Current List of AD/CV Cases that Cannot Use Bonds in Lieu of Cash Before Order

(The International Trade Administration issued a final rule on October 3, 2011 that modified its antidumping and countervailing duty regulations under 19 CFR Part 351 so that the posting of AD and CV duty cash deposits is the normal¹ provisional measure used from the date of the affirmative preliminary determination until the AD or CV order’s effective date² (once the order is issued, only cash deposits are allowed). The posting of bonds is no longer allowed during the provisional measures³ period.)

Change Effective for AD/CV Petitions Filed on/after Nov 2

This change was effective on November 2, 2011, and applies to all investigations initiated on the basis of petitions filed on or after that date.⁴ As a result, the posting of bonds will not be allowed during the upcoming provisional measures period of the following currently initiated AD and CV duty investigations:

*The ITA can act to extend these deadlines, as they have not yet been fully postponed.

⁺These deadlines have been fully extended.

(The option to post bonds in lieu of cash deposits will still be available for the following cases with upcoming preliminary determinations that were initiated on the basis of petitions filed before that date: China solar cells AD/CV (A-570-979 & C-570-980); India steel pipe AD/CV (A-533-852 & C-533-853); Oman steel pipe AD/CV (A-523-801 & C-523-802); UAE steel pipe AD/CV (A-520-805 & C-520-806); and Vietnam steel pipe AD/CV (A-552-811 & C-552-810). Note that bonds will not be able to be posted in lieu of cash deposits should the ITA initiate an investigation on the basis of the petition received for stainless steel sinks from China, which is currently in the pre-initiation stage of petition review for industry support.)

Cash Deposits Better Ensure Importers Pay AD/CV Duties Owed

According to ITA, this requirement to post a cash deposit better ensures that importers bear full responsibility for any AD or CV duties they may ultimately owe, as the ITA and U.S. Customs and Border Protection (CBP) have learned from the agencies' extensive experience in the administration of AD and CV law.

If the margin calculated for the final determination ends up lower than the margin calculated at the preliminary determination, the difference is refunded to the importer. However, if the margin calculated for the final determination is higher than the margin calculated at the preliminary determination, the difference is disregarded and not charged (according to current regulations on provisional measures).

(The ITA notes that the provisional measures period lasts, at most, six months, which is a relatively short period in the context of AD or CV proceedings. Furthermore, importers receive the cash deposit back in full if the imports at issue are not dumped or found to have benefited from a CV subsidy (or if the International Trade Commission makes a final finding of no injury).)

Change Supports the National Export Initiative

ITA also states that this final rule was one of the proposals it issued along with others to strengthen the agency's administration of AD and CV laws, in support of the President's National Export Initiative (NEI). It will help to ensure the U.S. Government collects the full amount of the duties owed should an investigation result in the imposition of an AD or CV order. (See ITT's Online Archives 10082711 for summary of 14 proposed changes to further NEI.)

Prior Regs Allowed Either Cash Deposits or Bonds

For investigations initiated on the basis of petitions filed under the prior regulations, ITA states in its AD and CV notices (and CBP states in its messages), that either the posting of a bond or payment of a cash deposit is allowed until the effective date of the order. (Once the order is in effect, only cash deposits are allowed.)

¹In the preamble, the ITA states that the use of the term "normal" provides it flexibility to address those rare and unusual circumstances that the ITA may find warrant the acceptance of bonds.

²The effective date of the AD or CV order is generally the date that the International Trade Commission's final affirmative injury determination is published in the Federal Register.

³Provisional measures are imposed from the date of the preliminary affirmative determination to ensure payment from that date forward, should AD or CV duties be finalized by an order (note that there can be a "gap period" between the preliminary determination and an order, where there is no AD/CV liability or cash deposit requirement, if the statutory time limit for conducting the investigation expires). If critical circumstances are found by ITA, then cash deposits are also collected retroactively on entries on or after the latter of (a) 90 days before suspension of liquidation, or (b) the initiation date of the investigation.

⁴ITA states that this final rule does not affect the bonding option allowed during the pendency of new shipper reviews, which is required by statute.

⁵Dates are approximate. The deadlines for the preliminary determinations in the three CV cases referenced in the table have all been fully extended, and therefore cannot be further postponed by the ITA. The deadlines for the preliminary results in the six antidumping proceedings referenced have not yet been extended, and may yet be postponed by the ITA. (See ITT's Online Archives 12030817 (C-570-982), 12030716 (C-552-813), and 12030615 (C-580-869) for summaries of ITA postponements in full of preliminary determinations in the three CV cases referenced above.)

(See ITT's Online Archives 11100305 for summary of the final rule. See ITT’s Online Archives 11042631 for summary of the proposed rule.)