[Federal Register Volume 64, Number 173 (Wednesday, September 8, 1999)]
[Rules and Regulations]
[Pages 48706-48707]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-23208]
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DEPARTMENT OF COMMERCE
International Trade Administration
19 CFR Part 351
[Docket No. 9908128228-9228-01]
RIN 0625-AA56
Regulation Concerning Preliminary Critical Circumstances Findings
AGENCY: Import Administration, International Trade Administration,
Commerce.
ACTION: Final rule.
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SUMMARY: The Department of Commerce (the ``Department'') is amending 19
CFR 351.206(c), which concerns preliminary findings of critical
circumstances in antidumping and countervailing duty investigations.
The critical circumstances provisions of the antidumping and
countervailing duty laws and regulations ensure that the statutory
remedies are not undermined by massive imports of dumped or subsidized
merchandise following the filing of a petition. Normally, if an
antidumping or countervailing duty order is issued, duties are assessed
only on imports that enter the United States after the Department makes
a preliminary determination of dumping or subsidization. However, where
critical circumstances exist, duties are assessed retroactively on
imports that enter up to 90 days prior to the preliminary
determination. The amended regulation will ensure that the injurious
effects of dumped or subsidized imports are remedied to the fullest
extent provided by the law.
DATES: This rule is effective August 8, 1999.
FOR FURTHER INFORMATION CONTACT: Kathleen Hatfield, Office of Policy,
Import Administration, U.S. Department of Commerce, at (202) 482-1930,
or Marguerite Trossevin, Office of the Chief Counsel for Import
Administration, U.S. Department of Commerce, at (202) 482-5593.
SUPPLEMENTARY INFORMATION:
Background
The U.S. antidumping and countervailing duty laws, as well as the
relevant agreements of the World Trade Organization (WTO), contain
``critical circumstances'' provisions to ensure that the statutory
remedies for unfair trade practices are not undermined by massive
imports of dumped or subsidized merchandise following the filing of a
petition. Normally, if an antidumping or countervailing duty order is
issued, duties are assessed only on imports that enter the United
States after the Department makes its preliminary determination of
dumping or subsidization, which normally takes place about four months
after the filing of the petition. However, where critical circumstances
exist, duties may be assessed retroactively on imports that enter up to
90 days prior to the preliminary determination.
Sections 703(e) (countervailing duties) and 733(e) (antidumping
duties) of the Tariff Act of 1930, as amended (the Act), provide that,
if a petitioner alleges critical circumstances, the Department of
Commerce (the Department) ``shall promptly (at any time after the
initiation of the investigation under this subtitle)'' determine
whether there is reasonable cause to believe or suspect that critical
circumstances exist. Recent experience highlights the importance of
making preliminary critical circumstances findings as early as possible
to ensure that import surges do not undermine the statutory remedies.
Therefore, on October 15, 1998, the Department published Policy
Bulletin 98/4, stating that the Department will issue preliminary
findings on critical circumstances as soon as possible after
initiation. The Department is codifying that policy to ensure that the
injurious effects of dumped or subsidized imports are remedied to the
fullest extent provided by the law.
Explanation of the Regulation
The antidumping and countervailing duty laws state that critical
circumstances exist where there are massive imports over a relatively
short period and, as appropriate, either (1) there is a history of
dumping and material injury, or the importer knew or should have known
that the merchandise was dumped and injury was likely as a result, or
(2) there is a countervailable subsidy inconsistent with the WTO
Subsidies Agreement. Pursuant to 19 CFR 351.206(i), for the purpose of
determining the existence of an import surge, the Department normally
will consider a ``relatively short period'' as the period beginning on
the date the petition is filed and extending for at least the following
three months. Imports during the post-petition period are compared to a
period of comparable duration immediately preceding the petition. If
imports increased by at least 15 percent in the post-petition period,
the Department deems such a surge to constitute ``massive imports over
a relatively short period.''
Because necessary shipment data is often not immediately available
when the normal comparison periods are used, it is virtually impossible
to make a preliminary critical circumstances finding before Commerce's
preliminary determination on the existence of dumping or subsidies.
However, 19 CFR 351.206(i) further provides that, if the Department
finds that, at some time prior to the filing of a petition, importers,
exporters or producers had reason to believe that a proceeding was
likely, the Department may consider a period of at least three months
from that earlier time. In cases where earlier base periods are deemed
appropriate, an earlier preliminary finding on critical circumstances
may be possible because the necessary data may be available. However,
because the International Trade Commission's (ITC) preliminary
determination of injury may be important to the critical circumstances
analysis, normally the earliest point at which a preliminary critical
circumstances finding would be made is after the ITC preliminary
determination, which is normally 45 days after the filing of the
petition.
Accordingly, the Department is amending 19 CFR 351.206(c)(2) to
provide that, where earlier base periods are used, the Department will
issue preliminary critical circumstances findings as soon as possible
after initiation of an investigation, but normally not less than 45
days after the filing of the petition.
Classification
Administrative Procedure Act
Pursuant to authority at 5 U.S.C. 553(b)(A), this rule of agency
procedure is not subject to the requirement to provide prior notice and
an opportunity for public comment. Further, because this rule of agency
procedure is not substantive, it is not subject to the requirement in 5
U.S.C. 553(d) that its effective date be delayed 30 days.
E.O. 12866
This rule has been determined to be significant for purposes of
Executive Order 12866.
Paperwork Reduction Act
This rule contains no new collection of information subject to the
Paperwork Reduction Act, 44 U.S.C. Chapter 35.
[[Page 48707]]
E.O. 12612
This rule does not contain federalism implications warranting the
preparation of a Federalism Assessment.
Regulatory Flexibility Act
As this rule is not subject to the requirement to provide prior
notice and an opportunity for public comment pursuant to 5 U.S.C.
section 553, or any other law, the analytical requirements of the
Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are inapplicable.
List of Subjects in 19 CFR Part 351
Administrative practice and procedure, Antidumping duties, Business
and industry, Cheese, Confidential business information, Countervailing
duties, Investigations, Reporting and record keeping requirements.
Dated: August 30, 1999.
Robert S. LaRussa,
Assistant Secretary for Import Administration.
For the reasons stated, 19 CFR part 351 is amended to read as
follows:
PART 351--ANTIDUMPING AND COUNTERVAILING DUTIES
Subpart A--Scope and Definitions
1. The authority citation for part 351 continues to read as
follows:
Authority: 5 U.S.C. 301, 19 U.S.C. 1202 note; 19 U.S.C. 1303
note; 19 U.S.C. 1671 et seq.; and 19 U.S.C. 3538.
Subpart B--Antidumping and Countervailing Duty Procedures
2. Section 351.206(c)(2) is revised to read as follows:
Sec. 351.206 Critical circumstances.
* * * * *
(c) * * *
(2) The Secretary will issue the preliminary finding:
(i) Not later than the preliminary determination, if the allegation
is submitted 20 days or more before the scheduled date of the
preliminary determination; or
(ii) Within 30 days after the petitioner submits the allegation, if
the allegation is submitted later than 20 days before the scheduled
date of the preliminary determination; or
(iii) If, pursuant to paragraph (i) of this section, the period
examined for purposes of determining whether critical circumstances
exists is earlier than normal, the Secretary will issue the preliminary
finding as early as possible after initiation of the investigation, but
normally not less than 45 days after the petition was filed. The
Secretary will notify the Commission and publish in the Federal
Register notice of the preliminary finding.
* * * * *
[FR Doc. 99-23208 Filed 9-7-99; 8:45 am]
BILLING CODE 3510-DS-P
