G/ADP/N/1/USA/1/Suppl.21  
G/SCM/N/1/USA/1/Suppl.21  
 
13 August 2015  
(15-4136)  Page: 1/4  
Committee on Anti-Dumping Practices 
Committee on Subsidies and Countervailing Measures  Original: English  
 
NOTIFICATION OF LAWS AND REGULATIONS  UNDER  
ARTICLES 18.5 AND 32.6 OF THE AGREEMENTS  
UNITED STATES 
Supplement 
The following communication, dated 10 August 2015, is being circulated at the request of the 
Delegation of the United States.  
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Pursuant to Article 32.6 of the Agreement on Subsidies and Countervailing Measures and Article 18.5 of the Agreement on Implementation of  Article VI of the General Agreement on Tariffs 
and Trade 1994, the United States hereby notifies: 
 Dates of Application of Amendments to the Antidumping and Countervailing Duty Laws Made by 
the Trade Preferences Extension Act of 2015, 80 Fed. Reg. 46793 (6 August 2015). 
 On 29 June 2015, President Obama signed into la w the Trade Preferences Extension Act of 2015. 
The Act provides a number of amendments to the antidumping duty and countervailing duty laws, 
but does not specify dates of application for thos e amendments. The United States is notifying the 
date of application for each statutory revision pertaining to the U.S. Department of Commerce. 
 
The rule is effective 6 August 2015. 
 [Federal Register Volume 80, Number 151 (Thursday, August 6, 2015)] 
[Rules and Regulations] 
[Pages 46793-46795] From the Federal Register Online via the Government Publishing Office [ http://www.gpo.gov/ ] 
[FR Doc No: 2015-19353] 
********** 
 DEPARTMENT OF COMMERCE 
 
International Trade Administration  
19 CFR Part 351 
 RIN 0625-AB04 [Docket No.: 150731663-5663-01] 
 
Dates of Application of Amendments to the Antidumping and Countervailing Duty Laws Made by the Trade Preferences Extension Act of 2015. 
 
AGENCY: Enforcement and Compliance, Internat ional Trade Administration, Department of 
Commerce. 
ACTION: Interpretive Rule; Notice of Determination. 
 
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  SUMMARY: On June 29, 2015, President Obama sign ed into law the Trade Preferences Extension 
Act of 2015. The Act provides a number of amendments to the antidumping duty (''AD'') and countervailing duty (''CVD'') laws but does not specify dates of application for those amendments. This notice of determination establishes a date of application for each statutory revision pertaining 
to the Department of Commerce and provides notice thereof to all interested parties to AD and 
CVD proceedings and to the public.  
DATES: The date of application of this interepretive rule is August 6, 2015. 
 FOR FURTHER INFORMATION CONTACT: Robert Heilferty, Deputy Chie f Counsel for Trade 
Enforcement and Compliance, U.S. Department of Commerce, 1401 Constitution Ave. NW., 
Washington, DC 20230, 202-482-0082. 
 SUPPLEMENTARY INFORMATION: 
 
Background  
The Trade Preferences Extension Act of 2015,  Public Law 114-27 (the ''Act'') provides 
five amendments to the AD and CVD laws: (1) Section 502 amends Section 776 of the Tariff Act of 1930, 19 U.S.C. 1677e, to modify the provisions addressing the selection and corroboration of 
certain information that may be used as facts ot herwise available with an adverse inference in 
an AD or CVD proceeding; (2) Section 503 amends Section 771(7) of the Tariff Act of 1930, 
19 U.S.C. 1677(7), to modify the definition of ''material injury'' in AD and CVD proceedings; 
(3) Section 504 amends Section 771(15) of the Tariff Act of 1930, 19 U.S.C. 1677(15), and 
Section 773 of the Tariff Act of 1930, 19 U.S.C. 1677b, to modify the definition of ''ordinary course 
of trade'' and the provisions governing the trea tment of a ''particular market situation'' in 
AD proceedings; (4) Section 505 amends Section 773(b)(2) of the Tariff Act of 1930, 
19 U.S.C. 1677b(b)(2), to modify the treatment of distorted prices or costs in AD proceedings; and 
(5) Section 506 amends Section 782(a) of the Tariff Act of 1930, 19 U.S.C. 1677m(a), to modify the provision regarding accepting voluntary respondents in AD and CVD proceedings.  
The Act does not contain dates of application for any of these amendments. As explained below, it 
would be impracticable for the Department to apply at least one of the amendments, Section 505, immediately, and extremely difficult to apply the others immediately.  
 
Accordingly, the Department is establishing dates of application for each section, except for Section 503 (which relates to determinations of material injury by the U.S. International Trade 
Commission). 
 As an initial matter, we are cognizant of the Supreme Court's ruling in Landgraf v. USI Film Prods., 511 U.S. 244 (1994), that, absent clear Congressional intent that a statute be applied 
retroactively, a statute may not attach new lega l consequences to events completed before its 
enactment. Landgraf, 511 U.S. at 280; see also , AT&T Corp. v. Hulteen, 556 U.S. 701 (2009). In 
determining whether the Landgraf prohibition has been breached, important considerations are 
whether the new law takes away or impairs vested rights or creates new obligations, imposes a 
new duty, or attaches a new disability in respect to transactions or considerations already past. Landgraf, 511 U.S. at 269. Another important consideration is whether the prior provision 
was reasonably relied upon, so that application of the new provision would be manifestly unfair. 
INS v. St. Cyr, 533 U.S. 289 (2001).  In considering whether application of the amended statutes to merchandise entered into the 
United States before the passage of the Act would disturb vested rights, create new obligations or 
upset a reasonable reliance, our starting point is the holding of the Supreme Court in Buttfield v. Stranahan, 192 U.S. 470, 493 (1904), that "no individual has a vested right to trade with foreign 
nations. ...'' and that importing merchandise is no t a fundamental right that is protected by other 
constitutional privileges such as due process. See also NEC Corp. v. United States, 151 F.3d 1361, 1369 (Fed. Cir. 1998). More specifically, the Supreme Court held in Norwegian Nitrogen 
Products Co. v. United States, 288 U.S. 294, 318 (1933), that no party has a legal right to a 
particular rate of duty.  It follows that, even assuming that one or more  of the Act's amendments were to result in a 
higher rate of duty being applied to imported merchandise than otherwise would have been G/ADP/N/1/USA/1/Suppl.21 • G/SCM/N/1/USA/1/Suppl.21 
 
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  applied, application of that higher rate would not disturb a vested right, attach a new disability to 
transactions or considerations already past, or upset any legitimate expectation. In other words, the Act does not attach any "new'' legal consequences to past events, because those events had no settled legal consequences to begin with and,  therefore, created no legitimate expectations 
concerning duty rates. As the Court of Appeals fo r the Federal Circuit ("Federal Circuit'') recently 
observed in GPX Int'l Tire Corp. v. United States, 780 F.3d 1136, 1144 (Fed. Cir. 2015) "[a]lthough trade duties are forward-looking in part, the government also has a clear interest in 
fashioning a remedy for damaging past acts, 'level[ing] the playing field for particular American 
manufacturers,' and 'remedy[ing] the harm American manufacturers and their workers experience as a result of unfair trade practices' '' (quoting Guangdong Wireking Housewares & Hardware Co. v. United States, 745 F.3d 1194, 1206 (Fed. Cir. 2014)). 
 
Other decisions of the Federal Circuit are in accord. In Parkdale Int'l v. United States, 475 F.3d 1375 (Fed. Cir. 2007), the Federal Circuit ruled that the application of the Department's new policy 
for resellers sales that preceded the announcement of that change in policy was not impermissibly 
retroactive. The Federal Circuit based its decision primarily on the fact that, under the U.S. system of duty assessment, final duty liability is not set until the entries of the imported merchandise are 
liquidated, which is often many years after the date of entry. See, e.g., 19 U.S.C. 1675(a)(2)(C). 
Thus, importers bring goods into the United States with full knowledge that the rates of estimated duties deposited with U.S. Customs and Border Protection upon importation may change. In Travenol Labs., Inc. v. United States, 118 F.3d 749, 753-54 (Fed. Cir. 1997), the Federal Circuit 
ruled that the application of an amendment to customs law that changed the time period in which 
interest was calculated for overpayment of duties to goods that entered the United States prior to enactment of the law was not impermissibly retroactive. 
 
Many decisions of the Court of International Trade agree. In GPX Int'l Tire Corp. v. United States, 
893 F. Supp. 2d 1296, 1314 (Ct. Int'l. Trade 2013), th e court observed that "customs duties are to 
an extent unique from other government assessments in that there is no right to import, and 
where unfair trade remedies apply those with goods that may be imported rarely can predict with accuracy what the duty will be [referencing Norw egian Nitrogen Prods. Co. v. United States, 288 
U.S. 294, 318 (1933)]. For example, when goods beco me the subject of an AD/CVD investigation, 
liquidation is suspended while the initial investigation is undertaken, and generally while a review 
is conducted, prior to a final rate determinat ion and duty assessment. See Parkdale Int'l v. 
United States, 475 F.3d 1375, 1376-77 (Fed. Cir. 2007).'' Similarly, in Yamani Fishing Net Co. v. 
United States, 830 F. Supp. 1502, 1507 (Ct. Int'l Tr ade 1993), the Court ruled that the application 
of a new regulation creating additional requirements for the submission of information to Commerce to a segment of an AD proceeding initiate d before the promulgation of that regulation 
was not impermissibly retroactive. 
 Based on these precedents, we have determined that implementing these statutory amendments immediately, including to merchandise which entered into the United States before the passage of 
the Act, would not be impermissibly retroactive. In determining dates of application, therefore, we 
have been guided by Congress's intention that each amendment be implemented as soon as practicably possible. Accordingly, we have determined the earliest date at which each amendment 
practicably could be implemented and established th at date as the date of application of that 
p a r t i c u l a r  r e v i s i o n  t o  t h e  s t a t u t e .  T h i s  a p p r o a c h  results in individual dates of application for 
different provisions of the Act, as explained below. 
 
Section 502 of the Act amends Section 776 of the Tariff Act of 1930, 19 U.S.C. 1677e, to revise the provisions addressing the selection and corroboration of certain information that may be used as an adverse inference in applying facts available in an AD or CVD proceeding. These 
amendments provide that the Department may rely  on, and is not required to adjust, certain 
information used as an adverse inference in applyi ng facts available in an AD or CVD proceeding. 
They do not impose any new requirements on the parties to such proceedings that would require 
them to submit additional information or argument. Accordingly, we will apply this provision to 
determinations made on or after August 6, 2015.  
We note that Section 502 provides that, in making  AD and CVD determinations on the basis of the 
facts available, the Department is not required to corroborate, in certain circumstances, the information employed, to make certain estimates or demonstrations concerning that information, or to address certain claims regarding the "alleged commercial reality'' of non-cooperating parties. 
Because this section addresses the Department's discretion and, thus, does not require the G/ADP/N/1/USA/1/Suppl.21 • G/SCM/N/1/USA/1/Suppl.21 
 
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  Department to take any specific actions with respect to facts available determinations, it will be 
applied to determinations made on or after Au gust 6, 2015. Although the amendment does not 
interfere with the operation of 19 CFR 351.308(d), the Department intends to consider whether to amend that regulation as a result of the amendment to the statute. 
 
Section 504 of the Act amends Sections 771(15) of the Tariff Act of 1930, 19 U.S.C. 1677(15), and Section 773 of the Tariff Act of 1930, 19 U.S.C. 1677b, to modify the definition of "ordinary course 
of trade'' and the provisions governing the trea tment of a "particular market situation'' in 
AD proceedings. Because this section codifies the Department's discretion and does not require the Department to take any action with respect to particular market situations, we will apply this provision to determinations made on or after August 6, 2015. The Department's regulation, 
19 CFR 351.301(c)(2)(i), establishes a deadline for "particular market situation'' allegations of 
"10 days after the respondent interested party files the response to the relevant section of the questionnaire, unless the Secretary alters this time limit.'' The amendment does not require the 
alteration of this deadline, and so the re gulation will continue to apply as before. 
 Section 505 of the Act amends Section 773(b)(2) of the Tariff Act of 1930, 19 U.S.C. 1677b(b)(2), 
to modify the treatment of distorted prices or costs in AD proceedings. It has two parts. Under the 
first part of the amendment of Section 773(b)(2) of the Tariff Act of 1930, 19 U.S.C. 1677b(b)(2), 
the Department will request constructed value and cost of production information from respondent companies in all AD proceedings. The Department recognizes that it can cannot ask for such 
information in ongoing proceedings in which the time for doing so has passed. Accordingly, the 
Department will apply the new law to determinations in which the complete initial questionnaire has not been issued as of August 6, 2015. 
 
The second part of Section 505 amends Section 773(c)(5) of the Tariff Act of 1930, 19 U.S.C. 1673b(c)(5), to permit the Department to disregard price or cost values without further 
investigation if it has determined that certain subsidies have existed with respect to those values, 
or if those price or cost values were subject to an AD order. This amendment clarifies the 
Department's authority for its existing practice, and does not impose any new requirements on the parties to AD proceedings that would require them  to submit additional information or argument. 
Accordingly, we will apply this provision to determinations made on or after August 6, 2015. 
 Section 506 of the Act amends Section 782(a) of the Tariff Act of 1930, 19 U.S.C. 1677m(a), to 
identify the factors that the Department may take into account in determining whether accepting 
voluntary responses would be unduly burdensome. This amendment compliments the Department's voluntary respondent analysis and does not require parties to AD and CVD 
proceedings to submit additional information or argument. Accordingly, we will apply this provision 
to determinations made on or after August 6, 2015.  Classification 
 
Pursuant to 5 U.S.C. 553(b)(A), notice and comment are not required for this rule because its intent is to interpret the Trade Preferences Ex tension Act to apply as explained above and to 
provide notice to the public. This interpretation is meant to lend clarity to the statutory terms and 
will reduce or eliminate any possible confusion about the application of the Act without creating any new law, rights or duties. See General Mo tors Corp. v. Ruckelshaus, 742 F.2d 1561, 1565 
(D.C. Cir. 1984) (en banc) (finding that EPA's rule  was interpretive because "the agency regarded 
its rule as interpretive''; "[its] entire justification for the rule is comprised of reasoned statutory interpretation, with reference to the language, purpose and legislative history of the [provision]''; and "most importantly, the rule did not create an y new rights or duties ...''). Because notice and 
an opportunity for comment are not required, no regulatory flexibility analysis is required and none 
has been prepared. The rule has been determined to be not significant for purposes of Executive 
Order 12866. 
 
Dated: July 31, 2015. Ronald K. Lorentzen 
Acting Assistant Secretary for Enforcement and Compliance. 
[FR Doc. 2015-19353 Filed 8-5-15; 8:45 am] BILLING CODE 3510-DS-P  
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