Regulations Enhancing the Administration of the Antidumping and Countervailing Duty Trade Remedy Laws

DEPARTMENT OF COMMERCE <SUBAGY>International Trade Administration</SUBAGY> <CFR>19 CFR Part 351</CFR> <DEPDOC>[Docket No. 240703-0184]</DEPDOC> <RIN>RIN 0625-AB25</RIN> <SUBJECT>Regulations Enhancing the Administration of the Antidumping and Countervailing Duty Trade Remedy Laws</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Enforcement and Compliance, International Trade Administration, Department of Commerce. <HD SOURCE="HED">ACTION:</HD> Proposed rule; request for comments. <SUM> <HD SOURCE="HED">SUMMARY:</HD> Pursuant to Title VII of the Tariff Act of 1930, as amended (the Act), the U.S. Department of Commerce (Commerce) proposes to update its trade remedy regulations to enhance the administration of the antidumping duty (AD) and countervailing duty (CVD) laws. Specifically, Commerce proposes to codify existing procedures and methodologies and create or revise regulatory provisions relating to several matters including the collection of cash deposits, application of antidumping rates in nonmarket economy proceedings, calculation of an all-others' rate, selection of examined respondents, and attribution of subsidies received by cross-owned input producers and utility providers to producers of subject merchandise. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> To be assured of consideration, written comments must be received no later than September 10, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Submit electronic comments only through the Federal eRulemaking Portal at <E T="03">https://www.Regulations.gov,</E> Docket No. ITA-2023-0003. Comments may also be submitted by mail or hand delivery/courier, addressed to Ryan Majerus, Deputy Assistant Secretary for Policy & Negotiations, Performing the Non-Exclusive Functions and Duties of the Assistant Secretary for Enforcement and Compliance, Room 18022, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230. An appointment must be made in advance with the Administrative Protective Order (APO)/Dockets Unit at (202) 482-4920 to submit comments in person by hand delivery or courier. All comments submitted during the comment period permitted by this document will be a matter of public record and will be available on the Federal eRulemaking Portal at <E T="03">https://www.Regulations.gov</E> . Commerce will not accept comments accompanied by a request that part or all the material be treated as confidential because of its business proprietary nature or for any other reason. Therefore, do not submit confidential business information or otherwise sensitive or protected information. Any questions concerning the process for submitting comments should be submitted to Enforcement & Compliance (E&C) Communications office at <E T="03">ECCommunications@trade.gov</E> or to John Van Dyke, Import Policy Analyst, at <E T="03">john.vandyke@trade.gov</E> . Inquiries may also be made of the E&C Communications office during business hours at (202) 482-0063. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Scott D. McBride, Associate Deputy Chief Counsel for Trade Enforcement and Compliance, at (202) 482-6292, or Jesus Saenz, Attorney, at (202) 482-1823. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">General Background</HD> Title VII of the Act vests Commerce with authority to administer the AD/CVD trade remedy laws. Section 731 of the Act directs Commerce to impose an AD order on merchandise entering the United States when it determines that a producer or exporter is selling a class or kind of foreign merchandise into the United States at less than fair value ( <E T="03">i.e.,</E> dumping), and material injury or threat of material injury to that industry in the United States is found by the U.S. International Trade Commission (ITC). In addition, section 701 of the Act directs Commerce to impose a CVD order when it determines that a government of a country or any public entity within the territory of a country is providing, directly or indirectly, a countervailable subsidy with respect to the manufacture, production, or export of a class or kind of merchandise that is imported into the United States, and material injury or threat of material injury to that industry in the United States is found by the ITC. Section 771(5)(B) of the Act defines a countervailable subsidy as existing when “a government or any public entity within the territory of a country provides a financial contribution; provides any form of income or price support; or makes a payment to a funding mechanism to provide a financial contribution, or entrusts or directs a private entity to make a financial contribution, if providing the contribution would normally be vested in the government and the practice does not differ in substance from practices normally followed by governments; and a benefit is thereby conferred.” To be countervailable, a subsidy must be “specific” within the meaning of section 771(5A) of the Act. The Act provides numerous disciplines which Commerce must follow in conducting AD and CVD proceedings. For example, sections 703(d)(1)(B), 705(d), 733(d)(1)(B), 735(c), and 751 of the Act direct Commerce to order U.S. Customs and Border Protection (CBP) to collect cash deposits as security pursuant to multiple determinations in its proceedings, until Commerce orders the assessment of AD or CVD duties. Likewise, sections 705(c)(1)(B), 705(c)(5), 735(c)(1)(B)(i), and 735(c)(5) of the Act set forth the means by which Commerce determines the AD margin or countervailable subsidy rate to be applied to imported subject merchandise exported or produced by entities not selected in an investigation for individual examination. In addition, sections 777A(c)(2) and 777A(e)(2)(A) of the Act allow Commerce to limit the number of exporters or producers to be individually examined, while section 782(a) allows Commerce to select voluntary respondents. In accordance with these and other statutory provisions, this proposed rule codifies and enhances the procedures and practices applied by Commerce in administering and enforcing the AD and CVD laws. <HD SOURCE="HD1">Explanation of the Proposed Rule</HD> Commerce proposes several updates to the AD and CVD regulations found at part 351. <SU>1</SU> <FTREF/> The proposed changes are summarized here and discussed in greater detail below. Commerce invites comments on all proposed regulatory changes and clarifications, including suggestions to improve them. <FTNT> <SU>1</SU>  Commerce's proposed rule seeks to codify several distinct procedures and practices under various sections of the Act. As such, Commerce generally intends the rule's provisions to be severable and to operate independently from each other. Commerce's intent that the rule's provisions be severable is demonstrated by the number of distinct regulatory provisions addressed in this rulemaking and the structure of the preamble in addressing them independently and supporting each, respectively, with Commerce's statutory interpretation, agency practice, and court precedent. Accordingly, Commerce intends each portion of this rule to be severable from each other but has included all of the proposed provisions in one rulemaking for purposes of enhancing Commerce's trade remedy regulations. </FTNT> • Revise the Subpart A heading of part 351 to reflect the provisions to which it applies. • Revise § 351.104(a)(7) to reflect that preliminary and final issues and decision memoranda issued in investigations and administrative reviews before the implementation of Commerce's filing system, Antidumping Duty and Countervailing Duty Centralized Electronic Service System (ACCESS), may be cited in full in submissions before Commerce without placing the memoranda on the record. • Revise § 351.107 to accurately and more holistically describe Commerce's establishment and application of cash deposit rates, including explaining that some cash deposit rates are calculated on an <E T="03">ad valorem</E> basis at importation, while others are calculated on a per-unit basis. The proposed regulation would also describe situations in which Commerce applies cash deposit rates in a producer/exporter combination and the process by which a producer/exporter combination may be excluded from provisional measures and an AD or CVD order as a result of a calculated <E T="03">de minimis</E> cash deposit rate following an investigation. Furthermore, the regulation would set forth an AD cash deposit hierarchy for imports from market economies, an AD cash deposit hierarchy for imports from nonmarket economies, and a CVD cash deposit hierarchy. Finally, revised § 351.107 would describe the effective date for cash deposit rates following the correction of ministerial errors in investigations and administrative reviews. • Codify and update Commerce's methodology for determining if an entity exporting merchandise from a nonmarket economy should receive an antidumping duty rate separate from that of the nonmarket economy entity. New § 351.108 would provide that in a nonmarket economy, one dumping margin may apply to all exporting entities from that economy. It would explain that if an entity located in a nonmarket economy is majority-owned by the government, the government can control its production, management, sales and export activities and it will not receive a separate rate. It would also describe additional scenarios in which an entity in the nonmarket economy will not receive a separate rate if the government owns 50 percent or less of the entity's shares and (1) the government has a disproportionately larger degree of influence or control over the entity's production and commercial decisions than the ownership share would normally entail and the Secretary determines that the degree of influence or control is significant; (2) the government has the authority to ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 397k characters. 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