19 U.S.C. § 1671a — Procedures for initiating a counter-

Page 333 TITLE 19—CUSTOMS DUTIES § 1671a ‘‘(ii) would be threatened with material injury, or ‘‘(B) the establishment of an industry in the United States would be materially retarded, by reason of imports of the merchandise covered by the countervailing duty order if the order were to be revoked. A negative determination by the Commis- sion under this paragraph shall not be based, in whole or in part, on any export taxes, duties, or other charges levied on the export of merchandise to the United States specifically intended to offset the sub- sidy received. ‘‘(3) SUSPENSION OF LIQUIDATION; INVESTIGATION TIME LIMITS.—Whenever the Commission receives a request under paragraph (1), it shall promptly notify the ad- ministering authority and the administering author- ity shall suspend liquidation of entries of the affected merchandise made on or after the date of receipt of the Commission’s notification, or in the case of but- ter from Australia, entries of merchandise subject to the assessment of countervailing duties under Treas- ury Decision 42937, as amended, and collect estimated countervailing duties pending the determination of the Commission. The Commission shall issue its de- termination in any investigation under this sub- section not later than 3 years after the date of com- mencement of such investigation. ‘‘(4) EFFECT OF DETERMINATION.— ‘‘(A) AFFIRMATIVE DETERMINATION.—Upon being notified of an affirmative determination under paragraph (2) by the Commission, the administering authority shall liquidate entries of merchandise the liquidation of which was suspended under para- graph (3) of this subsection and impose counter- vailing duties in the amount of the estimated du- ties required to be deposited. The countervailing duty order shall remain in effect until revoked, in whole or in part, under section 751(c) of the Tariff Act of 1930 [section 1675(c) of this title]. ‘‘(B) NEGATIVE DETERMINATION.—Upon being noti- fied of a negative determination under paragraph (2) by the Commission, the administering authority shall revoke the countervailing duty order then in effect, publish notice thereof in the Federal Reg- ister, and refund, without payment of interest, any estimated countervailing duties collected during the period of suspension of liquidation. ‘‘(c) ALL OUTSTANDING COUNTERVAILING DUTY OR- DERS.—Subject to the provisions of subsections (a) and (b), any countervailing duty order issued under section 303 of the Tariff Act of 1930 [section 1303 of this title] which is— ‘‘(1) in effect on the effective date of title VII of the Tariff Act of 1930 [see Effective Date note set out above] (as added by section 101 of this Act), or ‘‘(2) issued pursuant to court order in a proceeding brought before that date under section 516(d) of the Tariff Act of 1930 [section 1516(d) of this title], shall remain in effect after that date and shall be sub- ject to review under section 751 of the Tariff Act of 1930 [section 1675 of this title]. ‘‘(d) PUBLICATION OF NOTICE OF DETERMINATIONS.— Whenever the Commission makes a determination under subsection (a) or (b), it shall publish notice of that determination in the Federal Register and notify the administering authority of its determination. ‘‘(e) DEFINITIONS.—Whenever any term which is de- fined in section 771 of the Tariff Act of 1930 [section 1677 of this title] is used in this section, it has the same meaning as when it is used in title VII of that Act [this subtitle].’’ Executive Documents DELEGATION OF FUNCTIONS Functions of President under subsec. (b) of this sec- tion delegated to United States Trade Representative, see section 1–103(b) of Ex. Ord. No. 12188, Jan. 2, 1980, 45 F.R. 990, set out as a note under section 2171 of this title. § 1671a. Procedures for initiating a counter- vailing duty investigation (a) Initiation by administering authority A countervailing duty investigation shall be initiated whenever the administering authority determines, from information available to it, that a formal investigation is warranted into the question of whether the elements necessary for the imposition of a duty under section 1671(a) of this title exist. (b) Initiation by petition (1) Petition requirements A countervailing duty proceeding shall be initiated whenever an interested party de- scribed in subparagraph (C), (D), (E), (F), or (G) of section 1677(9) of this title files a peti- tion with the administering authority, on be- half of an industry, which alleges the elements necessary for the imposition of the duty im- posed by section 1671(a) of this title, and which is accompanied by information reasonably available to the petitioner supporting those allegations. The petition may be amended at such time, and upon such conditions, as the administering 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) Petition based upon a derogation of an international undertaking on official ex- port credits If the sole basis of a petition filed under paragraph (1) is the derogation of an inter- national undertaking on official export cred- its, the Administering Authority shall imme- diately notify the Secretary of the Treasury who shall, in consultation with the Admin- istering Authority, within 5 days after the date on which the administering authority ini- tiates an investigation under subsection (c), determine the existence and estimated value of the derogation, if any, and shall publish such determination in the Federal Register. (4) Action with respect to petitions (A) Notification of governments Upon receipt of a petition filed under para- graph (1), the administering authority shall— (i) notify the government of any export- ing country named in the petition by de- livering a public version of the petition to an appropriate representative of such country; and (ii) provide the government of any ex- porting country named in the petition that is a Subsidies Agreement country an op- portunity for consultations with respect to the petition. (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- Page 334 TITLE 19—CUSTOMS DUTIES § 1671a ministering authority makes its decision whether to initiate an investigation, except as provided in subparagraph (A)(ii) and sub- section (c)(4)(D), and except for inquiries re- garding 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 1671(a) of this title and contains information reason- ably 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) a countervailing duty order that was revoked under section 1675(d) of this title in the 24 months preceding the date the pe- tition 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 a countervailable subsidy is being provided with respect to the subject merchandise. (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 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 a countervailing 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 that the industry is a regional industry, the administering au- thority 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 Page 335 TITLE 19—CUSTOMS DUTIES § 1671a 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) of this section, 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 the alleged countervailable subsidy is incon- sistent with the Subsidies Agreement, the ad- ministering authority may request the Commis- sioner of U.S. Customs and Border Protection to compile information on an expedited basis re- garding entries of the subject merchandise. Upon receiving such request, the Commissioner of U.S. Customs and Border Protection shall col- lect information regarding the volume and value of entries of the subject merchandise and shall transmit such information to the administering authority at such times as the administering au- thority shall direct (at least once every 30 days), until a final determination is made under sec- tion 1671d(a) of this title, the investigation is terminated, or the administering authority withdraws the request. (June 17, 1930, ch. 497, title VII, § 702, as added Pub. L. 96–39, title I, § 101, July 26, 1979, 93 Stat. 151; amended Pub. L. 98–181, title I [title VI, § 650(a)], Nov. 30, 1983, 97 Stat. 1266; Pub. L. 99–514, title XVIII, § 1886(a)(2), Oct. 22, 1986, 100 Stat. 2921; Pub. L. 100–418, title I, §§ 1324(a)(1), 1326(d)(1), Aug. 23, 1988, 102 Stat. 1199, 1204; Pub. L. 103–465, title II, §§ 211(a), 212(a)(1), (b)(1)(E), 233(a)(5)(B), (6)(A)(i), (ii), 270(a)(1)(A), (d), Dec. 8, 1994, 108 Stat. 4842, 4843, 4848, 4899, 4901, 4917, 4918; Pub. L. 104–295, § 20(b)(3), 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. (c)(5). Pub. L. 104–295 substituted ‘‘(b)(1)’’ for ‘‘(b)(1)(A)’’. 1994—Subsecs. (a), (b)(1). Pub. L. 103–465, § 233(a)(6)(A)(i), (ii), substituted ‘‘initiated’’ for ‘‘com- menced’’. Subsec. (b)(3). Pub. L. 103–465, §§ 211(a)(1), 212(b)(1)(E), substituted ‘‘paragraph (1)’’ for ‘‘subsection (b)(1) of this section’’ and ‘‘5 days after the date on which the administering authority initiates an investigation under subsection (c),’’ for ‘‘twenty days’’. Subsec. (b)(4). Pub. L. 103–465, § 211(a)(2), added par. (4). Subsec. (c). Pub. L. 103–465, § 212(a)(1), 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 1671(a) 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 a subsidy is being provided with respect to the class or kind of merchandise described in the petition, and provide for the publication of notice of the determination to commence an investigation 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, § 270(a)(1)(A), (d), sub- stituted ‘‘countervailable subsidy’’ for ‘‘subsidy’’ and ‘‘Subsidies Agreement’’ for ‘‘Agreement’’. Pub. L. 103–465, § 233(a)(5)(B), substituted ‘‘subject merchandise’’ for ‘‘class or kind of merchandise that is the subject of the investigation’’ in two places. 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(a)(1), added subsec. (e). 1986—Subsec. (b)(1). Pub. L. 99–514 inserted reference to subpar. (F) of section 1677(9) of this title. 1983—Subsec. (b)(3). Pub. L. 98–181 added par. (3). 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(a)(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. 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 Page 336 TITLE 19—CUSTOMS DUTIES § 1671b 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. § 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, 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 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 pursu- ant to section 1671a(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 1671a(a) of this title, within 45 days after the date on which the Commission receives notice from the admin- istering 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 investiga- tion under section 1671a(c) of this title, or an in- vestigation is initiated under section 1671a(a) of this title, but not before an affirmative deter- mination by the Commission under subsection (a) of this section, the administering authority shall make a determination, based upon the in- formation available to it at the time of the de- termination, 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 de- termination required by paragraph (1) on an ex- pedited 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 in- vestigation the administering authority shall cause an official designated for such purpose to review the information concerning the case re- ceived during the first 50 days of the investiga- tion, and, if there appears to be sufficient infor- mation available upon which the determination can reasonably be based, to disclose to the peti- tioner 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 pursu- ant to section 1677f of this title. Within 3 days (not counting Saturdays, Sundays, or legal pub- lic holidays) after such disclosure, the petitioner and each party which is an interested party de- scribed in subparagraph (C), (D), (E), (F), or (G) of section 1677(9) of this title to whom such dis- closure was made may furnish to the admin- istering authority an irrevocable written waiver of verification of the information received by the authority, and an agreement that it is will- ing to have a determination made on the basis of the record then available to the authority. If a timely waiver and agreement have been re- ceived 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 de- termination can reasonably be based, a prelimi- nary determination shall be made on an expe- dited 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 determina- tion 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