Industry News

Proposed Changes to New Shipper Reviews, Other AD and CVD Regulations

Aug. 31, 2020
By: Meaghan E. Vander Schaaf


On August 13, 2020, the U.S. Department of Commerce announced in a Federal Register notice a proposal to make important changes to the antidumping (AD) and countervailing duty (CD) regulations. Other BRC articles have covered the proposed changes to Scope Rulings (351.225), Circumvention Inquiries (proposed 351.226), and Covered Merchandise Referrals (proposed 351.227). This article discusses the proposed changes to:

  • New shipper reviews (Modifications to Section 351.214)
  • Certification Requirements (Proposed Section 351.228)
  • Importer (non)reimbursement certification regulations (Modifications to Section 351.402)

Commerce requests comments on the proposed changes be submitted by September 14, 2020.

New Shipper Reviews

Under the proposal, Commerce will revise numerous provisions in section 351.214 concerning New Shipper Reviews. First, the proposed regulations would conform the regulations to the law and allow only cash deposits to cover AD/CVD collections during New Shipper Reviews. Previously new shippers could post a bond or security. Second, the proposed regulations would establish parameters for “bona fide” sales and require that shippers seeking New Shipper reviews be able to show that they have bona fide sales. This is intended to prevent shippers from having transactions reviewed that have atypical data, the use of which leads to artificially low AD/CVD duties. Finally, the proposed modifications also expand Commerce’s ability to rescind a new shipper review.

Out-of-Scope Certification Requirements

Commerce’s proposal includes a new section 351.228, which expands and codifies Commerce’s ability to require certifications that imports are not subject to AD/CVD in some cases. Such certifications have often been required in suspension and circumvention cases in the past. These are not certificates of reimbursement, which are always required for subject merchandise. The revised regulation clarifies Commerce’s authority to require certifications, and the consequences of failure to file a required certification. It may also be the case that the regulation will assist Customs enforcement by adding an explicit regulatory basis for requiring AD/CVD certifications to be treated as material statement at entry.

Importer (Non)Reimbursement Certification

Commerce proposes changes to the filing requirements for certificates that importers have not been reimbursed for AD duties. Confusingly, the certificate is sometimes called a Reimbursement Certificate, but also sometimes called a Non-Reimbursement Certificate. In any case, Commerce proposes to modify section 351.402(f)(2) to clarify that for all entries subject to AD duties, the importer must file a (non)reimbursement certification in either electronic or paper form in accordance with Customs’ requirements. Additionally, Commerce proposes removal of specific certification language, and importers will be able to certify the substance of the certification. Although such certification is required prior to liquidation, Commerce also proposes to clarify that CBP may also accept the reimbursement certification in accordance with its protest procedures under 19 U.S.C. 1514.

 

Contact any Barnes, Richardson & Colburn attorney if you have questions about the proposed changes or if you are considering making a formal comment on the proposal.