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