19 U.S.C. § 1671b : US Code - Section 1671B: Preliminary determinations

Search 19 U.S.C. § 1671b : US Code - Section 1671B: 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 1671a(c)(3) of this title, the
Commission, within the time specified in paragraph (2), shall
determine, 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 merchandise and that imports
of the subject merchandise 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 investigation shall be terminated.
(2) Time for Commission determination
The Commission shall make the determination described in
paragraph (1) -
(A) in the case of a petition filed under section 1671a(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 pursuant to section
1671a(c)(1)(B) of this title, within 25 days after the date
on which the Commission receives notice from the
administering authority of initiation of the investigation,
and
(B) in the case of an investigation initiated under section
1671a(a) of this title, within 45 days after the date on which
the Commission receives notice from the administering authority
that an investigation has been initiated under such section.
(b) Preliminary determination by administering authority; expedited
determinations; waiver of verification
(1) Within 65 days after the date on which the administering
authority initiates an investigation under section 1671a(c) of this
title, or an investigation is initiated under section 1671a(a) of
this title, but not before an affirmative determination by the
Commission under subsection (a) of this section, the administering
authority shall make a determination, based upon the information
available to it at the time of the determination, of whether there
is a reasonable basis to believe or suspect that a countervailable
subsidy is being provided with respect to the subject merchandise.
(2) Notwithstanding paragraph (1), when the petition is one
subject to section 1671a(b)(3) of this title, the Administering
Authority shall, taking into account the nature of the
countervailable subsidy concerned, make the determination required
by paragraph (1) on an expedited basis and within 65 days after the
date on which the administering authority initiates an
investigation under section 1671a(c) of this title unless the
provisions of subsection (c) of this section apply.
(3) Within 55 days after the initiation of an investigation the
administering authority shall cause an official designated for such
purpose to review the information concerning the case received
during the first 50 days of the investigation, and, if there
appears to be sufficient information available upon which the
determination can reasonably be based, to disclose to the
petitioner and any interested party, then a party to the
proceedings that requests such disclosure, all available
nonconfidential information and all other information which is
disclosed pursuant to section 1677f of this title. Within 3 days
(not counting Saturdays, Sundays, or legal public holidays) after
such disclosure, the petitioner and each party which is an
interested party described in subparagraph (C), (D), (E), (F), or
(G) of section 1677(9) of this title to whom such disclosure was
made may furnish to the administering authority an irrevocable
written waiver of verification of the information received by the
authority, and an agreement that it is willing to have a
determination made on the basis of the record then available to the
authority. If a timely waiver and agreement have been received from
the petitioner and each party which is an interested party
described in subparagraph (C), (D), (E), (F), or (G) of section
1677(9) of this title to whom the disclosure was made, and the
authority finds that sufficient information is then available upon
which the preliminary determination can reasonably be based, a
preliminary determination shall be made on an expedited basis on
the basis of the record established during the first 50 days after
the investigation was initiated.
(4) De minimis countervailable subsidy. -
(A) General rule. - In making a determination under this
subsection, the administering authority shall disregard any de
minimis countervailable subsidy. For purposes of the preceding
sentence, a countervailable subsidy is de minimis if the
administering authority determines that the aggregate of the net
countervailable subsidies is less than 1 percent ad valorem or
the equivalent specific rate for the subject merchandise.
(B) Exception for developing countries. - In the case of
subject merchandise imported from a Subsidies Agreement country
(other than a country to which subparagraph (C) applies)
designated by the Trade Representative as a developing country in
accordance with section 1677(36) of this title, a countervailable
subsidy is de minimis if the administering authority determines
that the aggregate of the net countervailable subsidies does not
exceed 2 percent ad valorem or the equivalent specific rate for
the subject merchandise.
(C) Certain other developing countries. - In the case of
subject merchandise imported from a Subsidies Agreement country
that is -
(i) a least developed country, as determined by the Trade
Representative in accordance with section 1677(36) of this
title, or
(ii) a developing country with respect to which the Trade
Representative has notified the administering authority that
the country has eliminated its export subsidies on an expedited
basis within the meaning of Article 27.11 of the Subsidies
Agreement,
subparagraph (B) shall be applied by substituting "3 percent" for
"2 percent".
(D) Limitations on application of subparagraph (C). -
(i) In general. - In the case of a country described in
subparagraph (C)(i), the provisions of subparagraph (C) shall
not apply after the date that is 8 years after the date the WTO
Agreement enters into force.
(ii) Special rule for subparagraph (C)(ii) countries. - In
the case of a country described in subparagraph (C)(ii), the
provisions of subparagraph (C) shall not apply after the
earlier of -
(I) the date that is 8 years after the date the WTO
Agreement enters into force, or
(II) the date on which the Trade Representative notifies
the administering authority that such country is providing an
export subsidy.
(5) Notification of article 8 violation. - If the only subsidy
under investigation is a subsidy with respect to which the
administering authority received notice from the Trade
Representative of a violation of Article 8 of the Subsidies
Agreement, paragraph (1) shall be applied by substituting "60 days"
for "65 days".
(c) Extension of period in extraordinarily complicated cases
(1) In general
If -
(A) the petitioner makes a timely request for an extension of
the period within which the determination must be made under
subsection (b) of this section, or
(B) the administering authority concludes that the parties
concerned are cooperating and determines that -
(i) the case is extraordinarily complicated by reason of -
(I) the number and complexity of the alleged
countervailable subsidy practices;
(II) the novelty of the issues presented;
(III) the need to determine the extent to which
particular countervailable subsidies are used by individual
manufacturers, producers, and exporters; or
(IV) the number of firms whose activities must be
investigated; and
(ii) additional time is necessary to make the preliminary
determination,
then the administering authority may postpone making the
preliminary determination under subsection (b) of this section
until not later than the 130th day after the date on which the
administering authority initiates an investigation under section
1671a(c) of this title, or an investigation is initiated under
section 1671a(a) of this title.
(2) Notice of postponement
The administering authority shall notify the parties to the
investigation, not later than 20 days before the date on which
the preliminary determination would otherwise be required under
subsection (b) of this section, if it intends to postpone making
the preliminary determination under paragraph (1). The
notification shall include an explanation of the reasons for the
postponement. Notice of the postponement shall be published in
the Federal Register.
(d) Effect of determination by the administering authority
If the preliminary determination of the administering authority
under subsection (b) of this section is affirmative, the
administering authority -
(1)(A) shall -
(i) determine an estimated individual countervailable subsidy
rate for each exporter and producer individually investigated,
and, in accordance with section 1671d(c)(5) of this title, an
estimated all-others rate for all exporters and producers not
individually investigated and for new exporters and producers
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, and
(B) shall order the posting of a cash deposit, bond, or other
security, as the administering 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,
(2) shall order the suspension of liquidation of all entries of
merchandise subject to the determination which are entered, or
withdrawn from warehouse, for consumption on or after the later
of -
(A) the date on which notice of the determination is
published in the Federal Register, or
(B) the date that is 60 days after the date on which notice
of the determination to initiate the investigation is published
in the Federal Register, and
(3) shall make available to the Commission all information upon
which its determination was based and which the Commission
considers relevant to its injury determination, 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.
The instructions of the administering authority under paragraphs
(1) and (2) may not remain in effect for more than 4 months.
(e) Critical circumstances determinations
(1) In general
If a petitioner alleges critical circumstances in its original
petition, or by amendment at any time more than 20 days before
the date of a final determination by the administering authority,
then the administering authority shall promptly (at any time
after the initiation of the investigation under this part)
determine, on the basis of the information available to it at
that time, whether there is a reasonable basis to believe or
suspect that -
(A) the alleged countervailable subsidy is inconsistent with
the Subsidies Agreement, and
(B) there have been massive imports of the subject
merchandise over a relatively short period.
(2) Suspension of liquidation
If the determination of the administering authority under
paragraph (1) is affirmative, then any suspension of liquidation
ordered under subsection (d)(2) of this section shall apply, or,
if notice of such suspension of liquidation is already published,
be amended to apply, to unliquidated entries of merchandise
entered, or withdrawn from warehouse, for consumption on or after
the later of -
(A) the date which is 90 days before the date on which the
suspension of liquidation was first ordered, or
(B) the date on which notice of the determination to initiate
the investigation is published in the Federal Register.
(f) Notice of determination
Whenever the Commission or the administering authority makes a
determination under this section, the Commission or the
administering authority, as the case may be, shall notify the
petitioner, and other parties to the investigation, and the
Commission or the administering authority (whichever is
appropriate) of its determination. The administering authority
shall include with such notification the facts and conclusions on
which its determination is based. Not later than 5 days after the
date on which the determination is required to be made under
subsection (a)(2) of this section, the Commission shall transmit to
the administering authority the facts and conclusions on which its
determination is based.
(g) Time period where upstream subsidization is involved
(1) In general
Whenever the administering authority concludes prior to a
preliminary determination under subsection (b) of this section,
that there is a reasonable basis to believe or suspect that an
upstream subsidy is being bestowed, the time period within which
a preliminary determination must be made shall be extended to 250
days after the filing of a petition under section 1671a(b) of
this title or initiation of an investigation under section
1671a(a) of this title (310 days in cases declared
extraordinarily complicated under subsection (c) of this
section), if the administering authority concludes that such
additional time is necessary to make the required determination
concerning upstream subsidization.
(2) Exceptions
Whenever the administering authority concludes, after a
preliminary determination under subsection (b) of this section,
that there is a reasonable basis to believe or suspect that an
upstream subsidy is being bestowed -
(A) in cases in which the preliminary determination was
negative, the time period within which a final determination
must be made shall be extended to 165 or 225 days, as
appropriate, under section 1671d(a)(1) of this title; or
(B) in cases in which the preliminary determination is
affirmative, the determination concerning upstream
subsidization -
(i) need not be made until the conclusion of the first
annual review under section 1675 of this title of any
eventual Countervailing Duty Order, or, at the option of the
petitioner, or
(ii) will be made in the investigation and the time period
within which a final determination must be made shall be
extended to 165 or 225 days, as appropriate, under section
1671d(a)(1) of this title, as appropriate,(!1) except that
the suspension of liquidation ordered in the preliminary
determination shall terminate at the end of 120 days from the
date of publication of that determination and not be resumed
unless and until the publication of a Countervailing Duty
Order under section 1671e(a) of this title.
There may be an extension of time for the making of a final
determination under this subsection only if the administering
authority determines that such additional time is necessary to
make the required determination concerning upstream
subsidization.