NOTIFICATION OF LAWS AND REGULATIONS UNDER
ARTICLES 18.5 AND 32.6 OF THE AGREEMENTS
Questions posed by China
regarding the notification of the United States
The following communication, dated and received on 4 April 2022, is being circulated at the request of the delegation of China.
China thanks the United States for its notifications regarding its regulations to improve administration and enforcement of anti‑dumping and countervailing duty laws (G/ADP/N/1/USA/1/Suppl.31 ‑ G/SCM/N/1/USA/1/Suppl.32), and poses the following questions:
The new regulation makes bona fide sales a prerequisite of applying for new shipper review under 351.214(b)(1), and lists the specific requirements under 351.24(k).
a) How could the new shippers who did not participate in previous proceedings and suffer the very high punitive rate meet the bona fide requirement?
b) Does the requirement of bona fide sales have only paper value rather than real commercial value? How does the United States evaluate bona fide sales in real business scenario when there is very high rate?
c) How does the United State reconcile its regulation with the WTO obligation so as not to impose extra burden to the exporters that should be entitled the new shipper status under the WTO rules?
The new regulation requires an interested party, when applying for scope inquiry, to have a product which is or has been in actual production by the time of the filing of the application under section 351.225(c).
Please clarify whether a company, having finished designing a new product and having the sample of such product at hand, qualify for the application of scope inquiry. How does the United States define the term "is or has been in actual production"?
The new regulation lays out the time point for the suspension of liquidation and commencement for the collection of cash deposit of estimated AD and/or CVD duties in scope ruling and anti‑circumvention investigation respectively under section 351.225(l)(2) and 351.226(l)(2) and authorizes the investigating authority to collect cash deposit retrospectively.
a) Please explain whether the retrospective collection of cash deposit prior to the initiation of the scope inquiry or the anti‑circumvention investigation is inconsistent with the domestic court ruling of the United States in the case TRANS TEXAS TIRE, LLC and ZHEJIANG JINGU COMPANY v. UNITED STATES.
b) Please explain how could the exporters who reasonably believed their products to be outside of the scope of the order to avoid ultimately paying for the punitive country‑wide rate only because they had no chance to apply for a separate rate as if they had participated in the original AD or CVD investigation at the beginning.
The new regulation delegates the USDOC to initiate anti‑circumvention investigation at request under section 351.226, but does not require for the standing of the request, domestic support or the size of this applicant.
Please explain the consideration and rationale of why the initiation of anti‑circumvention does not require domestic support as it does for the initiation of AD and CVD investigation.
The new regulation may apply the determination on a country‑wide basis to all products from the same country regardless of producers, exporters or importers.
a) Please explain the rationale of sampling in anti‑circumvention cases and clarify the legal consequences for those companies that didn't circumvent the AD or CVD order but are not selected as mandatory respondent.
b) How would the USDOC determine whether the rest of the companies in the investigated country had actually circumvented or not when one of the two selected respondents found to be circumventing and the other one not.
c) Please clarify the legal consequences for the companies found to be circumventing. Shall they pay the cash deposit determined in the original investigation? Which rates will be applied for them?
The new regulation lays out the procedure for covered merchandise referrals, authoring the United States' Customs to refer any unresolved covered merchandise issue to the USDOC to make a determination under section 351.227.
a) Please clarify whether it is the discretion of the US Customs to initiate scope inquiry and determine the scope order on its own.
b) When an interested party does not agree with the determination made by the US Customs, will it be given a chance to request the US Customs to refer the issue to USDOC?
c) Where will the United States publish all the case tables regarding EAPA cases？Will the case information be published online, for example, in ACCESS system or EDIS system, so as to enable the interested parties and their legal representatives to be informed of the latest progress and information?
 G/ADP/N/1/USA/1/Suppl.31 ‑ G/SCM/N/1/USA/1/Suppl.32