Today the U.S. Department of Commerce (Commerce) published a notice requesting public comment on two potential amendments to its antidumping (AD) and countervailing duty (CVD) regulations. First, Commerce proposes to codify a policy for assigning dumping rates applicable to unaffiliated intermediaries for which an AD administrative review was not requested. Substantively, Commerce is considering its current policy of liquidating the intermediary’s review period (POR) entries at the “all others” rate from the original AD investigation, as well as an alternative proposal to liquidate such entries at the higher of the AD investigation “all others” rate or a company-specific POR rate calculated for the producer of the exported merchandise. Second, Commerce is considering substantially modifying or removing the option for companies not selected as mandatory respondents in a CVD investigation to undergo “expedited reviews” that can be used to exclude the company from the CVD Order. Commerce has requested comments by July 7, 2025.
Unaffiliated Reseller Policy
Since 2003, in market economy AD administrative reviews, if (i) Commerce reviews a producer of subject merchandise, (ii) there was an unaffiliated intermediary (e.g., a reseller, trading company, or exporter) that exported the producer’s subject merchandise to the United States during the POR, (iii) Commerce does not review the unaffiliated intermediary, and (iv) the reviewed producer was unaware that the reseller’s exports were destined for the United States, Commerce’s policy has been that the intermediary’s POR entries of subject merchandise would be liquidated at the all-others rate determined in the underlying AD investigation.
Commerce intended this policy to incentivize intermediaries to request administrative reviews to obtain their own specific rates. Otherwise, Commerce feared, intermediaries could “margin shop” by waiting until the completion of an administrative review “to determine whether the producer’s rate determined in the review or the all-others rate is more favorable.”
Commerce is now seeking to codify its practice for such scenarios. Today’s notice seeks public comment on whether and how it should modify its unaffiliated reseller practice. Specifically, for the scenario described above, Commerce is considering whether to continue its existing practice of assigning the intermediary the “all others” rate determined in the AD investigation, or adopt a new practice of assigning the higher of the “all others” rate determined in the AD investigation or the company-specific administrative review rate calculated for the producer of the merchandise exported by the intermediary. If adopted, this practice would be expected to result in higher rates for such intermediary exporters of subject merchandise, and at a minimum increases rate-related uncertainty.
Echoing the stated purpose underlying Commerce’s 2003 policy, Commerce’s notice asserts that applying the “higher of” the examined producer’s rate or the all-others investigation rate could incentivize unaffiliated intermediaries to request administrative reviews of their own merchandise and receive individual rates, rather than presuming that their merchandise would necessarily benefit from a potentially low (or at least stable) all-others rate. Put differently, Commerce views it as a further step toward enhancing AD enforcement by preventing “gaming” the trade remedy laws through “margin shopping.”
Expedited CVD Reviews
Since 1997, Commerce’s regulations have permitted exporters that the Secretary did not select for individual examination or that the Secretary did not accept as a voluntary respondent to request an expedited review shortly after the publication of a CVD Order. This procedure is not, however, expressly provided for in the CVD statute. Rather, Commerce promulgated this regulation and created this procedure intending to conform with Article 19.3 of the World Trade Organization’s Agreement on Subsidies and Countervailing Measures (SCM Agreement).
In 2019, certain domestic producers challenged the CVD expedited review regulation in court, arguing that it is unlawful. Ultimately, in 2023, the U.S. Court of Appeals for the Federal Circuit (CAFC) held that the “individualized-determination provisions” of 19 U.S.C. § 1677f-1(e) and the “regulatory-implementation authority” of 19 U.S.C. § 3513(a) provided Commerce with the authority to implement the CVD expedited review process. Commerce characterizes the CAFC as having “held that the expedited review provision was not the only means by which Commerce could bring United States obligations into accordance with the SCM Agreement.”
Commerce observes that it has conducted only a “limited number” of CVD expedited reviews over the regulation’s lifetime and characterizes the reviews as “requir[ing] an inordinate amount of agency time and resources” due to the “truncated timeline and . . . numerous exporters and producers” covered. Given this, and Commerce’s view that it is not statutorily required to provide expedited CVD reviews, it is considering removing or significantly modifying the regulation.
At a minimum, it appears that Commerce is seeking proposals for how to reduce the administrative burden associated with CVD expedited reviews, such as making the expedited review process discretionary or requiring complete initial questionnaire responses for all requests. On the other end of the spectrum, Commerce mentions “alternative opportunities to request an individual-company subsidy rate, such as participating as a voluntary respondent in investigations, requesting a new shipper review, requesting an administrative review, or participating as a voluntary respondent in administrative reviews.” This seems to indicate a view that these alternative procedures could provide relief similar to a CVD expedited review. Notably, however, for exporters active at the time a CVD order is put in place, obtaining a de minimis company-specific rate in an original investigation is the only “alternative opportunity” that would exclude the exporter from a CVD order. Companies with an interest in how Commerce approaches this issue in future proceedings might consider submitting comments.
Next Steps
Commerce’s notice establishes a deadline of July 7, 2025. Interested parties may submit comments online via regulations.gov (Docket No. ITA-2025-0003).
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