The Department of Commerce (DOC) has proposed an overhaul of regulations on antidumping (AD) and countervailing duties (CVD). The rule proposes modifying regulations under Part 351 of Title 19 to improve administration and enforcement of the AD and CVD laws.

According to the rule, the DOC specifically proposes to:

  • Modify its regulation concerning the time for submission of comments pertaining to industry support in AD and CVD proceedings.
  • Modify its regulation regarding new shipper reviews.
  • Modify its regulation concerning scope matters in AD and CVD proceedings.
  • Promulgate a new regulation concerning circumvention of AD and CVD orders.
  • Promulgate a new regulation concerning covered merchandise referrals received from U.S. Customs and Border Protection (CBP).
  • Promulgate a new regulation pertaining to Commerce requests for certifications from interested parties to establish whether merchandise is subject to an AD or CVD order.
  • Modify its regulation regarding importer reimbursement certifications filed with CBP.
  • Modify its regulations regarding letters of appearance in AD and CVD proceedings and importer filing requirements for access to business proprietary information.

Scope Rulings

A crucial change would allow the DOC to retroactively suspend liquidation and require AD/CVD cash deposits as a result of scope rulings. The proposed rule would clarify that, “a scope ruling, that a product is within the scope of the order, is a determination that the product has always been within the scope of the order”.  

The DOC additionally clarified,

“if a party has imported merchandise and declared that merchandise as not covered by the scope of an order, and then the DOC issues a scope ruling finding that such merchandise is subject to an order, under these proposed regulations the DOC’s scope ruling would apply to all unliquidated entries of the merchandise.”

The International Trade Administration (ITA) acknowledges that this proposal may be unfair to importers who may not be aware that their products are within the scope of an order until a scope ruling is issued. However, Commerce says they cannot distinguish between “importers with a genuine misunderstanding” and those who attempt to avoid AD/CV duties.

Another notable change—which would add additional duty burdens for importers—is the removal of requiring the ITA to notify CBP to end suspensions of liquidation when a preliminary scope ruling that a product is not covered by the scope of an AD/CVD order is issued. Instead, the suspension of liquidation would continue, despite the negative preliminary determination, until the scope ruling is issued. If the final scope ruling finds the product out-of-scope, then it would direct the end to suspension of liquidation.  

Request for Comments

The DOC is seeking public comments on the proposed rule, due Sept. 14. The policy change would not go into effect until 30 days after any final rule, meaning that it would only apply to scope rulings beginning after that date. Commerce is carefully considering all public comments before issuing a final rule.

Importers are encouraged to submit comments through the Federal eRulemaking Portal, Docket No. ITA-2020-0001.

For further clarifications or questions on the proposed rule or submission of comments, please contact Mohawk Global Trade Advisors.