request for extension is granted, in which case the final determination must be made within 135 days. If the final determination is negative, the investigation is terminated, including any suspension of liquidation which may be in effect, and all estimated antidumping duties are refunded and all appropriate bonds or other security are released. If the final determination is affirmative, the DOC orders the suspension of liquidation and posting of a cash deposit, bond, or other security (if such actions have not already been taken as a result of the preliminary determination), and awaits notice of the ITC final injury determination.

Final ITC injury determination

Within 120 days of a DOC affirmative preliminary determination or 45 days of a DOC affirmative final determination, whichever is longer, the ITC must make a final determination of material injury. If the DOC preliminary determination was negative, and the DOC final determination was affirmative, the ITC has until 75 days after the final affirmative determination to make its injury determination.

Termination or suspension of AD investigations

Either the DOC or ITC may terminate an AD investigation upon withdrawal of the petition by petitioner, or by the DOC if the investigation was self-initiated. The DOC may not, however, terminate an investigation on the basis of a quantitative restriction agreement limiting U.S. imports of the merchandise subject to investigation unless the DOC is satisfied that termination on the basis of such agreement is in the public interest.

The DOC may suspend an AD investigation on the basis of one of three types of agreements entered into with exporters who account for substantially all of the imports under investigation. The three types of agreements are: (1) an agreement to cease exports of the merchandise to the United States within 6 months of suspension of the investigation; (2) an agreement to revise prices to eliminate completely any sales at less than fair value; (3) an agreement to revise prices to eliminate completely the injurious effect of exports of such merchandise to the United States. The DOC may not, however, accept any such agreement unless it is satisfied that suspension of the investigation is in the public interest, and effective monitoring of the agreement is practicable. Unlike countervailing duty cases, antidumping investigations cannot generally be suspended on the basis of quantitative restriction agreements. The one exception is where the antidumping investigation involves imports from a nonmarket economy country.

Prior to actual suspension of an investigation, the DOC must provide notice of its intent to suspend and an opportunity for comment by interested parties. When the DOC decides to suspend the investigation, it must publish notice of the suspension, and issue an affirmative preliminary LTFV determination (unless previously issued). The ITC also suspends its investigation. Any suspension of liquidation ordered as a result of the affirmative preliminary LTFV determination, however, is to be terminated and all deposits of estimated antidumping duties or bonds posted are to be refunded or released.

If, within 20 days after notice of suspension is published, the DOC receives a request for continuation of the investigation from a domestic interested party or from exporters accounting for a significant proportion of exports of the merchandise, then both the DOC and ITC must continue their investigations.

The DOC has responsibility for overseeing compliance with any suspension agreement. Intentional violations of suspension agreements are subject to civil penalties.

Assessment of antidumping duties

Both the DOC and ITC must issue affirmative final determinations in order for an AD duty order to be issued. Within 7 days of notice of an affirmative final ITC determination, the DOC must issue an AD duty order which (1) directs the Customs Service to assess antidumping duties equal to the amount by which foreign market value exceeds the United States price, i.e., the dumping margin; (2) describes the merchandise to which the AD duty applies; and (3) requires the deposit of estimated AD duties pending liquidation of entries, at the same time as estimated normal customs duties are deposited.

Customs must assess AD duties within 6 months after the DOC receives satisfactory information on which to base the assessment, but no later than 12 months after the end of the annual accounting period within which the merchandise is imported or sold in the United States. The DOC must publish notice of its determination of foreign market value and United States price which shall be the basis for assessment of AD duties and for deposit of estimated AD duties on future entries.

Security in lieu of deposits

The DOC may permit, for not more than 90 days after publication of an AD duty order, the posting of a bond or other security in lieu of the deposit of estimated AD duties if certain conditions exist. The DOC must be satisfied that it will be able to determine, within such 90-day period, the foreign market value and the United States price for all merchandise entered on or after an affirmative LTFV determination (either preliminary or final, whichever is the first affirmative determination) and before publication of an affirmative final injury determination. Also, in order to undertake this expedited review, the preliminary determination in the investigation must not have been extended because the case was "extraordinarily complicated," the final determination must not have been extended, the DOC must receive information indicating that the revised margin would be significantly less than the dumping margin specified in the antidumping order, and there must be adequate sales to the United States since the preliminary (or final) determination to form a basis for comparison. The determination of such new dumping margin will then provide the basis for assessment of AD duties on the entries for which the posting of bond or other security has been permitted, and will also provide the basis for deposits of estimated AD duties on future entries.

If a cash deposit collected as security for estimated AD duties pursuant to an affirmative preliminary LTFV determination is greater than the amount of AD duty assessed pursuant to an AD

duty order, then the difference between the deposit and the amount of final AD duty will be refunded for entries prior to notice of the final injury determination. If the cash deposit is lower than the final AD duty under the AD order, then the difference is disregarded. No interest accrues in either case.

If estimated AD duties deposited for entries pending liquidation are greater than the amount of final AD duties determined under an AD order, then the difference will be refunded, together with interest on the amount of overpayment. If estimated AĎ duties are less than the amount of final AD duties, then the difference will be collected together with interest on the amount of such underpayment.

Administrative review

The DOC is required, upon request, to conduct an annual review of outstanding AD orders and suspension agreements. For all entries of merchandise subject to the review, the DOC must determine the foreign market value, United States price, and the amount of dumping margin. Such determination will provide the basis for assessment of AD duties on all entries subject to the review, and for deposits of estimated duties on entries subsequent to the period of review. The results of its annual review must be published together with a notice of any AD duty to be assessed, estimated duty to be deposited, or investigation to be resumed.

A review of a final determination or of a suspension agreement shall be conducted by the DOC or ITC whenever it receives information or a request showing changed circumstances sufficient to warrant such review. Without good cause shown, however, no final determination or suspension agreement can be reviewed within 24 months of its notice. The party seeking revocation of an AD order has the burden of persuasion as to whether there are changed circumstances sufficient to warrant revocation.

Anti-circumvention authority

In 1988, specific authority was added to U.S. law to authorize the DOC to take action to prevent or address attempts to circumvent an outstanding antidumping duty order. The authority addresses four particular types of circumvention: assembly of merchandise in the United States, assembly of merchandise in a third country, minor alterations of merchandise, and later-developed merchandise. Under certain circumstances and after considering certain specified factors, the DOC may extend the scope of the antidumping duty order to include parts and components (in cases involving U.S. assembly), third country merchandise (in cases involving third country assembly), altered merchandise, or later-developed merchandise.

Judicial review

An interested party who is dissatisfied with a final determination under the antidumping law may file an action in the U.S. Court of International Trade for judicial review. To obtain judicial review of the administrative action, a summons and complaint must be filed concurrently within 30 days of publication of the final determination. The standard of review used by the Court is

whether the determination is supported by "substantial evidence on the record" or "otherwise not in accordance with law."

Judicial review of interlocutory decisions, previously permitted, was eliminated by section 623 of the Trade and Tariff Act of 1984. Decisions of the Court of International Trade are subject to appeal to the U.S. Court of Appeals for the Federal Circuit.

As a result of provisions in the U.S.-Canada Free-Trade Agreement and its implementing legislation, final determinations in antidumping duty proceedings involving products of Canada are reviewed by a binational panel instead of by the U.S. Court of International Trade, if either the U.S. or Canadian government so requests. The binational panel will apply only U.S. law and U.S. standards of judicial review to decide whether U.S. law was applied correctly.

THIRD COUNTRY DUMPING

Section 1318 of the Omnibus Trade and Competitiveness Act of 1988 was enacted in response to concern over the injurious effects of foreign dumping in third country markets. Section 1318 establishes procedures for domestic industries to petition the U.S. Trade Representative to pursue U.S. rights under Article 12 of the GATT Antidumping Code. A domestic industry that produces a product like or directly competitive with merchandise produced by a foreign country may submit a petition to the U.S. Trade Representative if it has reason to believe that such merchandise is being dumped in a third country market and such dumping is injuring the U.S. industry.

If the U.S. Trade Representative determines there is a reasonable basis for the allegations in the petition, the U.S. Trade Representative shall submit to the appropriate authority of the foreign government an application requesting that antidumping action be taken on behalf of the United States. Article 12 of the GATT Antidumping Code requires that such an application "be supported by price information to show that the imports are being dumped and by detailed information to show that the alleged dumping is causing injury to the domestic industry concerned." (paragraph 2, article 12). Accordingly, at the request of the U.S. Trade Representative, the appropriate officers of the Commerce Department and the ITC shall assist the U.S. Trade Representative in preparing any such application.

After submitting an application to the foreign government, the U.S. Trade Representative shall seek consultations with its representatives regarding the requested action. If the foreign government refuses to take any antidumping action, the U.S. Trade Representative shall consult with the domestic industry on whether action under any other U.S. law is appropriate.

Enforcement of United States Rights Under Trade Agreements and Response to Certain Foreign Practices

SECTIONS 301-310 OF THE TRADE ACT OF 1974, AS AMENDED Chapter 1 of title III (sections 301-310) of the Trade Act of 1974, as amended 13 provides the authority and procedures for the President to enforce U.S. rights under international trade agreements and to respond to certain unfair foreign practices. The predecessor statute, section 252 of the Trade Expansion Act of 1962 14 was repealed and section 301 established in its place under the Trade Act of 1974. Section 301 was amended under title IX of the Trade Agreements Act of 1979 15 in two principal respects: (1) to include specifically enforcement of U.S. rights and responses to actions by foreign countries inconsistent with or otherwise denying U.S. benefits under trade agreements; and (2) to place specific time limits on the procedures for investigating and taking action on petitions. Some further amendments were enacted under sections 304 and 307(b) of the Trade and Tariff Act of 1984 16 to clarify certain authorities and practices covered by section 301, and to authorize certain actions with respect to foreign export performance require

ments.

The current statute reflects major modifications made by sections 1301-1303 of the Omnibus Trade and Competitiveness Act of 1988 17 to section 301 authority, as well as enactment of additional authorities commonly known as "Super 301" to deal with priority practices and priority countries and "Special 301" to deal with priority intellectual property right protection. The principal amendments in 1988 to strengthen the basic section 301 authority were: (1) to require the U.S. Trade Representative (USTR) to make unfair trade practice determinations in all cases, and to transfer authority to determine and implement section 301 action from the President to the USTR, subject to the specific direction, if any, of the President; (2) to make section 301 mandatory in cases of trade agreement violations or other "unjustifiable" practices, except in certain circumstances; (3) to include additional types of practices as specifically actionable under section 301; (4) to tighten and specify time limits on all investigations and actions; and (5) to require monitoring and enforcement of foreign settlement agreements and to provide for modification and termination of section 301 actions.

INTERNATIONAL CONSULTATIONS AND DISPUTE SETTLEMENT

Article XII and XIII of the General Agreement on Tariffs and Trade (GATT) as elaborated upon by the Texts Concerning a Framework for the Conduct of World Trade concluded in the Tokyo Round of multilateral trade negotiations (MTN), 18 provide the general consultation and dispute settlement procedures applicable to GATT rights and obligations. In addition, the GATT agreements

13 Public Law 93-618, approved January 3, 1975, 19 U.S.C. 2411. 14 Public Law 87-794, sec. 252, approved October 11, 1962.

15 Public Law 96-39, title IX, approved July 26, 1979.

16 Public Law 98-573, approved October 30, 1984.

17 Public Law 100-418, approved August 23, 1988.

18 MTN/FR/W/20/Rev. 2, reprinted in House Doc. No. 96-153, pt. I at 619.