{"database": "openregs", "table": "congressional_record", "rows": [["CREC-1994-12-20-pt1-PgS20", "1994-12-20", 103, 2, null, null, "URUGUAY ROUND ANTIDUMPING AND COUNTERVAILING PROVISIONS", "SENATE", "SENATE", "FRONTMATTER", "S", "S", "[{\"name\": \"Bob Packwood\", \"role\": \"speaking\"}]", "[{\"congress\": \"103\", \"type\": \"HR\", \"number\": \"5110\"}]", "140 Cong. Rec. S", "Congressional Record, Volume 140 Issue 150 (Tuesday, December 20, 1994)\n\n[Congressional Record Volume 140, Number 150 (Tuesday, December 20, 1994)]\n[Senate]\n[Page S]\nFrom the Congressional Record Online through the Government Printing Office [www.gpo.gov]\n\n[Congressional Record: December 20, 1994]\nFrom the Congressional Record Online via GPO Access [wais.access.gpo.gov]\n\n        URUGUAY ROUND ANTIDUMPING AND COUNTERVAILING PROVISIONS\n\n Mr. PACKWOOD. Mr. President, I would like to provide further\nclarification of the antidumping and countervailing duty provisions\ncontained in title II of H.R. 5110, the Uruguay Round Agreements Act.\n  Evaluation of industry support: Section 212 establishes procedures\nfor determining industry support and provides conditions under which\nthe petition may establish adequate support. Section 212 provides that\nthe International Trade Commission may, in appropriate circumstances,\nexclude a domestic producer of a like product from the industry where\nthe producer is itself related to exporters or importers. As a general\nrule, Commerce should not include as members of the domestic industry\nthose domestic producers who oppose the petition, but are related to\nexporters, unless such producers demonstrate that their interests as\ndomestic producers would be adversely affected by the imposition of an\norder. It is expected that related domestic producers must demonstrate\nto the Commerce Department how an order resulting from an investigation\nwould adversely affect their interests, for example, by showing that\ntheir domestic production operations would be damaged.\n  Captive production: Section 222 of H.R. 5110 provides for the\ntreatment of captive production in an injury inquiry. It is expected\nthat the Commission, in implementing the captive production provision,\nwill fully comply with articles 3.5 and 4.1 of the antidumping\nagreement and articles 15.5 and 16.1 of the subsidies agreement, which\nrequire a finding that the dumped or subsidized imports are causing\nmaterial injury to the domestic industry as a whole. It is my\nunderstanding that, when examining a captive production situation, the\nCommission will focus primarily, but not exclusively, on the factors\nprovided in the legislation. However, the captive production provision\ndoes not limit the Commission to analyzing the merchant market, and an\naffirmative injury finding not based on an analysis of the industry as\na whole, including captive production, would be inconsistent with the\nagreement. In addition, to the extent the Commission focuses its\ninquiry on noncaptive production in the domestic industry, it must also\nfocus on noncaptive imports. It is expected that the Commission will\napply the same criteria in its determination of whether to focus\nprimarily on noncaptive imports as it applies in its determination of\nwhether to focus primarily on noncaptive domestic production.\n  Negligible imports: In preliminary determinations, section 212 of the\nnew legislation requires the Commission to base its finding on a\ndetermination whether there is a reasonable indication that imports are\nnot negligible. It is expected that the Commission will, when\nnecessary, use reasonable estimates when calculating import volumes. It\nis further expected that the Commission will normally terminate an\ninvestigation when import levels are below the statutory threshold,\nexcept when import volumes are extremely close to the statutory\nthreshold and reliable data obtained in a final investigation\nestablishes that imports exceed the statutory threshold.\n\n  Sunset reviews: Section 220 of the legislation establishes that\nCommerce and the Commission will make their determinations concerning\ntermination of an order based on the facts available if responses by\nthe parties are inadequate. In judging the adequacy of responses, it is\nexpected that Commerce and the Commission shall apply the same standard\nas that applied in other contexts of the antidumping and countervailing\nduty laws, such as Commerce's use of best information available.\n  Article 11.3 of the Antidumping Agreement permits antidumping duties\nto remain in force pending the outcome of a sunset review, even if the\nreview is not completed until after the 5-year deadline. The agreement\nthus authorizes the continued collection of duty deposits, but only up\nto the point that a sunset determination is made to revoke the order.\nIn order to comply with our agreement obligations in cases where the\ndetermination is made to revoke the order, it is expected that,\npursuant to section 751(d)(3), Commerce will determine that the\nrevocation will apply to entries on or after the date of the 5-year\nanniversary, and that Commerce will direct Customs to refund\nantidumping duty deposits on merchandise entered after the 5-year\nanniversary of the order.\n  Section 221 of H.R. 5110 states that the Commission, in making its\nsunset determination, ``shall consider that the effects of revocation\nmay not be imminent, but may manifest themselves only over a longer\nperiod of time.'' Although a sunset review is necessarily prospective\nin nature, it is not intended that Commerce or the Commission use this\nfact to extend orders indefinitely. It is not expected that the\nCommission will find that injury is likely to continue or recur based\non uncertainty over the possible conditions at a point in time well\nbeyond the time of the determination. It is expected that the order\nwill be extended only in those cases where there is substantial\nevidence on the record that material injury is likely to continue or\nrecur within a reasonable period of time.\n  Consideration of duty absorption in sunset reviews: Section 221 and\n222 of H.R. 5110 provide for Commerce and the Commission to consider\nthe issue of duty absorption. It is expected that before initiating a\nduty absorption inquiry, Commerce shall ensure that there is a\nreasonable basis to believe that duty absorption has occurred. The\nStatement of Administrative Action makes clear that ``during the\nadministrative review initiated 2 or 4 years after the issuance of an\norder, Commerce will examine, if requested, whether absorption has\ntaken place by reviewing the data on the volume of dumped imports and\ndumping margins.'' Therefore, Commerce's inquiry will result in either\nan affirmative or negative finding of duty absorption. Nothing in the\nStatement of Administrative Action or legislative language provides\nthat Commerce would determine or compute the extent of duty absorption,\nor the magnitude of duty absorption. Therefore, it is expected that\nCommerce will not quantify the level of duty absorption, and that an\naffirmative finding will have no effect on the dumping margins\ncalculated. In making its determination, Commerce should give less\nprobative weight to dumping margins and data based on best information\navailable, as these may be a poor indicator of whether a company is\nactually absorbing duties.\n\n  Commerce will notify the International Trade Commission of its\nfindings made during the 4-year review. An examination of duty\nabsorption in the second-year review is intended only to have a\ndeterrent effect on continued duty absorption by affiliated importers.\nThe Commission should take these findings into account in determining\nthe likelihood of continuation or recurrence of material injury in the\nsunset review. It is expected that the Commission will not consider\nduty absorption to the exclusion of other statutory factors. Further,\nit is expected that the weight accorded by the Commission to Commerce's\nduty absorption finding will depend on the extent to which it bears on\nthe issue of the likelihood of continuation or recurrence of material\ninjury in light of the facts of each case.\n  Finally, the duty absorption provision does not permit the treatment\nof antidumping duties as a cost to be deducted from the U.S. price. The\ntreatment of antidumping duties as a cost has been repeatedly rejected\nby Commerce and U.S. reviewing courts. Moreover, in the U.S.\nretrospective duty assessment system, treatment of duties as a cost\nwould violate the Uruguay Round Antidumping Agreement, result in the\nover-assessment of antidumping duties, and serve as a disincentive to\ninvestment in the United States.\n  Basis for determination of threat of injury: Article 3.7 of the\nAntidumping Agreement, regarding the determination of threat of\nmaterial injury, is unchanged from the 1979 Antidumping Code. It is\nexpected that, as provided in the Statement of Administrative Action at\npage 184, the Commission's practice in threat determinations will\nremain unchanged from current practice. As noted in the Statement of\nAdministrative Action, revision of the threat language of the statute\nin section 771(7)(F)(ii) in no way changes Commission practice or\njudicial interpretations of the statute.\n  Export price and constructed export price definitions: The Statement\nof Administrative Action at page 152 states that the change in\nterminology from ``purchase price'' and ``exporter's sales price'' to\n``export price'' and ``constructed export price'' will in no way change\nthe criteria now used to categorize U.S. sales as one or the other.\nCommerce's decisions will be monitored closely to ensure that no change\nis, in fact, made in the Department's methodology for categorizing U.S.\nsales.\n  Reimbursement of antidumping duties: The Statement of Administrative\nAction expresses the administration's intent to continue to apply, when\nappropriate, the current regulation (19 CFR 353.26) providing for\nantidumping duties to be increased when Commerce finds that an exporter\nhas directly paid the antidumping duties due, or has reimbursed the\nimporter for the importer's payment of the antidumping duties. The\nlegislation makes no change in this regulation. It is not intended that\nthis provision be extended to apply to countervailing duties.\nCountervailing duties differ from antidumping duties, and it is not\nintended that Commerce will deduct countervailing duties from export\nprice or constructed export price when calculating the margin of\ndumping.\n  Constructed export price profit deduction: Section 223 of H.R. 5110\nprovides for a deduction of profit from constructed export price. The\ndeduction is to be calculated based on the total profit realized on all\nsales of the subject merchandise in the U.S. market and the foreign\nlike product in the foreign market. It is expected that the total\nprofit will be equal to the sum of the profit realized in the home\nmarket--or the third country market--and the profit realized in the\nUnited States. If the sum is equal to zero or less, no profit will be\ndeducted from constructed export price.\n  Fair comparison/normal value adjustments: Section 224 of H.R. 5110\nimplements the requirement in antidumping agreement article 2.4 that\n``a fair comparison shall be made between export price and normal\nvalue.'' It is expected that Commerce will ensure a fair, apples-to-\napples comparison is made in all cases. In particular, a fair\ncomparison requires that, as a general rule, normal value shall be\nadjusted for the same costs and expenses for which adjustments are made\nto the export price or constructed export price. For example, when U.S.\nprice is based on constructed export price, it is expected that\nCommerce will make either a level of trade adjustment or a constructed\nexport price offset adjustment to normal value.\n  In measuring the effect on price comparability and interpreting the\nstatutory requirement that a pattern of consistent price differences be\nshown, it is expected that Commerce will follow the Statement of\nAdministrative Action, which states that ``while the pattern of pricing\nat the two levels of trade under section 773(a)(7)(A) must be\ndifferent, the prices at the levels need not be mutually exclusive;\nthere may be some overlap between prices at the different levels of\ntrade.''\n  Initiation of cost investigations in reviews: As noted in the\nStatement of Administrative Action, page 163, section 224 amends\nsection 773(b) to provide that Commerce must have reasonable grounds to\ninitiate a cost of production investigation in an administrative\nreview, if Commerce excluded below-cost sales of a particular exporter\nor producer from the determination of normal value ``in the most\nrecently completed segment of the antidumping proceeding.'' Thus, in an\nadministrative review, Commerce may initiate a cost investigation if it\nhas excluded below cost sales in the most recently completed\nadministrative review, or, if no review has been completed, in the\noriginal investigation.\n\n  Anticircumvention: Section 230 of H.R. 5110 amends the\nanticircumvention provision\nof the law, which currently provides for a test of whether the\ndifference between the value of parts imported from the subject country\nand the value of the finished product is small. The legislation\nreplaces this test with two inquiries: Whether minor or insignificant\nassembly or completion is occurring in the United States or the third\ncountry, and whether the value of parts imported to the United States\nor third country from the country subject to the order is a significant\nproportion of the total value of the finished product. The structure of\nthe statute is based on the anticircumvention provisions of the Dunkel\nText. It is expected that Commerce will adhere to the statutory\nrequirement that the value of the parts is a significant proportion of\nthe value of the finished product.\n  It is expected that Commerce will not interpret these criteria such\nthat the value added in the United States becomes the essential\ndeterminant of whether circumvention is occurring. The\nanticircumvention rules must not operate as a domestic content rule, or\nas a critical component rule. Moreover, in order to comply with the\nantidumping agreement and article VI of the GATT 1994, Commerce must\nonly apply antidumping duties to merchandise for which a final\ndetermination of dumping and injury has been made.\n  Startup costs: Section 224 of H.R. 5110 implements the adjustment for\nstartup operations provided for in article 2.2.1.1 of the antidumping\nagreement. This provision was one of the agreement's most important\naccomplishments on behalf of U.S. exports, in particular, high-\ntechnology exports. Commerce must not undercut this accomplishment by\nprematurely ending the startup period or by limiting the startup\nadjustment. It is expected that Commerce will determine the startup\nperiod to end at the point at which commercial production levels\ncharacteristic of the product, producer or industry under investigation\nare achieved, based on production of merchandise of quality levels\nsufficient for sale.\n  Short supply: Imports of merchandise not produced in the United\nStates cannot injure a U.S. petitioning industry. On the other hand,\nantidumping duties on such imports may in some circumstances injure\ndomestic users of those products. The administration has stated that\nthere are mechanisms under current law to address short supply\nsituations. Specifically, the fact that a product is not being produced\nin the United States should be reflected in the Commission's\ndetermination of whether the imports are a cause of injury to the\ndomestic industry. That is, if petitioning companies are not producing\na competing product, there will be no adverse effect with respect to\nthe imported merchandise, and the Commission must take this into\naccount in its injury determination. After an order is in effect,\nCommerce has the authority to declare a product outside the scope of an\norder if it has substantially different characteristics or uses than\nthe subject merchandise, or if it is unclear whether the order included\nthe specific product. It is expected that Commerce and the Commission\nwill actively use their existing authority to address short supply\nsituations. It is expected that Commerce and the Commission will also\nuse this authority at the time of the sunset review, and will revoke\nthe order with respect to merchandise not available from domestic\nsources.\n\n                          ____________________"]], "columns": ["granule_id", "date", "congress", "session", "volume", "issue", "title", "chamber", "granule_class", "sub_granule_class", "page_start", "page_end", "speakers", "bills", "citation", "full_text"], "primary_keys": ["granule_id"], "primary_key_values": ["CREC-1994-12-20-pt1-PgS20"], "units": {}, "query_ms": 33.916048938408494, "source": "Federal Register API & Regulations.gov API", "source_url": "https://www.federalregister.gov/developers/api/v1", "license": "Public Domain (U.S. Government data)", "license_url": "https://www.regulations.gov/faq"}