TITLE VII OF THE TARIFF ACT OF 1930
UPDATED THROUGH Pub.L. 103-465 (Uruguay Round Agreements Act-12/8/94)
COUNTERVAILING AND ANTIDUMPING DUTIES
Subtitle A Imposition of Countervailing Duties
Sec. 701. Countervailing duties imposed.
Sec. 702. Procedures for initiating a countervailing duty investigation.
Sec. 703. Preliminary determinations.
Sec. 704. Termination or suspension of investigation.
Sec. 705. Final determinations.
Sec. 706. Assessment of duty.
Sec. 707. Treatment of difference between deposit of estimated countervailing
duty and final assessed duty under countervailing duty order.
Sec. 708. Effect of derogation of Export-Import Bank financing.
Sec. 709. Conditional payment of countervailing duty.
Subtitle B Imposition of Antidumping Duties
Sec. 731. Antidumping duties imposed.
Sec. 732. Procedures for initiating an antidumping duty investigation.
Sec. 733. Preliminary determinations.
Sec. 734. Termination or suspension of investigation.
Sec. 735. Final determinations.
Sec. 736. Assessment of duty.
Sec. 737. Treatment of difference between deposit of estimated antidumping
duty and final assessed duty under antidumping duty order.
Sec. 738. Conditional payment of antidumping duty.
Sec. 739. Establishment of product categories for short life cycle
merchandise.
Subtitle C Reviews; Other Actions Regarding Agreements
Chapter 1 REVIEW OF AMOUNT OF DUTY AND AGREEMENTS OTHER THAN QUANTITATIVE
RESTRICTION AGREEMENTS
Sec. 751. Administrative review of determinations.
Sec. 752. Special rules for section 751(b) and 751(c) reviews.
Sec. 753. Special rules for injury investigations for certain section 303
countervailing duty orders and investigations.
Chapter 2 CONSULTATIONS AND DETERMINATIONS REGARDING QUANTITATIVE
RESTRICTION AGREEMENTS
Sec. 761. Required consultations.
Sec. 762. Required determinations.
Subtitle D General Provisions
Sec. 771. Definitions; special rules.
Sec. 771A. Upstream subsidies.
Sec. 771B. Calculation of countervailable subsidies on certain processed
agricultural products.
Sec. 772. Export price and constructed export price.
Sec. 773. Normal value.
Sec. 773A. Currency conversion.
Sec. 774. Hearings.
Sec. 775. Countervailable subsidy practices discovered during a proceeding.
Sec. 776. Determinations on the basis of the facts available.
Sec. 777. Access to information.
Sec. 777A. Sampling and averaging; determination of weighted average
dumping margin and countervailable subsidy rate.
Sec. 778. Interest on certain overpayments and underpayment.
Sec. 779. Drawback treatment.
Sec. 780. Downstream product monitoring.
Sec. 781. Prevention of circumvention of antidumping and countervailing
duty orders.
Sec. 782. Conduct of investigations and administrative reviews.
Sec. 783. Antidumping petitions by third countries.
Subtitle A Imposition of Countervailing Duties
Sec. 701
SEC. 701. COUNTERVAILING DUTIES IMPOSED.
(a) General Rule. If
(1) the administering authority determines that the government of a country or
any public entity within the territory of a country is providing, directly or
indirectly, a countervailable subsidy with respect to the manufacture,
production, or export of a class or kind of merchandise imported, or sold (or
likely to be sold) for importation, into the United States, and
(2) in the case of merchandise imported from a Subsidies Agreement country,
the Commission determines that
(A) an industry in the United States
(i) is materially injured, or
(ii) is threatened with material injury, or
(B) the establishment of an industry in the United States is materially
retarded, by reason of imports of that merchandise or by reason of sales (or the
likelihood of sales) of that merchandise for importation, then there shall be
imposed upon such merchandise a countervailing duty, in addition to any other
duty imposed, equal to the amount of the net countervailable subsidy. For
purposes of this subsection and section 705(b)(1), a reference to the sale of
merchandise includes the entering into of any leasing arrangement regarding
the merchandise that is equivalent to the sale of the merchandise.
(b) Subsidies Agreement Country. For purposes of this title, the term
"Subsidies Agreement country" means
(1) a WTO member country,
(2) a country which the President has determined has assumed obligations with
respect to the United States which are substantially equivalent to the
obligations under the Subsidies Agreement, or
(3) a country with respect to which the President determines that
(A) there is an agreement in effect between the United States and that country
which
(i) was in force on the date of the enactment of the Uruguay Round Agreements
Act, and
(ii) requires unconditional most-favored-nation treatment with respect to
articles imported into the United States, and
(B) the agreement described in subparagraph (A) does not expressly permit
(i) actions required or permitted by the GATT 1947 or GATT 1994, as defined in
section 2(1) of the Uruguay Round Agreements Act, or required by the Congress,
or
(ii) nondiscriminatory prohibitions or restrictions on importation which are
designed to prevent deceptive or unfair practices.
(c) Countervailing Duty Investigations Involving Imports Not Entitled to a
Material Injury Determination. In the case of any article or merchandise
imported from a country which is not a Subsidies Agreement country
(1) no determination by the Commission under section 703(a), 704, or 705(b)
shall be required,
(2) an investigation may not be suspended under section 704(c) or 704(l),
(3) no determination as to the presence of critical circumstances shall be
made under section 703(e) or 705(a)(2),
(4) section 706(c) shall not apply,
(5) any reference to a determination described in paragraph (1) or (3), or to
the suspension of an investigation under section 704(c) or 704(l), shall be
disregarded, and
(6) section 751(c) shall not apply.
(d) Treatment of International Consortia. For purposes of this subtitle, if
the members (or other participating entities) of an international consortium
that is engaged in the production of subject merchandise receive countervailable
subsidies from their respective home countries to assist, permit, or otherwise
enable their participation in that consortium through production or
manufacturing operations in their respective home countries, then the
administering authority shall cumulate all such countervailable subsidies, as
well as countervailable subsidies provided directly to the international
consortium, in determining any countervailing duty upon such merchandise.
(e) Upstream Subsidy. Whenever the administering authority has reasonable
grounds to believe or suspect that an upstream subsidy, as defined in section
771A(a)(1), is being paid or bestowed, the administering authority shall
investigate whether an upstream subsidy has in fact been paid or bestowed, and
if so, shall include the amount of the upstream subsidy as provided in section
771A(a)(3).
(19 U.S.C. 1671)
Sec. 702
SEC. 702. PROCEDURES FOR INITIATING A COUNTERVAILING DUTY INVESTIGATION.
(a) Initiation by Administering Authority. A countervailing duty
investigation shall be initiated whenever the administering authority
determines, from information available to it, that a formal investigation is
warranted into the question of whether the elements necessary for the imposition
of a duty under section 701(a) exist.
(b) Initiation by Petition.
(1) Petition requirements. A countervailing duty proceeding shall be
initiated whenever an interested party described in subparagraph (C), (D), (E),
(F), or (G) of section 771(9) files a petition with the administering authority,
on behalf of an industry, which alleges the elements necessary for the
imposition of the duty imposed by section 701(a), and which is accompanied by
information reasonably available to the petitioner supporting those allegations.
The petition may be amended at such time, and upon such conditions, as the
administering authority and the Commission may permit.
(2) Simultaneous filing with commission. The petitioner shall file a copy of
the petition with the Commission on the same day as it is filed with the
administering authority.
(3) Petition based upon a derogation of an international undertaking on
official export credits. If the sole basis of a petition filed under paragraph
(1) is the derogation of an international undertaking on official export
credits, the administering authority shall immediately notify the Secretary of
the Treasury who shall, in consultation with the administering authority, within
5 days after the date on which the administering authority initiates an
investigation under subsection (c), determine the existence and estimated value
of the derogation, if any, and shall publish such determination in the Federal
Register.
(4) Action with respect to petitions.
(A) Notification of governments. Upon receipt of a petition filed under
paragraph (1), the administering authority shall
(i) notify the government of any exporting country named in the petition by
delivering a public version of the petition to an appropriate representative of
such country; and
(ii) provide the government of any exporting country named in the petition
that is a Subsidies Agreement country an opportunity for consultations with
respect to the petition.
(B) Acceptance of communications. The administering authority shall not
accept any unsolicited oral or written communication from any person other than
an interested party described in section 771(9) (C), (D), (E), (F), or (G)
before the administering authority makes its decision whether to initiate an
investigation, except as provided in subparagraph (A)(ii) and subsection
(c)(4)(D), and except for inquiries regarding the status of the administering
authority's consideration of the petition.
(C) Nondisclosure of certain information. The administering authority and the
Commission shall not disclose information with regard to any draft petition
submitted for review and comment before it is filed under paragraph (1).
(c) Petition Determination.
(1) In general.
(A) Time for initial determination. Except as provided in subparagraph (B),
within 20 days after the date on which a petition is filed under subsection (b),
the administering authority shall
(i) after examining, on the basis of sources readily available to the
administering authority, the accuracy and adequacy of the evidence provided in
the petition, determine whether the petition alleges the elements necessary for
the imposition of a duty under section 701(a) and contains information
reasonably available to the petitioner supporting the allegations, and
(ii) determine if the petition has been filed by or on behalf of the industry.
(B) Extension of time. In any case in which the administering authority is
required to poll or otherwise determine support for the petition by the industry
under paragraph (4)(D), the administering authority may, in exceptional
circumstances, apply subparagraph (A) by substituting "a maximum of 40 days" for
"20 days".
(C) Time limits where petition involves same merchandise as an order that has
been revoked. If a petition is filed under this section with respect to
merchandise that was the subject merchandise of
(i) a countervailing duty order that was revoked under section 751(d) in the
24 months preceding the date the petition is filed, or
(ii) a suspended investigation that was terminated under section 751(d) in the
24 months preceding the date the petition is filed,
the administering authority and the Commission shall, to the maximum extent
practicable, expedite any investigation initiated under this section with
respect to the petition.
(2) Affirmative determinations. If the determinations under clauses (i) and
(ii) of paragraph (1)(A) are affirmative, the administering authority shall
initiate an investigation to determine whether a countervailable subsidy is
being provided with respect to the subject merchandise.
(3) Negative determinations. If the determination under clause (i) or (ii) of
paragraph (1)(A) is negative, the administering authority shall dismiss the
petition, terminate the proceeding, and notify the petitioner in writing of the
reasons for the determination.
(4) Determination of industry support.
(A) General rule. For purposes of this subsection, the administering
authority shall determine that the petition has been filed by or on behalf of
the industry, if
(i) the domestic producers or workers who support the petition account for at
least 25 percent of the total production of the domestic like product, and
(ii) the domestic producers or workers who support the petition account for
more than 50 percent of the production of the domestic like product produced by
that portion of the industry expressing support for or opposition to the
petition.
(B) Certain positions disregarded.
(i) Producers related to foreign producers. In determining industry support
under subparagraph (A), the administering authority shall disregard the
position of domestic producers who oppose the petition, if such producers are
related to foreign producers, as defined in section 771(4)(B)(ii), unless such
domestic producers demonstrate that their interests as domestic producers would
be adversely affected by the imposition of a countervailing duty order.
(ii) Producers who are importers. The administering authority may disregard
the position of domestic producers of a domestic like product who are importers
of the subject merchandise.
(C) Special rule for regional industries. If the petition alleges that the
industry is a regional industry, the administering authority shall determine
whether the petition has been filed by or on behalf of the industry by applying
subparagraph (A) on the basis of production in the region.
(D) Polling the industry. If the petition does not establish support of
domestic producers or workers accounting for more than 50 percent of the total
production of the domestic like product, the administering authority shall
(i) poll the industry or rely on other information in order to determine if
there is support for the petition as required by subparagraph (A), or
(ii) if there is a large number of producers in the industry, the
administering authority may determine industry support for the petition by using
any statistically valid sampling method to poll the industry.
(E) Comments by interested parties. Before the administering authority makes
a determination with respect to initiating an investigation, any person who
would qualify as an interested party under section 771(9) if an investigation
were initiated, may submit comments or information on the issue of industry
support. After the administering authority makes a determination with respect to
initiating an investigation, the determination regarding industry support shall
not be reconsidered.
(5) Definition of domestic producers or workers. For purposes of this
subsection, the term "domestic producers or workers" means those interested
parties who are eligible to file a petition under subsection (b)(1)(A).
(d) Notification to Commission of Determination. The administering authority
shall
(1) notify the Commission immediately of any determination it makes under
subsection (a) or (c), and
(2) if the determination is affirmative, make available to the Commission such
information as it may have relating to the matter under investigation, under
such procedures as the administering authority and the Commission may establish
to prevent disclosure, other than with the consent of the party providing it or
under protective order, of any information to which confidential treatment has
been given by the administering authority.
(e) Information Regarding Critical Circumstances. If, at any time after the
initiation of an investigation under this subtitle, the administering authority
finds a reasonable basis to suspect that the alleged countervailable subsidy is
inconsistent with the Subsidies Agreement, the administering authority may
request the Commissioner of Customs to compile information on an expedited basis
regarding entries of the subject merchandise. Upon receiving such request, the
Commissioner of Customs shall collect information regarding the volume and value
of entries of the class or kind of merchandise that is the subject of the
investigation and shall transmit such information to the administering authority
at such times as the administering authority shall direct (at least once every
30 days), until a final determination is made under section 705(a), the
investigation is terminated, or the administering authority withdraws the
request.
(19 U.S.C. 1671a)
Sec. 703
SEC. 703. PRELIMINARY DETERMINATIONS.
(a) Determination by Commission of Reasonable Indication of Injury.
(1) General rule. Except in the case of a petition dismissed by the
administering authority under section 702(c)(3), the Commission, within the time
specified in paragraph (2), shall determine, based on the information available
to it at the time of the determination, whether there is a reasonable indication
that
(A) an industry in the United States
(i) is materially injured, or
(ii) is threatened with material injury, or
(B) the establishment of an industry in the United States is materially
retarded,
by reason of imports of the subject merchandise and that imports of the
subject merchandise are not negligible. If the Commission finds that imports of
the subject merchandise are negligible or otherwise makes a negative
determination under this paragraph, the investigation shall be terminated.
(2) Time for commission determination. The Commission shall make the
determination described in paragraph (1)
(A) in the case of a petition filed under section 702(b)
(i) within 45 days after the date on which the petition is filed, or
(ii) if the time has been extended pursuant to section 702(c)(1)(B), within 25
days after the date on which the Commission receives notice from the
administering authority of initiation of the investigation, and
(B) in the case of an investigation initiated under section 702(a), within 45
days after the date on which the Commission receives notice from the
administering authority that an investigation has been initiated under such
section.
(b)(1) Preliminary Determination by Administering Authority. Within 65 days
after the date on which the administering authority initiates an investigation
under section 702(c) 1, or an investigation is initiated under section 702(a),
but not before an affirmative determination by the Commission under subsection
(a) of this section, the administering authority shall make a determination,
based upon the information available to it at the time of the determination, of
whether there is a reasonable basis to believe or suspect that a countervailable
subsidy is being provided with respect to the subject merchandise.
1 Section 212(b)(1)(C)(i)(I) of P.L. 103 465 amended this paragraph by
striking "85 days after the date on which the petition is filed under section
702(b)" and inserting "65 days after the date on which the administering
authority initiates an investigation under section 702(c)". The amendment
probably should have been to strike "85 days after the date on which a petition
is filed under section 702(b)".
(2) Notwithstanding paragraph (1), when the petition is one subject to section
702(b)(3), the administering authority shall, taking into account the nature of
the countervailable subsidy concerned, make the determination required by
paragraph (1) on an expedited basis and within 65 days after the date on which
the administering authority initiates an investigation under section 702(c)
unless the provisions of subsection (c) of this section apply.
(3) Preliminary Determination Under Waiver of Verification. Within 55 days
after the initiation of an investigation the administering authority shall cause
an official designated for such purpose to review the information concerning the
case received during the first 50 days of the investigation, and, if there
appears to be sufficient information available upon which the determination can
reasonably be based, to disclose to the petitioner and any interested party,
then a party to the proceedings that requests such disclosure, all available
nonconfidential information and all other information which is disclosed
pursuant to section 777. Within 3 days (not counting Saturdays, Sundays, or
legal public holidays) after such disclosure, the petitioner and each party
which is an interested party described in subparagraph (C), (D), (E), (F), or
(G) of section 771(9) to whom such disclosure was made may furnish to the
administering authority an irrevocable written waiver of verification of the
information received by the authority, and an agreement that it is willing to
have a determination made on the basis of the record then available to the
authority. If a timely waiver and agreement have been received from the
petitioner and each party which is an interested party described in subparagraph
(C), (D), (E), (F), or (G) of section 771(9) to whom the disclosure was made,
and the authority finds that sufficient information is then available upon which
the preliminary determination can reasonably be based, a preliminary
determination shall be made on an expedited basis on the basis of the record
established during the first 50 days after the investigation was initiated.
(4) 1 De minimis countervailable subsidy.
1 Indentation so in law.
(A) General rule. In making a determination under this subsection, the
administering authority shall disregard any de minimis countervailable subsidy.
For purposes of the preceding sentence, a countervailable subsidy is de minimis
if the administering authority determines that the aggregate of the net
countervailable subsidies is less than 1 percent ad valorem or the equivalent
specific rate for the subject merchandise.
(B) Exception for developing countries. In the case of subject merchandise
imported from a Subsidies Agreement country (other than a country to which
subparagraph (C) applies) designated by the Trade Representative as a developing
country in accordance with section 771(36), a countervailable subsidy is de
minimis if the administering authority determines that the aggregate of the net
countervailable subsidies does not exceed 2 percent ad valorem or the equivalent
specific rate for the subject merchandise.
(C) Certain other developing countries. In the case of subject merchandise
imported from a Subsidies Agreement country that is
(i) a least developed country, as determined by the Trade Representative in
accordance with section 771(36), or
(ii) a developing country with respect to which the Trade Representative has
notified the administering authority that the country has eliminated its export
subsidies on an expedited basis within the meaning of Article 27.11 of the
Subsidies Agreement, subparagraph (B) shall be applied by substituting
"3 percent" for "2 percent".
(D) Limitations on application of subparagraph (c).
(i) In general. In the case of a country described in subparagraph (C)(i),
the provisions of subparagraph (C) shall not apply after the date that is 8
years after the date the WTO Agreement enters into force.
(ii) Special rule for subparagraph (C)(ii) countries. In the case of a
country described in subparagraph (C)(ii), the provisions of subparagraph (C)
shall not apply after the earlier of
(I) the date that is 8 years after the date the WTO Agreement enters into
force, or
(II) the date on which the Trade Representative notifies the administering
authority that such country is providing an export subsidy.
(5) 1 Notification of article 8 violation. If the only subsidy under
investigation is a subsidy with respect to which the administering authority
received notice from the Trade Representative of a violation of Article 8 of the
Subsidies Agreement, paragraph (1) shall be applied by substituting "60 days"
for "65 days".
1 Indentation so in law.
(c) Extension of Period in Extraordinarily Complicated Cases.
(1) In general. If
(A) the petitioner makes a timely request for an extension of the period
within which the determination must be made under subsection (b), or
(B) the administering authority concludes that the parties concerned are
cooperating and determines that
(i) the case is extraordinarily complicated by reason of
(I) the number and complexity of the alleged countervailable subsidy
practices;
(II) the novelty of the issues presented;
(III) the need to determine the extent to which particular countervailable
subsidies are used by individual manufacturers, producers, and exporters; or
(IV) the number of firms whose activities must be investigated; and
(ii) additional time is necessary to make the preliminary determination,
then the administering authority may postpone making the preliminary
determination under subsection (b) until not later than the 130th day after the
date on which the administering authority initiates an investigation under
section 702(c), or an investigation is initiated under section 702(a).
(2) Notice of postponement. The administering authority shall notify the
parties to the investigation, not later than 20 days before the date on which
the preliminary determination would otherwise be required under subsection (b),
if it intends to postpone making the preliminary determination under paragraph
(1). The notification shall include an explanation of the reasons for the
postponement. Notice of the postponement shall be published in the Federal
Register.
(d) Effect of Determination by the Administering Authority. If the
preliminary determination of the administering authority under subsection (b) is
affirmative, the administering authority
(1)(A) shall
(i) determine an estimated individual countervailable subsidy rate for each
exporter and producer individually investigated, and, in accordance with section
705(c)(5), an estimated all-others rate for all exporters and producers not
individually investigated and for new exporters and producers within the meaning
of section 751(a)(2)(B), or
(ii) if section 777A(e)(2)(B) applies, determine a single estimated
country-wide subsidy rate, applicable to all exporters and producers, and
(B) shall order the posting of a cash deposit, bond, or other security, as the
administering authority deems appropriate, for each entry of the subject
merchandise in an amount based on the estimated individual countervailable
subsidy rate, the estimated all-others rate, or the estimated country-wide
subsidy rate, whichever is applicable,
(2) shall order the suspension of liquidation of all entries of merchandise
subject to the determination which are entered, or withdrawn from warehouse, for
consumption on or after the later of
(A) the date on which notice of the determination is published in the Federal
Register, or
(B) the date that is 60 days after the date on which notice of the
determination to initiate the investigation is published in the Federal
Register, and
(3) shall make available to the Commission all information upon which its
determination was based and which the Commission considers relevant to its
injury determination, under such procedures as the administering authority and
the Commission may establish to prevent disclosure, other than with the consent
of the party providing it or under protective order, of any information to which
confidential treatment has been given by the administering authority.
The instructions of the administering authority under paragraphs (1) and (2)
may not remain in effect for more than 4 months.
(e) Critical Circumstances Determinations.
(1) In general. If a petitioner alleges critical circumstances in its
original petition, or by amendment at any time more than 20 days before the date
of a final determination by the administering authority, then the administering
authority shall promptly (at any time after the initiation of the investigation
under this subtitle) determine, on the basis of the information available to it
at that time, whether there is a reasonable basis to believe or suspect that
(A) the alleged countervailable subsidy is inconsistent with the Subsidies
Agreement, and
(B) there have been massive imports of the subject merchandise over a
relatively short period.
(2) Suspension of liquidation. If the determination of the administering
authority under paragraph (1) is affirmative, then any suspension of liquidation
ordered under subsection (d)(2) shall apply, or, if notice of such suspension of
liquidation is already published, be amended to apply, to unliquidated entries
of merchandise entered, or withdrawn from warehouse, for consumption on or after
the later of
(A) the date which is 90 days before the date on which the suspension of
liquidation was first ordered, or
(B) the date on which notice of the determination to initiate the
investigation is published in the Federal Register.
(f) Notice of Determination. Whenever the Commission or the administering
authority makes a determination under this section, the Commission or the
administering authority, as the case may be, shall notify the petitioner, and
other parties to the investigation, and the Commission or the administering
authority (whichever is appropriate) of its determination. The administering
authority shall include with such notification the facts and conclusions on
which its determination is based. Not later than 5 days after the date on
which the determination is required to be made under subsection (a)(2), the
Commission shall transmit to the administering authority the facts and
conclusions on which its determination is based.
(g) Time Period Where Upstream Subsidization Involved.
(1) In general. Whenever the administering authority concludes prior to a
preliminary determination under section 703(b), that there is a reasonable basis
to believe or suspect that an upstream subsidy is being bestowed, the time
period within which a preliminary determination must be made shall be extended
to 250 days after the filing of a petition under section 702(b) or initiation of
an investigation under section 702(a) (310 days in cases declared
extraordinarily complicated under section 703(c)), if the administering
authority concludes that such additional time is necessary to make the required
determination concerning upstream subsidization.
(2) Exceptions. Whenever the administering authority concludes, after a
preliminary determination under section 703(b), that there is a reasonable basis
to believe or suspect that an upstream subsidy is being bestowed
(A) in cases in which the preliminary determination was negative, the time
period within which a final determination must be made shall be extended to 165
or 225 days, as appropriate, under section 705(a)(1); or
(B) in cases in which the preliminary determination is affirmative, the
determination concerning upstream subsidization
(i) need not be made until the conclusion of the first annual review under
section 751 of any eventual countervailing duty order, or, at the option of the
petitioner, or
(ii) will be made in the investigation and the time period within which a
final determination must be made shall be extended to 165 or 225 days, as
appropriate, under section 705(a)(1), as appropriate, except that the suspension
of liquidation ordered in the preliminary determination shall terminate at the
end of 120 days from the date of publication of that determination and not be
resumed unless and until the publication of a Countervailing Duty Order under
section 706(a).
There may be an extension of time for the making of a final determination
under this subsection only if the administering authority determines that such
additional time is necessary to make the required determination concerning
upstream subsidization.
(19 U.S.C. 1671b)
Sec. 704
SEC. 704. TERMINATION OR SUSPENSION OF INVESTIGATION.
(a) Termination of Investigation Upon Withdrawal of Petition.
(1) In general.
(A) Withdrawal of petition. Except as provided in paragraphs (2) and (3), an
investigation under this subtitle may be terminated by either the administering
authority or the Commission, after notice to all parties to the investigation,
upon withdrawal of the petition by the petitioner or by the administering
authority if the investigation was initiated under section 702(a).
(B) Refiling of petition. If, within 3 months after the withdrawal of a
petition under subparagraph (A), a new petition is filed seeking the imposition
of duties on both the subject merchandise of the withdrawn petition and the
subject merchandise from another country, the administering authority and the
Commission may use in the investigation initiated pursuant to the new petition
any records compiled in an investigation conducted pursuant to the withdrawn
petition. This subparagraph applies only with respect to the first withdrawal of
a petition.
(2) Special rules for quantitative restriction agreements.
(A) In general. Subject to subparagraphs (B) and (C), the administering
authority may not terminate an investigation under paragraph (1) by accepting,
with the government of the country in which the countervailable subsidy practice
is alleged to occur, an understanding or other kind of agreement to limit the
volume of imports into the United States of the subject merchandise unless the
administering authority is satisfied that termination on the basis of that
agreement is in the public interest.
(B) Public interest factors. In making a decision under subparagraph (A)
regarding the public interest, the administering authority shall take into
account
(i) whether, based upon the relative impact on consumer prices and the
availability of supplies of the merchandise, the agreement would have a greater
adverse impact on United States consumers than the imposition of countervailing
duties;
(ii) the relative impact on the international economic interests of the United
States; and
(iii) the relative impact on the competitiveness of the domestic industry
producing the like merchandise, including any such impact on employment and
investment in that industry.
(C) Prior consultations. Before making a decision under subparagraph (A)
regarding the public interest, the administering authority shall, to the extent
practicable, consult with
(i) potentially affected consuming industries; and
(ii) potentially affected producers and workers in the domestic industry
producing the like merchandise, including producers and workers not party to the
investigation.
(3) Limitation on termination by commission. The Commission may not terminate
an investigation under paragraph (1) before a preliminary determination is made
by the administering authority under section 703(b).
(b) Agreements To Eliminate or Offset Completely a Countervailable Subsidy or
To Cease Exports of Subject Merchandise. The administering authority may
suspend an investigation if the government of the country in which the
countervailable subsidy practice is alleged to occur agrees, or exporters who
account for substantially all of the imports of the subject merchandise agree
(1) to eliminate the countervailable subsidy completely or to offset
completely the amount of the net countervailable subsidy, with respect to that
merchandise exported directly or indirectly to the United States, within 6
months after the date on which the investigation is suspended, or
(2) to cease exports of that merchandise to the United States within 6 months
after the date on which the investigation is suspended.
(c) Agreements Eliminating Injurious Effect.
(1) General rule. If the administering authority determines that
extraordinary circumstances are present in a case, it may suspend an
investigation upon the acceptance of an agreement from a government described in
subsection (b), or from exporters described in subsection (b), if the agreement
will eliminate completely the injurious effect of exports to the United States
of the subject merchandise.
(2) Certain additional requirements. Except in the case of an agreement by a
foreign government to restrict the volume of imports of the subject merchandise
into the United States, the administering authority may not accept an agreement
under this subsection unless
(A) the suppression or undercutting of price levels of domestic products by
imports of that merchandise will be prevented, and
(B) at least 85 percent of the net countervailable subsidy will be offset.
(3) Quantitative restrictions agreements. The administering authority may
accept an agreement with a foreign government under this subsection to restrict
the volume of imports of subject merchandise into the United States, but it may
not accept such an agreement with exporters.
(4) Definition of extraordinary circumstances.
(A) Extraordinary circumstances. For purposes of this subsection, the term
"extraordinary circumstances" means circumstances in which
(i) suspension of an investigation will be more beneficial to the domestic
industry than continuation of the investigation, and
(ii) the investigation is complex.
(B) Complex. For purposes of this paragraph, the term "complex" means
(i) there are a large number of alleged countervailable subsidy practices and
the practices are complicated,
(ii) the issues raised are novel, or
(iii) the number of exporters involved is large.
(d) Additional Rules and Conditions.
(1) Public interest; monitoring. The administering authority shall not accept
an agreement under subsection (b) or (c) unless
(A) it is satisfied that suspension of the investigation is in the public
interest, and
(B) effective monitoring of the agreement by the United States is
practicable.
Where practicable, the administering authority shall provide to the exporters
who would have been subject to the agreement the reasons for not accepting the
agreement and, to the extent possible, an opportunity to submit comments
thereon. In applying subparagraph (A) with respect to any quantitative
restriction agreement under subsection (c), the administering authority shall
take into account, in addition to such other factors as are considered necessary
or appropriate, the factors set forth in subsection (a)(2)(B) (i), (ii), and
(iii) as they apply to the proposed suspension and agreement, after consulting
with the appropriate consuming industries, producers, and workers referred to in
subsection (a)(2)(C) (i) and (ii).
(2) Exports of merchandise to united states not to increase during interim
period. The administering authority may not accept any agreement under
subsection (b) unless that agreement provides a means of ensuring that the
quantity of the merchandise covered by that agreement exported to the United
States during the period provided for elimination or offset of the
countervailable subsidy or cessation of exports does not exceed the quantity of
such merchandise exported to the United States during the most recent
representative period determined by the administering authority.
(3) Regulations governing entry or withdrawals. In order to carry out an
agreement concluded under subsection (b) or (c), the administering authority is
authorized to prescribe regulations governing the entry, or withdrawal from
warehouse, for consumption of subject merchandise.
(e) Suspension of Investigation Procedure. Before an investigation may be
suspended under subsection (b) or (c) the administering authority shall
(1) notify the petitioner of, and consult with the petitioner concerning, its
intention to suspend the investigation, and notify other parties to the
investigation and the Commission not less than 30 days before the date on which
it suspends the investigation,
(2) provide a copy of the proposed agreement to the petitioner at the time of
the notification, together with an explanation of how the agreement will be
carried out and enforced (including any action required of foreign governments),
and of how the agreement will meet the requirements of subsections (b) and (d),
or (c) and (d), and
(3) permit all interested parties described in section 771(9) to submit
comments and information for the record before the date on which notice of
suspension of the investigation is published under subsection (f)(1)(A).
(f) Effects of Suspension of Investigation.
(1) In general. If the administering authority determines to suspend an
investigation upon acceptance of an agreement described in subsection (b) or
(c), then
(A) it shall suspend the investigation, publish notice of suspension of the
investigation, and issue an affirmative preliminary determination under section
703(b) with respect to the subject merchandise, unless it has previously issued
such a determination in the same investigation,
(B) the Commission shall suspend any investigation it is conducting with
respect to that merchandise, and
(C) the suspension of investigation shall take effect on the day on which such
notice is published.
(2) Liquidation of entries.
(A) Cessation of exports; complete elimination of net countervailable subsidy.
If the agreement accepted by the administering authority is an agreement
described in subsection (b), then
(i) notwithstanding the affirmative preliminary determination required under
paragraph (1)(A), the liquidation of entries of subject merchandise shall not be
suspended under section 703(d)(2),
(ii) if the liquidation of entries of such merchandise was suspended pursuant
to a previous affirmative preliminary determination in the same case with
respect to such merchandise, that suspension of liquidation shall terminate, and
(iii) the administering authority shall refund any cash deposit and release
any bond or other security deposited under section 703(d)(1)(B).
(B) Other agreements. If the agreement accepted by the administering
authority is an agreement described in subsection (c), then the liquidation of
entries of the subject merchandise shall be suspended under section 703(d)(2),
or, if the liquidation of entries of such merchandise was suspended pursuant to
a previous affirmative preliminary determination in the same case, that
suspension of liquidation shall continue in effect, subject to subsection
(h)(3), but the security required under section 703(d)(1)(B) may be adjusted to
reflect the effect of the agreement.
(3) Where investigation is continued. If, pursuant to subsection (g), the
administering authority and the Commission continue an investigation in which an
agreement has been accepted under subsection (b) or (c), then
(A) if the final determination by the administering authority or the
Commission under section 705 is negative, the agreement shall have no force or
effect and the investigation shall be terminated, or
(B) if the final determinations by the administering authority and the
Commission under such section are affirmative, the agreement shall remain in
force, but the administering authority shall not issue a countervailing duty
order in the case so long as
(i) the agreement remains in force,
(ii) the agreement continues to meet the requirements of subsections (b) and
(d) or (c) and (d), and
(iii) the parties to the agreement carry out their obligations under the
agreement in accordance with its terms.
(g) Investigation To Be Continued Upon Request. If the administering
authority, within 20 days after the date of publication of the notice of
suspension of an investigation, receives a request for the continuation of the
investigation from
(1) the government of the country in which the countervailable subsidy
practice is alleged to occur, or
(2) an interested party described in subparagraph (C), (D), (E), (F), or (G)
of section 771(9) which is a party to the investigation,
then the administering authority and the Commission shall continue the
investigation.
(h) Review of Suspension.
(1) In general. Within 20 days after the suspension of an investigation under
subsection (c), an interested party which is a party to the investigation and
which is described in subparagraph (C), (D), (E), (F), or (G) of section 771(9)
may, by petition filed with the Commission and with notice to the administering
authority, ask for a review of the suspension.
(2) Commission investigation. Upon receipt of a review petition under
paragraph (1), the Commission shall, within 75 days after the date on which the
petition is filed with it, determine whether the injurious effect of imports of
the subject merchandise is eliminated completely by the agreement. If the
Commission's determination under this subsection is negative, the investigation
shall be resumed on the date of publication of notice of such determination as
if the affirmative preliminary determination under section 703(b) had been made
on that date.
(3) Suspension of liquidation to continue during review period. The
suspension of liquidation of entries of the subject merchandise shall terminate
at the close of the 20-day period beginning on the day after the date on which
notice of suspension of the investigation is published in the Federal Register,
or, if a review petition is filed under paragraph (1) with respect to the
suspension of the investigation, in the case of an affirmative determination by
the Commission under paragraph (2), the date on which notice of the affirmative
determination by the Commission is published. If the determination of the
Commission under paragraph (2) is affirmative, then the administering authority
shall
(A) terminate the suspension of liquidation under section 703(d)(2), and
(B) release any bond or other security, and refund any cash deposit, required
under section 703(d)(1)(B).
(i) Violation of Agreement.
(1) In general. If the administering authority determines that an agreement
accepted under subsection (b) or (c) is being, or has been, violated, or no
longer meets the requirements of such subsection (other than the requirement,
under subsection (c)(1), of elimination of injury) and subsection (d), then, on
the date of publication of its determination, it shall
(A) suspend liquidation under section 703(d)(2) of unliquidated entries of the
merchandise made on or after the later of
(i) the date which is 90 days before the date of publication of the notice of
suspension of liquidation, or
(ii) the date on which the merchandise, the sale or export to the United
States of which was in violation of the agreement, or under an agreement which
no longer meets the requirements of subsections (b) and (d) or (c) and (d), was
first entered, or withdrawn from warehouse, for consumption.
(B) if the investigation was not completed, resume the investigation as if its
affirmative preliminary determination under section 703(b) were made on the date
of its determination under this paragraph,
(C) if the investigation was completed under subsection (g), issue a
countervailing duty order under section 706(a) effective with respect to entries
of merchandise the liquidation of which was suspended,
(D) if it considers the violation to be intentional, notify the Commissioner
of Customs who shall take appropriate action under paragraph (2), and
(E) notify the petitioner, interested parties who are or were parties to the
investigation, and the Commission of its action under this paragraph.
(2) Intentional violation to be punished by civil penalty. Any person who
intentionally violates an agreement accepted by the administering authority
under subsection (b) or (c) shall be subject to a civil penalty assessed in the
same amount, in the same manner, and under the same procedure, as the penalty
imposed for a fraudulent violation of section 592(a) of this Act.
(j) Determination Not To Take Agreement Into Account. In making a final
determination under section 705, or in conducting a review under section 751, in
a case in which the administering authority has terminated a suspension of
investigation under subsection (i)(1), or continued an investigation under
subsection (g), the Commission and the administering authority shall consider
all of the subject merchandise, without regard to the effect of any agreement
under subsection (b) or (c).
(k) Termination of Investigations Initiated by Administering Authority. The
administering authority may terminate any investigation initiated by the
administering authority under section 702(a) after providing notice of such
termination to all parties to the investigation.
(l) Special Rule for Regional Industry Investigations.
(1) Suspension agreements. If the Commission makes a regional industry
determination under section 771(4)(C), the administering authority shall offer
exporters of the subject merchandise who account for substantially all exports
of that merchandise for sale in the region concerned the opportunity to enter
into an agreement described in subsection (b) or (c).
(2) Requirements for suspension agreements. Any agreement described in
paragraph (1) shall be subject to all the requirements imposed under this
section for other agreements under subsection (b) or (c), except that if the
Commission makes a regional industry determination described in paragraph (1) in
the final affirmative determination under section 705(b) but not in the
preliminary affirmative determination under section 703(a), any agreement
described in paragraph (1) may be accepted within 60 days after the
countervailing duty order is published under section 706.
(3) Effect of suspension agreement on countervailing duty order. If an
agreement described in paragraph (1) is accepted after the countervailing duty
order is published, the administering authority shall rescind the order, refund
any cash deposit and release any bond or other security deposited under section
703(d)(1)(B), and instruct the Customs Service that entries of the subject
merchandise that were made during the period that the order was in effect shall
be liquidated without regard to countervailing duties.
(19 U.S.C. 1671c)
Sec. 705
SEC. 705. FINAL DETERMINATIONS.
(a) Final Determinations by Administering Authority.
(1) In general. Within 75 days after the date of the preliminary
determination under section 703(b), the administering authority shall make a
final determination of whether or not a countervailable subsidy is being
provided with respect to the subject merchandise; except that when an
investigation under this subtitle is initiated simultaneously with an
investigation under subtitle B, which involves imports of the same class or kind
of merchandise from the same or other countries, the administering authority, if
requested by the petitioner, shall extend the date of the final determination
under this paragraph to the date of the final determination of the administering
authority in such investigation initiated under subtitle B.
(2) Critical circumstances determinations. If the final determination of the
administering authority is affirmative, then that determination, in any
investigation in which the presence of critical circumstances has been alleged
under section 703(e), shall also contain a finding as to whether
(A) the countervailable subsidy is inconsistent with the Subsidies Agreement,
and
(B) there have been massive imports of the subject merchandise over a
relatively short period.
Such findings may be affirmative even though the preliminary determination
under section 703(e)(1) was negative.
(3) De minimis countervailable subsidy. In making a determination under this
subsection, the administering authority shall disregard any countervailable
subsidy that is de minimis as defined in section 703(b)(4).
(b) Final Determination by Commission.
(1) In general. The Commission shall make a final determination of whether
(A) an industry in the United States
(i) is materially injured, or
(ii) is threatened with material injury, or
(B) the establishment of an industry in the United States is materially
retarded,
by reason of imports, or sales (or the likelihood of sales) for importation,
of the merchandise with respect to which the administering authority has made an
affirmative determination under subsection (a). If the Commission determines
that imports of the subject merchandise are negligible, the investigation shall
be terminated.
(2) Period for injury determination following affirmative preliminary
determination by administering authority. If the preliminary determination by
the administering authority under section 703(b) is affirmative, then the
Commission shall make the determination required by paragraph (1) before the
later of
(A) the 120th day after the day on which the administering authority makes its
affirmative preliminary determination under section 703(b), or
(B) the 45th day after the day on which the administering authority makes its
affirmative final determination under subsection (a).
(3) Period for injury determination following negative preliminary
determination by administering authority. If the preliminary determination by
the administering authority under section 703(b) is negative, and its final
determination under subsection (a) is affirmative, then the final determination
by the Commission under this subsection shall be made within 75 days after the
date of that affirmative final determination.
(4) Certain additional findings.
(A) Commission standard for retroactive application.
(i) In general. If the finding of the administering authority under
subsection (a)(2) is affirmative, then the final determination of the Commission
shall include a finding as to whether the imports subject to the affirmative
determination under subsection (a)(2) are likely to undermine seriously the
remedial effect of the countervailing duty order to be issued under section 706.
(ii) Factors to consider. In making the evaluation under clause (i), the
Commission shall consider, among other factors it considers relevant
(I) the timing and the volume of the imports,
(II) any rapid increase in inventories of the imports, and
(III) any other circumstances indicating that the remedial effect of the
countervailing duty order will be seriously undermined.
(B) If the final determination of the Commission is that there is no material
injury but that there is threat of material injury, then its determination shall
also include a finding as to whether material injury by reason of imports of the
merchandise with respect to which the administering authority has made an
affirmative determination under subsection (a) would have been found but for any
suspension of liquidation of entries of that merchandise.
(c) Effect of Final Determinations.
(1) Effect of affirmative determination by the administering authority. If
the determination of the administering authority under subsection (a) is
affirmative, then
(A) the administering authority shall make available to the Commission all
information upon which such determination was based and which the Commission
considers relevant to its determination, under such procedures as the
administering authority and the Commission may establish to prevent disclosure,
other than with the consent of the party providing it or under protective order,
of any information to which confidential treatment has been given by the
administering authority,
(B)(i) the administering authority shall
(I) determine an estimated individual countervailable subsidy rate for each
exporter and producer individually investigated, and, in accordance with
paragraph (5), an estimated all-others rate for all exporters and producers not
individually investigated and for new exporters and producers within the meaning
of section 751(a)(2)(B), or
(II) if 777A(e)(2)(B) 1 applies, determine a single estimated country-wide
subsidy rate, applicable to all exporters and producers,
1 So in original. Probably should read "if section 777A(e)(2)(B) applies".
(ii) shall order the posting of a cash deposit, bond, or other security, as
the administering authority deems appropriate, for each entry of the subject
merchandise in an amount based on the estimated individual countervailable
subsidy rate, the estimated all-others rate, or the estimated country-wide
subsidy rate, whichever is applicable, and
(C) in cases where the preliminary determination by the administering
authority under section 703(b) was negative, the administering authority shall
order the suspension of liquidation under paragraph (2) of section 703(d).
(2) Issuance of order; effect of negative determination. If the
determinations of the administering authority and the Commission under
subsections (a)(1) and (b)(1) are affirmative, then the administering authority
shall issue a countervailing duty order under section 706(a). If either of such
determinations is negative, the investigation shall be terminated upon the
publication of notice of that negative determination and the administering
authority shall
(A) terminate the suspension of liquidation under section 703(d)(2), and
(B) release any bond or other security and refund any cash deposit required
under section 703(d)(1)(B).
(3) Effect of negative determinations under subsections (a)(2) and (b)(4)(a).
If the determination of the administering authority or the Commission under
subsection (a)(2) and (b)(4)(A), respectively, is negative, then the
administering authority shall
(A) terminate any retroactive suspension of liquidation required under
paragraph (4) or section 703(e)(2), and
(B) release any bond or other security, and refund any cash deposit required,
under section 703(d)(1)(B) with respect to entries of the merchandise the
liquidation of which was suspended retroactively under section 703(e)(2).
(4) Effect of affirmative determination under subsection (a)(2). If the
determination of the administering authority under subsection (a)(2) is
affirmative, then the administering authority shall
(A) in cases where the preliminary determinations by the administering
authority under sections 703(b) and 703(e)(1) were both affirmative, continue
the retroactive suspension of liquidation and the posting of a cash deposit,
bond, or other security previously ordered under section 703(e)(2);
(B) in cases where the preliminary determination by the administering
authority under section 703(b) was affirmative, but the preliminary
determination under section 703(e)(1) was negative, shall modify any suspension
of liquidation and security requirement previously ordered under section 703(d)
to apply to unliquidated entries of merchandise entered, or withdrawn from
warehouse, for consumption on or after the date which is 90 days before the date
on which suspension of liquidation was first ordered; or
(C) in cases where the preliminary determination by the administering
authority under section 703(b) and was negative, shall apply any suspension of
liquidation and security requirement ordered under subsection 705(c)(1)(B) to
unliquidated entries of merchandise entered, or withdrawn from warehouse, for
consumption on or after the date which is 90 days before the date on which
suspension of liquidation is first ordered.
(5) Method for determining the all-others rate and the country-wide subsidy
rate.
(A) All-others rate.
(i) General rule. For purposes of this subsection and section 703(d), the
all-others rate shall be an amount equal to the weighted average countervailable
subsidy rates established for exporters and producers individually investigated,
excluding any zero and de minimis countervailable subsidy rates, and any rates
determined entirely under section 776.
(ii) Exception. If the countervailable subsidy rates established for all
exporters and producers individually investigated are zero or de minimis rates,
or are determined entirely under section 776, the administering authority may
use any reasonable method to establish an all-others rate for exporters and
producers not individually investigated, including averaging the weighted
average countervailable subsidy rates determined for the exporters and producers
individually investigated.
(B) Country-wide subsidy rate. The administering authority may calculate a
single country-wide subsidy rate, applicable to all exporters and producers, if
the administering authority limits its examination pursuant to section
777A(e)(2)(B). The estimated country-wide rate determined under section
703(d)(1)(A)(ii) or paragraph (1)(B)(i)(II) of this subsection shall be based on
industry-wide data regarding the use of subsidies determined to be
countervailable.
(d) Publication of Notice of Determinations. Whenever the
administering authority or the Commission makes a determination under this
section, it shall notify the petitioner, other parties to the investigation, and
the other agency of its determination and of the facts and conclusions of law
upon which the determination is based, and it shall publish notice of its
determination in the Federal Register.
(e) Correction of Ministerial Errors. The administering authority shall
establish procedures for the correction of ministerial errors in final
determinations within a reasonable time after the determinations are issued
under this section. Such procedures shall ensure opportunity for interested
parties to present their views regarding any such errors. As used in this
subsection, the term "ministerial error" includes errors in addition,
subtraction or other arithmetic function, clerical errors resulting from
inaccurate copying, duplication, or the like, and any other type of
unintentional error which the administering authority considers ministerial.
(19 U.S.C. 1671d)
Sec. 706
SEC. 706. ASSESSMENT OF DUTY.
(a) Publication of Countervailing Duty Order. Within 7 days after being
notified by the Commission of an affirmative determination under section 705(b),
the administering authority shall publish a countervailing duty order which
(1) directs customs officers to assess a countervailing duty equal to the
amount of the net countervailable subsidy determined or estimated to exist,
within 6 months after the date on which the administering authority receives
satisfactory information upon which the assessment may be based, but in no event
later than 12 months after the end of the annual accounting period of the
manufacturer or exporter within which the merchandise is entered, or withdrawn
from warehouse, for consumption,
(2) includes a description of the subject merchandise, in such detail as the
administering authority deems necessary, and
(3) requires the deposit of estimated countervailing duties pending
liquidation of entries of merchandise at the same time as estimated normal
customs duties on that merchandise are deposited.
(b) Imposition of Duties.
(1) General rule. If the Commission, in its final determination under section
705(b), finds material injury or threat of material injury which, but for the
suspension of liquidation under section 703(d)(2), would have led to a finding
of material injury, then entries of the merchandise subject to the
countervailing duty order, the liquidation of which has been suspended under
section 703(d)(2), shall be subject to the imposition of countervailing duties
under section 701(a).
(2) Special rule. If the Commission, in its final determination under section
705(b), finds threat of material injury, other than threat of material injury
described in paragraph (1), or material retardation of the establishment of an
industry in the United States, then merchandise subject to a countervailing duty
order which is entered, or withdrawn from warehouse, for consumption on or after
the date of publication of notice of an affirmative determination of the
Commission under section 705(b) shall be subject to the imposition of
countervailing duties under section 701(a), and the administering authority
shall release any bond or other security, and refund any cash deposit made, to
secure the payment of countervailing duties with respect to entries of the
merchandise entered, or withdrawn from warehouse, for consumption before that
date.
(c) Special Rule for Regional Industries.
(1) In general. In an investigation under this subtitle in which the
Commission makes a regional industry determination under section 771(4)(C), the
administering authority shall, to the maximum extent possible, direct that
duties be assessed only on the subject merchandise of the specific exporters or
producers that exported the subject merchandise for sale in the region concerned
during the period of investigation.
(2) Exception for new exporters and producers. After publication of the
countervailing duty order, if the administering authority finds that a new
exporter or producer is exporting the subject merchandise for sale in the region
concerned, the administering authority shall direct that duties be assessed on
the subject merchandise of the new exporter or producer consistent with the
provisions of section 751(a)(2)(B).
(19 U.S.C. 1671e)
Sec. 707
SEC. 707. TREATMENT OF DIFFERENCE BETWEEN DEPOSIT OF ESTIMATED COUNTERVAILING
DUTY AND FINAL ASSESSED DUTY UNDER COUNTERVAILING DUTY ORDER.
(a) Deposit of Estimated Countervailing Duty Under Section 703(d)(1)(B). If
the amount of a cash deposit, or the amount of any bond or other security,
required as security for an estimated countervailing duty under section
703(d)(1)(B) is different from the amount of the countervailing duty determined
under a countervailing duty order issued under section 706, then the difference
for entries of merchandise entered, or withdrawn from warehouse, for consumption
before notice of the affirmative determination of the Commission under section
705(b) is published shall be
(1) disregarded, to the extent that the cash deposit, bond, or other security
is lower than the duty under the order, or
(2) refunded or released, to the extent that the cash deposit, bond, or other
security is higher than the duty under the order.
(b) Deposit of Estimated Countervailing Duty Under Section 706(a)(3). If the
amount of an estimated countervailing duty deposited under section 706(a)(3) is
different from the amount of the countervailing duty determined under a
countervailing duty order issued under section 706, then the difference for
entries of merchandise entered, or withdrawn from warehouse, for consumption
after notice of the affirmative determination of the Commission under section
705(b) is published shall be
(1) collected, to the extent that the deposit under section 706(a)(3) is lower
than the duty determined under the order, or
(2) refunded, to the extent that the deposit under section 706(a)(3) is higher
than the duty determined under the order,
together with interest as provided by section 778.
(19 U.S.C. 1671f)
Sec. 708
SEC. 708. EFFECT OF DEROGATION OF EXPORT-IMPORT BANKING FINANCING.
Nothing in this title shall be interpreted as superseding the provisions of
section 1912 of the Export-Import Bank Act Amendments of 1978, except that in
the event of an assessment of duty based on a derogation under section 706 or
action under section 703(d)(1)(B), the Secretary of the Treasury shall not
authorize the Bank to provide guarantees, insurance and credits to competing
United States sellers pursuant to section 1912 of such Act.
(19 U.S.C. 1671g)
Sec. 709
SEC. 709. CONDITIONAL PAYMENT OF COUNTERVAILING DUTY.
(a) In General. For all entries, or withdrawals from warehouse, for
consumption of merchandise subject to a countervailing duty order on or after
the date of publication of such order, no customs officer may deliver
merchandise of that class or kind to the person by whom or for whose account it
was imported unless that person complies with the requirement of subsection (b)
and deposits with the appropriate customs officer an estimated countervailing
duty in an amount determined by the administering authority.
(b) Importer Requirements. In order to meet the requirements of this
subsection, a person shall
(1) furnish, or arrange to have furnished, to the appropriate customs officer
such information as the administering authority deems necessary for ascertaining
any countervailing duty to be imposed under this subtitle,
(2) maintain and furnish to the customs officer such records concerning such
merchandise as the administering authority, by regulation, requires, and
(3) pay, or agree to pay on demand, to the customs officer the amount of
countervailing duty imposed under this subtitle on that merchandise.
(19 U.S.C. 1671h)
Subtitle B Imposition of Antidumping Duties
Sec. 731
SEC. 731. ANTIDUMPING DUTIES IMPOSED.
If
(1) the administering authority determines that a class or kind of foreign
merchandise is being, or is likely to be, sold in the United States at less than
its fair value, and
(2) the Commission determines that
(A) an industry in the United States
(i) is materially injured, or
(ii) is threatened with material injury, or
(B) the establishment of an industry in the United States is materially
retarded,
by reason of imports of that merchandise or by reason of sales (or the
likelihood of sales) of that merchandise for importation,
then there shall be imposed upon such merchandise an antidumping duty, in
addition to any other duty imposed, in an amount equal to the amount by which
the normal value exceeds the export price (or the constructed export price) for
the merchandise. For purposes of this subsection and section 735(b)(1), a
reference to the sale of foreign merchandise includes the entering into of any
leasing arrangement regarding the merchandise that is equivalent to the sale of
the merchandise.
(19 U.S.C. 1673)
Sec. 732
SEC. 732. PROCEDURES FOR INITIATING AN ANTIDUMPING DUTY INVESTIGATION.
(a) Initiation by Administering Authority.
(1) In general. An antidumping duty investigation shall be initiated whenever
the administering authority determines, from information available to it, that a
formal investigation is warranted into the question of whether the elements
necessary for the imposition of a duty under section 731 exist.
(2) Cases involving persistent dumping.
(A) Monitoring. The administering authority may establish a monitoring
program with respect to imports of a class or kind of merchandise from any
additional supplier country for a period not to exceed one year if
(i) more than one antidumping order is in effect with respect to that class or
kind of merchandise;
(ii) in the judgment of the administering authority there is reason to believe
or suspect an extraordinary pattern of persistent injurious dumping from one or
more additional supplier countries; and
(iii) in the judgment of the administering authority this extraordinary
pattern is causing a serious commercial problem for the domestic industry.
(B) If during the period of monitoring referred to in subparagraph (A), the
administering authority determines that there is sufficient information to
initiate 1 a formal investigation under this subsection regarding an additional
supplier country, the administering authority shall immediately commence 1 such
an investigation.
1 Section 233(a)(6)(C) of P.L. 103 465 amended this subparagraph by striking
"commence" and inserting "initiate". The word "commence" appears twice, but
executed the first place such term appears.
(C) Definition. For purposes of this paragraph, the term "additional supplier
country" means a country regarding which no antidumping investigation is
currently pending, and no antidumping duty order is currently in effect, with
respect to imports of the class or kind of merchandise covered by subparagraph
(A).
(D) Expeditious action. The administering authority and the Commission, to
the extent practicable, shall expedite proceedings under this subtitle
undertaken as a result of a formal investigation initiated under subparagraph
(B).
(b) Initiation by Petition.
(1) Petition requirements. An antidumping proceeding shall be initiated
whenever an interested party described in subparagraph (C), (D), (E), (F), or
(G) of section 771(9) files a petition with the administering authority, on
behalf of an industry, which alleges the elements necessary for the imposition
of the duty imposed by section 731, and which is accompanied by information
reasonably available to the petitioner supporting those allegations. The
petition may be amended at such time, and upon such conditions, as the
administering authority and the Commission may permit.
(2) Simultaneous filing with commission. The petitioner shall file a copy of
the petition with the Commission on the same day as it is filed with the
administering authority.
(3) Action with respect to petitions.
(A) Notification of governments. Upon receipt of a petition filed under
paragraph (1), the administering authority shall notify the government of any
exporting country named in the petition by delivering a public version of the
petition to an appropriate representative of such country.
(B) Acceptance of communications. The administering authority shall not
accept any unsolicited oral or written communication from any person other than
an interested party described in section 771(9) (C), (D), (E), (F), or (G)
before the administering authority makes its decision whether to initiate an
investigation, except as provided in subsection (c)(4)(D), and except for
inquiries regarding the status of the administering authority's consideration of
the petition.
(C) Nondisclosure of certain information. The administering authority and the
Commission shall not dis- close information with regard to any draft petition
sub- mitted for review and comment before it is filed under paragraph (1).
(c) Petition Determination.
(1) In general.
(A) Time for initial determination. Except as provided in subparagraph (B),
within 20 days after the date on which a petition is filed under subsection (b),
the administering authority shall
(i) after examining, on the basis of sources readily available to the
administering authority, the accuracy and adequacy of the evidence provided in
the petition, determine whether the petition alleges the elements necessary for
the imposition of a duty under section 731 and contains information reasonably
available to the petitioner supporting the allegations, and
(ii) determine if the petition has been filed by or on behalf of the industry.
(B) Extension of time. In any case in which the administering authority is
required to poll or otherwise determine support for the petition by the industry
under paragraph (4)(D), the administering authority may, in exceptional
circumstances, apply subparagraph (A) by substituting "a maximum of 40 days" for
"20 days".
(C) Time limits where petition involves same merchandise as an order that has
been revoked. If a petition is filed under this section with respect to
merchandise that was the subject merchandise of
(i) an antidumping duty order or finding that was revoked under section 751(d)
in the 24 months preceding the date the petition is filed, or
(ii) a suspended investigation that was terminated under section 751(d) in the
24 months preceding the date the petition is filed,
the administering authority and the Commission shall, to the maximum extent
practicable, expedite any investigation initiated under this section with
respect to the petition.
(2) Affirmative determinations. If the determinations under clauses (i) and
(ii) of paragraph (1)(A) are affirmative, the administering authority shall
initiate an investigation to determine whether the subject merchandise is being,
or is likely to be, sold in the United States at less than its fair value.
(3) Negative determinations. If the determination under clause (i) or (ii) of
paragraph (1)(A) is negative, the administering authority shall dismiss the
petition, terminate the proceeding, and notify the petitioner in writing of the
reasons for the determination.
(4) Determination of industry support.
(A) General rule. For purposes of this subsection, the administering
authority shall determine that the petition has been filed by or on behalf of
the industry, if
(i) the domestic producers or workers who support the petition account for at
least 25 percent of the total production of the domestic like product, and
(ii) the domestic producers or workers who support the petition account for
more than 50 percent of the production of the domestic like product produced by
that portion of the industry expressing support for or opposition to the
petition.
(B) Certain positions disregarded.
(i) Producers related to foreign producers. In determining industry support
under subparagraph (A), the administering authority shall disregard the
position of domestic producers who oppose the petition, if such producers are
related to foreign producers, as defined in section 771(4)(B)(ii), unless such
domestic producers demonstrate that their interests as domestic producers would
be adversely affected by the imposition of an antidumping duty order.
(ii) Producers who are importers. The administering authority may disregard
the position of domestic producers of a domestic like product who are importers
of the subject merchandise.
(C) Special rule for regional industries. If the petition alleges the
industry is a regional industry, the administering authority shall determine
whether the petition has been filed by or on behalf of the industry by applying
subparagraph (A) on the basis of production in the region.
(D) Polling the industry. If the petition does not establish support of
domestic producers or workers accounting for more than 50 percent of the total
production of the domestic like product, the administering authority shall
(i) poll the industry or rely on other information in order to determine if
there is support for the petition as required by subparagraph (A), or
(ii) if there is a large number of producers in the industry, the
administering authority may determine industry support for the petition by using
any statistically valid sampling method to poll the industry.
(E) Comments by interested parties. Before the administering authority makes
a determination with respect to initiating an investigation, any person who
would qualify as an interested party under section 771(9) if an investigation
were initiated, may submit comments or information on the issue of industry
support. After the administering authority makes a determination with respect to
initiating an investigation, the determination regarding industry support shall
not be reconsidered.
(5) Definition of domestic producers or workers. For purposes of this
subsection, the term "domestic producers or workers" means those interested
parties who are eligible to file a petition under subsection (b)(1)(A).
(d) Notification to Commission of Determination. The administering authority
shall
(1) notify the Commission immediately of any determination it makes under
subsection (a) or (c), and
(2) if the determination is affirmative, make available to the Commission such
information as it may have relating to the matter under investigation, under
such procedures as the administering authority and the Commission may establish
to prevent disclosure, other than with the consent of the party providing it or
under protective order, of any information to which confidential treatment has
been given by the administering authority.
(e) Information Regarding Critical Circumstances. If, at any time after the
initiation of an investigation under this subtitle, the administering authority
finds a reasonable basis to suspect that
(1) there is a history of dumping in the United States or elsewhere of the the
subject merchandise, or
(2) the person by whom, or for whose account, the merchandise was imported
knew, or should have known, that the exporter was selling the subject
merchandise at less than its fair value,
the administering authority may request the Commissioner of Customs to compile
information on an expedited basis regarding entries of the subject merchandise.
Upon receiving such request, the Commissioner of Customs shall collect
information regarding the volume and value of entries of the subject merchandise
and shall transmit such information to the administering authority at such times
as the administering authority shall direct (at least once every 30 days), until
a final determination is made under section 735(a), the investigation is
terminated, or the administering authority withdraws the request.
(19 U.S.C. 1673a)
Sec. 733
SEC. 733. PRELIMINARY DETERMINATIONS.
(a) Determination by Commission of Reasonable Indication of Injury.
(1) General rule. Except in the case of a petition dismissed by the
administering authority under section 732(c)(3), the Commission, within the time
specified in paragraph (2), shall determine, based on the information available
to it at the time of the determination, whether there is a reasonable indication
that
(A) an industry in the United States
(i) is materially injured, or
(ii) is threatened with material injury, or
(B) the establishment of an industry in the United States is materially
retarded,
by reason of imports of the subject merchandise and that imports of the
subject merchandise are not negligible. If the Commission finds that imports of
the subject merchandise are negligible or otherwise makes a negative
determination under this paragraph, the investigation shall be terminated.
(2) Time for commission determination. The Commission shall make the
determination described in paragraph (1)
(A) in the case of a petition filed under section 732(b)
(i) within 45 days after the date on which the petition is filed, or
(ii) if the time has been extended pursuant to section 732(c)(1)(B), within 25
days after the date on which the Commission receives notice from the
administering authority of initiation of the investigation, and
(B) in the case of an investigation initiated under section 732(a), within 45
days after the date on which the Commission receives notice from the
administering authority that an investigation has been initiated under such
section.
(b) Preliminary Determination by Administering Authority.
(1) Period of antidumping duty investigation.
(A) In general. Except as provided in subparagraph (B), within 140 days after
the date on which the administering authority initiates an investigation under
section 732(c), or an investigation is initiated under section 732(a), but not
before an affirmative determination by the Commission under subsection (a) of
this section, the administering authority shall make a determination, based upon
the information available to it at the time of the determination, of whether
there is a reasonable basis to believe or suspect that the merchandise is being
sold, or is likely to be sold at less than fair value.
(B) If certain short life cycle merchandise involved. If a petition filed
under section 732(b), or an investigation initiated under section 732(a),
concerns short life cycle merchandise that is included in a product category
established under section 739(a), subparagraph (A) shall be applied
(i) by substituting "100 days" for "140 days" if manufacturers that are second
offenders account for a significant proportion of the merchandise under
investigation, and
(ii) by substituting "80 days" for "140 days" if manufacturers that are
multiple offenders account for a significant proportion of the merchandise under
investigation.
(C) Definitions of offenders. For purposes of subparagraph (B)
(i) the term "second offender" means a manufacturer that is specified in 2
affirmative dumping determinations (within the meaning of section 739) as the
manufacturer of short life cycle merchandise that is
(I) specified in both such determinations, and
(II) within the scope of the product category referred to in subparagraph (B).
(ii) the term "multiple offender" means a manufacturer that is specified in 3
or more affirmative dumping determinations (within the meaning of section 739)
as the manufacturer of short life cycle merchandise that is
(I) specified in each of such determinations, and
(II) within the scope of the product category referred to in subparagraph (B).
(2) Preliminary determination under waiver of verification. Within 75 days
after the initiation of an investigation, the administering authority shall
cause an official designated for such purpose to review the information
concerning the case received during the first 60 days of the investigation, and,
if there appears to be sufficient information available upon which the
preliminary determination can reasonably be based, to disclose to the petitioner
and any interested party, then a party to the proceedings that requests such
disclosure, all available non-confidential information and all other information
which is disclosed pursuant to section 777. Within 3 days (not counting
Saturdays, Sundays, or legal public holidays) after such disclosure, the
petitioner and each party which is an interested party described in subparagraph
(C), (D), (E), (F), or (G) of section 771(9) to whom such disclosure was made
may furnish to the administering authority an irrevocable written waiver of
verification of the information received by the authority, and an agreement that
it is willing to have a preliminary determination made on the basis of the
record then available to the authority. If a timely waiver and agreement have
been received from the petitioner and each party which is an interested party
described in subparagraph (C), (D), (E), (F), or (G) of section 771(9) to whom
the disclosure was made, and the authority finds that sufficient information is
then available upon which the preliminary determination can reasonably be based,
a preliminary determination shall be made within 90 days after the initiation of
the investigation on the basis of the record established during the first 60
days after the investigation was initiated.
(3) De minimis dumping margin. In making a determination under this
subsection, the administering authority shall disregard any weighted average
dumping margin that is de minimis. For purposes of the preceding sentence, a
weighted average dumping margin is de minimis if the administering authority
determines that it is less than 2 percent ad valorem or the equivalent specific
rate for the subject merchandise.
(c) Extension of Period in Extraordinarily Complicated Cases.
(1) In general. If
(A) the petitioner makes a timely request for an extension of the period
within which the determination must be made under subsection (b)(1), or
(B) the administering authority concludes that the parties concerned are
cooperating and determines that
(i) the case is extraordinarily complicated by reason of
(I) the number and complexity of the transactions to be investigated or
adjustments to be considered,
(II) the novelty of the issues presented, or
(III) the number of firms whose activities must be investigated, and
(ii) additional time is necessary to make the preliminary determination,
then the administering authority may postpone making the preliminary
determination under subsection (b)(1) until not later than the 190th day after
the date on which the administering authority initiates an investigation under
section 732(c), or an investigation is initiated under section 732(a). No
extension of a determination date may be made under this paragraph for any
investigation in which a determination date provided for in subsection (b)(1)(B)
applies unless the petitioner submits written notice to the administering
authority of its consent to the extension.
(2) Notice of postponement. The administering authority shall notify the
parties to the investigation, not later than 20 days before the date on which
the preliminary determination would otherwise be required under subsection
(b)(1), if it intends to postpone making the preliminary determination under
paragraph (1). The notification shall include an explanation of the reasons for
the postponement, and notice of the postponement shall be published in the
Federal Register.
(d) Effect of Determination by the Administering Authority. If the
preliminary determination of the administering authority under subsection (b) is
affirmative, the administering authority
(1)(A) shall
(i) determine an estimated weighted average dumping margin for each exporter
and producer individually investigated, and
(ii) determine, in accordance with section 735(c)(5), an estimated all-others
rate for all exporters and producers not individually investigated, and
(B) shall order the posting of a cash deposit, bond, or other security, as the
administering authority deems appropriate, for each entry of the subject
merchandise in an amount based on the estimated weighted average dumping margin
or the estimated all-others rate, whichever is applicable,
(2) shall order the suspension of liquidation of all entries of merchandise
subject to the determination which are entered, or withdrawn from warehouse, for
consumption on or after the later of
(A) the date on which notice of the determination is published in the Federal
Register, or
(B) the date that is 60 days after the date on which notice of the
determination to initiate the investigation is published in the Federal
Register, and
(3) shall make available to the Commission all information upon which such
determination was based and which the Commission considers relevant to its
injury determination, under such procedures as the administering authority and
the Commission may establish to prevent disclosure, other than with the consent
of the party providing it or under protective order, of any information to which
confidential treatment has been given by the administering authority.
The instructions of the administering authority under paragraphs (1) and (2)
may not remain in effect for more than 4 months, except that the administering
authority may, at the request of exporters representing a significant proportion
of exports of the subject merchandise, extend that 4-month period to not more
than 6 months.
(e) Critical Circumstances Determinations.
(1) In general. If a petitioner alleges critical circumstances in its
original petition, or by amendment at any time more than 20 days before the date
of a final determination by the administering authority, then the administering
authority shall promptly (at any time after the initiation of the investigation
under this subtitle) determine, on the basis of the information available to it
at that time, whether there is a reasonable basis to believe or suspect that
(A)(i) there is a history of dumping and material injury by reason of dumped
imports in the United States or elsewhere of the subject merchandise, or
(ii) the person by whom, or for whose account, the merchandise was imported
knew or should have known that the exporter was selling the subject merchandise
at less than its fair value and that there was likely to be material injury by
reason of such sales, and
(B) there have been massive imports of the subject merchandise over a
relatively short period.
The administering authority shall be treated as having made an affirmative
determination under subparagraph (A) in any investigation to which subsection
(b)(1)(B) is applied.
(2) Suspension of liquidation. If the determination of the administering
authority under paragraph (1) is affirmative, then any suspension of liquidation
ordered under subsection (d)(2) shall apply, or, if notice of such suspension of
liquidation is already published, be amended to apply, to unliquidated entries
of merchandise entered, or withdrawn from warehouse, for consumption on or after
the later of
(A) the date which is 90 days before the date on which the suspension of
liquidation was first ordered, or
(B) the date on which notice of the determination to initiate the
investigation is published in the Federal Register.
(f) Notice of Determination. Whenever the Commission or the administering
authority makes a determination under this section, the Commission or the
administering authority, as the case may be, shall notify the petitioner, and
other parties to the investigation, and the Commission or the administering
authority (whichever is appropriate) of its determination. The administering
authority shall include with such notification the facts and conclusions on
which its determination is based. Not later than 5 days after the date on which
the determination is required to be made under subsection (a)(2), the Commission
shall transmit to the administering authority the facts and conclusions on which
its determination is based.
(19 U.S.C. 1673b)
Sec. 734
SEC. 734. TERMINATION OR SUSPENSION OF INVESTIGATION.
(a) Termination of Investigation Upon Withdrawal of Petition.
(1) In general.
(A) Withdrawal of petition. Except as provided in paragraphs (2) and (3), an
investigation under this subtitle may be terminated by either the administering
authority or the Commission, after notice to all parties to the investigation,
upon withdrawal of the petition by the petitioner or by the administering
authority if the investigation was initiated under section 732(a).
(B) Refiling of petition. If, within 3 months after the withdrawal of a
petition under subparagraph (A), a new petition is filed seeking the imposition
of duties on both the subject merchandise of the withdrawn petition and the
subject merchandise from another country, the administering authority and the
Commission may use in the investigation initiated pursuant to the new petition
any records compiled in an investigation conducted pursuant to the withdrawn
petition. This subparagraph applies only with respect to the first withdrawal of
a petition.
(2) Special rules for quantitative restriction agreements.
(A) In general. Subject to subparagraphs (B) and (C), the administering
authority may not terminate an investigation under paragraph (1) by accepting an
understanding or other kind of agreement to limit the volume of imports into the
United States of the subject merchandise unless the administering authority is
satisfied that termination on the basis of that agreement is in the public
interest.
(B) Public interest factors. In making a decision under subparagraph (A)
regarding the public interest the administering authority shall take into
account
(i) whether, based upon the relative impact on consumer prices and the
availability of supplies of the merchandise, the agreement would have a greater
adverse impact on United States consumers than the imposition of antidumping
duties;
(ii) the relative impact on the international economic interests of the United
States; and
(iii) the relative impact on the competitiveness of the domestic industry
producing the like merchandise, including any such impact on employment and
investment in that industry.
(C) Prior consultations. Before making a decision under subparagraph (A)
regarding the public interest, the administering authority shall, to the extent
practicable, consult with
(i) potentially affected consuming industries; and
(ii) potentially affected producers and workers in the domestic industry
producing the like merchandise, including producers and workers not party to the
investigation.
(3) Limitation on termination by commission. The Commission may not terminate
an investigation under paragraph (1) before a preliminary determination is made
by the administering authority under section 733(b).
(b) Agreements To Eliminate Completely Sales at Less Than Fair Value or To
Cease Exports of Merchandise. The administering authority may suspend an
investigation if the exporters of the subject merchandise who account for
substantially all of the imports of that merchandise agree
(1) to cease exports of the merchandise to the United States within 6 months
after the date on which the investigation is suspended, or
(2) to revise their prices to eliminate completely any amount by which the
normal value of the merchandise which is the subject of the agreement exceeds
the export price (or the constructed export price) of that merchandise.
(c) Agreements Eliminating Injurious Effect.
(1) General rule. If the administering authority determines that
extraordinary circumstances are present in a case, it may suspend an
investigation upon the acceptance of an agreement to revise prices from
exporters of the subject merchandise who account for substantially all of the
imports of that merchandise into the United States, if the agreement will
eliminate completely the injurious effect of exports to the United States of
that merchandise and if
(A) the suppression or undercutting of price levels of domestic products by
imports of that merchandise will be prevented, and
(B) for each entry of each exporter the amount by which the estimated normal
value exceeds the export price (or the constructed export price) will not exceed
15 percent of the weighted average amount by which the estimated normal value
exceeded the export price (or the constructed export price) for all
less-than-fair-value entries of the exporter examined during the course of the
investigation.
(2) Definition of extraordinary circumstances.
(A) Extraordinary circumstances. For purposes of this subsection, the term
"extraordinary circumstances" means circumstances in which
(i) suspension of an investigation will be more beneficial to the domestic
industry than continuation of the investigation, and
(ii) the investigation is complex.
(B) Complex. For purposes of this paragraph, the term "complex" means
(i) there are a large number of transactions to be investigated or adjustments
to be considered,
(ii) the issues raised are novel, or
(iii) the number of firms involved is large.
(d) Additional Rules and Conditions. The administering authority may not
accept an agreement under subsection (b) or (c) unless
(1) it is satisfied that suspension of the investigation is in the public
interest, and
(2) effective monitoring of the agreement by the United States is practicable.
Where practicable, the administering authority shall provide to the exporters
who would have been subject to the agreement the reasons for not accepting the
agreement and, to the extent possible, an opportunity to submit comments
thereon.
(e) Suspension of Investigation Procedure. Before an investigation may be
suspended under subsection (b) or (c) the administering authority shall
(1) notify the petitioner of, and consult with the petitioner concerning, its
intention to suspend the investigation, and notify other parties to the
investigation and the Commission not less than 30 days before the date on which
it suspends the investigation,
(2) provide a copy of the proposed agreement to the petitioner at the time of
the notification, together with an explanation of how the agreement will be
carried out and enforced, and of how the agreement will meet the requirements of
subsections (b) and (d) or (c) and (d), and
(3) permit all interested parties described in section 771(9) to submit
comments and information for the record before the date on which notice of
suspension of the investigation is published under subsection (f)(1)(A).
(f) Effects of Suspension of Investigation.
(1) In general. If the administering authority determines to suspend an
investigation upon acceptance of an agreement described in subsection (b) or
(c), then
(A) it shall suspend the investigation, publish notice of suspension of the
investigation, and issue an affirmative preliminary determination under section
733(b) with respect to the subject merchandise, unless it has previously issued
such a determination in the same investigation,
(B) the Commission shall suspend any investigation it is conducting with
respect to that merchandise, and
(C) the suspension of investigation shall take effect on the day on which such
notice is published.
(2) Liquidation of entries.
(A) Cessation of exports; complete elimination of dumping margin. If the
agreement accepted by the administering authority is an agreement described in
subsection (b), then
(i) notwithstanding the affirmative preliminary determination required under
paragraph (1)(A), the liquidation of entries of subject merchandise shall not be
suspended under section 733(d)(2),
(ii) if the liquidation of entries of such merchandise was suspended pursuant
to a previous affirmative preliminary determination in the same case with
respect to such merchandise, that suspension of liquidation shall terminate, and
(iii) the administering authority shall refund any cash deposit and release
any bond or other security deposited under section 733(d)(1)(B).
(B) Other agreements. If the agreement accepted by the administering
authority is an agreement described in subsection (c), the liquidation of
entries of the subject merchandise shall be suspended under section 733(d)(2),
or, if the liquidation of entries of such merchandise was suspended pursuant to
a previous affirmative preliminary determination in the same case, that
suspension of liquidation shall continue in effect, subject to subsection
(h)(3), but the security required under section 733(d)(1)(B) may be adjusted to
reflect the effect of the agreement.
(3) Where investigation is continued. If, pursuant to subsection (g), the
administering authority and the Commission continue an investigation in which an
agreement has been accepted under subsection (b) or (c), then
(A) if the final determination by the administering authority or the
Commission under section 735 is negative, the agreement shall have no force or
effect and the investigation shall be terminated, or
(B) if the final determinations by the administering authority and the
Commission under such section are affirmative, the agreement shall remain in
force, but the administering authority shall not issue an antidumping duty order
in the case so long as
(i) the agreement remains in force,
(ii) the agreement continues to meet the requirements of subsections (b) and
(d), or (c) and (d), and
(iii) the parties to the agreement carry out their obligations under the
agreement in accordance with its terms.
(g) Investigation To Be Continued Upon Request. If the administering
authority, within 20 days after the date of publication of the notice of
suspension of an investigation, receives a request for the continuation of the
investigation from
(1) an exporter or exporters accounting for a significant proportion of
exports to the United States of the subject merchandise, or
(2) an interested party described in subparagraph (C), (D), (E), (F), or (G)
of section 771(9) which is a party to the investigation,
then the administering authority and the Commission shall continue the
investigation.
(h) Review of Suspension.
(1) In general. Within 20 days after the suspension of an investigation under
subsection (c), an interested party which is a party to the investigation and
which is described in subparagraph (C), (D), (E), (F), or (G) of section 771(9)
may, by petition filed with the Commission and with notice to the administering
authority, ask for a review of the suspension.
(2) Commission investigation. Upon receipt of a review petition under
paragraph (1), the Commission shall, within 75 days after the date on which the
petition is filed with it, determine whether the injurious effect of imports of
the subject merchandise is eliminated completely by the agreement. If the
Commission's determination under this subsection is negative, the investigation
shall be resumed on the date of publication of notice of such determination as
if the affirmative preliminary determination under section 733(b) had been made
on that date.
(3) Suspension of liquidation to continue during review period. The
suspension of liquidation of entries of the subject merchandise shall terminate
at the close of the 20-day period beginning on the day after the date on which
notice of suspension of the investigation is published in the Federal Register,
or, if a review petition is filed under paragraph (1) with respect to the
suspension of the investigation, in the case of an affirmative determination by
the Commission under paragraph (2), the date on which notice of an affirmative
determination by the Commission is published. If the determination of the
Commission under paragraph (2) is affirmative, then the administering authority
shall
(A) terminate the suspension of liquidation under section 733(d)(2), and
(B) release any bond or other security, and refund any cash deposit, required
under section 733(d)(1)(B).
(i) Violation of Agreement.
(1) In general. If the administering authority determines that an agreement
accepted under subsection (b) or (c) is being, or has been, violated, or no
longer meets the requirements of such subsection (other than the requirement,
under subsection (c)(1), of elimination of injury) and subsection (d), then, on
the date of publication of its determination, it shall
(A) suspend liquidation under section 733(d)(2) of unliquidated entries of the
merchandise made on the later of
(i) the date which is 90 days before the date of publication of the notice of
suspension of liquidation, or
(ii) the date on which the merchandise, the sale or export to the United
States of which was in violation of the agreement, or under an agreement which
no longer meets the requirements of subsections (b) and (d) or (c) and (d), was
first entered, or withdrawn from warehouse, for consumption,
(B) if the investigation was not completed, resume the investigation as if its
affirmative preliminary determination were made on the date of its determination
under this paragraph,
(C) if the investigation was completed under subsection (g), issue an
antidumping duty order under section 736(a) effective with respect to entries of
merchandise liquidation of which was suspended,
(D) if it considers the violation to be intentional, notify the Commissioner
of Customs who shall take appropriate action under paragraph (2), and
(E) notify the petitioner, interested parties who are or were parties to the
investigation, and the Commission of its action under this paragraph.
(2) Intentional violation to be punished by civil penalty. Any person who
intentionally violates an agreement accepted by the administering authority
under subsection (b) or (c) shall be subject to a civil penalty assessed in the
same amount, in the same manner, and under the same procedures, as the penalty
imposed for a fraudulent violation of section 592(a) of this Act.
(j) Determination Not To Take Agreement Into Account. In making a final
determination under section 735, or in conducting a review under section 751, in
a case in which the administering authority has terminated a suspension of
investigation under subsection (i)(1), or continued an investigation under
subsection (g), the Commission and the administering authority shall consider
all of the subject merchandise, without regard to the effect of any agreement
under subsection (b) or (c).
(k) Termination of Investigation Initiated by Administering Authority. The
administering authority may terminate any investigation initiated by the
administering authority under section 732(a) after providing notice of such
termination to all parties to the investigation.
(l) Special Rule for Nonmarket Economy Countries.
(1) In general. The administering authority may suspend an investigation
under this subtitle upon acceptance of an agreement with a nonmarket economy
country to restrict the volume of imports into the United States of the
merchandise under investigation only if the administering authority determines
that
(A) such agreement satisfies the requirements of subsection (d), and
(B) will prevent the suppression or undercutting of price levels of domestic
products by imports of the merchandise under investigation.
(2) Failure of agreements. If the administering authority determines that an
agreement accepted under this subsection no longer prevents the suppression or
undercutting of domestic prices of merchandise manufactured in the United
States, the provisions of subsection (i) shall apply.
(m) Special Rule for Regional Industry Investigations.
(1) Suspension agreements. If the Commission makes a regional industry
determination under section 771(4)(C), the administering authority shall offer
exporters of the subject merchandise who account for substantially all exports
of that merchandise for sale in the region concerned the opportunity to enter
into an agreement described in subsection (b), (c), or (l).
(2) Requirements for suspension agreements. Any agreement described in
paragraph (1) shall be subject to all the requirements imposed under this
section for other agreements under subsection (b), (c), or (l), except that if
the Commission makes a regional industry determination described in paragraph
(1) in the final affirmative determination under section 735(b) but not in the
preliminary affirmative determination under section 733(a), any agreement
described in paragraph (1) may be accepted within 60 days after the antidumping
order is published under section 736.
(3) Effect of suspension agreement on antidumping duty order. If an agreement
described in paragraph (1) is accepted after the antidumping duty order is
published, the administering authority shall rescind the order, refund any cash
deposit and release any bond or other security deposited under section
733(d)(1)(B), and instruct the Customs Service that entries of the subject
merchandise that were made during the period that the order was in effect shall
be liquidated without regard to antidumping duties.
(19 U.S.C. 1673c)
Sec. 735
SEC. 735. FINAL DETERMINATIONS.
(a) Final Determination by Administering Authority.
(1) General rule. Within 75 days after the date of its preliminary
determination under section 733(b), the administering authority shall make a
final determination of whether the subject merchandise is being, or is likely to
be, sold in the United States at less than its fair value.
(2) Extension of period for determination. The administering authority may
postpone making the final determination under paragraph (1) until not later than
the 135th day after the date on which it published notice of its preliminary
determination under section 733(b) if a request in writing for such a
postponement is made by
(A) exporters who account for a significant proportion of exports of the
merchandise which is the subject of the investigation, in a proceeding in which
the preliminary determination by the administering authority under section
733(b) was affirmative, or
(B) the petitioner, in a proceeding in which the preliminary determination by
the administering authority under section 733(b) was negative.
(3) Critical circumstances determinations. If the final determination of the
administering authority is affirmative, then that determination, in any
investigation in which the presence of critical circumstances has been alleged
under section 733(e), shall also contain a finding of whether
(A)(i) there is a history of dumping and material injury by reason of dumped
imports in the United States or elsewhere of the subject merchandise, or
(ii) the person by whom, or for whose account, the merchandise was imported,
knew or should have known that the exporter was selling the subject merchandise
at less than its fair value and that there would be material injury by reason of
such sales, and
(B) there have been massive imports of the subject merchandise over a
relatively short period.
Such findings may be affirmative even though the preliminary determination
under section 733(e)(1) was negative.
(4) De minimis dumping margin. In making a determination under this
subsection, the administering authority shall disregard any weighted average
dumping margin that is de minimis as defined in section 733(b)(3).
(b) Final Determination by Commission.
(1) In general. The Commission shall make a final determination of whether
(A) an industry in the United States
(i) is materially injured, or
(ii) is threatened with material injury, or
(B) the establishment of an industry in the United States is materially
retarded,
by reason of imports, or sales (or the likelihood of sales) for importation,
of the merchandise with respect to which the administering authority has made an
affirmative determination under subsection (a)(1). If the Commission determines
that imports of the subject merchandise are negligible, the investigation shall
be terminated.
(2) Period for injury determination following affirmative preliminary
determination by administering authority. If the preliminary determination by
the administering authority under section 733(b) is affirmative, then the
Commission shall make the determination required by paragraph (1) before the
later of
(A) the 120th day after the day on which the administering authority makes its
affirmative preliminary determination under section 733(b), or
(B) the 45th day after the day on which the administering authority makes its
affirmative final determination under subsection (a).
(3) Period for injury determination following negative preliminary
determination by administering authority. If the preliminary determination by
the administering authority under section 733(b) is negative, and its final
determination under subsection (a) is affirmative, then the final determination
by the Commission under this subsection shall be made within 75 days after the
date of that affirmative final determination.
(4) Certain additional findings.
(A) Commission standard for retroactive application.
(i) In general. If the finding of the administering authority under
subsection (a)(3) is affirmative, then the final determination of the Commission
shall include a finding as to whether the imports subject to the affirmative
determination under subsection (a)(3) are likely to undermine seriously the
remedial effect of the antidumping duty order to be issued under section 736.
(ii) Factors to consider. In making the evaluation under clause (i), the
Commission shall consider, among other factors it considers relevant
(I) the timing and the volume of the imports,
(II) a rapid increase in inventories of the imports, and
(III) any other circumstances indicating that the remedial effect of the
antidumping order will be seriously undermined.
(B) If the final determination of the Commission is that there is no material
injury but that there is threat of material injury, then its determination shall
also include a finding as to whether material injury by reason of the imports of
the merchandise with respect to which the administering authority has made an
affirmative determination under subsection (a) would have been found but for any
suspension of liquidation of entries of the merchandise.
(c) Effect of Final Determinations.
(1) Effect of affirmative determination by the administering authority. If
the determination of the administering authority under subsection (a) is
affirmative, then
(A) the administering authority shall make available to the Commission all
information upon which such determination was based and which the Commission
considers relevant to its determination, under such procedures as the
administering authority and the Commission may establish to prevent disclosure,
other than with the consent of the party providing it or under protective order,
of any information as to which confidential treatment has been given by the
administering authority,
(B)(i) the administering authority shall
(I) determine the estimated weighted average dumping margin for each exporter
and producer individually investigated, and
(II) determine, in accordance with paragraph (5), the estimated all-others
rate for all exporters and producers not individually investigated, and
(ii) the administering authority shall order the posting of a cash deposit,
bond, or other security, as the administering authority deems appropriate, for
each entry of the subject merchandise in an amount based on the estimated
weighted average dumping margin or the estimated all-others rate, whichever is
applicable, and
(C) in cases where the preliminary determination by the administering
authority under section 733(b) was negative, the administering authority shall
order the suspension of liquidation under section 733(d)(2).
(2) Issuance of order; effect of negative determination. If the
determinations of the administering authority and the Commission under
subsections (a)(1) and (b)(1) are affirmative, then the administering authority
shall issue an antidumping duty order under section 736(a). If either of such
determinations is negative, the investigation shall be terminated upon the
publication of notice of that negative determination and the administering
authority shall
(A) terminate the suspension of liqudation under section 703(d)(2), and
(B) release any bond or other security and refund any cash deposit, required
under section 733(d)(1)(B).
(3) Effect of negative determinations under subsections (a)(3) and (b)(4)(a).
If the determination of the administering authority or the Commission under
subsection (a)(3) or (b)(4)(A), respectively, is negative, then the
administering authority shall
(A) terminate any retroactive suspension of liquidation required under
paragraph (4) or section 733(e)(2), and
(B) release any bond or other security, and refund any cash deposit required,
under section 733(d)(1)(B) with respect to entries of the merchandise the
liquidation of which was suspended retroactively under section 733(e)(2).
(4) Effect of affirmative determination under subsection (a)(3). If the
determination of the administering authority under subsection (a)(3) is
affirmative, then the administering authority shall
(A) in cases where the preliminary determinations by the administering
authority under sections 733(b) and 733(e)(1) were both affirmative, continue
the retroactive suspension of liquidation and the posting of a cash deposit,
bond, or other security previously ordered under section 733(e)(2);
(B) in cases where the preliminary determination by the administering
authority under section 733(b) was affirmative, but the preliminary
determination under section 733(e)(1) was negative, shall modify any suspension
of liquidation and security requirement previously ordered under section 733(d)
to apply to unliquidated entries of merchandise entered, or withdrawn from
warehouse, for consumption on or after the date which is 90 days before the date
on which suspension of liquidation was first ordered; or
(C) in cases where the preliminary determination by the administering
authority under section 733(b) was negative, shall apply any suspension of
liquidation and security requirement ordered under subsection 735(c)(1)(B) to
unliquidated entries of merchandise entered, or withdrawn from warehouse, for
consumption on or after the date which is 90 days before the date on which
suspension of liquidation is first ordered.
(5) Method for determining estimated all-others rate.
(A) General rule. For purposes of this subsection and section 733(d), the
estimated all-others rate shall be an amount equal to the weighted average of
the estimated weighted average dumping margins established for exporters and
producers individually investigated, excluding any zero and de minimis margins,
and any margins determined entirely under section 776.
(B) Exception. If the estimated weighted average dumping margins established
for all exporters and producers individually investigated are zero or de minimis
margins, or are determined entirely under section 776, the administering
authority may use any reasonable method to establish the estimated all-others
rate for exporters and producers not individually investigated, including
averaging the estimated weighted average dumping margins determined for the
exporters and producers individually investigated.
(d) Publication of Notice of Determinations. Whenever the administering
authority or the Commission makes a determination under this section, it shall
notify the petitioner, other parties to the investigation, and the other agency
of its determination and of the facts and conclusions of law upon which the
determination is based, and it shall publish notice of its determination in the
Federal Register.
(e) Correction of Ministerial Errors. The administering authority shall
establish procedures for the correction of ministerial errors in final
determinations within a reasonable time after the determinations are issued
under this section. Such procedures shall ensure opportunity for interested
parties to present their views regarding any such errors. As used in this
subsection, the term "ministerial error" includes errors in addition,
subtraction, or other arithmetic function, clerical errors resulting from
inaccurate copying, duplication, or the like, and any other type of
unintentional error which the administering authority considers ministerial.
(19 U.S.C. 1673d)
Sec. 736
SEC. 736. ASSESSMENT OF DUTY.
(a) Publication of Antidumping Duty Order. Within 7 days after being notified
by the Commission of an affirmative determination under section 735(b), the
administering authority shall publish an antidumping duty order which
(1) directs customs officers to assess an antidumping duty equal to the amount
by which the normal value of the merchandise exceeds the export price (or the
constructed export price) of the merchandise, within 6 months after the date on
which the administering authority receives satisfactory information upon which
the assessment may be based, but in no event later than
(A) 12 months after the end of the annual accounting period of the
manufacturer or exporter within which the merchandise is entered, or withdrawn
from warehouse, for consumption, or
(B) in the case of merchandise not sold prior to its importation into the
United States, 12 months after the end of the annual accounting period of the
manufacturer or exporter within which it is sold in the United States to a
person who is not the exporter of that merchandise,
(2) includes a description of the subject merchandise, in such detail as the
administering authority deems necessary, and
(3) requires the deposit of estimated antidumping duties pending liquidation
of entries of merchandise at the same time as estimated normal customs duties on
that merchandise are deposited.
(b) Imposition of Duty.
(1) General rule. If the Commission, in its final determination under section
735(b), finds material injury or threat of material injury which, but for the
suspension of liquidation under section 733(d)(2) would have led to a finding of
material injury, then entries of the subject merchandise, the liquidation of
which has been suspended under section 733(d)(2), shall be subject to the
imposition of antidumping duties under section 731.
(2) Special rule. If the Commission, in its final determination under section
735(b), finds threat of material injury, other than threat of material injury
described in paragraph (1), or material retardation of the establishment of an
industry in the United States, then subject merchandise which is entered, or
withdrawn from warehouse, for consumption on or after the date of publication of
notice of an affirmative determination of the Commission under section 735(b)
shall be subject to the assessment of antidumping duties under section 731, and
the administering authority shall release any bond or other security, and refund
any cash deposit made, to secure the payment of antidumping duties with respect
to entries of the merchandise entered, or withdrawn from warehouse, for
consumption before that date.
(c) Security in Lieu of Estimated Duty Pending Early Determination of Duty.
(1) Conditions for waiver of deposit of estimated duties. The administering
authority may permit, for not more than 90 days after the date of publication of
an order under subsection (a), the posting of a bond or other security in lieu
of the deposit of estimated antidumping duties required under subsection (a)(3)
if
(A) the investigation has not been designated as extraordinarily complicated
by reason of
(i) the number and complexity of the transactions to be investigated or
adjustments to be considered,
(ii) the novelty of the issues presented, or
(iii) the number of firms whose activities must be investigated,
(B) the final determination in the investigation has not been postponed under
section 735(a)(2)(A);
(C) on the basis of information presented to the administering authority by
any manufacturer, producer, or exporter in such form and within such time as the
administering authority may require, the administering authority is satisfied
that a determination will be made, within 90 days after the date of publication
of an order under subsection (a), of the normal value and the export price (or
the constructed export price) for all merchandise of such manufacturer,
producer, or exporter described in that order which was entered, or withdrawn
from warehouse, for consumption on or after the date of publication of
(i) an affirmative preliminary determination by the adminstering authority
under section 733(b), or
(ii) if its determination under section 733(b) was negative, an affirmative
final determination by the administering authority under section 735(a),
and before the date of publication of the affirmative final determination by
the Commission under section 735(b);
(D) the party described in subparagraph (C) provides credible evidence that
the amount by which the normal value of the merchandise exceeds the export price
(or the constructed export price) of th