[Federal Register Volume 76, Number 205 (Monday, October 24, 2011)]
[Pages 65694-65695]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-27459]



International Trade Administration

Non-Market Economy Antidumping Proceedings: Assessment of 
Antidumping Duties

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

ACTION: Notice of Policy Concerning Assessment of Antidumping Duties.


SUMMARY: After consideration of public comments, the Department of 
Commerce (``the Department'') is hereby adopting a refinement in its 
practice with respect to the rate at which it instructs U.S. Customs 
and Border Protection (``CBP'') to liquidate certain non-reviewed 
entries. Specifically, the Department is refining its practice to 
instruct CBP to liquidate such entries at the non-market economy 
(``NME'')-wide rate.

FOR FURTHER INFORMATION CONTACT: Julia Hancock, Special Assistant, 
China/NME Unit, Office of Antidumping and Countervailing Operations, 
Import Administration, U.S. Department of Commerce, at 202-482-1394.



    On June 10, 2011, the Department proposed a refinement to its 
practice regarding the rate at which it instructs CBP to liquidate 
certain entries from non-reviewed exporters. See Non-Market Economy 
Antidumping Proceedings: Assessment of Antidumping Duties, 76 FR 34046 
(June 10, 2011) (``Proposed Policy''). As explained in the Proposed 
Policy, in administrative reviews of antidumping duty (``AD'') orders 
covering merchandise produced in NME countries, importers will 
sometimes declare in their entry documentation a cash deposit rate that 
is associated with a company which has a company-specific rate, as 
opposed to the NME-wide rate, but the sales underlying the particular 
entry are not reported to or reviewed by the Department in the course 
of the administrative review covering that company. As a result, there 
may be suspended entries to which the Department's final review results 
do not apply. Previously, in such situations, it was the Department's 
practice to instruct CBP to assess AD duties at the cash deposit rate 
in effect at the time of entry for such entries of merchandise.
    In response to the Proposed Policy, the Department received 
comments from thirteen parties. After careful consideration of these 
comments, the Department has determined to implement the proposed 
refinement in practice. The Department will instruct CBP to apply the 
NME-wide rate to entries suspended at a reviewed exporter's rate, but 
which are not reported to or reviewed by the Department during the 
administrative review process. For further detail on what entries this 
policy affects, see the ``Applicability'' section below.

Final Refinement in Practice

    In AD proceedings, the Department establishes a cash deposit rate 
for each company subject to the investigation or review. In NME cases, 
if an exporter does not receive a separate rate, the NME-wide rate 
applies as the cash deposit rate at the time of entry to entries of 
merchandise it exports. Previously, for merchandise entered at the 
separate rate applicable to a reviewed exporter, but which were not 
reported to the Department in the review and thus not covered by the 
final results of the review, the Department instructed CBP to liquidate 
such entries at the cash deposit rate in effect at the time of entry.
    With the publication of this notice, the Department implements a 
policy refinement regarding the rate at which it will instruct CBP to 
liquidate such non-reviewed entries. For entries that are not reported 
in the reviewed company's U.S. sales databases submitted to the 
Department during an administrative review, or otherwise determined not 
covered by the review (i.e., the reviewed exporter claims no 
shipments), the Department will instruct CBP to liquidate such entries 
at the NME-wide rate as opposed to the company-specific rate declared 
by the importer at the time of entry.

[[Page 65695]]

    This practice in NME proceedings will be consistent with the 
application of the same liquidation practice in market economy (``ME'') 
proceedings. The goal of this practice in ME proceedings, the accurate 
assignment of duties based on information obtained in a review, is not 
unique to ME proceedings but is necessary in all antidumping 
proceedings. See Antidumping and Countervailing Duty Proceedings: 
Assessment of Antidumping Duties, 68 FR 23954 (May 6, 2003). Interested 
parties have the right to request an administrative review of their 
entries, or to participate in an administrative review, to ensure that 
the entries are liquidated at the rate the interested party believes is 
proper. See 19 CFR 351.103, et seq.


    The Department intends to apply the policy to all non-reviewed 
entries from exporters which are selected for individual examination, 
whether or not the Department is aware of the involvement of a third 
party. Additionally, if the Department determines that an exporter 
under review had no shipments of the subject merchandise, any suspended 
entries that entered under that exporter's case number (i.e., at that 
exporter's rate) will be liquidated at the NME-wide rate. See Magnesium 
Metal from the Russian Federation: Final Results of Antidumping Duty 
Administrative review, 75 FR 56989 (September 17, 2010). This 
refinement will not apply to entries suspended at the cash deposit rate 
for exporters for which a review is not initiated. Nor does this 
refinement apply to entries suspended at the rate of exporters under 
review but which are not selected for individual examination (i.e., the 
separate rate companies), except where the Department has determined 
that the exporter had no shipments covered by the review.

Definition of Exporter

    In response to the Proposed Policy, certain parties argued that the 
Department should clarify the term ``exporter'' for this refinement in 
practice to provide notice to the importers regarding which entity the 
importer should consider to be the exporter in a multi-leg transaction 
for the purpose of claiming the correct cash deposit rate and having 
the entry liquidated in accordance with that expectation. Because of 
the variances in commercial practice, it is the Department's 
established practice to evaluate an export transaction on a case-by-
case basis within the context of an administrative review or 
investigation. Within the framework of an administrative review, the 
Department is able to examine additional documentation to decide which 
entity was the exporter for purposes of making NME AD determinations.
    Because the importer is the party most likely to have the best 
information and appropriate documentation regarding the transactions 
relevant to the entries, the Department considers it to be the 
importer's responsibility to ensure that the documentation of the sales 
transaction supports the cash deposit rate the importer claims for its 
entries. In order to facilitate the proper identification of the 
exporter, the Department will coordinate with CBP to provide guidance 
to importers. Likewise, as explained above, any interested party can 
file a notice of appearance with the Department to ensure that its 
entries are liquidated in accordance with its expectations.


    As stated in the Proposed Policy, the Department intends to apply 
this policy to all entries for which the anniversary month for 
requesting an administrative review is the month after the date of 
publication of this final notice. See Proposed Policy. This 
implementation is consistent with our ME Reseller Practice and with the 
Federal Circuit's opinion in Parkdale Int'l v. United States, 475 F.3d 
1375, 1378-79 (CAFC 2007) (``the primary effect of the policy is 
prospective, i.e., it applies to liquidations post-dating its adoption, 
[accordingly] we conclude that its effect cannot properly be considered 
impermissibly retroactive''). Therefore, this policy refinement will 
apply to all relevant entries, regardless of when entered, for which 
the anniversary month for requesting a review of the order is November, 
2011 or later.

    Dated: October 17, 2011.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2011-27459 Filed 10-21-11; 8:45 am]