[ Antidumping Duties, Final Rule 62 FR 27295, May 19, 1997 ]
PART 351--ANTIDUMPING AND COUNTERVAILING DUTIES
Subpart A -- Scope and Definitions
Section
351.101 Scope.
351.102 Definitions.
351.103 Central Records Unit.
351.104 Record of proceedings.
351.105 Public, business proprietary, privileged, and classified information.
351.106 De minimis net countervailable subsidies and weighted-average dumping
margins disregarded.
351.107 Deposit rates for nonproducing exporters; rates in antidumping
proceedings involving a nonmarket economy country.
Subpart B -- Antidumping and Countervailing Duty Procedures
351.201 Self-initiation.
351.202 Petition requirements.
351.203 Determination of sufficiency of petition.
351.204 Transactions and persons examined; voluntary respondents; exclusions.
351.205 Preliminary determination.
351.206 Critical circumstances.
351.207 Termination of investigation.
351.208 Suspension of investigation.
351.209 Violation of suspension agreement.
351.210 Final determination.
351.211 Antidumping order and countervailing duty order.
351.212 Assessment of antidumping and countervailing duties; provisional
measures deposit cap; interest on certain overpayments and
underpayments
351.213 Administrative review of orders and suspension agreements
under section 751(a)(1) of the Act.
351.214 New shipper reviews under section 751(a)(2)(B) of the Act.
351.215 Expedited antidumping review and security in lieu of estimated
duty under section 736(c) of the Act.
351.216 Changed circumstances review under section 751(b) of the Act.
351.217 Reviews to implement results of subsidies enforcement proceeding
under section 751(g) of the Act.
351.218 Sunset reviews under section 751(c) of the Act.
351.219 Reviews of countervailing duty orders in connection with an
investigation under section 753 of the Act.
351.220 Countervailing duty review at the direction of the President
under section 762 of the Act.
351.221 Review procedures.
351.222 Revocation of orders; termination of suspended investigations.
351.223 Procedures for initiation of downstream product monitoring.
351.224 Disclosure of calculations and procedures for the correction of
ministerial errors.
351.225 Scope rulings.
Subpart C -- Information and Argument
351.301 Time limits for submission of factual information.
351.302 Extension of time limits; return of untimely filed or unsolicited material.
351.303 Filing, format, translation, service, and certification of documents.
351.304 Establishing business proprietary treatment of information [Reserved].
351.305 Access to business proprietary information [Reserved].
351.306 Use of business proprietary information [Reserved].
351.307 Verification of information.
351.308 Determinations on the basis of the facts available.
351.309 Written argument.
351.310 Hearings.
351.311 Countervailable subsidy practice discovered during investigation
or review.
351.312 Industrial users and consumer organizations.
Subpart D -- Calculation of Export Price, Constructed Export Price,
Fair Value, and Normal Value
351.401 In general.
351.402 Calculation of export price and constructed export price;
reimbursement of antidumping and countervailing duties.
351.403 Sales used in calculating normal value; transactions between
affiliated parties.
351.404 Selection of the market to be used as the basis for normal value.
351.405 Calculation of normal value based on constructed value.
351.406 Calculation of normal value if sales are made at less than
the cost of production.
351.407 Calculation of constructed value and cost of production.
351.408 Calculation of normal value of merchandise from nonmarket
economy countries.
351.409 Differences in quantities.
351.410 Differences in circumstances of sale.
351.411 Differences in physical characteristics.
351.412 Levels of trade; adjustment for difference in level of trade;
constructed export price offset.
351.413 Disregarding insignificant adjustments.
351.414 Comparison of normal value with export price (constructed
export price).
351.415 Conversion of currency.
Subpart E -- [Reserved]
Subpart F -- Subsidy Determinations Regarding Cheese Subject
to an In-Quota Rate of Duty
351.601 Annual list and quarterly update of subsidies.
351.602 Determination upon request.
351.603 Complaint of price-undercutting by subsidized imports.
351.604 Access to information.
Subpart G -- Applicability Dates
351.701 Applicability dates.
Annex I--Deadlines for Parties in Countervailing Investigations
Annex II--Deadlines for Parties in Countervailing Administrative Reviews
Annex III--Deadlines for Parties in Antidumping Investigations
Annex IV--Deadlines for Parties in Antidumping Administrative Reviews
Annex V--Comparison of Prior and New Regulations
Annex VI--Countervailing Investigations Timeline
Annex VII--Antidumping Investigations Timeline
Authority: 5 U.S.C. 301; 19 U.S.C. 1202 note; 19 U.S.C. 1303 note;
19 U.S.C. 1671 et seq.; and 19 U.S.C. 3538.
PART 351--ANTIDUMPING AND COUNTERVAILING DUTIES
Subpart A--Scope and Definitions
Sec. 351.101 Scope.
(a) In general. This part contains procedures and rules applicable
to antidumping and countervailing duty proceedings under title VII of
the Act (19 U.S.C. 1671 et seq.), and also determinations regarding
cheese subject to an in-quota rate of duty under section 702 of the
Trade Agreements Act of 1979 (19 U.S.C. 1202 note). This part reflects
statutory amendments made by titles I, II, and IV of the Uruguay Round
Agreements Act, Pub. L. 103-465, which, in turn, implement into United
States law the provisions of the following agreements annexed to the
Agreement Establishing the World Trade Organization: Agreement on
Implementation of Article VI of the General Agreement on Tariffs and
Trade 1994; Agreement on Subsidies and Countervailing Measures; and
Agreement on Agriculture.
(b) Countervailing duty investigations involving imports not
entitled to a material injury determination. Under section 701(c) of
the Act, certain provisions of the Act do not apply to countervailing
duty proceedings involving imports from a country that is not a
Subsidies Agreement country and is not entitled to a material injury
determination by the Commission. Accordingly, certain provisions of
this part referring to the Commission may not apply to such
proceedings.
(c) Application to governmental importations. To the extent
authorized by section 771(20) of the Act, merchandise imported by, or
for the use of, a department or agency of the United States Government
is subject to the imposition of countervailing duties or antidumping
duties under this part.
Sec. 351.102 Definitions.
(a) Introduction. The Act contains many technical terms applicable
to antidumping and countervailing duty proceedings. In the case of
terms that are not defined in this section or other sections of this
part, readers should refer to the relevant provisions of the Act. This
section:
(1) Defines terms that appear in the Act but are not defined in the Act;
(2) Defines terms that appear in this Part but do not appear in the Act;
and
(3) Elaborates on the meaning of certain terms that are defined in the Act.
(b) Definitions.
Act. ``Act'' means the Tariff Act of 1930, as amended.
Administrative review. ``Administrative review'' means a review
under section 751(a)(1) of the Act.
Affiliated persons; affiliated parties. ``Affiliated persons'' and
``affiliated parties'' have the same meaning as in section 771(33) of
the Act. In determining whether control over another person exists,
within the meaning of section 771(33) of the Act, the Secretary will
consider the following factors, among others: corporate or family
groupings; franchise or joint venture agreements; debt financing; and
close supplier relationships. The Secretary will not find that control
exists on the basis of these factors unless the relationship has the
potential to impact decisions concerning the production, pricing, or
cost of the subject merchandise or foreign like product. The Secretary
will consider the temporal aspect of a relationship in determining
whether control exists; normally, temporary circumstances will not
suffice as evidence of control.
Aggregate basis. ``Aggregate basis'' means the calculation of a
country-wide subsidy rate based principally on information provided by
the foreign government.
Anniversary month. ``Anniversary month'' means the calendar month
in which the anniversary of the date of publication of an order or
suspension of investigation occurs.
APO. ``APO'' means an administrative protective order described in
section 777(c)(1) of the Act.
Applicant. ``Applicant'' means a representative of an interested
party that has applied for access to business proprietary information
under an administrative protective order.
Article 4/Article 7 Review. ``Article 4/Article 7 review'' means a
review under section 751(g)(2) of the Act.
Article 8 violation review. ``Article 8 violation review'' means a
review under section 751(g)(1) of the Act.
Authorized applicant. ``Authorized applicant'' means an applicant
that the Secretary has authorized to receive business proprietary
information under an APO under section 777(c)(1) of the Act.
Changed circumstances review. ``Changed circumstances review''
means a review under section 751(b) of the Act.
Customs Service. ``Customs Service'' means the United States
Customs Service of the United States Department of the Treasury.
Department. ``Department'' means the United States Department of
Commerce.
Domestic interested party. ``Domestic interested party'' means an
interested party described in subparagraph (C), (D), (E), (F), or (G)
of section 771(9) of the Act.
Expedited antidumping review. ``Expedited antidumping review''
means a review under section 736(c) of the Act.
Factual information. ``Factual information'' means:
(1) Initial and supplemental questionnaire responses;
(2) Data or statements of fact in support of allegations;
(3) Other data or statements of facts; and
(4) Documentary evidence.
Fair value. ``Fair value'' is a term used during an antidumping
investigation, and is an estimate of normal value.
Importer. ``Importer'' means the person by whom, or for whose
account, subject merchandise is imported.
Investigation. Under the Act and this Part, there is a distinction
between an antidumping or countervailing duty investigation and a
proceeding. An ``investigation'' is that segment of a proceeding that
begins on the date of publication of notice of initiation of
investigation and ends on the date of publication of the earliest of:
(1) Notice of termination of investigation,
(2) Notice of rescission of investigation,
(3) Notice of a negative determination that has the effect of
terminating the proceeding, or
(4) An order.
New shipper review. ``New shipper review'' means a review under
section 751(a)(2) of the Act.
Order. An ``order'' is an order issued by the Secretary under
section 303, section 706, or section 736 of the Act or a finding under
the Antidumping Act, 1921.
Ordinary course of trade. ``Ordinary course of trade'' has the same
meaning as in section 771(15) of the Act. The Secretary may consider
sales or transactions to be outside the ordinary course of trade if the
Secretary determines, based on an evaluation of all of the
circumstances particular to the sales in question, that such sales or
transactions have characteristics that are extraordinary for the market
in question. Examples of sales that the Secretary might consider as
being outside the ordinary course of trade are sales or transactions
involving off-quality merchandise or merchandise produced according to
unusual product specifications, merchandise sold at aberrational prices
or with abnormally high profits, merchandise sold pursuant to unusual
terms of sale, or merchandise sold to an affiliated party at a non-
arm's length price.
Party to the proceeding. ``Party to the proceeding'' means any
interested party that actively participates, through written
submissions of factual information or written argument, in a segment of
a proceeding. Participation in a prior segment of a proceeding will not
confer on any interested party ``party to the proceeding'' status in a
subsequent segment.
Person. ``Person'' includes any interested party as well as any
other individual, enterprise, or entity, as appropriate.
Price adjustment. ``Price adjustment'' means any change in the
price charged for subject merchandise or the foreign like product, such
as discounts, rebates and post-sale price adjustments, that are
reflected in the purchaser's net outlay.
Proceeding. A ``proceeding'' begins on the date of the filing of a
petition under section 702(b) or section 732(b) of the Act or the
publication of a notice of initiation in a self-initiated investigation
under section 702(a) or section 732(a) of the Act, and ends on the date
of publication of the earliest notice of:
(1) Dismissal of petition,
(2) Rescission of initiation,
(3) Termination of investigation,
(4) A negative determination that has the effect of terminating the
proceeding,
(5) Revocation of an order, or
(6) Termination of a suspended investigation.
Rates. ``Rates'' means the individual weighted-average dumping
margins, the individual countervailable subsidy rates, the country-wide
subsidy rate, or the all-others rate, as applicable.
Respondent interested party. ``Respondent interested party'' means
an interested party described in subparagraph (A) or (B) of section
771(9) of the Act.
Sale. A ``sale'' includes a contract to sell and a lease that is
equivalent to a sale.
Secretary. ``Secretary'' means the Secretary of Commerce or a
designee. The Secretary has delegated to the Assistant Secretary for
Import Administration the authority to make determinations under title
VII of the Act and this Part.
Section 753 review. ``Section 753 review'' means a review under
section 753 of the Act.
Section 762 review. ``Section 762 review'' means a review under
section 762 of the Act.
Segment of proceeding.
(1) In general. An antidumping or countervailing duty proceeding
consists of one or more segments. ``Segment of a proceeding'' or
``segment of the proceeding'' refers to a portion of the proceeding
that is reviewable under section 516A of the Act.
(2) Examples. An antidumping or countervailing duty investigation
or a review of an order or suspended investigation, or a scope inquiry
under Sec. 351.225, each would constitute a segment of a proceeding.
Sunset review. ``Sunset review'' means a review under section
751(c) of the Act.
Suspension of liquidation. ``Suspension of liquidation'' refers to
a suspension of liquidation ordered by the Secretary under the
authority of title VII of the Act, the provisions of this Part, or
section 516a(g)(5)(C) of the Act, or by a court of the United States in
a lawsuit involving action taken, or not taken, by the Secretary under
title VII of the Act or the provisions of this Part.
Third country. For purposes of subpart D, ``third country'' means a
country other than the exporting country and the United States. Under
section 773(a) of the Act and subpart D, in certain circumstances the
Secretary may determine normal value on the basis of sales to a third
country.
URAA. ``URAA'' means the Uruguay Round Agreements Act.
Sec. 351.103 Central Records Unit.
(a) In general. Import Administration's Central Records Unit is
located at Room B-099, U.S. Department of Commerce, Pennsylvania Avenue
and 14th Street, NW., Washington, D.C. 20230. The office hours of the
Central Records Unit are between 8:30 A.M. and 5:00 P.M. on business
days. Among other things, the Central Records Unit is responsible for
maintaining an official and public record for each antidumping and
countervailing duty proceeding (see Sec. 351.104), the Subsidies
Library (see section 775(2) and section 777(a)(1) of the Act), and the
service list for each proceeding (see paragraph (c) of this section).
(b) Filing of documents with the Department. While persons are free
to provide Department officials with courtesy copies of documents, no
document will be considered as having been received by the Secretary
unless it is submitted to the Central Records Unit and is stamped by
the Central Records Unit with the date and time of receipt.
(c) Service list. The Central Records Unit will maintain and make
available a service list for each segment of a proceeding. Each
interested party that asks to be included on the service list for a
segment of a proceeding must designate a person to receive service of
documents filed in that segment. The service list for an application
for a scope ruling is described in Sec. 351.225(n).
Sec. 351.104 Record of proceedings.
(a) Official record. (1) In general. The Secretary will maintain in
the Central Records Unit an official record of each antidumping and
countervailing duty proceeding. The Secretary will include in the
official record all factual information, written argument, or other
material developed by, presented to, or obtained by the Secretary
during the course of a proceeding that pertains to the proceeding. The
official record will include government memoranda pertaining to the
proceeding, memoranda of ex parte meetings, determinations, notices
published in the Federal Register, and transcripts of hearings. The
official record will contain material that is public, business
proprietary, privileged, and classified. For purposes of section
516A(b)(2) of the Act, the record is the official record of each
segment of the proceeding.
(2) Material returned. (i) The Secretary, in making any
determination under this part, will not use factual information,
written argument, or other material that the Secretary returns to the
submitter.
(ii) The official record will include a copy of a returned
document, solely for purposes of establishing and documenting the basis
for returning the document to the submitter, if the document was
returned because:
(A) The document, although otherwise timely, contains untimely
filed new factual information (see Sec. 351.301(b));
(B) The submitter made a nonconforming request for business
proprietary treatment of factual information (see Sec. 351.304);
(C) The Secretary denied a request for business proprietary
treatment of factual information (see Sec. 351.304);
(D) The submitter is unwilling to permit the disclosure of business
proprietary information under APO (see Sec. 351.304).
(iii) In no case will the official record include any document that
the Secretary returns to the submitter as untimely filed, or any
unsolicited questionnaire response unless the response is a voluntary
response accepted under Sec. 351.204(d) (see Sec. 351.302(d)).
(b) Public record. The Secretary will maintain in the Central
Records Unit a public record of each proceeding. The record will
consist of all material contained in the official record (see paragraph
(a) of this section) that the Secretary decides is public information
under Sec. 351.105(b), government memoranda or portions of memoranda
that the Secretary decides may be disclosed to the general public, and
public versions of all determinations, notices, and transcripts. The
public record will be available to the public for inspection and
copying in the Central Records Unit (see Sec. 351.103). The Secretary
will charge an appropriate fee for providing copies of documents.
(c) Protection of records. Unless ordered by the Secretary or
required by law, no record or portion of a record will be removed from
the Department.
Sec. 351.105 Public, business proprietary, privileged, and classified
information.
(a) Introduction. There are four categories of information in an
antidumping or countervailing duty proceeding: public, business
proprietary, privileged, and classified. In general, public information
is information that may be made available to the public, whereas
business proprietary information may be disclosed (if at all) only to
authorized applicants under an APO. Privileged and classified
information may not be disclosed at all, even under an APO. This
section describes the four categories of information.
(b) Public information. The Secretary normally will consider the
following to be public information:
(1) Factual information of a type that has been published or
otherwise made available to the public by the person submitting it;
(2) Factual information that is not designated as business
proprietary by the person submitting it;
(3) Factual information that, although designated as business
proprietary by the person submitting it, is in a form that cannot be
associated with or otherwise used to identify activities of a
particular person or that the Secretary determines is not properly
designated as business proprietary;
(4) Publicly available laws, regulations, decrees, orders, and
other official documents of a country, including English translations;
and
(5) Written argument relating to the proceeding that is not
designated as business proprietary.
(c) Business proprietary information. The Secretary normally will
consider the following factual information to be business proprietary
information, if so designated by the submitter:
(1) Business or trade secrets concerning the nature of a product or
production process;
(2) Production costs (but not the identity of the production
components unless a particular component is a trade secret);
(3) Distribution costs (but not channels of distribution);
(4) Terms of sale (but not terms of sale offered to the public);
(5) Prices of individual sales, likely sales, or other offers (but
not components of prices, such as transportation, if based on published
schedules, dates of sale, product descriptions (other than business or
trade secrets described in paragraph (c)(1) of this section), or order
numbers);
(6) Names of particular customers, distributors, or suppliers (but
not destination of sale or designation of type of customer,
distributor, or supplier, unless the destination or designation would
reveal the name);
(7) In an antidumping proceeding, the exact amount of the dumping
margin on individual sales;
(8) In a countervailing duty proceeding, the exact amount of the
benefit applied for or received by a person from each of the programs
under investigation or review (but not descriptions of the operations
of the programs, or the amount if included in official public
statements or documents or publications, or the ad valorem
countervailable subsidy rate calculated for each person under a
program);
(9) The names of particular persons from whom business proprietary
information was obtained;
(10) The position of a domestic producer or workers regarding a
petition; and
(11) Any other specific business information the release of which
to the public would cause substantial harm to the competitive position
of the submitter.
(d) Privileged information. The Secretary will consider information
privileged if, based on principles of law concerning privileged
information, the Secretary decides that the information should not be
released to the public or to parties to the proceeding. Privileged
information is exempt from disclosure to the public or to
representatives of interested parties.
(e) Classified information. Classified information is information
that is classified under Executive Order No. 12356 of April 2, 1982 (47
FR 14874 and 15557, 3 CFR 1982 Comp. p. 166) or successor executive
order, if applicable. Classified information is exempt from disclosure
to the public or to representatives of interested parties.
Sec. 351.106 De minimis net countervailable subsidies and weighted-
average dumping margins disregarded.
(a) Introduction. Prior to the enactment of the URAA, the
Department had a well-established and judicially sanctioned practice of
disregarding net countervailable subsidies or weighted-average dumping
margins that were de minimis. The URAA codified in the Act the
particular de minimis standards to be used in antidumping and
countervailing duty investigations. This section discussed the
application of the de minimis standards in antidumping or
countervailing duty proceedings.
(b) Investigations. (1) In general. In making a preliminary or
final antidumping or countervailing duty determination in an
investigation (see sections 703(b), 733(b), 705(a), and 735(a) of the
Act), the Secretary will apply the de minimis standard set forth in
section 703(b)(4) or section 733(b)(3) of the Act (whichever is
applicable).
(2) Transition rule. (i) If:
(A) the Secretary resumes an investigation that has been suspended
(see section 704(i)(1)(B) or section 734(i)(1)(B) of the Act); and
(B) the investigation was initiated before January 1, 1995, then
(ii) The Secretary will apply the de minimis standard in effect at
the time that the investigation was initiated.
(c) Reviews and other determinations. (1) In general. In making any
determination other than a preliminary or final antidumping or
countervailing duty determination in an investigation (see paragraph
(b) of this section), the Secretary will treat as de minimis any
weighted-average dumping margin or countervailable subsidy rate that is
less than 0.5 percent ad valorem, or the equivalent specific rate.
(2) Assessment of antidumping duties. The Secretary will instruct
the Customs Service to liquidate without regard to antidumping duties
all entries of subject merchandise during the relevant period of review
made by any person for which the Secretary calculates an assessment
rate under Sec. 351.212(b)(1) that is less than 0.5 percent ad valorem,
or the equivalent specific rate.
Sec. 351.107 Cash deposit rates for nonproducing exporters; rates in
antidumping proceedings involving a nonmarket economy country.
(a) Introduction. This section deals with the establishment of cash
deposit rates in situations where the exporter is not the producer of
subject merchandise, the selection of the appropriate cash deposit rate
in situations where entry documents do not indicate the producer of
subject merchandise, and the calculation of dumping margins in
antidumping proceedings involving imports from a nonmarket economy
country.
(b) Cash deposit rates for nonproducing exporters. (1) Use of
combination rates. (i) In general. In the case of subject merchandise
that is exported to the United States by a company that is not the
producer of the merchandise, the Secretary may establish a
``combination'' cash deposit rate for each combination of the exporter
and its supplying producer(s).
(ii) Example. A nonproducing exporter (Exporter A) exports to the
United States subject merchandise produced by Producers X, Y, and Z. In
such a situation, the Secretary may establish cash deposit rates for
Exporter A/Producer X, Exporter A/Producer Y, and Exporter A/Producer
Z.
(2) New supplier. In the case of subject merchandise that is
exported to the United States by a company that is not the producer of
the merchandise, if the Secretary has not established previously a
combination cash deposit rate under paragraph (b)(1)(i) of this section
for the exporter and producer in question or a noncombination rate for
the exporter in question, the Secretary will apply the cash deposit
rate established for the producer. If the Secretary has not previously
established a cash deposit rate for the producer, the Secretary will
apply the ``all-others rate'' described in section 705(c)(5) or section
735(c)(5) of the Act, as the case may be.
(c) Producer not identified. (1) In general. In situations where
entry documents do not identify the producer of subject merchandise, if
the Secretary has not established previously a noncombination rate for
the exporter, the Secretary may instruct the Customs Service to apply
as the cash deposit rate the higher of:
(i) the highest of any combination cash deposit rate established
for the exporter under paragraph (b)(1)(i) of this section;
(ii) the highest cash deposit rate established for any producer
other than a producer for which the Secretary established a combination
rate involving the exporter in question under paragraph (b)(1)(i) of
this section; or
(iii) the ``all-others rate'' described in section 705(c)(5) or
section 735(c)(5) of the Act, as the case may be.
(d) Rates in antidumping proceedings involving nonmarket economy
countries. In an antidumping proceeding involving imports from a
nonmarket economy country, ``rates'' may consist of a single dumping
margin applicable to all exporters and producers.
Subpart B--Antidumping and Countervailing Duty Procedures
Sec. 351.201 Self-initiation.
(a) Introduction. Antidumping and countervailing duty
investigations may be initiated as the result of a petition filed by a
domestic interested party or at the Secretary's own initiative. This
section contains rules regarding the actions the Secretary will take
when the Secretary self-initiates an investigation.
(b) In general. When the Secretary self-initiates an investigation
under section 702(a) or section 732(a) of the Act, the Secretary will
publish in the Federal Register notice of ``Initiation of Antidumping
(Countervailing Duty) Investigation.'' In addition, the Secretary will
notify the Commission at the time of initiation of the investigation,
and will make available to employees of the Commission directly
involved in the proceeding the information upon which the Secretary
based the initiation and which the Commission may consider relevant to
its injury determination.
(c) Persistent dumping monitoring. To the extent practicable, the
Secretary will expedite any antidumping investigation initiated as the
result of a monitoring program established under section 732(a)(2) of
the Act.
Sec. 351.202 Petition requirements.
(a) Introduction. The Secretary normally initiates antidumping and
countervailing duty investigations based on petitions filed by a
domestic interested party. This section contains rules concerning the
contents of a petition, filing requirements, notification of foreign
governments, pre-initiation communications with the Secretary, and
assistance to small businesses in preparing petitions. Petitioners are
also advised to refer to the Commission's regulations concerning the
contents of petitions, currently 19 CFR 207.11.
(b) Contents of petition. A petition requesting the imposition of
antidumping or countervailing duties must contain the following, to the
extent reasonably available to the petitioner:
(1) The name, address, and telephone number of the petitioner and
any person the petitioner represents;
(2) The identity of the industry on behalf of which the petitioner
is filing, including the names, addresses, and telephone numbers of all
other known persons in the industry;
(3) Information relating to the degree of industry support for the
petition, including:
(i) The total volume and value of U.S. production of the domestic
like product; and
(ii) The volume and value of the domestic like product produced by
the petitioner and each domestic producer identified;
(4) A statement indicating whether the petitioner has filed for
relief from imports of the subject merchandise under section 337 of the
Act (19 U.S.C. 1337, 1671a), sections 201 or 301 of the Trade Act of
1974 (19 U.S.C. 2251 or 2411), or section 232 of the Trade Expansion
Act of 1962 (19 U.S.C. 1862);
(5) A detailed description of the subject merchandise that defines
the requested scope of the investigation, including the technical
characteristics and uses of the merchandise and its current U.S. tariff
classification number;
(6) The name of the country in which the subject merchandise is
manufactured or produced and, if the merchandise is imported from a
country other than the country of manufacture or production, the name
of any intermediate country from which the merchandise is imported;
(7) (i) In the case of an antidumping proceeding:
(A) The names and addresses of each person the petitioner believes
sells the subject merchandise at less than fair value and the
proportion of total exports to the United States that each person
accounted for during the most recent 12-month period (if numerous,
provide information at least for persons that, based on publicly
available information, individually accounted for two percent or more
of the exports);
(B) All factual information (particularly documentary evidence)
relevant to the calculation of the export price and the constructed
export price of the subject merchandise and the normal value of the
foreign like product (if unable to furnish information on foreign sales
or costs, provide information on production costs in the United States,
adjusted to reflect production costs in the country of production of
the subject merchandise);
(C) If the merchandise is from a country that the Secretary has
found to be a nonmarket economy country, factual information relevant
to the calculation of normal value, using a method described in
Sec. 351.408; or
(ii) In the case of a countervailing duty proceeding:
(A) The names and addresses of each person the petitioner believes
benefits from a countervailable subsidy and exports the subject
merchandise to the United States and the proportion of total exports to
the United States that each person accounted for during the most recent
12-month period (if numerous, provide information at least for persons
that, based on publicly available information, individually accounted
for two percent or more of the exports);
(B) The alleged countervailable subsidy and factual information
(particularly documentary evidence) relevant to the alleged
countervailable subsidy, including any law, regulation, or decree under
which it is provided, the manner in which it is paid, and the value of
the subsidy to exporters or producers of the subject merchandise;
(C) If the petitioner alleges an upstream subsidy under section
771A of the Act, factual information regarding:
(1) Countervailable subsidies, other than an export subsidy, that
an authority of the affected country provides to the upstream supplier;
(2) The competitive benefit the countervailable subsidies bestow on
the subject merchandise; and
(3) The significant effect the countervailable subsidies have on
the cost of producing the subject merchandise;
(8) The volume and value of the subject merchandise imported during
the most recent two-year period and any other recent period that the
petitioner believes to be more representative or, if the subject
merchandise was not imported during the two-year period, information as
to the likelihood of its sale for importation;
(9) The name, address, and telephone number of each person the
petitioner believes imports or, if there were no importations, is
likely to import the subject merchandise;
(10) Factual information regarding material injury, threat of
material injury, or material retardation, and causation;
(11) If the petitioner alleges ``critical circumstances'' under
section 703(e)(1) or section 733(e)(1) of the Act and Sec. 351.206,
factual information regarding:
(i) Whether imports of the subject merchandise are likely to
undermine seriously the remedial effect of any order issued under
section 706(a) or section 736(a) of the Act;
(ii) Massive imports of the subject merchandise in a relatively
short period; and
(iii) (A) In an antidumping proceeding, either:
(1) A history of dumping; or
(2) The importer's knowledge that the exporter was selling the
subject merchandise at less than its fair value, and that there would
be material injury by reason of such sales; or
(B) In a countervailing duty proceeding, whether the
countervailable subsidy is inconsistent with the Subsidies Agreement;
and
(12) Any other factual information on which the petitioner relies.
(c) Simultaneous filing and certification. The petitioner must file
a copy of the petition with the Commission and the Secretary on the
same day and so certify in submitting the petition to the Secretary.
Factual information in the petition must be certified, as provided in
Sec. 351.303(g). Other filing requirements are set forth in
Sec. 351.303.
(d) Business proprietary status of information. The Secretary will
treat as business proprietary any factual information for which the
petitioner requests business proprietary treatment and which meets the
requirements of Sec. 351.304.
(e) Amendment of petition. The Secretary may allow timely amendment
of the petition. The petitioner must file an amendment with the
Commission and the Secretary on the same day and so certify in
submitting the amendment to the Secretary. If the amendment consists of
new allegations, the timeliness of the new allegations will be governed
by Sec. 351.301.
(f) Notification of representative of the exporting country. Upon
receipt of a petition, the Secretary will deliver a public version of
the petition (see Sec. 351.304(c)) to a representative in Washington,
DC, of the government of any exporting country named in the petition.
(g) Petition based upon derogation of an international undertaking
on official export credits. In the case of a petition described in
section 702(b)(3) of the Act, the petitioner must file a copy of the
petition with the Secretary of the Treasury, as well as with the
Secretary and the Commission, and must so certify in submitting the
petition to the Secretary.
(h) Assistance to small businesses; additional information. (1) The
Secretary will provide technical assistance to eligible small
businesses, as defined in section 339 of the Act, to enable them to
prepare and file petitions. The Secretary may deny assistance if the
Secretary concludes that the petition, if filed, could not satisfy the
requirements of section 702(c)(1)(A) or section 732(c)(1)(A) of the Act
(whichever is applicable) (see Sec. 351.203).
(2) For additional information concerning petitions, contact the
Director for Policy and Analysis, Import Administration, International
Trade Administration, Room 3093, U.S. Department of Commerce,
Pennsylvania Avenue and 14th Street, NW, Washington, DC 20230; (202)
482-1768.
(i) Pre-initiation communications. (1) In general. During the
period before the Secretary's decision whether to initiate an
investigation, the Secretary will not consider the filing of a notice
of appearance to constitute a communication for purposes of section
702(b)(4)(B) or section 732(b)(3)(B) of the Act.
(2) Consultations with foreign governments in countervailing duty
proceedings. In a countervailing duty proceeding, the Secretary will
invite the government of any exporting country named in the petition
for consultations with respect to the petition. (The information
collection requirements in paragraph (a) of this section have been
approved by the Office of Management and Budget under control number
0625-0105.)
Sec. 351.203 Determination of sufficiency of petition.
(a) Introduction. When a petition is filed under Sec. 351.202, the
Secretary must determine that the petition satisfies the relevant
statutory requirements before initiating an antidumping or
countervailing duty investigation. This section sets forth rules
regarding a determination as to the sufficiency of a petition
(including the determination that a petition is supported by the
domestic industry), the deadline for making the determination, and the
actions to be taken once the Secretary has made the determination.
(b) Determination of sufficiency. (1) In general. Normally, not later
than 20 days after a petition is filed, the Secretary, on the basis of
sources readily available to the Secretary, will examine the accuracy and
adequacy of the evidence provided in the petition and determine whether
to initiate an investigation under section 702(c)(1)(A) or section 732(c)
(1)(A) of the Act (whichever is applicable).
(2) Extension where polling required. If the Secretary is required
to poll or otherwise determine support for the petition under section
702(c)(4)(D) or section 732(c)(4)(D) of the Act, the Secretary may, in
exceptional circumstances, extend the 20-day period by the amount of
time necessary to collect and analyze the required information. In no
case will the period between the filing of a petition and the
determination whether to initiate an investigation exceed 40 days.
(c) Notice of initiation and distribution of petition. (1) Notice
of initiation. If the initiation determination of the Secretary under
section 702(c)(1)(A) or section 732(c)(1)(A) of the Act is affirmative,
the Secretary will initiate an investigation and publish in the Federal
Register notice of ``Initiation of Antidumping (Countervailing Duty)
Investigation.'' The Secretary will notify the Commission at the time
of initiation of the investigation and will make available to employees
of the Commission directly involved in the proceeding the information
upon which the Secretary based the initiation and which the Commission
may consider relevant to its injury determinations.
(2) Distribution of petition. As soon as practicable after
initiation of an investigation, the Secretary will provide a public
version of the petition to all known exporters (including producers who
sell for export to the United States) of the subject merchandise. If
the Secretary determines that there is a particularly large number of
exporters involved, instead of providing the public version to all
known exporters, the Secretary may provide the public version to a
trade association of the exporters or, alternatively, may consider the
requirement of the preceding sentence to have been satisfied by the
delivery of a public version of the petition to the government of the
exporting country under Sec. 351.202(f).
(d) Insufficiency of petition. If an initiation determination of
the Secretary under section 702(c)(1)(A) or section 732(c)(1)(A) of the
Act is negative, the Secretary will dismiss the petition, terminate the
proceeding, notify the petitioner in writing of the reasons for the
determination, and publish in the Federal Register notice of
``Dismissal of Antidumping (Countervailing Duty) Petition.''
(e) Determination of industry support. In determining industry
support for a petition under section 702(c)(4) or section 732(c)(4) of
the Act, the following rules will apply:
(1) Measuring production. The Secretary normally will measure
production over a twelve-month period specified by the Secretary, and
may measure production based on either value or volume. Where a party
to the proceeding establishes that production data for the relevant
period, as specified by the Secretary, is unavailable, production
levels may be established by reference to alternative data that the
Secretary determines to be indicative of production levels.
(2) Positions treated as business proprietary information. Upon
request, the Secretary may treat the position of a domestic producer or
workers regarding the petition and any production information supplied
by the producer or workers as business proprietary information under
Sec. 351.105(c)(10).
(3) Positions expressed by workers. The Secretary will consider the
positions of workers and management regarding the petition to be of
equal weight. The Secretary will assign a single weight to the
positions of both workers and management according to the production of
the domestic like product of the firm in which the workers and
management are employed. If the management of a firm expresses a
position in direct opposition to the position of the workers in that
firm, the Secretary will treat the production of that firm as
representing neither support for, nor opposition to, the petition.
(4) Certain positions disregarded. (i) The Secretary will disregard
the position of a domestic producer that opposes the petition if such
producer is related to a foreign producer or to a foreign exporter
under section 771(4)(B)(ii) of the Act, unless such domestic producer
demonstrates to the Secretary's satisfaction that its interests as a
domestic producer would be adversely affected by the imposition of an
antidumping order or a countervailing duty order, as the case may be;
and
(ii) The Secretary may disregard the position of a domestic
producer that is an importer of the subject merchandise, or that is
related to such an importer, under section 771(4)(B)(ii) of the Act.
(5) Polling the industry. In conducting a poll of the industry
under section 702(c)(4)(D)(i) or section 732(c)(4)(D)(i) of the Act,
the Secretary will include unions, groups of workers, and trade or
business associations described in paragraphs (9)(D) and (9)(E) of
section 771 of the Act.
(f) Time limits where petition involves same merchandise as that
covered by an order that has been revoked. Under section 702(c)(1)(C)
or section 732(c)(1)(C) of the Act, and in expediting an investigation
involving subject merchandise for which a prior order was revoked or a
suspended investigation was terminated, the Secretary will consider
``section 751(d)'' as including a predecessor provision.
Sec. 351.204 Time periods and persons examined; voluntary respondents;
exclusions.
(a) Introduction. Because the Act does not specify the precise
period of time that the Secretary should examine in an antidumping or
countervailing duty investigation, this section sets forth rules
regarding the period of investigation (``POI''). In addition, this
section includes rules regarding the selection of persons to be
examined, the treatment of voluntary respondents that are not selected
for individual examination, and the exclusion of persons that the
Secretary ultimately finds are not dumping or are not receiving
countervailable subsidies.
(b) Period of investigation. (1) Antidumping investigation. In an
antidumping investigation, the Secretary normally will examine
merchandise sold during the four most recently completed fiscal
quarters (or, in an investigation involving merchandise imported from a
nonmarket economy country, the two most recently completed fiscal
quarters) as of the month preceding the month in which the petition was
filed or in which the Secretary self-initiated an investigation.
However, the Secretary may examine merchandise sold during any
additional or alternate period that the Secretary concludes is
appropriate.
(2) Countervailing duty investigation. In a countervailing duty
investigation, the Secretary normally will rely on information
pertaining to the most recently completed fiscal year for the
government and exporters or producers in question. If the exporters or
producers have different fiscal years, the Secretary normally will rely
on information pertaining to the most recently completed calendar year.
If the investigation is conducted on an aggregate basis under section
777A(e)(2)(B) of the Act, the Secretary normally will rely on
information pertaining to the most recently completed fiscal year for
the government in question. However, the Secretary may rely on
information for any additional or alternate period that the Secretary
concludes is appropriate.
(c) Exporters and producers examined. (1) In general. In an
investigation, the Secretary will attempt to determine an individual
weighted-average dumping margin or individual countervailable subsidy
rate for each known exporter or producer of the subject merchandise.
However, the Secretary may decline to examine a particular exporter or
producer if that exporter or producer and the petitioner agree.
(2) Limited investigation. Notwithstanding paragraph (c)(1) of this
section, the Secretary may limit the investigation by using a method
described in subsection (a), (c), or (e) of section 777A of the Act.
(d) Voluntary respondents. (1) In general. If the Secretary limits
the number of exporters or producers to be individually examined under
section 777A(c)(2) or section 777A(e)(2)(A) of the Act, the Secretary
will examine voluntary respondents (exporters or producers, other than
those initially selected for individual examination) in accordance with
section 782(a) of the Act.
(2) Acceptance of voluntary respondents. The Secretary will
determine, as soon as practicable, whether to examine a voluntary
respondent individually. A voluntary respondent accepted for individual
examination under subparagraph (d)(1) of this section will be subject
to the same requirements as an exporter or producer initially selected
by the Secretary for individual examination under section 777A(c)(2) or
section 777A(e)(2)(A) of the Act, including the requirements of section
782(a) of the Act and, where applicable, the use of the facts available
under section 776 of the Act and Sec. 351.308.
(3) Exclusion of voluntary respondents' rates from all-others rate.
In calculating an all-others rate under section 705(c)(5) or section
735(c)(5) of the Act, the Secretary will exclude weighted-average
dumping margins or countervailable subsidy rates calculated for
voluntary respondents.
(e) Exclusions. (1) In general. The Secretary will exclude from an
affirmative final determination under section 705(a) or section 735(a)
of the Act or an order under section 706(a) or section 736(a) of the
Act, any exporter or producer for which the Secretary determines an
individual weighted-average dumping margin or individual net
countervailable subsidy rate of zero or de minimis.
(2) Preliminary determinations. In an affirmative preliminary
determination under section 703(b) or section 733(b) of the Act, an
exporter or producer for which the Secretary preliminarily determines
an individual weighted-average dumping margin or individual net
countervailable subsidy of zero or de minimis will not be excluded from
the preliminary determination or the investigation. However, the
exporter or producer will not be subject to provisional measures under
section 703(d) or section 733(d) of the Act.
(3) Exclusion of nonproducing exporter. (i) In general. In the case
of an exporter that is not the producer of subject merchandise, the
Secretary normally will limit an exclusion of the exporter to subject
merchandise of those producers that supplied the exporter during the
period of investigation.
(ii) Example. During the period of investigation, Exporter A
exports to the United States subject merchandise produced by Producer
X. Based on an examination of Exporter A, the Secretary determines that
the dumping margins with respect to these exports are de minimis, and
the Secretary excludes Exporter A. Normally, the exclusion of Exporter
A would be limited to subject merchandise produced by Producer X. If
Exporter A began to export subject merchandise produced by Producer Y,
this merchandise would be subject to the antidumping duty order, if
any.
(4) Countervailing duty investigations conducted on an aggregate
basis and requests for exclusion from countervailing duty order. Where
the Secretary conducts a countervailing duty investigation on an
aggregate basis under section 777A(e)(2)(B) of the Act, the Secretary
will consider and investigate requests for exclusion to the extent
practicable. An exporter or producer that desires exclusion from an
order must submit:
(i) A certification by the exporter or producer that it received
zero or de minimis net countervailable subsidies during the period of
investigation;
(ii) If the exporter or producer received a countervailable
subsidy, calculations demonstrating that the amount of net
countervailable subsidies received was de minimis during the period of
investigation;
(iii) If the exporter is not the producer of the subject
merchandise, certifications from the suppliers and producers of the
subject merchandise that those persons received zero or de minimis net
countervailable subsidies during the period of the investigation; and
(iv) A certification from the government of the affected country
that the government did not provide the exporter (or the exporter's
supplier) or producer with more than de minimis net countervailable
subsidies during the period of investigation.
Sec. 351.205 Preliminary determination.
(a) Introduction. A preliminary determination in an antidumping or
countervailing duty investigation constitutes the first point at which
the Secretary may provide a remedy if the Secretary preliminarily finds
that dumping or countervailable subsidization has occurred. The remedy
(sometimes referred to as ``provisional measures'') usually takes the
form of a bonding requirement to ensure payment if antidumping or
countervailing duties ultimately are imposed. Whether the Secretary's
preliminary determination is affirmative or negative, the investigation
continues. This section contains rules regarding deadlines for
preliminary determinations, postponement of preliminary determinations,
notices of preliminary determinations, and the effects of affirmative
preliminary determinations.
(b) Deadline for preliminary determination. The deadline for a
preliminary determination under section 703(b) or section 733(b) of the
Act will be:
(1) Normally not later than 140 days in an antidumping
investigation (65 days in a countervailing duty investigation) after
the date on which the Secretary initiated the investigation (see
section 703(b)(1) or section 733(b)(1)(A) of the Act);
(2) Not later than 190 days in an antidumping investigation (130
days in a countervailing duty investigation) after the date on which
the Secretary initiated the investigation if the Secretary postpones
the preliminary determination at petitioner's request or because the
Secretary determines that the investigation is extraordinarily
complicated (see section 703(c)(1) or section 733(c)(1) of the Act);
(3) In a countervailing duty investigation, not later than 250 days
after the date on which the proceeding began if the Secretary postpones
the preliminary determination due to an upstream subsidy allegation (up
to 310 days if the Secretary also postponed the preliminary
determination at the request of the petitioner or because the Secretary
determined that the investigation is extraordinarily complicated) (see
section 703(c)(1) and section 703(g)(1) of the Act);
(4) Within 90 days after initiation in an antidumping
investigation, and on an expedited basis in a countervailing duty
investigation, where verification has been waived (see section 703(b)(3)
or section 733(b)(2) of the Act);
(5) In a countervailing duty investigation, on an expedited basis
and within 65 days after the date on which the Secretary initiated the
investigation if the sole subsidy alleged in the petition was the
derogation of an international undertaking on official export credits
(see section 702(b)(3) and section 703(b)(2) of the Act);
(6) In a countervailing duty investigation, not later than 60 days
after the date on which the Secretary initiated the investigation if
the only subsidy under investigation is a subsidy with respect to which
the Secretary received notice from the United States Trade
Representative of a violation of Article 8 of the Subsidies Agreement
(see section 703(b)(5) of the Act); and
(7) In an antidumping investigation, within the deadlines set forth
in section 733(b)(1)(B) of the Act if the investigation involves short
life cycle merchandise (see section 733(b)(1)(B) and section 739 of the
Act).
(c) Contents of preliminary determination and publication of
notice. A preliminary determination will include a preliminary finding
on critical circumstances, if appropriate, under section 703(e)(1) or
section 733(e)(1) of the Act (whichever is applicable). The Secretary
will publish in the Federal Register notice of ``Affirmative (Negative)
Preliminary Antidumping (Countervailing Duty) Determination,''
including the rates, if any, and an invitation for argument consistent
with Sec. 351.309.
(d) Effect of affirmative preliminary determination. If the
preliminary determination is affirmative, the Secretary will take the
actions described in section 703(d) or section 733(d) of the Act
(whichever is applicable). In making information available to the
Commission under section 703(d)(3) or section 733(d)(3) of the Act, the
Secretary will make available to the Commission and to employees of the
Commission directly involved in the proceeding the information upon
which the Secretary based the preliminary determination and which the
Commission may consider relevant to its injury determination.
(e) Postponement at the request of the petitioner. A petitioner
must submit a request for postponement of the preliminary determination
(see section 703(c)(1)(A) or section 733(c)(1)(A) of the Act) 25 days
or more before the scheduled date of the preliminary determination, and
must state the reasons for the request. The Secretary will grant the
request, unless the Secretary finds compelling reasons to deny the
request.
(f) Notice of postponement. (1) If the Secretary decides to
postpone the preliminary determination at the request of the petitioner
or because the investigation is extraordinarily complicated, the
Secretary will notify all parties to the proceeding not later than 20
days before the scheduled date of the preliminary determination, and
will publish in the Federal Register notice of ``Postponement of
Preliminary Antidumping (Countervailing Duty) Determination,'' stating
the reasons for the postponement (see section 703(c)(2) or section
733(c)(2) of the Act).
(2) If the Secretary decides to postpone the preliminary
determination due to an allegation of upstream subsidies, the Secretary
will notify all parties to the proceeding not later than the scheduled
date of the preliminary determination and will publish in the Federal
Register notice of ``Postponement of Preliminary Countervailing Duty
Determination,'' stating the reasons for the postponement.
Sec. 351.206 Critical circumstances.
(a) Introduction. Generally, antidumping or countervailing duties
are imposed on entries of merchandise made on or after the date on
which the Secretary first imposes provisional measures (most often the
date on which notice of an affirmative preliminary determination is
published in the Federal Register). However, if the Secretary finds
that ``critical circumstances'' exist, duties may be imposed
retroactively on merchandise entered up to 90 days before the
imposition of provisional measures. This section contains procedural
and substantive rules regarding allegations and findings of critical
circumstances.
(b) In general. If a petitioner submits to the Secretary a written
allegation of critical circumstances, with reasonably available factual
information supporting the allegation, 21 days or more before the
scheduled date of the Secretary's final determination, or on the
Secretary's own initiative in a self-initiated investigation, the
Secretary will make a finding whether critical circumstances exist, as
defined in section 705(a)(2) or section 735(a)(3) of the Act (whichever
is applicable).
(c) Preliminary finding. (1) If the petitioner submits an
allegation of critical circumstances 30 days or more before the
scheduled date of the Secretary's final determination, the Secretary,
based on the available information, will make a preliminary finding
whether there is a reasonable basis to believe or suspect that critical
circumstances exist, as defined in section 703(e)(1) or section
733(e)(1) of the Act (whichever is applicable).
(2) The Secretary will issue the preliminary finding:
(i) Not later than the preliminary determination, if the allegation
is submitted 20 days or more before the scheduled date of the
preliminary determination; or
(ii) Within 30 days after the petitioner submits the allegation, if
the allegation is submitted later than 20 days before the scheduled
date of the preliminary determination. The Secretary will notify the
Commission and publish in the Federal Register notice of the
preliminary finding.
(d) Suspension of liquidation. If the Secretary makes an
affirmative preliminary finding of critical circumstances, the
provisions of section 703(e)(2) or section 733(e)(2) of the Act
(whichever is applicable) regarding the retroactive suspension of
liquidation will apply.
(e) Final finding. For any allegation of critical circumstances
submitted 21 days or more before the scheduled date of the Secretary's
final determination, the Secretary will make a final finding on
critical circumstances, and will take appropriate action under section
705(c)(4) or section 735(c)(4) of the Act (whichever is applicable).
(f) Findings in self-initiated investigations. In a self-initiated
investigation, the Secretary will make preliminary and final findings
on critical circumstances without regard to the time limits in
paragraphs (c) and (e) of this section.
(g) Information regarding critical circumstances. The Secretary may
request the Commissioner of Customs to compile information on an
expedited basis regarding entries of the subject merchandise if, at any
time after the initiation of an investigation, the Secretary makes the
findings described in section 702(e) or section 732(e) of the Act
(whichever is applicable) regarding the possible existence of critical
circumstances.
(h) Massive imports. (1) In determining whether imports of the
subject merchandise have been massive under section 705(a)(2)(B) or
section 735(a)(3)(B) of the Act, the Secretary normally will examine:
(i) The volume and value of the imports;
(ii) Seasonal trends; and
(iii) The share of domestic consumption accounted for by the imports.
(2) In general, unless the imports during the ``relatively short
period'' (see paragraph (i) of this section) have increased by at least
15 percent over the imports during an immediately preceding period of
comparable duration, the Secretary will not consider the imports massive.
(i) Relatively short period. Under section 705(a)(2)(B) or section
735(a)(3)(B) of the Act, the Secretary normally will consider a
``relatively short period'' as the period beginning on the date the
proceeding begins and ending at least three months later. However, if
the Secretary finds that importers, or exporters or producers, had
reason to believe, at some time prior to the beginning of the
proceeding, that a proceeding was likely, then the Secretary may
consider a period of not less than three months from that earlier time.
Sec. 351.207 Termination of investigation.
(a) Introduction. ``Termination'' is a term of art that refers to
the end of an antidumping or countervailing duty proceeding in which an
order has not yet been issued. The Act establishes a variety of
mechanisms by which an investigation may be terminated, most of which
are dealt with in this section. For rules regarding the termination of
a suspended investigation following a review under section 751 of the
Act, see Sec. 351.222.
(b) Withdrawal of petition; self-initiated investigations. (1) In
general. The Secretary may terminate an investigation under section
704(a)(1)(A) or section 734(a)(1)(A) (withdrawal of petition) or under
section 704(k) or section 734(k) (self-initiated investigation) of the
Act, provided that the Secretary concludes that termination is in the
public interest. If the Secretary terminates an investigation, the
Secretary will publish in the Federal Register notice of ``Termination
of Antidumping (Countervailing Duty) Investigation,'' together with,
when appropriate, a copy of any correspondence with the petitioner
forming the basis of the withdrawal and the termination. (For the
treatment in a subsequent investigation of records compiled in an
investigation in which the petition was withdrawn, see section
704(a)(1)(B) or section 734(a)(1)(B) of the Act.)
(2) Withdrawal of petition based on acceptance of quantitative
restriction agreements. In addition to the requirements of paragraph
(b)(1) of this section, if a termination is based on the acceptance of
an understanding or other kind of agreement to limit the volume of
imports into the United States of the subject merchandise, the
Secretary will apply the provisions of section 704(a)(2) or section
734(a)(2) of the Act (whichever is applicable) regarding public
interest and consultations with consuming industries and producers and
workers.
(c) Lack of interest. The Secretary may terminate an investigation
based upon lack of interest (see section 782(h)(1) of the Act). Where
the Secretary terminates an investigation under this paragraph, the
Secretary will publish the notice described in paragraph (b)(1) of this
section.
(d) Negative determination. An investigation terminates
automatically upon publication in the Federal Register of the
Secretary's negative final determination or the Commission's negative
preliminary or final determination.
(e) End of suspension of liquidation. When an investigation
terminates, if the Secretary previously ordered suspension of
liquidation, the Secretary will order the suspension ended on the date
of publication of the notice of termination referred to in paragraph
(b) of this section or on the date of publication of a negative
determination referred to in paragraph (d) of this section, and will
instruct the Customs Service to release any cash deposit or bond.
Sec. 351.208 Suspension of investigation.
(a) Introduction. In addition to the imposition of duties, the Act
also permits the Secretary to suspend an antidumping or countervailing
duty investigation by accepting a suspension agreement (referred to in
the WTO Agreements as an ``undertaking''). Briefly, in a suspension
agreement, the exporters and producers or the foreign government agree
to modify their behavior so as to eliminate dumping or subsidization or
the injury caused thereby. If the Secretary accepts a suspension
agreement, the Secretary will ``suspend'' the investigation and
thereafter will monitor compliance with the agreement. This section
contains rules for entering into suspension agreements and procedures
for suspending an investigation.
(b) In general. The Secretary may suspend an investigation under
section 704 or section 734 of the Act and this section.
(c) Definition of ``substantially all.'' Under section 704 and
section 734 of the Act, exporters that account for ``substantially
all'' of the merchandise means exporters and producers that have
accounted for not less than 85 percent by value or volume of the
subject merchandise during the period for which the Secretary is
measuring dumping or countervailable subsidization in the investigation
or such other period that the Secretary considers representative.
(d) Monitoring. In monitoring a suspension agreement under section
704(c), section 734(c), or section 734(l) of the Act (agreements to
eliminate injurious effects or to restrict the volume of imports), the
Secretary will not be obliged to ascertain on a continuing basis the
prices in the United States of the subject merchandise or of domestic
like products.
(e) Exports not to increase during interim period. The Secretary
will not accept a suspension agreement under section 704(b)(2) or
section 734(b)(1) of the Act (the cessation of exports) unless the
agreement ensures that the quantity of the subject merchandise exported
during the interim period set forth in the agreement does not exceed
the quantity of the merchandise exported during a period of comparable
duration that the Secretary considers representative.
(f) Procedure for suspension of investigation. (1) Submission of
proposed suspension agreement. (i) In general. As appropriate, the
exporters and producers or, in an antidumping investigation involving a
nonmarket economy country or a countervailing duty investigation, the
government, must submit to the Secretary a proposed suspension
agreement within:
(A) In an antidumping investigation, 15 days after the date of
issuance of the preliminary determination, or
(B) In a countervailing duty investigation, 7 days after the date
of issuance of the preliminary determination.
(ii) Postponement of final determination. Where a proposed
suspension agreement is submitted in an antidumping investigation, an
exporter or producer or, in an investigation involving a nonmarket
economy country, the government, may request postponement of the final
determination under section 735(a)(2) of the Act (see Sec. 351.210(e)).
Where the final determination in a countervailing duty investigation is
postponed under section 703(g)(2) or section 705(a)(1) of the Act (see
Sec. 351.210(b)(3) and Sec. 351.210(i)), the time limits in paragraphs
(f)(1)(i), (f)(2)(i), (f)(3), and (g)(1) of this section applicable to
countervailing duty investigations will be extended to coincide with
the time limits in such paragraphs applicable to antidumping
investigations.
(iii) Special rule for regional industry determination. If the
Commission makes a regional industry determination in its final affirmative
determination under section 705(b) or section 735(b) of the Act but not in
its preliminary affirmative determination under section 703(a) or section
733(a) of the Act, the exporters and producers or, in an antidumping
investigation involving a nonmarket economy country or a countervailing
duty investigation, the government, must submit to the Secretary any
proposed suspension agreement within 15 days of the publication in the
Federal Register of the antidumping or countervailing duty order.
(2) Notification and consultation. In fulfilling the requirements
of section 704 or section 734 of the Act (whichever is applicable), the
Secretary will take the following actions:
(i) In general. The Secretary will notify all parties to the
proceeding of the proposed suspension of an investigation and provide
to the petitioner a copy of the suspension agreement preliminarily
accepted by the Secretary (the agreement must contain the procedures
for monitoring compliance and a statement of the compatibility of the
agreement with the requirements of section 704 or section 734 of the
Act) within:
(A) In an antidumping investigation, 30 days after the date of
issuance of the preliminary determination, or
(B) In a countervailing duty investigation, 15 days after the date
of issuance of the preliminary determination; or
(ii) Special rule for regional industry determination. If the
Commission makes a regional industry determination in its final
affirmative determination under section 705(b) or section 735(b) of the
Act but not in its preliminary affirmative determination under section
703(a) or section 733(a) of the Act, the Secretary, within 15 days of
the submission of a proposed suspension agreement under paragraph
(f)(1)(iii) of this section, will notify all parties to the proceeding
of the proposed suspension agreement and provide to the petitioner a
copy of the agreement preliminarily accepted by the Secretary (such
agreement must contain the procedures for monitoring compliance and a
statement of the compatibility of the agreement with the requirements
of section 704 or section 734 of the Act); and
(iii) Consultation. The Secretary will consult with the petitioner
concerning the proposed suspension of the investigation.
(3) Opportunity for comment. The Secretary will provide all
interested parties, an industrial user of the subject merchandise or a
representative consumer organization, as described in section 777(h) of
the Act, and United States government agencies an opportunity to submit
written argument and factual information concerning the proposed
suspension of the investigation within:
(i) In an antidumping investigation, 50 days after the date of
issuance of the preliminary determination,
(ii) In a countervailing duty investigation, 35 days after the date
of issuance of the preliminary determination, or
(iii) In a regional industry case described in paragraph
(f)(1)(iii) of this section, 35 days after the date of issuance of an
order.
(g) Acceptance of suspension agreement. (1) The Secretary may
accept an agreement to suspend an investigation within:
(i) In an antidumping investigation, 60 days after the date of
issuance of the preliminary determination,
(ii) In a countervailing duty investigation, 45 days after the date
of issuance of the preliminary determination, or
(iii) In a regional industry case described in paragraph
(f)(1)(iii) of this section, 45 days after the date of issuance of an
order.
(2) If the Secretary accepts an agreement to suspend an
investigation, the Secretary will take the actions described in section
704(f), section 704(m)(3), section 734(f), or section 734(l)(3) of the
Act (whichever is applicable), and will publish in the Federal Register
notice of ``Suspension of Antidumping (Countervailing Duty)
Investigation,'' including the text of the agreement. If the Secretary
has not already published notice of an affirmative preliminary
determination, the Secretary will include that notice. In accepting an
agreement, the Secretary may rely on factual or legal conclusions the
Secretary reached in or after the affirmative preliminary
determination.
(h) Continuation of investigation. (1) A request to the Secretary
under section 704(g) or section 734(g) of the Act for the continuation
of the investigation must be made in writing. In addition, the request
must be simultaneously filed with the Commission, and the requester
must so certify in submitting the request to the Secretary.
(2) If the Secretary and the Commission make affirmative final
determinations in an investigation that has been continued, the
suspension agreement will remain in effect in accordance with the
factual and legal conclusions in the Secretary's final determination.
If either the Secretary or the Commission makes a negative final
determination, the agreement will have no force or effect.
(i) Merchandise imported in excess of allowed quantity. (1) The
Secretary may instruct the Customs Service not to accept entries, or
withdrawals from warehouse, for consumption of subject merchandise in
excess of any quantity allowed by a suspension agreement under section
704 or section 734 of the Act, including any quantity allowed during
the interim period (see paragraph (e) of this section).
(2) Imports in excess of the quantity allowed by a suspension
agreement, including any quantity allowed during the interim period
(see paragraph (e) of this section), may be exported or destroyed under
Customs Service supervision, except that if the agreement is under
section 704(c)(3) or section 734(l) of the Act (restrictions on the
volume of imports), the excess merchandise, with the approval of the
Secretary, may be held for future opening under the agreement by
placing it in a foreign trade zone or by entering it for warehouse.
Sec. 351.209 Violation of suspension agreement.
(a) Introduction. A suspension agreement remains in effect until
the underlying investigation is terminated (see Secs. 351.207 and
351.222). However, if the Secretary finds that a suspension agreement
has been violated or no longer meets the requirements of the Act, the
Secretary may either cancel or revise the agreement. This section
contains rules regarding cancellation and revision of suspension
agreements.
(b) Immediate determination. If the Secretary determines that a
signatory has violated a suspension agreement, the Secretary, without
providing interested parties an opportunity to comment, will:
(1) Order the suspension of liquidation in accordance with section
704(i)(1)(A) or section 734(i)(1)(A) of the Act (whichever is
applicable) of all entries of the subject merchandise entered, or
withdrawn from warehouse, for consumption on or after the later of:
(i) 90 days before the date of publication of the notice of
cancellation of the agreement; or
(ii) The date of first entry, or withdrawal from warehouse, for
consumption of the merchandise the sale or export of which was in
violation of the agreement;
(2) If the investigation was not completed under section 704(g) or
section 734(g) of the Act, resume the investigation as if the Secretary
had made an affirmative preliminary determination on the date of
publication of the notice of cancellation and impose provisional measures
by instructing the Customs Service to require for each entry of the
subject merchandise suspended under paragraph (b)(1) of this section a
cash deposit or bond at the rates determined in the affirmative
preliminary determination;
(3) If the investigation was completed under section 704(g) or
section 734(g) of the Act, issue an antidumping order or countervailing
duty order (whichever is applicable) and, for all entries subject to
suspension of liquidation under paragraph (b)(1) of this section,
instruct the Customs Service to require for each entry of the
merchandise suspended under this paragraph a cash deposit at the rates
determined in the affirmative final determination;
(4) Notify all persons who are or were parties to the proceeding,
the Commission, and, if the Secretary determines that the violation was
intentional, the Commissioner of Customs; and
(5) Publish in the Federal Register notice of ``Antidumping
(Countervailing Duty) Order (Resumption of Antidumping (Countervailing
Duty) Investigation); Cancellation of Suspension Agreement.''
(c) Determination after notice and comment. (1) If the Secretary
has reason to believe that a signatory has violated a suspension
agreement, or that an agreement no longer meets the requirements of
section 704(d)(1) or section 734(d) of the Act, but the Secretary does
not have sufficient information to determine that a signatory has
violated the agreement (see paragraph (b) of this section), the
Secretary will publish in the Federal Register notice of ``Invitation
for Comment on Antidumping (Countervailing Duty) Suspension
Agreement.''
(2) After publication of the notice inviting comment and after
consideration of comments received the Secretary will:
(i) Determine whether any signatory has violated the suspension
agreement; or
(ii) Determine whether the suspension agreement no longer meets the
requirements of section 704(d)(1) or section 734(d) of the Act.
(3) If the Secretary determines that a signatory has violated the
suspension agreement, the Secretary will take appropriate action as
described in paragraphs (b)(1) through (b)(5) of this section.
(4) If the Secretary determines that a suspension agreement no
longer meets the requirements of section 704(d)(1) or section 734(d) of
the Act, the Secretary will:
(i) Take appropriate action as described in paragraphs (b)(1)
through (b)(5) of this section; except that, under paragraph (b)(1)(ii)
of this section, the Secretary will order the suspension of liquidation
of all entries of the subject merchandise entered, or withdrawn from
warehouse, for consumption on or after the later of:
(A) 90 days before the date of publication of the notice of
suspension of liquidation; or
(B) The date of first entry, or withdrawal from warehouse, for
consumption of the merchandise the sale or export of which does not
meet the requirements of section 704(d)(1) of the Act;
(ii) Continue the suspension of investigation by accepting a
revised suspension agreement under section 704(b) or section 734(b) of
the Act (whether or not the Secretary accepted the original agreement
under such section) that, at the time the Secretary accepts the revised
agreement, meets the applicable requirements of section 704(d)(1) or
section 734(d) of the Act, and publish in the Federal Register notice
of ``Revision of Agreement Suspending Antidumping (Countervailing Duty)
Investigation''; or
(iii) Continue the suspension of investigation by accepting a
revised suspension agreement under section 704(c), section 734(c), or
section 734(l) of the Act (whether or not the Secretary accepted the
original agreement under such section) that, at the time the Secretary
accepts the revised agreement, meets the applicable requirements of
section 704(d)(1) or section 734(d) of the Act, and publish in the
Federal Register notice of ``Revision of Agreement Suspending
Antidumping (Countervailing Duty) Investigation.'' If the Secretary
continues to suspend an investigation based on a revised agreement
accepted under section 704(c), section 734(c), or section 734(l) of the
Act, the Secretary will order suspension of liquidation to begin. The
suspension will not end until the Commission completes any requested
review of the revised agreement under section 704(h) or section 734(h)
of the Act. If the Commission receives no request for review within 20
days after the date of publication of the notice of the revision, the
Secretary will order the suspension of liquidation ended on the 21st
day after the date of publication, and will instruct the Customs
Service to release any cash deposit or bond. If the Commission
undertakes a review under section 704(h) or section 734(h) of the Act,
the provisions of sections 704(h)(2) and (3) and sections 734(h)(2) and
(3) of the Act will apply.
(5) If the Secretary decides neither to consider the suspension
agreement violated nor to revise the agreement, the Secretary will
publish in the Federal Register notice of the Secretary's decision
under paragraph (c)(2) of this section, including a statement of the
factual and legal conclusions on which the decision is based.
(d) Additional signatories. If the Secretary decides that a
suspension agreement no longer will completely eliminate the injurious
effect of exports to the United States of subject merchandise under
section 704(c)(1) or section 734(c)(1) of the Act, or that the
signatory exporters no longer account for substantially all of the
subject merchandise, the Secretary may revise the agreement to include
additional signatory exporters.
(e) Definition of ``violation.'' Under this section, ``violation''
means noncompliance with the terms of a suspension agreement caused by
an act or omission of a signatory, except, at the discretion of the
Secretary, an act or omission which is inadvertent or inconsequential.
Sec. 351.210 Final determination.
(a) Introduction. A ``final determination'' in an antidumping or
countervailing duty investigation constitutes a final decision by the
Secretary as to whether dumping or countervailable subsidization is
occurring. If the Secretary's final determination is affirmative, in
most instances the Commission will issue a final injury determination
(except in certain countervailing duty investigations). Also, if the
Secretary's preliminary determination was negative but the final
determination is affirmative, the Secretary will impose provisional
measures. If the Secretary's final determination is negative, the
proceeding, including the injury investigation conducted by the
Commission, terminates. This section contains rules regarding deadlines
for, and postponement of, final determinations, contents of final
determinations, and the effects of final determinations.
(b) Deadline for final determination. The deadline for a final
determination under section 705(a)(1) or section 735(a)(1) of the Act
will be:
(1) Normally, not later than 75 days after the date of the
Secretary's preliminary determination (see section 705(a)(1) or section
735(a)(1) of the Act);
(2) In an antidumping investigation, not later than 135 days after
the date of publication of the preliminary determination if the Secretary
postpones the final determination at the request of:
(i) The petitioner, if the preliminary determination was negative
(see section 735(a)(2)(B) of the Act); or
(ii) Exporters or producers who account for a significant
proportion of exports of the subject merchandise, if the preliminary
determination was affirmative (see section 735(a)(2)(A) of the Act);
(3) In a countervailing duty investigation, not later than 165 days
after the preliminary determination, if, after the preliminary
determination, the Secretary decides to investigate an upstream subsidy
allegation and concludes that additional time is needed to investigate
the allegation (see section 703(g)(2) of the Act); or
(4) In a countervailing duty investigation, the same date as the
date of the final antidumping determination, if:
(i) In a situation where the Secretary simultaneously initiated
antidumping and countervailing duty investigations on the subject
merchandise (from the same or other countries), the petitioner requests
that the final countervailing duty determination be postponed to the
date of the final antidumping determination; and
(ii) If the final countervailing duty determination is not due on a
later date because of postponement due to an allegation of upstream
subsidies under section 703(g) of the Act (see section 705(a)(1) of the
Act).
(c) Contents of final determination and publication of notice. The
final determination will include, if appropriate, a final finding on
critical circumstances under section 705(a)(2) or section 735(a)(3) of
the Act (whichever is applicable). The Secretary will publish in the
Federal Register notice of ``Affirmative (Negative) Final Antidumping
(Countervailing Duty) Determination,'' including the rates, if any.
(d) Effect of affirmative final determination. If the final
determination is affirmative, the Secretary will take the actions
described in section 705(c)(1) or section 735(c)(1) of the Act
(whichever is applicable). In addition, in the case of a countervailing
duty investigation involving subject merchandise from a country that is
not a Subsidies Agreement country, the Secretary will instruct the
Customs Service to require a cash deposit, as provided in section
706(a)(3) of the Act, for each entry of the subject merchandise
entered, or withdrawn from warehouse, for consumption on or after the
date of publication of the order under section 706(a) of the Act.
(e) Request for postponement of final antidumping determination.
(1) In general. A request to postpone a final antidumping determination
under section 735(a)(2) of the Act (see paragraph (b)(2) of this
section) must be submitted in writing within the scheduled date of the
final determination. The Secretary may grant the request, unless the
Secretary finds compelling reasons to deny the request.
(2) Requests by exporters. In the case of a request submitted under
paragraph (e)(1) of this section by exporters who account for a
significant proportion of exports of subject merchandise (see section
735(a)(2)(A) of the Act), the Secretary will not grant the request
unless those exporters also submit a request described in the last
sentence of section 733(d) of the Act (extension of provisional
measures from a 4-month period to not more than 6 months).
(f) Deferral of decision concerning upstream subsidization to
review. Notwithstanding paragraph (b)(3) of this section, if the
petitioner so requests in writing and the preliminary countervailing
duty determination was affirmative, the Secretary, instead of
postponing the final determination, may defer a decision concerning
upstream subsidization until the conclusion of the first administrative
review of a countervailing duty order, if any (see section
703(g)(2)(B)(i) of the Act).
(g) Notification of postponement. If the Secretary postpones a
final determination under paragraph (b)(2), (b)(3), or (b)(4) of this
section, the Secretary will notify promptly all parties to the
proceeding of the postponement, and will publish in the Federal
Register notice of ``Postponement of Final Antidumping (Countervailing
Duty) Determination,'' stating the reasons for the postponement.
(h) Termination of suspension of liquidation in a countervailing
duty investigation. If the Secretary postpones a final countervailing
duty determination, the Secretary will end any suspension of
liquidation ordered in the preliminary determination not later than 120
days after the date of publication of the preliminary determination,
and will not resume it unless and until the Secretary publishes a
countervailing duty order.
(i) Postponement of final countervailing duty determination for
simultaneous investigations. A request by the petitioner to postpone a
final countervailing duty determination to the date of the final
antidumping determination must be submitted in writing within five days
of the date of publication of the preliminary countervailing duty
determination (see section 705(a)(1) and paragraph (b)(4) of this
section).
(j) Commission access to information. If the final determination is
affirmative, the Secretary will make available to the Commission and to
employees of the Commission directly involved in the proceeding the
information upon which the Secretary based the final determination and
that the Commission may consider relevant to its injury determination
(see section 705(c)(1)(A) or section 735(c)(1)(A) of the Act).
(k) Effect of negative final determination. An investigation
terminates upon publication in the Federal Register of the Secretary's
or the Commission's negative final determination, and the Secretary
will take the relevant actions described in section 705(c)(2) or
section 735(c)(2) of the Act (whichever is applicable).
Sec. 351.211 Antidumping order and countervailing duty order.
(a) Introduction. The Secretary issues an order when both the
Secretary and the Commission (except in certain countervailing duty
investigations) have made final affirmative determinations. The
issuance of an order ends the investigative phase of a proceeding.
Generally, upon the issuance of an order, importers no longer may post
bonds as security for antidumping or countervailing duties, but instead
must make a cash deposit of estimated duties. An order remains in
effect until it is revoked. This section contains rules regarding the
issuance of orders in general, as well as special rules for orders
where the Commission has found a regional industry to exist.
(b) In general. Not later than seven days after receipt of notice
of an affirmative final injury determination by the Commission under
section 705(b) or section 735(b) of the Act, or, in a countervailing
duty proceeding involving subject merchandise from a country not
entitled to an injury test (see Sec. 351.101(b)), simultaneously with
publication of an affirmative final countervailing duty determination
by the Secretary, the Secretary will publish in the Federal Register an
``Antidumping Order'' or ``Countervailing Duty Order'' that:
(1) Instructs the Customs Service to assess antidumping duties or
countervailing duties (whichever is applicable) on the subject
merchandise, in accordance with the Secretary's instructions at the
completion of each review requested under Sec. 351.213(b)
(administrative review), Sec. 351.214(b) (new shipper review), or
Sec. 351.215(b) (expedited antidumping review), or if a review is not
requested, in accordance with the Secretary's assessment instructions
under Sec. 351.212(c);
(2) Instructs the Customs Service to require a cash deposit of
estimated antidumping or countervailing duties at the rates included in
the Secretary's final determination; and
(3) Orders the suspension of liquidation ended for all entries of
the subject merchandise entered, or withdrawn from warehouse, for
consumption before the date of publication of the Commission's final
determination, and instructs the Customs Service to release the cash
deposit or bond on those entries, if in its final determination, the
Commission found a threat of material injury or material retardation of
the establishment of an industry, unless the Commission in its final
determination also found that, absent the suspension of liquidation
ordered under section 703(d)(2) or section 733(d)(2) of the Act, it
would have found material injury (see section 706(b) or section 736(b)
of the Act).
Sec. 351.212 Assessment of antidumping and countervailing duties;
provisional measures deposit cap; interest on certain overpayments and
underpayments.
(a) Introduction. Unlike the systems of some other countries, the
United States uses a ``retrospective'' assessment system under which
final liability for antidumping and countervailing duties is determined
after merchandise is imported. Generally, the amount of duties to be
assessed is determined in a review of the order covering a discrete
period of time. If a review is not requested, duties are assessed at
the rate established in the completed review covering the most recent
prior period or, if no review has been completed, the cash deposit rate
applicable at the time merchandise was entered. This section contains
rules regarding the assessment of duties, the provisional measures
deposit cap, and interest on over- or undercollections of estimated
duties.
(b) Assessment of antidumping and countervailing duties as the
result of a review. (1) Antidumping duties. If the Secretary has
conducted a review of an antidumping order under Sec. 351.213
(administrative review), Sec. 351.214 (new shipper review), or
Sec. 351.215 (expedited antidumping review), the Secretary normally
will calculate an assessment rate for each importer of subject
merchandise covered by the review. The Secretary normally will
calculate the assessment rate by dividing the dumping margin found on
the subject merchandise examined by the entered value of such
merchandise for normal customs duty purposes. The Secretary then will
instruct the Customs Service to assess antidumping duties by applying
the assessment rate to the entered value of the merchandise.
(2) Countervailing duties. If the Secretary has conducted a review
of a countervailing duty order under Sec. 351.213 (administrative
review) or Sec. 351.214 (new shipper review), the Secretary normally
will instruct the Customs Service to assess countervailing duties by
applying the rates included in the final results of the review to the
entered value of the merchandise.
(c) Automatic assessment of antidumping and countervailing duties
if no review is requested. (1) If the Secretary does not receive a
timely request for an administrative review of an order (see paragraph
(b)(1), (b)(2), or (b)(3) of Sec. 351.213), the Secretary, without
additional notice, will instruct the Customs Service to:
(i) Assess antidumping duties or countervailing duties, as the case
may be, on the subject merchandise described in Sec. 351.213(e) at
rates equal to the cash deposit of, or bond for, estimated antidumping
duties or countervailing duties required on that merchandise at the
time of entry, or withdrawal from warehouse, for consumption; and
(ii) To continue to collect the cash deposits previously ordered.
(2) If the Secretary receives a timely request for an
administrative review of an order (see paragraph (b)(1), (b)(2), or
(b)(3) of Sec. 351.213), the Secretary will instruct the Customs
Service to assess antidumping duties or countervailing duties, and to
continue to collect cash deposits, on the merchandise not covered by
the request in accordance with paragraph (c)(1) of this section.
(3) The automatic assessment provisions of paragraphs (c)(1) and
(c)(2) of this section will not apply to subject merchandise that is
the subject of a new shipper review (see Sec. 351.214) or an expedited
antidumping review (see Sec. 351.215).
(d) Provisional measures deposit cap. This paragraph applies to
subject merchandise entered, or withdrawn from warehouse, for
consumption before the date of publication of the Commission's notice
of an affirmative final injury determination or, in a countervailing
duty proceeding that involves merchandise from a country that is not
entitled to an injury test, the date of the Secretary's notice of an
affirmative final countervailing duty determination. If the amount of
duties that would be assessed by applying the rates included in the
Secretary's affirmative preliminary or affirmative final antidumping or
countervailing duty determination (``provisional duties'') is different
from the amount of duties that would be assessed by applying the
assessment rate under paragraphs (b)(1) and (b)(2) of this section
(``final duties''), the Secretary will instruct the Customs Service to
disregard the difference to the extent that the provisional duties are
less than the final duties, and to assess antidumping or countervailing
duties at the assessment rate if the provisional duties exceed the
final duties.
(e) Interest on certain overpayments and underpayments. Under
section 778 of the Act, the Secretary will instruct the Customs Service
to calculate interest for each entry on or after the publication of the
order from the date that a cash deposit is required to be deposited for
the entry through the date of liquidation of the entry.
(f) Special rule for regional industry cases. (1) In general. If
the Commission, in its final injury determination, found a regional
industry under section 771(4)(C) of the Act, the Secretary may direct
that duties not be assessed on subject merchandise of a particular
exporter or producer if the Secretary determines that:
(i) The exporter or producer did not export subject merchandise for
sale in the region concerned during or after the Department's period of
investigation;
(ii) The exporter or producer has certified that it will not export
subject merchandise for sale in the region concerned in the future so
long as the antidumping or countervailing duty order is in effect; and
(iii) No subject merchandise of the exporter or producer was
entered into the United States outside of the region and then sold into
the region during or after the Department's period of investigation.
(2) Procedures for obtaining an exception from the assessment of
duties. (i) Request for exception. An exporter or producer seeking an
exception from the assessment of duties under paragraph (f)(1) of this
section must request, subject to the provisions of Sec. 351.213 or
Sec. 351.214, an administrative review or a new shipper review to
determine whether subject merchandise of the exporter or producer in
question should be excepted from the assessment of duties under
paragraph (f)(1) of this section. The exporter or producer making the
request may request that the review be limited to a determination as to
whether the requirements of paragraph (f)(1) of this section are
satisfied. The request for a review must be accompanied by:
(A) A certification by the exporter or producer that it did not
export subject merchandise for sale in the region concerned during or
after the Department's period of investigation, and that it will not do
so in the future so long as the antidumping or countervailing duty
order is in effect; and
(B) A certification from each of the exporter's or producer's U.S.
importers of the subject merchandise that no subject merchandise of
that exporter or producer was entered into the United States outside
such region and then sold into the region during or after the
Department's period of investigation.
(ii) Limited review. If the Secretary initiates an administrative
review or a new shipper review based on a request for review that
includes a request for an exception from the assessment of duties under
paragraph (f)(2)(i) of this section, the Secretary, if requested, may
limit the review to a determination as to whether an exception from the
assessment of duties should be granted under paragraph (f)(1) of this
section.
(3) Exception granted. If, in the final results of the
administrative review or the new shipper review, the Secretary
determines that the requirements of paragraph (f)(1) of this section
are satisfied, the Secretary will instruct the Customs Service to
liquidate, without regard to antidumping or countervailing duties
(whichever is appropriate), entries of subject merchandise of the
exporter or producer concerned.
(4) Exception not granted. If, in the final results of the
administrative review or the new shipper review, the Secretary
determines that the requirements of paragraph (f)(1) are not satisfied,
the Secretary:
(i) Will issue assessment instructions to the Customs Service in
accordance with paragraph (b) of this section; or
(ii) If the review was limited to a determination as to whether an
exception from the assessment of duties should be granted, the
Secretary will instruct the Customs Service to assess duties in
accordance with paragraph (f)(1) or (f)(2) of this section, whichever
is appropriate (automatic assessment if no review is requested).
Sec. 351.213 Administrative review of orders and suspension agreements
under section 751(a)(1) of the Act.
(a) Introduction. As noted in Sec. 351.212(a), the United States
has a ``retrospective'' assessment system under which final liability
for antidumping and countervailing duties is determined after
merchandise is imported. Although duty liability may be determined in
the context of other types of reviews, the most frequently used
procedure for determining final duty liability is the administrative
review procedure under section 751(a)(1) of the Act. This section
contains rules regarding requests for administrative reviews and the
conduct of such reviews.
(b) Request for administrative review. (1) Each year during the
anniversary month of the publication of an antidumping or
countervailing duty order, a domestic interested party or an interested
party described in section 771(9)(B) of the Act (foreign government)
may request in writing that the Secretary conduct an administrative
review under section 751(a)(1) of the Act of specified individual
exporters or producers covered by an order (except for a countervailing
duty order in which the investigation or prior administrative review
was conducted on an aggregate basis), if the requesting person states
why the person desires the Secretary to review those particular
exporters or producers.
(2) During the same month, an exporter or producer covered by an
order (except for a countervailing duty order in which the
investigation or prior administrative review was conducted on an
aggregate basis) may request in writing that the Secretary conduct an
administrative review of only that person.
(3) During the same month, an importer of the merchandise may
request in writing that the Secretary conduct an administrative review
of only an exporter or producer (except for a countervailing duty order
in which the investigation or prior administrative review was conducted
on an aggregate basis) of the subject merchandise imported by that
importer.
(4) Each year during the anniversary month of the publication of a
suspension of investigation, an interested party may request in writing
that the Secretary conduct an administrative review of all producers or
exporters covered by an agreement on which the suspension of
investigation was based.
(c) Deferral of administrative review. (1) In general. The
Secretary may defer the initiation of an administrative review, in
whole or in part, for one year if:
(i) The request for administrative review is accompanied by a
request that the Secretary defer the review, in whole or in part; and
(ii) None of the following persons objects to the deferral: the
exporter or producer for which deferral is requested, an importer of
subject merchandise of that exporter or producer, a domestic interested
party and, in a countervailing duty proceeding, the foreign government.
(2) Timeliness of objection to deferral. An objection to a deferral
of the initiation of administrative review under paragraph (c)(1)(ii)
of this section must be submitted within 15 days after the end of the
anniversary month in which the administrative review is requested.
(3) Procedures and deadlines. If the Secretary defers the
initiation of an administrative review, the Secretary will publish
notice of the deferral in the Federal Register. The Secretary will
initiate the administrative review in the month immediately following
the next anniversary month, and the deadline for issuing preliminary
results of review (see paragraph (h)(1) of this section) and submitting
factual information (see Sec. 351.302(b)(2)) will run from the last day
of the next anniversary month.
(d) Rescission of administrative review. (1) Withdrawal of request
for review. The Secretary will rescind an administrative review under
this section, in whole or in part, if a party that requested a review
withdraws the request within 90 days of the date of publication of
notice of initiation of the requested review. The Secretary may extend
this time limit if the Secretary decides that it is reasonable to do
so.
(2) Self-initiated review. The Secretary may rescind an
administrative review that was self-initiated by the Secretary.
(3) No shipments. The Secretary may rescind an administrative
review, in whole or only with respect to a particular exporter or
producer, if the Secretary concludes that, during the period covered by
the review, there were no entries, exports, or sales of the subject
merchandise, as the case may be.
(4) Notice of rescission. If the Secretary rescinds an
administrative review (in whole or in part), the Secretary will publish
in the Federal Register notice of ``Rescission of Antidumping
(Countervailing Duty) Administrative Review'' or, if appropriate,
``Partial Rescission of Antidumping (Countervailing Duty)
Administrative Review.''
(e) Period of review. (1) Antidumping proceedings. (i) Except as
provided in paragraph (e)(1)(ii) of this section, an administrative
review under this section normally will cover, as appropriate, entries,
exports, or sales of the subject merchandise during the 12 months
immediately preceding the most recent anniversary month.
(ii) For requests received during the first anniversary month after
publication of an order or suspension of investigation, an administrative
review under this section will cover, as appropriate, entries, exports,
or sales during the period from the date of suspension of liquidation
under this part or suspension of investigation to the end of the month
immediately preceding the first anniversary month.
(2) Countervailing duty proceedings. (i) Except as provided in
paragraph (e)(2)(ii) of this section, an administrative review under
this section normally will cover entries or exports of the subject
merchandise during the most recently completed calendar year. If the
review is conducted on an aggregate basis, the Secretary normally will
cover entries or exports of the subject merchandise during the most
recently completed fiscal year for the government in question.
(ii) For requests received during the first anniversary month after
publication of an order or suspension of investigation, an
administrative review under this section will cover entries or exports,
as appropriate, during the period from the date of suspension of
liquidation under this part or suspension of investigation to the end
of the most recently completed calendar or fiscal year as described in
paragraph (e)(2)(i) of this section.
(f) Voluntary respondents. In an administrative review, the
Secretary will examine voluntary respondents in accordance with section
782(a) of the Act and Sec. 351.204(d).
(g) Procedures. The Secretary will conduct an administrative review
under this section in accordance with Sec. 351.221.
(h) Time limits. (1) In general. The Secretary will issue
preliminary results of review (see Sec. 351.221(b)(4)) within 245 days
after the last day of the anniversary month of the order or suspension
agreement for which the administrative review was requested, and final
results of review (see Sec. 351.221(b)(5)) within 120 days after the
date on which notice of the preliminary results was published in the
Federal Register.
(2) Exception. If the Secretary determines that it is not
practicable to complete the review within the time specified in
paragraph (h)(1) of this section, the Secretary may extend the 245-day
period to 365 days and may extend the 120-day period to 180 days. If
the Secretary does not extend the time for issuing preliminary results,
the Secretary may extend the time for issuing final results from 120
days to 300 days.
(i) Possible cancellation or revision of suspension agreement. If
during an administrative review the Secretary determines or has reason
to believe that a signatory has violated a suspension agreement or that
the agreement no longer meets the requirements of section 704 or
section 734 of the Act (whichever is applicable), the Secretary will
take appropriate action under section 704(i) or section 734(i) of the
Act and Sec. 351.209. The Secretary may suspend the time limit in
paragraph (h) of this section while taking action under Sec. 351.209.
(j) Absorption of antidumping duties. (1) During any administrative
review covering all or part of a period falling between the first and
second or third and fourth anniversary of the publication of an
antidumping order under Sec. 351.211, or a determination under
Sec. 351.218(d) (sunset review), the Secretary, if requested by a
domestic interested party within 30 days of the date of publication of
the notice of initiation of the review, will determine whether
antidumping duties have been absorbed by an exporter or producer
subject to the review if the subject merchandise is sold in the United
States through an importer that is affiliated with such exporter or
producer. The request must include the name(s) of the exporter or
producer for which the inquiry is requested.
(2) For transition orders defined in section 751(c)(6) of the Act,
the Secretary will apply paragraph (j)(1) of this section to any
administrative review initiated in 1996 or 1998.
(3) In determining under paragraph (j)(1) of this section whether
antidumping duties have been absorbed, the Secretary will examine the
antidumping duties calculated in the administrative review in which the
absorption inquiry is requested.
(4) The Secretary will notify the Commission of the Secretary's
determination if:
(i) In the case of an administrative review other than one to which
paragraph (j)(2) of this section applies, the administrative review
covers all or part of a time period falling between the third and
fourth anniversary month of an order; or
(ii) In the case of an administrative review to which paragraph
(j)(2) of this section applies, the Secretary initiated the
administrative review in 1998.
(k) Administrative reviews of countervailing duty orders conducted
on an aggregate basis. (1) Request for zero rate. Where the Secretary
conducts an administrative review of a countervailing duty on an
aggregate basis under section 777A(e)(2)(B) of the Act, the Secretary
will consider and review requests for individual assessment and cash
deposit rates of zero to the extent practicable. An exporter or
producer that desires a zero rate must submit:
(i) A certification by the exporter or producer that it received
zero or de minimis net countervailable subsidies during the period of
review;
(ii) If the exporter or producer received a countervailable
subsidy, calculations demonstrating that the amount of net
countervailable subsidies received was de minimis during the period of
review;
(iii) If the exporter is not the producer of the subject
merchandise, certifications from the suppliers and producers of the
subject merchandise that those persons received zero or de minimis net
countervailable subsidies during the period of the review; and
(iv) A certification from the government of the affected country
that the government did not provide the exporter (or the exporter's
supplier) or producer with more than de minimis net countervailable
subsidies during the period of review.
(2) Application of country-wide subsidy rate. With the exception of
assessment and cash deposit rates of zero determined under paragraph
(k)(1) of this section, if, in the final results of an administrative
review under this section of a countervailing duty order, the Secretary
calculates a single country-wide subsidy rate under section
777A(e)(2)(B) of the Act, that rate will supersede, for cash deposit
purposes, all rates previously determined in the countervailing duty
proceeding in question.
(l) Exception from assessment in regional industry cases. For
procedures relating to a request for the exception from the assessment
of antidumping or countervailing duties in a regional industry case,
see Sec. 351.212(f).
Sec. 351.214 New shipper reviews under section 751(a)(2)(B) of the Act.
(a) Introduction. The URAA established a new procedure by which so-
called ``new shippers'' can obtain their own individual dumping margin
or countervailable subsidy rate on an expedited basis. In general, a
new shipper is an exporter or producer that did not export, and is not
affiliated with an exporter or producer that did export, to the United
States during the period of investigation. This section contains rules
regarding requests for new shipper reviews and procedures for
conducting such reviews. In addition, this section contains rules
regarding requests for expedited reviews by noninvestigated exporters
in certain countervailing duty proceedings and procedures for
conducting such reviews.
(b) Request for new shipper review. (1) Requirement of sale or
export. Subject to the requirements of section 751(a)(2)(B) of the Act
and this section, an exporter or producer may request a new shipper
review if it has exported, or sold for export, subject merchandise to
the United States.
(2) Contents of request. A request for a new shipper review must
contain the following:
(i) If the person requesting the review is both the exporter and
producer of the merchandise, a certification that the person requesting
the review did not export subject merchandise to the United States (or,
in the case of a regional industry, did not export the subject
merchandise for sale in the region concerned) during the period of
investigation;
(ii) If the person requesting the review is the exporter, but not
the producer, of the subject merchandise:
(A) The certification described in paragraph (b)(2)(i) of this
section; and
(B) A certification from the person that produced or supplied the
subject merchandise to the person requesting the review that that
producer or supplier did not export the subject merchandise to the
United States (or, in the case of a regional industry, did not export
the subject merchandise for sale in the region concerned) during the
period of investigation;
(iii)(A) A certification that, since the investigation was
initiated, such exporter or producer has never been affiliated with any
exporter or producer who exported the subject merchandise to the United
States (or in the case of a regional industry, who exported the subject
merchandise for sale in the region concerned) during the period of
investigation, including those not individually examined during the
investigation;
(B) In an antidumping proceeding involving imports from a nonmarket
economy country, a certification that the export activities of such
exporter or producer are not controlled by the central government;
(iv) Documentation establishing:
(A) The date on which subject merchandise of the exporter or
producer making the request was first entered, or withdrawn from
warehouse, for consumption, or, if the exporter or producer cannot
establish the date of first entry, the date on which the exporter or
producer first shipped the subject merchandise for export to the United
States;
(B) The volume of that and subsequent shipments; and
(C) The date of the first sale to an unaffiliated customer in the
United States; and
(v) In the case of a review of a countervailing duty order, a
certification that the exporter or producer has informed the government
of the exporting country that the government will be required to
provide a full response to the Department's questionnaire.
(c) Deadline for requesting review. An exporter or producer may
request a new shipper review within one year of the date referred to in
paragraph (b)(2)(iv)(A) of this section.
(d) Time for new shipper review. (1) In general. The Secretary will
initiate a new shipper review under this section in the calendar month
immediately following the anniversary month or the semiannual
anniversary month if the request for the review is made during the 6-
month period ending with the end of the anniversary month or the
semiannual anniversary month (whichever is applicable).
(2) Semiannual anniversary month. The semiannual anniversary month
is the calendar month which is 6 months after the anniversary month.
(3) Example. An order is published in January. The anniversary
month would be January, and the semiannual anniversary month would be
July. If the Secretary received a request for a new shipper review at
any time during the period February-July, the Secretary would initiate
a new shipper review in August. If the Secretary received a request for
a new shipper review at any time during the period August-January, the
Secretary would initiate a new shipper review in February.
(e) Suspension of liquidation; posting bond or security. When the
Secretary initiates a new shipper review under this section, the
Secretary will direct the Customs Service to suspend liquidation of any
unliquidated entries of the subject merchandise from the relevant
exporter or producer, and to allow, at the option of the importer, the
posting, until the completion of the review, of a bond or security in
lieu of a cash deposit for each entry of the subject merchandise.
(f) Rescission of new shipper review. (1) Withdrawal of request for
review. The Secretary may rescind a new shipper review under this
section, in whole or in part, if a party that requested a review
withdraws its request not later than 60 days after the date of
publication of notice of initiation of the requested review.
(2) Absence of entry and sale to an unaffiliated customer. The
Secretary may rescind a new shipper review, in whole or in part, if the
Secretary concludes that:
(i) As of the end of the normal period of review referred to in
paragraph (g) of this section, there has not been an entry and sale to
an unaffiliated customer in the United States of subject merchandise;
and
(ii) An expansion of the normal period of review to include an
entry and sale to an unaffiliated customer in the United States of
subject merchandise would be likely to prevent the completion of the
review within the time limits set forth in paragraph (i) of this
section.
(3) Notice of Rescission. If the Secretary rescinds a new shipper
review (in whole or in part), the Secretary will publish in the Federal
Register notice of ``Rescission of Antidumping (Countervailing Duty)
New Shipper Review'' or, if appropriate, ``Partial Rescission of
Antidumping (Countervailing Duty) New Shipper Review.''
(g) Period of review. (1) Antidumping proceeding. (i) In general.
Except as provided in paragraph (g)(1)(ii) of this section, in an
antidumping proceeding, a new shipper review under this section
normally will cover, as appropriate, entries, exports, or sales during
the following time periods:
(A) If the new shipper review was initiated in the month
immediately following the anniversary month, the twelve-month period
immediately preceding the anniversary month; or
(B) If the new shipper review was initiated in the month
immediately following the semiannual anniversary month, the period of
review will be the six-month period immediately preceding the
semiannual anniversary month.
(ii) Exceptions. (A) If the Secretary initiates a new shipper
review under this section in the month immediately following the first
anniversary month, the review normally will cover, as appropriate,
entries, exports, or sales during the period from the date of
suspension of liquidation under this part to the end of the month
immediately preceding the first anniversary month.
(B) If the Secretary initiates a new shipper review under this
section in the month immediately following the first semiannual
anniversary month, the review normally will cover, as appropriate,
entries, exports, or sales during the period from the date of
suspension of liquidation under this part to the end of the month
immediately preceding the first semiannual anniversary month.
(2) Countervailing duty proceeding. In a countervailing duty
proceeding, the period of review for a new shipper review under this
section will be the same period as that specified in Sec. 351.213(e)(2)
for an administrative review.
(h) Procedures. The Secretary will conduct a new shipper review
under this section in accordance with Sec. 351.221.
(i) Time limits. (1) In general. Unless the time limit is waived
under paragraph (j)(3) of this section, the Secretary will issue
preliminary results of review (see Sec. 351.221(b)(4)) within 180 days
after the date on which the new shipper review was initiated, and final
results of review (see Sec. 351.221(b)(5)) within 90 days after the
date on which the preliminary results were issued.
(2) Exception. If the Secretary concludes that a new shipper review
is extraordinarily complicated, the Secretary may extend the 180-day
period to 300 days, and may extend the 90-day period to 150 days.
(j) Multiple reviews. Notwithstanding any other provision of this
subpart, if a review (or a request for a review) under Sec. 351.213
(administrative review), Sec. 351.214 (new shipper review),
Sec. 351.215 (expedited antidumping review), or Sec. 351.216 (changed
circumstances review) covers merchandise of an exporter or producer
subject to a review (or to a request for a review) under this section,
the Secretary may, after consulting with the exporter or producer:
(1) Rescind, in whole or in part, a review in progress under this
subpart;
(2) Decline to initiate, in whole or in part, a review under this
subpart; or
(3) Where the requesting party agrees in writing to waive the time
limits of paragraph (i) of this section, conduct concurrent reviews, in
which case all other provisions of this section will continue to apply
with respect to the exporter or producer.
(k) Expedited reviews in countervailing duty proceedings for
noninvestigated exporters. (1) Request for review. If, in a
countervailing duty investigation, the Secretary limited the number of
exporters or producers to be individually examined under section
777A(e)(2)(A) of the Act, an exporter that the Secretary did not select
for individual examination or that the Secretary did not accept as a
voluntary respondent (see Sec. 351.204(d)) may request a review under
this paragraph (k). An exporter must submit a request for review within
30 days of the date of publication in the Federal Register of the
countervailing duty order. A request must be accompanied by a
certification that:
(i) The requester exported the subject merchandise to the United
States during the period of investigation;
(ii) The requester is not affiliated with an exporter or producer
that the Secretary individually examined in the investigation; and
(iii) The requester has informed the government of the exporting
country that the government will be required to provide a full response
to the Department's questionnaire.
(2) Initiation of review. (i) In general. The Secretary will
initiate a review in the month following the month in which a request
for review is due under paragraph (k)(1) of this section.
(ii) Example. The Secretary publishes a countervailing duty order
on January 15. An exporter would have to submit a request for a review
by February 14. The Secretary would initiate a review in March.
(3) Conduct of review. The Secretary will conduct a review under
this paragraph (k) in accordance with the provisions of this section
applicable to new shipper reviews, subject to the following exceptions:
(i) The period of review will be the period of investigation used
by the Secretary in the investigation that resulted in the publication
of the countervailing duty order (see Sec. 351.204(b)(2));
(ii) The Secretary will not permit the posting of a bond or
security in lieu of a cash deposit under paragraph (e) of this section;
(iii) The final results of a review under this paragraph (k) will
not be the basis for the assessment of countervailing duties; and
(iv) The Secretary may exclude from the countervailing duty order
in question any export |