Determining and Applying Unaffiliated Reseller Assessment Rates; Modification or Removal of Countervailing Duty Expedited Reviews

DEPARTMENT OF COMMERCE <SUBAGY>International Trade Administration</SUBAGY> <CFR>19 CFR Part 351</CFR> <DEPDOC>[Docket No. 250522-0090]</DEPDOC> <RIN>RIN 0625-AB27</RIN> <SUBJECT>Determining and Applying Unaffiliated Reseller Assessment Rates; Modification or Removal of Countervailing Duty Expedited Reviews</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Enforcement and Compliance, International Trade Administration, Department of Commerce. <HD SOURCE="HED">ACTION:</HD> Advanced notice of proposed rulemaking. <SUM> <HD SOURCE="HED">SUMMARY:</HD> Enforcement and Compliance (E&C), part of the International Trade Administration of the U.S. Department of Commerce (Commerce), administers the antidumping duty (AD) and countervailing duty (CVD) trade remedy laws of the Tariff Act of 1930, as amended (the Act). Commerce is seeking public comment as it considers revising, and potentially codifying in its regulations, its current policy of assessing entries of subject merchandise exported by unaffiliated resellers at the all-others rate determined in a less-than-fair-value (LTFV) investigation rather than at the rate calculated for an examined producer of that merchandise in an administrative review. In addition, Commerce is considering modifying or removing regulations providing for the conduct of an expedited administrative review following the conclusion of a CVD investigation. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments must be received no later than July 7, 2025. </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-ITA-2025-0003. Comments may also be submitted by mail, hand delivery or courier, addressed to Scot Fullerton, Acting Deputy Assistant Secretary for AD/CVD Operations, Room 18022, Department of Commerce, 1401 Constitution Ave. NW, Washington, DC 20230. An appointment must be made in advance with the 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 generally 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 of the material be treated confidentially 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 E&C Communications office at (202) 482-0063 or <E T="03">ECCommunications@trade.gov.</E> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Rebecca Cantu, Deputy Chief Counsel for Trade Enforcement and Compliance, at (202) 482-4618, or Jesus Saenz, Senior Attorney, at (202) 482-1823. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Commerce's Unaffiliated Reseller Policy (19 CFR 351.212)</HD> On May 6, 2003, Commerce issued a clarification to its regulations covering the automatic assessment of duties in market economy AD proceedings, § 351.212(c). <SU>1</SU> <FTREF/> Commerce explained in that clarification notice that if the agency conducted an administrative review of a producer of subject merchandise pursuant to section 751(a) of the Act and § 351.213, there was an unaffiliated reseller that exported subject merchandise to the United States during the period of review, and the producer was unaware that the reseller's exports of subject merchandise were destined for the United States during that period, then the merchandise being exported by the reseller would not be liquidated at the assessment rate Commerce determined for the producer in the administrative review or automatically at the rate required as a deposit at the time of entry. <SU>2</SU> <FTREF/> Instead, Commerce explained that the entries of subject merchandise exported by the reseller during the period of review 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 review period. <SU>3</SU> <FTREF/> Commerce explained that it was implementing this policy because without it, “there may be little incentive for resellers to request a review to obtain their own specific rates,” perpetuating the possible application of inaccurate rates based on the producer's selling experience instead of the reseller's selling experience. <SU>4</SU> <FTREF/> In addition, Commerce explained that it had witnessed that “resellers `shop' for margins by waiting until the completion of [a] review to determine whether the producer's rate determined in the review or the all-others rate is more favorable.”  <SU>5</SU> <FTREF/> <FTNT> <SU>1</SU>   <E T="03">See Antidumping and Countervailing Duty Proceedings: Assessment of Antidumping Duties,</E> 68 FR 23954 (May 6, 2003) ( <E T="03">2003 Clarification Notice</E> ). </FTNT> <FTNT> <SU>2</SU>   <E T="03">Id.</E> </FTNT> <FTNT> <SU>3</SU>   <E T="03">Id.</E> </FTNT> <FTNT> <SU>4</SU>   <E T="03">Id.</E> at 23955. </FTNT> <FTNT> <SU>5</SU>   <E T="03">Id.</E> </FTNT> Commerce is now seeking public comments on whether it should consider further modifications to its unaffiliated reseller practice. Specifically, if Commerce conducts an administrative review of a producer and the rate determined for the producer during the period of review is higher than the all-others rate, Commerce is requesting public comments on whether the all-others rate should continue to be applied to the merchandise produced by the examined entity and exported by an unexamined unaffiliated reseller to the United States or whether the higher rate calculated for the producer should instead be applied to the unaffiliated reseller. 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? As explained in the <E T="03">2003 Clarification Notice,</E> Commerce would prefer that exporters of subject merchandise request an administrative review to increase the agency's confidence that the rate applied to those exporters is reasonable. <SU>6</SU> <FTREF/> Pursuant to § 351.109(g), when resellers request an administrative review and are not selected for individual examination, Commerce will apply a rate derived from the examined respondents to those entries of subject merchandise which is period-specific, unlike the all-others rate, which was determined in the earlier underlying investigation. If an unaffiliated reseller decides not to request an administrative review of its merchandise, that suggests that the reseller may believe that an administrative review of its merchandise would not result in a rate lower than the all-others rate. Applying the higher of the examined producer's rate or the all-others rate to an unaffiliated reseller for which an administrative review was not 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. <FTNT> <SU>6</SU>   <E T="03">Id.</E> </FTNT> Commerce is therefore requesting comments from the public on whether it should continue to apply only the all-others rate to unaffiliated resellers of subject merchandise in market economy AD reviews or if it should modify its unaffiliated reseller practice to instead direct Customs and Border Protection to liquidate those entries at the higher of the examined producer's rate or the all-others rate. Whether Commerce continues to apply its current unaffiliated reseller policy for market economy AD reviews or modifies that practice, despite the publication of the <E T="03">2003 Clarification Notice</E> over 20 years ago, many unaffiliated resellers continue to argue in Commerce's proceedings that Commerce should apply the rate calculated for an examined unaffiliated producer to their merchandise when that rate is lower than the all-others rate. Commerce is therefore considering revising its assessment regulation, § 351.212, to incorporate an unaffiliated reseller policy, modified or unmodified, into its regulations. The policy concerns that supported the implementation of the 2003 unaffiliated reseller practice continue to be relevant today, and including that practice in regulations would help improve and enhance the enforcement of AD determinations by giving notice to the general public and further preventing the “gaming” of the trade remedy laws by unaffiliated resellers seeking the lowest AD assessment rate. In short, such a modification to Commerce's regulations could help prevent the evasion of the AD laws. Commerce therefore also invites the public to propose suggested language to add to § 351.212 to reflect its unaffiliated reseller policy, either unmodified or revised as suggested herein. <HD SOURCE="HD1">Expedited Countervailing Duty Reviews (19 CFR 351.214(l))</HD> Section 351.214(l) of Commerce's regulations provide for an expedited review immediately following a CVD investigation if, in the investigation, Commerce limited the number of exporters or producers to be individually examined under section 777A(e)(2)(A) of the Act and did not accept voluntary respondents under section 782(a) of the Act and § 351.109(h). <SU>7</SU> <FTREF/> The CVD expedited review regulation was not issued pursuant to any specific CVD statutory provision but was promulgated to bring the CVD regulations into conformity with Article 19.3 of the World Trade Organization Agreement on Subsidies and Countervailing Measures. <SU>8</SU> <FTREF/> ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 18k characters. 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