GDLSK: Grunfeld Desiderio Lebowitz Silverman & Klestadt LLP
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DOC Proposes Changes to its ADD/CVD Regulations, Including Assessing ADD/CVD Retroactively on Merchandise Subject to Scope and Anti-circumvention Inquiries

The U.S. Department of Commerce (DOC) has published proposed changes to its regulations governing antidumping duty (ADD) and countervailing duty (CVD) proceedings. Most significantly, DOC proposes to overhaul its scope Regulations so that its affirmative scope and anti-circumvention decisions would apply retroactively to all unliquidated entries – including shipments entered prior to the initiation of an inquiry, which often is before an importer is aware that its shipments are subject to ADD/CVD.

In comments to its proposal, the DOC recognizes the “potential unfairness to certain importers who genuinely may not be aware that their products are within the scope of an order until Commerce issues a ruling,” but then states that the DOC “cannot distinguish between importers with a genuine misunderstanding” and “bad actors.” This proposal stands to reverse hard-fought judicial victories, including those won by GDLSK, and has a suspect legal basis – particularly as to anti-circumvention inquiries.

Additional proposed changes relate to a variety of ADD/CVD topics.

  • Petition sufficiency: schedule for comments on industry support.
  • New shipper reviews (NSR): requirements to ensure exporters seeking NSRs have bona fide sales and entries subject to NSRs are accompanied by ADD/CVD cash deposits, consistent with the Enforce and Protect Act of 2015 (EAPA).
  • EAPA referrals: procedures for coordination with U.S. Customs and Border Protection (CBP) during EAPA investigations.
  • Certifications: authority to require certifications whether merchandise is subject to ADD/CVD and instruct CBP to collect ADD/CVD if such certifications are not filed or are found to be false/fraudulent.
  • Reimbursement certifications: modifying longstanding requirement that importers certify they are not being reimbursed for ADD/CVD (or else liability can be doubled) to allow electronic filing and acceptance through CBP protests.

GDLSK has prepared a detailed summary of these proposed regulations, which is available on request.

Comments on DOC’s proposals are due September 14. Please contact GDLSK if you are interested in filing comments, either in your name or anonymously.


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