Background

Strengthening the enforcement of antidumping and countervailing duty laws and creating new tools to address the circumvention and evasion of AD/CV duties are among the aims of a final rule that Commerce Secretary Gina Raimondo said represents “the most comprehensive updates to trade enforcement in more than two decades.” For more information on this rule and how it may affect your business, please contact attorney Kristen Smith at (202) 730-4965 or via email.

Scope Rulings

The ITA issues rulings on the scope of AD/CV duty orders; i.e., whether a specific product is or is not covered by an order. There are several significant changes to scope ruling procedures, and all changes will apply to scope inquiries for which an application is filed, as well as any inquiry self-initiated by the ITA, on or after Nov. 4.

The rule provides that when a preliminary or final affirmative scope ruling is made, the ITA will normally direct U.S. Customs and Border Protection to begin suspension of liquidation and cash deposit requirements for unliquidated entries not yet suspended that entered before the date of initiation of the scope inquiry. This includes any unliquidated entries back to the first date of suspension under the AD/CV duty order (which is normally the preliminary determination in the underlying investigation) that remain unliquidated at the time of the preliminary or final scope ruling. However, for unliquidated entries not yet suspended that entered on or after the date of initiation of the scope inquiry, the ITA will direct CBP to begin suspension of liquidation and cash deposit requirements for entries that entered on or after that date.

Similarly, the rule holds that a ruling that a product is within the scope of an AD/CV duty order is a determination that it has always been within that scope and provides for the application of that ruling to all unliquidated entries of subject goods.

Another change that may impose an additional duty burden on importers is the elimination of the requirement for the ITA to notify CBP of a preliminary determination that a particular product is not within the scope of an AD/CV duty order. As a result, cash deposits and the suspension of liquidation for entries of such goods will still be required after such a preliminary ruling until the ITA issues a final ruling.

Other changes related to scope rulings include the following.

- clarifying that the ITA may self-initiate a scope inquiry if it believes one is warranted

- allowing the ITA to address scope questions in other segments of AD/CV proceedings such as administrative reviews, circumvention inquiries, and covered merchandise referrals

- requiring parties to fill out and file a standardized scope ruling application and provide the requested information to the extent it is reasonably available to them

- allowing the ITA to apply a prior scope ruling to products with the identical physical description from the same country of origin instead of conducting a new scope inquiry

- extending from 45 to 120 days the deadline for the ITA to complete a scope inquiry

- codifying the ITA’s substantial transformation test to determine the country of origin of a product and its ability to apply another reasonable origin test if substantial transformation is not appropriate

- clarifying and codifying the substantive basis for scope rulings pertaining to country of origin, scope language interpretation, and mixed media products (subject goods assembled or packaged with non-subject goods)

Circumvention Rulings

The rule makes the following changes with respect to rulings on whether an AD/CV duty order is being circumvented: (1) adopts a case-specific analysis of whether it is appropriate to extend the suspension of liquidation to certain entries that pre-date the initiation of the circumvention inquiry when the ITA makes an affirmative preliminary or final circumvention determination, and (2) eliminates the requirement to notify CBP of a negative preliminary circumvention ruling and provides that suspension of liquidation and cash deposit requirements will remain in effect after a preliminary ruling until the ITA issues a final ruling.

The rule also (1) clarifies the ITA’s authority to self-initiate circumvention inquiries and apply circumvention determinations on a country-wide basis, (2) shortens the deadline for determining whether to initiate a circumvention inquiry from 45 days to 30 days and establishes new deadlines of 150 days and 300 days, respectively, for preliminary and final determinations, and (3) codifies the criteria the ITA will consider before reaching a circumvention determination.

These changes will apply to circumvention inquiries for which a request is filed, as well as any inquiry self-initiated by the ITA, on or after Nov. 4.

Covered Merchandise Referrals

Covered merchandise referrals are requests from CBP to determine whether specific goods are covered by an AD/CV duty order as part of an investigation of potential duty evasion under the Enforce and Protect Act. The final rule establishes new regulations on such referrals that largely mirror the scope and circumvention ruling regulations and will allow the ITA maximum flexibility to further develop its procedures and practice as it gains more experience in this new area of the law. These changes will apply to inquiries for which a sufficient covered merchandise referral is received on or after Nov. 4

Certifications

The rule codifies and enhances the ITA’s existing authority and practice to require certifications by importers, exporters, and other interested parties as to whether goods are subject to an AD/CV duty order. Applicable cash deposits may be imposed when such a certification is not provided or contains materially false, fictitious, or fraudulent statements or representations or material omissions.

Other changes include (1) requiring importers to file certifications regarding the payment or reimbursement of AD/CV duties in either electronic or paper form in accordance with CBP requirements, (2) eliminating the requirement for specific reimbursement certification language, and (3) allowing CBP to accept a reimbursement certification in accordance with its protest procedures under 19 USC 1514 even though such certification is required prior to liquidation.

These changes are applicable as of Oct. 20.

New Shipper Reviews

A new shipper review enables exporters or producers that did not export the subject goods during the original AD/CV duty investigation to seek their own individual AD/CV duty rates. The following changes are being made with respect to new shipper reviews in which the request for review is filed on or after Oct. 20.

- eliminates the importer’s ability to post an AD/CV-specific bond or security during new shipper reviews and requires them instead to provide cash deposits

- clarifies the circumstances under which the ITA will grant a new shipper review and establishes that additional information and certifications will be required to obtain a review

- establishes factors to consider in determining whether the sales at issue constitute bona fide sales for purposes of the AD/CV duty laws

- expands the ITA’s ability to rescind new shipper reviews if necessary information pertaining to the bona fide sale issue is not on the record or if the exporter or producer failed to demonstrate the existence of a bona fide sale to an unaffiliated customer

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