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

<RULE> DEPARTMENT OF COMMERCE <SUBAGY>International Trade Administration</SUBAGY> <CFR>19 CFR Part 351</CFR> <DEPDOC>[Docket No. 241206-0317]</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> Final rule. <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) is amending its trade remedy regulations to enhance the administration of the antidumping duty (AD) and countervailing duty (CVD) laws. Specifically, Commerce is codifying existing procedures and methodologies and creating or revising regulatory provisions relating to several matters including the collection of cash deposits, indicators used in surrogate country selection, 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> These amendments are effective January 15, 2025. </EFFDATE> <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, Jesus Saenz, Senior Attorney, at (202) 482-1823, Ashlande Gelin, Attorney, at (202) 306-7302, or John Van Dyke, Import Policy Analyst, at <E T="03">john.vandyke@trade.gov</E> . </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">General Background</HD> On July 12, 2024, Commerce proposed amendments to its existing regulations, 19 CFR part 351, to enhance the administration of the AD and CVD trade remedy laws, in “Regulations Enhancing the Administration of the Antidumping and Countervailing Duty Trade Remedy Laws,” published at 89 FR 57286 (July 12, 2024) ( <E T="03">Proposed Rule</E> ). This final rule concerns the AD/CVD statutory and regulatory provisions in general, as well as those provisions pertaining to filing requirements; the application of cash deposits; the determination of separate rates for nonmarket economy entities; the calculation of rates for unexamined exporters and producers, including the all others rate; the selection of voluntary respondents; the assessment of AD and CVD rates on a per-unit basis; the submission of surrogate value, benchmark, and rebuttal information; the selection of facts otherwise available; the sharing with U.S. Customs and Border Protection (USCBP) of proprietary data for use in negligence and gross negligence investigations, in addition to investigations involving fraud; the collapsing of affiliated producers and non-producers, the application of the special rule for multinational corporations, the calculation of amounts for selling expenses and for profit for constructed value: and a series of CVD-specific provisions, which Commerce summarizes below. 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 USCBP to collect cash deposits as security pursuant to affirmative 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 final rule codifies and enhances the procedures and practices applied by Commerce in administering and enforcing the AD and CVD laws. As Commerce explained throughout the preamble to the <E T="03">Proposed Rule,</E> the purpose of these amendments is to help enhance and facilitate the administration of the AD and CVD regulations found at part 351. <SU>1</SU> <FTREF/> The codification of Commerce practice in this final rule, as well as updates to certain regulatory provisions to reflect modifications made by Congress to the Act in 2015, will provide greater clarity and transparency to Commerce's procedures and calculations. In addition, Commerce has revised its methodology in nonmarket economy investigations and reviews to more effectively address situations in which a state-owned entity has less than majority state ownership but the state continues to control an entity through veto power or “golden shares.” It has furthermore updated the means by which it selects economically comparable countries for purposes of determining normal value in nonmarket economy proceedings. Furthermore, Commerce has updated many of its CVD regulations to provide both clarity and transparency to Commerce's CVD methodology and to codify long-standing CVD policies. Finally, for the first time, Commerce has promulgated CVD regulations to address the government purchase of goods for more than adequate remuneration (MTAR) and the provision of rebates or exemptions of indirect taxes and import charges to exporters that purchase capital goods and equipment. <FTNT> <SU>1</SU>  This final rule codifies 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 the proposed provisions in one rulemaking for purposes of enhancing Commerce's trade remedy regulations. </FTNT> <HD SOURCE="HD1">Explanation of Modifications From the Proposed Rule to the Final Rule and Responses to Comments</HD> In the <E T="03">Proposed Rule,</E> Commerce invited the public to submit comments. <SU>2</SU> <FTREF/> Commerce received 27 submissions from interested parties providing comments, including domestic producers, exporters, importers, foreign governments, and foreign entities. The majority of commenters supported Commerce's proposed regulations and indicated that the new and revised regulations would increase transparency and enhance and improve the administration and enforcement of the AD and CVD laws. Some of the comments provided suggestions to further improve the regulations at issue, and Commerce considered the merits of each submission and analyzed the legal and policy arguments considering both past practice and Commerce's mandate to enhance and improve the administration of our AD and CVD laws. Pursuant to that analysis, Commerce has made certain modifications to the <E T="03">Proposed Rule</E> in response to those submissions. <FTNT> <SU>2</SU>   <E T="03">See Proposed Rule,</E> 89 FR at 57286. </FTNT> The preamble to the <E T="03">Proposed Rule</E> provided background, analysis, and explanations which are relevant to these regulations. With some modifications, as noted, this final rule would codify regulations proposed on July 12, 2024. Accordingly, to the extent that parties wish to have a greater understanding of these regulations, Commerce encourages not only consideration of the preamble of these final regulations but also a review of the analysis and explanation in the preamble to the <E T="03">Proposed Rule</ ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 603k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━