19 U.S.C. § 1671d — Final determinations

Page 344 TITLE 19—CUSTOMS DUTIES § 1671d Subsec. (f)(1)(A). Pub. L. 103–465, § 233(a)(5)(J), sub- stituted ‘‘subject merchandise’’ for ‘‘merchandise which is the subject of the investigation’’. Subsec. (f)(2)(A). Pub. L. 103–465, § 270(a)(1)(E), sub- stituted ‘‘countervailable subsidy’’ for ‘‘subsidy’’ in heading. Subsec. (f)(2)(A)(i), (iii). Pub. L. 103–465, §§ 233(a)(5)(K), 264(c)(3), in cl. (i), substituted ‘‘subject merchandise’’ for ‘‘merchandise which is the subject of the investiga- tion’’ and ‘‘1671b(d)(2)’’ for ‘‘1671b(d)(1)’’, and in cl. (iii), substituted ‘‘1671b(d)(1)(B)’’ for ‘‘1671b(d)(1)’’. Subsec. (f)(2)(B). Pub. L. 103–465, §§ 233(a)(5)(K), 264(c)(4), substituted ‘‘subject merchandise’’ for ‘‘mer- chandise which is the subject of the investigation’’, ‘‘1671b(d)(2)’’ for ‘‘1671b(d)(1)’’, and ‘‘1671b(d)(1)(B)’’ for ‘‘1671b(d)(2)’’. Subsec. (g)(1). Pub. L. 103–465, § 270(a)(1)(E), sub- stituted ‘‘countervailable subsidy’’ for ‘‘subsidy’’. Subsec. (h)(2). Pub. L. 103–465, § 233(a)(5)(L), sub- stituted ‘‘subject merchandise’’ for ‘‘merchandise which is the subject of the investigation’’. Subsec. (h)(3). Pub. L. 103–465, §§ 233(a)(5)(L), 264(c)(5), in introductory provisions, substituted ‘‘subject mer- chandise’’ for ‘‘merchandise which is the subject of the investigation’’, in subpar. (A), substituted ‘‘1671b(d)(2)’’ for ‘‘1671b(d)(1)’’, and in subpar. (B), substituted ‘‘1671b(d)(1)(B)’’ for ‘‘1671b(d)(2)’’. Subsec. (i)(1)(A). Pub. L. 103–465, § 264(c)(6), sub- stituted ‘‘1671b(d)(2)’’ for ‘‘1671b(d)(1)’’ in introductory provisions. Subsec. (j). Pub. L. 103–465, § 233(a)(5)(M), substituted ‘‘subject merchandise’’ for ‘‘merchandise which is the subject of the investigation’’. Subsec. (l). Pub. L. 103–465, § 218(a)(1), added subsec. (l). 1988—Subsecs. (g)(2), (h)(1). Pub. L. 100–418 sub- stituted ‘‘subparagraph (C), (D), (E), (F), or (G) of sec- tion 1677(9) of this title’’ for ‘‘subparagraph (C), (D), (E), and (F) of section 1677(9) of this title’’. 1986—Subsec. (d)(2), (3). Pub. L. 99–514, § 1886(a)(4)(A), added par. (2) and redesignated former par. (2) as (3). Subsec. (i)(1)(D). Pub. L. 99–514, § 1886(a)(4)(B), sub- stituted ‘‘intentional’’ for ‘‘international’’. 1984—Subsec. (a). Pub. L. 98–573, § 604(a)(1), amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: ‘‘An investigation under this part may be terminated by either the administering authority or the Commission after notice to all parties to the inves- tigation, upon withdrawal of the petition by the peti- tioner. The Commission may not terminate an inves- tigation under the preceding sentence before a prelimi- nary determination is made by the administering au- thority under section 1671b(b) of this title.’’ Subsec. (d)(1). Pub. L. 98–573, § 604(a)(2)(A), inserted provision, following subpar. (B), that in applying sub- par. (A) with respect to any quantitative restriction agreement under subsec. (c) of this section, the admin- istering authority shall take into account, in addition to such other factors as are considered necessary or ap- propriate, the factors set forth in subsec. (a)(2)(B)(i), (ii), and (iii) of this section as they apply to the pro- posed suspension and agreement, after consulting with the appropriate consuming industries, producers, and workers referred to in subsec. (a)(2)(C)(i) and (ii) of this section. Subsec. (d)(2), (3). Pub. L. 98–573, § 604(a)(2)(B), (C), re- designated par. (3) as (2) and struck out former par. (2) which provided that exports of merchandise to the United States were not to increase during the interim period. Subsec. (e)(3). Pub. L. 98–573, § 604(a)(3), substituted ‘‘all interested parties described in section 1677(9) of this title’’ for ‘‘all parties to the investigation’’. Subsecs. (g)(2), (h)(1). Pub. L. 98–573, § 612(b)(2), sub- stituted reference to subpar. ‘‘(C), (D), (E), and (F)’’ for ‘‘(C), (D), or (E)’’ of section 1677(9) of this title. Subsec. (i)(1)(D), (E). Pub. L. 98–573, § 604(a)(4)(A)–(C), added subpar. (D) and redesignated former subpar. (D) as (E). Subsec. (k). Pub. L. 98–573, § 604(a)(5), added subsec. (k). Statutory Notes and Related Subsidiaries CHANGE OF NAME ‘‘Commissioner of U.S. Customs and Border Protec- tion’’ substituted for ‘‘Commissioner of Customs’’ in subsec. (i)(1)(D) on authority of section 802(d)(2) of Pub. L. 114–125, set out as a note under section 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 Pub. L. 100–418 applicable with re- spect 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) of Pub. L. 100–418, set out as a note under section 1671 of this title. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by section 604(a) of Pub. L. 98–573 effec- tive Oct. 30, 1984, and amendment by section 612(b)(2) of Pub. L. 98–573 applicable with respect to investigations initiated by petition or by the administering 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(a), (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. § 1671d. Final determinations (a) Final determination by administering author- ity (1) In general Within 75 days after the date of the prelimi- nary determination under section 1671b(b) of this title, the administering authority shall make a final determination of whether or not a countervailable subsidy is being provided Page 345 TITLE 19—CUSTOMS DUTIES § 1671d with respect to the subject merchandise; ex- cept that when an investigation under this part is initiated simultaneously with an inves- tigation under part II of this subtitle, which involves imports of the same class or kind of merchandise from the same or other countries, the administering authority, if requested by the petitioner, shall extend the date of the final determination under this paragraph to the date of the final determination of the ad- ministering authority in such investigation initiated under part II of this subtitle. (2) Critical circumstances determinations If the final determination of the admin- istering authority is affirmative, then that de- termination, in any investigation in which the presence of critical circumstances has been al- leged under section 1671b(e) of this title, shall also contain a finding as to whether— (A) the countervailable subsidy is incon- sistent with the Subsidies Agreement, and (B) there have been massive imports of the subject merchandise over a relatively short period. Such findings may be affirmative even though the preliminary determination under section 1671b(e)(1) of this title was negative. (3) De minimis countervailable subsidy In making a determination under this sub- section, the administering authority shall dis- regard any countervailable subsidy that is de minimis as defined in section 1671b(b)(4) of this title. (b) Final determination by Commission (1) In general The Commission shall make a final deter- mination of whether— (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, or sales (or the likeli- hood of sales) for importation, of the merchan- dise with respect to which the administering authority has made an affirmative determina- tion under subsection (a). If the Commission determines that imports of the subject mer- chandise are negligible, the investigation shall be terminated. (2) Period for injury determination following affirmative preliminary determination by administering authority If the preliminary determination by the ad- ministering authority under section 1671b(b) of this title is affirmative, then the Commission shall make the determination required by paragraph (1) before the later of— (A) the 120th day after the day on which the administering authority makes its af- firmative preliminary determination under section 1671b(b) of this title, or (B) the 45th day after the day on which the administering authority makes its affirma- tive final determination under subsection (a). (3) Period for injury determination following negative preliminary determination by ad- ministering authority If the preliminary determination by the ad- ministering authority under section 1671b(b) of this title is negative, and its final determina- tion under subsection (a) is affirmative, then the final determination by the Commission under this subsection shall be made within 75 days after the date of that affirmative final determination. (4) Certain additional findings (A) COMMISSION STANDARD FOR RETROACTIVE APPLICATION.— (i) IN GENERAL.—If the finding of the ad- ministering authority under subsection (a)(2) is affirmative, then the final deter- mination of the Commission shall include a finding as to whether the imports subject to the affirmative determination under sub- section (a)(2) are likely to undermine seri- ously the remedial effect of the counter- vailing duty order to be issued under section 1671e of this title. (ii) FACTORS TO CONSIDER.—In making the evaluation under clause (i), the Commission shall consider, among other factors it con- siders relevant— (I) the timing and the volume of the im- ports, (II) any rapid increase in inventories of the imports, and (III) any other circumstances indicating that the remedial effect of the counter- vailing duty order will be seriously under- mined. (B) If the final determination of the Com- mission is that there is no material injury but that there is threat of material injury, then its determination shall also include a finding as to whether material injury by reason of im- ports of the merchandise with respect to which the administering authority has made an af- firmative determination under subsection (a) would have been found but for any suspension of liquidation of entries of that merchandise. (c) Effect of final determinations (1) Effect of affirmative determination by the administering authority If the determination of the administering authority under subsection (a) is affirmative, then— (A) the administering authority shall make available to the Commission all infor- mation upon which such determination was based and which the Commission considers relevant to its determination, under such procedures as the administering authority and the Commission may establish to pre- vent disclosure, other than with the consent of the party providing it or under protective order, of any information to which confiden- tial treatment has been given by the admin- istering authority, (B)(i) the administering authority shall— (I) determine an estimated individual countervailable subsidy rate for each ex- porter and producer individually inves- tigated, and, in accordance with paragraph Page 346 TITLE 19—CUSTOMS DUTIES § 1671d (5), an estimated all-others rate for all ex- porters and producers not individually in- vestigated and for new exporters and pro- ducers within the meaning of section 1675(a)(2)(B) of this title, or (II) if section 1677f–1(e)(2)(B) of this title applies, determine a single estimated country-wide subsidy rate, applicable to all exporters and producers, (ii) shall order the posting of a cash de- posit, bond, or other security, as the admin- istering authority deems appropriate, for each entry of the subject merchandise in an amount based on the estimated individual countervailable subsidy rate, the estimated all-others rate, or the estimated country- wide subsidy rate, whichever is applicable, and (C) in cases where the preliminary deter- mination by the administering authority under section 1671b(b) of this title was nega- tive, the administering authority shall order the suspension of liquidation under para- graph (2) of section 1671b(d) of this title. (2) Issuance of order; effect of negative deter- mination If the determinations of the administering authority and the Commission under sub- sections (a)(1) and (b)(1) are affirmative, then the administering authority shall issue a countervailing duty order under section 1671e(a) of this title. If either of such deter- minations is negative, the investigation shall be terminated upon the publication of notice of that negative determination and the admin- istering authority shall— (A) terminate the suspension of liquida- tion under section 1671b(d)(2) of this title, and (B) release any bond or other security and refund any cash deposit required under sec- tion 1671b(d)(1)(B) of this title. (3) Effect of negative determinations under subsections (a)(2) and (b)(4)(A) If the determination of the administering authority or the Commission under subsection (a)(2) and (b)(4)(A), respectively, is negative, then the administering authority shall— (A) terminate any retroactive suspension of liquidation required under paragraph (4) or section 1671b(e)(2) of this title, and (B) release any bond or other security, and refund any cash deposit required, under sec- tion 1671b(d)(1)(B) of this title with respect to entries of the merchandise the liquidation of which was suspended retroactively under section 1671b(e)(2) of this title. (4) Effect of affirmative determination under subsection (a)(2) If the determination of the administering authority under subsection (a)(2) is affirma- tive, then the administering authority shall— (A) in cases where the preliminary deter- minations by the administering authority under sections 1671b(b) and 1671b(e)(1) of this title were both affirmative, continue the ret- roactive suspension of liquidation and the posting of a cash deposit, bond, or other se- curity previously ordered under section 1671b(e)(2) of this title; (B) in cases where the preliminary deter- mination by the administering authority under section 1671b(b) of this title was af- firmative, but the preliminary determina- tion under section 1671b(e)(1) of this title was negative, shall modify any suspension of liquidation and security requirement pre- viously ordered under section 1671b(d) of this title to apply to unliquidated entries of mer- chandise entered, or withdrawn from ware- house, for consumption on or after the date which is 90 days before the date on which suspension of liquidation was first ordered; or (C) in cases where the preliminary deter- mination by the administering authority under section 1671b(b) of this title was nega- tive, shall apply any suspension of liquida- tion and security requirement ordered under subsection (c)(1)(B) to unliquidated entries of merchandise entered, or withdrawn from warehouse, for consumption on or after the date which is 90 days before the date on which suspension of liquidation is first or- dered. (5) Method for determining the all-others rate and the country-wide subsidy rate (A) All-others rate (i) General rule For purposes of this subsection and sec- tion 1671b(d) of this title, the all-others rate shall be an amount equal to the weighted average countervailable subsidy rates established for exporters and pro- ducers individually investigated, excluding any zero and de minimis countervailable subsidy rates, and any rates determined entirely under section 1677e of this title. (ii) Exception If the countervailable subsidy rates es- tablished for all exporters and producers individually investigated are zero or de minimis rates, or are determined entirely under section 1677e of this title, the admin- istering authority may use any reasonable method to establish an all-others rate for exporters and producers not individually investigated, including averaging the weighted average countervailable subsidy rates determined for the exporters and producers individually investigated. (B) Country-wide subsidy rate The administering authority may cal- culate a single country-wide subsidy rate, applicable to all exporters and producers, if the administering authority limits its exam- ination pursuant to section 1677f–1(e)(2)(B) of this title. The estimated country-wide rate determined under section 1671b(d)(1)(A)(ii) of this title or paragraph (1)(B)(i)(II) of this subsection shall be based on industry-wide data regarding the use of subsidies deter- mined to be countervailable. (d) Publication of notice of determinations Whenever the administering authority or the Commission makes a determination under this section, it shall notify the petitioner, other par- ties to the investigation, and the other agency Page 347 TITLE 19—CUSTOMS DUTIES § 1671e of its determination and of the facts and conclu- sions of law upon which the determination is based, and it shall publish notice of its deter- mination in the Federal Register. (e) Correction of ministerial errors The administering authority shall establish procedures for the correction of ministerial er- rors in final determinations within a reasonable time after the determinations are issued under this section. Such procedures shall ensure op- portunity for interested parties to present their views regarding any such errors. As used in this subsection, the term ‘‘ministerial error’’ in- cludes errors in addition, subtraction, or other arithmetic function, clerical errors resulting from inaccurate copying, duplication, or the like, and any other type of unintentional error which the administering authority considers ministerial. (June 17, 1930, ch. 497, title VII, § 705, as added Pub. L. 96–39, title I, § 101, July 26, 1979, 93 Stat. 159; amended Pub. L. 98–573, title VI, §§ 602(a)(2), 605(a), 606, Oct. 30, 1984, 98 Stat. 3024, 3028, 3029; Pub. L. 100–418, title I, §§ 1324(a)(3), 1333(a), Aug. 23, 1988, 102 Stat. 1200, 1209; Pub. L. 103–465, title II, §§ 212(b)(1)(B), 214(a)(2), 233(a)(5)(N), 263(b), 264(b), (c)(7), (8), 270(a)(1)(F), (G), Dec. 8, 1994, 108 Stat. 4848, 4850, 4899, 4912–4914, 4917; Pub. L. 104–295, § 20(b)(15), Oct. 11, 1996, 110 Stat. 3527.) Editorial Notes AMENDMENTS 1996—Subsec. (c)(1)(B)(i)(II). Pub. L. 104–295 inserted ‘‘section’’ after ‘‘if’’. 1994—Subsec. (a)(1). Pub. L. 103–465, §§ 233(a)(5)(N), 270(a)(1)(F), substituted ‘‘countervailable subsidy’’ for ‘‘subsidy’’ and ‘‘the subject merchandise’’ for ‘‘the mer- chandise’’. Subsec. (a)(2)(A). Pub. L. 103–465, §§ 214(a)(2)(A)(i), 270(a)(1)(G), substituted ‘‘countervailable subsidy’’ for ‘‘subsidy’’ and ‘‘Subsidies Agreement’’ for ‘‘Agree- ment’’. Subsec. (a)(2)(B). Pub. L. 103–465, § 214(a)(2)(A)(ii), sub- stituted ‘‘subject merchandise’’ for ‘‘class or kind of merchandise involved’’. Subsec. (a)(3). Pub. L. 103–465, § 263(b), added par. (3). Subsec. (b)(1). Pub. L. 103–465, § 212(b)(1)(B), inserted at end of concluding provisions ‘‘If the Commission de- termines that imports of the subject merchandise are negligible, the investigation shall be terminated.’’ Subsec. (b)(4)(A). Pub. L. 103–465, § 214(a)(2)(B), amend- ed subpar. (A) generally, substituting present provi- sions for provisions requiring, in the case of an affirma- tive critical circumstances determination, an addi- tional finding as to whether retroactive imposition of a countervailing duty would be necessary to prevent re- currence of material injury caused by massive imports of subject merchandise over a relatively short period of time. Subsec. (c)(1). Pub. L. 103–465, § 264(b)(1), struck out ‘‘and’’ at end of subpar. (A), added subpar. (B), and re- designated former subpar. (B) as (C) and substituted ‘‘the suspension of liquidation under paragraph (2) of section 1671b(d) of this title’’ for ‘‘under paragraphs (1) and (2) of section 1671b(d) of this title the suspension of liquidation and the posting of a cash deposit, bond, or other security’’. Subsec. (c)(2). Pub. L. 103–465, § 264(c)(7), in subpar. (A), substituted ‘‘1671b(d)(2)’’ for ‘‘1671b(d)(1)’’ and in subpar. (B), substituted ‘‘1671b(d)(1)(B)’’ for ‘‘1671b(d)(2)’’. Subsec. (c)(3)(B). Pub. L. 103–465, § 264(c)(8), sub- stituted ‘‘1671b(d)(1)(B)’’ for ‘‘1671b(d)(2)’’. Subsec. (c)(5). Pub. L. 103–465, § 264(b)(2), added par. (5). 1988—Subsec. (b)(4)(A). Pub. L. 100–418, § 1324(a)(3), amended subpar. (A) generally. Prior to amendment, subpar. (A) read as follows: ‘‘If the finding of the ad- ministering authority under subsection (a)(2) of this section is affirmative, then the final determination of the Commission shall include findings as to whether— ‘‘(i) there is material injury which will be difficult to repair, and ‘‘(ii) the material injury was by reason of such mas- sive imports of the subsidized merchandise over a rel- atively short period.’’ Subsec. (e). Pub. L. 100–418, § 1333(a), added subsec. (e). 1984—Subsec. (a)(1). Pub. L. 98–573, § 606, inserted pro- vision that when an investigation under this part is ini- tiated simultaneously with an investigation under part II of this subtitle, which involves imports of the same class or kind of merchandise from the same or other countries, the administering authority, if requested by the petitioner, shall extend the date of the final deter- mination under this paragraph to the date of the final determination of the administering authority in such investigation initiated under part II of this subtitle. Subsec. (a)(2). Pub. L. 98–573, § 605(a)(1), inserted pro- vision after subpar. (B) that such findings may be af- firmative even though the preliminary determination under section 1671b(e)(1) of this title was negative. Subsec. (b)(1). Pub. L. 98–573, § 602(a)(2), inserted ‘‘, or sales (or the likelihood of sales for importation,’’ in provision after subpar. (B). Subsec. (c)(3)(A). Pub. L. 98–573, § 605(a)(3), inserted reference to par. (4). Subsec. (c)(4). Pub. L. 98–573, § 605(a)(2), added par. (4). 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 1988 AMENDMENT Amendment by section 1333(a) of Pub. L. 100–418 effec- tive Aug. 23, 1988, and amendment by section 1324(a)(3) of Pub. L. 100–418 applicable with respect to investiga- tions initiated after Aug. 23, 1988, see section 1337(a), (c) of Pub. L. 100–418, set out as a note under section 1671 of this title. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by section 602(a)(2) of Pub. L. 98–573 ap- plicable with respect to investigations initiated by pe- tition or by the administering authority under parts I and II of this subtitle, and to reviews begun under sec- tion 1675 of this title, on or after Oct. 30, 1984, and amendment by sections 605(a) and 606 of Pub. L. 98–573 effective Oct. 30, 1984, see section 626(a), (b)(1) of Pub. L. 98–573, as amended, set out as a note under section 1671 of this title. § 1671e. Assessment of duty (a) Publication of countervailing duty order Within 7 days after being notified by the Com- mission of an affirmative determination under section 1671d(b) of this title, the administering authority shall publish a countervailing duty order which— (1) directs customs officers to assess a coun- tervailing duty equal to the amount of the net countervailable subsidy determined or esti- mated to exist, within 6 months after the date