(b) Preliminary determination by administering authority
(1) Period of antidumping duty investigation
(A) In general
Except as provided in subparagraph (B), within 140 days after the date on which the administering authority initiates an investigation under section 1673a(c) of this title, or an investigation is initiated under section 1673a(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 the merchandise is being sold, or is likely to be sold, at less than fair value.
(B) If certain short life cycle merchandise involved
If a petition filed under
section 1673a(b) of this title, or an investigation initiated under
section 1673a(a) of this title, concerns short life cycle merchandise that is included in a product category established under
section 1673h(a) of this title, subparagraph (A) shall be applied—
(i) by substituting “100 days” for “140 days” if manufacturers that are second offenders account for a significant proportion of the merchandise under investigation, and
(ii) by substituting “80 days” for “140 days” if manufacturers that are multiple offenders account for a significant proportion of the merchandise under investigation.
(C) Definitions of offenders
For purposes of subparagraph (B)—
(i)
The term “second offender” means a manufacturer that is specified in 2 affirmative dumping determinations (within the meaning of
section 1673h of this title) as the manufacturer of short life cycle merchandise that is—
(I) specified in both such determinations, and
(II) within the scope of the product category referred to in subparagraph (B).
(ii)
The term “multiple offender” means a manufacturer that is specified in 3 or more affirmative dumping determinations (within the meaning of
section 1673h of this title) as the manufacturer of short life cycle merchandise that is—
(I) specified in each of such determinations, and
(II) within the scope of the product category referred to in subparagraph (B).
(2) Preliminary determination under waiver of verification
Within 75 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 60 days of the investigation, and, if there appears to be sufficient information available upon which the preliminary 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 preliminary 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 within 90 days after the initiation of the investigation on the basis of the record established during the first 60 days after the investigation was initiated.
(3) De minimis dumping margin
In making a determination under this subsection, the administering authority shall disregard any weighted average dumping margin that is de minimis. For purposes of the preceding sentence, a weighted average dumping margin is de minimis if the administering authority determines that it is less than 2 percent ad valorem or the equivalent specific rate for the subject merchandise.
Amendments
1994—Subsec. (a). Pub. L. 103–465, § 212(b)(2)(A), amended heading and text of subsec. (a) generally. Prior to amendment, text read as follows: “Except in the case of a petition dismissed by the administering authority under section 1673a(c)(3) of this title, the Commission, within 45 days after the date on which a petition is filed under section 1673a(b) of this title or on which it receives notice from the administering authority of an investigation commenced under section 1673a(a) of this title, shall make a determination, based upon the best information available to it at the time of the determination, of whether there is a reasonable indication that—
“(1) an industry in the United States—
“(A) is materially injured, or
“(B) is threatened with material injury, or
“(2) the establishment of an industry in the United States is materially retarded,
by reason of imports of the merchandise which is the subject of the investigation by the administering authority. If that determination is negative, the investigation shall be terminated.”
Subsec. (b)(1)(A). Pub. L. 103–465, § 219(a)(2), struck out at end “If the determination of the administering authority under this subsection is affirmative, the determination shall include the estimated average amount by which the foreign market value exceeds the United States price.”
Pub. L. 103–465, §§ 212(b)(2)(C)(i), 233(a)(6)(A)(viii), substituted “140 days after the date on which the administering authority initiates an investigation under section 1673a(c) of this title” for “160 days after the date on which a petition is filed under section 1673a(b) of this title”, “initiated” for “commenced”, and “information” for “best information”.
Subsec. (b)(1)(B). Pub. L. 103–465, §§ 212(b)(2)(C)(ii), 233(a)(6)(A)(viii), in introductory provisions, substituted “initiated” for “commenced”, in cl. (i), substituted “100” for “120” and “140” for “160”, and in cl. (ii), substituted “80” for “100” and “140” for “160”.
Subsec. (b)(2). Pub. L. 103–465, § 233(a)(6)(A)(ix), (B), substituted “initiation” for “commencement” after “90 days after the” and “initiated” for “commenced”.
Subsec. (b)(3). Pub. L. 103–465, § 213(a), added par. (3).
Subsec. (c)(1). Pub. L. 103–465, §§ 212(b)(2)(D), 233(a)(6)(A)(x), in concluding provisions, substituted “190th day after the date on which the administering authority initiates an investigation under section 1673a(c) of this title” for “210th day after the date on which a petition is filed under section 1673a(b) of this title” and “initiated” for “commenced”.
Subsec. (d). Pub. L. 103–465, § 215(b)(1)(B), inserted concluding provisions.
Subsec. (d)(1). Pub. L. 103–465, § 219(a)(1)(D), added par. (1). Former par. (1) redesignated (2).
Pub. L. 103–465, § 215(b)(1)(A), substituted “warehouse, for consumption on or after the later of—” and subpars. (A) and (B) for “warehouse, for consumption on or after the date of publication of the notice of the determination in the Federal Register,”.
Subsec. (d)(2). Pub. L. 103–465, § 219(a)(1)(A)–(C), redesignated par. (1) as (2), inserted “and” at end, and struck out former par. (2) which read as follows: “shall order the posting of a cash deposit, bond, or other security, as it deems appropriate, for each entry of the merchandise concerned equal to the estimated average amount by which the foreign market value exceeds the United States price, and”.
Subsec. (e)(1). Pub. L. 103–465, § 214(b)(1), in introductory provisions, substituted “information” for “best information” and amended subpars. (A) and (B) generally. Prior to amendment, subpars. (A) and (B) read as follows:
“(A)(i) there is a history of dumping in the United States or elsewhere of the class or kind of the merchandise which is the subject of the investigation, or
“(ii) the person by whom, or for whose account, the merchandise was imported knew or should have known that the exporter was selling the merchandise which is the subject of the investigation at less than its fair value, and
“(B) there have been massive imports of the class or kind of merchandise which is the subject of the investigation over a relatively short period.”
Subsec. (e)(2). Pub. L. 103–465, §§ 215(b)(2), 219(c)(1), substituted “subsection (d)(2)” for “subsection (d)(1)” and “warehouse, for consumption on or after the later of—” and subpars. (A) and (B) for “warehouse, for consumption on or after the date which is 90 days before the date on which suspension of liquidation was first ordered.”
Subsec. (f). Pub. L. 103–465, § 212(b)(2)(E), amended heading and text of subsec. (f) generally. Prior to amendment, text read as follows: “Whenever the Commission or the administering authority makes a determination under this section, it shall notify the petitioner, other parties to the investigation, and the other agency of its determination and of the facts and conclusions of law upon which the determination is based, and it shall publish notice of its determination in the Federal Register.”
1988—Subsec. (b)(1). Pub. L. 100–418, § 1323(b)(1), amended par. (1) generally. Prior to amendment, par. (1) read as follows: “Within 160 days after the date on which a petition is filed under section 1673a(b) of this title, or an investigation is commenced under section 1673a(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 best information available to it at the time of the determination, of whether there is a reasonable basis to believe or suspect that the merchandise is being sold, or is likely to be sold at less than fair value. If the determination of the administering authority under this subsection is affirmative, the determination shall include the estimated average amount by which the foreign market value exceeds the United States price.”
Subsec. (b)(2). Pub. L. 100–418, § 1326(d)(1), substituted “(F), or (G)” for “or (F)” in two places.
Subsec. (c)(1). Pub. L. 100–418, § 1323(b)(2), inserted sentence at end relating to notice for extensions under subsec. (b)(1)(B).
Subsec. (e)(1). Pub. L. 100–418, § 1324(b)(2), inserted “(at any time after the initiation of the investigation under this part)” after “promptly” in introductory provisions.
Pub. L. 100–418, § 1323(b)(3), inserted sentence at end relating to investigations in which subsec. (b)(1)(B) is applied.
1986—Subsec. (b)(2). Pub. L. 99–514 inserted reference to subpar. (F) of section 1677(9) of this title in two places.
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 investigations, reviews, and inquiries initiated and petitions 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 1323(b) of Pub. L. 100–418 effective Aug. 23, 1988, amendment by section 1324(b)(2) of Pub. L. 100–418 applicable 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(a) to (c) of Pub. L. 100–418, set out as a note under section 1671 of this title.
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.