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Importers: New Commerce Regulations Governing AD & CVD Cases Are Now In Effect

In recent months, new and modified Department of Commerce regulations impacting antidumping (AD) and countervailing duty (CVD) proceedings have taken effect. These changes, which are intended “to strengthen and improve the administration and enforcement of the AD/CVD laws,” will have a significant impact on participants in AD/CVD proceedings.
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This alert provides a summary of the changes to Commerce’s regulations and implications for importers of products within the scope of AD/CVD orders. 

New Schedule for Comments on Industry Support for a Petition

The new regulations (19 C.F.R. § 351.203(g)), effective October 20, 2021, do not alter the substantive requirements for filing a petition nor Commerce’s process for determining the sufficiency of a petition, including the determination that a petition is supported by the domestic industry.  

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Changes to Commerce’s “New Shipper” Policy and Procedure for Obtaining an Individual AD or CVD Rate

Amended regulation (19 C.F.R. § 351.214) effective October 20, 2021 addresses how Commerce will decide whether to grant a new shipper review. 

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The Scope of the Order: What To Expect in Commerce’s New Regulations

The updated regulation (19 C.F.R. § 351.225) is effective November 4, 2021 and addresses procedures for Commerce’s inquiries into whether certain products are covered by the scope of AD/CVD orders and, thus, subject to additional duties.

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New Regulations Highlight Importance of Anti-circumvention Inquiries

New regulation (19 C.F.R. § 351.226) effective November 4, 2021 governs anti-circumvention inquiries which were previously part of the scope ruling regulations (19 C.F.R. § 351.225).

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New Regulation Tackles EAPA “Covered Merchandise Referrals”

New regulation (19 C.F.R. § 351.227), effective November 4, 2021 addresses procedures for the Department of Commerce’s consideration of “covered merchandise referrals” from U.S. Customs and Border Protection (CBP) pursuant to investigations under the Enforce and Protect Act of 201 (EAPA). 

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Commerce Codifies Its Certification Practice 

New regulation (19 C.F.R. § 351.228), effective October 20, 2021 codifies Commerce’s existing practice to require importers and other interested parties to comply with certification requirements in the context of AD/CVD proceedings and the consequences for a party’s noncompliance.

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Revised Regulation Streamlines “Importer Reimbursement Certification” To Conform With CBP Practice

Effective October 20, 2021, Commerce revised its regulation (19 C.F.R. 351.402(f)(2)) to include a new requirement that importers certify whether or not the importer has entered into an agreement for the payment or reimbursement of AD/CVD duties by the exporter or producer.

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New “Service List” and “Appearance” Rules Dismantle Barriers for Requesting Parties

New regulations (19 C.F.R. §§ 351.103, 351.305(d), 351.225(n), 351.226(n)) effective November 4, 2021 will address how Commerce serves notice of its administrative proceedings to interested parties and provides access to Business Proprietary Information (BPI).

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