[Federal Register Volume 90, Number 106 (Wednesday, June 4, 2025)]
[Proposed Rules]
[Pages 23649-23651]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-10158]
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Proposed Rules
Federal Register
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This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 90, No. 106 / Wednesday, June 4, 2025 /
Proposed Rules
[[Page 23649]]
DEPARTMENT OF COMMERCE
International Trade Administration
19 CFR Part 351
[Docket No. 250522-0090]
RIN 0625-AB27
Determining and Applying Unaffiliated Reseller Assessment Rates;
Modification or Removal of Countervailing Duty Expedited Reviews
AGENCY: Enforcement and Compliance, International Trade Administration,
Department of Commerce.
ACTION: Advanced notice of proposed rulemaking.
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SUMMARY: 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.
DATES: Comments must be received no later than July 7, 2025.
ADDRESSES: Submit electronic comments only through the Federal
eRulemaking Portal at https://www.Regulations.gov, 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 https://www.Regulations.gov. 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
[email protected].
FOR FURTHER INFORMATION CONTACT: Rebecca Cantu, Deputy Chief Counsel
for Trade Enforcement and Compliance, at (202) 482-4618, or Jesus
Saenz, Senior Attorney, at (202) 482-1823.
SUPPLEMENTARY INFORMATION:
Commerce's Unaffiliated Reseller Policy (19 CFR 351.212)
On May 6, 2003, Commerce issued a clarification to its regulations
covering the automatic assessment of duties in market economy AD
proceedings, Sec. 351.212(c).\1\ 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 Sec. 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.\2\ 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.\3\
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.\4\ 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.'' \5\
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\1\ See Antidumping and Countervailing Duty Proceedings:
Assessment of Antidumping Duties, 68 FR 23954 (May 6, 2003) (2003
Clarification Notice).
\2\ Id.
\3\ Id.
\4\ Id. at 23955.
\5\ Id.
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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 2003 Clarification Notice, 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.\6\ Pursuant to Sec. 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
[[Page 23650]]
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.
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\6\ Id.
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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 2003 Clarification Notice 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, Sec. 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 Sec. 351.212 to reflect its unaffiliated reseller
policy, either unmodified or revised as suggested herein.
Expedited Countervailing Duty Reviews (19 CFR 351.214(l))
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
Sec. 351.109(h).\7\ 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.\8\ In 2023, the U.S. Court of Appeals for the Federal Circuit
(Federal Circuit) held that the ``individualized-determination
provisions'' of section 777A(e) of the Act, along with the
``regulatory-implementation authority'' of section 103(a) of the
Uruguay Round Agreements Act, provided Commerce with the authority to
promulgate the expedited review regulation at Sec. 351.214(l).\9\
However, the Federal Circuit also held that the expediated review
provision was not the only means by which Commerce could bring United
States obligations into accordance with the SCM Agreement and that it
provided ``one procedure for giving effect to the primary policy of
providing individual-company rate determinations.'' \10\
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\7\ The CVD expedited review regulation was initially
promulgated as Sec. 351.214(k). See Antidumping Duties;
Countervailing Duties, Final Rule, 62 FR 27296, 27321-22, 27396 (May
19, 1997) (1997 Regulations). Section 351.214(k) was later revised
to Sec. 351.214(l). Regulations to Improve Administration and
Enforcement of Antidumping and Countervailing Duty Laws, 86 FR
52300, 52373 (September 20, 2021).
\8\ See Agreement on Subsidies and Countervailing Measures (SCM
Agreement), April 15, 1994, Marrakesh Agreement Establishing the
World Trade Organization, Annex 1A, 1869 U.N.T.S. 14, at Art. 19.3.
\9\ See Comm. Overseeing Action for Lumber Int'l Trade
Investigations or Negots. v. United States, 66 F.4th 968, 977 (Fed.
Cir. 2023) (COALITION v. U.S.); see also Uruguay Round Agreements
Act (URAA), Public Law 103-465, 108 Stat. 4809 (1994).
\10\ See COALITION v. U.S., 66 F.4th at 978 (explaining that
section 777A(e) of the Act provides options for Commerce to consider
``if making individual determinations for all producers and
exporters is not practicable . . . The permissive `may' by itself
does not exclude other options, and nothing else makes the list that
follows one that defines all permissible options,'' and finding that
expedited reviews is one possible option.).
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Since the CVD expedited review regulation was originally
promulgated in 1997, Commerce has conducted only a limited number of
CVD expedited reviews.\11\ Because each review is conducted on a
truncated timeline and may cover numerous exporters and producers,
Commerce has discovered that such proceedings require an inordinate
amount of agency time and resources.\12\ Furthermore, Commerce is
currently conducting proceedings for a historically large number of AD
and CVD proceedings.\13\
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\11\ See, e.g., Certain Carbon and Alloy Steel Cut-to-Length
Plate From the People's Republic of China: Final Results of
Countervailing Duty Expedited Review, 83 FR 34115 (July 19, 2018),
and Supercalendered Paper From Canada: Final Results of
Countervailing Duty Expedited Review, 82 FR 18896 (April 24, 2017).
\12\ See e.g., Certain Softwood Lumber Products from Canada:
Final Results of Countervailing Duty Expedited Review, 84 FR 32121,
32122 (July 5, 2019).
\13\ See ADCVD Proceedings, found at https://www.trade.gov/data-visualization/adcvd-proceedings.
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Accordingly, in light of the time and resource burdens of CVD
expedited reviews, Commerce's current resource constraints, the fact
that only a small number of CVD expedited reviews have been conducted
to date, and the fact that the current regulation is not mandated by
the Act, Commerce is reconsidering the necessity or wisdom of retaining
the current CVD expedited review provision, Sec. 351.214(l),
especially since other avenues already exist to provide exporters and
producers alternative opportunities to request an individual-company
subsidy rate, such as participating as a voluntary respondent in
investigations,\14\ requesting a ``new shipper review,'' \15\
requesting an administrative review,\16\ or participating as a
voluntary respondent in administrative reviews.
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\14\ Section 782(a) of the Act provides Commerce the authority
to establish an individual countervailable subsidy rate for any
exporter or producer not initially selected for individual
examination if statutory requirements are met. See also Sec.
351.109(h).
\15\ Section 751(a)(2)(B) of the Act provides Commerce the
authority to determine CVD rates for exporters and producers that
did not export subject merchandise to the United States during the
period of investigation.
\16\ Section 751(a)(1)(A) of the Act provides Commerce with the
authority to review and determine the amount of any countervailable
subsidies.
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As part of its reconsideration of the CVD expediated review
regulation at Sec. 351.214(l), Commerce is seeking public comment on
whether it should remove, retain, or modify the regulation.
Specifically, if members of the public support either the withdrawal or
the retention of the regulation in its current form, Commerce invites
those parties to identify the factual, legal, and policy reasons the
burden and resources required to administer and enforce the current
regulation are or are not justified
[[Page 23651]]
by the benefit of the existing regulatory language.
On the other hand, if members of the public support a modification
to the CVD expedited review regulation, Commerce seeks comments on
desired changes to Sec. 351.214(l), including methods to reduce the
resources required to implement it, such as by making the conduct of a
CVD expedited review discretionary, rather than mandatory or requiring
that all requests for a CVD expedited review include complete initial
questionnaire responses. In short, if Commerce were to retain but
modify Sec. 351.214(l), Commerce invites parties to propose
modifications that would relieve Commerce of the many burdens that
accompany the application of the current regulation, along with the
factual, legal, and policy reasons in support of those proposals and
any proposed regulatory language.
Request for Comments
We are issuing this advanced notice of proposed rulemaking to
inform the public that Commerce is considering revising and codifying
two of its policies and regulations. One revision involves Commerce's
unaffiliated reseller policy in market economy AD administrative
reviews, with a possible addition to Sec. 351.212, and the second
either removes or substantially revises Commerce's procedures in
conducting an expedited CVD review pursuant to Sec. 351.214(l).
Specifically, Commerce is inviting parties to provide the following
comments, including the factual, legal, and policy reasons in support
of their views and any proposed regulatory language:
(1) If Commerce conducts an AD administrative review of a producer
of subject merchandise in a market economy, should the AD rate applied
to subject merchandise produced by the examined producer and exported
by an unexamined unaffiliated reseller to the United States be the all-
others rate, or the higher of the producer's AD rate and the all-others
rate?
(2) In light of the resources required to administer the current
CVD expedited review regulation, Sec. 351.214(l), and the fact that
the Act does not require that Commerce conduct CVD expedited reviews,
should Commerce remove, retain, or modify that regulation? Further, if
Commerce were to retain, but modify Sec. 351.214(l), Commerce also
invites parties to propose suggestions for modifications to the
regulation that would relieve Commerce of many of the administrative
burdens that accompany the application of the current regulation.
Dated: May 29, 2025.
Christopher Abbott,
Deputy Assistant Secretary for Policy and Negotiations, performing the
non-exclusive functions and duties of the Assistant Secretary for
Enforcement and Compliance.
[FR Doc. 2025-10158 Filed 6-3-25; 8:45 am]
BILLING CODE 3510-DS-P