19 U.S.C. § 1673a — Untitled legal text

Page 350 TITLE 19—CUSTOMS DUTIES § 1673 (3) pay, or agree to pay on demand, to the customs officer the amount of countervailing duty imposed under this part on that mer- chandise. (June 17, 1930, ch. 497, title VII, § 709, as added Pub. L. 98–573, title VI, § 608, Oct. 30, 1984, 98 Stat. 3029.) Editorial Notes Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective Oct. 30, 1984, see section 626(a) of Pub. L. 98–573, set out as an Effective Date of 1984 Amendment note under section 1671 of this title. PART II—IMPOSITION OF ANTIDUMPING DUTIES Editorial Notes CODIFICATION The designation ‘‘PART II’’ was in the original ‘‘Sub- title B’’ and was editorially changed in order to con- form the numbering format of this subtitle to the us- ages employed in the codification of the remainder of the Tariff Act of 1930 as originally enacted. § 1673. Antidumping duties imposed If— (1) the administering authority determines that a class or kind of foreign merchandise is being, or is likely to be, sold in the United States at less than its fair value, and (2) the Commission determines that— (A) an industry in the United States— (i) is materially injured, or (ii) is threatened with material injury, or (B) the establishment of an industry in the United States is materially retarded, by reason of imports of that merchandise or by reason of sales (or the likelihood of sales) of that merchandise for importation, then there shall be imposed upon such merchan- dise an antidumping duty, in addition to any other duty imposed, in an amount equal to the amount by which the normal value exceeds the export price (or the constructed export price) for the merchandise. For purposes of this section and section 1673d(b)(1) of this title, a reference to the sale of foreign merchandise includes the entering into of any leasing arrangement re- garding the merchandise that is equivalent to the sale of the merchandise. (June 17, 1930, ch. 497, title VII, § 731, as added Pub. L. 96–39, title I, § 101, July 26, 1979, 93 Stat. 162; amended Pub. L. 98–573, title VI, § 602(b), Oct. 30, 1984, 98 Stat. 3024; Pub. L. 103–465, title II, § 233(a)(1)(A), (2)(A)(i), Dec. 8, 1994, 108 Stat. 4898.) Editorial Notes AMENDMENTS 1994—Pub. L. 103–465 substituted ‘‘normal value ex- ceeds the export price (or the constructed export price)’’ for ‘‘foreign market value exceeds the United States price’’ in concluding provisions. 1984—Pub. L. 98–573 inserted ‘‘or by reason of sales (or the likelihood of sales) of that merchandise for impor- tation’’ after ‘‘by reason of imports of that merchan- dise’’ in par. (2), and inserted sentence at end providing that for purposes of this section and section 1673d(b)(1) of this title, a reference to the sale of foreign merchan- dise includes the entering into of any leasing arrange- ment regarding the merchandise that is equivalent to the sale of the merchandise. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103–465 effective, except as otherwise provided, on the date on which the WTO Agreement enters into force with respect to the United States (Jan. 1, 1995), and applicable with respect to in- vestigations, reviews, and inquiries initiated and peti- tions filed under specified provisions of this chapter after such date, see section 291 of Pub. L. 103–465, set out as a note under section 1671 of this title. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–573 applicable with respect to investigations initiated by petition or by the admin- istering authority under parts I and II of this subtitle, and to reviews begun under section 1675 of this title, on or after Oct. 30, 1984, see section 626(b)(1) of Pub. L. 98–573, as amended, set out as a note under section 1671 of this title. EFFECTIVE DATE Part effective Jan. 1, 1980, see section 107 of Pub. L. 96–39, set out as a note under section 1671 of this title. § 1673a. Procedures for initiating an anti- dumping duty investigation (a) Initiation by administering authority (1) In general An antidumping duty investigation shall be initiated whenever the administering author- ity determines, from information available to it, that a formal investigation is warranted into the question of whether the elements nec- essary for the imposition of a duty under sec- tion 1673 of this title exist. (2) Cases involving persistent dumping (A) Monitoring The administering authority may estab- lish a monitoring program with respect to imports of a class or kind of merchandise from any additional supplier country for a period not to exceed one year if— (i) more than one antidumping order is in effect with respect to that class or kind of merchandise; (ii) in the judgment of the administering authority there is reason to believe or sus- pect an extraordinary pattern of persistent injurious dumping from one or more addi- tional supplier countries; and (iii) in the judgment of the admin- istering authority this extraordinary pat- tern is causing a serious commercial prob- lem for the domestic industry. (B) Initiation of investigation If during the period of monitoring referred to in subparagraph (A), the administering authority determines that there is sufficient information to initiate a formal investiga- tion under this subsection regarding an addi- tional supplier country, the administering authority shall immediately initiate such an investigation. Page 351 TITLE 19—CUSTOMS DUTIES § 1673a (C) Definition For purposes of this paragraph, the term ‘‘additional supplier country’’ means a coun- try regarding which no antidumping inves- tigation is currently pending, and no anti- dumping duty order is currently in effect, with respect to imports of the class or kind of merchandise covered by subparagraph (A). (D) Expeditious action The administering authority and the Com- mission, to the extent practicable, shall ex- pedite proceedings under this part under- taken as a result of a formal investigation initiated under subparagraph (B). (b) Initiation by petition (1) Petition requirements An antidumping proceeding shall be initi- ated whenever an interested party described in subparagraph (C), (D), (E), (F), or (G) of sec- tion 1677(9) of this title files a petition with the administering authority, on behalf of an industry, which alleges the elements nec- essary for the imposition of the duty imposed by section 1673 of this title, and which is ac- companied by information reasonably avail- able to the petitioner supporting those allega- tions. The petition may be amended at such time, and upon such conditions, as the admin- istering authority and the Commission may permit. (2) Simultaneous filing with Commission The petitioner shall file a copy of the peti- tion with the Commission on the same day as it is filed with the administering authority. (3) Action with respect to petitions (A) Notification of governments Upon receipt of a petition filed under para- graph (1), the administering authority shall notify the government of any exporting country named in the petition by delivering a public version of the petition to an appro- priate representative of such country. (B) Acceptance of communications The administering authority shall not ac- cept any unsolicited oral or written commu- nication from any person other than an in- terested party described in section 1677(9)(C), (D), (E), (F), or (G) of this title before the ad- ministering authority makes its decision whether to initiate an investigation, except as provided in subsection (c)(4)(D), and ex- cept for inquiries regarding the status of the administering authority’s consideration of the petition. (C) Nondisclosure of certain information The administering authority and the Com- mission shall not disclose information with regard to any draft petition submitted for review and comment before it is filed under paragraph (1). (c) Petition determination (1) In general (A) Time for initial determination Except as provided in subparagraph (B), within 20 days after the date on which a pe- tition is filed under subsection (b), the ad- ministering authority shall— (i) after examining, on the basis of sources readily available to the admin- istering authority, the accuracy and ade- quacy of the evidence provided in the peti- tion, determine whether the petition al- leges the elements necessary for the impo- sition of a duty under section 1673 of this title and contains information reasonably available to the petitioner supporting the allegations, and (ii) determine if the petition has been filed by or on behalf of the industry. (B) Extension of time In any case in which the administering au- thority is required to poll or otherwise de- termine support for the petition by the in- dustry under paragraph (4)(D), the admin- istering authority may, in exceptional cir- cumstances, apply subparagraph (A) by sub- stituting ‘‘a maximum of 40 days’’ for ‘‘20 days’’. (C) Time limits where petition involves same merchandise as an order that has been revoked If a petition is filed under this section with respect to merchandise that was the subject merchandise of— (i) an antidumping duty order or finding that was revoked under section 1675(d) of this title in the 24 months preceding the date the petition is filed, or (ii) a suspended investigation that was terminated under section 1675(d) of this title in the 24 months preceding the date the petition is filed, the administering authority and the Com- mission shall, to the maximum extent prac- ticable, expedite any investigation initiated under this section with respect to the peti- tion. (2) Affirmative determinations If the determinations under clauses (i) and (ii) of paragraph (1)(A) are affirmative, the ad- ministering authority shall initiate an inves- tigation to determine whether the subject merchandise is being, or is likely to be, sold in the United States at less than its fair value. (3) Negative determinations If the determination under clause (i) or (ii) of paragraph (1)(A) is negative, the admin- istering authority shall dismiss the petition, terminate the proceeding, and notify the peti- tioner in writing of the reasons for the deter- mination. (4) Determination of industry support (A) General rule For purposes of this subsection, the admin- istering authority shall determine that the petition has been filed by or on behalf of the industry, if— (i) the domestic producers or workers who support the petition account for at least 25 percent of the total production of the domestic like product, and (ii) the domestic producers or workers who support the petition account for more Page 352 TITLE 19—CUSTOMS DUTIES § 1673a than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for or opposition to the petition. (B) Certain positions disregarded (i) Producers related to foreign producers In determining industry support under subparagraph (A), the administering au- thority shall disregard the position of do- mestic producers who oppose the petition, if such producers are related to foreign producers, as defined in section 1677(4)(B)(ii) of this title, unless such do- mestic producers demonstrate that their interests as domestic producers would be adversely affected by the imposition of an antidumping duty order. (ii) Producers who are importers The administering authority may dis- regard the position of domestic producers of a domestic like product who are import- ers of the subject merchandise. (C) Special rule for regional industries If the petition alleges the industry is a re- gional industry, the administering authority shall determine whether the petition has been filed by or on behalf of the industry by applying subparagraph (A) on the basis of production in the region. (D) Polling the industry If the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total produc- tion of the domestic like product, the ad- ministering authority shall— (i) poll the industry or rely on other in- formation in order to determine if there is support for the petition as required by sub- paragraph (A), or (ii) if there is a large number of pro- ducers in the industry, the administering authority may determine industry support for the petition by using any statistically valid sampling method to poll the indus- try. (E) Comments by interested parties Before the administering authority makes a determination with respect to initiating an investigation, any person who would qualify as an interested party under section 1677(9) of this title if an investigation were initiated, may submit comments or informa- tion on the issue of industry support. After the administering authority makes a deter- mination with respect to initiating an inves- tigation, the determination regarding indus- try support shall not be reconsidered. (5) ‘‘Domestic producers or workers’’ defined For purposes of this subsection, the term ‘‘domestic producers or workers’’ means those interested parties who are eligible to file a pe- tition under subsection (b)(1). (d) Notification to Commission of determination The administering authority shall— (1) notify the Commission immediately of any determination it makes under subsection (a) or (c), and (2) if the determination is affirmative, make available to the Commission such information as it may have relating to the matter under investigation, under such procedures as the administering authority and the Commission may establish to prevent disclosure, other than with the consent of the party providing it or under protective order, of any information to which confidential treatment has been given by the administering authority. (e) Information regarding critical circumstances If, at any time after the initiation of an inves- tigation under this part, the administering au- thority finds a reasonable basis to suspect that— (1) there is a history of dumping in the United States or elsewhere of the subject mer- chandise, or (2) the person by whom, or for whose ac- count, the merchandise was imported knew, or should have known, that the exporter was sell- ing the subject merchandise at less than its fair value, the administering authority may request the Commissioner of U.S. Customs and Border Pro- tection to compile information on an expedited basis regarding entries of the subject merchan- dise. Upon receiving such request, the Commis- sioner of U.S. Customs and Border Protection shall collect information regarding the volume and value of entries of the subject merchandise and shall transmit such information to the ad- ministering authority at such times as the ad- ministering authority shall direct (at least once every 30 days), until a final determination is made under section 1673d(a) of this title, the in- vestigation is terminated, or the administering authority withdraws the request. (June 17, 1930, ch. 497, title VII, § 732, as added Pub. L. 96–39, title I, § 101, July 26, 1979, 93 Stat. 162; amended Pub. L. 98–573, title VI, § 609, Oct. 30, 1984, 98 Stat. 3030; Pub. L. 99–514, title XVIII, § 1886(a)(2), Oct. 22, 1986, 100 Stat. 2921; Pub. L. 100–418, title I, §§ 1324(b)(1), 1326(d)(1), Aug. 23, 1988, 102 Stat. 1200, 1204; Pub. L. 103–465, title II, §§ 211(b), 212(a)(2), 233(a)(5)(P)–(R), (6)(A)(v)–(vii), (C), Dec. 8, 1994, 108 Stat. 4843, 4845, 4900, 4901; Pub. L. 104–295, § 20(b)(4), (8), (9), Oct. 11, 1996, 110 Stat. 3527; Pub. L. 114–125, title VIII, § 802(d)(2), Feb. 24, 2016, 130 Stat. 210.) Editorial Notes AMENDMENTS 1996—Subsec. (a)(2)(B). Pub. L. 104–295, § 20(b)(9), amended directory language of Pub. L. 103–465, § 233(a)(6)(C). See 1994 Amendment note below. Subsec. (c)(5). Pub. L. 104–295, § 20(b)(4), substituted ‘‘(b)(1)’’ for ‘‘(b)(1)(A)’’. Subsec. (e)(1). Pub. L. 104–295, § 20(b)(8), substituted ‘‘the’’ for ‘‘the the’’ before ‘‘subject merchandise’’. 1994—Subsec. (a)(1). Pub. L. 103–465, § 233(a)(6)(A)(v), substituted ‘‘initiated’’ for ‘‘commenced’’. Subsec. (a)(2)(B). Pub. L. 103–465, § 233(a)(6)(C), as amended by Pub. L. 104–295, § 20(b)(9), substituted ‘‘ini- tiate’’ for ‘‘commerce’’ in two places. Subsec. (a)(2)(D). Pub. L. 103–465, § 233(a)(6)(A)(vi), substituted ‘‘initiated’’ for ‘‘commenced’’. Subsec. (b)(1). Pub. L. 103–465, § 233(a)(6)(A)(vii), sub- stituted ‘‘initiated’’ for ‘‘commenced’’. Subsec. (b)(3). Pub. L. 103–465, § 211(b), added par. (3). Page 353 TITLE 19—CUSTOMS DUTIES § 1673b Subsec. (c). Pub. L. 103–465, § 212(a)(2), amended head- ing and text of subsec. (c) generally. Prior to amend- ment, text read as follows: ‘‘Within 20 days after the date on which a petition is filed under subsection (b) of this section, the administering authority shall— ‘‘(1) determine whether the petition alleges the ele- ments necessary for the imposition of a duty under section 1673 of this title and contains information reasonably available to the petitioner supporting the allegations, ‘‘(2) if the determination is affirmative, commence an investigation to determine whether the class or kind of merchandise described in the petition is being, or is likely to be, sold in the United States at less than its fair value, and provide for the publica- tion of notice of the determination in the Federal Register, and ‘‘(3) if the determination is negative, dismiss the petition, terminate the proceeding, notify the peti- tioner in writing of the reasons for the determina- tion, and provide for the publication of notice of the determination in the Federal Register.’’ Subsec. (e). Pub. L. 103–465, § 233(a)(5)(R), in con- cluding provisions, substituted ‘‘subject merchandise’’ for ‘‘class or kind of merchandise that is the subject of the investigation’’ in two places. Subsec. (e)(1). Pub. L. 103–465, § 233(a)(5)(P), sub- stituted ‘‘the subject merchandise’’ for ‘‘class or kind of the merchandise which is the subject of the inves- tigation’’. Subsec. (e)(2). Pub. L. 103–465, § 233(a)(5)(Q), sub- stituted ‘‘subject merchandise’’ for ‘‘merchandise which is the subject of the investigation’’. 1988—Subsec. (b)(1). Pub. L. 100–418, § 1326(d)(1), sub- stituted ‘‘(F), or (G)’’ for ‘‘or (F)’’. Subsec. (e). Pub. L. 100–418, § 1324(b)(1), added subsec. (e). 1986—Subsec. (b)(1). Pub. L. 99–514 inserted reference to subpar. (F) of section 1677(9) of this title. 1984—Subsec. (a). Pub. L. 98–573 designated existing provisions as par. (1) and added par. (2). Statutory Notes and Related Subsidiaries CHANGE OF NAME ‘‘Commissioner of U.S. Customs and Border Protec- tion’’ substituted for ‘‘Commissioner of Customs’’ in two places in subsec. (e) on authority of section 802(d)(2) of Pub. L. 114–125, set out as a note under sec- tion 211 of Title 6, Domestic Security. EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103–465 effective, except as otherwise provided, on the date on which the WTO Agreement enters into force with respect to the United States (Jan. 1, 1995), and applicable with respect to in- vestigations, reviews, and inquiries initiated and peti- tions filed under specified provisions of this chapter after such date, see section 291 of Pub. L. 103–465, set out as a note under section 1671 of this title. EFFECTIVE DATE OF 1988 AMENDMENT Amendment by section 1324(b)(1) of Pub. L. 100–418 ap- plicable with respect to investigations initiated after Aug. 23, 1988, and amendment by section 1326(d)(1) of Pub. L. 100–418 applicable with respect to investigations initiated after Aug. 23, 1988, and to reviews initiated under section 1673e(c) or 1675 of this title after Aug. 23, 1988, see section 1337(b), (c) of Pub. L. 100–418, set out as a note under section 1671 of this title. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–573 applicable with respect to investigations initiated by petition or by the admin- istering authority under parts I and II of this subtitle, and to reviews begun under section 1675 of this title, on or after Oct. 30, 1984, see section 626(b)(1) of Pub. L. 98–573, as amended, set out as a note under section 1671 of this title. TRANSFER OF FUNCTIONS For transfer of functions, personnel, assets, and li- abilities of the United States Customs Service of the Department of the Treasury, including functions of the Secretary of the Treasury relating thereto, to the Sec- retary of Homeland Security, and for treatment of re- lated references, see sections 203(1), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of Novem- ber 25, 2002, as modified, set out as a note under section 542 of Title 6. For establishment of U.S. Customs and Border Protection in the Department of Homeland Se- curity, treated as if included in Pub. L. 107–296 as of Nov. 25, 2002, see section 211 of Title 6, as amended gen- erally by Pub. L. 114–125, and section 802(b) of Pub. L. 114–125, set out as a note under section 211 of Title 6. PLAN AMENDMENTS NOT REQUIRED UNTIL JANUARY 1, 1989 For provisions directing that if any amendments made by subtitle A or subtitle C of title XI [§§ 1101–1147 and 1171–1177] or title XVIII [§§ 1801–1899A] of Pub. L. 99–514 require an amendment to any plan, such plan amendment shall not be required to be made before the first plan year beginning on or after Jan. 1, 1989, see section 1140 of Pub. L. 99–514, as amended, set out as a note under section 401 of Title 26, Internal Revenue Code. § 1673b. Preliminary determinations (a) Determination by Commission of reasonable indication of injury (1) General rule Except in the case of a petition dismissed by the administering authority under section 1673a(c)(3) of this title, the Commission, with- in the time specified in paragraph (2), shall de- termine, based on the information available to it at the time of the determination, whether there is a reasonable indication that— (A) an industry in the United States— (i) is materially injured, or (ii) is threatened with material injury, or (B) the establishment of an industry in the United States is materially retarded, by reason of imports of the subject merchan- dise and that imports of the subject merchan- dise are not negligible. If the Commission finds that imports of the subject merchandise are negligible or otherwise makes a negative determination under this paragraph, the in- vestigation shall be terminated. (2) Time for Commission determination The Commission shall make the determina- tion described in paragraph (1)— (A) in the case of a petition filed under section 1673a(b) of this title— (i) within 45 days after the date on which the petition is filed, or (ii) if the time has been extended pursu- ant to section 1673a(c)(1)(B) of this title, within 25 days after the date on which the Commission receives notice from the ad- ministering authority of initiation of the investigation, and (B) in the case of an investigation initi- ated under section 1673a(a) of this title, within 45 days after the date on which the Commission receives notice from the admin-