ITA Provisionally Decides to Replace "Section A" Questionnaires for Non-Investigated Firms With an Application Process (for AD Proceedings Involving NMEs)

(The ITA's separate rates practice refers to its policy in AD proceedings of presuming that all firms within a NME country are subject to government control and thus should all be assigned a single, country-wide rate unless a respondent can 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") control over its export activities.)

(See ITT's Online Archives or ITT's 05/06/04 and 09/23/04 news, 04050630 and 04092330, for BP summaries of the ITA's previous notices.)

The ITA has now issued a December 28, 2004 notice regarding certain decisions it has made with respect to its separate rates practice in AD proceedings involving NMEs.

This is Part I of a two-part series of summaries on the ITA notice and focuses on the ITA's provisional determination to adopt an application process for separate rate requests. See future issues of ITT for Part 2, which will focus on the ITA's proposal to introduce combination rates in all of its NME cases.

ITA Provisionally Decides to Shift from a "Section A" Questionnaire to an Application Process for Non-Investigated Firms

The ITA states that it has provisionally decided to change its separate rates procedure for non-investigated firms that request a separate rate from a process in which an exporter fills out a Section A questionnaire to an application process.

According to the ITA, the application does not alter the standard for evaluating whether an applicant is subject to de jure or de facto government control. Rather, by drawing on the experiences of the recent NME investigations and interested parties' comments, the application process should be more straightforward and thorough while saving both the ITA and applicants time and resources. In particular, by explicitly detailing which documents the ITA will accept to substantiate a separate rates claim, the application should minimize the need for the extensive supplemental questionnaires that have proven to be burdensome and time-consuming.

The ITA states that exporters that it selects as mandatory respondents will continue to respond to the entire questionnaire, including Section A, but Section A will be updated to conform with what is included in the application. The ITA states that it expects that it would be modified, on a case-by-case basis, depending on the NME under investigation.

The draft application ("Office of AD Enforcement Separate-Rate Application and Required Supporting Documentation") can be found at http://ia.ita.doc.gov, under "Highlights and News."

The ITA states that the proposed application and application process are not finalized and are subject to modification, and notes that the current draft is based on a China investigation. Furthermore, the ITA has not made a final decision with respect to the draft application. The ITA states that its position with respect to these and other issues will be finalized after it has analyzed the comments it will receive in response to this notice.

According to the ITA, the application requires firms to certify their eligibility for a separate rate, and it lists documents that respondents must submit in order to substantiate these certifications. Furthermore, the ITA states that it has incorporated questions not addressed currently in its standard NME Section A questionnaire that are pertinent to separate rates eligibility, and welcomes further suggestions in this area.

Incomplete applications will be rejected. Because the application is clear about what is required, the ITA states that it will reject incomplete applications without issuing supplemental questionnaires.

Application to be available for printing on ITA Web site. To streamline the process further, the application will be available for printing on the Import Administration Web site, so that firms that have not received paper copies of the application will be aware of the application, its requirements, and deadline for submission.

ITA may consider electronic application filing in the future. The ITA may consider in the future requiring firms to submit the application electronically, but this is not the case at the current time, and firms will be expected to submit their separate rates application in the same way they currently file any documents with the ITA.

- written comments due by January 24, 2005

ITA notice (FR Pub 12/28/04) available at

http://a257.g.akamaitech.net/7/257/2422/06jun20041800/edocket.access.gpo.gov/2004/pdf/04-28324.pdf.