Regulation Concerning Preliminary Critical Circumstances Findings

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]

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