I

103D CONGRESS

2D SESSION H. R. 4664

To amend the Tariff Act of 1930 to provide relief from antidumping and

countervailing duty orders in cases of short supply.

IN THE HOUSE OF REPRESENTATIVES

JUNE 28, 1994

Mr. HUTTO (for himself and Mr. PETERSON of Florida) introduced the following bill; which was read twice and referred to the Committee on Ways

and Means

A BILL

To amend the Tariff Act of 1930 to provide relief from

antidumping and countervailing duty orders in cases of

short supply.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. EXCEPTIONS FOR SHORT-SUPPLY SITUATIONS.

4 (a) IN GENERAL.—Chapter 1 of subtitle C of title VII

5 of the Tariff Act of 1930 (19 U.S.C. 1675) is amended

6 by adding at the end the following new section:

7 ‘‘SEC. 752. EXCEPTIONS FOR SHORT-SUPPLY SITUATIONS.

8 ‘‘(a) IN GENERAL.—
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1 ‘‘(1) PETITION.—If a short-supply petition is

2 filed under this section and the administering au3 thority determines that a short-supply situation ex4 ists with respect to a particular product which is

5 within the same class or kind as merchandise that

6 is the subject of an order or finding described in

7 paragraph (2), the administering authority shall sus8 pend the order or finding and shall authorize the im9 portation of additional quantities of the product free

10 of duties, estimated duty deposits, reporting require11 ments, or other restrictions, unless the administering

12 authority determines that such imports will erode

13 the pricing structure of the domestic merchandise

14 that is comparable to the class or kind of merchan15 dise subject to an order or finding.

16 ‘‘(2) ORDER OR FINDING.—An order or finding

17 described in this paragraph is—

18 ‘‘(A) an antidumping order issued under

19 section 736,

20 ‘‘(B) a finding issued under the Antidump21 ing Act, 1921, or

22 ‘‘(C) a countervailing duty order issued

23 under section 706 or 303.

24 ‘‘(b) FACTORS.—In determining whether a short-sup25 ply situation exists in the United States with respect to
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1 a product, the administering authority shall consider all

2 relevant factors, including—

3 ‘‘(1) if there is domestic production of the prod4 uct with respect to which the short-supply petition

5 has been filed;

6 ‘‘(2) to the extent information is available, the

7 recent levels of capacity utilization of domestic facili8 ties producing the product;

9 ‘‘(3) the quantity of the product requested in

10 the short-supply petition and the ability of domestic

11 producers to supply the product in such quantity;

12 ‘‘(4) the reasonableness of the specifications re13 quested by the purchaser or end-user of the product;

14 and

15 ‘‘(5) the time the product can be delivered to

16 the purchaser or end-user.

17 ‘‘(c) PROCEDURES.—

18 ‘‘(1) PETITIONS.—An interested party may file

19 with the administering authority a petition request20 ing a determination under this section at any time

21 an order or finding described in subsection (a)(2) is

22 in effect. The petition shall be in such form and con23 tain such information as the administering authority

24 requires.
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1 ‘‘(2) PUBLICATION.—If the administering au2 thority finds that a petition filed under paragraph

3 (1) contains adequate information, the administering

4 authority shall promptly publish in the Federal Reg5 ister a notice that a determination under this section

6 is under consideration.

7 ‘‘(3) COMMENT.—The administering authority

8 shall provide opportunity for comment by interested

9 parties regarding issues raised in the petition.

10 ‘‘(4) CERTIFICATION.—The petitioner and any

11 interested party submitting information shall certify

12 that the information contained in the petition (or

13 submission, as the case may be) is accurate and

14 complete to the best of the petitioner’s or party’s

15 knowledge.

16 ‘‘(5) CONSULTATIONS.—In making a deter17 mination under this section, the administering au18 thority shall consult with domestic users of the prod19 uct.

20 ‘‘(d) DETERMINATION.—

21 ‘‘(1) IN GENERAL.—In any case in which the

22 administering authority finds that a short-supply pe23 tition contains adequate information, the administer24 ing authority shall determine, not later than the day

25 specified in paragraph (2)—
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1 ‘‘(A) if a short-supply situation exists in

2 the United States with respect to the product;

3 and

4 ‘‘(B) if the determination under subpara5 graph (A) is affirmative, the quantity of the

6 product, if any, that may be imported into the

7 United States without regard to the antidump8 ing or countervailing duty order that would oth9 erwise apply. In making the determination

10 under this subparagraph, the administering au11 thority may consider whether allowing particu12 lar quantities of the product to be imported

13 without regard to the antidumping or counter14 vailing duty order will erode the pricing struc15 ture of the domestic merchandise that is com16 parable to the class or kind of merchandise sub17 ject to an order or finding.

18 ‘‘(2) TIME LIMIT FOR MAKING SHORT-SUPPLY

19 DETERMINATION.—The administering authority

20 shall make a determination described in paragraph

21 (1) not later than—

22 ‘‘(A) the 15th day after the date the peti23 tion is filed if—

24 ‘‘(i) the administering authority au25 thorized the importation of additional
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1 quantities of the product during each of

2 the 2 years preceding the date the petition

3 is filed, or

4 ‘‘(ii) the administering authority

5 finds, on the basis of available information

6 (without regard to whether such informa7 tion is available as part of the petition

8 under review), that the product is not pro9 duced in the United States; or

10 ‘‘(B) the 30th day after the date the peti11 tion is filed if clause (i) or (ii) of subparagraph

12 (A) does not apply, except that if a petition

13 under this section is received more than 30

14 days before the issuance of an antidumping or

15 countervailing duty order with respect to the

16 product, the administering authority may make

17 a short-supply determination at the time and as

18 part of such order.

19 ‘‘(3) REBUTTABLE PRESUMPTION.—If a peti20 tion is filed under this section, there shall be a re21 buttable presumption that the short-supply situation

22 alleged in the petition exists.

23 ‘‘(4) SHORT-SUPPLY ALLOWANCE UPON FAIL24 URE OF A DOMESTIC PRODUCER TO SUPPLY.—If the

25 administering authority determines that a short-sup-
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1 ply situation does not exist because a producer in

2 the United States states that it is willing and able

3 to supply the product in the quantity requested at

4 the specifications, price, and delivery date requested,

5 and the producer fails to supply the product as

6 promised, the administering authority shall, within 3

7 days of being notified of the failure, grant a short8 supply allowance for the quantity the domestic pro9 ducer failed to supply.

10 ‘‘(e) NOTICE.—The administering authority shall

11 publish in the Federal Register notice of each determina12 tion made under this section and the reasons therefore.

13 ‘‘(f) DEFINITIONS AND SPECIAL RULES.—For pur14 poses of this section:

15 ‘‘(1) INTERESTED PARTY.—The term ‘inter16 ested party’ means—

17 ‘‘(A) a United States producer or

18 consumer of the product;

19 ‘‘(B) a United States importer or distribu20 tor of the product; and

21 ‘‘(C) a foreign exporter or producer who

22 will supply the product to a United States pro23 ducer, consumer, importer, or distributor.

24 ‘‘(2) PRODUCT.—The term ‘product’ means the

25 product for which a short-supply allowance is re-
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1 quested, or material which possesses the same phys2 ical characteristics and performance standards and

3 which can be used for the same application without

4 imposing any significant alteration costs for the

5 consumer.

6 ‘‘(3) REASONABLE SPECIFICATIONS.—The term

7 ‘reasonable specifications’ means specifications that

8 are developed in the ordinary course of business.

9 The administering authority shall apply a rebuttable

10 presumption that specifications are reasonable when11 ever such specifications have been in use either—

12 ‘‘(A) prior to the filing of an antidumping

13 or countervailing duty petition; or

14 ‘‘(B) more than two years.

15 ‘‘(4) ERODE THE PRICING STRUCTURE.—The

16 term ‘erode the pricing structure’ means United

17 States prices for the domestic merchandise com18 parable to the class or kind of merchandise subject

19 to an order or finding will be suppressed by reason

20 of the importation of specified quantities of the

21 product pursuant to a short supply allowance. The

22 Secretary shall apply a rebuttable presumption that

23 the imported product will not erode the pricing

24 structure of the comparable domestic merchandise

25 whenever—
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1 ‘‘(A) no United States producers have pro2 duced a product meeting the reasonable speci3 fications within the last six months, nor have

4 any United States producers either qualified to

5 supply products meeting such specifications (if

6 such qualification is normally required) or

7 signed contracts that would require the delivery

8 of such products within the next six months; or

9 ‘‘(B) domestic consumption of the product

10 exceeds domestic production by more than fifty

11 percent, and the quantity of product covered by

12 a short supply determination is less than half of

13 the difference between domestic consumption

14 and domestic production.

15 In considering whether a short-supply determination

16 would erode the pricing structure, the administering

17 authority shall consider, among other factors—

18 (A) the quantity of short supply relief ap19 proved within the applicable class or kind of

20 merchandise; and

21 (B) the interchangeability between prod22 ucts subject to short-supply determinations and

23 other products within the applicable class or

24 kind of merchandise.
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1 ‘‘(5) SHORT-SUPPLY ALLOWANCE.—The term

2 ‘short-supply allowance’ means an authorization by

3 the administering authority to permit importation

4 into the United States, including a foreign trade

5 zone, of a quantity of product free of duties imposed

6 pursuant to an antidumping or countervailing duty

7 order issued under this title.’’.

8 (b) CLERICAL AMENDMENT.—The table of contents

9 for title VII of the Tariff Act of 1930 is amended by in10 serting after the item relating to section 751 the following

11 new item:

‘‘Sec. 752. Exceptions for short-supply situations.’’.

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