Commerce Asks for Comments on Unaffiliated Reseller Policy, Expedited CVD Reviews
The Commerce Department is asking for public comments on its proposals to revise the current policy of assessing entries of unaffiliated resellers at the all-others antidumping duty rate and to eliminate expedited countervailing duty reviews. Comments are due by July 7.
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Commerce's first proposed change concerns its policy regarding unaffiliated resellers in AD investigations. In 2003, the agency issued a clarification notice explaining its policy, which said that in an administrative review if an unaffiliated reseller exports subject merchandise during the review period and the producer was unaware the goods were destined for the U.S., then the exports would not be liquidated at the assessment rate Commerce set for the producer during the administrative review.
Instead, Commerce said the entries would be liquidated at the all-others rate determined in the underlying investigation if there was no company-specific review of the reseller for that period.
The agency said it's now seeking comments on whether it should continue using the all-others rate in these situations where the relevant producer has a higher individual rate than the all-others rate. "In other words, should Commerce implement a policy in which it applies the higher of either the examined producer’s rate or the all-others rate?" the agency asked.
The notice said the agency prefers that exporters of subject merchandise request an administrative review to boost the agency's confidence that the rate applied to those exporters is "reasonable." Applying the higher of the examined producer's rate or the all-others rate to an unaffiliated reseller for which review wasn't requested "could incentivize unaffiliated resellers to request an administrative review of their own merchandise rather than presume that their merchandise would always benefit from a potentially low all-others rate," the notice said.
Commerce also said the rule could codify the agency's existing practice, which never has been officially enshrined in the agency's regulations. Commerce said it still gets questions about what rate unaffiliated resellers receive in administrative reviews.
The second proposal concerns expedited CVD reviews, which the U.S. Court of Appeals for the Federal Circuit said in 2023 are allowed under U.S. trade laws. However, Commerce said it's considering eliminating such reviews "in light of the time and resource burdens of CVD expedited reviews, Commerce’s current resource constraints, the fact that only a small number of CVD expedited reviews have been conducted to date, and the fact that the current regulation is not mandated by the Act."
The agency said it's also reconsidering the practice given the other avenues to provide exporters alternative opportunities to get "an individual-company subsidy rate," including taking part in investigations as a voluntary respondent, requesting new shipper reviews and requesting an administrative review.
If a member of the public wants to comment in favor of eliminating the practice, Commerce is specifically asking for the "factual, legal, and policy reasons the burden and resources required to administer and enforce the current regulation are or are not justified by the benefit of the existing regulatory language."
But if a party wants to support the practice, the agency asked for comments on "desired changes" to the regulation, "including methods to reduce the resources required to implement it, such as by making the conduct of a CVD expedited review discretionary, rather than mandatory or requiring that all requests for a CVD expedited review include complete initial questionnaire responses."