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Recent Changes to AD/CV Laws Effective as of Aug. 6

Thursday, August 06, 2015
Sandler, Travis & Rosenberg Trade Report

The International Trade Administration has established Aug. 6 as the date of application for four revisions to the antidumping and countervailing duty laws that were included in the Trade Preferences Extension Act signed into law on June 29. The ITA has determined that implementing these amendments immediately, including to goods that entered the United States before the passage of the law, would not be impermissibly retroactive.

Adverse Information. Section 502 provides that in making AD and CV duty determinations on the basis of the facts available the ITA is not required to corroborate the information employed in certain circumstances, to make certain estimates or demonstrations concerning that information, or to address certain claims regarding the alleged commercial reality of non-cooperating parties. Because this section addresses the ITA’s discretion and thus does not require it to take any specific actions with respect to facts available determinations, it will be applied to determinations made on or after Aug. 6.

Ordinary Course of Trade. Section 504 modifies the definition of “ordinary course of trade” and the provisions governing the treatment of a “particular market situation” in AD proceedings. Because this section codifies the ITA’s discretion and does not require it to take any action with respect to particular market situations, it will be applied to determinations made on or after Aug. 6.

The ITA notes that its existing regulations establish a general deadline for “particular market situation” allegations of 10 days after the respondent interested party files the response to the relevant section of the questionnaire. The statutory amendment does not require this deadline to be altered, so this regulation will continue to apply as before.

Distorted Prices or Costs. Section 505 modifies the treatment of distorted prices or costs in AD proceedings and has two parts. Under the first part the ITA will request constructed value and cost of production information from respondent companies in all AD proceedings. The ITA recognizes that it can cannot ask for such information in ongoing proceedings in which the time

for doing so has passed, so the new law will be applied to determinations in which the complete initial questionnaire has not been issued as of Aug. 6. The second part permits the ITA to disregard price or cost values without further investigation if it has determined that certain subsidies have existed with respect to those values or if those price or cost values were subject to an AD duty order. This amendment clarifies the ITA’s authority for its existing practice and does not impose any new requirements on the parties to AD proceedings that would require them to submit additional information or argument. Accordingly, this provision will be applied to determinations made on or after Aug. 6.

Voluntary Respondents. Section 506 identifies the factors that the ITA may take into account in determining whether accepting voluntary responses would be unduly burdensome. This amendment compliments the ITA’s voluntary respondent analysis and does not require parties to AD and CV proceedings to submit additional information or argument. Accordingly, it will be applied to determinations made on or after Aug. 6.

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