[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