[Federal Register Volume 63, Number 199 (Thursday, October 15, 1998)]
[Notices]
[Pages 55364-55365]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-27667]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

International Trade Administration


Change in Policy Regarding Timing of Issuance of Critical 
Circumstances Determinations

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

SUMMARY: The Department of Commerce (``the Department'') has revised 
its policy regarding the timing of issuance of critical circumstances 
determinations. We are now announcing this change in policy.

DATES: This policy is effective October 7, 1998 with respect to all 
ongoing and future investigations.

FOR FURTHER INFORMATION CONTACT: Bernard Carreau, Import 
Administration, International Trade Administration, U.S. Department of 
Commerce, 14th Street and Constitution Avenue, N.W., Washington D.C. 
20230; telephone: (202) 482-1780.

SUPPLEMENTARY INFORMATION:

Policy Bulletin 98/4: Timing of Issuance of Critical Circumstances 
Determinations

Statement of Issue

    Whether Commerce should make a determination of critical 
circumstances before issuing a preliminary determination in an 
antidumping investigation.

Analysis

    Where critical circumstances exist, U.S. law and the WTO Agreement 
on Implementation of Article VI of the General Agreement on Tariffs and 
Trade 1994 (the Antidumping Agreement) provide for the imposition of 
antidumping measures retroactively for a period of 90 days prior to the 
preliminary determination of dumping. The purpose of this provision is 
to ensure that the statutory remedy is not undermined by massive 
imports following initiation of an investigation. Section 733(e) of the 
Tariff Act of 1930, as amended (the Act), permits the Department to 
make a preliminary critical circumstances determination at any time 
after initiation of an investigation. Changes in the Antidumping 
Agreement also provide for critical circumstances decisions prior to a 
preliminary determination of dumping. Consequently, Commerce is 
revising its critical circumstances practice to more fully utilize the 
flexibility provided by the statute and the Antidumping Agreement so 
that dumping is remedied to the fullest extent provided under the law. 
Under this new practice, a preliminary determination regarding critical 
circumstances may be made prior to the preliminary determination of 
dumping, assuming adequate evidence of critical circumstances is 
available.
    Section 733(e) of the Act directs Commerce to issue critical 
circumstances determinations ``promptly (at any time after the 
initiation of the investigation under this subtitle)'' as long as an 
allegation is made in the petition or at any time more than 20 days 
before the final determination. While there is no further guidance in 
the statute, the regulations provide that preliminary critical 
circumstances findings shall be made ``not later than the preliminary 
determination,'' if the allegation is submitted at least 20 days before 
the preliminary determination, and ``within 30 days after the 
petitioner submits the allegation,'' if the allegation is submitted 
later than 20 days before the preliminary determination. 19 CFR 
351.206(c).
    In order to make a preliminary finding of critical circumstances, 
section 733(e) of the Act requires that there be a reasonable basis to 
believe or suspect that:
    1. There is a history of dumping causing material injury, or, that 
the importer knew or should have known of dumping and likely injury; 
and
    2. There have been massive imports of the subject merchandise over 
a relatively short period.
    The regulations define ``massive imports'' as an increase of 15 
percent during the relatively short period. 19 CFR 351.206(h) The 
regulations define ``relatively short period'' as normally the three-
month period after initiation of an investigation. 19 CFR 
Sec. 351.206(i) Thus, Commerce has traditionally compared the three-
month period immediately after initiation with the three-month period 
immediately preceding initiation to determine whether there has been at 
least a 15 percent increase in imports of the subject merchandise. 
Because of constraints on the availability of data, as a practical 
matter, it is virtually impossible to make a critical circumstances 
finding much before the preliminary determination, as long as these two 
base periods are used. However, section 351.206(i) further provides 
that:

* * * if the Secretary finds that importers, or exporters or 
producers, had reason to believe, at some time prior to the 
beginning of the proceeding, that a proceeding was likely, then the 
Secretary may consider a period of not less than three months from 
that earlier time.

    Therefore, if the facts of a particular case show that importers, 
exporters or producers had reason to believe that a case was likely to 
be filed, the regulations make clear that earlier base periods can be 
used to measure massive imports. If earlier base periods are chosen, in 
accordance with this regulatory provision, and a comparison of these 
periods shows massive imports, the Secretary would still need to find 
that there has been a history of dumping and injury, or importer 
knowledge of dumping and likely injury, in order to make a critical 
circumstances finding. As with current practice, the Department would 
look at such factors as past U.S. dumping cases, cases in other 
countries, the International Trade Commission's (ITC) preliminary 
determination, information supplied in the petition, and other relevant 
information available at the time of the Department's critical 
circumstances determination. Because the ITC's preliminary 
determination of injury is normally important for this analysis, we 
anticipate that the earliest point at which a critical circumstances 
determination would be made is shortly after the ITC's preliminary 
injury determination, which normally occurs 45 days after the filing of 
the petition.

Statement of Policy

    If the facts of a case show that importers, exporters, or producers 
had knowledge that a case was likely to be filed, and the other 
statutory and regulatory criteria for finding critical circumstances 
are met, Commerce should issue its preliminary finding on critical 
circumstances before the preliminary determination, and as soon as 
possible after initiation.

Implementation

    This practice will be implemented in all ongoing and future cases 
where an allegation of critical circumstances is made and the facts of 
the case support an early critical circumstances finding, in accordance 
with the statutory and regulatory criteria.


[[Page 55365]]


    Dated: October 8, 1998.
Robert S. LaRussa,
Assistant Secretary for Import Administration.
[FR Doc. 98-27667 Filed 10-14-98; 8:45 am]
BILLING CODE 3510-DS-P