Chapter 3: Suspension Agreements under the U.S. Anti-Dumping Law
3.4 Investigation Procedures and Effects of Suspension Investigation
3.4.1 Time Frame and Requirements for Acceptance of Undertakings
The exporters and producers of the subject merchandise, or the government in an NME investigation, shall submit a proposed Suspension Agreement to the DOC within 15 days after the date of the issuance of the preliminary determination.59 The DOC will notify all parties to the proceedings of the proposed Suspension Agreement and provide to petitioners a copy of the
56 Suspension of Antidumping Duty Investigation of Certain Cut-to-Length Carbon Steel Plate from the Russian Federation. Federal Register / Vol. 68, No. 17 / Jan. 27, 2003 / Notices 3859.
57 Suspension of Antidumping Investigation. Certain Cut-to-Length Carbon Steel Plate From Ukraine. Federal Register/
Vol. 73, No. 193 / Fri. October 3.2008 / Notices 57602.
58 Cut-To-Length Carbon Steel Plate from China, Russia, And Ukraine. Investigation Nos. 731-TA-753, 754, and 756 (Second Review). Page 4.
59 19 CFR 351.208(f)(1)(i)
preliminarily accepted agreement within 30 days after the date of the issuance of the preliminary determination so as to consult with them. Furthermore, the DOC will provide all interested parties, industrial users, representative consumer organizations, and U.S. government agencies an opportunity to submit written argument and factual information concerning the proposed Suspension Agreement within 50 days after the date of the issuance of preliminary determination.60 In accordance with 19 CFR 351.208(g) the DOC may accept an agreement to suspend an investigation within 60 days after the issuance of a preliminary determination.
In accepting a Suspension Agreement, the DOC may rely on any factual information or legal conclusions reached in or after the affirmative preliminary determination. Three requirements should be met, and then the DOC may accept the Suspension Agreements: (1) the exporters of substantially all; and (2) the agreement is in the public interest; and (3) the agreement can be monitored effectively In addition to the aforementioned requirements, agreements to eliminate the injurious effect can be accepted only when “extraordinary circumstances” are present in the case. Regarding the definition of “extraordinary circumstances”, please refer to chapter 3.3.3.
With regard to the “substantially all”, i.e., 85 percent or greater by value or volume of imports of the subject merchandise agree to sign the suspension agreement, it is a continuing requirement. The DOC may at anytime during the period of the Agreement requires additional producers/exporters in the exporting country to sign the Agreement in order to ensure that not less than substantially all imports into the U.S. are covered by the Agreement.
As to the “public interest”, neither the Tariff Act nor the DOC's Regulations give any definition of this requirement. However, the Section 734 (a) (2) (b) of the Tariff Act provides an explicit test to determine whether termination of investigations based on quantitative restraint agreements is in the
60 19 CFR 351.208(f)(2)and(3)
“public interest”. Presumably, the DOC will apply a similar test when suspending investigations. In other words, the DOC will consider the impact of the agreement on U.S. consumer prices and the competitiveness of the domestic industry including the impact on employment and investment in that industry, and will determine whether the agreement would have a greater adverse impact than would the imposition of duties.61
If the DOC determines to suspend an investigation upon acceptance of a Suspension Agreement, the DOC shall suspend the investigation, publish notice of suspension of the investigation including the text of the Suspension Agreement, and issue an affirmative preliminary determination under Section 733(b) of Tariff Act with respect to the subject merchandise, unless it has previously issued such a determination in the same investigation.62 The ITC will suspend any investigation it is conducting.
3.4.2 Liquidation of Entries
(1) Cease Exports or Suspension Agreements to Eliminate Completely Sales at Less Than Fair Value In accordance with Section 734(f) (2) (A) of the Tariff Act, the DOC will not order the suspension of liquidation of entries of the subject merchandise normally required under Section 733(d) (2) of the Tariff Act. Any previously ordered suspension of liquidation will end on the effective date of the Suspension Agreement and the DOC will inform the Customs and Border Protection (CBP) to refund any cash deposit, any bond or other security deposited.
(2) Suspension Agreements Eliminating Injurious Effect
In accordance with Section 734(f) (2) (B) of the Act, the DOC shall suspend liquidation of entries of the subject merchandise under Section 733(d) (2). If, however, the liquidation of entries of
61 Francesco Perone (1995), Page 75
62 Section 734 (f) (1)( A)
subject merchandise was suspended pursuant to a previous affirmative preliminary determination in the same case, that suspension of liquidation shall continue in effect, pending a review of the Suspension Agreement by the ITC.63
However, the cash deposit or bond required under Section 733(d) (1) (B) may be adjusted to reflect the effect of the Suspension Agreement. The suspension of liquidation continues during the review period. If the ITC conducts a review and issues an affirmative determination, or if no review is requested, on day 20 suspension of liquidation is terminated and bonds or cash deposits are released.64
3.4.3 Continuations of Investigations
In accordance with Section 734(g) of the Act and 19 CFR 351.208 (h) of the DOC’s regulations, within 20 days after the date of publication of the notice of suspension of an investigation an exporter or exporters accounting for a significant portion of exports to the United States of the subject merchandise, or an interested party as defined in Section 771(9)(C)-(G) of the Act (manufacturers, producers, wholesalers, unions or a group of workers engaged in the manufacture of the subject merchandise, trade associations, and processors and/or producers of the subject merchandise) may request in writing that the DOC continue the investigation.
The written request must be filed simultaneously with the ITC and the requester must so certify in submitting a request to the DOC. The DOC and the ITC shall continue the investigation upon receipt of a properly filed request for a continuation of the investigation. If the DOC and the ITC make affirmative final determinations in an investigation which has been continued, the Suspension
63 Section 734(h) of the Tariff Act
64 U.S. Antidumping Manual Chapter 17, Page 6
Agreement will remain in effect. If either the DOC or the ITC make negative final determinations, the Suspension Agreement will have no force or effect. The investigation will be terminated at this point.
3.4.4 Violations of the Agreements
In accordance with Section 734 (i) of Tariff Act and 19 CFR 351.209(e) , the DOC defines
“Violation” as noncompliance with the terms of a Suspension Agreement caused by an act or omission of a signatory, except, at the discretion of the DOC, an act or omission may be deemed inadvertent or inconsequential by the DOC. If the DOC determines that a signatory has violated the Suspension Agreement, the DOC, without providing interested parties an opportunity to comment, will order the suspension of liquidation of all entries of merchandise entered, or withdrawn from warehouse, for consumption on or after the later of the following: a. 90 days before the date of publication of the notice of cancellation of Suspension Agreement or b. the date of the first entry, or withdrawal from warehouse, for consumption of the merchandise, the sale or export to the U.S. of which was in violation of the Suspension Agreement.65
(1) Completed Investigations:
If the investigation was completed under Section 734(g) (an exporter or an interested party requested the continuation of the investigation) and the ITC makes an affirmative injury determination, the DOC will issue an antidumping duty order and, for all entries subject to suspension of liquidation, instruct the CBP to require a cash deposit at the rates determined in the affirmative final determination.66
65 19 CFR 351.209 (b) (1)
66 19 CFR 351.209 (b) (3)
(2) Incomplete Investigations:
If the investigation was not completed, the DOC will resume the investigation as if an affirmative preliminary determination was made on the date of publication of the notice of cancellation. The DOC will impose provisional measures (suspend liquidation of entries) by instructing the CBP to require for each entry of subject merchandise a cash deposit or bond equal to the rates determined in the affirmative preliminary determination.67
(3) Notification:
The DOC will notify all parties to the proceedings, the ITC and, if the DOC determines the violation to be intentional, the Commissioner of the CBP. The DOC will publish in the Federal Register a notice of “Antidumping Duty Order (Resumption of Antidumping Investigation);
Cancellation of Suspension Agreement.” 68 It is notable that any person who intentionally violates the Agreement shall be subject to a civil penalty assessed in the same amount, in the same manner, and under the same procedures as the penalty imposed for a fraudulent violation of Section 592(a) of the Tariff Act.69
(4) Additional Signatories:
If the DOC decides that a Suspension Agreement no longer will completely eliminate the injurious effects of exports under Section 734(c) (l), or that the signatory exporters no longer account for substantially all of the subject merchandise, the DOC may revise the agreement to include additional signatory exporters.70
67 19 CFR 351.209 (b) (2)
68 19 CFR 351.209 (b) (4) and (5)
69 Section 734(i) (2) of the Tariff Act
70 19 CFR 351.209(d)
3.4.5 Five-Year (“Sunset”) Review of Suspended Investigation
As mentioned in the Chapter 3.1, the Tariff Act requires that suspended investigations be terminated, after five years, unless termination would be likely to lead to a continuation or recurrence of dumping and material injury to the domestic industry. Section 751(c) (1) of the Tariff Act requires the DOC and the ITC to conduct a review no later than five years after the suspension of an investigation.
According to Section 751(c) (2) of the Tariff Act and Section 351.218(c) of the DOC regulations, the Uruguay Round Agreements Act requires that the DOC initiate a Five-Year (“Sunset”) Review of suspended investigation no later than 30 days before the fifth anniversary of publication of Suspension Agreement in the Federal Register. If the determinations of both the DOC and the ITC are affirmative, the suspended investigation will remain in place and otherwise it will be terminated.