ITA Seeks Comments on Changing its Separate Rates Practice for AD Proceedings Involving NMEs
The International Trade Administration (ITA) has issued a notice seeking comments by June 1, 2004 on possible changes to its policies and practices with regard to certain firms within a non-market economy country (NME) seeking a rate separate from the single, country-wide rate in antidumping (AD) proceedings (e.g. investigations or reviews).
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ITA states that subject firms requesting a separate rate must demonstrate an absence of both de jure ("as a matter of law") and de facto ("as a matter of conduct or practice not founded upon law") government control over their export activities.
In addition, subject firms must not be "mandatory respondents" in the proceeding and must have exported the subject merchandise to the U.S. during the period of investigation or review.
Changes to Separate Rates Policy Could Affect "Section A" & "Voluntary Respondents"
According to ITA sources, the possible changes under consideration regarding its "Separate Rates Practice" could affect:
Section A respondents. "Section A" respondents are those non-investigated/non-reviewed firms which request a separate rate and submit only "Section A" of the ITA's NME questionnaire. If the ITA determines that a separate rate is warranted, it will assign one that is the weighted-average of the rates of the "mandatory respondents," excluding any "mandatory respondent" rates that were zero, de minimis, or based entirely on facts available.
Voluntary respondents. "Voluntary respondents" fill out the entire NME questionnaire. If a "mandatory respondent" pulls out of the AD proceedings, a "voluntary respondent" will take its place and be eligible for an individually calculated rate. However, if a "voluntary respondent" is not incorporated into the AD proceedings in this manner, but the ITA determines that a separate rate is warranted, they will (like "Section A" respondents) receive a separate rate based on the above-described weighted-average.
Concerns Over Number of "Section A" Requests & ITA's Methodology
According to sources, the ITA is considering changing its practice with respect to "Section A" respondents and those "voluntary respondents" that receive a separate rate based on the above-described weighted average.
The ITA has received increasing numbers of requests for separate rates from "Section A" respondents in recent years and is facing an exceptionally large number of such requests in two ongoing investigations (e.g. wooden bedroom furniture from China and certain frozen and canned warmwater shrimp from Brazil, China, Ecuador, India, Thailand, and Vietnam). The ITA explains that there are concerns that it lacks the resources to evaluate the typically large number of "Section A" respondents which request a separate rate.
In addition, there are concerns that, independent of the number of separate rate requests the ITA receives in any given case, current implementation of the separate rates test may not offer the most effective means of determining whether exporters act, de facto, independently of the government in their export activities.
Highlights of ITA's Questions Regarding Possible Changes to its Separate Rates Practice
The ITA states that it is seeking responses to the following questions regarding possible changes to its Separate Rates Practice (partial list):
Is "Section A" of the NME questionnaire sufficiently detailed to allow the ITA to make complete, accurate, and informed determinations regarding exporters' eligibility for separate rates? If not, what would you recommend that the ITA change with respect to its section A questionnaire?
Due to the number of possible "Section A" respondents in many cases and the ITA's resource constraints, should ITA establish a process whereby exporters seeking a separate rate must prepare a request and satisfy established requirements before the ITA seeks additional information through the questionnaire process? What requirements would you recommend the ITA establish?
Should the ITA extend its separate-rates analysis to exporter-producer combinations, i.e. should the ITA consider any government control exercised on an exporter through a producer?
- written comments due by June 1, 2004
ITA Contact - Lawrence Norton (202) 482-1579
ITA Notice (FR Pub 05/03/04) available athttp://a257.g.akamaitech.net/7/257/2422/14mar20010800/edocket.access.gpo.gov/2004/pdf/04-9999.pdf