Compare Chaparral Steel Co. v United
States, 901 F.2d 1097 (Fed. Cir. 1990), with Mitsubishi Materials Corp. v.
United States, 820 F. Supp. 608 (Ct. Int'l Trade 1993). The record of the
later-decided investigations, however, will be supplemented by Commerce's
final determination(s) in those investigations and the parties' comments
thereon. Thus, all interested parties will have full opportunity to comment
on all issues relevant to their respective injury determinations.
As discussed in more detail below, the Antidumping Agreement
requires the consideration of the magnitude of the dumping margin in
determining whether there is material injury by reason of the dumped imports.
In preliminary injury determinations, where Commerce has not yet calculated a
dumping margin, the Commission will use the dumping margins published in
Commerce's notice of initiation. In final injury determinations, the
Commission will use the dumping margins most recently published by Commerce
before the record in the Commission investigation has closed. These may be
either the margins published in Commerce's final determination, or if no final
determination has been made, in its preliminary determination.
(3) Cumulation Involving Refiled Petitions
If a petitioner decides, after initiation of an
investigation, that it wants to file petitions against additional countries
and seeks cumulation of those imports with imports subject to a pending
investigation, the petitioner may withdraw its petition in the pending
investigation and then file a new petition including imports from the
additional countries, thereby triggering the general cumulation rule in new
section 771(7)(G)(i). Section 217 of the bill amends sections 704(a) and
734(a) of the Act to permit Commerce and the Commission to use the records
compiled in the earlier investigation in the refiled investigations. To
prevent abuse and discourage repeated withdrawals and refilings, this
provision is applicable only in the first instance that a petition is
withdrawn and refiled within three months after withdrawal.
(4) Exceptions to Cumulation Requirement
New section 771(7)(G)(ii) modifies existing law by creating
two new exceptions to the general rule on cumulation. The first exception is
that the Commission may not cumulate imports for which Commerce has made a
preliminary negative determination, unless Commerce has subsequently reached a
final affirmative determination prior to the time of the Commission's final
determination. Under current law, such imports are eligible for cumulation
because they are still "subject to investigation." This change is necessary
because the Agreements permit cumulation of imports only when there has been a
finding (i.e., a Commerce initiation determination, preliminary determination,
or final determination) that the margin of dumping or the countervailable
subsidy rate is more than de minimis.
The second new exception is that imports that are the
subject of terminated investigations may not be cumulated. This exception
also implements the requirement of the Agreements that negligible or de
minimis imports not be cumulated.
New section 771(7)(G)(ii) also retains two exceptions in the
current law. The first partially exempts from cumulation imports from
beneficiary countries under the Caribbean Basin Economic Recovery Act.
Imports from beneficiary countries may be cumulated only with imports from
other beneficiary countries. The second applies to imports from Israel.
Imports from Israel may not be cumulated with imports from other countries
unless the Commission first determines that the domestic industry is
materially injured by reason of such imports from Israel.
(5) Cumulation in Regional Industry Investigations
New section 771(7)(G)(iv) codifies existing Commission
practice of applying the same cumulation standards in regional industry
investigations as in national industry investigations. In such investigations,
any cumulative analysis is based on imports entering the pertinent region(s).
(6) Cumulation and Threat of Material Injury
Section 222(e) of the bill adds section 771(7)(H) to
preserve the Commission's discretion to cumulate imports in analyzing threat
of material injury. In conformity with the Agreement, each of the conditions
and exceptions to potential cumulation that apply in a material injury
analysis, including the requirement that investigations must be filed or self-initiated
on the same day, apply in threat analyses.
b. Impact on Affected Domestic Industry; Consideration of
Dumping Margin
Section 222(b)(1)(B) of the bill amends section 771(7)(C)(iii) of
the Act by adding the magnitude of the margin of dumping to the list of
factors the Commission considers in determining the impact of imports of
subject merchandise on domestic producers of like products. There is no
similar provision in the Subsidies Agreement and, as under current practice,
the Commission will not be required to consider the rate of subsidization.
This amendment does not alter the requirement in current law that none of the
factors which the Commission considers is necessarily dispositive in the
Commission's material injury analysis.
Section 229(b) of the bill adds section 771(35)(C) to the Act.
This section defines "the magnitude of the margin of dumping" for purposes of
the Commission's analysis as:
in a preliminary investigation, the margin(s) published by
Commerce in its notice of initiation;
in a final investigation, the margin(s) most recently
published by Commerce prior to the closing of the
Commission's record;
in a changed circumstances review, the margin(s) most
recently determined by Commerce; and
in a five-year review, the margin(s) determined by Commerce
pursuant to its own sunset analysis under section 752(c)(3).
In final staggered investigations, the Commission is to use Commerce's final
margins as to the pending investigations. For other investigations for which
cumulation is appropriate, the Commission is to use the most recent dumping
margin issued by Commerce at the time the Commission closes its record. This
precludes challenges to a Commission determination on the basis that Commerce
later modifies the original dumping margin.
Changes in the original margin could occur due to further
proceedings in staggered investigations, corrections of ministerial errors,
reconsideration of a determination, or judicial remand. Absent this
provision, Commission determinations could be subject to repeated requests for
reconsideration or judicial remands. The finality of injury determinations
would be seriously compromised if the Commission were required to amend or
revisit its determination each time the administering authority modified its
dumping margin. The Commission, however, may conduct a changed circumstances
review of its determination pursuant to Section 751(b) on the basis of
recalculations by Commerce of the dumping margin in the original
investigation, if the party seeking such review establishes that it is
warranted. Changes in dumping margins in administrative reviews should not
form the basis for a changed circumstances review.
c. Causation
Article 3.5 of the Antidumping Agreement and 15.5 of the Subsidies
Agreement do not change the causation standard from that provided in the 1979
Tokyo Round Codes. Existing U.S. law and legislative history fully implement
the causation standard of the 1979 Codes. Thus, existing U.S. law fully
implements Articles 3.5 and 15.5. Articles 3.5 and 15.5 do include new
language requiring WTO signatories to "examine all relevant evidence"
including "any known factors, other than the dumped [or subsidized] imports
which at the same time are injuring the domestic industry." The obligations
embodied in the new language are reflected in the existing statute and
legislative history.
The GATT 1947 Panel Report in the Norwegian Salmon case approved
U.S. practice as consistent with the 1979 Codes. The panel noted that the
Commission need not isolate the injury caused by other factors from injury
caused by unfair imports. See GATT Committee on Anti-dumping Practices,
United States -- Imposition of Anti-dumping Duties on Imports of Fresh and
Chilled Atlantic Salmon from Norway: Report on the Panel Par. 555 (Nov. 30,
1992); GATT Committee on Subsidies and Countervailing Measures, United States
-- Imposition of Countervailing Duties on Imports of Fresh and Chilled
Atlantic Salmon from Norway: Report on the Panel Par. 321 (Dec. 4, 1992).
Rather, the Commission must examine other factors to ensure that it is not
attributing injury from other sources to the subject imports.
d. Captive Production
Under section 777(7)(C)(iii), the Commission evaluates the
relevant economic factors within the context of the business cycle and the
conditions of competition that are distinctive to the affected industry.
Among the factors that the Commission must evaluate in determining whether a
domestic industry is materially injured by reason of unfairly-traded imports
are penetration of the U.S. market by those imports and the financial
performance of the U.S. producers included in the industry. Section 222(b)(2)
of the bill adds section 771(7)(C)(iv) to the Act to amend current law with
respect to import penetration and financial performance to address situations
in which vertically-integrated U.S. producers sell a significant volume of
their production of the domestic like product to U.S. customers (i.e., the
merchant market) and internally transfer a significant volume of their
production of that same like product for further internal processing into a
distinct downstream article (i.e., captive production). No conforming changes
to the other provisions of the Tariff Act of 1930, as amended, are necessary.
If the captive production provision applies, the Commission will
focus primarily on the merchant market in analyzing the market share and
financial performance of the domestic industry. The provision does not
require the Commission to focus exclusively on the merchant market in its
analysis of market share and financial performance. The basis for this
analysis is the recognition that, in such a captive production situation, the
imports compete primarily with sales of the domestic like product in the
merchant market, not with the inventory internally-transferred for processing
into a separate downstream article. This provision is consistent with the
Antidumping and Subsidies Agreements.
Captive production refers to production of the domestic like
product that is not sold in the merchant market and that is processed into a
higher-valued downstream article by the same producer. Selling in the
merchant market refers to sales of the domestic like product to unrelated
customers. A downstream article is an article distinct from the domestic like
product but is produced from that product. (It is not necessarily a
"downstream product" within the meaning of section 780(d)). The Commission
will determine on a case-by-case basis whether the volume sold in the merchant
market and internally transferred is significant. Captive production and
merchant sales are significant if they are of such magnitude that a more
focused analysis of market share and financial performance is needed for the
Commission to obtain a complete picture of the competitive impact of imports
on the domestic industry.
The captive production provision is applicable if the Commission,
in addition to finding that the volumes of the domestic like product sold in
the merchant market and transferred internally for processing into a distinct
downstream article are significant, also finds that: (1) the production of the
domestic like product internally transferred for further processing into a
separate downstream article does not enter the merchant market for the
upstream like product; (2) the domestic like product is the predominant
material input used in the production of that separate downstream article; and
(3) the production of the domestic like product sold in the merchant market is
not generally used in the production of that downstream article.
Under the second factor, the domestic like product will be
considered "predominant" only where it is the primary material used in the
production of a downstream article. Under the third factor, the production of
the domestic like product sold in the merchant market will be considered
"generally used in the production of that downstream article" if a significant
portion of the production that enters the merchant market is actually
processed into the same downstream article as that produced from the
internally-transferred captive production. Whether the domestic like product
sold in the merchant market is physically capable of being processed into the
same downstream article (or some other downstream articles) is not relevant.
Rather, the Commission should consider whether the production sold in the
merchant market is actually used in the production of the same downstream
article.
In cases in which this captive production provision applies, the
Commission shall determine the extent to which the imports of the subject
merchandise by a related party are sold in the merchant market or captively
consumed by the related-party importer in the production of a downstream
article. Imports which are sold in the merchant market shall be included in
the import penetration ratio for the merchant market. Imports which are
captively consumed by the related-party importer for processing into a
downstream article shall be included in the import penetration ratio for the
merchant market only if the imports compete with sales of the domestic like
product. If such imports do not compete with sales of the domestic upstream
like product in the merchant market, the Commission shall include such imports
in the total import share of the industry's total production, but not in the
import penetration ratio for the merchant market or in any other calculation
in which captive domestic production is excluded.
This captive production analysis has no effect on the Commission's
like product analysis. The Commission's discretion, in appropriate
circumstances, to find that upstream and downstream articles constitute a
single like product, and that integrated producers participate in a single
industry, is unchanged. In such circumstances, the captive production
provision would have no application.
e. Post-Petition Information
Section 222(f) of the bill amends section 771(7) to address the
probative value of post-petition data by adding section 771(7)(I). The new
statutory provision emphasizes that the Commission should consider whether
changes in the volume of imports, their price effects, and their impact on the
domestic industry occurring since the filing of the petition are related to
the pendency of the investigation. Courts have repeatedly recognized that the
initiation of antidumping and countervailing duty proceedings can create an
artificially low demand for subject imports, thereby distorting post-petition
data compiled by the Commission. See Metallverken Nederland, B.V. v. United
States, 744 F. Supp. 281, 284 (Ct. Int'l Trade 1987); USX Corp. v. United
States, 655 F. Supp 487, 492 (Ct. Int'l Trade 1987). The imposition of
provisional duties, in particular, can cause a reduction in import volumes and
an increase in prices of both the subject imports and the domestic like
product. Similarly, improvements in the domestic industry's condition during
an investigation can be related to the pendency of the investigation.
The provision also is intended to make clear that, when the
Commission finds evidence on the record of a significant change in data
concerning the imports or their effects subsequent to the filing of the
petition or the imposition of provisional duties, the Commission may presume
that such change is related to the pendency of the investigation. In the
absence of sufficient evidence rebutting that presumption and establishing
that such change is related to factors other than the pendency of the
investigation, the Commission may reduce the weight to be accorded to the
affected data. To the extent that the decision of the Court of International
Trade in Chr. Bjelland Seafood/A/S v. United States, slip op. 92-196 (Ct.
Int'l Trade Oct. 23, 1992), could be interpreted as requiring the Commission
to demonstrate that the change is not related to other factors, it is
disapproved.
f. Threat of Material Injury
Section 222(c) of the bill amends section 771(7)(F) of the Act
regarding the basis for a threat determination and the list of statutory
factors considered in threat of material injury determinations. No
substantive change in Commission threat analysis is required.
The bill makes conforming changes to section 771(7)(F)(ii) of the
Act, regarding the basis for a determination of threat of material injury, to
track more closely the language contained in Articles 3.7 and 15.7 of the
Agreements requiring that further dumped or subsidized imports must be
"imminent" and that "material injury would occur" absent relief. This new
language is fully consistent with the Commission's practice in making threat
determinations, the existing statutory language which requires that threat
determinations be based on "evidence that the threat of material injury is
real and that actual injury is imminent," and judicial precedent interpreting
the statute.
Section 222(c) of the bill also amends the list of specific
factors in section 771(7)(F)(i) of the Act. Amended section 771(7)(F)(i)
generally adopts the language of the Agreements for those factors included in
both Agreements and the existing law. For example, the Agreements require
consideration of "inventories of the product being investigated." Existing
U.S. law requires consideration of "any substantial increase in inventories of
the merchandise in the United States." Amended section 771(7)(F) tracks the
more general reference to inventories, making clear that the Commission will
consider inventories of the subject merchandise wherever they are located.
Amended section 771(7)(F) retains factors currently specified in
the statute but not listed in the Agreements such as factors I, VII, VIII, IX,
and X involving consideration of export subsidies, product shifting, raw and
processed agricultural products, actual and potential negative effects on
existing development and production efforts, and any other demonstrable
adverse trends. The consideration of such additional factors is fully
consistent with Articles 3.7 and 15.7 of the Antidumping and Subsidies
Agreements which provide non-exhaustive lists of factors to consider in threat
determinations.
Minor changes are made to clarify factors VIII and VII in the
existing Act. Factor VIII is redesignated as factor VI, which clarifies that
the Commission should consider product-shifting in the foreign country as a
general matter, rather than limiting its inquiry to a specific type of product
shifting. Factor VII is redesignated as factor IX, which conforms to the
general rule for imposition of antidumping and countervailing duties that the
threat of material injury be "by reason of" imports of the dumped or
subsidized merchandise.
A threat of material injury determination is subject to the same
evidentiary requirements and judicial standard of review as a present material
injury determination. Because of the predictive nature of a threat
determination, and to avoid speculation and conjecture, the Commission will
continue using special care in making such determinations as provided in the
Agreements.
g. Negligible Imports
The Agreements require termination of investigations if the
investigating authority determines that the volume of dumped or subsidized
imports is negligible. Under current law, the Commission may decline to
cumulate imports that "are negligible and have no discernible impact on the
domestic industry." Negligible imports, however, are subject to injury
determinations. Existing law defines negligible imports by reference to a
number of qualitative factors the Commission must consider. In comparison,
Article 5.8 of the Antidumping Agreement uses a quantitative approach.
To implement Article 5.8, section 222(d) of the bill repeals
section 771(7)(C)(v) (which deals with cumulative analysis), adds section
771(24), and section 212(b) of the bill makes conforming amendments to
sections 703(a), 705(b), 733(a), and 735(b). New section 771(24) defines
negligible imports by incorporating the quantitative standards in Article 5.8.
Imports from the country subject to investigation are negligible if they
account for less than three percent of the volume of all such merchandise
imported into the United States in the most recent 12-month period preceding
the filing of the petition (or, in the case of a self-initiated investigation,
the initiation of the investigation) for which data are available. The
comparison of subject imports to total imports contrasts with current
practice, under which the Commission evaluates the U.S. market share held by
each country's imports in determining negligibility. Although the "three
percent" definition of negligible imports appears only in the Antidumping
Agreement, the definition of negligible imports in new section 771(24) will be
applicable to both antidumping and countervailing duty investigations.
In threat of material injury analyses, the Commission will examine
"actual" as well as "potential" import volumes. Import volumes at the
conclusion of the 12-month period examined for purposes of considering
negligibility may be below the negligibility threshold, but increasing at a
rate that indicates they are likely to imminently exceed that threshold during
the period the Commission examines in conducting its threat analysis. In such
circumstances, the Commission will not make a material injury determination
concerning such imports because they are currently negligible, but it will
consider the imports for purposes of a threat determination.
There are two exceptions to the general "three percent" rule for
negligibility. The first, which appears in new section 771(24)(A)(ii),
derives directly from the provision in Article 5.8 of the Antidumping
Agreement which states that imports will not be deemed negligible when
countries, which individually account for less than three percent of total
imports, collectively account for more than seven percent of total imports.
Under the bill, the Commission is to aggregate imports from countries that
individually account for less than three percent of total imports to determine
whether the seven percent figure is satisfied. The Commission may aggregate
only those countries as to which investigations were simultaneously filed (or
self-initiated) and which are not subject to the exceptions to cumulation.
The second exception implements Article 27.9 of the Subsidies
Agreement and applies only to countervailing duty investigations. New section
771(24)(B) establishes the negligibility thresholds for certain developing
countries at four percent (rather than three percent) for individual
countries, and at nine percent (rather than seven percent) for aggregated
countries. The designation of developing countries is described in the
portion of this Statement on the Subsidies Agreement.
The Commission will continue its current practice of determining
negligibility on the basis of each like product that it designates in an
antidumping or countervailing duty investigation. To make such a
determination, the Commission will need information concerning the volume of
total imports in addition to the volume of imports from the country(ies)
subject to investigation. The Commission may not have access to either
complete questionnaire data or official import statistics conforming exactly
to the Commission's like product(s) designations, particularly in preliminary
investigations. Therefore, new section 771(24)(C) permits the Commission to
make reasonable estimates on the basis of available statistics. For example,
if available U.S. government import statistics concern a basket tariff
provision that is broader than the like product designated by the Commission,
the Commission may reasonably estimate a figure from the data available for
the total imports corresponding to the like product.
New section 771(24)(D) addresses negligibility in regional
industry investigations. If the Commission determines that there is a
regional industry, it will determine negligibility by reference to the volume
of imports shipped into the region, instead of the volume of imports shipped
into the United States as a whole.
Amended sections 703(a), 705(b)(1), 733(a), and 735(b)(1) require
termination of the investigation if the Commission determines that imports are
negligible. In contrast to current practice, the Commission will not make
material injury or threat determinations when it determines that imports are
negligible.
Under amended sections 703(a) and 733(a), the Commission in
preliminary investigations will determine whether there is a reasonable
indication that imports are not negligible. The Commission's standard
regarding negligible imports in preliminary investigations shall be the same
as its standard for material injury determinations in these investigations, as
set forth in American Lamb Co. v. United States, 785 F.2d 994 (Fed. Cir.
1986). The amendments, however, are not intended to limit the Commission's
ability to use reasonable estimates in calculating whether import volumes are
negligible. The amendments are, however, intended to preclude termination
based on negligibility in a preliminary investigation where, for example: (1)
the Commission is uncertain regarding appropriate like product designations
and corresponding import volumes are not negligible with respect to one of the
arguably appropriate designations; or (2) imports are extremely close to the
relevant quantitative thresholds and there is a reasonable indication that
data obtained in a final investigation will establish that imports exceed the
quantitative thresholds.
2. Definition of Domestic Industry
a. General Rule
The definition of domestic industry is important to the
Commission's injury analysis and Commerce's initiation determination. With
the exception of conforming changes in terminology and the elimination of a
special provision for wine (which does not apply to petitions filed after
September 30, 1986), section 222(a) of the bill does not change the basic
definition of domestic industry in section 771(4)(A).
With respect to imports of dumped or subsidized processed
agricultural products, domestic growers and interim processors of agricultural
commodities might be damaged by imports of the processed products, even though
the domestic processors themselves may not be adversely affected. The Trade
Representative will, in consultation with appropriate agencies, review
remedies permitted to growers and interim processors of agricultural products
under the WTO, and, if appropriate, propose legislation to make available to
growers and interim processors remedies for dumped and subsidized imports of
processed products.
b. Related Parties
In appropriate circumstances, Commerce and the Commission may
exclude a domestic producer of a like product from the industry where the
producer is itself related to exporters or importers, or where the producer is
itself an importer of the subject merchandise. Section 222(a) of the bill
amends section 771(4)(B) of the Act to implement the Agreements' definition of
a "related" domestic producer. The new definition focuses on control between
a domestic producer and an exporter or importer, whether the control is
direct, indirect, or through a third party.
Control is defined as the ability of one party to legally or
operationally exercise restraint or direction over another party. Although
there is no precise statutory definition of the term importer, Commerce and
the Commission will apply a sufficiently broad definition to encompass
domestic producers who are not formally importers of record.
This definition of related parties is consistent with current
Commission practice of considering the following factors as evidence of a
relationship: (1) common corporate ownership between an importer or exporter
and the domestic producer; (2) a special relationship between an importer and
a domestic producer who is a purchaser, although not an importer of record, of
the subject imports; or (3) control of a purchaser of large volumes of the
subject imports by a domestic producer.
The Administration does not expect that the amendments to section
771(4)(B) will cause a significant change in practice. Both Commerce and the
Commission will have discretion in applying the related party provision to
determine whether a producer is related and whether appropriate circumstances
exist for excluding such a related producer from the domestic industry.
In this regard, Commerce and the Commission utilize section
771(4)(B) for different purposes: Commerce to eliminate any conflicts of
interest that may distort its consideration of the level of industry support
for an antidumping or countervailing duty petition, and the Commission to
reduce any distortion in industry data caused by the inclusion in the domestic
industry of a related producer who is being shielded from the effects of the
subject imports. For this reason, each agency will have discretion to apply
this provision to accomplish these different purposes, even where this may
lead to somewhat different results in individual cases.
Section 212 of the bill amends sections 702(c) and 732(c) of the
Act to provide that, as a general rule, Commerce should not include as members
of the domestic industry those domestic producers who oppose the petition, but
are related to exporters, in determining the level of support within the
domestic industry for the petition, unless such producers demonstrate that
their interests as domestic producers would be adversely affected by the
imposition of an order.
Amended sections 702(c)(4)(B)(ii) and 732(c)(4)(B)(ii) also
provide that, as under current practice, Commerce will not apply a bright line
test to determine whether a producer who is an importer of the subject
merchandise or who is related to an importer of the subject merchandise should
be excluded from the domestic industry. Instead, it will look to relevant
factors, such as percentage of ownership or volume of imports. For example,
the exclusion of a company that imports a small amount of subject merchandise,
by comparison with its total production, will depend on whether that company
and petitioners have a common stake in the investigation. See Citrosuco
Paulista, S.A. v. United States, 704 F. Supp. 1075, 1085 (Ct. Int'l Trade
1988).
c. Special Rules for Regional Industry Investigations
The Agreements continue to provide for the imposition of
antidumping and countervailing duties where a regional industry, as opposed to
the national industry, is injured or threatened with injury by dumped or
subsidized imports. The Agreements do not alter existing criteria regarding
the identification of a regional industry, and section 218 of the bill amends
the definition of regional industry in section 771(4)(C) only to make
conforming changes in terminology. Section 218 of the bill does amend
sections 704 and 734 of the Act to implement the requirements of the
Agreements regarding the assessment of duties in regional industry
investigations.
(1) Suspension Agreements in Regional Industry
Investigations
If the Commission determines that a regional industry
exists, new sections 704(l) and 734(m) require Commerce to provide exporters
to that region an opportunity to enter into a suspension agreement, but only
if they account for substantially all imports of the subject merchandise into
the region. This caveat is not set forth in the Agreements, but rather is
derived from the requirements of the existing law regarding suspension
agreements in general.
Regional suspension agreements are subject to all of the
requirements imposed under amended sections 704 and 734 for suspension
agreements in general with one exception -- investigations in which the
Commission does not find a regional industry until its final determination.
In that case, exporters to the region may enter into an agreement within sixty
days after an antidumping or countervailing duty order has been issued. If
Commerce accepts a suspension agreement, it will rescind the outstanding
antidumping or countervailing duty order, refund any cash deposits, release
any bond or other security deposited, and instruct the Customs Service to
disregard the order and liquidate all entries of the subject merchandise made
while the order was outstanding.
(2) Assessment of Duties in Regional Industry
Investigations
Section 218 of the bill amends sections 706(c) and 736(d) to
provide Commerce with the authority in regional industry investigations to
limit the assessment of duties to those exporters and/or producers that sold
the subject merchandise for export to the region during the period of
investigation. If the Commission finds injury to a regional industry,
Commerce will, to the maximum extent possible, direct that the assessment of
duties be limited to merchandise of the specific exporters or producers that
exported dumped or subsidized merchandise for sale in the region during the
period of investigation. These provisions exclude from the order, to the
"maximum extent possible," those exporters or producers that did not export
for sale in the region during the period of investigation.
New sections 706(c) and 736(d) also incorporate an exception
for new shippers. If Commerce finds that, subsequent to the issuance of an
antidumping or countervailing duty order in a regional industry case, an
exporter or producer, who had not exported for sale in the region during the
original period of investigation, begins to export subject merchandise for
sale in the region, Commerce will direct that estimated duties be deposited on
the subject merchandise of the new exporter or producer. Commerce may include
merchandise in an order at any time it finds that merchandise from an exporter
or producer not previously included in the order is being sold in the region
in question. Under new section 751(a)(2)(B), the importer or exporter
concerned may request an accelerated administrative review.
(3) Import Concentration In Regional Industry
Investigations
Concentration will be found to exist if the ratio of the
subject imports to consumption is clearly higher in the regional market than
in the rest of the U.S. market and if such imports into the region account for
a substantial proportion of total subject imports entering the United States.
In this regard, there is no "benchmark" proportion of imports that enter the
region relative to imports that enter the United States, either eighty percent
or any other percentage, which is applicable in every case, and below which
the Commission cannot determine that imports are concentrated. Mitsubishi
Materials Corp. v. United States, 820 F. Supp. 608, 614-615 (Ct. Int'l Trade
1993). Rather, concentration should be assessed on a case-by-case basis, and
no "precise mathematical formula [is] reliable in determining the minimum
percentage which constitutes sufficient concentration because cases before the
Commission are likely to involve different factual circumstances." Id.,
(quoting Certain Steel Wire Nails from the Republic of Korea, Inv. No. 731-TA-26 (Final), USITC Pub. 1088 (Aug. 1980) at 11 (citations omitted)).
(4) Definition of Regional Industry
Section 222(a)(2) adds a new definition at 771(4)(c) for
regional industry. As under current practice, a regional industry means the
domestic producers within the region concerned and the Commission's regional
industry analysis will be limited to consideration of the production
facilities within a region.
3. Initiation and Subsequent Investigation
a. Petition Requirements
Current Commerce regulations (19 CFR 353.12 and 19 CFR 355.12) set
forth the information which petitions must contain. The Administration
intends that Commerce will amend its regulations as necessary to implement the
requirements of Article 5.2 of the Antidumping Agreement and Article 11.2 of
the Subsidies Agreement that antidumping and countervailing duty petitions
contain the following information: (1) the identity of the petitioner; (2) the
identity of all known domestic producers of the domestic like product; (3) the
volume and value of the domestic like product produced by the petitioner and
each domestic producer identified; (4) a description of the merchandise to be
investigated; (5) the name of each country in which the merchandise originates
or from which the merchandise is exported; (6) the identity of each known
exporter, foreign producer, and importer of the merchandise; and (7)
information relating to injury. Antidumping petitions must also include: (1)
the export price or constructed export price of the merchandise; and (2) the
normal value of the merchandise. Countervailing duty petitions must also
include information concerning the nature and amount of any subsidy provided
with respect to the merchandise.
Sections 211 and 212 of the bill amend sections 702 and 732 to
reflect some of the Agreements' other requirements for antidumping and
countervailing duty petitions. New sections 702(b)(4) and 732(b)(3) specify
the actions Commerce and the Commission will take to avoid publicizing the
existence of a petition before the initiation of an investigation. Commerce
will deliver a copy of the petition to a representative of the government
involved, or, in the case of a separate customs territory, to an official
representative of that territory. Commerce and the Commission will not issue
press releases and Commerce will not, generally, accept communications
regarding the petition prior to making its initiation decision. In the case of
countervailing duty petitions involving WTO member countries, however,
Commerce will afford the government of that WTO member an opportunity for
consultations with respect to the petition. Consistent with longstanding
practice, neither Commerce nor the Commission will disclose any information
regarding a draft petition provided to the agencies prior to the formal filing
of a petition.
b. Evaluation of Petition
New sections 702(c)(1)(A)(i) and 732(c)(1)(A)(i) reflect the
requirements of the Agreements that Commerce examine the accuracy and adequacy
of the evidence provided in a petition to determine whether the evidence is
sufficient to justify initiation of an investigation. This amendment largely
codifies existing Commerce practice, and the Administration believes that the
amendment is consistent with the standards articulated in the legislative
history of the Trade Agreements Act of 1979. See S. Rep. No. 249, 96th Cong.,
1st Sess. 47, 63 (1979); H.R. Rep. No. 317, 96th Cong., 1st Sess. 51, 59-60
(1979).
c. Industry Support for a Petition
Section 212(a) of the bill amends sections 702(c) and 732(c) to
implement the Agreements' requirements that Commerce determine, prior to the
initiation of an investigation, that a minimum percentage of the domestic
industry supports an antidumping or countervailing duty petition. In
implementing these requirements, the Administration has sought to minimize the
burden on U.S. industry and to streamline the administrative process in a
manner consistent with the Agreements. For example, the question of industry
support will be resolved conclusively at the outset of a proceeding, thereby
eliminating the burden on petitioners under current law of potentially
rearguing this issue after initiation.
New sections 702(c)(1)(A)(ii) and 732(c)(1)(A)(ii) implement the
requirement that Commerce determine that a petition is supported by the
domestic industry before initiating an investigation. A petition is filed "by
or on behalf of the industry" if: (1) domestic producers or workers who
support the petition account for more than fifty percent of the production of
that product produced by those members of the domestic industry expressing
support for or opposition to the petition; and (2) those domestic producers or
workers expressing support account for at least twenty-five percent of total
domestic production of the domestic like product. Commerce normally will
determine the existence of industry support based on the volume or value of
production.
Under new sections 702(c)(4)(D) and 732(c)(4)(D), if a petition
provides sufficient evidence that domestic producers or workers accounting for
more than fifty percent of total domestic production of the domestic like
product expressly support the petition, Commerce will determine, on the basis
of evidence contained in the petition, that the petition is filed "by or on
behalf of the domestic industry." If Commerce determines that the other
requirements for a petition are satisfied, Commerce will initiate an
investigation.
If the requisite support is not established on the face of the
petition, Commerce will poll or otherwise determine whether the industry
supports the petition. In appropriate circumstances, Commerce may use
statistically valid samples to determine whether the required support exists.
In conducting any required sampling, a primary source of information for
Commerce will be information contained in the petition and placed on the
record by domestic interested parties.
New sections 702(c)(4)(A) and 732(c)(4)(A) recognize that industry
support for a petition may be expressed by either management or workers. The
Administration intends that labor have equal voice with management in
supporting or opposing the initiation of an investigation. Commerce's
implementing regulations will make clear that in considering the views of
labor, Commerce will count labor support or opposition as being equal to the
production of the domestic like product of the firms in which the workers are
employed. If workers are represented by a union, Commerce will count the
production of those firms whose workers are represented by the union as being
for or against the petition in accordance with the workers' position. If the
management of a firm expresses a position in direct opposition to the views of
the workers in that firm, Commerce will treat the production of that firm as
representing neither support for nor opposition to the petition. As under
current practice, the views of workers may be submitted by unions, other
employee organizations, or ad hoc groups of workers.
New sections 702(c)(4)(C) and 732(c)(4)(C) establish a special
rule for determining industry support if the petition is filed on behalf of a
regional industry. In such situations, Commerce will apply the fifty and
twenty-five percent domestic industry support requirements on the basis of
production in the alleged region. Thus, a petitioner need only show that
domestic producers or workers in the relevant region, as opposed to the entire
United States, support the petition.
The Administration expects to initiate most cases within twenty
days of the filing of a petition, as required under existing law. New
sections 702(c)(1)(B) and 732(c)(1)(B) provide for an extension of up to
twenty additional days after the filing of a petition in exceptional
circumstances where Commerce cannot establish whether there is the requisite
industry support within twenty days. Such exceptional circumstances may arise
where the petition provides insufficient information on support, the domestic
industry is fragmented, or there is a large number of producers in the
industry. The Administration expects that, in the vast majority of cases, the
determination of industry support will be made within the initial twenty-day
period. The ability to extend the initiation determination will avoid
negative initiation determinations simply because Commerce was unable to
gather the required support information in twenty days. The Administration
intends that Commerce will use this extension authority only in exceptional
circumstances where the industry support issue cannot be decided in twenty
days, and the initiation determination will be extended only for the
additional time necessary to make a determination regarding industry support.
Under existing law, the deadlines for making preliminary
determinations run from the date on which a petition is filed. To allow
Commerce and the Commission the same amount of time to make preliminary
determinations as they have under existing law, the statutory deadlines in
subsections (a), (b), and (c) of sections 703 and 733 may be extended if
Commerce extends the deadline for an initiation determination, as described in
the preceding paragraph. Additionally, to provide the Commission with
sufficient time to prepare its opinions in preliminary investigations, section
212(b) of the bill amends sections 703(f) and 733(f) of the Act to permit the
Commission to transmit its opinion to Commerce not more than five working days
after the date on which its preliminary determination is required to be made.
New sections 702(c)(4)(E) and 732(c)(4)(E) change current practice
by precluding reconsideration of support for a petition after the initiation
of an investigation. Arguments regarding industry support should not be made
to either Commerce or the Commission following initiation. Interested parties
will continue to be able to challenge the adequacy of Commerce's industry
support determination under section 516A of the Act, if Commerce dismisses the
petition or initiates an investigation and subsequently issues an antidumping
or countervailing duty order. Because of this change, new sections
702(c)(4)(E) and 732(c)(4)(E) allow the submission of comments and information
on the issue of industry support prior to the initiation of an investigation.
In contrast, under current law, potential respondents in an investigation are
not allowed to comment or present evidence on any issue until the
investigation is initiated. The Administration intends that this pre-initiation right to comment will be limited solely to the issue of industry
support for the petition. Because the investigation would not yet have been
initiated, the statutory definition of interested party in section 771(9) does
not directly apply. Therefore, new sections 702(c)(4)(E) and 732(c)(4)(E)
specify that those who would qualify as an interested party under section
771(9) if an investigation were initiated may comment and supply information
on the issue of industry support.
Section 231(a) of the bill adds section 782(h) authorizing
Commerce to terminate an investigation or revoke an order or suspended
investigation when producers accounting for substantially all of the
production of the domestic like product inform Commerce that they are not
interested in the issuance of or continuation of an order. The provision is
needed to make clear that Commerce's authority to carry out no-interest
terminations/revocations is unaffected by the new provision in section
702(c)(4)(D) and 732(c)(4)(D) prohibiting post-initiation reconsideration of
the adequacy of industry support. If the conditions for termination or
revocation are met, the fact that a petitioner does not agree with the
termination or revocation will not be dispositive. Orders provide relief to
the industry -- if producers accounting for substantially all of the
production want an order revoked, a suspended investigation terminated, or an
order not issued, opposition by producers accounting for minimal production
should not prevent that result.
d. Self-Initiation of Investigations
The Agreements do not alter the ability of Commerce to self-initiate antidumping and countervailing duty investigations under sections
702(a) and 732(a). To implement the requirements of the Agreements, Commerce
intends to publish notice in the Federal Register of a determination to self-initiate an antidumping or countervailing duty investigation, consistent with
current practice.
4. Evidentiary and Procedural Requirements for Antidumping and Countervailing Duty Proceedings
The amendments to implement the new evidentiary and procedural
requirements of the Agreements are included in section 231 of the bill,
creating section 782 which applies to both antidumping and countervailing duty
proceedings.
a. Collection, Acceptance, Rejection, and Sharing of
Information
(1) General Rules
Under new section 782(c)(1), Commerce or the Commission may
modify their respective requests for information if promptly asked to do so by
an interested party, to avoid imposing an unreasonable burden on the party.
Commerce or the Commission will take due account of difficulties experienced
by parties, particularly small companies, in supplying information, and will
provide such assistance as the agencies consider practicable. If Commerce or
the Commission requests an interested party to provide data in a particular
computer medium or language, and the interested party promptly notifies the
requesting agency that it does not maintain its records in such a medium or
language, and demonstrates that providing the information in the requested
manner would result in an unreasonable extra burden, Commerce or the
Commission will not insist on the submission of the data in the requested
medium or language, but will explore alternative methods to obtain the
necessary data in such cases. These might, for example, include the
submission of data in an alternate computer medium or language or, where this
is not practicable, the Administering Authority may consider sampling.
Section 782(c)(1) is intended to alleviate some of the difficulties
encountered by small firms and firms in developing countries, particularly
with regard to the submission of data in computerized form. It is not
intended to exempt small firms from the requirements of the antidumping and
countervailing duty laws.
Section 231(a) of the bill redesignates existing section
776(a) as section 782(b), and continues the requirement that any person
providing factual information to Commerce or the Commission must certify as to
the accuracy and completeness of that information.
New section 782(d) requires Commerce and the Commission to
notify a party submitting deficient information of the deficiency, and to give
the submitter an opportunity to remedy or explain the deficiency. This
requirement is not intended to override the time-limits for completing
investigations or reviews, nor to allow parties to submit continual
clarifications or corrections of information or to submit information that
cannot be evaluated adequately within the applicable deadlines. If subsequent
submissions remain deficient or are not submitted on a timely basis, Commerce
and the Commission may decline to consider all or part of the original and
subsequent submissions. Pursuant to new section 782(f), Commerce and the
Commission will provide, to the extent practicable, a written explanation of
the reasons for not accepting information.
New section 782(e) directs Commerce and the Commission to
consider deficient submissions if the following conditions are met: (1) the
information is submitted within the established deadline; (2) the information
is verifiable to the extent that verification is required; (3) the information
is sufficiently complete to serve as a reliable basis for reaching a
determination; (4) the party has acted to the best of its ability in supplying
the information and meeting the requirements established by the agencies; and
(5) the agencies can use the information without undue difficulties. Commerce
and the Commission may take into account the circumstances of the party,
including (but not limited to) the party's size, its accounting systems, and
computer capabilities, as well as the prior success of the same firm, or other
similar firms, in providing requested information in antidumping and
countervailing duty proceedings. "Computer capabilities" relates to the
ability to provide requested information in an automated format without
incurring an unreasonable extra burden or expense.
(2) Time for Response to Questionnaires
Commerce and the Commission obtain most of their information
in antidumping and countervailing duty proceedings from data provided in
response to questionnaires issued by the agencies to foreign exporters and
producers and U.S. importers, producers, and purchasers.
Article 6.1 of the Antidumping Agreement and Article 12.1.1
of the Subsidies Agreement provide that foreign producers and exporters shall
have at least thirty days to submit a response to questionnaires. Commerce
and the Commission will amend their regulations to provide that:
Exporters and foreign producers will have at
least thirty days to respond to initial
questionnaires in Commerce preliminary
investigations or reviews and initial
questionnaires in Commission final
investigations or reviews;
The day of receipt is one week from the day on which
the initial questionnaire was transmitted unless the
agency has reason to know that the initial
questionnaire was received at an earlier date; and
Upon the request of a person in a foreign country,
Commerce representatives may visit the premises of
that person for the purpose of explaining a
questionnaire, but only if Commerce notifies the
government of that country of the visit and that
government does not object to the visit.
The thirty-day response and one-week mail rules apply only
to initial antidumping or countervailing duty questionnaires, not to
subsequent requests to obtain supplemental information or to remedy
deficiencies identified in responses to initial questionnaires. Although
neither Commerce nor the Commission would be prohibited from allowing thirty
days or more for responses to subsequent requests, in many cases time may not
permit, or the nature of the request may not require, a response period of
thirty days.
Commerce will continue its current practice of granting
extensions of the 30-day deadline for the submission of questionnaire
responses in an investigation or review where practicable, and where an
extension would not delay the completion of an investigation or review or
cause other interested parties difficulties in representing their interests.
(3) Distribution of Petition
Consistent with Article 6.1.3 of the Antidumping Agreement
and Article 12.1.3 of the Subsidies Agreement, the Administration intends for
Commerce to amend its regulations to require that, upon initiating an
investigation, Commerce promptly will provide a public version of the petition
to all known exporters of the subject merchandise, except that, if Commerce
determines that there is a particularly large number of exporters involved, it
may provide the public version to the government of the exporting country or
to a trade association of the exporters, in lieu of providing the public
version to all known exporters. Producers who sell for export to the United
States are considered exporters, even if another person makes export
arrangements.
(4) Sharing of Interested Party Information; Definition of
Interested Party; Public Proprietary Records
Section 231(b) of the bill amends section 777(a)(4) of the
Act to conform to existing practice and to ensure that interested parties
share nonproprietary information. Section 222(g) of the bill also amends the
definition of interested party in section 771(9) by adding: (1) trade
associations of producers, exporters, or importers; and (2) the government of
the exporting country. The latter change reflects the possibility that a
country in which merchandise is produced or manufactured may be different from
the country from which such merchandise is exported.
Article 6.1.2 of the Antidumping Agreement and Article
12.1.2 of the Subsidies Agreement require that evidence presented in writing
by one party shall be made available promptly to other interested parties
participating in the investigation. Commerce and the Commission will specify
in regulations their current practices of maintaining a public record of non-proprietary, non-privileged, and non-confidential information obtained in each
antidumping and countervailing duty proceeding.
(5) Unwarranted Claim for Proprietary Treatment
Section 226(b) of the bill amends section 777(b) to address
situations in which Commerce or the Commission returns information because the
person submitting the information has made an unwarranted claim for
proprietary treatment. Consistent with current practice, the new language
provides the person with an opportunity to submit other information for which
a claim of proprietary treatment is warranted or for which the person is
willing to accord nonproprietary status. However, to ensure that parties do
not use this provision as a vehicle for extending deadlines for the submission
of information, the provision makes clear that, absent an extension by the
agency, any such submissions of other information must be within the time
period established for the initial submission.
(6) Verification of Information
Section 231(a) of the bill moves the general requirement
that Commerce verify information from section 776(b) of the Act to new section
782(i). To the extent necessary, Commerce will amend its regulations to
implement the specific requirements in Article 6.7 and Annex I of the
Antidumping Agreement and Article 12.6 of the Subsidies Agreement concerning
the conduct of verifications. The regulations will provide that Commerce will
verify information in a foreign country only after: (1) obtaining agreement
from the persons whose information will be examined; and (2) notifying the
foreign government concerned of the details of the verification. Consistent
with current practice, if the foreign government concerned or the person whose
information is to be verified objects to verification, Commerce will not
conduct the verification and may disregard the submitted information in favor
of the facts available, pursuant to amended section 776(a)(4).
The regulations also should provide that Commerce shall give
sufficient notice to persons involved before verification is conducted. This
notice should identify any member of the verification team who is not an
officer or employee of the U.S. Government. Such non-government members will
be subject to an administrative protective order to ensure the confidentiality
of proprietary information obtained or examined during verification.
As under existing practice, where practicable, verification
will be conducted after receipt of all questionnaire responses, and Commerce
should provide advance notice as to the general nature of the information
which will be requested. These regulations are not intended to preclude
Commerce from requesting further information during a verification.
The regulations also should require Commerce, consistent
with its current practice, to report the methods, procedures, and results of
the verification prior to making its final determination in an investigation
and its preliminary determination in an administrative review.
b. Determinations on the Basis of the Facts Available The current statute mandates use of the best information available
(commonly referred to as BIA) if a person refuses or is unable to produce
information in a timely manner or in the form required. Although the use of
BIA by Commerce has been controversial at times, it is an essential
investigative tool in antidumping and countervailing duty proceedings.
Commerce's potential use of BIA provides the only incentive to foreign
exporters and producers to respond to Commerce questionnaires. Although the
Commission has the power to subpoena information, the requirement to use BIA
is important because issuing and enforcing subpoenas often is not a practical
use of the Commission's investigative resources.
The Agreements largely track current law, but use different
terminology. If an interested party does not provide necessary information or
significantly impedes an investigation, authorities may make determinations on
the basis of the "facts available." Annex II to the Antidumping Agreement
elaborates on the use of the facts available. Section 231(c) of the bill
amends section 776 to implement these provisions in the Agreement.
Additionally, the Administration intends that Commerce will publish
regulations incorporating the provisions of paragraph 1 of Annex II. Such
regulations will provide that, at the outset of an investigation or
administrative review, Commerce and the Commission will give notice to each
interested party from whom the agency requests information concerning: (1) the
information the party will be required to submit; (2) the form and manner in
which the party must submit the information (for both electronic and written
submissions); (3) the deadlines for submitting information; and (4) the
potential use of facts available if a party does not submit requested
information in the requested form and manner by the date specified. These
requirements are consistent with the agencies' current practice.
New section 776(a) requires Commerce and the Commission to make
determinations on the basis of the facts available where requested information
is missing from the record or cannot be used because, for example, it has not
been provided, it was provided late, or Commerce could not verify the
information. Section 776(a) makes it possible for Commerce and the Commission
to make their determinations within the applicable deadlines if relevant
information is missing from the record. In such cases, Commerce and the
Commission must make their determinations based on all evidence of record,
weighing the record evidence to determine that which is most probative of the
issue under consideration. The agencies will be required, consistent with new
section 782(e), to consider information requested from interested parties
that: (1) is on the record; (2) was filed within the applicable deadlines; and
(3) can be verified.
Commerce and the Commission use the facts available in different
ways. In general, the Commission makes determinations by weighing all of the
available evidence regarding a multiplicity of factors relating to the
domestic industry as a whole and by drawing reasonable inferences from the
evidence it finds most persuasive. Therefore, new section 776(a) generally
will require the Commission to reach a determination by making such inferences
as the evidence of record supports even if that evidence is less than
complete. In contrast, Commerce generally makes determinations regarding
specific companies, based primarily on information obtained directly from
those companies. Section 776(a) generally will require Commerce to reach a
determination by filling gaps in the record due to deficient submissions or
other causes.
Therefore, neither Commerce nor the Commission must prove that the
facts available are the best alternative information. Rather, the facts
available are information or inferences which are reasonable to use under the
circumstances. As noted above, the Commission balances all record evidence
and draws reasonable inferences in reaching its determinations. It is not
possible for the Commission to demonstrate that its inferences are the same as
those it would have made if it had perfect information. Similarly, where
Commerce uses the facts available to fill gaps in the record, proving that the
facts selected are the best alternative facts would require that the facts
available be compared with the missing information, which obviously cannot be
done.
In conformity with the Antidumping Agreement and current practice,
new section 776(b) permits Commerce and the Commission to draw an adverse
inference where a party has not cooperated in a proceeding. A party is
uncooperative if it has not acted to the best of its ability to comply with
requests for necessary information. Where a party has not cooperated,
Commerce and the Commission may employ adverse inferences about the missing
information to ensure that the party does not obtain a more favorable result
by failing to cooperate than if it had cooperated fully. In employing adverse
inferences, one factor the agencies will consider is the extent to which a
party may benefit from its own lack of cooperation. Information used to make
an adverse inference may include such sources as the petition, other
information placed on the record, or determinations in a prior proceeding
regarding the subject merchandise.
Consistent with Annex II, paragraph VII of the Agreement, section
776(c) requires Commerce and the Commission to corroborate secondary
information where practicable using independent sources. Secondary
information is information derived from the petition that gave rise to the
investigation or review, the final determination concerning the subject
merchandise, or any previous review under section 751 concerning the subject
merchandise. Secondary information may not be entirely reliable because, for
example, as in the case of the petition, it is based on unverified
allegations, or as in the case of information from prior section 751(a)
reviews, it concerns a different time frame than the one at issue.
Independent sources may include, for example, published price lists, official
import statistics and customs data, and information obtained from interested
parties during the particular investigation or review.
Corroborate means that the agencies will satisfy themselves that
the secondary information to be used has probative value. The Administration
does not intend that the corroboration requirement will apply when information
from a prior determination is being used to establish the facts concerning the
period that was the subject of that prior determination. In such cases, the
information is not being used "rather than" facts obtained in the course of
the current investigation or review. This situation may arise, for example,
when a prior determination is used for evaluating the likelihood of future
injury if an order is revoked or an agreement terminated in a changed
circumstances review under section 751(b) or a five-year review under section
751(c).
In the application of this provision, it is recognized that
Commerce more frequently relies on secondary information than does the
Commission. The fact that corroboration may not be practicable in a given
circumstance will not prevent the agencies from applying an adverse inference
under subsection (b).
c. Public Comment on Information
(1) General Rule
The Agreements provide that all interested parties be
informed of the essential facts under consideration that form the basis for a
determination in sufficient time for the parties to the proceeding to defend
their interests. Section 231 of the bill implements this requirement by
repealing section 777(e) and adding section 782(g) in its place.
New section 782(g) restates the existing right of interested
parties to comment on information submitted to the agencies, but requires
that the record be closed prior to the time the agency's determination is
made, and that the parties to the proceeding be permitted a final opportunity
to comment on all information obtained by the agency upon which the parties
have not yet had an opportunity to comment. All final comments properly filed
by the date reasonably specified by the agency will be accepted for the
record, but the agencies will not obtain or accept for the record new factual
information, argument, or comment after this date.
The disclosure requirement in new section 782(g) applies to
both public information and business proprietary information. Therefore, the
agencies will make the confidential record available to those parties subject
to an administrative protective order. Consistent with new section 782(g),
such disclosure shall take place before the agency's determination is made,
with an opportunity for the parties to comment on any new information that had
not previously been subject to comment.
(2) Opportunity for Comment by Consumers and Industrial Users
Section 227 of the bill adds section 777(h) to the Act which
specifies that both Commerce and the Commission will provide industrial users
of the subject merchandise and representative consumer organizations, if the
merchandise is commonly sold at the retail level, with an opportunity to
provide relevant information. This is not a change in practice, because there
are no constraints on the ability of persons to file comments under current
law. Such comments must concern matters relevant to a particular
determination of dumping, subsidization, or injury. It should be noted that
subsection (h) does not per se confer interested party status on industrial
users and consumer organizations. Unless they otherwise qualify as interested
parties under section 771(9), such entities would not have the rights of
interested parties, including access to proprietary information under
administrative protective order, and standing to challenge agency
determinations under section 516A of the Tariff Act of 1930.
d. Sampling, All Others Rate, and Voluntary Respondents
Under existing practice, Commerce attempts to calculate individual
dumping margins for all producers and exporters of merchandise who are subject
to an antidumping investigation or for whom an administrative review is
requested. As a practical matter, however, Commerce may not be able to
examine all exporters and producers, for example, when there is a large number
of exporters and producers. In such situations, Commerce either limits its
examination to those firms accounting for the largest volume of exports to the
United States or employs sampling techniques. Commerce will calculate
individual dumping margins for those firms selected for examination and an
"all others" rate to be applied to those firms not selected for examination.
During the Uruguay Round negotiations, certain countries sought a
requirement that national authorities examine all firms producing or exporting
a product subject to an antidumping investigation. This requirement would
have made it virtually impossible for authorities to impose antidumping duties
in a WTO-consistent manner in many cases. As negotiated, Articles 6.10 and
9.4 of the Antidumping Agreement largely reflect existing U.S. law and
practice. Nevertheless, certain statutory amendments are necessary to conform
the statute to the Agreement.
(1) Sampling
Section 229 of the bill amends section 777A, which currently
authorizes Commerce to use sampling techniques, by adding a new subsection
(c), which codifies the current practice of determining, where practicable, an
individual weighted-average dumping margin for each known exporter or producer
of subject merchandise. This amendment is not intended to change Commerce's
normal practice of calculating an individual dumping margin only for the
party, whether technically an exporter or producer, that makes the first sale
which is for exportation to the United States.
New section 777A(c)(2) provides that where there are large
numbers of exporters, producers, importers, or products involved in an
investigation, Commerce may limit its examination to: (1) a statistically
valid sample of exporters, producers or types of products; or (2) exporters
and producers accounting for the largest volume of the subject merchandise
from the exporting country that can reasonably be examined. Consistent with
the Antidumping Agreement, new section 777A(b) recognizes that the authority
to select samples rests exclusively with Commerce, but, to the greatest extent
possible, Commerce will consult with exporters and producers regarding the
method to be used.
The phrase "statistically valid sample" is intended merely
to conform the language of the statute with that of the Antidumping Agreement,
and is not a substantive change from the current phrase "generally recognized
sampling techniques." Commerce will employ a sampling methodology designed to
give representative results based on the facts known at the time the sampling
method is designed. This important qualification recognizes that Commerce may
not have the type of information needed to select the most representative
sample at the early stages of an investigation or review when it must decide
on a sampling technique.
(2) All Others Rate
Recognizing the impracticality of examining all producers
and exporters in all cases, Article 9.4 of the Antidumping Agreement permits
the use of an all others rate to be applied to non-investigated firms. To
implement the Agreement, section 219(b) of the bill adds section 735(c)(5)(A)
to the Act which provides that the all others rate will be equal to the
weighted-average of individual dumping margins calculated for those exporters
and producers that are individually investigated, exclusive of any zero and de
minimis margins, and any margins determined entirely on the basis of the facts
available. Currently, in determining the all others rate, Commerce includes
margins determined on the basis of the facts available.
Section 219(b) of the bill adds new section 735(c)(5)(B)
which provides an exception to the general rule if the dumping margins for all
of the exporters and producers that are individually investigated are
determined entirely on the basis of the facts available or are zero or de
minimis. In such situations, Commerce may use any reasonable method to
calculate the all others rate. The expected method in such cases will be to
weight-average the zero and de minimis margins and margins determined pursuant
to the facts available, provided that volume data is available. However, if
this method is not feasible, or if it results in an average that would not be
reasonably reflective of potential dumping margins for non-investigated
exporters or producers, Commerce may use other reasonable methods.
(3) Treatment of Voluntary Respondents
Section 231 of the bill adds section 782(a) to the Act which
provides that, in cases where Commerce has limited its examination to selected
exporters and producers, it nevertheless will calculate an individual dumping
margin for any exporter or producer not selected for examination that provides
the necessary information on a timely basis and in the form required.
Although Commerce, consistent with Article 6.10.2 of the Agreement, will not
discourage voluntary responses and will endeavor to investigate all firms that
voluntarily provide timely responses in the form required, in certain cases
(including cases involving the same product from multiple countries) where the
number of exporters or producers is particularly high, Commerce may decline to
analyze voluntary responses because it would be unduly burdensome and would
preclude the completion of timely investigations or reviews. Section 782(a)
generally codifies existing practice.
5. Provisional Measures
Section 215 of the bill amends existing sections 703(d) and 733(d) of
the Act to reflect the provisions in the Agreements concerning the imposition
of provisional measures, including the prohibition on imposing provisional
measures less than sixty days after the initiation of an investigation. The
amendments do not require any change in existing practice.
Amended sections 703(d)(1) and 733(d)(2) implement the Agreements'
provisions limiting the duration of provisional measures to four months. In
antidumping investigations, Commerce may extend the period to six months if
exporters representing a significant portion of exports of the subject
merchandise so request. The amendments do not affect the ability of the
United States to impose duties retroactively where critical circumstances
exist.
6. Suspension Agreements
Although existing law provides for the suspension of antidumping and
countervailing duty investigations pursuant to the conclusion of suspension
agreements, early experience with such agreements demonstrated that they were
not always effective in providing relief from unfairly traded imports.
Therefore, longstanding Commerce policy has been to treat such agreements as
the exception rather than the rule.
To implement new procedural requirements in the Agreements, section 216
of the bill amends sections 704(d) and 734(d) to provide that, if a suspension
agreement is rejected, Commerce will: (1) upon request and where practicable,
provide the reasons for rejecting the agreement; and (2) where possible,
provide exporters with the opportunity to submit comments thereon.
7. Imposition and Collection of Antidumping and Countervailing Duties
a. Time Limits For Completion of Reviews and Liquidation of
Entries
Article 9.3.1 of the Antidumping Agreement establishes deadlines
for administrative reviews and the subsequent liquidation of entries. The
Subsidies Agreement does not contain a comparable provision, but section
220(a) of the bill applies these deadlines to administrative reviews of both
antidumping and countervailing duty orders to promote uniformity in
administrative procedures.
New section 751(a)(3)(A) establishes the time limits for
completion of preliminary and final results of administrative reviews in which
final duty liability is established. Consistent with existing Commerce
regulations and Article 9.3.1 of the Antidumping Agreement, reviews normally
will be completed within 365 days of initiation. This period may be extended
up to a total duration of 545 days if it is not practicable to complete the
review within the normal deadline.
Consistent with Article 9.3.1., new section 751(a)(3)(B) requires
liquidation of entries following the completion of an administrative review,
to the greatest extent practicable, within ninety days after the issuance of
liquidation instructions to Customs. If liquidation does not occur within
that period, the Secretary of the Treasury is required, upon request, to
provide an explanation for the delay. Footnote 20 of the Antidumping
Agreement recognizes that it may not be possible to meet this deadline if the
final determination of duty liability is subject to litigation. Therefore,
new section 751(a)(3)(C) provides that the 90-day period will not begin
running until the litigation is completed and Commerce has issued liquidation
instructions to the Customs Service. Section 220(c) makes conforming changes
to section 504 of the Tariff Act of 1930, a provision which establishes
general rules regarding the liquidation of customs entries.
The Administration is aware of prior complaints regarding delays
in the completion of administrative reviews and the liquidation of entries,
and intends to do its utmost to ensure that Commerce and Customs are able to
comply with the deadlines established by the bill. At the same time, however,
it is not the Administration's intent to sacrifice accuracy of results and
fairness to the parties involved for the sake of speed.
b. New Shipper Reviews
Under existing practice, antidumping duty orders are applied on a country-wide basis. Thus, except for merchandise from firms that Commerce has determined to be selling at non-dumped prices, all merchandise from a country covered by an order is subject to potential liability for antidumping duties. This includes merchandise from new shippers. During the negotiations, there was an attempt to exempt new shippers from duty liability by requiring an entirely new antidumping investigation (along with a separate finding of injury) for each new shipper. The United States agreed to a more reasonable proposal, embodied in Article 9.5 of the Antidumping Agreement, to provide new shippers with an expedited review that will establish individual dumping margins for such firms on the basis of their own sales.
Section 220(a) of the bill implements article 9.5 of the Agreement
by amending section 751(a)(2)(B) of the Act which requires Commerce to
initiate accelerated administrative reviews of new shippers if requested. New
shippers are defined as exporters and producers who demonstrate in the request
for a new shipper review that they: (1) did not export the merchandise to the
United States (or in the case of a regional industry, the region concerned)
during the original period of investigation; and (2) are not affiliated with
any exporter or producer who did export the merchandise to the United States
(or the region concerned) during that period, including those not examined
during the investigation. Any exporter or producer making such a request will
be required to provide, with appropriate certifications, a list of the firms
with which it is affiliated, and a statement from each of those firms that
they did not export the merchandise during the period of investigation. Upon
completion of the review, Commerce will issue instructions to Customs for the
final assessment of duties on all entries covered by the review.
New exporters or producers may request an accelerated
administrative review at any time. It would be virtually impossible for
Commerce to comply with the statutory and regulatory deadlines in
investigations and administrative reviews if it had to initiate a separate
accelerated administrative review for each request. Therefore, Commerce will
initiate new shipper reviews only at the end of the month following the six-month anniversary date of the order, or at the end of the month of the annual
anniversary date of the order, whichever is earlier. For example, if the
anniversary month of the order is January, and the exporter or producer
submits a satisfactory request for a review in March, Commerce will commence
the review at the end of July rather than at the end of the following January.
8. Retroactive Application of Antidumping Duties
a. Critical Circumstances
Section 214 of the bill amends sections 703, 705, 733, and 735 of
the Act to incorporate the new provisions of the Antidumping Agreement
relating to critical circumstances determinations and the assessment of
retroactive duties. To preserve the parallel structure in U.S. law,
conforming changes are also made in the countervailing duty provisions.
Under current law, critical circumstances exist if Commerce
determines that:
there have been massive imports of the subject merchandise
over a relatively short period of time (i.e. a surge of
imports) prior to the suspension of liquidation; and
in countervailing duty investigations, the subsidy is
inconsistent with the Agreement, or
in antidumping investigations, there is either a history of
dumping or that the importer knew or should have known that
the exporter was selling the merchandise at less than fair
value.
If Commerce determines that critical circumstances exist, then the Commission
determines whether retroactive duties are necessary to prevent recurrence of
material injury. In making this determination, the Commission is required to
evaluate whether the effectiveness of the order would be materially impaired
if retroactive duties were not imposed. If both agencies make affirmative
determinations in their final investigations, retroactive duties will be
applied for a period ninety days prior to suspension of liquidation.
To conform the current law to the Agreement, no significant change
is required with respect to Commerce's determination in countervailing duty
investigations. For antidumping investigations, however, section 735(a)(3)(A)
is amended to require that Commerce determine whether there is a history of
dumping and material injury by reason of dumped imports in the United States
or elsewhere or whether the importer 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.
With regard to Commission determinations, the legislation
clarifies that the Commission is to determine whether the surge in imports
prior to the suspension of liquidation, rather than the failure to provide
retroactive relief, is likely to seriously undermine the remedial effect of
the order. Consistent with Commission practice and judicial precedent, the
Commission is not required to make a separate material injury determination
regarding the surge in imports. ICC Industries, Inc. v. United States, 632 F.
Supp. 36, 40 (Ct. Int'l Trade 1986).
Sections 214(a)(2)(B) and (b)(2)(B) of the bill amend sections
705(b)(4)(A) and 735(b)(4)(A) to eliminate the existing references to
"recurrence of material injury." This term is used in the changed
circumstances and five-year review provisions and could be misinterpreted to
imply similarities between critical circumstances and those other two
different inquiries. Critical circumstances determinations focus on whether
an order's effectiveness is undermined by increasing shipments prior to the
effective date of the order. Changed circumstances and five-year reviews
focus on likely developments if an order is revoked.
Section 214(a)(2)(b) of the bill also eliminates the reference in
section 705(b)(4)(A) of the Act to "injury which is difficult to repair" to
conform to the new language in the antidumping provision concerning the
Commission determination regarding a surge in imports. This deleted language
is unnecessary and redundant because the Commission is already required to
determine whether, by massively increasing imports prior to the effective date
of relief, the importers have seriously undermined the remedial effect of the
order. If the effectiveness of a remedy is undermined, the underlying injury
would be difficult to repair.
Sections 214(a)(2)(B) and (b)(2)(B) of the bill also amend the
current list of factors in sections 705(b)(4)(A)(iii) and 735(b)(4)(A)(iii)
that the Commission considers in making its final critical circumstances
determination. The new factors track the language of the Agreement, and
essentially are reformulations of many of the factors in the current statute.
The new list is not exclusive. The factors provided in existing statute, even
though not specifically mentioned in the bill, may be relevant in particular
investigations.
b. Time Limits on Retroactive Assessments
Section 215(a)(2) of the bill amends sections 703(e)(2) and
733(e)(2) of the Act to implement the requirement in Article 10.8 of the
Agreement that duties not be assessed pursuant to a finding of critical
circumstances on entries made prior to the initiation of an antidumping duty
investigation. Although this requirement is not reflected in the Subsidies
Agreement, it is consistent with current countervailing duty practice.
9. Duration and Review of Antidumping and Countervailing Duty Orders
a. Changed Circumstances Reviews
Section 220(a) of the bill amends section 751(b) of the Act to
incorporate the provisions of the Agreements relating to changed circumstances
reviews. Section 751(b) currently contains a lengthy list of determinations
and agreements for which a changed circumstances review may be requested. The
bill simplifies this list by dividing it into three categories:
affirmative determinations resulting in an antidumping or
countervailing duty order or an antidumping finding (as pre-1980 orders were termed),
determinations regarding suspension agreements, and
final affirmative determinations resulting from an
investigation continued following the entry into a
suspension agreement.
Amended section 751(b) also applies a new substantive standard,
which is consistent with current Commission practice. In the case of an
antidumping or countervailing duty order or finding or a suspended
investigation, the Commission must determine whether revocation of the order
or finding, or termination of the suspended investigation, is likely to lead
to continuation or recurrence of material injury. In reviewing the
effectiveness of a suspension agreement, the Commission will determine whether
the agreement, in light of the changed circumstances, continues to eliminate
completely the injurious effects of imports of the subject merchandise.
Under amended section 751(b), the party seeking revocation
continues to bear the burden of persuasion with respect to whether there are
changed circumstances sufficient to warrant revocation of an antidumping duty
or countervailing duty order or an antidumping duty finding. The bill imposes
the same burden of persuasion on a party seeking termination of a suspended
investigation or a suspension agreement.
b. Five-Year Reviews
Section 220(a) of the bill adds new Section 751(c) establishing
the procedural and basic substantive rules to be applied by Commerce and the
Commission in conducting five-year reviews (i.e., sunset reviews).
(1) Automatic Reviews
New section 751(c)(1) requires Commerce and the Commission
to conduct a review no later than five years after the issuance of an
antidumping duty order or finding or countervailing duty order, the suspension
of an investigation, an injury determination in a countervailing duty
proceeding under new section 753, or a changed circumstances or prior five-year review, to determine whether revocation of the order, or termination of
the suspended investigation, would be likely to lead to continuation or
recurrence of dumping or countervailable subsidies and injury. Commerce and
the Commission will make their sunset determinations on an order-wide, rather
than a company-specific, basis.
New section 751(c)(1) provides for automatic initiation of
five-year reviews by Commerce. Automatic initiation will avoid placing an
unnecessary burden on the domestic industry and promote efficiency of
administration by: (1) combining into a single action notification to all
parties of the upcoming five-year review; and (2) providing an effective means
of evaluating the level of interest of all affected parties and the need for a
full-fledged review.
(2) Participation in Five-year Reviews
New section 751(c)(2) requires Commerce to publish a notice
in the Federal Register requesting interested parties to submit: (1) a
statement regarding willingness to participate in the review and the likely
effect of revocation or termination; and (2) other information specified by
Commerce and the Commission such as certain key data regarding sales, prices,
imports, and market conditions. Under new section 751(c)(3)(A), if there is
no response from domestic interested parties to the notice of initiation,
Commerce will revoke the order or terminate the suspended investigation within
ninety days of the initiation of the review. Under new section 751(c)(3)(B),
if there is inadequate response to a notice of initiation by foreign and
domestic interested parties, Commerce and the Commission will conduct an
expedited review based on the facts available, and will issue final
determinations within 120 days and 150 days, respectively, of the initiation
of the review. The facts available may include prior agency determinations
involving the subject merchandise as well as information submitted on the
record by parties in response to the notice of initiation. Because Commerce
and the Commission may require different information from different sources to
conduct reviews, the agencies may decide separately whether the responses are
inadequate and whether to issue a determination based on the facts available
without further fact-gathering.
New section 751(c)(3) is intended to eliminate needless
reviews. This section will promote administrative efficiency and ease the
burden on the agencies by eliminating needless reviews while meeting the
requirements of the Agreements. If parties provide no or inadequate
information in response to a notice of initiation, it is reasonable to
conclude that they would not provide adequate information if the agencies
conducted a full-fledged review. However, when there is sufficient
willingness to participate and adequate indication that parties will submit
information requested throughout the proceeding, the agencies will conduct a
full review.
The Administration expects that in many cases some, but not
all, interested parties will respond to the initial request for information.
Where there are such mixed responses, the agencies must decide whether the
responses are adequate to warrant a full-fledged review. The agencies, in
making this decision, will consider the proportion of parties that respond and
their likely share of the market if the order were revoked or the suspended
investigation terminated. Commerce also will consider the effect of the order
or suspension agreement, taking into account the possible impact of the
different dumping margins or net countervailable subsidies for individual
exporters on import volumes. This decision is within the agencies'
discretion, and they will develop guidelines, either through regulation or
practice, for making the decision called for by new section 751(c)(3)(B).
As a practical matter, in five-year reviews conducted by
Commerce regarding the likelihood of continuation or recurrence of
countervailable subsidies, an adequate response to an initial request for
information must include a response from the foreign government in question.
The participation of the foreign government is indispensable, because only
that government is in a position to explain its actions and intentions with
respect to present and future subsidization. Therefore, the Administration
intends that if the relevant foreign government does not respond, Commerce
will proceed in accordance with section 751(c)(3)(B), and will rely on
evidence provided by the domestic industry.
Section 220(b) amends sections 516A(a)(1) and 516A(b)(1)(B)
to apply the arbitrary and capricious standard of review in judicial or
binational panel review of final determinations by Commerce and the Commission
under section 751(c)(3). Determinations under section 751(c)(3) will be based
on limited information in the record resulting from no response or inadequate
response to the notice of initiation. Therefore, such determinations should
not be subject to the substantial evidence standard of review. The
substantial evidence standard will apply to final determinations under section
752 which are made on a fully developed record. This is consistent with the
legislative history of the 1979 Act establishing two standards of reviews for
antidumping and countervailing duty final determinations. H.R. Rep. No. 317,
96th Cong., 1st Sess. 180 (1979). The amendment to section 516A(b)(1)(B)
ensures that the same standard of review will apply to reviews in both courts
and binational panels consistent with Article 1904 and Annex 1911 of the North
American Free Trade Agreement.
(3) Timing of Five-year Reviews and Waivers of
Participation
To reduce the burden on all parties involved, new section
751(c)(4) permits foreign interested parties, including foreign governments,
to waive their participation in a Commerce sunset review. If Commerce
receives such a waiver, Commerce will conclude that revocation or termination
would be likely to lead to continuation or recurrence of dumping or
countervailable subsidies with respect to the submitter. The Administration
intends that in a countervailing duty case, where the foreign government
waives its participation in the review, Commerce will conclude that
countervailable subsidies are likely to continue or recur with respect to all
foreign interested parties in that review.
New section 751(c)(5) establishes time limits for the
completion of reviews that have not been completed pursuant to the expedited
procedures of paragraphs (3) or (4) of section 751(c). Normally, Commerce
will make its final sunset determination within 240 days of the initiation of
the review. If Commerce's determination is affirmative, the Commission will
make its final sunset determination within 360 days of the initiation of the
review.
Under new section 751(c)(5)(C), Commerce or the Commission
may declare a five-year proceeding to be extraordinarily complicated if the
issues are large in number or complex, a large number of firms is involved, or
the review involves grouped reviews or a transition order. If a review is
extraordinarily complicated, each agency may extend the time limit for making
its determination by not more than ninety days. If Commerce extends its time
limit, but the Commission does not, the Commission shall make its final
determination within 120 days of Commerce's final affirmative determination.
(4) Grouped Five-year Reviews
New section 751(c)(5)(D) permits the Commission, in
consultation with Commerce, to group five-year reviews together if such
grouping is appropriate and promotes administrative efficiency. The
Commission may consolidate reviews involving antidumping and countervailing
duty orders, findings, suspended investigations, or any combination thereof.
The Commission should consolidate reviews involving the same domestic like
product, and also may consolidate reviews involving related like products or
identical or related producers.
Consolidating reviews will permit the simultaneous
collection of information and the use of a single administrative record in
making determinations. Because the grouping of reviews promotes
administrative efficiency, the decision to consolidate reviews is committed to
agency discretion. Under new section 751(c)(2), Commerce will initiate a
five-year review no later than thirty days before the five-year anniversary
date of the order or suspension agreement. Commerce normally will initiate a
five-year review shortly before the thirty-day period begins. Upon request of
the petitioner, however, Commerce may initiate a five-year review at an
earlier date. This provides a mechanism for consolidating two or more reviews
that ordinarily would not be considered at the same time. Such consolidation
will minimize the burden on the domestic industry and promote efficient
administration of the laws.
(5) Five-year Reviews of Transition Orders
New section 751(c)(6) establishes special rules for five-year reviews of antidumping duty and countervailing duty orders, findings, and
suspended investigations that are deemed to be issued as of the date the WTO
Agreement enters into force with respect to the United States. Because there
likely will be more than 400 of these transition orders, special rules are
necessary to enable the agencies to conduct five-year reviews within a
reasonable period and in a manner consistent with the Agreements.
New section 751(c)(6)(A) establishes a schedule for
completing five-year reviews of transition orders in a timely and efficient
manner. It requires Commerce to begin its review of transition orders within
eighteen months prior to the fifth anniversary of the date of entry into force
of the WTO Agreement with respect to the United States. Commerce shall
commence reviews of all transition orders by the fifth anniversary. Commerce
and the Commission shall complete their review of each transition order within
eighteen months of the initiation of the review. Commerce and the Commission
shall complete their reviews of all transition orders within eighteen months
of the fifth anniversary of the date of entry into force of the WTO Agreement
with respect to the United States.
New section 751(c)(6)(A)(iv) provides that Commerce will not
revoke or terminate a transition order before the fifth anniversary of the
date of the entry into force of the WTO with respect to the United States,
unless the petitioner requests an accelerated review. Section
751(c)(6)(A)(iii) also provides that subsequent five-year reviews of
transition orders will follow the same time frame as initial five-year reviews
-- reviews will begin eighteen months prior to, and will be completed within
eighteen months after, the fifth anniversary of the date of a determination to
continue the transition order. Extended initiation and completion dates for
subsequent five-year reviews of transition orders are necessary because the
five-year anniversary of such orders will always occur at the same time,
thereby creating an extraordinary burden on the agencies' resources.
To promote administrative efficiency, new section
751(c)(6)(B) gives Commerce, in consultation with the Commission, discretion
to determine the appropriate sequence of five-year reviews of transition
orders. To the maximum extent practicable, the agencies will review older
orders first. To accommodate special problems that may arise where reviews of
transition orders are grouped, Commerce may initiate reviews out of
chronological sequence. The Administration intends that, at some time
reasonably in advance of the commencement of the initial five-year reviews of
transition orders, Commerce will publish a proposed schedule including the
Commission's proposal for grouping reviews. After considering the comments,
the Commission will determine which transition orders will be grouped, and
Commerce will determine the review schedule. As with the grouping of reviews,
the determination of the sequence of reviews of transition orders will be
committed to agency discretion.
c. Standards for Determining Likelihood of Continuation or
Recurrence of Injury, Countervailable Subsidies, or Dumping
Section 221(a) of the bill adds new section 752 which establishes
standards to be applied by Commerce and the Commission in conducting changed
circumstances and five-year reviews. Specifically, section 752 elaborates on
the standards for determining whether revocation of an order or termination of
a suspended investigation would be likely to lead to a continuation or
recurrence of injury, countervailable subsidies, or dumping.
The determination called for in these types of reviews is
inherently predictive and speculative. There may be more than one likely
outcome following revocation or termination. The possibility of other likely
outcomes does not mean that a determination that revocation or termination is
likely to lead to continuation or recurrence of dumping or countervailable
subsidies, or injury, is erroneous, as long as the determination of likelihood
of continuation or recurrence is reasonable in light of the facts of the case.
In such situations, the order or suspended investigation will be continued.
(1) Likelihood of Injury
(a) General Rules
Under the likelihood standard in new section
752(a)(1), the Commission must decide the likely impact in the reasonably
foreseeable future of an important change in the status quo -- the revocation
of an order or termination of a suspended investigation and the elimination of
the restraining effects of that order or suspended investigation on volumes
and prices of imports. The likelihood of injury standard applies regardless
of the nature of the Commission's original determination (material injury,
threat of material injury, or material retardation of an industry). Likewise,
the standard applies to suspended investigations that were never completed.
The likelihood of continuation or recurrence of
material injury standard is not the same as the standards for material injury
and threat of material injury, although it contains some of the same elements.
Under the material injury standard, the Commission determines whether there is
current material injury by reason of imports of subject merchandise. Under
the threat of material injury standard, the Commission decides whether injury
is imminent, given the status quo. By comparison, under the likelihood
standard, the Commission will engage in a counter-factual analysis: it must
decide the likely impact in the reasonably foreseeable future of an important
change in the status quo -- the revocation or termination of a proceeding and
the elimination of its restraining effects on volumes and prices of imports.
The likelihood of continuation or recurrence of
material injury standard is prospective in nature, and, thus, a separate
determination regarding current material injury is not necessary.
Nonetheless, the Commission may consider relevant factors such as current and
likely continued depressed shipment levels and current and likely continued
prices for the domestic like product in the U.S. market in making its
determination of the likelihood of continuation or recurrence of material
injury if the order is revoked. In appropriate circumstances, the Commission
may make an affirmative determination notwithstanding the lack of any likely
further deterioration of the current condition of the domestic industry if
revocation of the order, or termination of a suspended investigation, would be
likely to lead to the continuation or recurrence of material injury.
Subparagraphs (A) through (D) of new section 752(a)(1)
list the factors that the Commission must take into account in conducting a
likelihood of injury analysis. Under subparagraph (A), the Commission must
consider its prior injury determination(s), including the volume, price
effect, and impact of imports on the industry during the period preceding the
issuance of an order or acceptance of a suspension agreement. This
consideration is important, because this period is the most recent time during
which imports of subject merchandise competed in the U.S. market free of the
discipline of an order or agreement. If the Commission finds that pre-order
or pre-agreement conditions are likely to recur, it is reasonable to conclude
that there is likelihood of continuation or recurrence of injury. Section
226(a)(1) of the bill amends section 777(b)(1) of the Act to expressly allow
proprietary information submitted in connection with an investigation or
review to be used by the agency to which the information originally was
submitted in a changed circumstances or sunset review under section 751(b) or
(c) involving the same subject merchandise.
Under subparagraph (B), the Commission must consider
whether there has been any improvement in the state of the domestic industry
that is related to the imposition of the order or the acceptance of a
suspension agreement. The Commission should not determine that there is no
likelihood of continuation or recurrence of injury simply because the industry
has recovered after the imposition of an order or acceptance of a suspension
agreement, because one would expect that the imposition of an order or
acceptance of a suspension agreement would have some beneficial effect on the
industry. Moreover, an improvement in the state of the industry related to an
order or suspension agreement may suggest that the state of the industry is
likely to deteriorate if the order is revoked or the suspended investigation
terminated.
Under subparagraph (C), the Commission must consider
whether the domestic industry is vulnerable to injury if the order is revoked
or the suspended investigation terminated. The term "vulnerable" relates to
susceptibility to material injury by reason of dumped or subsidized imports.
This concept is derived from existing standards for material injury and threat
of material injury. See H.R. Rep. No. 317, 96th Cong., 1st Sess. 47 (1979);
H.R. Conf. Rep. No. 1156, 98th Cong., 2d Sess. 174, 175 (1984). In material
injury determinations, the Commission considers, in addition to imports, other
factors that may be contributing to overall injury. While these factors, in
some cases, may account for the injury to the domestic industry, they also may
demonstrate that an industry is facing difficulties from a variety of sources
and is vulnerable to dumped or subsidized imports. In threat determinations,
the Commission must carefully assess current trends and competitive conditions
in the marketplace to determine the probable future impact of imports on the
domestic industry and whether the industry is vulnerable to future harm.
If the Commission finds that an industry is vulnerable
to injury from subject imports, it may determine that injury is likely to
continue or recur, even if other causes, as well as future imports, are likely
to contribute to future injury. If the Commission finds that the industry is
in a weakened state, it should consider whether the industry will deteriorate
further upon revocation of an order or termination of a suspended
investigation. It also should consider whether such a weakened state is due
to the possible ineffectiveness of the order or suspension agreement or its
circumvention.
When an importer is affiliated with the exporter,
dumping is measured by reference to the affiliated importer's resale price.
However, it is the affiliated importer, not the unaffiliated U.S. purchaser of
the dumped goods, who must pay the antidumping duty. Under certain
circumstances, the affiliated importer may choose to pay the antidumping duty
rather than eliminate the dumping, either through lowering prices in the
foreign market, raising prices in the United States, or a combination of both.
During an administrative review initiated two or four
years after the issuance of an order, Commerce will examine, if requested,
whether absorption has taken place by reviewing data on the volume of dumped
imports and dumping margins. Duty absorption is a strong indicator that the
current dumping margins calculated by Commerce in reviews may not be
indicative of the margins that would exist in the absence of an order. Once
an order is revoked, the importer could achieve the same pre-revocation return
on its sales by lowering its prices in the U.S. in the amount of the duty that
previously was being absorbed. The duty absorption inquiry would not affect
the calculation of margins in administrative reviews. This new provision of
law is not intended to provide for the treatment of antidumping duties as a
cost.
An affirmative finding of absorption in an
administrative review initiated two years after the issuance of an order is
intended to have a deterrent effect on continued absorption of duties by
affiliated importers; if they engage in duty absorption, they will know that
they will face an additional hurdle that will make it more difficult to obtain
revocation or termination. If, in the four-year review, Commerce finds that
absorption has taken place, it will take that into account in its
determination regarding the dumping margins likely to prevail if an order were
revoked.
Commerce will inform the Commission of its findings
regarding duty absorption, and the Commission will take such findings into
account in determining whether injury is likely to continue or recur if an
order were revoked. Duty absorption may indicate that the producer or
exporter would be able to market more aggressively should the order be revoked
as a result of a sunset review. Thus, the Commission is to consider duty
absorption in determining whether material injury is likely to continue or
recur.
Also, Commerce has full authority under its current
regulations (19 CFR 353.26) to increase the duty when an exporter directly
pays the duties due, or reimburses the importer, whether independent or
affiliated, for the importer's payment of duties. Commerce intends no change
in its practice in this area, which is to instruct Customs to double the
duties if the importer fails to furnish a certificate of non-reimbursement to
Customs prior to liquidation of entries.
(b) Volume, Price, and Impact of Imports on the
Domestic Industry
Paragraphs (2), (3), and (4) of new section 752(a)
adapt the standard volume, price effect, and impact factors contained in the
Agreements for normal injury analysis to likelihood of injury analysis. Thus,
in five-year and changed circumstances reviews, the Commission is required to
consider the likely volume of imports, the likely price effects of imports,
and the likely impact of imports on the domestic industry if the order were
revoked or the suspended investigation terminated. In addition, specific
factors applied by the Commission in its threat of injury analysis have been
adapted for purposes of determining the likely volume, price and impact of
subject imports in the event of revocation or termination.
(c) Basis for Determination
New section 752(a)(5) establishes the basis for making
a likelihood of continuance or recurrence of material injury determination.
As in the case of injury and threat determinations, the Commission must
consider all factors, but no one factor is necessarily dispositive. In
particular, the Commission need not determine that both the volume and price
effects of imports are likely to be significant to determine that material
injury is likely within a reasonably foreseeable time. Consistent with its
practice in investigations, in considering the likely price effects of imports
in the event of revocation or termination, the Commission may rely on
circumstantial, as well as direct, evidence of the adverse effects of unfairly
traded imports on domestic prices.
A "reasonably foreseeable time" will vary from case-to-case, but normally will exceed the "imminent" timeframe applicable in a
threat of injury analysis. New section 752(a)(5) expressly states that the
effects of revocation or termination may manifest themselves only over a
longer period of time. The Commission will consider in this regard such
factors as the fungibility or differentiation within the product in question,
the level of substitutability between the imported and domestic products, the
channels of distribution used, the methods of contracting (such as spot sales
or long-term contracts), and lead times for delivery of goods, as well as
other factors that may only manifest themselves in the longer term, such as
planned investment and the shifting of production facilities.
(d) Magnitude of the Dumping Margin or Net
Countervailable Subsidy
New section 752(a)(6) permits the Commission to
consider the magnitude of the dumping margin or net countervailable subsidy in
determining the likely continuation or recurrence of injury. In a
countervailing duty case, the Commission also will consider whether a subsidy
is a prohibited subsidy or a subsidy for which serious prejudice may be
presumed pursuant to the Subsidies Agreement. Because Commerce has the
expertise regarding the identification and measurement of dumping and
countervailable subsidies, new sections 752(b)(3) and 752(c)(3) require
Commerce to provide the Commission with the dumping margins or net
countervailable subsidies that are likely to prevail in the event of
revocation or termination. The Commission shall not itself calculate or
otherwise determine likely dumping margins or net countervailable subsidies or
the nature of the subsidies in question.
(e) Cumulative Analysis
New section 752(a)(7) grants the Commission discretion
to engage in a cumulative analysis if: (1) reviews are initiated on the same
day; and (2) imports likely would compete with one another and with the
domestic like product in the United States market. The statute provides that
the Commission may cumulate imports from countries that were not originally
investigated together if the conditions for cumulation in section 752(a)(7)
are otherwise satisfied. The Commission shall not cumulate imports from any
country if those imports are likely to have no discernable adverse impact on
the domestic industry.
(f) Regional Industry Investigations
For investigations involving a regional industry, new
section 752(a)(8) provides that the Commission is not bound by any
determination it may have made in the original investigation regarding the
existence of a regional industry. If there is sufficient evidence to warrant
revisiting the original regional industry determination, the Commission may
base its likelihood determination on: (1) the regional industry defined by the
Commission in the original investigation; (2) another regional industry
satisfying the criteria of amended section 771(4)(C); or (3) the United States
industry as a whole.
Given the predictive nature of a likelihood of injury
analysis, the Commission's analysis in regional industry investigations will
be subject to no greater degree of certainty than in a review involving a
national industry. Because the issuance of an order or the acceptance of a
suspension agreement may have affected the marketing and distribution patterns
of the product in question, the Commission's analysis of a regional industry
should take into account whether the market isolation and import concentration
criteria in section 771(4)(C) are likely to be satisfied in the event of
revocation or termination. Neither the Commission nor interested parties will
be required to demonstrate that the regional industry criteria currently are
satisfied. The Commission should take into account any prior regional
industry definition, whether the product at issue has characteristics that
naturally lead to the formation of regional markets (e.g., whether it has a
low value-to-weight ratio and is fungible), and whether any changes in the
isolation of the region or in import concentration are related to the
imposition of the order or the acceptance of a suspension agreement.
(2) Likelihood of Countervailable Subsidies
Section 221 of the bill adds section 752(b) to the Act which
establishes standards to be applied by Commerce in determining the likelihood
of continuation or recurrence of countervailable subsidies. Under new section
752(b)(1), Commerce first will consider the net countervailable subsidies in
effect after the issuance of the order and whether the relevant subsidy
programs have been continued, modified, or eliminated. Continuation of a
program will be highly probative of the likelihood of continuation or
recurrence of countervailable subsidies. Temporary suspension or partial
termination of a subsidy program also will be probative of continuation or
recurrence of countervailable subsidies, absent significant evidence to the
contrary. In addition, as long as a subsidy program continues to exist,
Commerce will not consider company- or industry-specific renunciations of
countervailable subsidies, by themselves, as an indication that continuation
or recurrence of countervailable subsidies is unlikely.
If the foreign government has eliminated a subsidy program,
the Administration intends that Commerce will consider the legal method by
which the government eliminated the program and whether the government is
likely to reinstate the program. For example, programs eliminated through
administrative action may be more likely to be reinstated than those
eliminated through legislative action.
New section 752(b)(2)(A) provides that, for good cause
shown, Commerce also will consider other programs determined to be
countervailable in other investigations or reviews involving imports from the
same country. The existence of such programs may indicate the likelihood of
continuation or recurrence of countervailable subsidies to the extent that
companies subject to the review can use the programs and the programs did not
exist when the order was issued or the suspension agreement accepted.
However, if companies have a long track record of not using a program, the
mere availability of the program should not, by itself, indicate likelihood of
continuation or recurrence of countervailable subsidies.
New section 752(b)(2)(B) provides that, for good cause
shown, Commerce also may consider allegations of new countervailable
subsidies, but only to the extent that it determines such programs to be
countervailable with respect to the exporters or producers subject to the
review. In this regard, the Administration notes that subsidy allegations
normally should be made in the context of reviews conducted pursuant to
section 751(a), and the Administration does not expect Commerce to entertain
frivolous allegations in changed circumstances or five-year reviews. However,
where there have been no recent section 751(a) reviews, or where the alleged
countervailable subsidy program came into existence after the most recently
completed section 751(a) review, Commerce may consider new subsidy allegations
in the context of a changed circumstances or five-year review.
Special problems may arise when Commerce considers subsidies
for which the benefits are allocated over time, such as grants, long-term
loans, or equity infusions. In these instances, Commerce will consider
whether the fully allocated benefit stream is likely to continue after the end
of the review, without regard to whether the program that gave rise to the
long-term benefit continues to exist.
Under new section 752(b)(4), the existence of a zero or de
minimis countervailable subsidy at any time while the order was in effect
shall not in itself require Commerce to determine that continuation or
recurrence of countervailable subsidies is not likely. However, if the
combined benefits of all programs considered by Commerce for purposes of its
likelihood determination have never been above de minimis at any time the
order was in effect, and if there is no likelihood that the combined benefits
of such programs would be above de minimis in the event of revocation or
termination, Commerce should determine that there is no likelihood of
continuation or recurrence of countervailable subsidies.
(3) Likelihood of Dumping
Section 221 of the bill adds section 752(c) which
establishes standards for determining the likelihood of continuation or
recurrence of dumping. Under section 752(c)(1), Commerce will examine the
relationship between dumping margins, or the absence of margins, and the
volume of imports of the subject merchandise, comparing the periods before and
after the issuance of an order or the acceptance of a suspension agreement.
For example, declining import volumes accompanied by the continued existence
of dumping margins after the issuance of an order may provide a strong
indication that, absent an order, dumping would be likely to continue, because
the evidence would indicate that the exporter needs to dump to sell at pre-order volumes. In contrast, declining (or no) dumping margins accompanied by
steady or increasing imports may indicate that foreign companies do not have
to dump to maintain market share in the United States and that dumping is less
likely to continue or recur if the order were revoked.
The Administration believes that existence of dumping margins after the order, or the cessation of imports after the order, is highly probative of the likelihood of continuation or recurrence of dumping. If companies continue to dump with the discipline of an order in place, it is reasonable to assume that dumping would continue if the discipline were removed. If imports cease after the order is issued, it is reasonable to assume that the exporters could not sell in the United States without dumping and that, to reenter the U.S. market, they would have to resume dumping.
New section 752(c)(2) provides that, for good cause shown,
Commerce also will consider other information regarding price, cost, market or
economic factors it deems relevant. Such factors might include the market
share of foreign producers subject to the antidumping proceeding; changes in
exchange rates, inventory levels, production capacity, and capacity
utilization; any history of sales below cost of production; changes in
manufacturing technology of the industry; and prevailing prices in relevant
markets. In practice, this will permit interested parties to provide
information indicating that observed patterns regarding dumping margins and
import volumes are not necessarily indicative of the likelihood of dumping.
The list of factors is illustrative, and the Administration intends that
Commerce will analyze such information on a case-by-case basis.
Under new section 752(c)(4), the existence of zero or de
minimis dumping margins at any time while the order was in effect shall not in
itself require Commerce to determine that there is no likelihood of
continuation or recurrence of dumping. Exporters may have ceased dumping
because of the existence of an order or suspension agreement. Therefore, the
present absence of dumping is not necessarily indicative of how exporters
would behave in the absence of the order or agreement.
(4) Provision to the Commission of Dumping Margins and Net
Countervailable Subsidies
The Commission may consider likely dumping margins or net
countervailable subsidies to be relevant to its analysis of the likelihood of
injury. Section 221 of the bill adds sections 752(b)(3) and 752(c)(3) which
direct Commerce to provide the Commission with the net countervailable
subsidies and the magnitude of the margin of dumping that are likely to
prevail in the event of revocation or termination. Commerce normally will
select dumping margins or net countervailable subsidies determined in the
original investigation or in a prior review. The Administration intends that
Commerce normally will select the rate from the investigation, because that is
the only calculated rate that reflects the behavior of exporters and foreign
governments without the discipline of an order or suspension agreement in
place. In certain instances, a more recently calculated rate may be more
appropriate. For example, if dumping margins have declined over the life of
an order and imports have remained steady or increased, Commerce may conclude
that exporters are likely to continue dumping at the lower rates found in a
more recent review.
In providing information to the Commission, the
Administration does not intend that Commerce calculate future dumping margins
or net countervailable subsidies, because such an exercise would involve undue
speculation regarding future selling prices, costs of production, selling
expenses, exchange rates, and sales and production volumes. Only under the
most extraordinary circumstances should Commerce rely on dumping margins or
net countervailable subsidies other than those it calculated and published in
its prior determinations.
d. Revocation and Termination of Orders and Suspension
Agreements
Section 220 of the bill replaces existing subsection 751(c) with
subsection 751(d) which adds a new paragraph (2) regarding five-year reviews.
Paragraph (2) provides that in a five-year review, Commerce will revoke an
order or terminate a suspended investigation unless Commerce determines that
dumping or countervailable subsidies would be likely to continue or recur, and
the Commission determines that injury would be likely to continue or recur, in
the event of revocation or termination.
New subsections 702(c)(1)(C) and 732(c)(1)(C) provide that the
agencies will expedite, to the maximum extent practicable in light of
procedural requirements, an investigation of a petition filed within two years
of revocation of an order (or termination of a suspended investigation)
involving imports of the same subject merchandise, notwithstanding the maximum
time limits established by the statute for conduct of investigations.
Expeditious conduct of investigations will be especially important following
revocation or termination under the new sunset provisions required by the
Agreements and implemented in section 751(c).
Section 226(a)(2) of the bill amends 777(b)(3) to expressly allow
proprietary information submitted in connection with a sunset or changed
circumstances review that resulted in termination of the order or suspended
investigation to be used by the agency to which the information was originally
submitted in a subsequent investigation involving the same subject
merchandise, provided that the petition for such investigation was filed
within two years of the termination or revocation. This provision will help
conserve the resources of parties because many of the necessary data were
collected by each of the agencies in the course of the preceding reviews.
10. Public Notice and Explanation
At the urging of the United States, the Agreements require national
authorities to provide public notice and explanation of their antidumping and
countervailing duty determinations. Although these obligations reflect
current U.S. practice, section 228 of the bill adds section 777(i) to the Act
to codify these obligations and to consolidate the existing public notice
requirements which currently are scattered throughout Title VII of the Act.
The Administration does not intend that new section 777(i) alter
existing law regarding public notice and explanation of antidumping and
countervailing duty determinations. Existing law does not require that an
agency make an explicit response to every argument made by a party, but
instead requires that issues material to the agency's determination be
discussed so that the "'path of the agency may reasonably be discerned'" by a
reviewing court. See, e.g., Ceramica Regiomontana, S.A. v. United States, 810
F.2d 1137, 1139 (Fed. Cir. 1987) (quoting Bowman Transportation v. Arkansas-Best Freight Sys., 419 U.S. 281, 286 (1974)); National Association of Mirror
Manufacturers v. United States, 696 F. Supp. 642, 649 (Ct. Int'l Trade 1988).
For example, current law requires the Commission to explain its reasoning, and
particularly to address the three key factors of volume, price effects and
impact, as well as any other relevant factor on which it has relied in its
determination. To the extent there is precedent suggesting that the
Commission is not required to address even the main arguments of the parties
in its opinions, that precedent is disapproved. See, e.g., British Steel
Corp. v. United States, 593 F.Supp. 405, 414 (Ct. Int'l Trade 1984).
On the other hand, neither existing law nor new section 777(i) require
Commerce or the Commission in every case to discuss every statutory factor,
particularly where certain factors are not germane to a particular industry or
investigation, or to discuss each argument or fact presented by a party,
regardless of how irrelevant or trivial. For example, if the Commission
rejects a party's proposed definition of the like product, the Commission need
not necessarily, later in its opinion, continue to reference arguments on
causation made by the party on the assumption that its proposed like product
definition would be accepted.
Likewise, Commerce and the Commission need not issue explicit findings
of fact or conclusions of law. Such findings and conclusions, while
appropriate for adjudicatory proceedings, are not appropriate for antidumping
or countervailing duty proceedings, which are investigatory in nature and
which do not allow an extensive period of time in which to write
determinations. Instead, the agencies must specifically reference in their
determinations factors and arguments that are material and relevant, or must
provide a discussion or explanation in the determination that renders evident
the agency's treatment of a factor or argument.
11. Anticircumvention
The current statutory provisions on anticircumvention were enacted as
part of the Omnibus Trade and Competitiveness Act of 1988 based on the
experience Commerce had had with circumvention up to that time. Commerce
subsequently encountered new circumvention scenarios that revealed serious
shortcomings in the 1988 Act. Given these shortcomings and in light of the
Ministerial Decision recognizing the problem of circumvention, it is
appropriate, in the context of implementing legislation, to amend the
anticircumvention provisions of the statute.
For example, in a number of anticircumvention investigations, the
outcome has been determined by the current statutory requirement that the
difference between the value of the parts imported into the United States (or
into a third country) from the country subject to the order and the value of
the finished product be "small." This mechanical, quantitative approach fails
to address adequately circumvention scenarios in which only minor assembly is
done in the United States (or in a third country), but for various reasons the
difference in value is not "small."
Another serious problem is that the existing statute does not deal
adequately with the so-called third country parts problem. In the case of
certain products, particularly electronic products that rely on many off the
shelf components, it is relatively easy for a foreign exporter to circumvent
an antidumping duty order by establishing a screwdriver operation in the
United States that purchases as many parts as possible from a third country.
Given the language of the existing statute, these third country parts cannot
be included with the parts imported from the country subject to the order in
determining whether the difference between the value of the parts imported
from the country subject to the order and the value of the finished product is
"small." This has proved to be an elusive standard substantially limiting the
effectiveness of the law.
Section 230 of the bill amends existing sections 781(a) and 781(b) of
the Act which address the circumvention of antidumping or countervailing duty
orders through the establishment of screwdriver assembly operations in the
United States or a third country, respectively. Sections 781(a)(1) and
781(b)(1) (the so-called mandatory factors) focus the inquiry on whether: (1)
minor or insignificant assembly or completion is occurring in the United
States (or a third country); and (2) the value of the parts imported into the
United States (or a third country) from the country subject to the order is a
significant proportion of the total value of the finished product.
New sections 781(a)(2) and 781(b)(2) list the following factors Commerce
will consider in determining whether the process of assembly or completion is
minor or insignificant: (1) the level of investment; (2) the level of research
and development; (3) the nature of the production process; (4) the extent of
production facilities; and (5) whether the value of the processing performed
in the United States (or the third country) is a small proportion of the value
of the finished article sold in the United States. Commerce will evaluate
each of these factors as they exist either in the United States or a third
country, depending on the particular circumvention scenario. No single factor
will be controlling.
With respect to the factor of small value added, the existing statute
requires that the value of imported parts from the country under the order be
compared to the value of the finished product and that the difference between
the two values be "small," as a prerequisite for an affirmative determination.
This has the effect of including third country parts in U.S. value, thereby
making it easier for a foreign producer to circumvent an order. New sections
781(a)(2)(E) and 781(b)(2)(E) require Commerce to determine whether the value
of the processing performed in the United States (or a third country)
represents a small proportion of the value of the finished product. This is
consistent with the overall thrust of section 230 of the bill which is to
focus the anticircumvention inquiry on the question of whether minor or
insignificant assembly or completion is taking place.
These new provisions do not establish rigid numerical standards for
determining the significance of the assembly (or completion) activities in the
United States or for determining the significance of the value of the imported
parts or components.
Finally, section 230 of the bill renumbers existing sections 781(a)(2)
and 781(b)(2) as sections 781(a)(3) and 781(b)(3), respectively. As under
current law, before deciding to include imported parts within the scope of an
antidumping or countervailing duty order, Commerce will consider: (1) changes
in the pattern of trade; (2) whether the producer of the finished product
subject to the order is related to the assembler in the United States (or the
third country); and (3) whether imports of parts from the country subject to
the order into the United States (or the third country) have increased after
the initiation of the investigation resulting in the issuance of the order.
With respect to the first factor (changes in the pattern of trade),
section 781(a)(3) also requires Commerce to consider changes in the sourcing
patterns of parts used to produce the finished product. With respect to the
third factor (increased imports of parts), current law requires Commerce to
examine imports occurring after the issuance of the order in question. In the
case of certain products, it is possible for a foreign producer to establish a
screwdriver operation in the United States or a third country before an
initial antidumping or countervailing duty investigation is completed and
thereby potentially avoid any finding of circumvention. Therefore, Commerce
will examine imports occurring after the initiation of the investigation
resulting in the issuance of the order.
The Administration believes that with the changes described above, the
United States will have an anticircumvention provision that is effective, WTO-consistent, and fair to all parties. Because Commerce will find circumvention
only where assembly or completion operations in the United States or in third
countries are minor, the proposed amendments will not deter legitimate
investment, characterized by the addition of substantial value.
In a related matter, as under current law when parties are "related," if
an investigation or review is initiated of a downstream product which
incorporates an upstream product as a major input, the existence of an
"affiliation" between the producer of the downstream product and the producer
of the upstream product can result in application of the major input rule of
section 773(f)(3), for purposes of determining the cost of production or
constructed value of the downstream product.
Section 230 of the bill amends section 781(f) of the Act to require
Commerce normally to complete determinations under section 781(f) of whether
an antidumping or countervailing duty order is being circumvented within 300
days of initiation. The Administration also intends that Commerce shall amend
its regulations to provide that determinations of whether particular types of
merchandise are the subject merchandise of an antidumping or countervailing
duty order normally will be completed within 120 days.
12. Transition Rules; Effective Date
Consistent with the Agreements, the amendments to the Act will apply to
investigations and reviews based on petitions or requests received after the
WTO Agreement enters into force with respect to the United States. Thus,
investigations and reviews that are based on petitions or requests received
before or on the date the WTO Agreement enters into force with respect to the
United States will be completed under the current statutory regime. With
regard to self-initatiated investigations and reviews, the amendments will
apply to investigations and reviews initiated after the entry into force of
the WTO Agreement with respect to the United States. For this purpose, the
date of publication in the Federal Register of the notice of initiation of the
investigation or review will be considered the date of initiation.
13. Reports
The Office of the United States Trade Representative will prepare and
submit to the Committee on Ways and Means and the Committee on Finance an
annual report on foreign antidumping and countervailing duty actions against
exports from the United States for the most recent year for which data are
available.
The Department of Commerce will prepare and submit to the Committee on
Ways and Means and the Committee on Finance a report on the efficiency,
effectiveness, and impact on exporters, importers, and domestic industries of
different antidumping and countervailing duty assessment systems, and
estimated duty collection. The report will be submitted no later than twelve
months after the effective date of the legislation except that the portion of
the report dealing with estimated duty collection will be submitted no later
than six months after such date.
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