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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 20 September 2021 and received  on 21 September 2021, is 
being circulated at the request of the delegation of the United States.  
 
_______________  
 
 
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:  
Regulations To Improve Administration and Enforcement of Antidumping  and Countervailing Duty 
Laws; Final Rule , 86 Fed. Reg. 52300 (Sept. 20,  2021)  
This rule amends regulations to improve administration and enforcement of the antidumping duty 
(AD) and countervailing duty (CVD) laws. Specifically, the U.S. Department of Commerce 
(Commerce) is modifying its regulation concerning the time for submission of comments pertaining 
to industry support in AD and CVD proceedings; modifying its regulation regarding new shipper 
reviews; modifying its regulation concerning scope matters in AD and CVD pro ceedings; 
promulgating a new regulation concerning circumvention of AD and CVD orders; promulgating a new 
regulation concerning covered merchandise referrals received from U.S. Customs and Border 
Protection (CBP); promulgating a new regulation pertaining t o Commerce requests for certifications 
from interested parties to establish whether merchandise is subject to an AD or CVD order; and 
modifying a regulation regarding importer reimbursement certifications filed with CBP. Finally, 
Commerce is modifying its regulations regarding service lists, entries of appearance, and importer 
filing requirements for access to business proprietary information in AD and CVD proceedings.  
The amendments to §§ 351.203, 351.214, 351.228, and 351.402(f)(2) in instructions 3, 4, 8 , and 
10, respectively, are effective October 20, 2021. The amendments to §§ 351.103(d), 351.225, 
351.226, 351.227, and 351.305(d) in instructions 2, 5, 6, 7, and 9, respectively, are effective 
November 4, 2021.  
[Federal Register Volume 86, Number 179 (Mon day, September 20, 2021)]  
[Rules and Regulations]  
[Pages 52300 -52384]  
From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] 
[FR Doc No: 2021 -17861]  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  Vol. 86  
Monday,  
No. 179  
September 20, 2021 
Part II  
Department of Commerce  
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International Trade Administration  
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19 CFR Part 351  
Regulations To Improve Ad ministration and Enforcement of Antidumping  and Countervailing Duty 
Laws; Final Rule  
Federal Register / Vol. 86 , No. 179 / Monday, September 20, 2021 /  Rules and Regulations  
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DEPARTMENT OF COMMERCE  
International Trade Administration  
19 CFR Part 351  
[Docket No. 210813 -0162]  RIN 0625 -AB10  
Regulations To Improve Administration and Enforcement of Antidumping an d Countervailing Duty 
Laws 
AGENCY: Enforcement and Compliance, International Trade Administration,  Department of 
Commerce.  
ACTION: Final rule.  
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SUMMARY: Pursuant to its authority under Title VII of the Tariff Act of  1930, as amended (the Act), 
the Department of Commerce (Commerce) is  modifying its regulations to improve administration 
and enforcement of  the antidumping duty (AD) and countervailing duty (CVD) laws.  Specifically, 
Commerce is modifying its regulation concerning the time  for submission of comments pertaining to G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  industry support in AD and CVD  proceedings; modifying its regulation regarding new shipper 
reviews;  modifying its regulation concerning scope matters in AD and CVD  proceedings; 
promulgating a new regulation concerning circumvention of  AD and CVD orders; promulgating a new 
regulation concerning covered  merchandise referrals received from U.S. Customs and Border 
Protection  (CBP); promulgating a new regulation pertaining t o Commerce requests  for certifications 
from interested parties to establish whether  merchandise is subject to an AD or CVD order; and is 
modifying its  regulation regarding importer reimbursement certifications filed with  CBP. Finally, 
Commerce is modifying  its regulations regarding service  lists, entries of appearance, and importer 
filing requirements for  access to business proprietary information in AD and CVD proceedings.  
DATES: Effective date: The amendments to Sec. Sec.  351 .203, 351.214,  351.228, and 
351.402(f)(2) in instructions 3, 4, 8, and 10,  respectively, are effective October 20, 2021. The 
amendments to  Sec. Sec.  351 .103(d), 351.225, 351.226, 351.227, and 351.305(d) in 
instructions  2, 5, 6, 7, and 9, respectively, are effective Nove mber 4,  2021.  
 For information concerning applicability dates, see SUPPLEMENTARY INFORMATION.  
FOR FURTHER INFORMATION CONTACT: Scott McBride at (202) 482 -6292; David Mason at 
(202)  482-5051; or Jessica Link at (202) 482 -1411.  
SUPPLEMENTARY INFORMATION:  
Applicability Dates  
 Amendments to Sec.  351 .203 apply to segments of the proceeding for which a petition is filed 
on or after October 20, 2021.   Amendments to Sec.  351 .214 apply to new shipper reviews for which 
a new shipper review request is filed on or af ter October 20, 2021.  
 Amendments to Sec.  351 .225 and corresponding amendments to Sec. Sec.  351 .103(d) and 
351.305(d) apply to scope inquiries for which a scope ruling application is filed, as well as any scope 
inquiry self -initiated by Commerce, on or a fter November 4, 2021. For information on specific 
applicability dates for amendments to Sec.  351 .225(l), please see section 12 in the preamble under  
"Scope --Sec.  351 .225." 
 Added Sec.  351 .226 and corresponding amendments to Sec.  351 .103(d) and Sec.  351 .305(d) 
apply to circumvention inquiries for which a circumvention request is filed, as well as any 
circumvention inquiry self -initiated by Commerce, on or after November 4, 2021. For information on 
specific applicability dates for Sec.  351 .226(l), please see section 12 in the preamble under 
"Circumvention --Sec.  351 .226." 
 New Sec.  351 .227 and corresponding amendments to Sec.  351 .103(d) and Sec.  351 .305(d) 
apply to covered merchandise inquiries for which a covered merchandise referral determined to be 
sufficient is received on or after November 4, 2021. For information on specific applicability dates 
for Sec.  351 .227(l), please see section 8 in the preamble under "Covered Merchandise Referrals --
Sec.  351 .227." 
 Added Sec.  351 .228 is applicable on or af ter October 20, 2021.  
 Amendments to Sec.  351 .402(f)(2) are applicable on or after October 20, 2021.  
General Background  
 On August 13, 2020, Commerce  published proposed amendments to its existing regulations, 
19 CFR part 351, to strengthen and improve the administration and enforcement of the 
AD/CVD  laws.\1\ Relevant to this final rule are the AD/CVD statutory and regulatory provisions in 
general, as w ell as those pertaining to industry support, new shipper reviews, scope inquiries, 
circumvention inquiries, covered merchandise inquiries, certifications, and certain procedures, which 
we briefly summarize below.  
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   \1\ Regulations to Improve Administration and Enforcement of Antidumping and Countervailing 
Duty Laws, 85 FR 49472 (August 13, 2020) (Proposed Rule).  
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 Title VII of the Act vests Commerce with authority to administer the AD/CVD laws. \2\ In 
general, the AD/CVD laws are intended to provide relief to domestic industries, including businesses, 
workers, farmers, and ranchers from the injurious effects of unfairly traded imports through the 
imposition of AD/CVDs. \3\ 
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 \2\ See generally Title VII of the Act (19 U.S.C. 1671 et. seq.); see also titles I, II, and IV of 
the Uruguay Round Agreements Act (URAA), Public Law 103 -465, 108 Stat. 4809 (1994) 
(implementing into law the World Trade Organization (WTO) agreements, the Agreement on 
Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the Anti -Dumping 
(AD) Agreement) and the Agreement on Subsidies and Countervailing Measures 
((SCM)  Agreement)); and Uruguay Round Agreements Act, Statement of Administrative Action, H.R. 
Doc. No. 103 -316, vol. 1 (1994) (SAA).  
 \3\ See Guangdong Wireking Housewares & Hardwa re Co. v. United States, 745 F.3d 1194, 
1203 (Fed. Cir. 2014) (Guangdong Wireking) ( "The congressional intent behind the enactment of 
countervailing duty and antidumping law generally was to create a civil regulatory scheme that 
remedies the harm unfair tr ade practices cause. "). 
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 Title VII allows for a domestic interested party to file a petition seeking an AD or CVD order, 
and corresponding duties, on certain imports. If the petiti on meets all the elements necessary for 
initiation, Commerce will initiate and conduct an AD or CVD investigation. Similarly, the U.S. 
International Trade Commission (ITC) will conduct a separate investigation concerning material 
injury or threat of materi al injury to the domestic industry. Section 731 of the Act directs Commerce 
to impose an AD order on merchandise entering the United States when it determines that a producer 
or exporter is selling a class or kind of foreign merchandise into the United Sta tes at less than fair 
value (i.e., dumping), and material injury or threat of material injury to that industry in the 
United  States is found by the ITC. Section 701 of the Act directs Commerce to impose a CVD order 
when it determines that a government of a  country or any public entity within the territory of a 
country is providing, directly or indirectly, a countervailable subsidy with respect to the manufacture, 
production, or export of a class or kind of merchandise that is imported into the United States , and 
material injury or threat of material injury to that industry in the United States is found by the 
ITC.\4\ 
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 \4\ A countervailable subsidy is further defined under section 771 (5)(B) of the Act as existing 
when: A government or any public entity within the territory of a country provides a financial 
contribution; provides any form of income or price support; or makes a payment to a funding 
mechanism to provide a financial contri bution, or entrusts or directs a private entity to make a 
financial contribution, if providing the contribution would normally be vested in the government and 
the practice does not differ in substance from practices normally followed by governments; and a 
benefit is thereby conferred. To be countervailable, a subsidy must be specific within the meaning 
of section 771(5A) of the Act.  
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 After issuance of an AD/CVD order, Commerce direc ts CBP to "suspend liquidation " \5\ and 
collect cash deposits, or estimated amounts of duties, on appropriate entries subject to the scope of 
the order corresponding to the margins of dumping established under an AD order and the CVD  rates 
established unde r a CVD order. \6\ On a yearly basis, interested parties may request that Commerce 
conduct an administrative review to determine the appropriate dumping margin or CVD rate for 
entries subject to the order during the previous review year. \7\ Pursuant to its administrative review 
procedures, Commerce instructs CBP to "lift the suspension of liquidation " and assess AD/CVDs at 
the appropriate amount. \8\ 
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 \5\ "Liquidation " is the point at which CBP ascertains and assesses the final rate and amount of 
duty on an entry. See generally 19 U.S.C. 1500.  
 \6\ See generally section 706 of the Act; section 736 of the Act; see also 19 CFR 351.211.  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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   \7\ See section 751(a)(1) of the Act; see also 19 CFR 351.212 -213. 
 \8\ 19 CFR 351.212 -213. 
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 With respect to industry support, once an AD petition under section 732(b) of the Act or a CVD 
petition under section 70 2(b) is filed, the statute provides Commerce with 20 days in which to 
determine whether the elements necessary for initiation of an investigation have been satisfied, 
including the requirement to demonstrate industry support. In exceptional circumstances, 
Commerce may extend the 20 -day period to a maximum of 40 days solely for purposes of 
determining industry support. In the Proposed Rule, Commerce proposed to modify Sec.  351 .203 
to provide for the establishment of a deadline by which parties may file comm ents on industry 
support. As discussed below, we are adopting the modifications from the Proposed Rule.  
 Regarding new shipper reviews, section 751(a)(2)(B) of the Act and Sec.  351 .214 provide a 
procedure by which exporters or producers who did not export  the product during the original AD or 
CVD investigation can obtain their own individual dumping margin or countervailing duty rate on an 
accelerated basis (referred to as a "new shipper review ").\9\ Commerce explained in the Proposed 
Rule that in 2016 the  Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA) was signed into 
law, which contains title IV --Prevention of Evasion of Antidumping and Countervailing Duty Orders 
(short title "Enforce and Protect Act of 2015 " or "EAPA").\10\ Section 433 (enti tled "Addressing 
Circumvention by New Shippers ") added two key provisions to the new shipper procedures under 
section 751(a)(2)(B) of the Act. \11\ First, section 433 removed the ability for importers to post 
AD/CVD -specific bonds or security in lieu of AD/ CVD cash deposits by striking this provision from 
section 751(a)(2)(B) of the Act. \12\ Second, section 433 added a provision that the individual 
dumping margin or countervailing duty rate determined for a new shipper must be based on 
bona fide sales in the  United States and codified the factors that Commerce has historically used to 
determine whether a sale is bona fide. \13\ Accordingly, in the Proposed Rule, Commerce proposed 
conforming amendments to Sec.  351 .214, which are adopted in this final rule. The  modifications to 
Sec.  351 .214 clarify the circumstances under which Commerce will grant a new shipper review and 
establish specific factors to be considered in determining whether the sales at issue constitute 
bona fide sales for purposes of the AD and C VD laws.  
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 \9\ Section 751(a)(2)(B) of the Act was enacted in the URAA in 1994. See SAA at 816 
("Article  9.5 [of the AD Agreement] establishes special procedures for imposing antidu mping duties 
on exporters or producers who did not export the product to the importing country during the original 
period of investigation (so -called `new shippers'). "). Section 351.214 was subsequently adopted 
pursuant to a rulemaking in 1997. See Antidumping Duties; Countervailing Duties, Proposed Rule, 
61 FR 7308, 7317 -18 (Feb. 27, 1996) (1996 Proposed Rule) (discussing the proposed new shipper 
review regulation); Antidumping Duties; Countervailing Duties, Final Rule, 62 FR 27296, 27318 -19 
(May 19 , 1997) (1997 Final Rule) (discussing the finalized new shipper review regulation).  
 \10\ Trade Facilitation and Trade Enforcement Act of 2015, Public Law 114 -125, 130 Stat. 122 
(2016) (TFTEA).  
 \11\ See Public Law 114 -125, section 433, 130 Stat. at 171. S ee also H.R. Rep. No. 114 -114, 
at 89 (2015) ( "The Committee is concerned that the ability of new exporters and producers to obtain 
their own individual weighted average dumping margins or individual countervailing duty rates from 
the Department of Commerce  on an expedited basis (known as `new shipper reviews') has been 
abused to avoid antidumping and countervailing duties. ") 
 \12\ See Public Law 114 -125, section 433, 130 Stat. at 171. See also H.R. Rep. No. 114 -114, 
at 89; H.R. Rep. No. 114 -376, at 192 (201 5) (Conf. Rep.).  
 \13\ See Public Law 114 -125, section 433, 130 Stat. at 171. See also Conf. Rep., 
H.R. Rep No. 114-376 at 192 -193. 
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 With respect to scope inquiries, upon issuance of an AD or CVD order, the Act requires 
Commerce to provide a description of the class or kind of merchandise subject to the order a t issue 
(i.e., subject merchandise). \14\ That description is known as the scope of the AD/CVD order. 
Because the statute "does not require Commerce to define the class or kind of foreign merchandise 
in any particular manner[,] Commerce has the authority to  fill that gap and define the scope of an 
order consistent with the countervailing duty and antidumping duty laws. " \15\ Further, "under the 
statutory scheme, Commerce owes deference to the intent of the proposed scope of an antidumping 
investigation as ex pressed in an antidumping petition. " \16\ 
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   \14\ See section 706(a)(2) of the Act; section 736(a)(2) of the Act; section 771(25) of the Act.  
 \15\ Canadian Solar, Inc. v. United Sta tes, 918 F.3d 909, 917 (Fed. Cir. 2019) (internal citations 
and punctuation omitted) (Canadian Solar).  
 \16\ Ad Hoc Shrimp Trade Action Committee v. United States, 637 F. Supp. 2d 1166, 1174 
(CIT 2009).  
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 Under the statutory framework, as recognized by the U.S. Court of International Trade (CIT) 
and U.S. Court of Appeals for the Federal Circuit (Federal Circuit), Commerce is the agency charged 
with establishing and interpreting the s cope of AD/CVD orders, \17\ and CBP is the agency charged 
with applying and enforcing the AD/CVD orders. \18\ As part of its statutory responsibility "to fix the 
amount of duty owed on imported goods[,] " CBP "is both empowered and obligated to determine in 
the first instance whether goods are subject to existing [AD/CVD orders]. " \19\ Pursuant to 19 U.S.C. 
1514(b) (section 514 of the Act), this "determination is then 'final and conclusive' unless an 
interested party seeks a scope ruling from Commerce (which ruling would then be reviewable 
pursuant to [19 U.S.C. 1516a]). " \20\ 
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 \17\ See Xerox Corp. v. United States, 289 F.3d 792, 795 (Fed. Cir. 2002) ( "Commerce should 
in the fir st instance decide whether an antidumping order covers particular products, because the 
order's meaning and scope are issues particularly within the expertise of that agency. ") (internal 
citations and punctuation omitted).  
 \18\ See Sunpreme Inc. v. United  States, 946 F.3d 1300, 1303 (Fed. Cir. 2020) (Sunpreme) 
(holding that "it is within Customs's authority to preliminarily suspend liquidation of goods based on 
an ambiguous [AD or CVD] order, such that the suspension may be continued following a scope 
inquiry by Commerce. "); and Fujitsu Ten Corp. v. United States, 957 F. Supp. 245, 248 (CIT 1997) 
(Fujitsu) ( "The statute recognizes Customs makes the initial determination that an existing 
antidumping order applies to a specific entry of merchandise. The statu te states that such a decision 
is 'final and conclusive' unless it is appealed by petition to Commerce. " (citations omitted)).  
 \19\ Id., 946 F.3d at 1317 (citing 19 U.S.C. 1500(c)).  
 \20\ See TR International Trading Co. v. United States, 433 F. Supp. 3d 1329, 1341 (CIT 2020) 
(citing Sunpreme, 946 F.3d at 1318) (TR International) (appeal pending) (referencing section 516 
of the Act); see also Fujitsu, 957 F. Supp. at 248.  
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 Commerce retains discretion to define the scope of the order to ensure that all imports causing 
injury have been addressed, and, additionally, may take into account potential circ umvention and 
duty evasion concerns in crafting  the scope language. \21\ Because the scope of an AD/CVD order is 
written in general terms, questions may arise as to whether a certain product is covered by the 
scope of an order. Beyond a general recognition that Commerce may issue "class or kind of 
merchandise " determinations,  \22\ the statute is otherwise silent regarding the procedures and 
standards that Commerce may apply in issuing a scope ruling. Therefore, Commerce's regulation, 
Sec.  351 .225, describes the applicable procedures and standards concerning "scope rulings " that 
Commerce will issue upon application of an interested party, or by initiating a "scope inquiry. " In 
the Proposed Rule, Commerce proposed numerous revisions to Sec.  351 .225, many of which are 
further revised or adopted in this final rule.  
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 \21\ See Canadian Solar, 918 F.3d at 921 -22 ("It is unnecessary for Commerce to engage in a 
game of whack -a-mole when it may reasonably define the class or kind of merchandise in a single 
set of orders, and within the context of a single set of investigations, to include all imports causing 
injury. "). 
 \22\ See section 516A(a)(2)(B)(vi) of the Act (referencing, in the judicial review provision of 
the statute, "[a] determination by the administering authority as to whether a particular type of 
merchandise is within the class or kind of merchandise described in an existing finding or dumping 
our antidumping or coun tervailing duty order. ") 
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 Concerning circumvention inquiries (considered another type of "class or kind determination " 
under the jurisdictional provisions of the statute), section 781 of the Act identifies four types of 
products that may be found circumventing an AD/CVD order, and, therefore, may be included within G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  the scope of the order. The legislative history accompanying the Omnibus Trade and Competitiveness 
Act of 1988 provides  that "[a]n order on an article presumptively includes articles altered in minor 
respects in form or appearance[,] " and that the purpose of the circumvention statute "is to authorize 
the Commerce Department to apply AD and [CVD] orders in such a way as to prevent circumvention 
and diversion of U.S. law. " \23\ Further, the legislative history indicates that Congress was 
concerned with the existence of "loopholes, " i.e., foreign companies evading orders by making slight 
changes in their method of production, because such scenarios "seriously undermine the 
effectiveness of the remedies provided by the antidumping and countervailing duty proceedings, and 
frustrated the purposes for which these laws were enacted. " \24\ Congress also recognized that 
"aggressive im plementation of [the circumvention statute] by the Commerce Department can 
foreclose these practices. " \25\ With the implementation of the URAA, the SAA expressed similar 
concerns about scenarios limiting the effectiveness of the AD duty law (i.e., complet ion or assembly 
in a country other than the subject country). \26\ Accordingly, Commerce "has been vested with 
authority to administer the antidumping laws in accordance with the legislative intent " and, thus, 
"has a certain amount of discretion [to act ] . . . with the purpose in mind of preventing the intentional 
evasion or circumvention of the antidumping duty law. " \27\ In the Proposed Rule, Commerce 
proposed to adopt a new regulation, Sec.  351 .226, to address circumvention inquiries and 
determination s. After making some revisions from the Proposed Rule, Commerce is adopting 
Sec.  351.226 in this final rule.  
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 \23\ Omnibus Trade Act of 1987, Report of the Senate Finance Committe e, S. Rep. No. 100 -71, 
at 101 (1987).  
 \24\ Id. 
 \25\ Id. 
 \26\ See SAA at 892 -95. 
 \27\ Tung Mung Development Co., Ltd. v. United States, 219 F. Supp. 2d 1333, 1343 (CIT  2002) 
(Tung Mung) (quoting Mitsubishi Elec. Corp. v. United States, 700 F. Supp. 538,  555 (CIT 1988) 
(Mitsubishi I), aff'd 898 F.2d 1577, 1583 (Fed. Cir. 1990) (Mitsubishi II)).  
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 Pertaining to covered merchandise inquiries, title IV of the TFTEA (referred to as EAPA), section 
421, added section 517 to the Act, \28\ which establishes a formal process for CBP to conduct civil 
administrative investigations of potential duty evasion of AD and CVD orders on the basis of an 
allegation by an interested party or upon  referral by another Federal agency (referred to herein as 
an "EAPA investigation "). Pursuant to section 517(b)(4)(A) of the Act, if CBP  is conducting an EAPA 
investigation based on an allegation from an  interested party, and is unable to determine whether 
the merchandise at  issue is "covered merchandise " within the meaning of section  517(a)(3) of the 
Act, it shall refer the matter to Commerce to make a  covered merchandise determination (referred 
to herein as a "covered  merchandise referral ").\29\ Although C ongress did not require that  
Commerce promulgate regulations with respect to section 517 of the Act, in the Proposed Rule, 
Commerce proposed to adopt Sec.  351 .227, a new  regulation to address procedures and standards 
specific to Commerce's  consideration o f covered merchandise referrals. In particular, this new  
regulation would govern Commerce's receipt of a covered merchandise referral, Commerce's 
initiation and conduct of a covered merchandise  inquiry, and Commerce's covered merchandise 
determination, pur suant to  section 517(b)(4) of the Act. With some revisions, Commerce is adopting  
Sec.  351 .227 in this final rule.  
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 \28\ See Public Law 114 -125, 421, 130 Stat. at 161 -69. 
 \29\ See H.R. Rep. No. 114 -376, at 190 ( "If the Commissioner is unable to determine whether 
the merchandise at issue is covered merchandise, the Commissioner shall refer the matter to the  
Department of Commerce to determine whether the merchandise is covered merchandise. The 
Department of Commerce is to make this determination pursuant to its applicable statutory and 
regulatory authority, and the determination shall be subject to judicial review under 
19 U.S.C.  1516a(a)(2). The Conferees intend that su ch determinations include whether the 
merchandise at issue is subject merchandise under 19 U.S.C. 1677j. " (referencing sections 516 and 
781 of the Act)).  
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 Regarding certifications,  in the Proposed Rule, Commerce proposed to adopt Sec.  351 .228, a 
regulation to codify and enhance Commerce's existing authority and practice to require certifications G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  by importers and other interested parties as to whether merchandise is subject to an AD /CVD order. 
With minor revisions, Commerce is adopting Sec.  351 .228 in this final rule.  
 Another form of certifications relates to importer reimbursement certifications as provided for 
under Sec.  351 .402(f)(2). In the Proposed Rule, Commerce proposed to amend Sec.  351 .402(f)(2) 
regarding importer certifications for the payment or reimbursement of AD/CVDs on entries subject 
to AD orders to account for updated procedures. With minor revisions, Commerce is adopting the 
amendments to Sec.  351 .402(f)(2) in t his final rule.  
 To implement the substantive changes in the final rule, Commerce is also adopting proposed 
changes to two procedural regulations. First, in conducting its administrative proceedings, the 
statute directs Commerce to make certain information generally available on a public 
record. \30\ Pursuant to Sec.  351 .103(d)(1), with some exceptions, parties that wish to be served 
with public information on a segment of a proceeding must file an entry of appearance on that record 
to be placed on the relevant segment -specific public service list. \31\ In the Proposed Rule, 
Commerce proposed to amend Sec.  351 .103(d)(1) to reflect that certain interested parties need 
not file an entry of appearance to be placed on the segment -specific service list  for the  relevant 
segment. With a minor revision, these changes are adopted in this final rule. Additionally, Sec.  
351.103(d) contains a cross -reference to the service list procedures for scope ruling applications, 
which are further described in Sec.  351 .225(n). This language has been updated to include reference 
to service list procedures for requests for circumvention inquiries, which are further described in 
Sec.  351 .226(n).  
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 \30\ See generally section 777(a) of the Act. See also 19 CFR 351.104 (describing the official 
record of AD/CVD proceedings).  
 \31\ Section 351.303(b)(2) contains procedures regarding the filing of documents through 
Commerce's Antidumping and Countervailin g Duty Centralized Electronic Service System (ACCESS).  
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 Second, because of the nature of Commerce's proceedings, which frequently require Commerce 
to rely on non -public information  such as business proprietary information (BPI) in issuing its 
determinations, the statute also requires Commerce to make BPI available to interested parties who 
have been authorized to receive such information under an administrative protective order 
(APO).\32\ Section 351.305(d) provides specific filing requirements for importers to access BPI in 
Commerce's proceedings, including certain requirements for importers in scope inquiries. In the 
Proposed Rule, Commerce proposed to amend Sec.  351 .305(d) to add  reference to importers in 
circumvention inquiries and to exempt importers identified by CBP in a covered merchandise referral 
from these specific filing requirements. These changes are adopted in this final rule.  
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 \32\ Pursuant to section 777(c)(1)(A) of the Act, Commerce must make BPI submitted to it 
during the course of an AD/CVD proceeding available to interested parties who have been authorized 
to receive such information under  an APO. Additionally, section 777(d) of the Act requires that 
parties submitting BPI to Commerce which is covered by an APO must serve such information on 
"all interested parties who are parties to the proceeding " that are subject to the APO. "Interested 
party" is defined under section 771(9) of the Act and 19 CFR 351.102(b)(29); "party to the 
proceeding " is defined under 19 CFR 351.102(b)(36).  
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Explanation of Modifications From the Proposed Rule to the Final Rule and Responses to 
Comments  
 In the Proposed Rule published on August 13, 2020, Commerce invited the public to submit 
comments. \33\ Commerce received 37 submissions providing comments and 17 rebuttal 
submissions from interested parties, including domestic producers, exporters, importers, surety 
companies, and foreign governments. We have determined to make certain modifications to the 
Proposed Rule in response to issues and concerns raised in those commen ts and rebuttal comments. 
We considered the merits of each submission and on many of the issues and concerns raised, we 
analyzed the legal and policy arguments in light of both our past practice, as well as our desire to 
strengthen the administration and e nforcement of our AD/CVD laws.  
---------------------------------------------------------------------------  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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   \33\ On September 10, 2020, in response to concerns raised by interested parties, Commerce 
determined that it would benefit "the public and the agency " if parties had "the opportunity to submit 
rebuttal comments in response to comments filed by other parties on the proposed rule. " Regulations 
to Improve Administration and Enforcement of Antidumping and Countervailing Duty Laws; 
Extension of Commen t Period to Allow Submissions of Rebuttal Comments and Requirement of 
Electronic Submission of Comments and Rebuttal Comments, 85 FR 55801 (Sept. 10, 2020). 
Accordingly, Commerce granted "an extension of time solely for the purpose of allowing the public 
to file such rebuttal comments. " Id. 
---------------------------------------------------------------------------  
 As we explained in the Proposed Rule, \34\ the purpose of these modifications and additions to 
our regulations is to strengthen the administrati on and enforcement of AD/CVD laws, make such 
administration and enforcement more efficient, and to create new enforcement tools for Commerce 
to address circumvention and evasion of trade remedies. These modifications allow Commerce to 
better fulfill the Co ngressional intent behind the AD/CVD laws --namely, to remedy the injurious 
effects of unfairly traded imports. In addition, these regulations promote the Administration's 
objective to strongly enforce and efficiently administer the AD/CVD laws rigorously.  
---------------------------------------------------------------------------  
 \34\ Proposed Rule, 85 FR 49472 at 49472 -73. 
---------------------------------------------------------------------------  
 The preamble to the Proposed Rule provides extensive back ground, analysis, and explanation 
which are relevant to these regulations. With some modifications, as noted, this final rule codifies 
those proposed on August 13, 2020. Accordingly, to the extent that parties and the public wish to 
have a more detailed an d comprehensive interpretation of these regulations, we advise not only 
considering the preamble to these final regulations, but also the analysis and explanations in the 
preamble to the Proposed Rule.  
 In drafting this final rule, Commerce carefully consi dered each of the comments received. The 
following sections generally contain a brief discussion of each regulatory provision, a summary of 
the comments we received (if any) and Commerce's responses to those comments. In addition, 
these sections contain an  explanation of any changes Commerce has made to the Proposed Rule, 
either in response to comments or that it deemed necessary for conforming, clarifying, or providing 
additional public benefit. The final section discusses other comments received not relat ed to the 
regulations covered in this final rule.  
Comment Period on Industry Support Prior to Initiation Determination --Sec.  351 .203(g)  
 Section 351.203(g) establishes a deadline for comments on industry support no later than five 
business days before the  scheduled date of initiation, and rebuttal comments no later than two 
calendar days thereafter. We received several comments and rebuttal comments both in support 
and in opposition to the Proposed Rule. In addition, some commenters proposed that the final  rule 
should impose additional requirements for parties filing comments in opposition to the petitioning 
party's claims of industry support.  
 After considering the comments and rebuttal comments, we have not adopted the suggested 
modifications to the Propo sed Rule and, therefore, have left unchanged proposed Sec.  351 .203(g). 
We believe the Proposed Rule to establish a deadline for industry support comments and rebuttal 
comments is reasonable because it provides sufficient time for parties to submit comment s and 
rebuttal comments, while balancing the need for Commerce to have sufficient time to consider and 
analyze the comments and information on the record within the normal timeframe established by 
Congress. We also believe the deadlines, as set forth in th e Proposed Rule, recognize the importance 
of giving parties adequate time to prepare meaningful comments. Last, we recognize that 
establishing regulatory deadlines is a reasonable exercise of Commerce's authority to implement the 
statutory provisions the a gency is responsible for administering.  
1. Time Limits for Comments  
 Several commenters understand Commerce's desire to have adequate time to consider 
comments on industry support, and several commenters support and agree with Commerce's G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  proposal to set a new deadline. Other commenters contend that Commerce's justification about 
needing time to review industry support comments does not outweigh the importance of giving 
parties time to prepare meaningful comments because the issue cannot be revisited after initiation.  
 In particular, one commenter asserts that adding a limitation on the timeline for filing comments 
on industry support is contrary to the Act because the Act does not permit Commerce to limit the 
period for comments on industry support and the statute is unambiguous in allowing comments any 
time before Comm erce initiates the investigation. The commenter further argues that even  if the Act 
were silent on this issue, Commerce's interpretation is  arbitrary and capricious and not based on a 
permissible construction of  the statute. Another commenter disagrees, ar guing that the commenter's  
statutory analysis is flawed. The rebutting commenter contends the Act  does not set forth an explicit 
timeline for submitting comments on  industry support and further that the Act allows Commerce to 
promulgate  regulations such as  this one. Moreover, the rebutting commenter states,  this proposed 
regulation is neither arbitrary nor capricious because  Commerce's proposal provides sufficient time 
for interested parties to  challenge the industry support claim provided in the petition f or relief.  
 Response:  
 Contrary to the commenter's argument that the statute prohibits  Commerce from limiting the 
time for comments on industry support, there  is nothing in the statute that precludes Commerce 
from adopting a rule  that provides parties with  specific deadlines for submission of  comments or 
rebuttal comments on the issue of industry support. The  sole commenter advancing the statutory 
argument did not cite to any  express language in the statute for support. To the contrary, 
sections  702(c)(4)(E) and 732(c)(4)(E) of the Act provide that, before the  administering authority 
makes a determination with respect to  initiating an investigation, any person who would qualify as 
an interested party may submit comments or information on the issue  of industry support. The Act 
does not set forth an explicit timeline for  submitting comments, provided it is before Commerce 
makes its  determination. Thus, based upon its authority to promulgate  regulations, Commerce may 
establish a reasonable timeframe f or when  industry support comments are to be submitted. Nothing 
in the Act  restricts Commerce from doing so. Indeed, the Act allows for, and  Commerce has set, 
deadlines for most other types of submissions in its  AD and CVD proceedings.  
2. Sufficiency of Tim e for Comment  
 Several commenters claim that shortening the time to file comments  on industry support would 
prejudice interested parties because  respondents do not have advanced notice of new petitions and,  
therefore, a limited time to prepare comments. Co mmenters also allege  that there is a delay in 
obtaining access to the petitions because the  respondents must obtain APO approval to access BPI 
in the petition,  although other commenters contradict this claim, arguing that  interested parties 
have notice of the petitioner's industry support  claims on the first day the petition is filed.  
 Other commenters raise concerns about the rebuttal comment  deadline, arguing that this is an 
insufficient amount of time. These  commenters suggest expanding the rebuttal dead line from two 
days to  five days and recommend that Commerce revise the rule to restrict the  deadline for industry 
support comments further, to ten days before the  date of initiation, rather than five business days, 
as Commerce  proposed. Another commenter w onders how Commerce would take rebuttal  claims 
into account if due only two days before the scheduled date of  the initiation decision. Alternatively, 
some commenters propose that  Commerce should work with Congress to amend the Act and expand 
the timeframe for initiation decisions from 20 days to 40 days.  
 Response:  
 We have not accepted these proposed changes. With respect to the  arguments of insufficient 
time for parties to provide information and  comment, we disagree. The Proposed Rule provides 
parties with, at a  minimum, more than a week, and in many cases a longer period, for  preparation 
of comments. This amount of time should be sufficient. As a  general rule, we believe the deadlines 
proposed for the submission of  comments and rebuttal comment s on the sole issue of industry 
support  provide a sufficient and reasonable amount of time for interested  parties to address industry 
support issues.  
 With respect to the point made by certain commenters regarding  insufficient notice, we 
disagree. Subsecti ons 702(b)(4) and 732(b)(4)  of the Act state that, upon receipt of a petition, the 
administering  authority is required to notify the government of any exporting country  named in the 
petition by delivering a public version of the petition to  an appropriate representative of such 
country. Thus, the government of  the exporting country receives notice of the petition on or about 
the day of receipt by Commerce. The commenters seem to imply there should  be advance notice of 
a petition filing. This is incorrect, a nd in any  case, it is not possible to provide advance notice before 
a petition is  filed. Nonetheless, we are mindful that in establishing due dates for  submissions, 
Commerce must balance the interests of parties to submit  information and comment with G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  Comme rce's ability to consider fully such  information and comments and to make a decision on 
initiation supported  by evidence on the record.  
 With respect to the claim that there may be delays in obtaining  access to the petitions because 
the parties must first obtain APO  approval to access the BPI contained in such petitions, we do not  
believe this will be an issue. First, based on Commerce's years of  experience with petitions and the 
arguments parties have advanced  against industry support in the past, we find that, in general, the  
types of claims made against the petitioner's establishment of industry  support tend to focus on the 
scope of subject merchandise as defined in  petitions, the domestic like product, the methodology 
the petitioner  uses to calculate ind ustry support, and whether U.S. producers within  the industry are 
left out of the industry support calculation. Our  experience has been that these types of arguments 
in opposition to the  petitioner's industry support claims generally can be advanced based on  the 
public information provided in the petitions. Therefore, obtaining  access to BPI is generally not 
needed for submission of comments and  information on the issue of industry support.  
 Second, in the instance in which APO access is need ed in order for  parties to comment on the 
industry support claim contained in a  petition, we do not believe obtaining such access will be an 
impediment  to a timely submission of comments. We note that while obtaining APO  access has the 
potential to delay a ccess to BPI, the APO/Dockets Unit  of Enforcement & Compliance issues an APO 
and routinely expedites the  approval process once an APO application is filed. We, therefore,  believe 
obtaining APO access to BPI will not be an impediment to  parties seeking to c omment on industry 
support.  
 With respect to the comment as to how Commerce would take rebuttal  claims into account if 
due only two days before the scheduled date of  the initiation decision, we note that, under the 
current rule, Commerce  must take into acc ount comments that are filed up to and including the  day 
of the scheduled decision. Thus, we believe the commenter's point  highlights the issue with the 
current situation and recognizes that a  procedural improvement is necessary, and one that is aimed 
at providing  Commerce with sufficient time to make an informed initiation decision  in accordance 
with the statute's 20 -day period. Providing two days for  Commerce to consider any rebuttal 
comments is a significant improvement  over the current process which all ows comments and rebuttal 
comments to  be submitted up to the close of business on the scheduled date of the  decision.  
3. Additional Requirements  
 Two commenters suggest that Commerce include a regulatory provision  that requires parties 
objecting to industry support to: (1) If they are  domestic producers, provide their affiliation status 
and whether they  are related to a foreign producer; and (2) identify the sources of  industry data 
and indicate why the data is more accurate than the data  in the petition. Other commenters disagree 
with the suggested additions  to the proposed regulation and argue that, pursuant to the Act, the  
petitioner bears the burden of establishing industry support, and not  for opposing parties to establish 
a lack of industry support.  
 Response:  
 We have not adopted the proposed additions. The suggestion to  impose new requirements on 
parties that object to a petition would  establish a substantive change beyond the scope of the 
procedural rule  Commerce has proposed. In addition,  in our view, the suggested  requirement is 
unnecessary. The petitioners are responsible for  establishing industry support of the petition. To the 
extent industry  support is not established in accordance with the Act, or is unclear  from the evidence 
on the record, Commerce has authority to address  these situations as they arise, such as through 
polling the industry or  otherwise determining whether there is sufficient industry support to  initiate 
an AD or CVD investigation.  
4. Pre -Initiation CVD Consultations  
 One commenter expressed concern that shortening the time period for  industry support 
comments may prevent parties from requesting pre - initiation consultations pursuant to the 
SCM Agreement.  
 Response:  
 With respect to CVD consultations, we do not see ho w the new  procedural deadlines for 
comments "may prevent parties from requesting  pre-initiation consultations " under the 
SCM Agreement, nor did the  commenter explain the basis for its concern on this point. To clarify,  
Commerce does not wait for the government of the exporting country to  make a request for 
consultations. Instead, in every instance in which a  CVD petition is filed, consistent with 
subsection  702(b)(4)(A)(ii) of  the Act, Commerce invites the government of the exporting country 
to engage  in consultations, if it wishes.  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  New Shipper Reviews --Sec.  351 .214 
 After considering the comments and rebuttal comments, Commerce is  removing Sec. Sec.  
351.214(b)(2)(iv)(A), 351.214(k)(3), and  351.214(k)(4). Commerce is also modifying Sec.  
351.214(b)(2)(iv)(A)  and (B) of the Proposed Rule to clarify that the exporter or producer  requesting 
the new shipper review will provide certifications  pertaining to necessary information related to the 
unaffiliated  customer in the United States and the unaffiliated customer's  willingness to participate 
in the new shipper review, and provide  information relevant to the new shipper review, if requested 
by Commerce or an explanation by the producer/exporter of why such  certification from the 
unaffiliated customer cannot be provided. With  the elimination of Sec. Sec.  351 .214(k)(3) and 
(k)(4), Sec. Sec.  351 .214(k)(5) and (k)(6) are now designated as Sec. Sec.  351 .214(k)(3)  and 
(k)(4), respe ctively; and Sec. Sec.  351 .214(k)(5) and (k)(6) are  eliminated.  
 In addition, Commerce is modifying Sec.  351 .214(b)(2)(v)(B) by  adding the terms "shipment " 
and "any" to this provision, for  consistency with the language utilized in Sec.  351 .214(b)(v)(C) and 
to clarify that a new shipper is required to provide documentation  establishing the volume of any 
subsequent shipments where subsequent  shipments have occurred. Commerce is also modifying 
Sec.  351 .214(b)(v)(C) by removing the "and" at the end of the c lause and  placing it at the end of 
Sec.  351 .214(b)(v)(D)(4) to grammatically  conform with the additions of Sec.  351 .214(b)(v)(D) 
and (E) to the  regulation. Next, Commerce is modifying Sec.  351 .214(b)(2)(v)(E)(4) by  replacing 
the term "unrelated " with the term "unaffiliated " to conform more closely to the terms of 
sections  772(a) and (b) of the  Act. 
 Last, we note that in Sec.  351 .214(k) of the Proposed Rule,  Commerce inadvertently cited to 
section 752(a)(2)(B)(iv) of the Act.  Commerce, however, intended to cite to section 751(a)(2)(B)(iv) 
of the  Act in this provision of the Proposed Rule. Accordingly, Commerce is  correcting this error in 
its final rule.  
1. The Requirements for Requesting a New Shipper Review ( Sec.  351 .214(b))  
(a) Certification R equirements for Unaffiliated Purchasers  
 
 To obtain a new shipper review, Sec.  351 .214(b) of the Proposed  Rule sets forth documentation 
requirements for an exporter or producer  requesting a new shipper review. In particular, Sec.  
351.214(b)(2)(iv)(A) and (B) of the Proposed Rule establish the  requirements that the producer or 
exporter requesting the review  provide certifications from the unaffiliated customer in the United  
State s certifying that (1) it did not purchase the subject merchandise  from the producer or exporter 
during the period of investigation; and  (2) it will provide necessary information requested by 
Commerce  regarding its purchase of subject merchandise.  
 Several commenters oppose Commerce's additional requirements. One  commenter asserts that 
these requirements are contrary to the intent of  the statute and Commerce's authority to conduct 
new shipper reviews.  Both this commenter and several others argue these requir ements deprive  a 
requestor the option of filing a new shipper review where an  unaffiliated customer chooses not to 
certify.  
 Two commenters argue that requiring unaffiliated customer  certifications is burdensome and 
may discourage meritorious new shipper  claims. One commenter points out that the concern raised 
here is  similar to the concern Commerce articulated when it previously  considered and rejected a 
proposal to require unaffiliated customer  certifications in the 1997 Final Rule. \35\ The commenter 
further argues  that the requirement in Sec.  351 .214(b)(2)(iv)(B) risks use of adverse  facts available 
if the customer is not forthcoming, particularly with a  requestor's limited control over an unaffiliated 
customer. Similarly,  another commenter argues that a pplying an adverse inference based on an  
unaffiliated party's failure to cooperate is "potentially unfair " to a respondent, while another 
commenter asserts this requirement is too  burdensome on a requestor. Another commenter argues 
there are  legitimate cir cumstances where a new shipper has no sales to  unaffiliated customers in 
the United States, such as when a  multinational company sells a component to its U.S. subsidiary 
for purposes of later selling a downstream product.  
---------------------------------------------------------------------------  
 \35\ 1997 Final Rule, 62 FR 27296 at 27319 (discussing the  finalized new shipper review 
regulation).  
---------------------------------------------------------------------------  
 By contrast, two commenters support the new standards and  documentation requirements for 
requesting new shipper reviews in the  Proposed Rule. One commenter asserts that other G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  commenters have vastly  overstated the burden of providing customer certifications  to demonstrate 
bona fide sales because (1) no customer has commented that  it could not comply with Commerce's 
requirements; (2) providing  customer certifications is a limited burden given that often only a  small 
number of sales and customers are involved;  and (3) the  certifications are limited to information 
pertaining to the customer's  purchase of the subject merchandise. The commenter, therefore,  
concludes that Commerce's proposed certification requirements are not  unduly burdensome.  
 Response:  
 We have made changes to the Proposed Rule with respect to the  unaffiliated customer 
certifications. In particular, we have removed  the certification requirements contained in Sec.  
351.214(b)(2)(iv)(A)  and (B) of the Proposed Rule and have replaced the certification  requirements 
with additional exporter or producer certifications, as  explained further below.  
 As an initial matter, we disagree with the commenters that assert  the certification requirements 
in Sec.  351 .214(b)(2)(iv)(A) and (B)  are contrary  to the intent of the statute and Commerce's 
authority to  conduct new shipper reviews. Section 751(a)(2)(B)(i) of the Act  provides that if 
Commerce receives a request from an exporter or  producer of subject merchandise establishing that 
the requestor (1) d id not export subject merchandise during the period of investigation, and  (2) is 
not affiliated with any exporter or producer who exported the  subject merchandise during the period 
of investigation, Commerce shall  conduct a new shipper review to establish an individual weighted  
average dumping margin or countervailing duty rate. These certification  requirements are consistent 
with the requirements a new shipper review  requestor must satisfy in order for Commerce to conduct 
a new shipper  review, as identifie d in this section of the Act.  
 However, in the interest of eliminating unnecessary requirements,  the final rule modifies Sec.  
351.214(b)(2) of the Proposed Rule by  removing the requirement in Sec.  351 .214(b)(2)(iv)(A) that 
requires  the producer or export er requesting the review to submit certifications  from the unaffiliated 
customer in the United States that it did not  purchase the subject merchandise from the producer 
or exporter during  the period of investigation. Upon further consideration, we find thi s certification 
to be unnecessary given the certification requirement  from the requestor in Sec.  351 .214(b)(2)(i) 
and (ii) that it did not  sell the subject merchandise to the United States during the period of  the 
investigation.  
 In response to comments c oncerning the burden of obtaining the  unaffiliated customer's 
certification, we have replaced both Sec.  351 .214(b)(2)(iv)(A) and (B). The final rule replaces Sec.  
351.214(b)(2)(iv)(A) of the Proposed Rule with the requirement that the  exporter/producer c ertify 
that it will provide during the course of the  new shipper review, and to the fullest extent possible, 
necessary  information related to the unaffiliated customer in the United States.  
 Additionally, the final rule modifies Sec.  351 .214(b)(2)(iv)(B) of  the Proposed Rule to clarify 
that the exporter/producer will provide a  certification by the unaffiliated customer of its willingness 
to participate in the new shipper review and provide in formation relevant  to the new shipper review, 
if such information is requested by the  Secretary. To the extent the unaffiliated customer cannot 
provide its  certification, the exporter/producer is required to provide, in the  alternative, an 
explanation of w hy the unaffiliated customer cannot  provide its certification.  
 Section 351.214(b) of the Proposed Rule provides further guidance,  consistent with 
section  751(a)(2)(B)(i) of the Act, on the requirements  necessary for Commerce to conduct a new 
shipper revie w. We consider the  new certification requirement in Sec.  351 .214(b)(2)(iv)(B) of the  
Proposed Rule to be a necessary supplement to a new shipper review  request that comports with 
the requirements in section 751(a)(2)(B)(i)  of the Act which requires a new shipper to establish that 
it did not  export subject merchandise during the period of investigation and that  such exporter or 
producer is not affiliated with any exporter or  producer who exported the subject merchandise to 
the United States  during the perio d of investigation. In particular, this requirement  addresses 
concerns that Congress expressly identified involving abuse  of the new shipper review procedures 
where a new shipper "enter[s]  into a scheme to structure a few sales to show little or no dumping  
or subsidization when those sales are reviewed . . . resulting in a low or  zero antidumping or 
countervailing duty rate for that producer or  exporter. "\36\ 
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 \36\ H.R. Rep. No. 114-114 at 89; see also Proposed Rule, 85 FR  49472 at 49473.  
---------------------------------------------------------------------------  
 In response to commenters' concerns that the requirements in Sec.  351 .214(b)(2)(iv)(A) and 
(B) are overly burdensome,  we clarify that the  aim of these provisions is to ensure that Commerce 
can obtain the  necessary information for Commerce to determine whether the sales at  issue are 
bona fide, consistent with the intent of Congress pursuant to  section 751(a)(2)(B)(iv) of the Act. In 
balancing the aim of these  provisions consistent with the intent of Congress with the burdens  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  imposed, we have crafted these amended certifications in as least  burdensome a manner as possible, 
while ensuring that Commerce obtains  all of the nec essary information to conduct the bona fide sale 
analysis  intended by Congress. As explained in the Proposed Rule, at the time  Commerce rejected 
the proposal to require such certifications in 1997,  Commerce had limited experience dealing with 
new shipper r eviews. \37\ In light of the more than 20 years of agency experience involving new  
shipper reviews, and in particular given concerns over abuse of  procedures expressed by Congress, 
as discussed in the Proposed Rule, we  believe these additions to the require ments are necessary to 
ensure  that Commerce is able to conduct a proper new shipper review consistent  with the intent of 
Congress.  
---------------------------------------------------------------------------  
 \37\ Proposed Rule, id. at 49474.  
---------------------------------------------------------------------------  
 Further, one commenter expressed concern that there may be  legitimate circumstances in which 
an exporter or producer does not sell  subject merchandise to an unaffiliated customer and, therefore, 
cannot  obtain a certification from such a customer.  
 The aim of a new shipper review, however, is to establish an  individual margin of dumping or 
countervailing duty rate for each  qualified new shipper. To establish an individual margin, for 
example,  Commerce needs to obtain sales data pertaining to the sale from the  foreign exporter or 
producer to the first unaffiliated customer in the  United States in order to calculate the new shipper's 
margin of  dumping. Contrary to the comment er's contention, the sale to the first  unaffiliated 
customer is a necessary element for Commerce to provide a  new shipper with its own antidumping 
duty or countervailing duty rate.   
 
(b) Documentation Requirements Related to the Issue of Whether Sales  Are Bona Fide  
 
 Sections 351.214(b)(2)(v)(A) through (E) of the Proposed Rule sets  forth specific 
documentation a requestor must provide to Commerce in  its request for a new shipper review. In 
particular, Sec.  351 .214(b)(2)(v)(D) requires that a new shipper e stablish the  circumstances 
surrounding the sales, including the price, any expenses  arising from such sales, whether the subject 
merchandise was resold at  a profit, and whether such sales were made on an arms -length basis.  
Section 351.214(b)(2)(v)(E) provi des that a new shipper submit  documentation regarding the 
business  activities of the producer or exporter. These include the producer's or  exporter's offers to 
sell merchandise in the United States,  identification of the complete circumstances surrounding sales 
to the  United States, any home market, or third country sales, identification  of the producer or 
exporter's relationship to the first unrelated  United States purchaser, and with respect to 
non-producing exporters,  an explanation of the non-producing exporter's relationship with its  
supplier.  
 Two commenters support the new documentation requirements in Sec.  351 .214(b)(2)(v)(D) 
through (E) for a new shipper to obtain a review.  One commenter argues that Commerce should not 
require the doc umentation  in Sec.  351 .214(b)(2)(v)(D) through (E) at the time of the new shipper  
request, but rather Commerce should ask for more information from the  producers or exporters 
requesting a new shipper review before  determining whether to initiate. Similarl y, one commenter 
argues that  requiring this additional documentation to establish a bona fide sale  is inconsistent with 
Article 9.5 of the AD Agreement \38\ because these  are additional preconditions to conducting a 
new shipper review that  expand beyond wh at was provided for in that agreement. Another  
commenter opposes the Proposed Rule's new documentation requirements  for new shipper review 
requests which, the commenter argues, are likely  to unfairly discourage legitimate requests because 
"new shipper  reviews are often the only alternative for producers and exporters who  would otherwise 
face high all other rates, separate rates, or country -wide rates. " 
---------------------------------------------------------------------------  
 \38\ The Agreement on Impleme ntation of Article VI of the  General Agreement on Tariffs and 
Trade 1994 (AD Agreement).  
---------------------------------------------------------------------------  
 Response:  
 We have left unchanged Sec.  351 .214(b)(2)(v)(D) through (E).  Commerce explained in the 
1996 Proposed Rule that it was requiring  certain certifications from the requestor "demonstrating 
that the  party is a bona fide new shipper. " \39\ Consistent with this earlier  discussion, and in light 
of the concerns related to circumventi on and  abuse of new shipper review procedures expressed by G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  Congress in  enacting section 751(a)(2)(B)(iv) of the Act, the Proposed Rule limits  initiations of new 
shipper reviews to where there is a reasonable  likelihood of bona fide sales for Commerce to re view. 
Further, as  clarified in section 1(e) below, normally, when a requestor of a new  shipper review 
submits all of the documentation necessary for Commerce  to perform a bona fide sales analysis, as 
outlined in the Proposed Rule  Sec.  351 .214(b)(2)(i) thr ough (v), and (vi) for countervailing duty  
new shipper reviews, the requestor has demonstrated a reasonable  likelihood that there are bona 
fide sales for Commerce to base its  initiation of a new shipper review. These requirements, as 
contained in  Sec.  351 .214(b)(2)(v)(D) through (E), are consistent with Commerce's  statutory 
obligation to provide new shipper reviews to those exporters  and producers with bona fide sales of 
subject merchandise to the United  States. \40\ The documentation requirements in Sec.  
351.214(b)(2)(v)(A)  through (E) assist Commerce in determining whether a party qualifies as  a new 
shipper and whether a new shipper review should, therefore, be  conducted, consistent with 
Commerce's statutory obligation to calculate  a dumping margin or countervailing duty rate based 
solely on bona fide  United States sales. \41\ Accordingly, we find it reasonable for the  agency to 
require that a requestor for a new shipper review provide the  required bona fide sales documentation 
necessary for Commerce to  perform the bona fide sales analysis in the review.  
---------------------------------------------------------------------------  
 \39\ See 1996 Proposed Rule, 61 FR 7308 at 7317 -18. 
 \40\ See section 751(a)(2)(B) of the Act.  
 \41\ See section 751(a)(2)(B)(i v) of the Act.  
---------------------------------------------------------------------------  
 For these reasons, we also disagree that this regulatory  modification is inconsistent with the 
United States' international  obligations under the AD and SCM Agreeme nts.\42\ While Articles 9.5 
and 19.3 of the AD and SCM Agreements, respectively, identify broad  qualifications for conducting 
a new shipper review, the requirements  identified in Sec.  351 .214(b)(2)(v)(D) through (E) are 
consistent with  U.S. law, which is consistent with our obligations under the AD and SCM  Agreements.  
---------------------------------------------------------------------------  
 \42\ Agreement on Subsidies and Countervailing Measures (SCM  Agreement).  
----------------------------------------- ----------------------------------  
 Further, historically, new shipper reviews have involved very few  sales. In such cases, 
Commerce must fully understand the circumstances  surrounding these limited number of 
transactions as these provide the  basis for a new shipper's future selling of subject merchandise into  
the United States and the level of dumping or subsidization, if any.   
 
(c) Documentation Requiring Volume of the Sale and Subsequent Sales  
 
Paragraphs (B) and (C) of Sec.  351 .214(b)(2)(v) of the Proposed  Rule require that a new 
shipper provide in its new shipper review  request information regarding the volume of its 
shipment(s), including  whether such shipments were made in commercial quantities, and the date  
of sales to an un affiliated customer in the United States.  
 One commenter argues that requiring documentation establishing that  sales are of "commercial 
quantities " in Sec.  351 .214(b)(2)(v)(B) is  inconsistent with Article 9.5 and 19.3 of the AD 
Agreement and the SCM  Agree ment, respectively, which only require that a new shipper not have  
exported subject merchandise during the period of investigation and is  not related to any of the 
investigated exporters and/or producers.  Further, another commenter argues that the criteria  
requiring "the date of any subsequent sales " when requesting a new shipper review is  "unrealistic in 
a commercial context " because the commercial reality  renders few importers with the financial 
position to import multiple  shipments of products that are subject to high antidumping duty  margins.
 Response:  
 With respect to the issue of requiring documentation pertaining to  whether the sales were made 
in commercial quantities under Sec.  351 .214(b)(2)(v)(B), we disagree with the commenter's 
objection.  Section 751(a)(2)(B)(iv)(II) of the Act requires Commerce to consider,  depending on the 
circumstances surrounding such sales, whether the  sales were made in commercial quantities. 
Section 351.214(b)(v)(B) of  the Proposed Rule is intended to implement this pr ovision of the  statute.  
 Regarding the commenters' concerns that Commerce is requiring  requestors to establish that 
"subsequent shipments " and "subsequent  sales" occurred under Sec.  351 .214(b)(2)(v)(B) and (C) 
of the  Proposed Rule in order to obtain a new  shipper review, these concerns  are misplaced. The 
Proposed Rule does not establish such requirements.  Rather, Commerce simply requires that a G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
- 16 - 
 
  producer or exporter requesting  a new shipper review provide documentation of any subsequent 
sales or  shipments a nd the dates of such sales to the extent such sales or  shipments were made. 
Thus, there is no requirement to make subsequent  sales or shipments in order to obtain a new 
shipper review. In  addition, we note the requirement to provide such information was no t added to 
the Proposed Rule, but rather exists in the current  regulations. Under this same requirement, 
Commerce previously initiated  new shipper reviews where subsequent shipments or  sales did not 
occur. \43\ However, as identified above, for consistency  with the language utilized in Sec.  
351.214(b)(v)(C) and for further  clarity, Commerce is modifying Sec.  351 .214(b)(v)(B) for 
consistency  with the language utilized in Sec.  351 .214(b)(v)(C) and to clarify  that a new shipper is 
required to pro vide documentation establishing  the volume of any subsequent shipments where 
subsequent shipments have  occurred.  
---------------------------------------------------------------------------  
 \43\ See, e.g., Polyethylene Terephthalate Film, Sheet and Strip  from India: Initiation of 
Antidumping Duty and Countervailing Duty  New Shipper Reviews, 75 FR 10758 (March 9, 2010); 
see also Hardwood  Plywood Products from the People's Republic of China: Initiation of  Antidumping 
New Shipper Review; 2019, 84 FR 44862 (Aug . 27, 2019).  
---------------------------------------------------------------------------  
(d) Proposal for Documentation Requiring Proof of Multiple Sales in the  New Shipper Request  
 
 Paragraph (b) of Sec.  351 .214 outlines the requirements for  requesting a new shipper review. 
Several commenters propose that  Commerce amend Sec.  351 .214(b) of the Proposed Rule to 
require that  requestors demonstrate they have made multiple bona fide sales, as  opposed to a 
singular "sale" in their request for purposes of  initiating a new shipper review. These commenters 
argue that by using  the plural term "sales, " as opposed to the singular term "sale" in section 
751(a)(2)(B)(iv), Congress expressed its clear intent to  require multiple bon a fide sales as a pre -
requisite to obtain a new  shipper review. In their view, such single -sale reviews should be  prohibited 
because Commerce lacks the statutory authority to conduct a  new shipper review based on a singular 
sale. To support their  interpret ation of the statute, the commenters point out that only the  plural 
term "sales" is consistent with the legislative history and  language of the TFTEA, and section 
751(a)(2)(B)(iv) of the Act. In  their view, Commerce should therefore clarify in the final ru le that  
proof of multiple bona  fide sales is required to obtain a new shipper  review.  
 Response:  
 We disagree and have not accepted the suggested interpretation of  the statute or its legislative 
history, and, therefore, have left Sec.  351 .214(b) unchanged  with respect to this issue. The 
Proposed  Rule pertaining to new shipper reviews does not require proof of more than  one sale for a 
requestor to obtain a new shipper review. Declining to  create a regulatory bar to the new shipper 
review process for singular  sales is consistent with the proper construction of the TFTEA \44\ and 
section  751(a)(2)(B)(iv) of the Act, as amended, in accordance with  federal law.  
---------------------------------------------------------------------------  
 \44\ See Public La w 114 -125, section 433, 130 Stat. at 171  (enacting modifications to the Act, 
including section  751(a)(2)(B)(iv), "Determinations Based on Bona fide Sales, " in the context of new 
shipper reviews to address circumvention).  
----------------------------------- ----------------------------------------  
 Interpretative canons guide statutory construction because the  language used by Congress in 
the making of laws is often ambiguous with  respect to meaning. Title 1 of the United States Code 
codified the  interpretati ve canons that govern the construction of federal statutory  law.\45\ 
Section  1 of Title 1 specifies that, "[i]n determining the  meaning of any Act of Congress, [ . . . ] 
words importing the plural  include the singular[.] " Id. The text, context, and structu re of TFTEA  and 
section751(a)(2)(B)(iv) do not compel a departure from this  interpretative canon. \46\ 
---------------------------------------------------------------------------  
 \45\ 1 U.S.C. 1.  
 \46\ See Life Techs. Corp. v. Promega Corp., 137 S. Ct. 734 , 742. 580 US__(2017) (asserting 
that the Court's departure from 1  U.S.C. 1 that "words importing the plural include the singular " 
resulted from the statute's text, context and structure).  
---------------------------------------------------------------------------  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
- 17 - 
 
   Therefore, although Congress used the word "sales" in section 433  of EAPA in the TFTEA, and 
as a result, the plural "sales" appears in  section 751(a)(2)(B)(iv) of the Act, the use  of the plural 
form of the  word "sale" does not support the conclusion that the statute should  be construed to 
mean multiple sales are required for a new shipper  review. Pursuant to 1 U.S.C. 1, the plural "sales" 
includes the  singular "sale." Congress has not indicated to Commerce that it  intended to exclude 
single sales with its use of plural "sales" and, therefore, Commerce believes that a single sale could 
be subject to  review. Moreover, a single sale could, for example, include substantial  quantities su ch 
as thousands or even hundreds of thousands of units,  and thus does not, by itself, provide a basis 
to bar new shipper  reviews of such sales or create a per se rule that such sales are not  bona fide 
sales for purposes of the AD and CVD laws.  
 Consistent with federal law governing the construction of federal  statutes, Commerce's 
proposed new shipper review regulation does not  impose a regulatory bar to review of singular sales. 
While Commerce  will not act contrary to federal law in construing the meaning o f a statute, the 
agency believes that other practical considerations  support the position that a regulatory bar to new 
shipper reviews for  singular sales is unnecessary. First, the number of sales continues to  be a factor 
which Commerce considers in its bona fide sales analysis  conducted in a new shipper review. At the 
same time, as noted, Commerce  looks to the volume and quantity of the sales as a factor to consider  
in the context of determining whether the sales or sale is bona fide  for purposes of the AD and CVD 
laws. 
 Historically, new shipper reviews have often involved the review of  few or singular sales because 
the new shipper review provides a path  for a new entrant to the U.S. market to receive its own rate 
based on  its individual activity on an e xpedited basis. Commerce's Proposed  Rule, as adopted in this 
final rule, does not intend to limit a new  shipper's eligibility for review based on whether the applicant 
can demonstrate one (as opposed to more than one) sale, provided the sale  at issue is bo na fide for 
purposes of the AD and CVD laws.   
 
(e) The Appropriate Standard for Initiating New Shipper Reviews  
 
 One commenter requests that Commerce clarify whether the  "reasonable indication " standard 
(i.e., the same standard applied by  the ITC in its preliminary material injury determinations) is 
intended  to be the legal threshold which respondents must satisfy in order to  obtain a new shipper 
review. This commenter requests that if Commerce  intends to use this legal standard, then 
Commerce should include  language that reflects that standard in the final rule.  
 Response:  
 We have left unchanged Sec.  351 .214(b) with respect to this issue.  The Proposed Rule did not 
apply the ITC's "reasonable indication " standard for material injury determinations to the required 
showing for  the initiation of a new shipper review. Commerce intends to initiate  new shipper reviews, 
as stated in the Proposed Ru le, where there is a  "reasonable likelihood that there ultimately will be 
a bona fide sale  for Commerce to review. " \47\ Additionally, Commerce intends to  initiate new 
shipper reviews, as stated in the Proposed Rule, unchanged  in this final rule, where "there is a 
reasonable likelihood that the  unaffiliated customer will participate in the review. " \48\ Therefore,  
the standard articulated by Commerce in the Proposed Rule is the  "reasonable likelihood " standard 
which imposes a burden on the new  shipper revie w requestor to demonstrate that there is a 
reasonable  likelihood that the request for review involves bona fide sales. As  outlined in the Proposed 
Rule Sec. Sec.  351 .214(b)(2)(i) through (v),  and (vi) for countervailing duty new shipper reviews, 
unchanged  in this  final rule,  when a requestor of a new shipper review submits all of the  
documentation necessary for Commerce to perform a bona fide sales  analysis, the requestor has 
demonstrated a reasonable likelihood that  there are bona fide sales for Commerce to base its 
initiation of a new  shipper review.  
---------------------------------------------------------------------------  
 \47\ See Proposed Rule, 85 FR 49472 at 49474 (emphasis added).  
 \48\ Id. (emphasis added).  
------------------------------- --------------------------------------------  
2. Enumerated Factors for Commerce's Bona Fide Sales Analysis ( Sec.  351 .214(k))  
(a) Sections 351.214(k)(2), (k)(3), and (k)(4)  
 
 The elements outlined in Sec.  351 .214(k)(2) through (4) identify  additional fact ors that 
Commerce shall consider in determining whether  a new shipper requestor's sales are bona fide, 
consistent with section  751(a)(2)(B)(iv)(VII) of the Act. These sections provide that Commerce  shall G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
- 18 - 
 
  consider whether an exporter, producer, or customer has lines of  business unrelated to the subject 
merchandise; whether there is an  established history of duty evasion or circumvention with respect 
to new shipper reviews under the relevant order; and whether there is an  established history of 
evasion or cir cumvention with respect to new  shippers under any order in the same or similar 
industry.  
 One commenter opposes Sec.  351 .214(k)(2) of the Proposed Rule,  arguing that whether the 
producer, exporter, or customer has lines of  business unrelated to the subjec t merchandise is not 
relevant for a  bona fide sales analysis. Oppositely, another commenter supports  Commerce's 
proposed Sec.  351 .214(k)(2), a factor to analyze a new  shipper's line of businesses that are not 
subject merchandise, because  new shipper reviews have been in the past misused to engineer low  
dumping margins. This commenter argues that looking to whether the  subject merchandise is sold 
in the new shipper's existing line of  business can provide insight into whether the sale was made i n 
the normal course of business. Another commenter similarly opposes  Commerce's requirement that 
the "full operations " of a producer or  exporter requesting a new shipper review be examined as part 
of the  bona fide sales analysis. This commenter argues that  Commerce should  limit its review to the 
actual sales transactions and relationship  between the requestor and importer.  
 Additionally, two commenters oppose factors related to the history  of duty evasion which 
Commerce will consider as part of the bona fid e sales analysis listed in Sec.  351 .214(k)(3) and (4) 
of the Proposed  Rule.\49\ These commenters argue that whether there is an established  history of 
duty evasion with respect to new shipper reviews or  circumvention under the relevant antidumping 
or coun tervailing duty  order or any antidumping or countervailing duty order in the same or  similar 
industry is not relevant for a bona fide sales analysis. One of  these commenters asserts that unless 
Commerce finds collusion at play,  any wrongdoing that may have  occurred in the past is not pertinent 
to the review because there is no nexus between the current shipper and  any past wrongdoing. 
Contrary to this opposition, one commenter  supports the Proposed Rule which considers the history 
of duty evasion  of an anti dumping duty order because it would prevent further harm to  the domestic 
industry, particularly in cases where Commerce has not  applied a circumvention ruling on a 
country -wide basis.  
---------------------------------------------------------------------------  
 \49\ Id. at 49495.  
---------------------------------------------------------------------------  
 Response:  
 We have modified the mandatory factors to be considered for  purposes of the final rule. First, 
Sec.  351 .214(k)(2) is retained in  the final rule. Commerce's consideration of the lines of business 
in which the producer, exporter, or customer is engaged can be telling as  to the bona fide nature of 
the sales involved in a new shipper review.  For example, Commerce's consideration of the lines of 
business  unrelated to the subject merchandise may indicate that sales of subject  merchandise are 
entirely unrelated to the company's primary business,  that it has little or limi ted knowledge and 
expertise in the subject  merchandise, and, thus, may be indicative of whether the sale or sales  are 
considered bona fide, in conjunction with other relevant factors.  Section 351.214(k)(2) of the 
Proposed Rule, unchanged in this final  rule, will assist Commerce in developing a consistent practice 
of evaluating typical behavior of new shippers and more clearly  identifying unmeritorious claims of 
bona fide sales based on schemes to  engineer low dumping margins involving companies not 
engaged in the  relevant business for purposes of the AD and CVD laws.  
 While we have retained Sec.  351 .214(k)(2), the factors pertaining  to the history of duty evasion 
found in paragraphs (k)(3) and (4) are  removed from the final rule solely on the ground that th ese 
factors  need not be considered in every case. However, where the evidence  compels consideration, 
Commerce continues to be authorized to consider  the issue of duty evasion under an order and 
industry -wide basis. While  the evidence may not be specific to the particular new shipper, and,  thus, 
cannot by itself be considered sufficient to determine whether  the sales at issue are bona fide, such 
evidence may be indicative of a  pattern of behavior under an order or in an industry that is generally  
reflective of activity of a contrived nature and, thus, may contribute  to a finding of sales being non -
bona fide for purposes of the AD and  CVD laws (e.g., where actors within an industry tend to engage 
in similar conduct and are generally faced with simil ar facts and  circumstances, such as low barriers 
to entry, a high degree of changes  in ownership, or where an industry is typified by a high degree 
of turnover of companies). In such cases, an established history of duty  evasion or circumvention 
may be rel evant and, therefore, may be  considered by Commerce in making its determination. 
Because the  enumerated factors are not exhaustive, these types of factors, where  relevant, should 
be considered in determining whether the sales at  issue are bona fide for pur poses of the AD and 
CVD laws.  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
- 19 - 
 
  (b) Section 351.214(k)(6)  
 
 Section 351.214(k)(6) provides that Commerce shall consider "any other factor " it determines 
relevant with respect to the future  selling behavior of a new shipper, including indicia that the sale 
was not commercially viable. Several commenters support the Proposed Rule  as reflecting the 2016 
statutory changes in the TFTEA which require an  exporter or producer to demonstrate that its sale(s) 
is bona fide  pursuant to the bona fide sales factors in sect ion 751(a)(2)(B)(iv) of  the Act. One 
commenter opposes Sec.  351 .214(k)(6) of the Proposed  Rule, asserting that this section of the 
regulation provides "vague  and unlimited authority " to reject new shipper requests. Accordingly,  this 
commenter argues that Commerce should remove Sec.  351 .214(k)(6)  from its final rule to "ensure 
Commerce doesn't exceed its statutorily  granted authority " or, in the alternative, define the 
circumstances i n the regulations as to the factors it may consider in determining  whether or not to 
reject a request for a new shipper review.  
 Response:  
 We have left unchanged Sec.  351 .214(k)(6). Contrary to the  commenter's assertion that 
paragraph (k)(6) provides Com merce unlawful  and unlimited authority in analyzing a request for a 
new shipper  review, section 751(a)(2)(B)(iv) of the Act  provides that Commerce may consider "any 
other factor " it determines  relevant with respect to the future selling behavior of the pro ducer or  
exporter. This may include any other indicia that indicate whether the  sale was or was not 
commercially viable, and, thus, bona fide for  purposes of the AD and CVD laws. Accordingly, this 
section of the  Proposed Rule conforms to the intent of Congress for purposes of  examining whether 
the sales at issue are bona fide for purposes of the  AD and CVD laws.  
 Regarding the commenter's request that Commerce define the  circumstances in the regulations 
as to the factors it may consider in  determining w hether it will initiate on a request for a new shipper  
review, Commerce has three clarifications. First, regarding the request  to clarify what Commerce 
will consider in determining whether to  initiate a new shipper review, Commerce clarifies that 
normally  Commerce will initiate a new shipper review where a requestor submits  the required 
documentation necessary for Commerce to perform a bona  fide sales analysis, as outlined in Sec.  
351.214(b)(2)(i) through (v),  and (vi) in the countervailing duty context. B y providing such  
documentation, the requestor is able to demonstrate a reasonable  likelihood that the sales subject 
to the review are bona fide sales for  purposes of initiation and that the unaffiliated customer will  
participate in the review.  
 Second, Com merce notes that the factors enumerated in Sec.  351 .214(k)(1) and (2) provide 
further clarity as to the other factors  Commerce will look to, pursuant to section 
751(a)(2)(B)(iv)(VII) of the  Act. 
 Third, Commerce clarifies that, regarding the factors it ma y consider beyond those enumerated 
in the final rule, such additional  factor or factors to be considered may vary based on the facts and  
circumstances in a given case. Congress provided Commerce with the  authority to consider "any 
other factor the administ ering authority  determines to be relevant as to whether such sales are, or 
are not,  likely to be typical of those the exporter or producer will make after  completion of the 
review, " affording Commerce the flexibility to  evaluate additional factors based on  the facts and 
circumstances of a  given case. \50\ Thus, consistent with its statutory authority, Commerce  will 
continue to consider factors that it determines, based on the  facts and circumstances in a given 
case, are relevant with respect to  the future selling behavior of the producer or exporter, including 
any other indicia that the sales were not commercially viable.  
---------------------------------------------------------------------------  
 \50\ See section 751(a)(2)(B)(iv)(VII) of the Act.  
---------------------------------------------------------------------------  
(c) Whether Commerce Should Require Documentation of Genuine  Negotiations and/or Order 
Inquiries From an Unrelated Purchaser  
 
 Several commenters propose that Commerce add an additional factor  to the bona fide sales 
requirements of Sec.  351 .214(k) that would  require producers or exporters requesting a new 
shipper review to  provide documentation of "genuine negotiations or order inquiries, " such as emails 
or internal sales approval documentation from the  unaffiliated purchaser, to further ensure that new 
shippers have not  coordinated with purchasers to "engineer " lower margins.  
 Response:  
 We have not changed Sec.  351 .214(k) with respect to the proposed  change. The Proposed Rule 
requires documentation establishing the  circumstances surrounding such sale(s), including the 
producer or  exporter's offers to sell merchandise in the United States under Sec.  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
- 20 - 
 
  351.214(b)(v)(E)(1). This includes the offer s made to the unaffiliated  purchaser in the United States, 
along with information on price,  expenses, and whether such merchandise was resold at a profit 
under  Sec.  351 .214(b)(v)(D). We believe the requirements established for a  new shipper review 
request  are sufficient for purposes of the request.  In addition, Commerce is not precluded from 
requesting additional  documentation, as needed, during the course of the review, including  
documents typically examined during verification. For these reasons,  Commerc e's final rule captures 
the additional documentation we believe  necessary to prevent meritless new shipper review claims.  
 
(d) Discussion of a Single or Low Number of Sales in the Bona Fide  Analysis  
 
 One commenter argues that Commerce should explain in th e preamble  to the final rule that "a 
single or low number of sales, particularly  a single sale, will rarely be found to be bona fide, unless 
the shipper  can establish that a low number of sales is typical for the merchandise  in question in the 
U.S. market for the period covered by a new shipper  review. " Further, this commenter asserts that 
should Commerce find  that a "multiple sales " requirement cannot be implemented in every  case, 
Commerce should modify Sec.  351.214(k)(5) to read: "the quantity and number of sales; and ...  ." 
 Response:  
 We have not adopted the commenter's proposal that a single or low  number of sales will rarely 
be found to be bona fide or the commenter's  proposed modification to Sec.  351.214(k)(5) 
concerning the quantity  and numbe r of sales. Commerce makes its bona fide sales determinations  
on a case -by-case basis. Any statement, therefore, concerning the  frequency of affirmative or 
negative bona fide sales determination  would be inappropriate. However, Commerce clarifies that 
the language  in Sec.  351 .214(k)(5) identifying "the quantity of sales " as a factor Commerce will 
consider in accordance with section  751(a)(2)(B)(iv)(VII) of the Act, means the same as "number 
of sales. " Therefore, the suggested change is unnecessary.  
(3) Rescission of Initiated New Shipper Reviews  
(a) Rescission if Information To Establish Multiple Sales Is Missing  From the Record  
 
 Section 351.214(f) of the Proposed Rule describes the circumstances  under which Commerce 
may rescind a new shipper review. One commenter  argues that Commerce should amend Sec.  
351.214(f) to state that  Commerce shall rescind a new shipper review if it finds that  information to 
establish bona fide sales, plural, are missing fro m the  new shipper review request to alleviate 
administrative burdens.  
 Response:  
 As an initial matter, the commenter's position that rescission  based on lack of bona fide "sales"-
-plural, is addressed at length in  comment 1(d). To reiterate, there is no statutory or regulatory bar 
to the new shipper review process based on the existence of only one, as  opposed to more than one, 
bona fide sale. Therefore, Commerce declines  to adopt the commenter's proposal that Sec.  
351.214(f) be amended to  reflect a requ irement that multiple sales are required for a new  shipper 
review to proceed in regular course.  
 As Commerce explained in the Proposed Rule, the purpose of the  conforming amendments to 
Sec.  351 .214 pertaining to new shipper  reviews is to implement the mod ifications to 
section  751(a)(2)(B) of  the Act enacted by Congress in 2016. \51\ Therefore, we do not amend the  
Proposed Rule's rescission provision to require Commerce to rescind a  review where proof of multiple 
sales is absent from the record.  
------------ ---------------------------------------------------------------  
 \51\ See Public Law 114 -125, section 433, 130 Stat. at 171.  
---------------------------------------------------------------------------  
(b) Rescission as a Bar to Future New Shipper Review Re quests  
 
 One commenter requests that Commerce include in its final rule a  new paragraph (f)(5) that 
states: "[i]f the Secretary rescinds a new  shipper review pursuant to Sec.  351 .214(f)(3), then the 
party that  requested the rescinded new shipper review may not subsequently request  a further new 
shipper review, but must instead request an  administrative review as provided in Sec.  351 .213(b) " 
to prevent a  party from filing a new shipper review request if it failed to  establish its sales are bona 
fide. G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
- 21 - 
 
   Response:  
 We are not adopting this commenter's suggestion to add a new  paragraph (f)(5) to Sec.  
351.214. To clarify, if Commerce rescinds a  review of specific sales pursuant to Sec.  351 .214(f)(3), 
we will not  revisit that determination with respect to those particular sales as  there is finality with 
respect to Commerce's determinations. However, a  new shipper will not be barred from requesting 
a new shipper review,  consistent with Sec.  351 .214(c), for later, unreviewed, sales made  within 
one year of the date referred to in Sec.  351 .214(b)(2)(v)(A).  
(4) Procedure for Parties To Challenge a Decision Not To Initiate a New  Shipper Review at the 
Administrative Level  
 One commenter argues that the Proposed Rule is not clear regarding  what a respondent is 
required to provide to Commerce in order to obtain  a new shipper review, and that the Proposed 
Rule grants "unfettered  discretion " to Commerce on whether to initiate a new shipper review.  This 
commenter argues that because the Proposed Rule i ndicates Commerce  will determine whether the 
information provided in a new shipper  request will reasonably indicate a bona fide sale occurred in 
order to  initiate a new shipper review, Commerce will open itself up to  litigation over any 
determination not t o initiate. Therefore, this  commenter asserts that Commerce should amend its 
proposed regulation  and provide for a preliminary determination by Commerce on whether to  initiate 
a new shipper review, providing opportunities for parties to  comment and submit additional factual 
information, before making a  final decision on initiation. Relatedly, this commenter requests that  
Commerce establish "specific objective thresholds " that a requestor  needs to satisfy in order to 
obtain a new shipper review.  
 Several com menters oppose the former commenter's proposal to  establish a preliminary 
determination, briefing, and comment process  regarding Commerce's decision whether to initiate a 
new shipper review  because, these commenters assert, doing so would needlessly use  additional 
Commerce resources and provide an avenue for arbitrary  appeals of Commerce's preliminary 
determinations to the CIT.  
 Response:  
 We have left unchanged Sec.  351 .214 with respect to this issue.  Contrary to the commenter's 
concern t hat the Proposed Rule grants  "unfettered discretion " to Commerce as to whether to initiate 
a new  shipper review, Commerce's determinations whether to initiate a new  shipper review are 
limited by the requirements identified in the final  rule, including whet her the documentation 
submitted in a new shipper  review request indicates a reasonable likelihood of bona fide sales for  
Commerce to review. Additionally, as clarified in this preamble, if a  new shipper review requestor 
provides Commerce with the documenta tion identified in the proposed Sec.  351 .214(b)(2)(i) 
through (v), and (vi)  in the countervailing duty context, then the requestor will normally be  able to 
demonstrate a reasonable likelihood that there ultimately will  be a bona fide sale for Commerce to 
review and base its determination.  Thus, in such cases, Commerce will initiate a new shipper review.  
 Further, the Proposed Rule provides additional clarity as to the  specific requirements of a 
producer and/or exporter when requesting a  new shipper review. Such clarity, as provided in Sec.  
351.214(b)(iv)  and (v), offers producers and exporters "specific objective  threshold " requirements 
that a new shipper review requestor needs to  provide Commerce in order to seek a new shipper 
review. I n addition,  the procedure we have adopted provides that Commerce will not initiate  a new 
shipper review where the information submitted with the request  pursuant to the documentation 
requirements outlined in Sec.  351 .214(b)  is insufficient. In the event t hat Commerce determines 
that the  requirements for a request for a new shipper review have not been  satisfied, in denying the 
request, Commerce will provide a written  explanation of the reasons for the denial. In this way, the 
requestor  has an understanding  of the deficiencies of the request and the basis  for Commerce's 
decision. We see no reason to add further procedural  steps. These decisions are analogous to the 
requirement that Commerce  not initiate an AD or CVD investigation where the petition fails to  
provide support for the necessary elements for initiation. In those  cases, Commerce determines not 
to initiate the investigation. Here,  where a request for a new shipper review fails to meet the 
requirements  outlined in Sec.  351 .214(b), Commerce expects t o deny the requestor a  new shipper 
review.  
(5) Whether the Proposed Rule Permits Commerce Up to 6 Months To  Initiate a New Shipper Review  
 Promulgated in 1997 with the new shipper review regulations, Sec.  351 .214(d)(1) outlines the 
specific times when Commerce will initiate a  new shipper review under a relevant order: In the 
calendar month  immediately following the anniversary month or in th e calendar month  immediately G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  following the semiannual anniversary month, depending on  when a new shipper request is 
received. \52\ 
---------------------------------------------------------------------------  
 \52\ 1997 Final Rule, 62 FR 27296 at 27395.  
---------------------------------------------------------------------------  
 One commenter requests that Commerce confirm whether the Proposed  Rule will continue to 
permit up to six months for Commerce to initiate  a new shipper review and whether the goods  would 
be subject to the  residual duty during this period.  
 Response:  
 The Proposed Rule makes no change to the current regulation  pertaining to the time limits for 
the initiation of a new shipper  review (with the exception of a minor grammatical edit in p aragraph  
(d)(2)). As required by the current and proposed Sec.  351 .214(d)(1),  Commerce will initiate a new 
shipper review in the calendar month  immediately following the anniversary month or the 
semiannual  anniversary month if the request for the review is made during the six -month period 
ending with the end of the anniversary month or the  semiannual anniversary month (whichever is 
applicable). \53\ The regulation thus requires Commerce to initiate a new shipper review  pertaining 
to an order during two months in a calendar year: (1) In the  month after the order's anniversary 
month; and (2) in the month after  the order's semiannual anniversary month. Given that the two 
months in  which Commerce may initiate a new shipper review are separated by six  months, the rule 
does permit six months for Commerce to initiate a new  shipper review. However, the time permitted 
depends on when the new  shipper requests a review. For example, the rule provides for a much  
shorter time period for the initiation of a new shi pper review based on  the proximity to the 
anniversary and semiannual anniversary of the  relevant order.  
---------------------------------------------------------------------------  
 \53\ See Proposed Rule, 85 FR 49472 at 49494.  
---------------------------------------------------------------------------  
 With respect to the comment to confirm whether the merchandise  would be subject to a duty, 
in accordance with Sec. 351.214(e) of the  Proposed Rule, Commerce will direct the suspen sion or 
continued  suspension of liquidation for any unliquidated entries of subject  merchandise from the 
relevant exporter or producer at the applicable  cash deposit rate upon its initiation of the new shipper 
review.  
(6) Whether the New Documentation Requ irements Identified in Sec. 351.214(b) of the Proposed 
Rule Applies to Expedited Reviews  
 One commenter requests that Commerce clarify that expedited reviews  in CVD proceedings for 
non-investigated exporters do not impose the new  documentation requirements listed in the 
Proposed Rule pertaining to  the initiation of a new shipper review. This commenter asserts that  there 
is no reason to apply such requirements to expedited reviews  based on the current language of Sec.  
351.214(l)(3).  
 Response:  
 The Proposed Rule addressed new shipper review requests, and was  not intended to, and does 
not, impose new documentation requirements  for requesting expedited reviews. Apart from the 
request, however, in  the context of an expedited review, as with administ rative reviews, a  
respondent may be subject to a bona fide sales analysis, where the  facts or circumstances warrant 
examination.  
Scope --Sec.  351 .225 
 Section 351.225 covers procedures in which Commerce addresses  scope -related matters 
following the issuance of an AD or CVD order,  most frequently through a scope inquiry and scope 
ruling. We received  many comments and rebuttal comments on the proposed provisions under  this 
regulation. Below, we briefly discuss each provision, address any  comments recei ved, and, where 
appropriate, explain any changes to the  Proposed Rule in response to comments. In addition, we 
explain  additional modifications to the Proposed Rule where we have determined  that such 
amendments brought Sec.  351 .225 into greater conformity  with circumvention and covered G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  merchandise regulations Sec. Sec.  351 .226 and 351.227, or otherwise provided greater clarity to 
these  regulations.  
1. Section 351.225(a) --Introduction  
 Section 351.225(a) is the general provision set forth in the  beginning of the scope regulations, 
in which Commerce has explained  that it will conduct a scope ruling at the request of an interested  
party or on Commerce's initiative. One of the proposed modifications is  the addition of Commerce's 
understanding that a scope ruli ng that a  product is covered by the scope of an order is a 
determination that the  product in question has always been covered by the scope of that order.  
Commerce also explained in the preamble to the Proposed Rule that it  was removing the term 
"clarify " from the existing regulations because  scope inquiries are "intended to cover a wide variety 
of scope  questions, and are not intended to be restrictive to only those  scenarios in which certain 
language in the scope requires  'clarification .' " \54\ 
-------- -------------------------------------------------------------------  
 \54\ Id., at 49476 -77. 
---------------------------------------------------------------------------  
 Commerce received multiple comments on this provision. Several  commenters express 
complete support for the provision as written,  emphasizing that concerns about evasion and duty 
collection should be  one of the primary drivers Commerce considers in designing and  implementing 
its revised scope regulations. Those commenters also  stress that the Federal Circuit has issued 
multiple holdings which  support Commerce's interpretation of its scope rulings that a  determination 
in a scope ruling that a product is covered by the scope  of an order means that a product has always 
been covered b y the scope  of an order. \55\ 
---------------------------------------------------------------------------  
 \55\ See, e.g., Bell Supply Co. v. United States, 888 F.3d 1222,  1229 (Fed. Cir. 2018) (Bell 
Supply) (stating that extending the  reach of a scope dete rmination backwards is consistent with the  
Federal Circuit's finding that a determination of origin of imported  merchandise for the purposes of 
a scope ruling necessarily precedes  a circumvention inquiry); AMS Associates, Inc. v. United States, 
737 F.3d 13 38, 1343 -1344 (Fed. Cir. 2013) (AMS); Sunpreme, 946 F.3d at  1316-1322; United Steel 
and Fasteners, Inc. v. United States, 947  F.3d 794, 801 -803 (Fed. Cir. 2020) (Fasteners).  
---------------------------------------------------------------------------  
 Other  commenters challenge that understanding of scope coverage.  They argue that such an 
interpretation of a scope ruling would have an  unfair effect on importers and sureties, with one 
commenter citing to a  1999 scope ruling in which Commerce modified a scope after a scope  ruling, 
as an example in which importers were unfairly forced to pay  duties when they did not believe their 
entries were subject  merchandise, and could not have been expected to know their merchandise  
was covered by an order. \56\ 
------ ---------------------------------------------------------------------  
 \56\ See Notice of Scope Rulings and Anticircumvention  Inquiries, 65 FR 41957, 41958 
(July 7, 2000) ( "pasta in packages  weighing (or labeled as weighing) up to and including five pounds , 
four ounces is within scope; May 24, 1999. "); see also Certain  Pasta From Italy: Final Results of 
Antidumping Duty Administrative  Review, 65 FR 77852, 77853 (Dec. 13, 2000) ( "On October 26, 
1998,  the Department self -initiated a scope inquiry to determine  whether a  package weighing over 
five pounds as a result of allowable industry  tolerances is within the scope of the antidumping and 
countervailing  duty orders. On May 24, 1999 we issued a final scope ruling finding  that, effective 
October 26, 1998, pasta in packages weighing or  labeled up to (and including) five pounds four 
ounces is within the  scope of the antidumping and countervailing duty orders. "). 
---------------------------------------------------------------------------  
 In rebuttal comments, some challenge Commerce's removal of the word  "clarify " and argue 
that scope rulings should only apply  retroactively when the scope is "clear" and not "ambiguous, " 
while others disagree that importers would be penalized by the proposed  modifications to the 
regulations. It was pointed out that in the 1997  Final Rule, Commerce expressed concerns that "[i]t 
would be extremely  unfair to importers and exporters to subject entries not already  suspended to 
suspension of liquidation and possible  duty assessment  with no prior notice and based on nothing G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  more than a domestic  interested party's allegation, " \57\ but that such concerns never came  to 
fruition, and, in fact, the primary users of scope proceedings have  been importers and foreign 
exporte rs. Those commenters went on to argue  in their rebuttal comments that any arguments 
based on the innocence of  importers is misplaced, as concerned importers have appropriate tools  
available to them through scope rulings to determine whether a product  may b e covered by the 
order.  
---------------------------------------------------------------------------  
 \57\ 1997 Final Rule, 62 FR 27296 at 27328.  
---------------------------------------------------------------------------  
 Response:  
 When Commerce initiates a scope inquiry, the purpose of that  inquiry is to determine whether 
a product is covered by the language of  the scope of an AD/CVD order. The scope of an order (i.e., 
the description of the class or kind of merchandise subject to the order)  is established during the 
investigation and published in the Federal  Register notice of the final determination and order. \58\ 
As explained  further below in the discussion of Sec.  351 .225(l), the publication of  the scope of an 
order in the Federal Register generally provides notice  to producers, exporters, and importers that 
their products may be  covered by the scope of the order. The fact that an importer did not  declare 
merchandise as subject to an AD and/or CVD order for a period  of time before C ommerce issued a 
scope ruling, for whatever reason,  does not mean the product was not covered by the scope up until 
the scope ruling was issued. If a product is found to be covered by the  language of the scope, then 
the product has always been covered by t hat language. As some commenters note, the  Federal 
Circuit has stated through a variety of cases that the current  regulations do not adequately 
acknowledge this fact. \59\ Accordingly,  we are adopting proposed paragraph (a), with some minor 
modifications  to more clearly emphasize this point.  
---------------------------------------------------------------------------  
 \58\ See section 706(a)(2) of the Act; section 736(a)(2) of the  Act; section 771(25) of the Act.  
 \59\ AMS, 737 F.3d at 1343 -1344; Sunpreme, 94 6 F.3d at 1316 - 1322; Fasteners, 947 F.3d at 
801-803. 
---------------------------------------------------------------------------  
 Further, as discussed above, the statute is silent regarding the  procedures and standards that 
Commerce may apply in issuing a scope  ruling. In the absence of any such statutory guidance, 
Commerce's  position is that a factual determination that a product is covered by  the scope of the 
order amounts to a determination that the product has  always been covered by the scope of the 
order. With respect to issues  concerning the application of such a determination to certain entries  of 
products and notice to exporters and importers, those issues are  addressed below in response to 
comments under Sec.  351 .225(l).  As discussed below, the purpose of these modifications is not to 
penalize  companies acting in good faith, but to ensure that scope rulings are  properly applied to 
products that are covered by the scope of an order.  
 Additionally, as we also explained in the preamble to the Pr oposed  Rule, Commerce's scope 
rulings frequently do more than merely clarify  the language of a scope, and we do not believe the 
degree of ambiguity  or clarity of the coverage of a particular product in the language of a  scope 
should support or detract from  the fact that a product which is  determined to be covered by an order 
has always been covered by an  order, and a product which Commerce determines is not covered by 
the scope of an order was not covered by the scope of that order before the  scope ruling w as issued.  
 Furthermore, we agree with the commenters who explain that any  concerned importer who 
believes a scope is unclear or is uncertain  whether its entries may be covered by an AD/CVD order 
has the  appropriate tools available to it, through these reg ulations, to  request a scope ruling.  
 With respect to the 1999 scope ruling raised by one of the  commenters which modified the text 
of a scope, the Federal Circuit in  several subsequent holdings explained that Commerce does not 
have the  authority to outrig ht change the scope of an order through  reinterpretation in a scope 
ruling. \60\ There are other means, such as  changed circumstances reviews under section 751(b) of 
the Act, through  which the scope may be modified, but with respect to scope rulings,  Commer ce will 
not modify the text of a scope in the context of a scope  inquiry. \61\ In addition, Commerce may 
conduct a circumvention inquiry  under section 781 of the Act to determine whether certain types of  
products are covered by the scope of the order.  
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- 25 - 
 
   \60\ See Notice of Scope Rulings and Anticircumvention  Inquiries, 65 FR 41957, 41958 
(July 7, 2000) ( "pasta in packages  weighing (or labeled  as weighing) up to and including five pounds,  
four ounces is within scope; May 24, 1999. "); Certain Pasta From  Italy: Final Results of Antidumping 
Duty Administrative Review, 65  FR 77852, 77853 (Dec. 13, 2000); Duferco Steel, Inc. v. United  
States, 296 F. 3d 1087, 1095 (Fed. Cir. 2002) (Duferco) ( "Commerce  cannot `interpret' an 
antidumping order so as to change the scope of  that order, nor can Commerce interpret an order in 
a manner contrary  to its terms. ") (citing Eckstrom Indus., Inc. v. United States, 25 4 F.3d 1068, 
1072 (Fed. Cir. 2001)).  
 \61\ This is distinguished from a scope clarification, found in  the new provision section 225(q). 
A scope clarification does not  change the scope of an order but does clarify the scope --frequently  
through a footnote to  the scope of the order.  
---------------------------------------------------------------------------  
 Finally, to bring this provision into conformity with language used  in other provisions under Sec.  
351.225, as well as language which was  already contained in proposed Sec.  351 .225(a), we have 
replaced  references to a product being "within " the scope of an order to a  description of the product 
at issue being "covered by the scope of an  order. " This change is made only to use consistent 
terminology, and  not to modify the meaning of the provision.  
2. Section 351.225(b) --Self-Initiation of Scope Inquiry  
 Section 351.225(b) addresses Commerce's authority to self -initiate  a scope ruling. In the 
Proposed Rule, Commerce indicated that if it  self-initiated a scope inquiry, it would notify all parties 
on the  annual inquiry service list. The only comments that Commerce received  on this provision 
pertained to notice of the agencies' decision to  initiate. Specifically, commenters worry that 
produc ers, exporters,  importers, sureties, and foreign governments who were not on the annual  
inquiry service list might not get sufficient notice under that  procedure should Commerce self -initiate 
a scope ruling. They,  therefore, suggest that Commerce publish i ts self -initiation in the  Federal 
Register.  
 Response:  
 In response to those comments, we have revised our notice  requirements for self -initiation. The 
regulation now provides that if  Commerce self -initiates a scope inquiry, it will publish a notice of  
initiation in the Federal Register, as suggested by certain commenters.  We believe this will satisfy 
all notice concerns raised by the  commenters pertaining to this provision.  
3. Section 351.225(c) --Scope Ruling Application  
 Section 351.225(c) sets forth the requirements for an interested  party \62\ to submit a 
standardized scope ruling application. This is a  significant change from Commerce's current 
procedures, which do not  require a detailed standardized application. Commerce explained in the  
preamble to th e Proposed Rule that it was now requiring an application,  with specific information 
required in that application, as a result of  various concerns, including the fact that "scope ruling 
requests do  not always include the requisite sufficient description and supporting  information 
necessary for Commerce to complete an analysis. " \63\ 
---------------------------------------------------------------------------  
 \62\ The term "interested party " is defined in section 771(9)  of the Act, and pertains , for 
example, to "foreign manufacturers, " "producers, " "exporters, " or "United States importers " "of 
subject merchandise. " However, the nature of a scope ruling is to  determine whether the 
merchandise produced, imported by, or exported  by a party is subje ct to an AD or CVD order. Thus, 
in many cases,  the question of whether a party is an "interested party " depends  in part on whether 
the merchandise at issue is subject merchandise.  Accordingly, for purposes of these scope 
regulations, the term  "interested p arty" includes a party that would meet the definition  of "interested 
party" under section 771(9) of the Act, if the  merchandise at issue in the scope inquiry is in fact in -
scope. This  clarification of the term "interested party " for purposes of this  regulation is in no way 
intended to weaken the requirement that the  product is, or has been, in actual production as of the 
filing of  the scope ruling application, as required by paragraph (c)(1).  
 \63\ Proposed Rule, 85 FR 49472 at 4 9477.  
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- 26 - 
 
   Several commenters indicate their strong support for the  standardized application procedure, 
and both they, and other  commenters, provide suggestions to modify the applicati on requirements.  
One commenter argues that Commerce should provide further guidance on  what the phrase "to the 
extent reasonably available " means, while  others complain that requests for "narrative history of 
the production  of the product " and the "volume of annual production of the product  for the most 
recently completed fiscal year " would be too burdensome  for certain parties. Others complain that 
the application would seem to  require more data from producers, exporters, and importers of certain  
merchandi se than a requesting domestic industry, and one claims that  Commerce seemed to request 
unnecessary or "superfluous " data, such as  "past models of products. " 
 Certain commenters also suggest that the application require  further detailed quantity and value 
data, including a disclosure of how  much scope inquiry merchandise was imported or shipped to the 
United  States without the payment of duties. Further, they argue  that Commerce should request the 
identity of an importer's U.S.  customer or customers if the product was already imported into the  
United States. They argue that the provision of the quantity and value  information, as well as the 
customer lists, would provide further  enforcement tools to Commerce in administering and 
implementing its scope rulings.  
 In addition, another commenter argues that Commerce should require  that a scope applicant 
indicate in the application if any of its  imports are currently subject to suspension of liquidation and 
cash deposits.  
 Another commenter suggest s that Commerce insert this clause at the  end of Sec.  
351.225(c)(2)(i)(C): ". . . and copies of any Customs  rulings relevant to the tariff classification, " 
because it claims that  such additional information would permit Commerce and other interested  
parties to verify the scope requestor's classification as accurate. The  same commenter also voices 
concerns about Commerce's proposed  requirement of a "concise public description of the product, " 
in Sec.  351 .225(c)(2)(ii), without any details about what would be included in that description, 
claiming that the lack of clarity in that  respect could lead to confusion, manipulation by the party 
filling out  the application, and litigation concerns.  
 Furthermore, another party expresses its concerns that once a  certain number of years have 
passed since an investigation or earlier  administrative review segments, and certain proprietary 
versions of the  requested information once available to the requestor are no longer  available to 
interested parties under the terms of an APO, Commerce  should consider adopting a procedural 
mechanism to allow parties access  to such data, or at least provide a procedure by which Commerce 
itself could place the proprietary versions of documents on the record of the  scope inquiry.  
 In rebuttal comments, one commenter disagrees that Commerce should  request additional 
quantity and value information, or customer lists,  noting that such information requests would be 
unduly burdensome to  respond to and completely unnecessary to Commerce's  determination if a  
product is subject to an AD or CVD order.  
 Response:  
 We have considered all of the comments received on this provision  and have determined to 
make certain modifications to the proposed Sec.  351 .225(c); some in response to the comments  
raised and others to  clarify the information which Commerce needs from a requestor to  initiate a 
scope inquiry.  
 First, as explained in more detail in the discussion of Sec.  351 .225(j) below, Commerce 
continues to recognize that, in addressing  country of  origin issues in the context of Commerce 
proceedings,  Commerce is not bound by the country of origin determinations of other  agencies, such 
as CBP. \64\ That said, such determinations may be  informative to our analysis, and are identified 
as relevant secon dary interpretive sources under Sec.  351 .225(k)(1), discussed below.  Therefore, 
we agree with the commenter that proposes requesting copies  of any Customs rulings relevant to a 
given tariff classification. Such  rulings would be beneficial to our analysis,  and we have included that  
request in our regulation.  
---------------------------------------------------------------------------  
 \64\ While the "Department may consider the decisions of  Customs, it is not obligated to follow, 
nor is it bound by, the  classification determinations of Customs. . . . " Wirth Ltd. v.  United States, 
5 F. Supp. 2d 968, 973 (CIT 1998) (Wirth)  ("Commerce, not Customs, has authority to clarify the 
scope of AD/  CVD orders and findings. "). 
---------------------------------------------------------------------------  
 Second, we also agree with the same commenter that there should be  some clarification as to 
the requirements of the concise public  summary, and have modified the regulation to ref lect that 
the physical  characteristics of the product, the countries where the product is  produced and from 
which it is exported, the declared country of origin  (if imported and known to the requestor), and G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
- 27 - 
 
  the product's tariff  classification should all be  included in that concise public summary of  the 
product's description. Because Commerce sometimes conducts scope  inquiries on merchandise that 
is already in commercial production but  has not yet been exported to the United States, we recognize 
that there  may be cases in which there is no declared country of origin to report  under Sec.  
351.225(c)(2)(i)(B).  
 Third, we realize that the proposed regulations neglected to note  that we need parties to identify 
the countries of production, export,  and declared ori gin, both in the detailed description of the 
product,  as well as the concise public summary of the product's description, for  our scope inquiry 
analysis. Accordingly, we have added those  requirements to the list of necessary information 
requested in the  application.  
 Fourth, we are no longer requiring the names and addresses of the  producers, exporters, and 
importers in the public summary, but we still  need such information in the detailed description of 
the product in the  application, so we have modified  the language to reflect that change.  
 Fifth, we recognize that the term "physical characteristics " is a term used in Commerce's current 
regulations, and includes not only  chemical and technical characteristics, but dimensional  
characteristics, as well (su ch as the height, length, circumference,  and width of a product). We have, 
therefore, revised the regulations to  once again use the term "physical characteristics " and noted 
that the  term "physical characteristics " includes all of those additional  descript ive terms. It is our 
understanding that the term "technical  characteristics, " which is not defined, covers a wide array of  
characteristics, such as the mass or weight of the product, the volume  of the product, the buoyancy, 
conductivity, and aerodynamic pr operties  of product, and even various mechanical characteristics 
and properties  of the product, such as elasticity, tensile strength, elongation,  ductility, brittleness, 
malleability, plasticity, and hardness of the  product. Furthermore, we wish to be clea r that by using 
the term  "including " in this description, we are expressly indicating that we  do not believe these 
descriptors are exhaustive. Frequently, the  physical characteristics relevant to a scope ruling are 
almost entirely  dependent on the language  used in the scope of an order to describe the  particular 
product, as well as the additional descriptions provided in  the petition or during the underlying 
investigation. Accordingly, our  use of this term is meant to be broadly interpreted and adaptable to  
the facts of a given scope and inquiry.  
 Sixth, and finally, we have clarified in Sec.  351 .225(c)(2)(vi)  that, for imported merchandise 
that an importer has declared to be  subject to an order, or for merchandise which has been 
determined by  CBP to be subject to an order, we need the applicant to provide an  explanation for 
either situation in the application. The language  provided in proposed Sec.  351 .225(c)(2)(v) was 
unclear in that regard,  appearing to only request information if CBP had det ermined the entry  was 
covered by the scope of the applicable order and not if the  importer had declared it to be subject to 
an order upon importation.  
 On the other hand, we do not believe that quantity and value data,  or customer lists, should be 
provided  to Commerce in every scope  application, as requested by certain domestic producers. 
Although we  agree that such information might be of value to Commerce's analysis in  certain 
situations, we do not believe that in most scope rulings such  information would  inform our 
determination as to whether a product at  issue is covered by  the scope of an order. Instead, in those 
cases in which Commerce  determines that quantity and value data, or customer lists, might be of  
value to Commerce's analysis, Commerce retains  the authority to request  that information of the 
applicant or other interested parties to the  scope inquiry. Accordingly, we will not include this 
additional data  request in the scope application.  
 In addition, although we do request that an applicant mak ing a request for a scope inquiry on 
a product already imported into the  United States as of the date of the scope ruling application 
indicate  whether an entry of the product has been declared by an importer, or  determined by CBP, 
as subject to an order, u nder Sec.  351 .225(c)(2)(vi), we do not believe it is necessary to also 
request  that the applicant inform us if imports of the merchandise at issue are  currently subject to 
suspension and cash deposits. We agree with the  commenter that such information might be relevant 
at some point in our  inquiry, for example, for purposes of our CBP instructions under Sec.  
351.225(l). \65\ However, for purposes of evaluating a scope application  to determine if a product is 
covered, or not covered, by the s cope of  an AD/CVD order, it is only whether the product has been 
previously  declared by an importer, or determined by CBP, as subject to an order  which is relevant 
to our analysis under Sec.  351 .225(k). Notably, if a  producer, exporter, or petitioner is t he party 
filing the scope inquiry  application, unlike the importer, they may not even know if the product  at 
issue is currently subject to suspension and cash deposits.  
---------------------------------------------------------------------------  
 \65\ As di scussed further below, Commerce is modifying Sec.  351 .225(l) to provide that 
Commerce normally will apply a scope  ruling that a product is covered by the scope of an order to  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
- 28 - 
 
  unliquidated entries not yet suspended which entered prior to the  date of initia tion of the scope 
inquiry, with certain exceptions.  One of those exceptions would allow for a party to timely request  
that Commerce consider whether to direct CBP to suspend liquidation  and collect cash deposits at 
an alternative date. Such request must  be based on a specific argument supported by evidence 
establishing  the appropriateness of that alternative date, as explained further  below.  
---------------------------------------------------------------------------  
 In response to the concerns expressed by  some of the commenters  that they would be unable 
to obtain all of the information listed, that  is the reason we have included the words "to the extent 
reasonably  available to the applicant " in this paragraph. Whether or not  information is reasonably 
available to an applicant will be a  determination made on a case -by-case basis. We understand that  
interested parties requesting a scope ruling may not have access to all  the information that is listed, 
and despite the criticisms of some of  the commenters, it is a fact that domestic industries will likely 
have less information about a particular exporter and its production  experience, for example, than 
the producer, exporter, and possibly  importer of that product. Accordingly, Commerce will allow  
applicants  to explain the reasons they do not have certain information when  filling out the scope 
application. Further, Commerce retains the  authority to either issue supplemental questions about 
those  explanations if necessary, or reject a scope ruling a pplication  entirely, if Commerce determines 
that it cannot conduct a scope inquiry  in the absence of the missing information at issue.  
 Accordingly, the information identified in the Proposed Rule for  the scope application has 
remained largely the same in this final rule,  as we believe those data requests, including information 
as to the  history of earlier versions of the product if this is not the first  model of the product under 
Sec.  351 .225(c)(2)(C)(iv), are important to  our scope analysis. Again, if a party is unable to provide 
certain  information, and can provide a reasoned explanation as to why those  data are unavailable, 
Commerce will consider such claims in determining  whether to accept or reject an application or 
issue supplemental  questionnaires.  
 Finally, with respect to the request that Commerce create a  procedure to place proprietary 
information on the record of a scope  inquiry from proceedings which are a few years old, or make 
such data  generally available to a scope applicant, we have determi ned not to  implement such a 
procedure in these regulations. To the extent that  information is relevant for a scope application, we 
believe public data  will likely usually suffice. We do not believe that Commerce should  establish a 
whole new regulatory exce ption to the APO procedures for  what we foresee as a rare occurrence in 
which an interested party seeks  access to proprietary data no longer available for use in a scope  
application.  
4. Section 351.225(d) --Initiation of a Scope Inquiry and Other Actions  Based on a Scope Ruling 
Application  
 Section 351.225(d) of the modified regulations provides for the  process by which a scope inquiry 
may be initiated based on a scope  application. Certain commenters indicate that they support 
Commerce's  determinat ion to deem a scope inquiry automatically initiated if no  further action is 
taken within 30 days, while another commenter  requests that Commerce publish notice of its scope 
applications and  initiations in the Federal Register to provide notice to intereste d parties who may 
not be on the annual inquiry service list. In addition,  another commenter argues that Commerce 
should provide surety companies  with notice of scope initiations so that they can participate in scope  
inquiry proceedings that are relevant to  their interests.  
 In related comments, several commenters argue that Commerce should  allow interested parties 
an opportunity to submit comments and factual  information prior to initiation of a scope inquiry.  
 Response:  
 As explained above, Commerce has mo dified its self -initiation  procedures under Sec.  
351.225(b) to publish notice of the self - initiation in the Federal Register. However, given deadlines 
and complications in scope inquiry procedures initiated pursuant to a scope  application, consistent 
with our current procedures, we will not  publish notices of initiations of scope inquiries in the 
Federal  Register under Sec.  351 .225(d). Instead, we will, as requested by a  commenter, under Sec.  
351.225(d)(2), publish on a monthly basis a  notice in the Federal Register that lists scope 
applications from the  past couple of months filed with Commerce. It is our expectation that  usually 
that list will reflect most, if not all, of the scope  applications filed over the past month, but we also 
recog nize that  given certain timing constraints, issues frequently arise which make  that goal 
impractical --such as when an application has been filed after  the monthly notice has been sent to 
the Federal Register for  publication. In that situation, it would be understood that the scope  
application would be included in the following month's Federal Register  notice.  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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   We have added this requirement to ensure adequate notification is  provided via the 
Federal  Register to interested parties not on the  annual inquiry s ervice list. By listing the applications 
received by  Commerce requesting a scope inquiry, it is our expectation that the  descriptions of the 
applications will give all interested parties an  opportunity to consider if the scope inquiry request is 
relevant t o them and their interests, and allow them the opportunity to file a  notice of appearance 
with Commerce on the record of that scope inquiry.  To the extent that surety companies wish to 
have notice of Commerce's  scope inquiries, although they are not intere sted parties under 
section  771(9) of the Act (as discussed further below regarding Sec.  351 .225(l), comment 12(f)),  
this monthly published list will also provide them with that notice.  
 It is our expectation that the Federal Register list will include,  where appropriate, for each scope 
application the following data: (1)  Identification of the AD and/or CVD orders at issue; (2) a concise  
public summary of the product's description, including the physical  characteristics (including 
chemical, dimen sional and technical  characteristics) of the product; (3) the country(ies) where the 
product  is produced and the country from where the product is exported; (4) the  full name of the 
applicant; and (5) the date that the scope application  was filed with Comm erce. We anticipate that 
Commerce may include  additional information in the monthly Federal Register list at its  discretion 
and may leave off the list references to applications which  have been rejected and not properly 
resubmitted . 
 In addition, Commerce has revised Sec.  351 .225(d) to explain that  deemed initiation will only 
occur if Commerce has neither rejected the  scope application nor initiated the scope inquiry at an 
earlier date,  and that after 30 days the scope application will be deemed accepted  and the scope 
inquiry will be deemed initiated.  
 In response to complaints that Commerce should permit parties a  greater amount of time in 
which they can submit comments on the scope  application before initiation, we have declined to 
modify our  regulations in that manner. Interested parties on the annual inquiry  service list, as 
provided under Sec.  351 .225(n), will be  electronically notified soon after an application is filed with  
Commerce, and the applicant will otherwise serve the application on  those int erested parties in 
accordance with Sec.  351 .225(c) and (n).  Those parties will, therefore, have an opportunity to file 
arguments  with Commerce before initiation. \66\ Nonetheless, even if they do not  file comments on 
the application before it is deemed acc epted and the  scope inquiry is initiated, they will also have 
an opportunity  afterward to comment on the application and provide responsive facts  and arguments 
on the record, in accordance with Sec.  351 .225(f). This  is true for interested parties who rece ived 
notice of the filing of the  scope application in the Federal Register as well, as described in this  
provision.  
---------------------------------------------------------------------------  
 \66\ Given the short turn -around of scope initiations, at its  discretion, Commerce may, but is 
not required to, consider such  arguments before a scope inquiry is initiated.  
---------------------------------------------------------------------------  
 We recognize that under Commerce's current practice, interested  parties frequently submit 
comments prior to the initiation of a scope  inquiry in order to provide Commerce with add itional 
factual  information that rebuts or clarifies a scope ruling request. However,  we believe that, under 
the new scope inquiry procedures, the need for  such an opportunity to submit comments/additional 
factual information  pre-initiation will be largely  alleviated with Commerce's proposed  standardized 
scope ruling application because use of the scope ruling  application should result in more fulsome 
and complete information  being filed at the outset.  
 We continue to believe that requiring a more fulsome s tandardized  scope application (rather 
than what is required in the current  regulation), and having a scope application deemed accepted 
and a scope  inquiry commenced after 30 days, is reasonable and will speed up  Commerce's scope 
ruling procedures. If we we re to extend that time  longer, as requested by several commenters, that 
goal would be less  likely to be achieved. Therefore, we have made no modification to the  timetable 
spelled out in Sec.  351 .225(d) from that set forth in the  Proposed Rule.  
 Finally, w e have also added a provision to Sec.  351 .225(d) that if  Commerce determines upon 
review of a scope ruling application that the  scope issue should be addressed in another, ongoing 
segment of the  proceeding, such as a circumvention inquiry, then Commerce w ill notify  the applicant, 
within 30 days after the scope ruling application has  been filed, that the agency will not initiate the 
scope inquiry, but  address the scope issue in that other segment.  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  5. Section 351.225(e) --Deadlines for Scope Rulings  
Section 351.225(e) provides that Commerce shall issue a final scope  ruling within 120 days after 
the date on which the scope inquiry was  initiated, although it may be extended up to an additional 
180 days for  good cause (for a fully -extended total of 300 d ays). This was a change  from the 45 -day 
deadline in the current regulations, which Commerce  explained in the preamble to the Proposed Rule 
has been a "difficult  and frequently unworkable deadline. " \67\ Commerce explained that the  shorter 
deadline led to "unnecessary delay and questions on the part  of outside parties, " and if Commerce 
had to solicit and "receive new  factual information and comments from numerous parties, " it left  
"little time to consider the evidence and arguments and reach a well - reasoned  decision within the 
time allotted. " \68\ Therefore, Commerce  frequently had to extend deadlines in a large number of 
its scope  inquiries. Accordingly, Commerce revised these regulations to provide  for a more realistic 
and manageable timetable.  
----------- ----------------------------------------------------------------  
 \67\ Proposed Rule, 85 FR 49472 at 49478.  
 \68\ Id. 
---------------------------------------------------------------------------  
 We received many comments and rebuttal comments on this provision.  One commenter argues 
that the current 45 -day deadline is already too  long for certain simple and non -controversi al scope 
rulings. If  Commerce has the authority to extend the 45 -day deadline for good  cause, the elimination 
of the importers' ability to obtain a scope  ruling within 45 days is unnecessary because the agency 
can already  achieve a short delay when necessa ry under its current regulations. The  same 
commenter also opposes removing the distinction between an  informal and formal scope ruling under 
the current regulations, arguing  that, in fact, such a change would slow down the scope ruling 
process  rather than speed it up and the 120 -day deadline would become the  automatic default in 
every case. That commenter, therefore, argues  Commerce should make no changes to its scope 
inquiry procedures in the  modified regulations.  
 Other commenters argue that Commerce shou ld not just have a  deadline for final scope rulings, 
but should also have a deadline for  preliminary scope rulings, i.e., when Commerce determines to 
issue a  preliminary scope ruling. They express concern that there could be a  period of time between 
the in itiation and the preliminary scope ruling  where potential subject merchandise is being 
liquidated without regard  to duties, given that entries are deemed liquidated by operation of law  
after one year. The commenters suggest that Commerce should establish a  deadline for preliminary 
scope rulings of no later than 150 days after  initiation. They argue that this would be consistent with 
Commerce's  proposed circumvention regulations, which identify a 150 -day deadline  for preliminary 
circumvention determinations.  
 Furthermore, one commenter argues that Commerce should inquire into  whether an importer 
has entries of the merchandise at issue subject to  suspension of liquidation or cash deposit 
requirements under the AD or  CVD order at issue, and if that entity's imports are not currently  being 
suspended or subject to cash deposits, the regulations should  mandate that Commerce issue a 
preliminary scope ruling no later than  120 days after  initiation of the scope inquiry, to ensure relief 
to the injured  domestic industry.  
 In addition, two other commenters express concern over the fully  extended deadline of 
300 days. They argue that such a deadline is  excessive, inconsistent with other provisions in the 
proposed  regulations, and that providing Com merce with six more months to  consider a scope ruling 
request would increase burdens on U.S.  companies in terms of legal and business uncertainty.  
 In their rebuttal submissions, certain commenters agree with the  request for a 150 -day deadline 
for prelimin ary scope rulings, and  strongly disagree with the argument that Commerce should retain 
its 45 -day deadline. They point out that the proposed regulations do not  preclude Commerce from 
issuing its scope ruling before the 120 -day deadline, only that the 120 -day deadline is a maximum 
deadline. Indeed,  certain domestic industry commenters state that they believe that the  120-day 
deadline will result in more predictable, and possibly shorter,  deadlines than under the current 
system, where they claim there have  been too many extensions, and that each day Commerce does 
not initiate  or issue a scope ruling is another day where injury to the domestic  industry occurs.
 Further, in their rebuttal submissions, certain commenters  challenge the idea that the length of 
a sco pe inquiry is unfair to  importers, arguing that if an importer conducts proper due diligence,  it 
will have the appropriate tools to analyze whether its product may  or may not be covered by an 
order, and if it does not, it should  request a scope ruling soon er rather than later. Due diligence, 
they argue, is a best practice and should not be seen as an unreasonable  burden or unfairness to 
importers.  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
- 31 - 
 
   Response:  
 After considering the submitted comments regarding scope segment  deadlines, we have 
determined not to modify the deadlines set forth in  the proposed Sec.  351 .225(e). For all of the 
reasons we explained in  the preamble to the Proposed Rule, the current system is unwieldy and  
forces Commerce to issue multiple extensions. We also disagree t hat the  current system of an 
informal and formal scope ruling dichotomy is a  preferable way to conduct our scope rulings. As we 
also explained in  the Preamble to the Proposed Rule, the distinction between those two  procedures 
sometimes causes confusion and  adds unnecessary delay to our  proceedings; accordingly, we 
believe the burden resulting from the  current system outweighs the benefit of a simpler, single scope 
inquiry  procedure. \69\ 
----------------------------------------------------------------------- ---- 
 \69\ Id. at 49478.  
---------------------------------------------------------------------------  
 Furthermore, we believe the use of a standardized scope application  and a 120 -day deadline is 
reasonable, and if a case is complicated and  good cause exis ts to warrant an extension, allowing 
Commerce to extend  its scope inquiry proceedings up to an additional 180 days is also  reasonable. 
As one of the commenters argues, this does not mean that  Commerce will always take 120 days to 
issue scope rulings, espec ially when a scope ruling is fairly simple, straightforward, and/or  
uncontested. In those cases, it is not unreasonable to expect that  Commerce might issue a scope 
ruling in a shorter time frame. Similarly,  it does not mean that every time Commerce extends the 
proceeding, it  will automatically extend the full 180 days.  
 Moreover, we do not agree with the commenter who argues that  Commerce should be mandated 
by the regulations to: (1) Request that  every applicant that imports the product subject to th e scope 
inquiry  inform us whether liquidation of its entries of the particular product  are currently being 
suspended and if it is paying cash deposits on  those entries; and (2) if the requestor responds that 
the imports at  issue are not being suspended or that the importer is not paying cash  deposits on 
those entries, Commerce must issue a preliminary scope  ruling within 120 days after initiation of 
the scope inquiry. We do not  believe such a requirement is appropriate. We agree with the 
commenter  that such  information might be relevant at some point in our inquiry,  for example, for 
purposes of our CBP instructions under Sec.  351 .225(l), but, for the reasons explained above in the 
discussion of  Sec.  351 .225(c), such information normally is not relevant for  our scope analysis 
under Sec.  351 .225(k).  
 In addition, we do not agree with the parallels drawn to  preliminary circumvention 
determinations. Preliminary circumvention  determinations are issued in every circumvention inquiry, 
but Commerce  does not issue a preliminary scope ruling in all scope inquiries. When  Commerce 
determines that a preliminary scope ruling is warranted, we do  not believe it should be restricted by 
a specific deadline in the  regulations. Instead, we believe that Commerce should have the  flexibility 
to determine when to issue a preliminary scope ruling and  request comments from participating 
interested parties. Thus, it would  be unreasonable to require Commerce to issue a preliminary scope 
ruling  when the facts on the record are simple an d clear enough for Commerce  to issue a final scope 
ruling before or on 120 days after initiation of  the scope inquiry. Therefore, we have not modified 
Sec.  351 .225(e) to  mandate the issuance of preliminary scope rulings within 120 days, or  even 
150 days a s suggested by some, after initiation of the scope  inquiry.  
 We also disagree with the commenter expressing concerns regarding  the prolonged uncertainty 
for U.S. importers as to the ultimate status  of products subject to a scope inquiry under the 300 -day 
deadline, when  coupled with the potential for retroactive suspension of liquidation.  As other 
commenters have argued, all importers of merchandise to the  United States are required to conduct 
their business affairs with due  diligence and should be info rmed as to the potential trade remedies  
that may be applied to imported merchandise when they decide to import  that merchandise. If a 
party is concerned that its products might be  covered by an AD or CVD order, it is the party's 
responsibility to  request a  scope ruling at the earliest possible time. We do not believe  the potential 
120-day or fully -extended 300 -day deadlines set forth in  Sec. 351.225(e) are unnecessarily lengthy 
or burdensome on importers,  and we do not believe that the firm deadlines in the  regulations will  
result in uncertainty or unpredictability, as some commenters asserted.  In fact, we find the opposite 
to be true. Commerce will now be required  by regulation to issue scope rulings no later than 300  days 
after initiation --a requirement no t found in the current regulations.  
 Finally, we have revised the heading of this section to "Deadlines  for scope rulings " from "Time 
limits ", to better reflect the  provisions covered by this section of the regulation, and we have moved  
the provision allowing for alignment of scope rulings with other  segments of a proceeding from G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
- 32 - 
 
  proposed Sec. 351.225(i)(2) to this  section to clarify that all of the deadlines described in this section  
may be adjusted if the scope inquiry is aligned with anoth er segment.  
6. Section 351.225(f) --Scope Inquiry Procedures  
 Section 351.225(f) provides the deadlines for rebuttal comments and  factual information and 
other procedural matters. We received multiple  comments specifically on the various deadlines 
contained  within the  proposed procedures. All of those comments requested more time,  claiming 
that the deadlines as proposed were too short for interested  parties and  Commerce to effectively 
analyze questionnaire responses and other  submissions prior to the deadlin e for responses and 
rebuttal  submissions.  
 Furthermore, one commenter argues that Commerce should not indicate  in Sec.  351 .225(f)(3) 
that it may limit issuance of questionnaires to  a reasonable number of respondents, because such a 
limitation would  also have the effect of limiting verification of those respondents to  whom 
questionnaires had been issued. That commenter argues that it  would be inappropriate to decline 
gathering information via  questionnaire from all potential respondents.  
 Finally, cer tain commenters express their support for Sec.  351 .225(f)(6), which acknowledges 
that Commerce maintains the ability  to rescind a scope inquiry if it determines it is appropriate to 
do so.  One of those commenters points to the Proposed Rule where Commerce  explained that it 
might "rescind a scope inquiry, for example, if an  interested party has failed to provide information 
necessary for  Commerce to issue a scope ruling, " \70\ in "instances in which a  scope matter may 
be addressed in another segment of a pr oceeding " or in "instances in which a new scope inquiry or 
scope ruling is  unnecessary because of a related or prior scope ruling. " \71\ That commenter 
requests that Commerce codify those examples in the  regulation. Further, that same commenter 
notes that Commerce stated in  a footnote in the preamble to the Proposed Rule that it "maintains 
the discretion to apply facts available pursuant to section 776 of the Act,  as appropriate, rather than 
rescind a scope inquiry, " and argues that  Commerce should, therefo re, codify its authority to apply 
facts available with an adverse inference when an interested party has failed  to supply requested 
necessary information.  
---------------------------------------------------------------------------  
 \70\ Id. at 49479.  
 \71\ See id.  
---------------------------------------------------------------------------  
 Response:  
 Upon consideration of the various comments about Commerce's  proposed deadlines, as well as 
consideration of our own practice in  other circumstances, we have determined to modify our 
proposed  deadlines under Sec.  351 .225(f) to allow interested parties additional  time to provide 
responses and new factual information as follows:  
 Under Sec.  351 .225(f)(1), parties will have 30 days,  rather  than 20 days, to submit comments 
and factual information after  Commerce self -initiates a scope inquiry;  
 Under Sec.  351 .225(f)(1), parties will have 14 days,  rather than 10 days, to submit comments 
and factual information to  rebut, clarify, or correct fa ctual information submitted by the other  
interested parties;  
 Under Sec.  351 .225(f)(2), parties will have 30 days,  rather than 20 days, to submit comments 
and factual information after  Commerce initiates a scope inquiry pursuant to a scope application;   
Under Sec.  351 .225(f)(2), the applicant will have 14  days, rather than 10 days, to submit comments 
and factual information  to rebut, clarify, or correct factual information in response to the  interested 
parties' submissions;  
 Under Sec.  351 .225(f)(3), i nterested parties will have 14  days, rather than 10 days, to submit 
comments and factual information  to rebut, clarify, or correct factual information contained in a  
questionnaire response;  
 Under Sec.  351 .225(f)(3), the original submitter will  have seven  days, rather than five days, 
to submit comments and factual  information to rebut, clarify, or correct factual information 
submitted  in the interested party's rebuttal, clarification, or correction;  
 Under Sec.  351 .225(f)(4), interested parties will have 14 days, rather than 10 days, after the 
preliminary scope ruling to submit  comments; and  
 Under Sec.  351 .225(f)(4), interested parties will have  seven days, rather than five days, to 
submit rebuttal comments  thereafter.  
 With respect to the commenter's ar gument that we should codify our  ability to apply facts 
available, pursuant to section 776(a) of the  Act, and an adverse inference, pursuant to G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
- 33 - 
 
  section  776(b) of the Act,  we have declined to do so because Commerce already has the authority 
to apply adverse  facts available when an interested party fails to provide  necessary information in 
all of its proceedings, including scope  inquiries.  
 Furthermore, we have also declined to list the scenarios under  which Commerce would rescind 
a scope inquiry in Sec.  351.225(f)(6)  because such a determination to rescind a scope inquiry is 
made on a  case-by-case basis, and, although the examples provided in the preamble  of the Proposed 
Rule were illustrative, they were by no means  exhaustive. Accordingly, we do not beli eve it would 
be beneficial in  this case to codify a non -exhaustive list of examples in the final  regulations in which 
we would rescind a scope inquiry. We acknowledge  that we have provided some common examples 
in the circumvention inquiry  (Sec.  351 .226) a nd covered merchandise inquiry ( Sec.  351 .227)  
regulations in which we may rescind those inquiries, but again, even  those examples are not 
exhaustive.  
 With respect to Commerce's authority to rescind a scope inquiry, we  have made some additional 
changes to  conform this section with parallel  or similar language in the circumvention inquiry ( Sec.  
351.226) and  covered merchandise inquiry ( Sec.  351 .227) regulations. Specifically,  we have edited 
Sec.  351 .225(f)(6) to clarify that rescission of scope  rulings c an be in whole or in part. This is 
consistent with Commerce's  current practice. For example, Commerce may conduct a scope inquiry 
in which a single importer has filed six scope applications covering six  different products from the 
same producer and exporte r. Commerce may  determine in that situation to conduct a single segment 
of the  proceeding covering all six products, but then later in the combined  scope inquiry segment 
determine to rescind the inquiry with respect to  three or four of the products. In ano ther example, 
Commerce may  determine to consider and analyze in one segment of the proceeding  scope inquiries 
covering products with the same physical  characteristics produced and exported by different entities 
and imported by different importers. As with the segment covering multiple  products, Commerce 
may rescind in whole or in part a segment covering  different combinations of producers, exporters, 
and/or importers. The  language of Sec.  351 .225(f)(6) is meant to cover various scenarios,  including 
examples such as these.  
 In response to the commenter's argument that Commerce should not be  permitted to limit 
issuance of questionnaires to a reasonable number of  respondents under Sec.  351 .225(f)(3), we 
disagree. In the context of a  scope inquiry, such  situations most frequently arise when a domestic  
producer requests a scope ruling covering certain products produced and  exported by multiple 
entities. If Commerce had unlimited resources, we  agree that the best -case scenario would have 
Commerce never lim iting the number of questionnaires it issues and respondents that it  considers. 
However, in reality, Commerce conducts its administrative  proceedings with limited resources and 
under specific time constraints.  Accordingly, and in consideration of Commerce' s authority to limit  
respondents under section 777A(c)(2) of the Act for investigations, we  continue to believe that it is 
appropriate to retain the language in  our regulations that clarifies that we may limit the issuance of  
questionnaires to a reasonable  number of respondents if the record of  the scope inquiry warrants 
such a limitation.  
 Finally, for greater clarity, we have made some minor edits to  Sec.  351 .225(f)(7) to explain 
that Commerce can both alter or extend  time limits if it determines it is a ppropriate to do so on a 
case-by- case basis.  
7. Section 351.225(g) --Preliminary Scope Ruling  
 Section 351.225(g) would authorize Commerce to issue a preliminary  scope ruling as to whether 
there is a reasonable basis to believe or  suspect that the product is covered by the scope of the 
order.  Additionally, Sec.  351 .225(g) would continue to allow Commerce to use  its discretion in 
issuing a preliminary scope ruling at the same time  Commerce initiates a scope inquiry. Pursuant to 
Sec.  351 .225(n)(4),  Commerce will notify interested parties on the segment -specific service  list of 
the issuance of the preliminary scope ruling.  
 One commenter argues that notification of a preliminary scope  ruling only to the parties 
participating in the scope inquiry is  insufficient and might be inconsistent with U.S. obligations under 
the AD and SCM Agreements. The commenter, therefore, argues that Commerce  should publish its 
preliminary s cope ruling in the Federal Register,  rather than just notify the parties on the segment -
specific service  list. 
 In their rebuttal comments, several commenters disagree with this  argument, arguing that 
Commerce's implementation and use of an annual  inquiry service list and segment -specific service 
list is fully  consistent with U.S. international obligations, and that Commerce is  not required to 
publish preliminary scope rulings in the Federal  Register.  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
- 34 - 
 
   Response:  
 As explained above, Commerce is modifying it s regulations under  Sec.  351 .225(b) and (d), 
such that we will publish in the Federal  Register notices of self -initiation and monthly lists describing 
scope  applications which have recently been filed with Commerce. We believe  both types of those 
Federal Register notices, which we anticipate will  identify the product, AD or CVD order, and country 
of production and  export (the latter where the product has already been imported), will  provide 
adequate notification to the public. Following such  publication, however, it will be incumbent upon 
interested parties to  take the necessary steps to participate in Commerce's proceedings in  
accordance with Sec.  351 .225(n)(4) by filing an entry of appearance to  stay apprised of the status 
of a scope inquir y. The final rule is in  compliance with U.S. international obligations under the AD 
and SCM  Agreements, and we do not believe there is any additional requirement  that Commerce 
publish preliminary scope rulings in the Federal  Register. Accordingly, we have declined to make the 
commenter's  suggested modification to our regulations.  
8. Section 351.225(h) --Final Scope Ruling  
 Under proposed Sec.  351 .225(h), Commerce would convey final scope  rulings to interested 
parties who are parties to the scope inquiry  proceeding in accordance with the requirements of 
section  516A(a)(2)(A)(ii) of the Act. Such interested parties would be required  to have legal standing 
to appeal the final scope ruling. Additionally,  under proposed Sec.  351 .225(n), all parties on the 
segmen t-specific  service lists would be notified of the final scope ruling through  Commerce's 
electronic ACCESS system.  
 One commenter observes that currently scope mailings are  "conveyed " by first class mail, and 
advocates that Commerce revise  that requirement in its regulations to have "conveyance " be made  
solely through ACCESS.  
 Response:  
 With respect to the commenter's request, we agree that conveying  our scope rulings to 
interested parties who are parties to the scope  inquiry proceeding through first class mail or common 
carriers, such as  Federal Express, is largely superfluous and unnecessary in light of the  notification 
they receive through ACCESS. However, section  516A(a)(2)(A)(ii) of the Act states that judicial 
review of "class or  kind" determinat ions, such as scope rulings, are based off the "date of mailing " 
of the determination. \72\ The CIT has explicitly held that  it "refuses to extend the definition of 
`mailing' to include email  messages, " faxes, or other such electronic conveyances for purpos es of 
this provision. \73\ For that reason, we believe that Commerce is  required to continue to convey its 
final scope rulings through first  class mail or common carriers at this time. Should Congress 
eventually  modify this statutory provision and allow for  conveyance of scope  rulings through 
electronic means, our use of the term "conveyance " in the modified regulation will allow us to convey 
scope rulings through  electronic means, without further revision of the regulation.  
---------------------------------------------------------------------------  
 \72\ Id. at 49479.  
 \73\ Medline Industries, Inc. v. United States, 911 F. Supp. 2d  1358, 1361 (CIT 2013); see also 
Bond St., Ltd. v. United States, 521  F. Supp. 2d 1377, 1381 (CI T 2007).  
---------------------------------------------------------------------------  
 Additionally, we note that Commerce's current regulations under  part 356 of Title 19 (current 
Sec. Sec. 356.6 and 356.7) contain  specific notification requirements for "scope determinations " 
made by  Commerce applicable to producers and exporters from a free trade  agreement (FTA) 
country to the governments of those FTA countries. We  have, therefore, added a clause to Sec.  
351.225(h)  in the final  regulations which acknowledges that scope rulings applicable to FTA  countries 
are governed, where relevant, by those provisions.  
9. Section 351.225(i) --Other Segments of the Proceeding  
 Section 351.225(i) recognizes that Commerce may make a s cope determination in the context 
of another segment of the proceeding, such  as an administrative review under section 751(a) of the 
Act, and  acknowledges the flexibility Commerce has to modify deadlines and other  actions to ensure 
that its scope analysis is complete in those other  segments.  
 One commenter indicates its support for this provision, and  stresses the importance of 
Commerce's ability to request further  information concerning a product subject to a scope inquiry in 
other  segments of the proceeding, set forth in proposed Sec.  351 .225(i)(3).  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
- 35 - 
 
   Another commenter requests that Commerce clarify how it will notify  entities when it opts to 
address scope issues within the context of a  segment of the proceeding that is not a scope inquiry, 
and suggests  that Commerce do so by notifying entities on the annual inquiry service  list under Sec.  
351.225(n)(3).  
 Response:  
 Section 351.225(i)(1), which has been slightly modified, applies to  at least two scenarios in 
which Commerce might add ress a scope issue in  another segment of the proceeding. First, if a scope 
issue is raised  for the first time in the context of another segment and we determine  that it would 
be illogical to self -initiate a new scope inquiry under  Sec.  351 .225(b), Commerc e may address the 
scope issue in that other  segment without following the procedures of a scope inquiry under Sec.  
351.225. This could happen, for instance, in a circumvention inquiry  under Sec.  351 .226, a covered 
merchandise inquiry under Sec.  351 .227,  or in an administrative review under Sec.  351 .213. The 
parties to that  segment of the proceeding would be notified of the pending scope issue  through a 
variety of means. For example, the issue would likely be  raised by the parties, and they would have 
the opportunity to provide  new factual information or comment, as appropriate, or Commerce may  
request additional information of the parties. In addition, parties not  already participating in that 
segment of the proceeding would be  notified of the scope issue in Commerce's preliminary results 
(in the  case of an administrative review under Sec.  351 .213) or preliminary  determination (in the 
case of a circumvention inquiry under Sec.  351 .226 or a covered merchandise inquiry under Sec.  
351.227), which  would be published in the Federal Register. At that time, interested  parties not yet 
participating in that segment of the proceeding could  file a notice of appearance and submit case 
briefs. \74\ 
----------------------------------------------------------------- ----------  
 \74\ In addition, if those interested parties wished to submit  new factual information, they 
would follow the procedures in Sec.  351 .301 to request permission to do so.  
-------------------------------------------------------------------------- - 
 Second, where a scope inquiry has already been initiated and is  ongoing, but Commerce 
determines that it would be best addressed in  another segment which is also ongoing or just 
beginning, Commerce would  rescind the scope inquiry under Sec.  351 .225(f)( 6) and conduct its  
scope analysis solely in that other segment and notify interested  parties.  
 Additionally, Sec.  351 .225(i)(2) (proposed Sec.  351 .225(i)(3))  provides that during the 
pendency of a scope inquiry or upon issuance  of a final scope ruling, C ommerce may take any further 
action, as  appropriate, with respect to another segment of the proceeding. As  referenced by a 
commenter, this means that Commerce has the ability to  request further information concerning a 
product subject to a scope  inquiry in  other segments of the proceeding, such as an administrative  
review under Sec.  351 .213. 
 Furthermore, at any point during an ongoing segment of a  proceeding, Commerce retains the 
ability to self -initiate a separate  scope inquiry in accordance with Sec.  351 .225(b), rather than 
address  the scope issue in the context of the other segment of the proceeding.  
 Finally, as already noted above, to provide clarity with regard to  scope ruling deadlines, we 
have moved what was proposed Sec.  351 .225(i)(2) to Sec.  351 .225(e)(3), and as a result of that  
modification, prior Sec.  351 .225(i)(3) is now Sec.  351 .225(i)(2).  
10. Section 351.225(j) --Country of Origin Determinations  
 Sectio n 351.225(j) addresses Commerce's country of origin analysis,  and in particular provides 
the factors Commerce considers when applying  its "substantial transformation " test. Each scope 
contains a  description of the physical class or kind of merchandise cove red by  that order, while 
Commerce's country of origin analysis determines at  what point in the production and processing of 
the product the country  of origin of the class or kind of merchandise is established. The  country of 
origin determined through this analysis applies to all  merchandise in the production and processing 
chain of the product  meeting the physical descriptions of the scope originating in that  country, 
regardless of the point in the production and processing chain  of the product at which the country 
of origin is established. We  received several comments on this provision.  
 One commenter points out that Commerce indicates that it "may" consider relevant factors on 
a case -by-case basis in the regulation,  rather than stating that it "will" consider the listed factors in  
every case. That commenter stresses that Commerce should state clearly  that not all of the 
numbered factors are necessarily required to be  considered in every case.  
 A second commenter suggests that Commerce should take i nto consideration the activities of 
tollers in the production chain when it  conducts a substantial transformation analysis. That G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  commenter argues  that Commerce does not consider tollers to be "manufacturers " or "producers " if 
they do not acquire ownership and control the relevant  sale of subject merchandise, but nothing 
prevents exporters or  importers from declaring foreign processors to be tollers, thereby  evading 
Commerce's country of origin analysis. That commenter argues  that to prevent such manipulatio n 
of Commerce's country of origin  analysis, Commerce should codify a consideration of whether or not 
a toller is a toller or foreign processor as part of its substantial  transformation test.  
 Other commenters express concerns that Commerce does not explain  in its regulations the 
scenarios in which it will use an alternative to  the substantial transformation test, and appears to 
give Commerce wide  discretion in applying the factors in the regulation when determining  the 
country of origin of a product. They r equest that for both the  substantial transformation and the 
alternative options, Commerce codify  further guidance in the regulations.  
 The proposed regulation states that Commerce is not "bound " by the country of origin 
"determinations of any other agency. " One commenter argues that Commerce should be required 
to justify its  determination when it departs from the country of origin determinations  of CBP or other 
agencies.  
 That same commenter also argues that Commerce should not conduct a  country of o rigin 
analysis in a scope ruling, but instead should  conduct that analysis in its third country processing 
circumvention  analysis, under Sec.  351 .226(i). That comment appears to reflect a  misunderstanding 
of the relationship between Commerce's country of  origin analysis pursuant to investigations, 
administrative reviews and  scope rulings, and the separate analysis conducted pursuant to third  
country processing circumvention inquiries. Accordingly, we address  this argument below, with 
respect to comments on  Sec.  351 .226(i).  
 In rebuttal submissions, some commenters respond that Commerce's  country of origin analysis 
is fundamental to determining if a  particular product is covered by the scope of an order, that the  
Proposed Rule simply codifies Commerce's lon gstanding use of the  substantial transformation test, 
and that the Proposed Rule recognizes  that on a case -by-case basis Commerce should retain the 
flexibility to  address other case -specific factors or the need for an entirely  different test when the 
facts on the record warrant such an analysis.  They argue that because country of origin 
determinations can be  complex, especially when complicated global supply chain sourcing  issues 
arise, the language as proposed in Sec.  351 .225(j) should not  be changed, as that language 
provides Commerce with the tools to  adequately determine the country of origin based on relevant  
characteristics of the particular product at issue.  
 In addition, in their rebuttal submissions, certain parties  challenge the idea that Commerce  
must justify its determinations when  those determinations come to a different conclusion as to the 
country  of origin from CBP. The commenters argue that, just as the proposed  language states, 
Commerce is not bound by the determinations of other  agencies when conducting a country of origin 
analysis, since Commerce's  analysis is ultimately made independently of CBP and is based upon the  
information on the record of the proceeding.  
 Finally, in their rebuttal submissions, some commenters express  their agreement that 
Commerce should add consideration of the facts  surrounding reported toll processors as a factor to 
the substantial  transformation test, stressing that foreign producers have increasingly  used toll 
processors to escape affiliation issues a nd avoid duties,  such as contracting with tollers that are 
former employees or tollers  that are located within their own facilities.  
 Response:  
 We have made changes from the language published in the Proposed  Rule. First, we have 
adopted minor renumbering  changes. Second, we have  revised the terminology of Sec.  
351.225(j)(1)(ii) to cover "physical  characteristics (including chemical, dimensional and technical  
characteristics) " to bring that language into conformity with other  provisions of the regulations . 
Third, we have turned the listed five  factors into six factors, separating the intended end -use of the  
downstream product from the physical characteristics factor. We believe  this better reflects the 
distinct factors which Commerce considers when  applying its substantial transformation analysis.  
 With respect to the comments we received on this provision, we  agree with those commenters 
who explain that the factors listed in the  proposed regulation are not exhaustive. We understand the 
arguments  that it would bring more certainty to certain parties if we set forth  definitive factors that 
we would apply in every case, but as some  commenters explain, every product is different and every 
supply chain  and production process is different, as well. Accordi ngly, the listed  factors are not 
exhaustive, because Commerce must retain the  flexibility to adjust its country of origin analysis 
when the facts on  the record warrant such an adjustment. The listed factors represent the  factors 
we normally apply in most c ases, but as we explained in the  preamble to the Proposed Rule, there 
have been "different iterations " of Commerce's substantial transformation analysis and Commerce 
has "considered other factors in applying its substantial transformation  analysis when nec essary. " 
\75\ G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  ---------------------------------------------------------------------------  
 \75\ Proposed Rule, 85 FR 49472 at 49480.  
---------------------------------------------------------------------------  
 Furthermore, as Commerce also explained in the preamble to the  Proposed Rule, this provision 
states that Commerce "may" conduct its  substantial transformation analysis, but is not  required to 
apply that  analysis if it determines "for some reason " that "the substantial  transformation test is not 
appropriate for purposes of determining the  country of origin of a particular product. " \76\ In those  
circumstances, as the Federal Circuit has affirmed, Commerce continues  to have the authority to 
apply a different, reasonable test to  determine the country of origin of a particular product. \77\ 
---------------------------------------------------------------------------  
 \76\ Id. 
 \77\ See Canadian Solar, 918 F.3d at 918 -20. At issue in  Canadian Solar was a situation in 
which Commerce applied its  substantial transformation test in one investigation, and as a  result, 
exporters evaded the payment of duties by shifting the  country of produ ction of solar cells to a third 
country. Thus, in  the context of the second investigation claiming solar panels  continued to cause 
the petitioners injury, Commerce determined the  use of its substantial transformation test again 
would be ill - advised, as it  would not provide a meaningful remedy to the injured  petitioners. 
Accordingly, Commerce applied a second test, which the  Federal Circuit affirmed as in accordance 
with law, focusing on the  country where solar panels were completed, thereby granting the  injured 
petitioners relief from dumped and subsidized Chinese solar  panels. Id., 918 F.3d at 915 -20. 
---------------------------------------------------------------------------  
 With respect to the argument that Commerce must justify its country  of origin de terminations 
when they differ from that of CBP's country of  origin analysis, conducted pursuant to 
19 CFR 134.1(b), it is well  established that different Federal agencies apply different country of  
origin tests, depending on the context and purpose of the test. Commerce's country of origin analysis 
in the context of AD and CVD  proceedings differs from that of CBP in its own proceedings.  
 As the CIT explained in Venus Wire Industries, \78\ Commerce has  applied its own country of 
origin analysis for over 40 years. It is an  analysis which has been litigated and upheld by the Federal  
Circuit. \79\ That Commerce has a different county of origin analysis  from CBP is not surprising, 
given that Commerce's analysis has a  different purpose from that of CBP and is appl ied specifically 
to determine the relevant point in a production and processing chain where  the country of origin of 
the products described in AD/CVD orders is  established. \80\ If there is tension between the two 
analyses, for  purposes of Commerce's procee dings, Commerce's analysis applies. As the  Federal 
Circuit held in Mitsubishi (1994), \81\ CBP's role in  liquidating AD duties is "ministerial " and CBP 
"cannot modify  Commerce's determinations, their underlying facts, or their  enforcement. " 
Accordingly, we disagree with the commenter which argued  that if Commerce determines the 
country of origin of a product for  purposes of an AD or CVD order in a scope ruling, and that  
determination is different from the country of origin established by  CBP for its purposes , Commerce 
must take an additional step to justify  the distinction. Such an additional analysis in making a country 
of origin determination is generally unnecessary and unwarranted.  
-------------------------------------------------------------------------- - 
 \78\ Venus Wire Industries Pvt. Ltd. v. United States, 471 F.  Supp. 3d 1289, 1299 (CIT 2020) 
(Venus Wire Industries).  
 \79\ See, e.g., Bell Supply, 888 F.3d at 1227.  
 \80\ To be clear, physically described products in the scope  produced or processed in the 
country of origin, whether produced or  processed before or after the point at which the country of 
origin  is established, are subject to the scope of an AD/CVD order.  
 \81\ Mitsubishi Electronics America, Inc., 44 F.3d 973, 977  (Fed. Cir. 1994) (Mitsubishi (1994)). 
See also Wirth, 5 F. Supp. at  973 ( "Commerce, not Customs, has authority to clarify the scope of  
AD/CVD orders and findings. Although the Department may consider the  decisions of Customs, it is 
not obligated to follow, nor is it bound  by, the classification determinations of Customs . . . "). 
---------------------------------------------------------------------------  
 In addition, it would be illogical for Commerce to remove its  country of origin analysis from 
these scope regulations. As  other  commenters have noted, Commerce frequently conducts a country 
of origin  test as a part of its scope rulings, and there is no reason to change  this practice. As we 
have explained, the commenter who argued for this  change cites to Commerce's third cou ntry G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  processing circumvention  proceedings in relation to Sec.  351 .226(i) and we have, therefore,  
addressed its arguments in this regard with our response to other  comments on that provision below.  
 Finally, we understand the arguments from the various commenters  that in certain cases 
Commerce may need to consider toll processors,  the role of tollers in the production and supply 
chain, and the  affiliations and relationships of those tollers with other processers,  in considering the 
country of ori gin of a particular product. However,  we do not believe it is necessary to codify such a 
requirement in this  final rule. Based on experience, most prior scope rulings/substantial  
transformation analyses have not involved tollers or toll processors.  In addi tion, Commerce's primary 
focus in a country of origin analysis  is the location of the production and/or processing of the product 
in an effort to determine the specific point in the production chain where  the product's origin is 
established, regardless of whether the  production and/or processing are conducted by a toller, and 
regardless  of whether the toller is affiliated with the producer or processor. We  do not wish to 
overwhelm our country of origin analysis in most cases  with processor and toller affiliation analyses 
if such an analysis is  not helpful to determining the country of origin of a particular  product. 
Furthermore, nothing in the final regulation prevents Commerce  from conducting such an analysis 
if warranted.  
11. Section 351.225(k) --Scope Rulings  
 Section 351.225(k) provides the analysis Commerce utilizes in the  conduct of a scope inquiry 
to determine whether a product at issue is  covered by the scope of an order. We received many 
comments and  rebuttal comments on this provision, which we  address herein.  Furthermore, we have 
determined to make certain edits to the proposed  regulation to provide greater clarity to this 
provision.  
 The comments which Commerce received on Sec.  351 .225(k) focused on  topics relevant to 
individual paragraphs (k )(1) through (3).   
 
(a) Section 351.225(k)(1 ) 
 
 In the proposed revision of Sec.  351 .225(k), Commerce  significantly revised Sec.  351 .225(k) 
introductory text and (k)(1).  Commerce added a chapeau to the beginning of the provision which  
articulated that Commerce will first and foremost consider the language  contained in the scope of 
an AD or CVD order in determining whether or  not a product is covered by that AD or CVD order. 
Commerce explained  that it was adding this language to Sec.  35 1.225(k) to reflect an  additional 
analysis that Commerce had applied in multiple cases, and  was then affirmed by the Federal Circuit, 
which is that " `a predicate  for the interpretive process is language in the order that is subject  to 
interpretation.' The  scope of the order can be clarified but it  cannot be changed by the interpretive 
process " and that scope "orders  are interpreted under [ Sec.  351 .225(k)] with the aid of the  
antidumping petition, investigation, and preliminary order. " \82\ 
--------------- ------------------------------------------------------------  
 \82\ See Tak Fat Trade Co. v. United States, 396 F.3d 1378,  1382-1383 (Fed. Cir. 2005) (citing 
Duferco, 296 F.3d at 1097).  
----------------------------------------------------------------------- ---- 
 In the preamble to the Proposed Rule, Commerce explained that other  traditional interpretive 
tools, such as industry usage of a particular  word or phrase, dictionaries or other record evidence, 
could be used to  interpret a scope as well, but, "in the  event of a conflict between  these interpretive 
tools or other record evidence and the sources  identified in paragraph (k)(1), Commerce would adopt 
the interpretation  supported by the (k)(1) sources. " \83\ 
-------------------------------------------------- -------------------------  
 \83\ Proposed Rule, 85 FR 49472 at 49481.  
---------------------------------------------------------------------------  
 Notably, there appear to be differing views in the Federal Circuit  as to whether the sources 
under the current Sec.  351 .225(k)(1) are  used to interpret the "plain meaning " of the text of the 
scope, \84\ or whether the plain meaning analysis comes first, and only once a  determination on the 
plain meaning is determined, the n the current  Sec.  351 .225(k)(1) sources are considered. \85\ 
Those differing views  appear to be reflected, as well, in the comments that we received on  this 
paragraph. Accordingly, we have modified this provision to provide  greater clarity on this point i n 
this final rule.  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  ---------------------------------------------------------------------------  
 \84\ See Fedmet Res. Corp. v. United States, 755 F.3d 912, 918  (Fed. Cir. 2014) (Fedmet). 
Under the Federal Circuit's holding in  Fedmet, because the plain langu age is "paramount, " in 
"reviewing  the plain language of a duty order, " "Commerce must consider the  descriptions of the 
merchandise contained in the petition, the  initial investigation, and the determinations of the 
Secretary  (including prior determinations ) and the Commission. " See id.  
 \85\ See OMG, Inc. v. United States, 972 F.3d 1358, 1363 -66 (Fed. Cir. 2020) (OMG).  
---------------------------------------------------------------------------  
 Several commenters in their comments and rebuttal comments indicate  their support for 
Commerce's inclusion in the proposed Sec.  351 .225(k)  that the language of the scope is param ount 
in its scope analysis. They  also agree with Commerce that, in most straightforward cases, the  agency 
is not required to consider the four listed (k)(1) interpretive  sources if such an analysis would waste 
agency time and resources.  
 One commenter argu es that Commerce should apply the four sources  listed under paragraph 
(k)(1) in every case, no matter the  straightforward nature of the language in the scope, because 
such an  application would bring predictability to Commerce's scope rulings.  That commente r objects 
to Commerce's removal of the language "will take into account " from the current paragraph (k)(1). 
Several  commenters in their rebuttal comments disagree with this argument,  saying consideration 
of those sources in simple cases would be a waste  of time and resources for everyone.  
 With respect to the arguments about secondary interpretive sources,  such as Customs rulings 
and industry usage, one commenter points out  that subsequent to Commerce's issuance of the 
proposed regulations, the  Federal Circuit issued its holding in OMG, which interpreted the  current 
regulation in the reverse --finding that under the current  regulatory hierarchy, dictionaries and other 
traditional interpretive  tools should be considered in interpreting the scope of  an order before  the 
sources in the current paragraph (k)(1). \86\ The commenter stresses  that such an interpretation 
ignores the intentions of those who have  initially drafted the scope language and the petition --the 
injured  domestic producers, as well as the understandings of Commerce, the ITC,  and the domestic 
producers expressed throughout the underlying  investigation. Accordingly, it advocates that, rather 
than just mention  the hierarchy of interpretive sources in the preamble, Commerce should  codify  
that hierarchy in the regulation itself. The commenter argues  that the "primacy of the (k)(1) factors 
over other interpretive tools  should be clearly articulated in the revised " Sec.  351 .225(k)(1) "to 
avoid any confusion among parties as to the importanc e of other  interpretive tools in defining a 
scope and to provide clarity for  courts of review of Commerce's intended policy in scope inquiries. " 
The commenter states that if Commerce does not codify such a hierarchy,  a court might ignore the 
fact that term s defined in a dictionary or  other interpretive tools might not align with the 
interpretation of  those terms as used in the industry at issue.  
---------------------------------------------------------------------------  
 \86\ See OMG, 972 F.3d at 1363 -66. 
---------------------------------------------------------------------------  
In their rebuttal submissions, several other commenters voice their  agreement that Commerce 
should codify its hierarchy of interpretive  tools in the regulation, so that in the futur e, scopes will 
not be  "voided by dictionary definitions and trade usage, contrary to the  plain language of the scope 
and (k)(1) sources. " They argue that such  an interpretation would be consistent with the Federal 
Circuit's  rejection of the primacy of "external interpretive tools " such as a  dictionary over the (k)(1) 
sources in Meridian Products, where the  Federal Circuit held that the lower court improperly 
narrowed the scope  of the antidumping order by relying on its own findings as to the  "common and 
commercial meaning " of the term "fastener " using the  dictionary. \87\ 
---------------------------------------------------------------------------  
 \87\ See Meridian Prods., LLC v. United States, 890 F.3d 1272,  1280-1281 (Fed. Cir. 2018) 
(Meridian Products).  
---------------------------------------------------------------------------  
 Finally, another commenter in its rebuttal comments challenges the  majority of commenters 
who recommend codifying the hierarchy of  interpretive sources in the regulation, arguing  that the 
"dictionary  definitions and industry usage " should be given more weight, not less,  than the (k)(1) 
interpretive sources, as they "ensure " an "objective  assessment of the manner in which the trade 
community understands the  product subject to the O rder." They note that sometimes the proposed  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
- 40 - 
 
  scope language in a petition is not the same as the ultimate language  memorialized in an AD or CVD 
order, and that if that language is given  greater weight by Commerce in a scope inquiry than the 
actual language  of the scope, as interpreted by a dictionary, such an analysis would  allow domestic 
producers to create an "alternate  reality, " arguing interpretations of the scope language which were 
not adopted by Commerce in the scope of the order.  
 Response:  
 We agree with the commenters that Commerce should have the  discretion to not consider the 
current Sec.  351 .225(k)(1) sources in  cases in which it determines that the language of the scope 
is clear  and dispositive. However, we also agree with the commenters w ho argue  that in most scope 
inquiries the language of the scope is written in  more general or broad terms, and, therefore, in the 
majority of scope  inquiries, it is likely that the current (k)(1) sources would be  considered by 
Commerce in determining if a product is covered by the  scope of an order in a scope ruling. It is 
Commerce's understanding  that the sources listed in current Sec.  351 .225(k)(1) were always  
intended to be interpretive tools to understand the plain meaning of  the scope, recognizing tha t 
terms that may have been plain at the time  they were drafted and adopted upon the issuance of the 
order could be  interpreted differently at some later point.  
 With respect to the need for codifying the hierarchy of  interpretive sources, we agree with the  
commenters who warn that absent  such codification, a court might rely on a secondary source, such 
as a dictionary definition, to interpret a word or phrase in a manner which  is inconsistent with the 
meaning used by the injured domestic industry  in drafting the proposed scope and petition, and the 
collective  interpretation of Commerce, the industry, and the ITC of that term  expressed in the 
underlying investigation. We agree with the commenters  that if we do not incorporate the hierarchy 
into our reg ulations, the  use by courts of "external interpretive tools, " rather than the  current (k)(1) 
sources, in analyzing Commerce's scope rulings could  potentially weaken or even undermine the 
effectiveness of Commerce's  orders. The purpose of an AD or CVD order  is to provide a remedy to  
offset the harm caused by unfairly traded merchandise. Therefore, the  intentions and interpretations 
of Commerce, the ITC, and the injured  domestic parties themselves at the time of the underlying 
investigation  should be given pr imary consideration in defining and interpreting the  scope of the 
order.  
 On the other hand, we agree with the commenter that argues that a  proposed scope or petition 
may differ from the language ultimately  adopted by Commerce in the final scope of an orde r, and, 
under a  situation such as that one, Commerce may determine that it must not  only consider the 
current (k)(1) sources, but additional, secondary  sources as well.  
 In light of all of these comments, we have, therefore, made several  modifications to t he 
proposed Sec.  351 .225(k)(1) provision. First, we  have moved the proposed chapeau language, 
which states that the  language of the scope is dispositive, to paragraph (k)(1). This is  because it is 
our belief that the traditional (k)(1) sources were never  intended by Commerce to be separate from 
the initial analysis of the  scope language, but were instead intended to be interpretive tools that  
could be considered by Commerce, at its discretion and under  consideration of the arguments on 
the administrative r ecord, to  determine the meaning of the scope of the order.  
 Second, we have modified the numbering of the paragraph and  incorporated the hierarchy of 
the interpretive sources into the  regulation itself. Specifically, using language from the current  
regulations, paragraph (k)(1) now states that, if Commerce determines  that the language of the 
scope is not itself dispositive (i.e., it is  not dispositive using no interpretive tools whatsoever), 
Commerce may  take into account the identified primary inter pretive sources, which  are the 
traditional (k)(1) sources, in determining if the language is  dispositive and the scope covers the 
product at issue. Those sources  (in paragraph (k)(1)(i)) are then followed by a paragraph (paragraph  
(k)(1)(ii)) which states that Commerce may consider secondary  interpretive sources such as other 
Commerce or ITC determinations not  included in the primary interpretive sources, Customs rulings 
or determinations, industry usage, dictionaries, and any other relevant  record evidence . This 
language provides clarity in that it  distinguishes primary interpretive sources from secondary 
interpretive  sources, and affirmatively acknowledges that Commerce may consider  secondary 
sources in its scope inquiries under certain scenarios. The  revised language uses the terms "may" 
and "discretion " to be clear  that Commerce is not required to consider any of these sources in this  
manner if it believes the record does not warrant such a hierarchical  consideration. We recognize 
that Commerce has always  had the authority  under the AD and CVD laws to consider secondary 
sources in interpreting  the scope of AD and CVD orders, but we believe in light of our  experience 
over the last 20 years that it is better to include  reference to those sources in the regul ations to 
avoid the possibility  of confusion going forward and to describe the hierarchy of  interpretive sources 
clearly.  
 Third, we have also codified language in this final rule which  addresses a conflict between the 
primary and secondary interpretive  sources, providing that the primary interpretive sources will G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
- 41 - 
 
  normally  govern in determining whether a product is covered by the scope of the  order at issue. We 
have used the word "normally " in this provision  because, as one commenter points out, there may 
be limited scenarios in  which, under a certain set of facts, Commerce might elect to give  greater 
weight to certain secondary sources. For example, a commenter  has provided a hypothetical in which 
the proposed scope and petition  contain language differ ent from that of the ultimate order, and the  
other current (k)(1) sources provide no further guidance. Under those  hypothetical facts, Commerce 
might determine it acceptable to give more  weight to a secondary source, presuming that the 
secondary source is  informative.  
 Finally, in making these modifications, Commerce also determined  that it would be beneficial to 
provide some clarity on the descriptions  of the (k)(1) sources. For paragraphs (k)(1)(i)(A), (B), and 
(D), we  have added language to clarify that the petition language,  investigation language, and ITC 
determinations considered under (k)(1)  all pertain to the order at issue. While this may seem 
obvious, we have  concluded that it is appropriate to add that language to distinguish  those sources 
from pa ragraph (k)(1)(i)(C), which includes  determinations not always applicable to the order at 
issue.  Specifically, we have modified paragraph (k)(1)(i)(C) to clarify that  both previous or 
concurrent Commerce scope determinations may be  considered by Commerce a s part of its analysis, 
including prior scope  rulings, memoranda, or clarifications which pertain to both the order  at issue, 
as well as other orders with the same or similar language as  that of the order at issue. This change 
reflects Commerce's practice  and interpretation of that provision over the years, and shows that  
unlike the other three primary sources, this primary source includes  scope determinations, such as 
scope rulings and scope clarifications,  from other proceedings addressing similar languag e used in 
the scopes  of different orders that sometimes cover the same or similar physical  merchandise from 
other countries. We have found it valuable over the  years to consider such determinations as part 
of our scope inquiry  analysis.  
 
(b) Section 351.225(k)(2)  
 
 Section 351.225(k)(2) describes the factors Commerce considers if  it finds that the sources 
listed under Sec. 351.225(k)(1) are still  not dispositive as to whether or not the particular product 
is covered  by the scope of an order. In the pr eamble to the Proposed Rule,  Commerce explained 
that under Sec. 351.225(k)(2), it was "Commerce's  intent that the first factor --the characteristics 
of the product,  including the technical, physical, or chemical characteristics of the  product --may be 
given greater weight than the other factors.  Nonetheless, Commerce should consider each of the 
factors in making its  determination under paragraph (k)(2). " \88\ One of the commenters  objects 
to this "change " and argues that Commerce should consider all  of the fa ctors equally, and that 
"placing more importance on one  factor skews " Commerce's scope analysis.  
---------------------------------------------------------------------------  
 \88\ Proposed Rule, 85 FR 49472 at 49481.  
---------------------------------------------------------------------------  
 Response:  
 We have made some changes to the language of Sec. 351.225(k)(2) to  clarify that Commerce 
will conduct its analysis under this paragraph  only if the (k)(1) factors are n ot dispositive. Further, 
we have also  modified the paragraph (k)(2)(i) factor to bring the term "physical  characteristics " into 
conformity with the way it is used in other  parts of the regulation (i.e., physical characteristics 
(including  chemical, dimensi onal, and technical characteristics)).  
 In addition, we  have adopted minor numbering changes.  In addition, we have revised Sec.  
351.225(k)(2)(i)(B) to clarify  that Commerce considers the expectations of the ultimate users, 
instead  of the expectations of the ultimate purchasers. This is because we have  found in our practice 
that there are sometimes cases in which it is not  the expectations of purchasers, but the expectations 
of the ultimate  users of a product which inform whether or not a p roduct was intended  to be included 
in the scope of an order. There are several reasons an  entity might purchase a product, including 
(for example) as an  investment or as a gift, but in neither of those scenarios would the  purchaser's 
activities necessarily  inform whether or not the product is  subject to an order. On the other hand, 
as Sec.  351 .225(k)(2)(i)(C)  (the ultimate use of the product) informs us, it is the expectations of  
the ultimate user which better informs us as to whether or not a  product was intended to be included 
in the scope of an order. We also  note that Sec.  351 .225(k)(2)(i)(B) and (C) are distinguishable  
because, as a factual matter, the expectations of a user do not always  align with the actual, ultimate 
use of the product.  
 In respons e to the comment on our prioritization of the first  (k)(2) factor, we disagree that such 
an interpretation is inconsistent  with our current practice. Indeed, when there is a conflict between G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  the five factors listed under (k)(2), it has been Commerce's cons istent  practice to give greater weight 
to our analysis of the physical  characteristics of the particular product. This is because the scopes  
of orders are generally written to cover products with certain physical  characteristics, and it is an 
established p rinciple in our scope  practice that the objective characteristics of merchandise, including  
the physical descriptions of merchandise, should be given greater  weight in case of a conflict between 
the factors under consideration.  This is distinguishable from  other factors, such as the expectations 
of the ultimate users under (k)(2)(i)(B) or the manner in which a product  is advertised, and displayed 
under (k)(2)(i)(E), which might  incorporate elements such as "intended end use " or "design " into 
Commerce's analysis, but also by their nature lend themselves to a more  subjective outcome. 
Nonetheless, although this is Commerce's general  practice, we also recognize that there could be 
scenarios in which  Commerce considers and determines that the physi cal characteristic  factor should 
not be given greater weight in its analysis. Thus, it is  our policy to "normally, " but not always, give 
greater weight to the  physical characteristics factor as part of our (k)(2) analysis if there  is a conflict 
between the  five listed factors.  
 Because this comment suggests that Commerce's practice in this area  may not be well -known 
or understood, we have, therefore, added to  paragraph (k)(2)(ii) a sentence which clarifies that in 
the event of a  conflict between the five li sted factors under paragraph (k)(2)(i),  paragraph 
(k)(2)(i)(A) will normally be allotted greater weight than  the other factors.   
 
(c) Section 351.225(k)(3)  
 
 Commerce proposed a codification of its analysis of component parts  of larger products, 
colloquial ly referred to as its "mixed -media  analysis " (i.e., subject merchandise assembled or 
packaged with non - subject merchandise), in a new Sec.  351 .225(k)(3) in the Proposed  Rule. 
 One commenter argues that Commerce's mixed -media test "lacks sufficient clarity " to allow 
importers "to discern reliably whether  particular merchandise will be found to be within the scope of 
an order  through the operation of this provision. " The commenter , therefore,  argues that Commerce 
should provide more definitive factors in Sec.  351 .225(k)(3), which Commerce will consider in 
determining if a mixed  media analysis should be applied, and that Commerce should remove the  
term "as appropriate " in this para graph to provide more certainty for  exporters and importers.  
 Another commenter asks Commerce to explain how a party should  establish the value of the 
components at issue under Sec.  351 .225(k)(3)(ii), arguing that importers may only have the price 
of the good as a whole available to them, so that they would be unable to  report the value of the 
component to CBP for purposes of suspending  and/or collecting AD or CVDs.  
 In a rebuttal, a third commenter states that it disagrees that  Commerce should list defini tive 
factors under this provision, arguing  that it is important that Commerce retain flexibility in applying 
the mixed -media factors because all products are different, and, therefore,  its test should be able 
to adapt to the products under consideration.  
 Response:  
 We agree with one commenter that paragraph (k)(3) as proposed  required a certain amount of 
revision to more clearly reflect  Commerce's mixed -media analysis. Accordingly, we have taken the 
three  sentences as proposed, and reformatted the paragraph to reflect the  sequential steps of the 
analysis. We have also revised some of the  language used to describe the analysis. First, under 
paragraph  (k)(3)(i), Commerce analyzes the component of the merchandise as a  whole under 
paragr aph (k)(1) and, if necessary, under (k)(2). If, after  review under those provisions, Commerce 
determines that the component,  taken alone, would not be covered by the scope of the order, then 
the inquiry ends. However, if the component, taken alone, would b e covered  by the scope of the 
order, under those provisions, then, under  paragraph (k)(3)(ii), Commerce will analyze the scope 
under (k)(1) to  determine whether the component product's inclusion in the merchandise  as a whole 
would result in the component p roduct being excluded from  the order. Finally, if Commerce 
determines the analysis under  (k)(3)(ii) does not resolve whether the component product's inclusion  
in the merchandise as a whole results in its exclusion from the scope  of the order, then, under 
paragraph (k)(3)(iii), Commerce will consider  additional relevant factors on a product -specific basis, 
including  those explicitly listed.  
 In addition, we also agree with the commenter that the first factor  listed in Commerce's mixed -
media analysis, as prop osed, should also be  clarified. The term "practicability " in factor (i) is a 
general and  undefined term. Accordingly, we have modified that factor to explain  that Commerce 
will consider the relative difficulty and expense of  separating components as part of its analysis of 
whether or not  separation is practicable --which Commerce has historically considered  as part of this 
analysis.  
 Next, in response to concerns about how Commerce values an in -scope  component, we must 
emphasize that a determination of  how to measure the  value of such a component is a case -specific G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  analysis. Some merchandise  as a whole might be extremely valuable when the component is 
included,  even if the component, individually, is commercially inexpensive. Other  merchandise as a 
whole does not undergo much of a change in value  without the in -scope component, while the 
in-scope component might  actually be quite valuable. Because such an analysis is case -specific,  we 
will not include additional guidance in the regulation on this  factor.  We understand that the 
commenter's primary concern is the  knowledge of unaffiliated importers with respect to this factor. 
We cannot speak to the chain of knowledge between an importer and the  producer of the imported 
merchandise, except to note, as we ha ve explained above, that there is an expectation that 
importers should be  able to obtain relevant information pertaining to the importation of  the product 
at issue and should have familiarity with the U.S. AD/CVD  laws which apply, or potentially apply, to 
that merchandise. With or  without that information or knowledge, the importers understand that  
they take on certain risks when importing the product at issue. These  regulations are intended to 
direct and guide parties on Commerce's  mixed -media analysis, so  that they may make informed 
decisions  regarding whether to import merchandise potentially subject to an AD  and/or CVD order. 
This final rule serves as notice to parties of  Commerce's intent to apply this analysis, as warranted, 
when examining  such mixed -media products.  
 Finally, we disagree with the commenter that argues that we should  remove the language "as 
appropriate " from this provision. While we  believe that, under most scenarios, the three enumerated 
factors listed  in paragraph (k)(3)(iii) should be sufficient, we also believe that it  is possible that, in 
some cases, additional factors might be relevant  to our analysis. We agree with the commenter who 
states that it is  important that Commerce retain flexibility in applying the mi xed-media  analysis. We, 
therefore, determine that it is best to leave the  opportunity for consideration of additional factors 
"as appropriate " in the regulation.  
12. Section 351.225(l) --Suspension of Liquidation  
 As discussed in the Proposed Rule, in the c ontext of a formal scope  inquiry, current paragraph 
(l) allows for Commerce to direct CBP to  begin the suspension of liquidation of unliquidated entries 
not yet  suspended which entered on or after the date of initiation of the scope  inquiry, and collect 
applicable cash deposits, at the time of a  preliminary or final scope ruling, whichever is applicable, 
determining  that the product is covered by the scope of an order. The current  regulation does not 
address unliquidated entries not yet suspended  which pre -date the date of initiation of the formal 
scope inquiry. \89\ Furthermore, the Act does not provide direction to Commerce regarding  the 
suspension of liquidation of entries subject to a scope inquiry.  
-------------------------------------------------------- -------------------  
 \89\ Id. at 49481 -84. 
---------------------------------------------------------------------------  
 Under paragraph (l) in the Proposed Rule, among other changes,  Commerce proposed to 
eliminate the distinction between formal and  informal scope inquiries so that all scope inquiries would 
be conducted  by a formal initiation. In addition, Commerce proposed that, at the  time of a 
preliminary or final scope ruling determining that the  product is covered by scope of an order, 
Commerce w ould direct CBP to  begin suspension of liquidation for any unliquidated entries not yet  
suspended and collect applicable cash deposits. \90\ After consideration  of comments on the 
Proposed Rule, Commerce is adopting certain changes  to paragraph (l) in this final rule. In addition, 
Commerce is making a  number of revisions to paragraph (l) on its own initiative. For  clarity, we 
describe all revisions made to paragraph (l) in these  introductory paragraphs before summarizing 
and addressing comments  below. Also d iscussed herein are the specific applicability dates for  
paragraph (l) as referenced in the Applicability Dates section of this  preamble.  
---------------------------------------------------------------------------  
 \90\ Id. 
---------------------------------------------------------------------------  
 Paragraph (l)(1), which describes Commerce's actions at the time of  initiation of a scope inquiry, 
is slightly revised from the Proposed  Rule as discussed below. Additionally, as discussed further 
below,  Commerce is altering paragraphs (l)(2) and (3), which describe  Commerce's actions at the 
time of a preliminary or final scope ruling  determining that the product is covered by the scope of 
an order.  Paragraph (l)(4), which describe s Commerce's actions in the event of a  negative final 
scope ruling, remains unchanged from the Proposed Rule.  Lastly, Commerce is adding a new 
provision, paragraph (l)(5), to  include specific reference to CBP's authority.  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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   Minor revisions have been made to  paragraphs (l)(1), (l)(2)(i), and  (l)(3)(i) from the Proposed 
Rule. Specifically, paragraph (l)(2)(i)  provides that, at the time of a preliminary scope ruling 
determining  that the product is covered by the scope of an order, Commerce will  direct CBP to 
continue the suspension of liquidation of previously  suspended entries, but removes express 
reference to entries previously  suspended as directed by paragraph (l)(1). Under paragraph (l)(1),  
Commerce does not direct CBP to suspend liquidation at the time of initiation of the scope inquiry; 
rather, under paragraph (l)(1),  Commerce directs CBP to continue the suspension of liquidation of  
entries subject to the scope inquiry that were already subject to the  suspension of liquidation and 
to collect the applica ble cash  deposits. \91\ As an initial matter, CBP has independent authority to  
suspend liquidation. \92\ Therefore, prior to a scope inquiry, entries  may be previously suspended 
for a number of reasons, for example,  because the importer declared the merchand ise as subject to 
the order  (e.g., Type 03 or Type 07), or CBP directed the importer to refile an  entry that was 
previously declared as not subject to the order (e.g.,  Type 01) to an entry type indicating it is 
covered by an AD and/or CVD  order. \93\ Thus, to avoid any unintended confusion regarding the  
underlying basis for suspension of liquidation of previously suspended  entries, the reference to 
paragraph (l)(1) is removed from paragraph  (l)(2)(i).  
--------------------------------------------------------- ------------------  
 \91\ The phrase "until appropriate liquidation instructions are  issued " from the Proposed Rule 
is removed in paragraph (l)(1)  (which refers to continued suspension of liquidation) as such  language 
is unnecessary and redundant. The relev ant language is  retained in paragraph (l)(3) as discussed 
below.  \92\ As part of its statutory responsibility "to fix the amount  of duty owed on imported 
goods[,] " CBP "is both empowered and  obligated to determine in the first instance whether goods 
are subject to existing [AD/CVD orders]. " Pursuant to 19 U.S.C. 1514(b)  (section 514 of the Act), 
this "determination is then `final and  conclusive' unless an interested party seeks a scope ruling 
from Commerce (which ruling would then be reviewable pursuant t o [19  U.S.C. 1516a]). " See TR 
International, 433 F. Supp. at 1341 (citing  Sunpreme, 946 F.3d at 1318) (referencing section 516 
of the Act).  The Federal Circuit has confirmed that CBP has authority to order  suspension of 
liquidation pursuant to its authorit y if it determines  that an AD/CVD order applies to the imported 
goods. See Sunpreme,  946 F.3d at 1317 -18. \93\ 
 For further information, see discussion of new paragraph  (l)(5) below. For a list of entry types, 
including those identifying  the entries as sub ject to AD or CVD duties, see, "CBP Form 7501:  
Summary, " available at https://www.cbp.gov/trade/programs -administration/entry -summary/cbp -
form-7501 (last visited June 9,  2021).  
---------------------------------------------------------------------------  
 Similar edits have been made to paragraph (l)(3)(i) by removing a  reference to entries 
previously suspended "as directed under " paragraphs (l)(1) and/or (l)(2). Under paragraph (l)(2)(ii) 
(as further  discussed below), if Commerce issues a preliminary scope ruling  determining that the 
product is covered by the scope of an order,  Commerce will direct CBP to begin the suspension of 
liquidation of  certain entr ies. Therefore, at the time of a final scope ruling,  entries may be previously 
suspended for the reasons described above, or  because of Commerce's instruction to CBP to begin 
the suspension of  liquidation of certain entries at the time of the preliminary s cope ruling. To avoid 
confusion regarding the underlying basis for  suspension of liquidation of previously suspended 
entries, the  reference to paragraphs (l)(1) and/or (l)(2) is removed from paragraph  (l)(3)(i).  
 Revised paragraph (l)(3)(i) eliminates pote ntially confusing  language regarding entries subject 
to suspension of liquidation as a  result of another segment of a proceeding, and revised paragraphs  
(l)(3)(i) and (ii) eliminate references to liquidation instructions  issued pursuant to Sec. Sec.  351 .212 
and 351.213. There may be a  number of reasons why entries may already be subject to suspension 
of liquidation in any given scope inquiry in which Commerce issues a final  scope ruling determining 
that the product is covered by the scope of an  order, and Commerce cannot immediately instruct 
CBP to lift suspension  of liquidation and assess final duties. This includes, for example, an  ongoing 
administrative review, or a pending circumvention inquiry or  covered merchandise inquiry. 
Therefore, we find that a s imple reference  to continued suspension until appropriate liquidation 
instructions are  issued in paragraph (l)(3) will account for various scenarios. In  addition, the 
language in new paragraph (l)(5) will provide added  clarification regarding CBP's authority in relation 
to the framework  established by Commerce under paragraph (l). Commerce intends to  provide more 
details, as needed, in its individual instructions to CBP  for a given case.  
 On the other hand, we note that we have retained similar language  in paragraph (l)(4) to 
provide that when Commerce issues a final scope  ruling determining that the product is not covered 
by the scope of an  order, entries subject to suspension of liquidation as a result of  another segment 
of a proceeding  will remain suspended until the other  segment of the proceeding has concluded. G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
- 45 - 
 
  This is because, as discussed  in other parts of Sec. Sec.  351 .225, 351.226, and 351.227, it is  
possible that there could be a pending circumvention or covered  merchandise inqu iry on the same 
product at the time Commerce issues its  final scope ruling. Therefore, to avoid confusion in this 
particular  scenario, this language is retained in paragraph (l)(4).  
 Paragraphs (l)(2)(ii) and (l)(3)(ii) clarify and maintain the  status quo of the current regulation 
to provide that, at the time of a  preliminary or final scope ruling determining that the product is  
covered by the scope of an order, Commerce will direct CBP to begin the  suspension of liquidation 
of any unliquidated entries not yet suspended, which entered on or after the date of initiation of the  
scope inquiry, and collect applicable cash deposits.  Paragraphs  (l)(2)(ii) and (l)(3)(ii) also retain 
language from the current  regulation regarding entries entered, or withdrawn from w arehouse, for  
consumption, to maintain consistency with this long -standing language  and to avoid confusion.  
 New paragraphs (l)(2)(iii)(A) and (l)(3)(iii)(A) provide that, at  the time of a preliminary or final 
scope ruling determining that the  product is c overed by the scope of an order, Commerce normally 
will direct CBP to begin the suspension of liquidation of unliquidated  entries not yet suspended, which 
entered before the date of initiation  of the scope inquiry, and collect applicable cash deposits. Thi s 
includes any unliquidated entries back to the first date of suspension  under the order that remain 
unliquidated at the time of the preliminary  or final scope ruling. However, new paragraphs 
(l)(2)(iii)(B) and  (l)(3)(iii)(B) provide an exception that, if Commerce determines it is  appropriate 
to do so, Commerce may direct CBP to begin suspension of  liquidation and application of cash 
deposits to merchandise entering at  an alternative date. Under this framework, Commerce may 
consider upon  timely req uest of an interested party or at its discretion whether such  suspension of 
liquidation and application of cash deposits, also  referred to as retroactive suspension, should not 
be applied to certain  entries which pre -date the date of initiation. In respons e to a timely  request 
from an interested party, Commerce will only consider directing  CBP to begin suspension of 
liquidation and application of cash deposits  to merchandise entering at an alternative date based on 
a specific  argument by the interested part y supported by evidence establishing the  appropriateness 
of that alternative date. These provisions are further  explained below in response to comments. New 
paragraphs (l)(2)(iii) and  (l)(3)(iii) also retain language from the current regulation regarding  entries 
entered, or withdrawn from warehouse, for consumption, to  maintain consistency with this long -
standing language and to avoid  confusion.  
 Lastly, new paragraph (l)(5) provides language to clarify CBP's  authority to take related action. 
Specifically, this language clarifies  that the revised framework established by Commerce in Sec.  
351.225 do  not affect CBP's authority to take any additional action with respect  to the suspension 
of liquidation or related measures. As discussed  above, CBP has independe nt authority to suspend 
liquidation of entries  that CBP determines are within the scope of an AD or CVD order, and  such 
determinations are "final and conclusive " unless appealed to  Commerce through a request for a 
scope ruling. \94\ Additionally, there  may be entries of products subject to a scope inquiry that CBP 
has liquidated but for which liquidation is not yet final (e.g., entries  under protest pursuant to 19 
U.S.C. 1514) or for which CBP has extended  liquidation (e.g., pursuant to 19 U.S.C. 1504(b)). 
Consistent with  current practice and in accordance with CBP's statutory and regulatory  authorities, 
Commerce expects that CBP may stay its action on these  entries during the course of the scope 
inquiry. \95\ This language also clarifies that any instructions issued by Commerce  directing CBP to 
"lift suspension of liquidation " and assess duties  at the applicable AD/CVD rate would not limit CBP's 
ability to: (1)  Suspend liquidation/assess duties/take any other measures pursuant to  CBP's EAPA 
investi gation authority under section 517 of the Act  specifically; or (2) suspend liquidation/assess 
duties/take any other  action within CBP's or HSI's authority with respect to AD/CVD  entries. \96\ 
----------------------------------------------------------------- ----------  
 \94\ See Sunpreme, 946 F.3d at 1317 -18 (citing 19 U.S.C. 1500(c)  and 1514(b); sections 
500(c) and 514(b) of the Act); TR  International, 433 F. Supp. 3d at 1341; and Fujitsu, 957 F. Supp. 
at 248. Section 517 of the Act (concerning CBP's civil ad ministrative  investigations of duty evasion 
of AD/CVD orders) also authorizes CBP  to suspend liquidation of entries for which it has reasonable  
suspicion, or, in the case of final determination, substantial  evidence, that covered merchandise is 
entered int o the United States  through evasion under section 517(e) and (d) of the Act.  
 \95\ This is consistent with the Federal Circuit's decision in  Thyssenkrupp Steel North America, 
Inc. v. United States, 886 F.3d  1215 (Fed. Cir. 2018). In Thyssenkrupp, the Feder al Circuit  
recognized that instructions revoking an antidumping duty order  superseded previously issued 
liquidation instructions, as of the  effective date of the revocation, and applied to entries under  protest 
that entered the United States after the effe ctive date of  the revocation. Id. at 1223 -27. The Federal 
Circuit explained that  this "serves the purpose of the protest mechanism --to allow agency  
consideration of issues after an initial liquidation determination -- and respects the longstanding 
principle . . . that newly governing  law, if retroactive to particular events, is to be applied to those  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
- 46 - 
 
  events in ordinary, timely initiated direct -review proceedings. " Id. at 1224. A similar point was 
recognized in TR International, 433  F. Supp. 3d at 1344 -46, currently on appeal, concerning CBP's  
potential application of a Commerce scope ruling to entries under  protest.  
 \96\ Homeland Security Investigations (HSI) has the authority to  investigate criminal violations 
related to illegal evasio n of payment of required duties, including payment of AD/CVDs. See, e.g.,  
18 U.S.C. 542.  
---------------------------------------------------------------------------  
 There is one clarification to this revised regulatory framework as  referenced above in the  DATES 
section regarding the effective date and  in the Applicability Dates section of this preamble. As stated 
above,  amendments to Sec.  351 .225 apply to scope inquiries for which a scope  ruling application 
is filed, as well as any scope inquiry self - initiated by Commerce, on or after the effective date for 
the amendments to Sec.  351 .225 identified in the DATES section. However,  Commerce will not 
apply paragraphs (l)(2)(iii) and (l)(3)(iii) in a way  that would direct CBP to begin the suspension of 
liquid ation of  unliquidated entries not yet suspended, entered, or withdrawn from  warehouse, for 
consumption prior to this effective date. For example,  should Commerce initiate a scope inquiry and 
issue a preliminary or  final scope ruling that the product is cov ered by the scope of an  order:  
 Commerce will instruct CBP to begin the suspension of  liquidation and application of cash 
deposits for any unliquidated  entries not yet suspended, entered, or withdrawn from warehouse, for  
consumption, on or after the date of initiation of the scope inquiry  pursuant to paragraphs (l)(2)(ii) 
and (l)(3)(ii); an d 
 Commerce normally will instruct CBP to begin the  suspension of liquidation and application of 
cash deposits for any  unliquidated entries not yet suspended, enter ed, or withdrawn from  
warehouse, for consumption, prior to the date of initiation of the  scope inquiry, but not for such 
entries prior to the effective date  identified in the DATES section, pursuant to paragraphs (l)(2)(iii) 
and (l)(3)(iii).  
 In other word s, the furthest retroactive suspension directed by  Commerce that could apply 
under this framework is to unliquidated  entries not yet suspended, entered, or withdrawn from 
warehouse, for  consumption, on or after the effective date identified in the DATES  section. This is 
consistent with the language of paragraphs  (l)(2)(iii)(B) and (l)(3)(iii)(B) that allows for Commerce 
to alter the  date for which the suspension of liquidation should begin under this  provision at its 
discretion. Thus, when applying paragrap hs (l)(2)(iii)  and (l)(3)(iii) in a given scope inquiry, 
Commerce will include the  appropriate clarifying language regarding the effective date identified  in 
the DATES section in the preliminary and final scope rulings and  corresponding instructions to CBP . 
That being said, as expressly stated  in paragraph (l)(5), this framework does not affect CBP's 
authority to  take any additional action with respect to the suspension of  liquidation or related 
measures. Nor will this framework apply to scope  ruling applic ations filed or scope inquiries self -
initiated by Commerce  before the effective date identified in the DATES section.  
 This application will be limited in practice; as detailed in the  Proposed Rule, CBP normally will 
liquidate entries declared as non - subject to AD/CVDs within one year of entry. Therefore, we expect 
that only within the first year after the effective date identified in the  DATES section will there be 
entries that remain unliquidated and not  yet suspended, entered, or withdrawn from warehous e, for 
consumption,  prior to the effective date.  
 To be clear, entries that are already suspended as of the effective  date identified in the DATES 
section, will be subject to the continued  suspension of liquidation under paragraph (l)(1), which 
provides that,  at the time of initiation of a scope inquiry, Commerce will instruct  CBP to continue the 
suspension of previously suspended entries and  apply the applicable cash deposit rate. Similarly, 
entries that are  already suspended as of the effective  date identified in the DATES  section will be 
subject to the continued suspension of liquidation  under paragraphs (l)(2)(i) and (l)(3)(i), which 
provide that, at the  time of a preliminary or final scope ruling determining that the  product is covered 
by the  scope of an order, Commerce will instruct CBP  to continue the suspension of previously 
suspended entries and apply  the applicable cash deposit rate. These entries will retain their  status 
quo from before the effective date to after the effective date.  Specifically, current paragraph (l)(1), 
as well as current paragraphs  (l)(2) and (3), require continued suspension of previously suspended  
entries both at the time of initiation of a scope inquiry and in the  event of a preliminary or final 
scope ruling determ ining that the  product is covered by the scope of an order.  
 As noted above, Commerce received numerous comments on paragraph  (l). Summaries of 
those comments, and responses to those comments, are  provided below.  
 
(a) Retroactive Suspension of Liquidation  
 G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
- 47 - 
 
   As described above, among other changes, Commerce proposed to  eliminate the distinction 
between formal and informal scope inquiries  in the Proposed Rule, so that all scope inquiries would 
be conducted by  a formal initiation. In addition, Commerce propose d that, at the time  of a 
preliminary or final scope ruling determining that the product is  covered by the scope of an order, 
Commerce would direct CBP to begin  suspension of liquidation for any unliquidated entries not yet  
suspended retroactive to the firs t date of suspension under the  relevant order, and collect applicable 
cash deposits. Therefore, the  key distinction between the current regulation and what was proposed 
is that the current regulation imposes a "cut-off" of the initiation  date of the scope inquiry --the 
proposed regulation would have removed  this limitation so that any unliquidated entries found within 
the scope  of the order would be subject to duties, not just those that entered on  or after the initiation 
date. 
 Several commenters support the proposal to apply affirmative scope  rulings to all unliquidated 
entries dating back to the first date of  suspension under the order. Certain of these commenters 
agree that by  eliminating the distinction between formal and informal sc ope inquiries, Commerce 
makes clear that an affirmative scope ruling means  that the product has always been subject to the 
order. One commenter  argues that the proposal will address serious duty evasion issues and  will 
foster uniformity in the enforcement of AD/CVD laws no matter what  type of scope inquiry is 
conducted. This commenter also agrees with  Commerce's statement in the Proposed Rule that, at 
the time Commerce  issues an affirmative preliminary or final scope ruling, it is unlikely  that there 
will be any  unliquidated entries more than one year old other than those already  suspended.  Another 
commenter argues that the proposed changes are necessary  because, while scope rulings do not 
expand the scope of an order, the  Federal Circuit has foreclosed Comm erce from applying scope 
rulings to  all unliquidated entries in instances where Commerce issues a scope  ruling based on the 
application under the current regulations. \97\ According to this commenter, the proposal results in 
the common -sense  proposition tha t AD/CVDs should be collected on all in -scope  merchandise 
regardless of when a scope inquiry was initiated.  
---------------------------------------------------------------------------  
 \97\ See Fasteners, 947 F.3d at 800 -03. 
---------------------------------------------------------------------------  
 Roughly the same number (12) of commenters to those above, oppose  the Proposed Rule 
regarding retroactive suspension in scope inquiries.  These commenters raise the issue of fairne ss; 
in particular, they argue  that there is a significant duty liability risk to importers that are  genuinely 
unaware their products may be within the scope of an order.  
 In addition to fairness concerns, certain of these commenters raise  concerns regardin g notice 
and due process and argue that assessing  duties retroactively when the language of an order is 
unclear is a  violation of due process and creates uncertainty for importers. Certain  of these 
commenters argue that product scope language should be as  precise and clear as possible from the 
beginning and that clarification  of ambiguous scope language should be applicable at the time of  
initiation of the scope inquiry because, otherwise, retroactive duty  liability presents an incalculable 
risk and signifi cant uncertainty to  parties. Certain commenters also argue that scope rulings should 
be published in the Federal Register so that all interested parties  affected have the same level of 
information and can defend their  interests, or available on Commerce's website. Another of these  
commenters argues that, as held by the Federal Circuit, a scope ruling  does not confirm the scope 
of an order, but clarifies an unclear  scope. \98\ This commenter argues that parties should not be 
penalized  for relying on scope lan guage that does not clearly cover merchandise,  and also expresses 
support for providing notice of initiation of a  scope inquiry via the Federal Register. Another 
commenter argues that  the Proposed Rule would encourage ambiguity in scope language and  
preven t importers from making appropriate business plans.  
---------------------------------------------------------------------------  
 \98\ Id., 947 F.3d at 803.  
---------------------------------------------------------------------------  
 A few commenters also a rgue that Commerce alleges, without citing  any specific past examples 
of such activity by importers, that the  existing approach in the current regulations encourages 
gamesmanship,  delay, and duty evasion based on a view that importers fail to do their  due diligence, 
are aware of the potential liability, and would not seek  a scope ruling so as to avoid payment of 
AD/CVDs. These commenters  claim that the proposal would result in negligent importers not seeking  
a scope ruling at all if doing so would imply that all unliquidated  entries could be subject to AD/CVDs.  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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   Another commenter argues that Commerce's premise in the Proposed  Rule that the AD/CVD 
order constitutes notice that unspecified products  may be in -scope is flawed because scope language 
may not be clear, and  allowing for retroactive suspension would only serve to correct the  petitioner's 
own errors or neglect when finalizing scope language in  the investigation.  
 Finally, two commenters oppose the proposal to apply affirmative  scope rulings to  all 
unliquidated entries dating back to the first date  of suspension under the order because it would 
deprive parties of the  ability to request an administrative review of entries later found to  be subject 
to an AD/CVD order. One of these commenters notes  that, in  certain scenarios, importers would 
have no ability to request an  administrative review to lower their liability for entries later  determined 
to be subject to an order. The other commenter proposes that  a review would need to be conducted 
outside of the normal  administrative review process, as often the time for requesting such  reviews 
will have elapsed by the time Commerce issues a final scope  ruling. According to this commenter, 
absent such a process, the  proposal would likely be violative of the  Excessive Fines clause of the  8th 
Amendment.  
 Response:  
 As discussed above, after consideration of these comments, Commerce  is adopting a number 
of key changes to paragraph (l).  
 First, Commerce is adopting changes to paragraphs (l)(2) and (3) to  clarify and maintain the 
status quo of the current regulation with  respect to unliquidated entries not yet suspended which 
entered on or  after the date of initiation of the scope inquiry. Specifically,  paragraphs (l)(2)(ii) and 
(l)(3)(ii) provide that, at the time of a  preliminary or final scope ruling determining that the product 
is covered by the scope of an order, Commerce will direct CBP to begin the  suspension of liquidation 
of any unliquidated entries not yet  suspended, which entered on or af ter the date of initiation of the  
scope inquiry, and collect applicable cash deposits.  
 Second, Commerce is adopting changes to paragraphs (l)(2) and (3)  with respect to 
unliquidated entries not yet suspended which entered  before the date of initiation of the scope 
inquiry. Specifically,  paragraphs (l)(2)(iii)(A) and (l)(3)(iii)(A) provide that, at the time  of a 
preliminary or final scope ruling determining that the product is  covered by the scope of an order, 
Commerce normally will direct CBP to  begin the suspension of liquidation of unliquidated entries not 
yet suspended, which entered before the date of initiation of the scope  inquiry, and collect applicable 
cash deposits. This includes any  unliquidated entries back to the first date of suspension under t he 
order that remain unliquidated at the time of the preliminary or final  scope ruling. \99\ However, 
new paragraphs (l)(2)(iii)(B) and  (l)(3)(iii)(B) provide an exception that, if Commerce determines it 
is appropriate to do so, Commerce may direct CBP to b egin suspension of  liquidation and application 
of cash deposits to merchandise entering at  an alternative date. Under this framework, Commerce 
may consider upon a  timely request of an interested party or at its discretion whether such  
suspension of liquida tion and application of cash deposits, also  referred to as retroactive suspension, 
should not be applied to certain  entries which pre -date the date of initiation. In response to a timely  
request from an interested party, Commerce will employ a heightened  standard and will only 
consider directing CBP to begin suspension of  liquidation and application of cash deposits to 
merchandise entering at  an alternative date based on a specific argument by the interested  party 
supported by evidence establishing the appr opriateness of that  alternative date. This would require, 
for instance, specific  identification of the interested parties and entries at issue and the  
circumstances surrounding the  declaration of the entries as non -AD/CVD type entries. Broad, non - 
specific  arguments concerning general unfairness or lack of notice that  are not concrete or particular 
to the interested party or entries at  issue would not be sufficient. In addition, Commerce may consult 
with CBP as necessary under this provision.  
-------------- -------------------------------------------------------------  
 \99\ As stated above in the discussion of new paragraph (l)(5),  consistent with current practice 
and in accordance with CBP's  statutory and regulatory authorities, CBP may stay its action on  entries 
of products that CBP has liquidated but for which  liquidation is not yet final pending the outcome of 
a scope inquiry.  Additionally, any instructions issued by Commerce directing CBP to  "lift suspension 
of liquidation " and assess duties at the  applic able AD/CVD rate would not limit CBP's ability to (1) 
suspend  liquidation/assess duties/take any other measures pursuant to CBP's  EAPA investigation 
authority under section 517 of the Act  specifically, or (2) suspend liquidation/assess duties/take any  
other action within CBP's or HSI's authority with respect to AD/CVD  entries.  
---------------------------------------------------------------------------  
 As Commerce stated in the Proposed Rule, and as set forth in  paragraph (a) of Sec.  351 .225, 
a scope rulin g that a product is within  the scope of the order is a determination that the product has 
always  been within the scope of the order. Therefore, one of Commerce's  objectives in crafting G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  suspension of liquidation rules for scope  inquiries is to ensure that A D/CVDs are applied to all 
unliquidated  entries of products found within the scope of the order, including  entries that may pre -
date the date of initiation of the scope inquiry.  
 As a general matter, producers, exporters, and importers are  already notified that their products 
may be covered by the scope of an  order through the publication in the Federal Register of 
Commerce's  determinations and/or order, which provides a description of the  subject merchandise 
and any associated Harmonized Tariff Schedule of  the United States (HTSUS) categories. \100\ As 
discussed in further  detail below under the discussion of Sec.  351 .226(l), importers are  generally 
expected to perform their due diligence and exercise  reasonable care, which would include 
understa nding the imported product  and reviewing prior Federal Register notices relevant to the 
product.  Furthermore, an importer of a product under an HTSUS category that is  associated with an 
AD/CVD order would be faced with a particular  responsibility to ensure  whether the product is subject 
to an AD/CVD  order. Additionally, exporters, producers, and importers are able to  ask Commerce at 
any time for a scope ruling on any product that is in  actual production (regardless of whether it has 
yet been sold or  exporte d to the United States). To the extent that a party is unclear  as to whether 
a product falls within the scope of the order, the onus  is on that party to request a scope ruling, and 
to seek such a scope  ruling in an expeditious manner. \101\ 
---------------- -----------------------------------------------------------  
 \100\ The Federal Circuit has recognized that Federal Register  notices are treated as legally 
effective notices in a wide range of  circumstances. See Suntec Indus. Co. v. United States, 857 F.3d  
1363, 1370 (Fed. Cir. 2017) (Suntec). In certain cases, the courts  have determined that a party that 
did not receive actual notice  nonetheless received constructive notice of an event through the  
publication of a Federal Register notice. Id. In Suntec, the  Federal  Circuit found that publication of 
a notice of initiation of an  administrative review in the Federal Register constituted notice to  Suntec 
as a matter of law, despite the fact that the domestic  industry failed to serve Suntec directly with 
its requ est that  Commerce conduct an administrative review of Suntec. Id.  
 \101\ See Proposed Rule, 85 FR 49472 at 49481.  
---------------------------------------------------------------------------  
 This is particularly the case where a party has been alerted by CBP  that the entries may be 
subject to an AD/CVD order, and advised to seek  a scope ruling from Commerce. \102\ Moreover, 
as explained above,  "Commerce, not Customs, has authority to clarify the scope of AD/CVD  
orders[  . ]" \103\ Accordingly, pro ducers, exporters, and importers of  products found to be within 
the scope of an order generally cannot  claim ignorance or reliance on another agency's 
determinations or  actions to avoid the application of Commerce's scope ruling to their  merchandise. 
Thus,  establishing a rule that normally applies  retroactive suspension in scope inquiries will 
encourage parties to  maintain a reasonable awareness of whether the product they are  producing, 
exporting, or importing is subject to an AD/CVD order.  
---------------------------------------------------------------------------  
 \102\ In such a scenario, CBP may agree not to convert the entry  to an AD/CVD type entry at 
that time, and instead to extend  liquidation for the entry while the party seeks a scop e ruling from  
Commerce.  
 \103\ See Wirth, 5 F. Supp. 2d at 973.  
---------------------------------------------------------------------------  
 Further, as discussed in the Proposed Rule, and as supported by  numerous commenters, in 
crafting its rules regardin g suspension of  liquidation in scope inquiries, Commerce is particularly 
concerned with  gamesmanship, delay, and duty evasion if foreign producers and  exporters, as well 
as U.S. importers, believe that all entries not  already suspended prior to the date on  which 
Commerce initiates a scope  inquiry are essentially excused from AD/CVDs, even if Commerce finds  
through the scope inquiry that the product has always been within the  scope of the order. Under 
such a system, importers would have an  incentive to import as much merchandise as possible prior 
to requesting  a scope ruling to avoid potential AD/CVD liability. If Commerce found  the product at 
issue is not covered by the order, the importer could  continue to import it without concern of 
AD/CVDs. On the o ther hand, if  Commerce determines that the product is, in fact, covered by the 
order,  the importer will have avoided AD/CVD liability for the imports  imported before requesting 
the scope ruling. They would essentially  avoid the application of the scope rul ing through timing and  
gamesmanship. We find that such manipulation of AD/CVD liability  undermines the effectiveness 
and remedial purpose of the AD/CVD  laws.\104\ 
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   \104\ Proposed R ule, 85 FR 49472 at 49481 -84. 
---------------------------------------------------------------------------  
 That said, Commerce also agrees, in part, with some commenters that  there may be some 
limited instances in which it may be appropriate for  Commerce t o exercise its authority to direct CBP 
to begin the  suspension of liquidation and collection of cash deposits to entries as  of an alternative 
starting point. For example, there may be situations  in which Commerce issues a scope ruling that 
a product is cov ered by  the scope of an order, and the affected importers have no opportunity,  for 
no reason other than the timing of the scope ruling, to request an  administrative review to potentially 
lower their liability for entries  that pre -date the date of initiatio n of the scope inquiry. In such a  
situation, Commerce may consider specific arguments of the parties that  retroactive application of 
the scope ruling to certain entries might be  inappropriate. However, as explained above, such a 
showing would  require, for instance, specific identification of the interested  parties and entries at 
issue and the circumstances surrounding the  declaration of the entries as non -AD/CVD type entries. 
Broad, non - specific arguments concerning general unfairness or lack of notice tha t are not concrete 
or particular to the interested party or entries at  issue would not be sufficient.  
 This exercise of Commerce's discretion (in the absence of express  statutory language, as noted 
above) is reasonable and balanced in that  it takes into ac count the enforcement objectives and 
concerns about  scenarios limiting the effectiveness of an order discussed in the  Proposed Rule, as 
well as comments raised in response to the Proposed  Rule that suggest that Commerce should leave 
open the opportunity for a  party to try to demonstrate why an exception might be appropriate in  
light of particular facts. In addition, in certain instances, it would  not be an unreasonable exercise 
of Commerce's discretion to direct CBP  to liquidate entries that h ave been converted from non -
AD/CVD type  entries to AD/CVD type entries at the applicable cash deposit rate,  even where the 
party may have missed an opportunity to seek individual  review of its entries. For example, if parties 
engaging in gamesmanship  and d elay tactics later discovered that they missed an opportunity to  
seek an administrative review to lower their potential duty liability,  through a scheme to import 
massive volumes of merchandise, and then  request a scope ruling, Commerce  believes that such a 
missed opportunity would be the fault and  responsibility of the party attempting to avoid AD/CVDs 
in the first  instance.  
 On the other hand, we agree with commenters that, for example, we  should leave open the 
possibility for limited exceptions where the  facts and circumstances warrant --e.g., a party seeks a 
scope ruling as  early as possible, but the time to seek an administrative review on  certain pre -
initiation entries has passed. In such instances, Commerce  may direct CBP to suspend liquidation 
and col lect cash deposits only  for those unliquidated entries not already subject to suspension and  
made prior to the initiation of the scope inquiry for which an  administrative review can still be 
requested. In light of these  changes, we disagree that a revised process for requesting an  
administrative review of such entries is necessary.  
 Therefore, with respect to comments that the Proposed Rule would  encourage ambiguity in 
scope language, prevent importers from making  appropriate business plans, and increase 
uncertainty, we believe that  the framework adopted in this final rule described above adequately  
addresses such concerns. In practice, in individual scope proceedings,  Commerce will have to 
balance its interest in ensuring the  effectiveness of all AD/CVD ord ers with any case -specific issues 
that might warrant altering the date for which suspension of liquidation  should begin for unliquidated 
entries not yet suspended. Exactly how to  strike this balance should emerge over time, through 
Commerce's  practice and consideration of case -specific issues.  
 With respect to comments that the publication of an AD/CVD order  may not be sufficient notice 
to parties of a pending scope inquiry and  the potential for retroactive suspension of entries not 
previously  suspended, Commerce is adopting new procedures to publish a monthly  notice in the 
Federal Register listing scope applications received over  the past month in Sec.  351 .225(d)(2) (see 
discussion above). Such  monthly notice will give all interested parties a n opportunity to  consider if 
the scope inquiry request is relevant to them and their  interests and allow them the opportunity to 
participate.  
 Another commenter also points out that scope rulings are not  published and are difficult to find 
and proposes that Commerce should  put public versions of scope rulings on its website. As discussed 
below  under Sec.  351 .225(o), Commerce publishes notice of its final scope  rulings on a quarterly 
basis in the Federal Register. In addition, all  final scope ru lings since 2012 are available on ACCESS, 
and Commerce  continuously updates its website with past scope rulings, currently  available at 
https://www.trade.gov/us -antidumping -and-countervailing -duties . 
 Further, we disagree with certain comments that Commerce has not  provided adequate support 
for its concern that the existing approach in  the current regulations encourages gamesmanship, 
delay, and duty  evasion. As highlighted not on ly by Commerce in its discussion in the  Proposed G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  Rule,\105\ but also by commenters in favor of the Proposed  Rule and numerous Federal court 
decisions, \106\ the agency, as the  administrator of the AD/CVD laws, has a well -founded and 
significant  concern that  Commerce determinations may not be adequately enforced due  to 
gamesmanship, delay, and duty evasion. If Commerce is able to modify  its regulations to diminish 
the possibility of evasion of the payment  of duties, while maintaining procedures that assure th at its 
determinations are based on record evidence, then it is appropriate for  Commerce to make such 
changes in this final rule.  
---------------------------------------------------------------------------  
 \105\ See Id. at 49483; 49473 (discussing under the revisions to  the new shipper review 
regulation, Sec.  351 .214, the Enforce and  Protect Act of 2015 which highlighted duty evasi on 
concerns).  
 \106\ See Sunpreme, 946 F.3d at 1317 and 1321. In Fasteners, 947  F.3d 794, the Federal 
Circuit did not disagree with Commerce's  concerns of potential "gamesmanship and delay " if 
importers did  not report their merchandise to CBP as subject me rchandise. See  Fasteners, 947 F.3d 
at 803 (finding that "we do not find that such  gamesmanship occurred in this case. "). 
---------------------------------------------------------------------------  
 We also disagree with comments that the proposal would res ult in  negligent importers not 
seeking a scope ruling at all if doing so would  imply that all unliquidated entries would be subject to 
AD/CVDs. We  believe that the framework we have set forth will, in fact, deter  parties from engaging 
in such gamesmanship,  and will encourage parties  to maintain a reasonable awareness whether the 
product they are  producing, exporting, or importing is subject to an AD/CVD order.   
 
(b) Suspension of Liquidation and Cash Deposits at Initiation  
 
 Several commenters generally agree with Commerce's proposal under  Sec.  351 .225(l)(1) to 
instruct CBP upon initiation of a scope inquiry  to continue to suspend liquidation of products that are 
already subject  to suspension.  Several of these commenters argue that Commerce sho uld instruct 
CBP to begin suspending liquidation of entries not already  suspended by CBP at an earlier stage in 
a scope inquiry. Specifically,  these commenters request that Commerce instruct CBP upon initiation 
of a scope inquiry to suspend liquidation of entries which are not already  subject to suspension of 
liquidation. Several of these commenters  propose that cash deposits for such entries be collected at 
the rate of  zero, which they argue means there would be no economic harm to  importers, while one 
commenter proposes that the cash deposit should be  at the applicable rate under the order if the 
product at issue were  found to be covered by the order. These commenters argue that  suspending 
liquidation at the time a scope inquiry is initiated will  preserve entries for duty assessment if the 
product at issue is  ultimately found to be within the scope of an order. According to these  
commenters, waiting for an affirmative preliminary scope ruling to  suspend liquidation means that 
entries made more than one year  prior to  a preliminary scope ruling would have already liquidated, 
which would  significantly undermine the purpose of the proposed changes to  Commerce's regulations 
in this rulemaking. These commenters argue that  suspending liquidation and collecting cash  deposits 
upon initiation of  a scope inquiry helps counter the situation where an importer could  escape liability 
by importing as much as possible prior to requesting a  scope ruling. These commenters consider 
that, under Commerce's  proposal, an importer co uld escape duty liability by filing a scope  ruling 
application at a time when an affirmative preliminary or final  scope ruling would be issued more than 
one year after the date the  importer's merchandise enters the United States.  
 These commenters further argue that Commerce's concerns in the 1997  Final Rule with 
beginning the suspension of liquidation of entries at  the time of initiation of a scope inquiry based 
on nothing more than a  mere allegation by domestic industries are resolved by the proposed  
regulations because the proposed regulations now require additional  information when filing a scope 
ruling application. These commenters  argue that, as a practical matter, the overwhelming majority 
of scope  ruling requests are filed by U.S. import ers and foreign producers, so  any purported 
inconvenience to these parties from domestic industries  filing scope ruling requests apply only to a 
small portion of the  importing community.  
 One commenter opposes the requirement under proposed Sec.  351 .225(l )(1) to post cash 
deposits from the date Commerce initiates a  scope inquiry for any unliquidated  entries at the time 
of initiation, arguing that this is an overly  burdensome revision to the regulations and prematurely 
assumes a  product is within the scope of an order before any analysis is  conducted. This commenter 
argues that many times parties request scope  rulings because it is not necessarily clear that a 
product is within  the scope of an order. This commenter argues that requiring the posting  of cash G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  deposits from initiation of a scope inquiry is inconsistent  with Commerce's practice with requiring 
cash deposits in similar  situations, such as when Commerce initiates an investigation.  
 In rebuttal, several commenters expressed support for the argument  that, upon initiation of a 
scope inquiry, Commerce should instruct CBP  to suspend liquidation and require cash deposits for 
all unliquidated  entries, whether the entries are already subject to suspension of  liquidation and cash 
deposit requirement s or not. These commenters  argue that this would preserve the largest amount 
of entries for duty  assessment and would help prevent foreign producers and exporters, and  U.S. 
importers, from importing as much merchandise as possible before a  scope ruling app lication is filed.  
 In rebuttal, several commenters oppose the proposal to begin  suspending liquidation and 
requiring cash deposits on all unliquidated  entries at the time a scope inquiry is initiated. One 
commenter argues  that this would be contrary to al l notions of fairness, which Commerce  recognized 
when rejecting similar proposals in the 1997 Final Rule and  by not itself proposing this change in 
the proposed regulations. One  commenter adds that this would promote the filing of frivolous scope  
requests, harass U.S. importers, and waste Commerce's resources.  
 One commenter argues in rebuttal that, regardless of the cash  deposit requirement and the 
applicable cash deposit rate, there is a  significant financial impact on importers if liquidation is  
suspended  upon initiation of a scope inquiry because entries would remain open  until Commerce 
issues liquidation instructions to CBP and an importer's  bond cannot be terminated while entries 
remain open. This commenter  argues that suspension of liquidatio n also has a significant financial  
impact on an importer's unrelated activity because the collateral that  sureties typically require for a 
bond, which may be up to the face  value of the bond, is not released until at least six months after 
all entries have  liquidated.  
 Response:  
 We have left unchanged Sec.  351 .225(l)(1), which states that, upon  initiation of a scope 
inquiry, Commerce will direct CBP to continue the  suspension of liquidation of previously suspended 
entries and to apply  the applicable cash deposit rate. In addition, we have considered the  proposal 
by some commenters that Commerce should instruct CBP upon  initiation of a scope inquiry to begin 
the suspension of liquidation of  unliquidated entries not previously suspended and to require cash  
deposits on such entries (either at zero or at the rate in effect at  the time of entry). We have also 
considered the arguments in opposition  to this proposal. As noted above, the statute does not 
provide  direction to Commerce on the suspension of liquidatio n of entries  subject to a scope inquiry. 
Therefore, after consideration of the  parties' arguments and based on current practical and 
administrability  concerns, we have decided to continue to order suspension of  liquidation and 
collection of cash deposits f or such entries only after  Commerce's first (preliminary or final) scope 
ruling that a product is  covered by the scope of an order. As a result, we have not accepted the  
proposal that Commerce instruct CBP to begin suspension of liquidation  upon initiation.  
 One reason we do not find it appropriate to instruct CBP to begin  the suspension of liquidation 
for unliquidated entries not previously  suspended upon initiation of a scope inquiry is a consequence 
of the  revisions to Sec.  351 .225(d)(2). Unde r those revisions, scope ruling  applications that are not 
rejected will be deemed accepted 31 days  after filing and the scope inquiry will be deemed initiated. 
In these  situations, scope inquiries may be deemed initiated without Commerce  fully analyzing th e 
application (including the description of the  product for which a scope ruling is requested) prior to 
initiation.  Once initiated, paragraph (l)(1) provides that Commerce will direct CBP  to continue the 
suspension of liquidation of previously suspended  entries and to apply the applicable cash deposit 
rate. From a practical  perspective, under this new framework, Commerce is seeking to maintain  the 
status quo with respect to this group of previously suspended  entries. Therefore, we find it 
acceptable for Com merce to incorporate  the description of the product in the application "as is" in 
its instructions to CBP, even if Commerce has not had a great deal of time  to fully analyze the 
product description.  
 However, we find that ordering suspension for the first time on  merchandise which was not 
previously suspended, based only on the  description in the scope ruling application, raises practical 
and administrability concerns. Specifically, before initiation, Commerce  may not have adequate time 
to analyze the descr iption to ensure that  when such a description is provided in CBP instructions, 
CBP is able to  administer and enforce those instructions without difficulty. Commerce  does not have 
the same concerns for entries already suspended, because,  as noted above, for  those entries 
Commerce is simply seeking to  maintain the status quo for those entries. On the other hand, after  
initiation, Commerce would have the time to receive feedback from  interested parties and seek 
clarification from the scope ruling  applicant as appropriate, before settling on the precise description 
of the product to include in its instructions to CBP.  
 We therefore disagree with commenters who argue that Commerce's  revised requirements for 
scope ruling applications under revised Sec.  351 .225(c) would always provide Commerce with 
sufficient information  for purposes of ordering suspension of liquidation and collection of  cash G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  deposits upon initiating an inquiry for all entries. Although  Commerce may have more information 
from a scope ruling application  under revised Sec.  351 .225(c) than under current practice, at the  
point of initiation, in most cases, it is unlikely that Commerce would  have had sufficient time to 
analyze the description for the purpose of  ordering CBP to begin suspen sion of liquidation for certain 
entries as  detailed above. Notably, there may be instances in which Commerce finds  that the record 
and product descriptions are sufficient and clear  enough to warrant combining an initiation with a 
concurrent affirmative  preliminary scope ruling. However, in the cases in which Commerce just  
initiates a scope inquiry, Commerce will not have reached any sort of  determination on the merits 
that the product at issue is covered by, or  excluded from, the scope of the order.  
 Furthe r, we are also concerned with the significant administrative  burden that would result if 
we were to instruct CBP to begin suspension  of liquidation and collection of cash deposits of all 
entries at  initiation, regardless if they are determined later to be merchandise  covered or not covered 
by an AD or CVD order. For example, under one  possible scenario, such suspension could result in 
a multi -step process  of Commerce: (1) Directing CBP to convert all non -AD/CVD type entries meeting 
the description of the pr oduct at issue in the  scope ruling application to AD/CVD type entries and 
directing CBP to  suspend liquidation without any cash deposits at the time of  initiation; (2) directing 
CBP subsequently, upon the event of an  affirmative preliminary scope ruling, t o collect cash deposits 
at the  rate to be determined applicable retroactively; and (3) directing CBP,  in the event of a 
negative final scope ruling, to lift suspension and  liquidate entries without regard to AD/CVDs. This 
is just one sequence  of scope inqu iry proceedings and determinations, among several, that  reflects 
the additional administrative burden that suspension of  liquidation of all entries of the product 
described in a scope ruling  application at initiation would require of Commerce and CBP.  
 We are cognizant of the concerns expressed by some commenters that  certain entries that 
entered prior to a preliminary scope ruling may  liquidate without being assessed AD/CVDs, and that 
certain parties may  time the filing of a scope ruling application in an attempt to avoid  the payment 
of AD/CVDs. We have also considered the suggestion of some  commenters to begin the suspension 
of liquidation of not yet liquidated  entries at the time of initiation, with a cash deposit rate of zero,  
which they argue means t here would be no economic harm to importers.  However, Commerce 
believes that this balance between enforcement  concerns and practical and administrability 
considerations described  above weighs in favor of maintaining its current practice of not  imposing 
either suspension of liquidation and/or cash deposit  requirements until after evaluating a scope 
ruling application and  making either a preliminary or final affirmative scope ruling,  whichever occurs 
first. 
 That said, although we are not adopting the suggest ions that we  suspend liquidation of all 
entries described in scope applications at  initiation, we note that we have made numerous other 
changes throughout  these regulations, such as the remedy provisions found in Sec.  351 .225(m) 
and the certification proc ess addressed in Sec.  351 .228, in  addition to the changes discussed above 
for paragraph (l), that we  believe significantly strengthen the administration and enforcement of  
AD/CVD laws, and, overall, these changes minimize the opportunities for  gamesmanshi p and evasion 
of AD/CVD orders while also mitigating the  harm to importers that may be acting in good faith.  
 With respect to the comment that Commerce should not require cash  deposits upon initiation 
of a scope inquiry, it is unclear whether this  commente r believes that under revised Sec.  
351.225(l)(1) Commerce  would be directing CBP to begin suspension of liquidation and require  cash 
deposits of all unliquidated entries (including entries not  previously suspended), or whether the 
commenter disagrees that  Commerce  should inform CBP that it has initiated a scope inquiry and 
direct CBP  to continue any suspension of liquidation and collection of cash  deposits already in place. 
As discussed above, prior to a scope  inquiry, entries may be previously suspended for a number of 
reasons,  including for example, because the importer declared the merchandise as  subject to the 
order, or CBP directed the importer to refile an entry  that was previously declared as not subject to 
the order to an entry  type indic ating it is covered by an AD and/or CVD order. Thus, at the  time 
Commerce initiates a scope inquiry, entries of products subject to  the scope inquiry may already be 
suspended. We clarify that under  revised Sec.  351 .225(l)(1), when Commerce initiates a sco pe 
inquiry,  it does not intend to direct CBP to suspend liquidation and collect  cash deposits in the first 
instance. Rather, Commerce will inform CBP  that it has initiated a scope inquiry and direct CBP to 
continue the  suspension of liquidation of all unli quidated entries of products  subject to the scope 
inquiry that have already been suspended. In other  words, under revised Sec.  351 .225(l)(1), 
Commerce would direct CBP to  continue suspending any entries that are already suspended and to  
continue collectin g cash deposits at the applicable rate for such  entries. This is consistent with 
current Sec.  351 .225(l)(1) in the  sense that both the current and revised regulation require 
suspension  of liquidation to continue at the applicable cash deposit rate for  previously suspended 
entries after initiation of a scope inquiry.  Although it has not been Commerce's practice under the 
existing  regulations to direct CBP upon initiation of a scope inquiry to  continue the suspension of G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  liquidation for entries already subjec t to suspension and collection of cash deposits, current Sec.  
351.225(l)(1)  provides that any such suspension will continue when Commerce initiates  a scope 
inquiry. This revised framework is guided by the curative  purpose and remedial intent of the AD/CVD  
law, as well as to provide  for the protection of revenue. \107\ Consistent with that policy,  Commerce 
has revised Sec.  351 .225(l)(1) to require the issuance of  instructions to ensure that entries 
previously suspended by CBP  continue to be suspended during  the pendency of the scope inquiry.  
---------------------------------------------------------------------------  
 \107\ See Guangdong Wireking, 745 F.3d at 1203 (noting that the  statutory scheme has a 
"curative purpose " and a "remedial  intent "); and Sunpreme, 946 F.3d at 1321 -22 (noting "the policy  
declared in the Tariff Act, which instructs the government to  `provide, to the maximum extent 
practicable, for the protection of  revenue. "') (citing 19 U.S.C. 1484(a)(2)(C)).  
------------------------------- --------------------------------------------  
(c) Action Pursuant to a Negative Preliminary Scope Ruling  
 
 Certain commenters oppose eliminating the requirement for Commerce  to notify CBP of a 
preliminary scope ruling determining that the  product at issue i s not covered by the scope of the 
relevant order  along with instructions to terminate the suspension of liquidation for  any entries 
previously suspended by CBP and to refund cash deposits of  estimated duties. One of these 
commenters argues that eliminating  this requirement effectively requires companies to float the 
extra duties  under an AD/CVD order pending a final scope ruling and receiving a  reimbursement 
without interest several months later. Other commenters  argue that the proposal would be unfair to 
importers, especially when  CBP suspends liquidation and requires cash deposits for products that  
are facially out of scope, because importers would be forced to wait a  full year or more than 500  days 
based on the amount of time that it has  historically taken before liquidation occurs and cash deposits 
are refunded. These same commenters argue that, in the context of  investigations, provisional 
measures are not imposed following a  negative preliminary determination.  
 In rebuttal, several commenters respon ded with arguments supporting  the proposal to eliminate 
the requirement to notify CBP of a  preliminary negative scope ruling. Many of these commenters 
argue that  duty collection is a guiding principle for this rulemaking and  notifying CBP at the time of 
a final scope ruling ensures that any  duties collected are preserved in the event Commerce reverses 
its position after a preliminary negative scope ruling. These same  commenters believe that this 
particular aspect of the suspension of  liquidation rules will encourage importers to seek scope rulings  
earlier in the proceeding or risk having entries suspended by CBP.  Another group of commenters 
agreed that the proposal ensures the  appropriate application of AD/CVD orders in the event of a 
final scope  ruling dete rmining that the product in question is covered by the scope  of an order and 
ensures that affirmative rulings are applied to all  entries of subject merchandise. These commenters 
believe the proposal  is consistent with the overall objective of addressing se rious enforcement 
concerns and the very real risk of duty evasion.  
 Response:  
 We have left unchanged proposed Sec.  351 .225(l)(2) with respect to  this issue. Under the 
existing regulations, if Commerce issues a  preliminary scope ruling determining that th e product at 
issue is not  covered by the scope of an order, Commerce is required to notify CBP  and direct CBP to 
terminate the suspension of liquidation for any  entries previously suspended by CBP with refunds of 
any cash deposits  paid as estimated duties. The Proposed Rule proposed eliminating this  requirement 
so that Commerce would no longer issue instructions upon  issuance of a preliminary scope ruling 
determining that the product is  not covered by the scope of an order. Instead, through  the 
elimination  of this requirement, any entries previously suspended would remain  suspended pending 
completion of the scope inquiry and a final ruling on  the matter. We believe that adoption of the 
proposal is necessary to  preserve the status quo for the  duration of the scope inquiry and  ensure 
the appropriate application of AD/CVDs to subject merchandise in  the event of a final scope ruling 
determining that the product is  covered by the scope of an order. As we have explained, regardless 
of the prelimina ry scope ruling, if Commerce concludes in the final scope  ruling that the product at 
issue is covered by the scope of an order,  that is a determination that the product at issue was 
always covered by  the scope of an order. Keeping the status quo, therefore , helps protect  the 
integrity of such a determination and promotes the effectiveness  and remedial purpose of the 
AD/CVD laws.  
 Further, we do not agree with the comments that not directing CBP  to terminate suspension of 
liquidation pursuant to a preliminar y determination that the product at issue is not covered by the 
scope of  an order would be unfair to importers, because that may mean importers  would be forced 
to wait a full year or longer based on how it has  historically taken before liquidation and refu nding G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  of cash deposits to  occur. The revised regulations implement other changes that we  anticipate will 
streamline and expedite the scope inquiry process and  will, to a certain extent, address that timing 
issue. Therefore,  Commerce has revised Sec.  351 .225(l)(2) to no longer require notifying  CBP of 
negative preliminary scope rulings with instructions to  terminate the suspension of liquidation for 
any entries previously  suspended by CBP and refund any cash deposits paid as estimated duties.  
 With respect to the argument that provisional measures are not  imposed following a negative 
preliminary determination in an  investigation, Commerce will not direct CBP to suspend liquidation 
of entries not already suspended by CBP following a preliminary negative  scope  ruling. However, 
any suspension of liquidation (for example,  suspension of liquidation ordered by CBP pursuant to its 
own authority)  will be left undisturbed to preserve the status quo until the  conclusion of the scope 
inquiry. Additionally, in response to one  commenter, we clarify that Commerce instructs CBP to pay 
interest on  overpayments of cash deposits paid as estimated duties following a  final scope ruling 
determining that the product at issue is not covered  by the scope of an order, in acc ordance with 
section 778 of the Act and  Sec.  351 .212(e) of Commerce's regulations.  
 
(d) Clarifying the Product at Issue  
 
 One commenter opposes the proposal to suspend liquidation of  unliquidated entries of the 
"product at issue " without any limitation  as to when the entries occurred. The commenter states 
that the proposed  regulations are vague because the language does not limit any new  suspension 
of liquidation instructions to only apply to unliquidated  entries made on or after the underlying case 
order's earliest  suspension of liquidation. The commenter further asserts that language  must be 
added to paragraph (l)(2) and (3) that restricts the imposition  of suspension of liquidation and cash 
deposit requirements to the  entries of  the applicable manufacturer or exporter. The commenter  
claims that the United States is not entitled to AD/CVDs on entries  that are not covered by or subject 
to the order.  
 Response:  
 We have left paragraphs (l)(2) and (3) unchanged from how they were  proposed with respect 
to this issue. First, we agree with the commenter  that Commerce does not have the authority to 
direct CBP to impose AD/  CVDs on entries that are not subject to an order by virtue of pre -dating 
the first date of suspension associated w ith that order.  Accordingly, any retroactive suspension of 
liquidation and collection  of cash deposits would not be imposed on entries that predate the first  
date of suspension in the relevant AD and/or CVD proceeding. Second,  the reference to the "product  
at issue " in paragraphs (l)(2) and (3)  refers to the product that is the subject of the inquiry and 
that, for  purposes of paragraph (l), the appropriate scope of products impacted,  either on a 
country -wide or company -specific basis, are discussed under  revised Sec.  351 .225(m), discussed 
below. Third, we do not disagree  that AD/CVDs and cash deposits may not be applied on entries not  
covered by or subject to the order; however, the commenter's assertion  that Commerce must limit 
the imposition of suspension  of liquidation  and cash deposit requirements to the entries of the 
applicable  manufacturer or exporter is incorrect. If Commerce determines that a  product is subject 
to the order following an affirmative scope ruling,  then it has the authority to impose AD/CVDs on 
entries of that product.  Additionally, as Commerce explains below in response to comments made  
on Sec.  351 .225(m), Commerce may apply a scope ruling to a group of  products on a country -wide 
basis, regardless of the producer, exporter,  or importer, or apply its scope ruling on a 
producer -specific,  exporter -specific, or importer -specific basis, or a combination of any  of those 
remedies. Therefore, we do not find further clarification  necessary for purposes of describing the 
product at issue  under  paragraphs (l)(2) and (3).  
 
(e) Interest on Refunds of Cash Deposits  
 
 One commenter requests that Commerce modify paragraph (l)(4) to  ensure that, in the event 
Commerce issues a final scope ruling that the  product is not covered by the scope of an order, 
Commerce will instruct  CBP to include interest on cash deposits that are refunded to  importers. The 
commenter states that this modification would be  consistent with Sec.  351 .212(e) of Commerce's 
regulations, which deals  with interest on overpayment s and underpayments of estimated duties.  The 
commenter alternatively requests that Commerce reference Sec.  351 .212(e) in paragraph (l)(4). 
We received no rebuttal comments in  response.  
 Response:  
 We have left paragraph (l)(4) unchanged with respect to this issue.  Section 778 of the Act 
requires that CBP pay interest on overpayments  or assess interest on underpayments of cash 
deposits paid as estimated  duties on merchandise entered, or withdrawn from warehouse, for  
consumption, on and after th e date of publication of the order. The  implementing regulation, Sec.  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  351.212(e), provides that Commerce  will instruct CBP to calculate interest for each entry on or after 
the publication of the order from the date that a cash deposit is required  to be de posited through 
the date of liquidation. In accordance with  section 778 of the Act and Sec.  351 .212(e), following a 
final scope  ruling determining that the product at issue is not covered by the  scope of an order, 
Commerce instructs CBP to pay interest on  overpayments of estimated duties. Given this well -
established  framework, we are not modifying paragraph (l)(4) regarding the payment  of interest on 
cash deposits paid as estimated duties.  
 
(f) Notification to Sureties  
 
 One commenter requests that sureties be notified, either by  Commerce or CBP, at the time CBP 
is instructed to begin the suspension  or continue the suspension of liquidation of entries for AD/CVD  
purposes in the context of a scope inquiry. This commenter argues that  the duties demande d from 
sureties may be in amounts which exceed the  bond and without any prior notice to the surety to 
allow for  participation in administrative proceedings and communication with the  bond principal, i.e., 
the importer, to address or satisfy AD/CVD  requirem ents. Citing to a previous CIT decision,  
\108\ this commenter  argues that sureties have standing in AD/CVD proceedings, given that  sureties 
stand in the shoes of the importer and are jointly and  severally liable for the duties that an importer 
is liable to  pay. Therefore, this commenter argues that this rulemaking presents Commerce  with an 
opportunity to recognize a surety as an "interested party " in AD/CVD proceedings. The commenter 
also states that providing sureties  with information on AD/CVD entries in a timely manner will 
enhance the  role and ability of sureties to address shortfalls in the collection of  AD/CVDs.  
---------------------------------------------------------------------------  
 \108\ See Lincoln Gen. v. United States, 341 F. Supp. 2d 1265  (CIT 2004).  
---------------------------------------------------------------------------  
 No commenter opposes notifying sureties of any instruction to CBP  to suspend or continue to 
suspend liquidation of entries for AD/CVD  purposes in the context of scope inquiries. However, in 
rebuttal,  several commenters oppose the inclusion of a surety in the regulatory  definition of 
"interested party. " These commenters argue that it  would be inconsistent with the statute to grant 
sureties interested  party status t hrough regulation, because a surety is not listed in the  statutory 
definition of "interested party. " These commenters argue  further that the surety -importer 
relationship does not involve the  extent to which dumping or subsidization is occurring or the actu al 
importation of unfairly traded imports.  
 Response:  
 We have not modified paragraph (l) to include a requirement to  notify the involved surety or 
sureties that Commerce has instructed CBP  to suspend, or to continue to suspend, liquidation of 
entries for AD/ CVD purposes. However, we recognize and appreciate the unique role of  sureties in 
the payment and collection of AD/CVDs, and that sureties  need timely access to information to 
assess the risk that they assume  when underwriting bonds for imports of merc handise subject to 
AD/CVD  orders. As such, in response to these comments, Commerce intends to  consult with CBP 
and explore whether and how sureties may be notified  of entries that are subject to suspension of 
liquidation for AD/CVD  purposes in connection w ith a scope inquiry being conducted by  Commerce. 
In the interim, we note that, under revised Sec.  351 .225(d)(2), Commerce will publish in the Federal 
Register a notice  of a self -initiated scope inquiry and a monthly notice that lists  recently -filed scope 
applications to provide notice to those that are  not on the annual inquiry service list, as discussed 
above. Separately,  we decline to modify the regulatory definition of "interested party " under Sec.  
351.102(b)(29) to include a suret y because such a change  would be beyond the scope of this 
rulemaking. Furthermore, section  771(9) of the Act provides the list of entities that qualify as an  
"interested party " in AD/CVD proceedings, and sureties are not  expressly included in that list. 
Commerce's regulations include a  definition of the term "interested party, " but this definition does  
not differ from the statutory definition and was promulgated solely for  purposes of addressing an 
issue that Commerce previously experienced in  identifying a nd verifying the interested party status 
of an applicant  that seeks access to BPI under an APO. As explained in the 2008 final  rule that 
promulgated the regulatory definition of "interested  party, " Form ITA -367 (Application for 
Administrative Protective Or der in Antidumping or Countervailing Duty Proceeding) requires 
applicants  who are not a petitioner or respondent to identify the section of  Commerce's regulations 
that defines the applicant's interested party  status and this was not possible under the regu lations 
as they existed  at the time because the regulations did not provide a definition of the  term 
"interested party. " \109\ 
---------------------------------------------------------------------------  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
- 57 - 
 
   \109\ See Antidumping and Countervailing Duty Proceedings:  Documents Submission 
Procedures; APO Procedures, 73 FR 3634, 3635 -36 (January 22, 2008).  
---------------------------------------------------------------------------  
13. Section 351.225(m) --Applicability of Scope Rulings; Co mpanion  Orders  
 Section 351.225(m) addresses the universe of products at issue to  which Commerce may apply 
its scope rulings. In the proposed Sec.  351 .225(m)(1), Commerce included a sentence which stated 
that if it had  previously issued a scope ruling for  an order with respect to a  particular product, it 
might apply that scope ruling to all products  with the identical physical description from the same 
country of origin  as the particular product at issue, regardless of producer, exporter,  or importer, 
without initiating or conducting a new scope inquiry under  this section. One commenter requests 
that Commerce delete much or all  of that sentence. The commenter's request stems from the 
requirement of  proposed Sec.  351 .225(c)(2)(ii) for scope requestors to su bmit a  concise public 
description of the product. The commenter argues that  through this description, the applicant might 
unintentionally  characterize the product in such a way publicly that interested parties  might not 
realize they have an interest in the  proceeding and should  comment on the scope inquiry. The result, 
the commenter argues, would  be that Commerce either might automatically apply its scope ruling 
to either too many or too few products, under this provision, without  giving other parties an ad equate 
opportunity to participate.  
 More generally, several parties raise due process concerns about  determinations being made 
under this provision without the opportunity  for meaningful input  
 Finally, in accordance with paragraph (m)(2), which applies only to  companion AD and CVD 
orders covering the same merchandise from the same  country, one commenter requests that 
Commerce add a provision which  applies its scope rulings not only to companion orders, but also to  
orders with identical scope lang uage across multiple countries and  multiple proceedings.  
 Response:  
 Upon consideration of the comments and further reflection, we have  determined to remove the 
last two sentences of proposed paragraph  (m)(1). Commerce agrees with the concerns expressed 
that if Commerce  does not initiate or conduct a new scope inquiry based upon the filing  of a scope 
application, but instead automatically issues a scope ruling  that is applicable to all producers, 
exporter, or importers of that  merchandise, such a procedure  would not provide potential interested 
parties with adequate procedures  to protect their interests.  
 Nonetheless, we believe a remedy still exists that largely  addresses previously issued scope 
rulings covering "identical  physical " products fro m the "same country of origin, " as described  in those 
sentences. Specifically, as Commerce explained in the preamble  to the Proposed Rule, Commerce 
may issue a scope clarification, post - order, that addresses scope inquiry requests by multiple parties 
made  "over and over covering the same or similar scope language. " \110\ For this reason, we have 
determined to codify Commerce's authority to  issue scope clarifications in a new paragraph, Sec.  
351.225(q), which  we describe in greater detail below . 
---------------------------------------------------------------------------  
 \110\ Proposed Rule, 85 FR 49472 at 49480, n. 51.  
---------------------------------------------------------------------------  
 With respect to the request of a commenter that Co mmerce add a  provision to its regulations 
that automatically applies its scope  rulings across AD and CVD orders from different countries, we 
have determined not to include such a provision in our regulations. Unlike  companion orders from 
the same country, as described in Sec.  351 .225(m)(2), parallel orders from different countries have 
different  records, different interested parties, and sometimes different  procedural histories. 
Accordingly, such a provision would not be  administrable or fair to those inte rested parties subject 
to different  orders from different countries who never had the opportunity to  comment on the original 
scope ruling.  
 We note, however, that this does not mean that Commerce is unable  to take action based upon 
a scope ruling applicabl e to an order  covering one country with the same or similar scope language 
on the  record of another order. Section 351.225(b) permits Commerce to self - initiate a scope inquiry 
on the record of another proceeding where the  products are similar or identical  to that of a particular 
product  subject to a scope ruling. Furthermore, interested parties to both  proceedings can do the 
same by filing a scope application, in  accordance with paragraph (c), and attaching the scope ruling 
at issue.  In accordance with par agraph (k)(1), if the product at issue in the  first scope ruling was 
physically identical to the product for which a  new scope ruling is requested, the results of that first 
scope ruling  would certainly carry a great deal of weight for Commerce in reaching a  determination.  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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   Finally, we have determined to significantly revise and simplify  the first sentence of paragraph 
(m)(1) to clarify that Commerce may  apply a scope ruling on a country -wide basis to all products 
from the  same country with the same  relevant \111\ physical characteristics  (including chemical, 
dimensional, and technical characteristics), as  the product at issue, no matter the identity of the 
producers,  exporters, or importers, or apply its scope ruling on a producer -specific, exporter -specific, 
or importer -specific basis. Furthermore,  the new language provides that Commerce may determine 
to apply its  scope ruling to a combination of producers, exporters, and importers,  depending on the 
remedy which Commerce determines is appropriate gi ven the facts of a particular case. We believe 
this modified language  provides a much clearer description of the options which Commerce has  
available to it in applying the results of a scope ruling.  
--------------------------------------------------------- ------------------  
 \111\ Commerce has added the word "relevant " to this  description because it is possible that 
two products may not be  completely physically identical, but share the physical  characteristics which 
Commerce considered in making its scope  ruling. For example, the products might have different 
coloring or  come in different designs or different sizes, but none of those  factors were relevant to 
Commerce's determination in the scope  ruling that the particular product was covered by the scope 
of an order. In that case, even if the similar products do not share  exactly the same physical 
characteristics, Commerce could still  apply its scope ruling to entries of those products.  
---------------------------------------------------------------------------  
 Likewise, we have changed the term "merchandise at issue " to "product at issue " in paragraph 
(m)(2) to use the terminology as that  used in paragraph (m)(1) and other provisions of  these 
regulations.  
14. Section 351.225(n) --Service of Scope Ruling Application; Annual  Inquiry Service List; Entry of 
Appearance  
 Section 351.225(n) covers Commerce's creation of a public annual  inquiry service list and 
segment -specific service lists (both public  and APO). As we have explained above, Commerce has 
determined to modify  its notice requirements to publish self -initiations of scope inquiries  and a 
monthly list of scope applications filed with Commerce in the  Federal Register notice, as desc ribed 
in Sec.  351 .225(b) and (d).  Furthermore, after publication of the final rule, Commerce intends to  
provide additional instruction to interested parties on the procedures  for the annual inquiry service 
list, as appropriate. We received many  comments o n this provision.  
 
(a) Supportive Comments  
 
 We received many comments in support of the Proposed Rule.  Commenters expressed their 
belief that Commerce's current use of a  comprehensive service list to notify parties has been an 
"onerous  task." Further, they argue that the new requirement that parties must  affirmatively request 
participation on the annual inquiry service list  may encourage importers to be more alert to AD/CV D 
issues and file  scope applications when they are uncertain if the product they are  importing is 
covered by the scope of an order, given that importers  will be affirmatively receiving notifications of 
new scope inquiries  throughout the year. Finally, they  voice their approval that Commerce  
automatically place petitioners on the annual inquiry service list  under this provision, because, in 
every case, the petitioners have an  interest in the order which does not abate until the order is 
revoked.  
 Response:  
 We appreciate the support of the commenters in this regard and  agree with each of the points 
they raised. We do not disagree that the  use of the comprehensive service list has, indeed, been an 
onerous  task. Further, we believe that this new system of annua l service lists  and segment -specific 
service lists will make interested parties more  alert to potential scope issues and proceedings. In 
addition, we agree  that petitioners are uniquely situated in that they filed the petition  requesting 
trade remedies, an d, therefore, have a unique continuing  interest in AD and CVD orders for the life 
of the orders.  
 That being said, upon consideration of the comments we received on  this provision, we have 
concluded that foreign governments are also  uniquely situated in that their interest in the products 
covered by the  scope of AD and CVD orders does not diminish as foreign producers and  exporters 
come and go during the life of an order. Accordingly, we  have, therefore, modified Sec.  351 .225(n) 
to reflect th at after an  initial request and placement on the annual inquiry service list, both  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  petitioners and foreign governments will automatically be placed on the  annual inquiry service list 
in the years that follow.  
 As noted above, Commerce intends to provide ad ditional instruction  to interested parties on the 
procedures for the annual inquiry service  list, as appropriate, with special instructions for petitioners 
and foreign governments. Specifically, once the petitioners and foreign  governments have submitted 
their initial requests to be added to the  first annual inquiry service list for a given proceeding, it is  
reasonable to automatically add them in each subsequent year to the  list when the annual service 
list for the proceeding is  updated. To be clear, the f irst time a petitioner or foreign government  
wishes to be included on an annual inquiry service list, it will be  incumbent upon the petitioner or 
foreign government to request Commerce  to include them on the list. However, after that first time, 
inclusion  for them will be automatic. Additionally, after initial inclusion on  the annual inquiry service 
list, it is also incumbent upon the  petitioner or foreign government to notify Commerce of any 
changes to  its information.  
 
(b) Comments Suggesting Changes  
 
 We also received several comments with suggested changes or  criticisms of Commerce's 
proposed Sec.  351 .225(n).  
 First, one commenter suggests that Commerce require scope  applicants to file notice of their 
applications on foreign governments  of countries from which the product at issue is exported.  
 Second, some commenters request that all initiations, preliminary  scope rulings, and final scope 
rulings be published in the Federal  Register.  
 Third, certain surety companies request that Commerce pr ovide them  with "interested party " 
status, so that they may receive notification  of all scope inquiry requests and scope rulings.  
 Finally, one commenter points out that Commerce currently  automatically places foreign 
governments on the segment of a procee ding that commences under a CVD order, but under 
proposed paragraph (m)(2),  all scope inquiries applicable to companion orders will be conducted on  
the record of the AD order. That commenter, therefore, requests that  Commerce modify paragraph 
(n) to automa tically place foreign  governments on the segment of the AD proceeding in which the 
scope  inquiry is conducted for both companion orders.  
 Response:  
 First, as noted above, we have determined that once a foreign  government requests to be 
included on the ann ual inquiry service list  for a particular AD or CVD order, it will automatically be 
placed on  subsequent annual inquiry service lists. Once that occurs, because  scope inquiry applicants 
will be required to file notice of their  applications on all intereste d parties on the annual inquiry 
service  list, the foreign government of the country of the order at issue in  the inquiry will be sent 
copies of scope inquiry applications. For  those foreign governments which elect not to request 
placement on the  annual inquiry service list in the first instance, we believe the  monthly list of scope 
applications in the Federal Register pursuant to  paragraph (d) nonetheless provides sufficient notice 
in that regard.  
 Second, we will not require that all initiations,  preliminary scope  rulings, and final scope rulings 
be published in the Federal Register  in these regulations, as there is no requirement in the statute 
that Commerce take such additional actions, and we believe our procedures  outlined herein provide 
appro priate opportunities for notice to  interested parties.  
 Third, we have not provided sureties "interested party " status  because, as discussed above 
regarding Sec.  351 .225(l), section 771(9)  of the Act lists the parties who are "interested parties " 
under th e AD and CVD laws, and surety companies are not included on that list.  Nonetheless, as we 
explained earlier, we believe publication in the  Federal Register of Commerce's scope self -initiations 
and the monthly  list of scope applications will provide the pub lic, including sureties,  with notice that 
a scope inquiry may be commencing or underway,  allowing those companies an opportunity to 
determine if they wish to  follow and participate in the scope inquiry.  
 Finally, we disagree with the commenter that request ed that  Commerce modify paragraph 
225(n) to automatically place foreign  governments on the segment -specific service list of the 
AD proceeding  in which the scope inquiry is conducted for both companion orders.  Because we have 
determined to automatically pla ce foreign governments  on the annual inquiry service list following 
their initial request for  inclusion, there is no additional need to automatically place foreign  
governments automatically on segment -specific service lists. As we've  explained, foreign 
governments on the annual inquiry service list will  get notification of all scope inquiry requests. Like 
petitioners and  all other interested parties, if the foreign government wishes to  participate in a 
particular scope inquiry segment of the proc eeding,  that foreign government will have an opportunity 
to timely request  placement on the segment -specific service list.  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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   In addition, in addressing comments on paragraph (n)(4), we  realized that we had not included 
the self -initiation of scope  inquiries in the description of determinations that lead to the  
establishment of a segment -specific service list. Such an exclusion was  an oversight. Accordingly, 
we have added language to that effect in  this final rule.  
15. Section 351.225(o) --Publication  of List of Final Scope Rulings  
 In the Proposed Rule, Commerce amended current Sec.  351 .225(o) to  indicate that, in addition 
to the quarterly list of final scope rulings  published in the Federal Register, Commerce may also 
include complete  public version s of its scope rulings on its website should Commerce  determine such 
placement is warranted. Numerous commenters encourage  Commerce to create a single public 
repository on its website for all  scope rulings to ensure that all parties have notice of all publ ic scope 
rulings.  
 Response:  
 We agree with those commenters and Commerce has endeavored to  create such a repository 
in an effort to assist interested parties to  efficiently obtain scope ruling information. However, 
implementation  and maintenance of such a repository requires resources and a  significant amount 
of time. Commerce continues to update its website  with copies of scope rulings that pre -date 2012, 
the year in which  Commerce's electronic record system, ACCESS, went live. \112\ Additionally, 
Commerce updates the website regularly with the scopes of  new orders and the ACCESS bar codes 
for newly issued scope rulings that  can be obtained through ACCESS. Accordingly, because we agree 
that the  pursuit of such a resource is worthwhile, we will continue to maintain  the language from 
the Proposed Rule in paragraph (o) in that regard and  work to continue to maintain this online 
repository in the future.  
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 \112\ Curre ntly available at: https://www.trade.gov/us -antidumping -and-countervailing -
duties . 
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16. Section 351.22 5(p)--Suspended Investigations; Suspension Agreements  
 No comments were filed with respect to this paragraph. We have  modified the provision, 
however, to clarify that the procedures of this  regulation may be applied in determining whether a 
product at issue is  covered by the scope of a suspended investigation or agreement.  
17. Section 351.225(q) --Scope Clarifications  
 As noted above, we removed certain language from proposed paragraph  (m)(1), which 
addressed determinations made based on "previously  issued" scope rulings "without initiating or 
conducting a new scope  inquiry, " because of due process concerns raised by certain  commenters. 
We believe that some of the scenarios which we wished to  address in proposed paragraph (m)(1), 
however, can be addressed  through  a different proceeding without those same due process 
concerns --scope  clarifications. We discussed scope clarifications in the preamble to  the Proposed 
Rule,\113\ and have concluded that in light of the removal  of the aforementioned language from 
paragraph (m)(1), it would be  beneficial to codify scope clarifications in the final regulations. For  
example, there are scenarios in which Commerce issues a scope ruling on  a product covered by the 
scope of an order, and then later it is called  upon again  to conduct a scope ruling on a product nearly 
identical to  that product, and then a third time a scope request is filed with the  agency to address a 
product which is the same or very similar to the  prior two products. As we explained in the preamble 
to the Proposed  Rule, historically Commerce has been able to address this situation  using scope 
clarifications instead of scope rulings. Accordingly, we  are adding to the final regulations paragraph 
(q) to codify the use of  scope clarifications in certain scena rios. 
---------------------------------------------------------------------------  
 \113\ Proposed Rule, 85 FR 49472 at 49480 -81, n. 51.  
---------------------------------------------------------------------------  
 Unlike scope rulings, which require a fulsome analysis under these  regulations, scope 
clarifications either provide an interpretation of  specific language in the scope of an order  or address G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  a particular  scope matter which was already brought to Commerce's attention on a  prior occasion. 
Scope clarifications may be issued either in underlying  investigations or after an order has been 
issued. With respect to post - order clarification s, specifically, Commerce explained in the preamble  
to the Proposed Rule that "after an AD/CVD order has been in place for  a period of time and 
Commerce has found that multiple parties have  requested scope rulings over and over covering the 
same or similar  scope language, " Commerce has, at times, issued "a scope  clarification addressing 
that particular scope language " and then  memorialized "that clarification in the form of an 
interpretive  footnote to the scope of the order. " \114\ 
------------------------- --------------------------------------------------  
 \114\ See id.  
---------------------------------------------------------------------------  
 Post-order scope clarifications need not be issued in the context  of a scope ruling, but can be 
conducted and app lied in the course of  different segments of a proceeding. Because Commerce 
conducts scope  clarifications in a segment of the proceeding, parties to that segment  have an 
opportunity to comment on the clarification, unlike the  procedures set forth in the pro posed (and 
now removed) language of  paragraph (m)(1) of this section. Thus, the due process concerns we had  
with the removed paragraph (m)(1) language do not exist for scope  clarifications. Subsequent to 
the issuance of a scope clarification,  the resulting interpretive footnote will normally accompany the 
text of  the scope itself when it is published in Commerce's administrative  determinations, such as 
preliminary and final results of subsequent  segments, and instructions to CBP.  
 Given the importa nce of post -order scope clarifications, and the  fact that we have removed 
certain remedies available under proposed  paragraph (m)(1), we have concluded that it is 
reasonable to add a new  regulatory provision, Sec.  351 .225(q), which codifies Commerce's  ability 
to issue such scope clarifications. Specifically, the new  provision provides that Commerce may issue 
a scope clarification in any  segment of a proceeding providing an interpretation of specific  language 
in the scope of an order or addressing whether a  product is  covered or excluded by the scope of an 
order at issue based on previous  scope determinations covering the same or similar products. 
Further, it  explains that the scope clarification may take the form of an  interpretive footnote to the 
scope whe n the scope is published or  issued in instructions to CBP. We believe codifying post -order 
scope  clarifications in Commerce's scope regulations will add clarity to  Commerce's scope procedures 
under the factual scenarios set forth in  the regulation. \115\ 
---------------------------------------------------------------------------  
 \115\ Section 351.225(q) addresses scope clarifications issued  by Commerce following the 
publication of an AD or CVD order. As  Commerce explained in the Proposed Rule, we continue t o 
also have  the authority to issue scope clarifications during an investigation.  See Proposed Rule, 85 
FR 49472 at 49480, at n. 51. Unlike post -order  scope clarifications, investigation scope clarifications 
will usually not take the form of an interpretive  footnote, but instead  can be issued solely as a 
response to a comment on the record or as  part of Commerce's determination of the language of 
the scope of the  order itself.  
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Circumvention --Sec.  351 .226 
 Section 351.226 covers procedures in which Commerce addresses  potential circumvention of 
AD/CVD orders. Section 781 of the Act  provides the four scenarios under which Commerce may 
inquire into  alleged circumvention and, if it finds circumvention, may determine  that a particular 
product should be considered subject to an order,  even if that product would not otherwise be 
covered by the scope of an  AD or CVD order under Sec.  351 .225. We received many comments and  
rebuttal submis sions on the proposed provisions under this regulation.  Below, we briefly discuss 
each provision, address any comments  received, and, where appropriate, explain any changes to 
the Proposed  Rule in response to comments. In addition, we explain additional  modifications to the 
Proposed Rule where we have determined that such  amendments brought Sec.  351 .226 into greater 
conformity with scope and  covered merchandise regulations Sec. Sec.  351 .225 and 351.227, or  
otherwise provided greater clarity to these regul ations.  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  1. Section 351.226(a) --Introduction  
 Section 351.226(a) summarizes the general principles of a  circumvention inquiry under section 
781 of the Act. Numerous commenters  have expressed their support for these regulations and have 
requested  that Commer ce clarify that even if it determines that a particular  product is determined 
to not be covered by the scope of an order under  Sec.  351 .225 of these regulations, Commerce 
may still conduct a  circumvention inquiry of the product. Further, those commenters request  that 
Commerce explain that if it concludes that the particular product  has circumvented an order, it may, 
despite the negative scope ruling,  find that the product should be treated as subject to the order.  
 An additional commenter also expressed its support for Commerce's  division of the scope and 
circumvention regulations, citing to Federal  Circuit holdings in which the Court has recognized the 
differences  between the two types of proceedings. \116\ 
----------------------- ----------------------------------------------------  
 \116\ See Deacero S.A. de C.V. v. United States, 817 F.3d 1332,  1337-39 (Fed. Cir. 2016) 
(Deacero); Nippon Steel Corp. v. United  States, 219 F.3d 1348, 1350 (Fed. Cir. 2000); see also Bell 
Supply,  888 F .3d at 1230.  
---------------------------------------------------------------------------  
 Other commenters are critical of Commerce's proposed circumvention  regulations in general, 
arguing that the proposed regulations treat  parties who operate in good fai th in the same manner 
as those who  operate in bad faith, that the regulations would do nothing to address  bad conduct of 
certain exporters, and that the regulations place too  great of an obligation on importers.  
 In rebuttal to those claims, other commente rs disagree with the  portrayal of U.S. importers as 
unknowing and unsuspecting with regard  to circumvention or potential circumvention, especially 
when the  importer is a subsidiary of a foreign producer. They argue that U.S.  importers are in the 
best posit ion to prevent circumvention because  they can communicate with the foreign producer 
and, with proper due  diligence, can request information directly from the foreign producer  or 
exporter prior to  importing particular products to determine whether the product could be  
circumventing an AD/CVD order. These commenters suggest that the nature  of circumvention 
typically requires an affirmative act by a foreign  producer to change the location of 
production/assembly, alter the  merchandise in minor respects, or  develop a new product to 
circumvent  the order, and a U.S. importer is usually well -situated to notice such  changes and the 
risks that come with such changes.  
 Response:  
 We disagree that the new circumvention regulation places an  excessive burden on impor ters 
and treats good faith importers the same  as bad faith importers.  
 As discussed above, although section 781 of the Act describes  certain applicable procedures 
and standards for circumvention  determinations, the Act does not provide direction to Commerc e 
regarding the suspension of liquidation for entries subject to a  circumvention inquiry. In the absence 
of any such statutory guidance,  Commerce is modifying Sec.  351 .226(l) to provide that affirmative  
circumvention determinations will normally apply to products entered on  or after the date of initiation 
of the circumvention inquiry, with  certain exceptions. With respect to issues concerning notice to  
exporters and importers, those issues are addressed below in response  to comments under Sec.  
351.225(l)) . As discussed below, the purpose of  the proposed modifications is not to penalize 
companies acting in good  faith, but to ensure that circumvention determinations are properly  applied 
to merchandise found to be circumventing an order. Also, as  explained fu rther below under Sec.  
351.226(l), when an importer  decides to import merchandise from a foreign country, it takes on the  
risk and the responsibility that the merchandise it imports might be  subject to an AD and/or CVD 
order. If an importer is transparent and  works with its exporters and producers to abide by the trade 
remedy  laws, we do not believe these regulations will be excessively  burdensome.  
 Furthermore, we disagree that these regulations will have no effect  on foreign exporters' 
behavio r. An exporter which is found to be  circumventing an order will be faced with customers 
having to pay  additional cash deposits and duties on those exports when they are  imported. As a 
result, an exporter may find that demand for its  products declines in th e United States as the cost 
to import its  merchandise increases, which might, in turn, lead to the exporter  altering its behavior 
with regard to circumvention.  
 Finally, we agree that just because Commerce determines that a  particular product is not 
covere d by the scope of an order, pursuant to  Sec.  351 .225 of these regulations, such a 
determination does not  preclude Commerce from also finding that the product should still be  covered 
by the order if the product is found to be circumventing the  order. Indee d, a product can only be 
determined to be circumventing an  AD or CVD order under section 781 of the Act if the product does G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  not fall within the description of the subject merchandise in the scope of  the order in the first place. 
Sometimes, as part of its c ircumvention  analysis, Commerce must first determine if the product at 
issue is  covered by the description of subject merchandise in the scope of an  order, and it is only 
after it determines that the product at issue  does not match the description of merch andise covered 
by the scope that  Commerce can then continue with its circumvention analysis and reach a  
determination. If Commerce ultimately finds that the merchandise is  circumventing the order, such 
merchandise will be determined to be  covered by the sc ope of the order for AD/CVD purposes despite 
not falling within the physical description of the subject merchandise of  the scope of the order.  
2. Section 351.226(b) --Self-Initiation of Circumvention  
 Section 351.226(b) describes Commerce's authority to self -initiate  a circumvention inquiry. One 
commenter requests that Commerce make it  clear that when it determines under Sec.  351 .225 of 
these regulations  that a particular product is not covered by the scope of an order, the  agency may 
self-initiate a circumvention inquiry of that product when  information derived from the scope inquiry 
suggests that the product  may be circumventing an AD or CVD order.  
 Response:  
 We agree that a determination that a product is not covered by the  scope of an or der does not 
preclude Commerce from conducting a  circumvention inquiry. We further agree that Commerce may 
self-initiate  a circumvention inquiry whenever it determines from available  information that an 
inquiry is warranted into the question of whether  the elements necessary for a circumvention 
determination under section  781 of the Act exist. This includes a situation where Commerce has  
reviewed information through the course of a scope inquiry that  indicates that although the product 
is not covered by the  scope of the  order, circumvention of the order may, nonetheless, be taking 
place. In  fact, the Federal Circuit explained this very scenario in Bell Supply,  in which the court held 
that "if Commerce applies the substantial  transformation test and concludes that the imported article 
has a  country of origin different from the country identified in an AD or CVD  order " (and is, therefore, 
not covered by the scope of the order)  "then Commerce can include such merchandise within the 
scope of an AD  and CV D order only if it finds circumvention under [section 781(b) of  the Act]. " 
\117\ We have accounted for various related scenarios in  both Sec. Sec.  351 .225 and 351.226, 
which allow Commerce, for example,  to issue a negative scope ruling on a product while a 
circumvention  inquiry is pending (see Sec.  351 .225(l)(4)), or to address scope  issues in the context 
of a circumvention inquiry (see Sec.  351 .225(i)(1)).  
---------------------------------------------------------------------------  
 \117\ Bell Supply, 88 8 F.3d at 1230.  
---------------------------------------------------------------------------  
 We note, however, that although Commerce may conduct a  circumvention inquiry following the 
completion of a scope inquiry, such  an analysis is not required by statute or Commerce's practice.  
Furthermore, in certain situations, self -initiating a circumvention  inquiry at the conclusion of a scope 
inquiry may not be warranted,  because, for example, Commerce does not have information 
concerning the  elements necessar y for a circumvention determination under section 781  of the Act. 
For these reasons, we are not codifying a process for  automatic self -initiation of a circumvention 
inquiry following a  negative scope determination. A determination to self-initiate a  circumvention 
ruling is fact -based and, therefore, should be decided by  Commerce on a case -by-case basis.  
3. Section 351.226(c) --Circumvention Inquiry Request  
 Section 351.226(c) sets forth the requirements for an interested  party \118\ to request a 
circumvention inquiry. In many respects, they parallel  much of the information required of a party 
filing a scope ruling  application, pursuant to Sec.  351 .225(c). Where we have modified the  parallel 
language in Sec.  351 .225(c), we have, therefo re, incorporated  the same modifications into Sec.  
351.226(c). Accordingly, we have made  the following modifications for the same reasons we made 
to those  modifications in the scope regulations: (1) We focused on the physical  characteristics of the 
product , which include the chemical,  dimensional, or technical characteristics of the particular 
product in  Sec.  351 .226(c)(2)(i)(A); (2) we added the requirement that a  requester identify the 
country or countries where the product is  produced, the country from where the product is exported, 
and the  declared country of origin in Sec.  351 .226(c)(2)(i)(B); (3) we added  the requirement that 
Customs rulings relevant to the product's tariff  classifications be included in Sec.  
351.226(c)(2)(i)(C); (4) we  identified the information that a requester must include in its concise  
public summary of the product's description in Sec.  351 .226(c)(2)(ii);  (5) we removed the name G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  and addresses of producers, exporters, and  importers of the product from the public summ ary, and 
included that  data request, instead, in the overall circumvention inquiry request in  Sec.  
351.226(c)(2)(iii); and (6) we removed the language that stated  that the concise public description 
was not intended to restrict the  inclusion of BPI, as th at provision was not proposed for the scope  
regulations, and is unnecessary now that Commerce has listed the  factors required for the public 
summary.  
---------------------------------------------------------------------------  
 \118\ As noted above with res pect to the discussion of Sec.  351 .225(c), the term "interested 
party" is defined in section  771(9) of the Act, and pertains, for example, to "foreign  manufacturers, " 
"producers, " "exporters, " or "United States  importers " "of subject merchandise. " However, the 
nature of a  circumvention proceeding is to determine whether the merchandise  produced, imported 
by, or exported by a party is circumventing an AD  or CVD order. Thus, in many cases, the question 
of whether a party  is an "intereste d party " depends in part on whether the  merchandise at issue is 
subject merchandise. Accordingly, for  purposes of these circumvention regulations, the term 
"interested  party" includes a party that would meet the definition of  "interested party " under secti on 
771(9) of the Act, if the  merchandise at issue in the circumvention inquiry is in fact  circumventing.  
---------------------------------------------------------------------------  
 Several commenters express concern with the provisions that require  "clear and legible 
photographs, schematic drawings, specifications,  standards, marketing materials, and any other 
exemplars providing a  visual depiction of the product " and "a description of parts,  materials, and 
the production process employed in the production  of the  product, " because they argue that 
domestic producers will frequently  not have access to such information. They worry that such 
requirements  would discourage petitioners from requesting circumvention inquiries  due to lack of 
access to that data, and  additional commenters filed  rebuttal comments arguing that Commerce 
should eliminate those  provisions on the exact same basis.  
 Other commenters, in rebuttal to those claims, disagree with that  request, stating that removing 
the proposed requirements would lower  the bar too much. Those commenters claim that 
circumvention requests  are a new "petition light " weapon for domestic industries, allowing  them to 
avoid an expensive investigation process while basing their  requests on vague, baseles s, specious, 
and unsubstantiated allegations  of circumvention. Instead, these commenters argue that Commerce 
should  require even more robust information from parties filing a  circumvention request under Sec.  
351.226(c) than that put forward in  the Propose d Rule.  
 Another commenter requests that parties requesting a circumvention  inquiry be required to 
serve the request upon all producers, exporters,  and importers of the product, arguing that such 
service is necessary to  provide adequate notice.  
 Finally, o ne commenter suggests Commerce include a question under  Sec.  351 .226(c) that 
asks the requester whether, based on information  available to the requestor at the time of the 
request, the  circumvention inquiry, if initiated, should be conducted on a country - wide basis.  
 Response:  
 We recognize that some of the information requested of a party  requesting a circumvention 
inquiry might not be reasonably available,  which is why we have included the restricting phrase "to 
the extent  reasonably available " in Sec.  351 .226(c)(2). We believe, however,  that where the 
information, such as clear and legible photographs,  schematic drawings, and the description of the 
parts a nd production  process employed in producing the particular product, is available,  that 
information should be provided and is important to Commerce's  analysis. We, therefore, reject the 
request to remove this information  request from our list of necessary i nformation under Sec.  
351.226(c)(2). However, if a party can explain why certain information  is not reasonably available 
to it, we will take that explanation into  consideration in determining whether or not to reject a 
circumvention  inquiry request, or in itiate on the data submitted on the record.  
 With respect to the argument that Commerce should require  requestors to serve their 
circumvention inquiry request on all known  producers, exporters, and importers of the product at 
issue, we  disagree that such a ctions are necessary. As provided for under Sec.  351 .226(c) and (n), 
the requestor is required to serve parties on the  annual inquiry service list. Therefore, parties wishing 
to be served  with such requests must follow Commerce's procedures as detailed in  Sec. Sec.  
351.225(n) and 351.226(n) to be added to the list.  Additionally, if Commerce determines to initiate 
a circumvention  inquiry, it will publish that initiation in the Federal Register and  the public will be 
made aware of the circumvention inquiry.  Such notification will then allow parties to file a notice of 
appearance and  participate in the circumvention inquiry, if they wish to do so, in  accordance with 
Sec.  351 .226(n).  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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   Finally, a finding that a circumvention determination should be  addressed through a company -
specific or country -wide application, or  some combination thereof, pursuant to the remedies outlined 
in Sec.  351 .225(m), is a determination that Commerce will make based on the  case-specific facts. 
In general, though, Commerce will consider the  description of the product and any named companies 
in the circumvention  request in issuing the initiation notice in the Federal Register.  Absent evidence 
on the record of the inquiry that would lead the agency  to apply its determination d ifferently, this 
notice will indicate the  scope of Commerce's inquiry, which will normally be tied to the remedy  
ultimately determined, if any, under Sec.  351 .226(m). Therefore,  although we will not require that 
a requestor provide a suggested  remedy unde r Sec.  351 .225(m), we expect that requestors likely 
will include a suggested remedy in their arguments in support of their  request.  
4. Section 351.226(d) --Initiation of Circumvention Inquiry and Other  Actions Based on a Request  
 Section 351.226(d) provide s the deadline by which Commerce must  reject or accept a request 
for a circumvention inquiry. One commenter  argues that the 20 -day deadline set forth in the 
Proposed Rule was too  short a period of time to allow parties to correct any deficiencies in  their 
submissions.  
 Several other commenters argue in both comments and rebuttal  comments that Commerce 
should automatically initiate a circumvention  inquiry after the deadline for accepting the 
circumvention inquiry  request, similar to the automatic initiation of a scope inquiry  described in Sec.  
351.225(d), or at least set a hard deadline in which  Commerce must initiate following the receipt of 
a circumvention inquiry  request to make certain that Commerce addresses circumvention in a  timely 
fashion. Those commenters express frustration with Commerce's  procedures under the current 
regulations in which Commerce has extended  its decision to  initiate a circumvention inquiry at times 
by over one hundred days . 
 Other commenters disagree that Commerce should autom atically  initiate circumvention 
inquiries because there will inevitably be cases  in which a request to conduct a circumvention inquiry 
does not contain  adequate information to warrant such initiation. Those commenters argue  that 
automatic initiation based on circumvention inquiries which are  meritless would force importers, 
exporters, and producers to  participate in unnecessary proceedings, force them to unnecessarily pay  
cash deposits on their entries, and would undermine the necessity of  the information r equired under 
Sec.  351 .226(c). Those same commenters  state that they approve of Commerce's proposed Sec.  
351.226(d)(1),  which describes Commerce's authority to reject an incomplete or  otherwise 
unacceptable circumvention inquiry request.  
 Finally, one co mmenter argues that Commerce should publish  notification of the receipt of all 
circumvention inquiry requests in  the Federal Register.  
 Response:  
 With respect to the argument that 20 days is too short a period of  time in which Commerce 
must decide to accept or reject a circumvention  inquiry request, we find that it would be reasonable 
to increase the  deadline from 20 days to 30 days. As set forth in the text in the  regulation, that 
deadline may be extended by Commerce by 15 days,  making the maximum per iod 45 days in which 
Commerce must decide to  accept or reject a circumvention inquiry. The unextended 30 -day period  
also brings this provision more in alignment with the 30 -day deadline  for accepting or rejecting a 
scope application found in Sec.  351 .225( d). 
 We believe that this new deadline will better enable Commerce to  determine whether the 
circumvention request properly alleges that the  elements necessary for a circumvention 
determination under section 781  of the Act exist and is accompanied by inform ation reasonably 
available  to the requestor supporting these allegations. Within this timeframe,  Commerce may also 
send questionnaires to the requestor and gather  additional information, if necessary. As provided 
for under Sec.  351 .226(d), Commerce may ul timately determine to reject the request and  provide 
the requestor with the reasons for the rejection so that the  requestor may cure the request and 
refile at a later date. In addition,  Commerce may determine that the request is best addressed either 
by conducting a scope inquiry in the first instance or in another segment  of the proceeding.  
 To the extent certain commenters argue that Commerce should  automatically accept requests 
for circumvention inquiries without  seeking additional information that would  otherwise be 
necessary, or  that Commerce must initiate a circumvention inquiry by a hard deadline,  even if it 
does not have the necessary information by that deadline to  satisfy initiation standards, we disagree. 
In determining to accept a  request and ini tiate a circumvention inquiry, it is vital that Commerce  
conclude that the request satisfies the standard for initiation of an  inquiry and is supported by 
reasonably available information. If  Commerce were to initiate a circumvention inquiry without 
having  made  such a determination, we agree with the commenters who argue that such  an exercise 
would result in a waste of time and resources for both  Commerce and the interested parties. It is G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  imperative that Commerce  have all the information which it needs to i nitiate a circumvention  inquiry 
before it initiates. We recognize that this differs in some  respects from the initiation procedures set 
forth in Sec.  351 .225, but  the information necessary to initiate a scope inquiry is different from  that 
needed to initiate a circumvention inquiry.  
 Further, we disagree that Commerce should publish notification of  the receipt of circumvention 
inquiry requests in the Federal Register.  Section 351.226(n) requires that those requesting a 
circumvention  inquiry must serve  a copy of the circumvention inquiry request on all  persons on the 
annual inquiry service list. Furthermore, when Commerce  determines to initiate a circumvention 
inquiry, Sec.  351 .226(d)(3)  requires that Commerce publish notice of initiation in the Federa l 
Register. We believe that the initial service on persons on the annual  inquiry service list, combined 
with the publication of initiation in  the Federal Register, will provide more than enough notice to all  
interested parties that a circumvention inquiry has commenced.  
 We have also made some additional revisions to paragraph (d) from  that proposed in the 
Proposed Rule. Specifically, we have concluded  that there may be situations in which, after a request 
for a circumvention inquiry has been filed, Commerc e determines that the  circumvention issue 
should be addressed in an ongoing segment of the  proceeding, such as a covered merchandise 
inquiry under Sec.  351 .227. In that case, Commerce will inform the requestor of its intent to not  
initiate the circumventi on inquiry, but instead to address the issue in  that other segment.  
5. Section 351.226(e) --Deadlines for Circumvention Determinations  
 Section 351.226(e) sets deadlines of 150 days from the date of  publication of the initiation 
notice for a preliminary circumvention  determination and 300 days, to the maximum extent 
practicable, for the  final circumvention determination. However, if Commerce determines that  a 
circumvention inquiry is extraordinarily complicated, it may extend  the 300-day deadline, but by no 
more than 65 days (for a fully -extended  total of 365 days). Commerce received praise from 
commenters on these  new regulatory deadlines, with commenters stating that such time limits  will 
provide all interested parties with a bet ter and more predictable  understanding of the duration of a 
circumvention inquiry.  
 We have, however, made some changes to this section. We have  revised the heading of this 
section to "Deadlines for circumvention  determinations " from "Time limits, " to bett er reflect the 
provisions  covered by this section of the regulation, and we have moved the  provision allowing for 
alignment of scope rulings with other segments  of a proceeding from proposed paragraph (f)(7) to 
this section to  clarify that all of the deadl ines described in this section may be  inapplicable or 
extended if the circumvention determination is aligned  with another segment.  
6. Section 351.226(f) --Circumvention Inquiry Procedures  
 Section 351.226(f) sets forth Commerce's procedure for  circumvention  inquiries. Commerce 
received a number of comments for  scope and circumvention that argued that the deadlines set 
forth in  both sets of regulations were too short.  
 In addition, one commenter expressed its concerns with the language  in Sec.  351 .226(f)(3) 
which states that Commerce may limit issuance of  questionnaires to a reasonable number of 
respondents. The commenter  states that Commerce does not set forth any standards as to how it  
would select respondents for this exercise and expresses conc ern for  the due process rights of those 
respondents not selected.  
 Response:  
 Upon consideration of the various comments about Commerce's  proposed deadlines, as well as 
consideration of our own practice in  other circumstances, including scope rulings under  Sec.  
351.225(f), we  have determined to modify our proposed deadlines under Sec.  351 .226(f)  
accordingly, to allow  interested parties additional time to provide responses and new factual  
information as follows:  
 Under Sec.  351 .226(f)(1) parties will have  30 days,  rather than 20 days, to submit comments 
and factual information after  Commerce self -initiates a circumvention inquiry;  
 Under Sec.  351 .226(f)(1) parties will have 14 days,  rather than 10 days, to submit comments 
and factual information to  rebut,  clarify, or correct factual information submitted by the other  
parties;  
 Under Sec.  351 .226(f)(2) parties will have 30 days,  rather than 20 days, to submit comments 
and factual information in  response to the request after Commerce initiates a circumventi on inquiry;  
 Under Sec.  351 .226(f)(2), the requestor will have 14  days, rather than 10 days, to submit 
comments and factual information  to rebut, clarify, or correct factual information submitted by the  
interested parties;  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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   Under Sec.  351 .226(f)(3), interested parties will have 14  days, rather than 10 days, to submit 
comments and factual information  to rebut, clarify, or correct factual information contained in a  
questionnaire response;  
 Under Sec.  351 .226(f)(3), the original submitter wi ll have 7 days, rather than 5 days, to submit 
comments and factual  information to rebut, clarify, or correct factual information submitted  in the 
interested party's rebuttal, clarification or correction;  
 Under Sec.  351 .226(f)(4), interested parties will have 14  days, rather than 10 days, after the 
preliminary circumvention  determination to submit comments; and  
 Under Sec.  351 .226(f)(4), interested parties will have 7  days, rather than 5 days, to submit 
rebuttal comments thereafter.  
 With respect to the a rgument about Commerce's ability to limit  questionnaires, we do not 
disagree with the commenter that it would be  preferable if Commerce could issue questionnaires to 
all potential  respondents in all circumvention inquiries. However, in reality,  Commerce no rmally 
conducts its administrative proceedings with limited  resources and under specific time constraints. 
Accordingly, in  consideration of Commerce's authority to limit respondents under  section 777A(c)(2) 
of the Act, we continue to believe that it is  appropriate to retain the language in our regulations that 
explains  that we may limit the issuance of questionnaires to a reasonable number  of respondents, if 
the record of the circumvention inquiry warrants  such a limitation. In accordance with that provisio n, 
it is Commerce's  normal practice to select the "exporters and producers accounting for  the largest 
volume of the " particular product subject to the  circumvention inquiry "from the exporting country 
that can be  reasonably examined. " \119\ 
---------------------------------------------------------------------------  
 \119\ See section 777A(c)(2)(B) of the Act.  
---------------------------------------------------------------------------  
 In addition, we have made some modifications to Sec.  351 .226(f)(6)  and (7), however, to 
provide clarity to this provision which are not  directly responsive to comments. First, we  explain that 
if Commerce  determines it appropriate to do so, Commerce may rescind a  circumvention inquiry, in 
whole or in part, and we explain that the  list provided in the proposed regulations is not exhaustive, 
but merely  contains examples of situations  in which rescission might be warranted.  
 Second, we have removed a reference to Commerce's ability to  "forgo" a circumvention inquiry, 
as that scenario is now set forth in  paragraph (d) of this section.  
 Furthermore, we have added a fourth example in whic h a covered  merchandise inquiry under 
Sec.  351 .227 has been initiated, and  Commerce concludes that an inquiry into whether the elements 
necessary  for a circumvention determination exist can be addressed in that  segment of the 
proceeding instead.  
 In addit ion, we have noted that if we rescind a circumvention  inquiry, we will notify interested 
parties. We also have clarified that  Commerce can both alter and extend time limits under this 
section, if  it determines it appropriate to do so.  
 Finally, we have moved proposed Sec.  351 .226(m)(2), which  addresses actions Commerce 
may take during the pendency of a  circumvention inquiry or upon issuance of a final circumvention  
determination, to Sec.  351 .226(f)(9). Not only does this change better  conform with the structure 
of the scope and covered merchandise  referral regulations, but it also logically fits more 
appropriately  under the section labeled "Circumvention inquiry procedures. " 
7. Section 351.226 (g) --Circumvention Determinations  
 We recei ved no comments on this provision.  
8. Section 351.226(h) --Products Completed or Assembled in the United  States  
 Section 351.226(h) addresses the situation in which an entity  circumvents an order through 
further processing or assembly of its  merchandise in the United States. Commerce's regulation 
provides that  in determining the value of parts or components, or the value of  processing, of the 
particular product under inquiry, Commerce may  determine the value of the part or component on 
the basis of the cost  of producing the part or component under section 773(e) of the Act --or, in the 
case of a nonmarket economy, through the use of surrogate values  and the nonmarket economy 
methodology, as set forth in section 773(c)  of the Act. One commenter expressed its support for 
this clarification,  stating that it agreed with Commerce's revised regulation, and stating  that 
Commerce's use of a constructed value or nonmarket economy  methodology to value those parts or 
components in its circumvention  analysi s, as proposed, will improve the accuracy of its further  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  processing or assembly circumvention methodology and analysis. We agree  and have made no 
revisions to Sec.  351 .226(h).  
9. Section 351.226(i) --Products Completed or Assembled in Foreign  Countries  
 Section 351.226(i) addresses the situation in which an entity  circumvents an order through 
further processing or assembly in a third  country under section 781(b) of the Act. One commenter 
argues that  Commerce should remove the country of origin provision, at  Sec.  351 .225(j), from the 
scope regulations and conduct its substantial  transformation analysis in a circumvention inquiry 
under this  provision, or, in the alternative, provide greater explanation as to  the similarities and 
differences between the two pr ovisions. We have  addressed some of these arguments above in 
response to comments  specific to Sec.  351 .225(j).  
 However, with respect to the commenter's confusion over the  situations in which Commerce 
will apply the substantial transformation  factors set out in Sec.  351 .225(j) and the situations in 
which  Commerce will apply its third country processing and assembly analysis  using the factors set 
out in Sec.  351 .226(i), we respond below. The  commenter argues that the factors which Commerce 
considers in bo th provisions are similar, but not exactly the same, and those differences  may lead 
to confusion and impair predictability. The commenter,  therefore, argues that Commerce should 
explain with greater specificity  which factors apply in each situation.  
 Response:  
 Commerce's substantial transformation analysis under Sec.  351 .225(j) and the test for 
determining whether a product was completed  or assembled in other foreign countries under Sec.  
351.226(i) (and  section 781(b) of the Act) are two distinct analyses used for different  purposes, and 
there is no basis for Commerce to modify either the scope  regulations or the circumvention 
regulations in response to this  comment. Commerce has explained this distinction before in certain  
circumventi on determinations, noting that its substantial  transformation test is used in scope rulings 
and other proceedings to  determine a particular product's country -of-origin, while the factors  it 
considers to determine whether merchandise is being completed or  assembled into a product in a 
third country are specific to a  circumvention analysis under section 781 of the Act to determine if 
the product is circumventing an AD or CVD order. \120\ Because these  analyses are distinct and 
serve different purposes, Commerc e's application of a substantial transformation analysis does not 
preclude  Commerce from also applying an analysis based on statutory criteria  established in section 
781(b) of the Act. \121\ 
------------------------------------------------------------------ ---------  
 \120\ See Certain Cold -Rolled Steel Flat Products from the  Republic of Korea: Affirmative Final 
Determinations of Circumvention  of the Antidumping Duty and Countervailing Duty Orders, 84 FR 
70934  (Dec. 26, 2019) and accompanying Issues and Decis ion Memorandum  (IDM) at Comment 9; 
Certain Corrosion -Resistant Steel Products from  the People's Republic of China: Affirmative Final 
Determination of  Circumvention of the Antidumping Duty and Countervailing Duty  Orders, 83 FR 
23895 (May 23, 2018), and accompanying IDM at Comment  1 and 2; Certain Cold -Rolled Steel Flat 
Products from the People's  Republic of China: Affirmative Final Determination of Circumvention  of 
the Antidumping Duty and Countervailing Duty Orders, 83 FR 23891  (May 23, 2018), and 
accom panying IDM at Comment 1 and 2.  
 \121\ See Bell Supply, 888 F.3d at 1230 ( "Although substantial  transformation and 
circumvention inquiries are similar, they are not  identical. "). 
---------------------------------------------------------------------------  
 In determining whether merchandise is subject to an AD and/or CVD  order, Commerce 
considers whether the merchandise is: (1) The type of  merchandise described in the order; and (2) 
from the particular country  the order covers. \122\ Thus, Commerce's determin ation on whether  
merchandise meets these parameters involves two separate inquiries,  i.e., whether the product is 
of the type described in the order, and  whether the country of origin of the product is that of the 
subject  country. \123\ In determining the c ountry of origin of a product,  Commerce's usual practice 
has been to conduct a substantial  transformation analysis. \124\ The substantial transformation 
analysis  asks, essentially, "whether, as a result of the manufacturing or  processing, the product 
loses its identity and is transformed into a  new product having a new name, character, and use " 
\125\ and whether  "[t]hrough that transformation, the new article becomes a product of  the country 
in which it was processed or manufactured. " \126\ Commerce  may exam ine a number of factors 
when conducting its substantial  transformation analysis, and the weight of any one factor can vary 
from case to case and depends on the particular circumstances unique to the  products at issue. \127\ 
---------------------------------------------------------------------------  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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   \122\ See Bell Supply Co., LLC v. United States, 179 F. Supp. 3d  1082, 1091 (CIT 2016); see 
also Sunpower Corp. v. United States, 179  F. Supp 3d 1286, 1298 (CIT 2016) (Sunpower).  
 \123\ See Sunpower, 179 F. Supp. 3d at 1298; see also Final  Determination of Sales at Less 
Than Fair Value: 3.5 " Microdisks and  Coated Media Thereof from Japan, 54 FR 6433, 6435 
(February  10, 1989).  
 \124\ See, e.g., Notice of Final Determination of Sales  at Less  Than Fair Value: Glycine from 
India, 73 FR 16640 (March 28, 2008),  and accompanying IDM at Comment 5; see also Stainless 
Steel Plate in  Coils from Belgium: Final Results of Antidumping Duty Administrative  Review, 69 FR 
74495 (December 14, 2004) (P late Belgium Final), and  accompanying IDM at Comment 4; see also 
Canadian Solar, 918 F.3d at  918-20 (affirming Commerce's discretion to use other tests beyond  the 
substantial transformation test when reasonable).  
 \125\ See Bell Supply, 888 F.3d at 1230 (q uotations and  citations omitted).  
 \126\ See Ugine and Alz Belgium N.V. v. United States, 571 F.  Supp. 2d 1333, 1337 n.5 
(CIT 2007) (quoting Notice of Final  Determination of Sales at Less Than Fair Value: Certain Cold -
Rolled  Carbon Steel Flat Products from  Argentina, 58 FR 37065 (July 9,  1993) (Steel Argentina 
Final)).  
 \127\ See Laminated Woven Sacks from the People's Republic of  China: Final Results of First 
Antidumping Duty Administrative  Review, 76 FR 14906 (March 18, 2011) (Sacks China Final), and  
accompanying IDM at Comment 1b.  
---------------------------------------------------------------------------  
 Section 781(b) of the Act provides that Commerce may include  merchandise completed or 
assembled in foreign countries within the  scope of an order if the "merchandise imported into the 
United States  is of the same class or kind as any merchandise produced in a foreign  country that is 
the subject of " an AD or CVD order, and such  merchandise "is completed or assembled . . . from 
merch andise which .  . . is produced in the foreign country with respect to which such order  [ ] 
applies. . . . " To include such merchandise within the scope of an  AD or CVD order, Commerce must 
determine and assess whether: The  process of assembly or completion  in the foreign country is 
minor or  insignificant; the value of the merchandise produced in the country  subject to the AD or 
CVD order is a significant portion of the  merchandise exported to the United States; and, the action 
is appropriate to prevent evas ion of such order or finding. \128\ As part  of this analysis, Commerce 
also considers additional factors such as:  Patterns of trade, including sourcing patterns; whether the  
manufacturer or exporter of the parts or components in the country of  the order is affiliated with the 
person who assembles or completes the  merchandise sold in the United States and, whether imports 
of the parts  or components produced in such foreign country into the country in  which they are 
assembled or completed have increased after the initiation of the investigation which resulted in the 
issuance of such  order or finding. \129\ As such, the purpose of this circumvention  inquiry under 
section 781(b) of the Act is to determine whether  merchandise from the country subject to the AD 
and/or CVD orders that  is processed, i.e., completed or assembled into a finished product, in  a third 
country into a merchandise of the type subject to the AD and/or  CVD order should be considered 
within the scope of the AD and/or CVD  order at issue.  
---------------------------------------------------------------------------  
 \128\ See sections 781(b)(C) -(E) of the Act.  
 \129\ See section 781(b)(3) of the Act.  
---------------------------------------------------------------------------  
 Although an AD or CVD order would not normally cover merchandise  that has a country of origin 
other than the country subject to the  order, the Act expressly provides an exception to the general 
rule in  the cases of circumvention because, in general, with regard to third  country or U.S. further 
processing, "[c]ircumvention can only occur if  the articles are from a country not covered by the 
relevant AD or CVD  orders. " \130\ 
-------- -------------------------------------------------------------------  
 \130\ See Bell Supply, 888 F.3d at 1229.  
---------------------------------------------------------------------------  
 An interpretation of section 781(b) of the Act that requires the  imported merchandise have the 
same country of origin as the merchandise  subject to the AD/CVD order at issue would severely 
undermine section  781(b) of the Act because the merchandise would already be subject to  the order 
and there would be no need to engage i n a circumvention  analysis. Accordingly, Commerce interprets 
the requirement in section  781(b) of the Act that the merchandise imported into the United States  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  be of "the same class or kind " as the merchandise that is subject to  the AD and/or CVD order to 
mean that the imported merchandise must be  the same type of product as the subject merchandise. 
In other words,  the imported merchandise meets the physical description of the subject  merchandise 
and is only distinct because of its different country -of- origin designation.  
 With regard to the circumvention statute established by Congress,  the language provided in the 
SAA supports Commerce's decision to not  apply the substantial transformation test in third -country  
circumvention proceedings. The Federal Circuit has affirmed that  "[t]the legislative history indicates 
that [section 781 of the Act]  can capture merchandise that is substantially transformed in third  
countries, which further implies that [section 781 of the Act] and the  substantial transformati on 
analysis are not coextensive. " \131\ When  Congress passed the Omnibus and Trade Competitiveness 
Act in 1988, it  explained that section 781 of the Act "addresses situations where  `parts and 
components . . . are sent from the country subject to the  order to the third country for assembly 
and completion. " \132\ Congress also stated that "[t]he third country assembly situation will  
typically involve the same class or kind of merchandise, where Commerce  has found that the de 
facto country of origin of merchan dise completed  or assembled in a third country is the country 
subject to the  antidumping or countervailing duty order. " \133\ Thus, Congress  contemplated that 
where Commerce had made an affirmative circumvention  determination, the imported merchandise 
found to be circumventing would  be within the AD or CVD order at issue and would be treated as 
having  the same country of origin as the country subject to the order.  Subsequently, when 
implementing the URAA in 1994, Congress further  recognized in the SAA the p roblem arising from 
foreign exporters  attempting to "circumvent an [ ] order by purchasing as many parts as  possible 
from a third country " and assembling them in a different  country, such as the 
United  States. \134\ Similarly, the SAA  demonstrates that Cong ress was aware of Commerce's 
substantial  transformation analysis and the potential interplay of such an analysis  with a 
circumvention finding under section 781 of the Act. Further, as  Congress noted in the SAA, "outside 
of a situation involving  circumvention of an antidumping duty order, a substantial  transformation of 
a good in an intermediate country would render the  resulting merchandise a product of the 
intermediate country rather than  the original country of production. " \135\ In sum, it is evident from  
the above that Congress anticipated that circumvention could result in  a situation where, despite 
the merchandise undergoing some change that  resulted in a new country of origin pursuant to a 
substantial  transformation analysis, the merchandis e could still be considered to  be within the AD or 
CVD order at issue, if, pursuant to section 781(b)  of the Act, Commerce determined the existence 
of circumvention. As  such, Congress has already contemplated that substantial transformation  did 
not preclud e a finding of circumvention under the Act.  
---------------------------------------------------------------------------  
 \131\ See id. at 1231.  
 \132\ S. Rep. No. 100 -71, at 101.  
 \133\ See H.R. Rep. No. 100 -576, at 603 (1988) (Conference  Report accompanyi ng the 
Omnibus Trade and Competitiveness Act of  1988, Pub. L. 100 -418, 102 Stat. 1107 (1988)) 
(emphasis added).  
 \134\ See SAA at 893.  
 \135\ Id. at 844 (emphasis added).  
---------------------------------------------------------------------------  
 Moreover , the Federal Circuit has stated that "[i]n order to  effectively combat circumvention of 
antidumping duty orders, Commerce  may determine that certain types of articles are within the 
scope of a  duty order, even when the articles do not fall within the orde r's literal scope. " \136\ The 
Act "identifies four articles that may fall  within the scope of a duty order without unlawfully 
expanding the  order's reach, " \137\ including inter alia merchandise completed or  assembled in 
foreign countries using merchandise  produced in the  country with respect to which the AD or CVD 
order applies. \138\ Similarly, the Federal Circuit has explained that "if Commerce applies  the 
substantial transformation test and concludes that the imported  article has a country of origin 
different from the country identified  in an AD or CVD order, then Commerce can include such 
merchandise  within the scope of an AD and CVD order only if it finds circumvention  under [section 
781(b) of the Act]. " \139\ 
---------------------------------------------------------------------------  
 \136\ See Deacero, 817 F.3d at 1338 (emphasis added).  
 \137\ Id. 
 \138\ See section 781(b) of the Act. The other three articles  are: (1) Merchandise completed 
or assembled in othe r foreign  countries with respect to which the AD or CVD order applies; (2)  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  merchandise altered in form or appearance in minor respects . . .  whether or not included in the 
same tariff classification; and (3)  later-developed merchandise. See section 781(a),  (c)-(d) of the 
Act. 
 \139\ See Bell Supply, 888 F.3d at 1230.  
---------------------------------------------------------------------------  
 In short, the two analyses have distinct purposes. The substantial  transformation test is focused 
on whether the inp ut product loses its  identity and is transformed into a new product having a new 
name,  character, and use, and thus a new country of origin. On the other  hand, section 781(b) of 
the Act focuses on the extent of processing  applied to subject merchandise in a third country and 
whether such  processing is minor or insignificant in comparison to the entire  production process of 
the finished subject merchandise. Under section  781(b) of the Act, we also examine whether the 
processing in a third  country has resulte d in "evasion " of the order, and, therefore,  whether "action 
is appropriate " to prevent further evasion in the  future. Thus, there is nothing contradictory in finding 
an input to be  substantially transformed into a finished product, in terms of its  physical 
characteristics and uses, while also finding the process of  effecting that transformation to be minor 
vis-[agrave] -vis the  manufacturing process of producing a finished product. Further, as the  Federal 
Circuit has explained, "even if a product ass umed a new  identity, the process of `assembly or 
completion' may still be minor or  insignificant, and undertaken for the purpose of evading an AD or 
CVD order. " \140\ The SAA illustrates this possibility in its discussion  of the circumvention provisions 
of the Act through its references to  "parts" and finished products. \141\ It is evident from this  
discussion that the "parts" and the finished goods assembled are two  different products. 
Nevertheless, the process of assembling such parts  into a final product may be 
minor. \142\ Furthermore, section 781(b) of  the Act requires that we examine other factors, e.g., 
patterns of trade  including sourcing patterns, and whether imports into the third country  have 
increased after initiation of the relevant AD or CVD  investigation. These additional factors further 
emphasize the different  purposes of the substantial transformation test and the analysis  conducted 
under section 781(b) of the Act and Sec.  351 .226(i).  
----------------------------------------------------------- ----------------  
 \140\ See id.  
 \141\ See SAA at 893.  
 \142\ Id. ("Another serious problem is that the existing  statute does not deal adequately with 
the so -called third country  parts problem. In the case of certain products, particularly  electronic 
products that rely on many off the shelf components, it  is relatively easy for a foreign exporter to 
circumvent an  antidumping duty order by establishing a screwdriver operation in  the United States 
that purchases as many parts as possible from a third country. "). 
---------------------------------------------------------------------------  
 For these reasons, Commerce has neither removed the country of  origin section from 351.225(j) 
nor modified the requirement as set  forth in the newly created 35 1.226(i).  
10. Section 351.226(j) --Minor Alterations of Merchandise  
 Section 351.226(j) addresses the situation in which a particular  product has been altered in 
form or appearance in minor respects before  being exported to the United States. In the propose d 
modifications to  the current regulation, Commerce included certain criteria  described in the 
legislative history of the provision to determine  whether alterations are properly considered "minor. " 
\143\ One commenter states that it was pleased Commerce ha d included those  factors in its revised 
regulation, as those factors are important to  Commerce's minor alterations analysis.  
---------------------------------------------------------------------------  
 \143\ See Proposed Rule, 85 FR 49472 at 49487 (referencing S.  Rep. No. 100 -71, at 100).  
---------------------------------------------------------------------------  
 Response:  
 Commerce appreciates the comment and agrees that the inclusion of  the factors from the 
legislative history in the regulation will provide  greater clarity to Commerce's analysis of a minor 
alteration allegation  in a circumvention inquiry.  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
- 72 - 
 
   Upon further consideration of this provision, we have made one  minor edit, clarifying that 
physical characteristics include chemical,  dimensional, and technical characteristics, to brin g that 
term into  conformity with other provisions of the regulation. Otherwise, we have  made no further 
changes from the provision as it appeared in the  Proposed Rule.  
11. Section 351.226(k) --Later-Developed Merchandise  
 There were no comments on this prov ision.  
12. Section 351.226(l) --Suspension of Liquidation  
 As discussed in the Proposed Rule, in the context of a  circumvention inquiry, current Sec.  
351.225(l) allows for Commerce to  direct CBP to begin the suspension of liquidation of unliquidated  
entries not yet suspended which entered on or after the date of  initiation of the inquiry, and collect 
applicable cash deposits, at the  time of a preliminary or final affirmative determination, whichever 
is applicable. The current regulation d oes not address unliquidated  entries not yet suspended which 
pre-date the date of initiation of a  circumvention inquiry. \144\ Furthermore, the Act does not provide  
direction to Commerce regarding the suspension of liquidation for  entries subject to a circu mvention 
inquiry.  
---------------------------------------------------------------------------  
 \144\ Id. at 49487 -88. 
---------------------------------------------------------------------------  
Under Sec.  351 .226(l) in the Proposed Rule, Commerce proposed  that, at the time of a preliminary 
or final affirmative circumvention  determination, Commerce would direct CBP to begin suspension 
of liquidation for any unliquidated entries not yet suspended and collect  applicable cash 
deposits. \145\ After consideration  of comments on the  Proposed Rule and corresponding changes 
to similar language in Sec.  351 .225(l), Commerce is adopting certain changes to Sec.  351 .226(l) 
in this final rule both in response to comments and on its own initiative.  For clarity, we describ e all 
revisions made to Sec.  351 .226(l) in  these introductory paragraphs before summarizing and 
addressing  comments below. Also discussed herein are the specific applicability  dates for Sec.  
351.226(l) as referenced in the Applicability Dates  section of this preamble.  
---------------------------------------------------------------------------  
 \145\ Id. 
---------------------------------------------------------------------------  
 Paragraph (l)(1), which describes Commerce's actions at the time of  initiation of a circumvention 
inquiry, is slightly revised from the  Proposed Rule and mirrors changes in Sec.  351 .225(l)(1), which 
are described above in that section. Additionally, because Sec.  351 .226(l)(2) and (3) concerning 
Commerce's actions at the time of a  preliminary or final circumvention determination largely mirror 
similar  provisions in Sec. Sec.  351 .225, with a few exceptions described  below, we are adopting the 
same changes to paragraphs (l)(2) and (3)  that are being made to Sec.  351 .225(l) (2) and (3). 
Paragraph (l)(4),  which we touch on briefly below, describes Commerce's actions in the  event of a 
negative final circumvention determination, remains  unchanged from the Proposed Rule. Lastly, 
Commerce is adding a new  provision, paragraph (l)(5 ), to include specific reference to CBP's  
authority.  
 Minor revisions have been made to paragraphs (l)(1), (l)(2)(i), and  (l)(3)(i) from the Proposed 
Rule. Specifically, as explained above in  the discussion of similar language in Sec.  351 .226(l), 
paragraph  (l)(2)(i) provides that, at the time of an affirmative preliminary  circumvention 
determination, Commerce will direct CBP to continue the  suspension of liquidation of previously 
suspended ent ries, but removes  express reference to entries previously suspended "as directed 
under " paragraph (l)(1). Under paragraph (l)(1), Commerce does not direct CBP  to suspend 
liquidation at the time of initiation of the circumvention  inquiry; rather, under para graph (l)(1), 
Commerce directs CBP to  continue the suspension of liquidation of entries subject to the  inquiry (if 
any) that were already subject to the suspension of  liquidation and to collect the applicable cash 
deposits. \146\ As noted  above in the discussion of Sec.  351 .225(l), CBP has independent  authority 
to suspend liquidation, and, therefore, prior to a  circumvention inquiry, it is possible that entries 
may be previously  suspended for a number of reasons. Therefore, to avoid any un intended  confusion G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  regarding the underlying basis for suspension of liquidation  of previously suspended entries, the 
reference to paragraph (l)(1) is  removed from paragraph (l)(2)(i).  
------------------------------------------------------------------------ --- 
 \146\ The phrase "until appropriate liquidation instructions  are issued " from the Proposed Rule 
is removed in paragraph (l)(1)  (which refers to continued suspension of liquidation) as such  language 
is unnecessary and redundant. The relevant language i s retained in paragraph (l)(3) as discussed 
below.  
---------------------------------------------------------------------------  
 Similar edits have been made to paragraph (l)(3)(i) by removing a  reference to entries 
previously suspended "as directed under " (l)(1)  and/or (l)(2). Under paragraph (l)(2)(ii) (as further 
discussed below),  if Commerce issues a preliminary affirmative circumvention  determination, 
Commerce will direct CBP to begin the suspension of  liquidation of certain entries. Therefore, at the 
time of a final  circumvention determination, entries may be previously suspended as  described 
above, or because of Commerce's instruction to CBP to begin  the suspension of liquidation of certain 
entries at the time of the  preliminary affirmative circumventi on determination. To avoid confusion  
regarding the underlying basis for suspension of liquidation of  previously suspended entries, the 
reference to paragraph (l)(1) and/or  (l)(2) is removed from paragraph (l)(3)(i).  
 Revised paragraph (l)(3)(i) also eliminates potentially confusing  language regarding entries 
subject to suspension of liquidation as a  result of another segment of a proceeding, and revised 
paragraphs  (l)(3)(i) and (ii) eliminate reference to liquidation instructions  issued pursuant to Se c. 
Sec.  351 .212 and 351.213. There may be a  number of reasons why entries remain subject to 
suspension of  liquidation in any given circumvention inquiry in which Commerce issues  an affirmative 
final circumvention determination, and Commerce cannot  immedia tely instruct CBP to lift suspension 
of liquidation and assess  final duties. This includes, for example, an ongoing administrative  review. 
Therefore, we find that a simple reference to the continued  suspension until appropriate liquidation 
instructions are  issued in  paragraph (l)(3) will account for various scenarios. In addition, the  
language in new paragraph (l)(5) will provide added clarification  regarding CBP's authority in relation 
to the framework established by  Commerce under paragraph (l). Commerce intends to provide more 
details,  as needed, in its individual instructions to CBP for a given case.  
 On the other hand, we note that we have retained language in  paragraph (l)(4) to provide that 
when Commerce  issues a final negative circumvention determina tion, entries subject to  suspension 
of liquidation as a result of another segment of a  proceeding, if any, will remain suspended until that 
other segment of  the proceeding has concluded. Although perhaps less common in the  circumvention 
context, it is poss ible that there could be a scenario in  which it would not be appropriate to 
immediately direct CBP to  liquidate entries without regard to duties. Therefore, to avoid  confusion 
in this particular scenario, this language is retained in  paragraph (l)(4).  
 Paragraphs (l)(2)(ii) and (l)(3)(ii) clarify and maintain the  status quo of the current regulation 
to provide that, at the time of a  preliminary or final affirmative circumvention determination, 
Commerce  will direct CBP to begin the suspension of liquidation of any  unliquidated entries not yet 
suspended, which entered on or after the  date of initiation of the inquiry, and collect applicable cash  
deposits. Paragraphs (l)(2)(ii) and (l)(3)(ii) also retain language  from the current regulation 
regarding entries entered, or withdrawn  from warehouse, for consumption, to maintain consistency 
with this  long-standing language and to avoid confusion. Additionally, this  language also clarifies 
that the relevant date is the date of  publication of the notice of in itiation in the Federal Register.  
 New paragraphs (l)(2)(iii)(A) and (l)(3)(iii)(A) provide that, at  the time of a preliminary or final 
affirmative circumvention  determination, if Commerce determines that it is appropriate to do so,  
Commerce may direct CBP  to begin the suspension of liquidation of  certain unliquidated entries not 
previously suspended, which entered  before the date of publication of notice of initiation of the 
inquiry,  and collect applicable cash deposits. Under this framework, Commerce  may consider upon 
timely request of an interested party or at its own  discretion whether such suspension of liquidation 
and application of  cash deposits, also referred to as retroactive suspension, should be  applied to 
certain entries which pre -date the date o f initiation, i.e.,  to a specific alternative retroactive 
suspension date. In response to a  timely request from an interested party, Commerce will only 
consider an  alternative date based on a specific argument supported by evidence  establishing the 
appropr iateness of that alternative date. These  provisions are further explained below in response 
to comments.  Additionally, new paragraphs (l)(2)(iii)(B) and (l)(3)(iii)(B) provide  an exception that, 
if Commerce has determined to address a covered  merchandise r eferral under Sec.  351 .227 in a 
circumvention inquiry,  the rules of Sec.  351 .227(l)(2)(iii) and (l)(3)(iii) will apply. This  provision is 
explained below under the discussion of Sec.  351 .227(l).  New paragraphs (l)(2)(iii) and (l)(3)(iii) 
also retain lan guage from  the current regulation regarding entries entered, or withdrawn from  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  warehouse, for consumption, to maintain consistency with this long - standing language and avoid 
confusion. Additionally, this language also  clarifies that the relevant date is the date of publication 
of the  notice of initiation in the Federal Register.  
 Lastly, new paragraph (l)(5) provides language to clarify CBP's  authority to take related action. 
Specifically, this language clarifies  that the revised framework established by Commerce in Sec.  
351.226 do  not affect CBP's authority to take any additional action with respect  to the suspension 
of liquidation or related measures. This is identical  language to the language for Sec.  351 .225(l), 
which is explained above  and not repea ted here.  
 There is one clarification to this revised regulatory framework, as  noted in the DATES section 
and in the Applicability Dates section of  this preamble, and as discussed in detail above regarding 
Sec.  351 .225(l)(2)(iii) and (l)(3)(iii) for scope  inquiries, regarding the  effective date and 
applicability dates. As stated above, amendments to  Sec.  351 .225 apply to scope inquiries for which 
a scope ruling  application is filed, as well as any scope inquiry self -initiated by  Commerce, on or 
after the effective date for the amendments to Sec.  351 .225 identified in the DATES section. 
Likewise, amendments to Sec.  351 .226 apply to circumvention inquiries for which a circumvention  
request is filed, as well as any circumvention inquiry self -initiated  by Co mmerce, or after the effective 
date for the amendments to Sec.  351 .226 identified in the DATES section. However, for Sec.  
351.226(l),  like for Sec.  351 .225(l), Commerce will not apply paragraphs  (l)(2)(iii) and (l)(3)(iii) in 
a way that would direct CBP  to begin the  suspension of liquidation of unliquidated entries not yet 
suspended,  entered, or withdrawn from warehouse, for consumption, prior to this  effective date. 
These issues are fully described above for Sec.  351 .225(l) and are not repeated here. I n addition, 
we clarify that as  expressly stated in paragraph (l)(5), this revised framework does not  affect CBP's 
authority to take any additional action with respect to  the suspension of liquidation or related 
measures. Nor will this  framework apply to circumvention requests filed or circumvention  inquiries 
self-initiated by Commerce before the effective date  identified in the DATES section.  
 As noted above, Commerce received numerous comments on paragraph  (l). Summaries of 
those comments, and responses to those comments, are  provided below.  
 
(a) Retroactive Suspension of Liquidation  
 
 As described above, in the Proposed Rule, among other changes,  Commerce proposed that, at 
the time of a preliminary or final  affirmative circumvention determination, Commer ce would direct 
CBP to  begin suspension of liquidation for any unliquidated entries not yet  suspended and collect 
applicable cash deposits. Therefore, the key  distinction between the current regulation and what 
was proposed is  that the current regulation i mposes a "cut-off" of the initiation  date of the inquiry. 
The proposed regulation would have removed this  limitation so that the affirmative circumvention 
determination would  apply to any unliquidated entries of the product at issue, not just  those that 
entered after the initiation date.  
 Thirteen commenters support the proposal to apply affirmative  circumvention determinations 
to all unliquidated entries dating back to  the first date of suspension under the order. A few of these 
commenters  generally suppor t the adoption of proposed new Sec.  351 .226, with no  comments 
specific to paragraph (l). Another group of these commenters  discuss their first -hand experiences in 
dealing with circumvention and  explain that such practices undermine the import relief granted to 
the domestic industry. In their view, companies engaging in circumvention  contravene the remedial 
purpose of the AD/CVD law, and Commerce's  experience over the past 20 years has made it evident 
that strong  enforcement of the trade remedy laws is  necessary to level the playing  field, prevent 
circumvention, and eliminate opportunities to elude the  payment of AD/CVDs.  
 Several of these commenters disagree that imports that circumvent  an AD/CVD order can enter 
without the payment of duties unless and  until a domestic interested party alerts Commerce that 
circumvention is  occurring. These commenters argue that importers should be exercising  due 
diligence (as part of the concept of shared responsibility and the  statutory duty to exercise 
reaso nable care when entering merchandise)  and it is  incumbent upon them to take proactive 
measures to reduce any duty risk  exposure. One of these commenters notes that the Federal Circuit 
has also recognized the risk of duty evasion and the declared policy in the Act to protect AD/CVD 
revenue to the maximum extent practicable, which  is consistent with the curative purpose and 
remedial intent of the  statute. \147\ 
---------------------------------------------------------------------------  
 \147\ See Guangdong Wir eking, 745 F.3d at 1203; and Sunpreme,  946 F.3d at 1321 -22. 
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   Eleven commenters oppose the proposal to apply affirmative  circumvention determinations to 
all unliquidated entries dat ing back to  the first date of suspension under the order. These 
commenters argue  that by applying suspension of liquidation to the earliest date of  suspension, the 
Proposed Rule unfairly expands the scope of an order  prior to making a circumvention determi nation. 
In particular, they  argue that there is a significant duty liability risk to importers that  are genuinely 
unaware their products may be covered by the scope of an  order. They state that, as Commerce 
acknowledges, these products do not  fall within t he literal scope language; thus, it is impossible for  
importers to predict what products may be circumventing an order when  they are not covered by 
the literal scope language. Certain of these  commenters also argue that attaching duty liability when 
the language  of the orders does not cover the product is a violation of due process  and the fair notice 
doctrine. They note that a circumvention request is  the first time an importer has notice of a potential 
circumvention  inquiry; retroactively applying order s to unliquidated entries does not  constitute fair 
notice to importers.  
 Additional commenters oppose the Proposed Rule and raise notice and  due process issues. In 
particular, they argue that the proposal  requires notification to those on the annual inquir y service 
list, but  does not clearly establish how producers and importers will be informed  if circumvention is 
taking place via third countries. One of these  commenters proposes that circumvention inquiries be 
published in the  Federal Register so that all  interested parties affected have the same  level of 
information and can defend their interests. Another commenter  also expressed support for providing 
notice via the Federal Register,  either at the time of the circumvention allegation or the time of the  
initiation. This commenter also notes that the Proposed Rule implicates  due process issues, stating 
that importers should not be held  responsible for duties on entries that pre -date any notice of the  
extension of the order to cover the merchandise.  
 Another group of commenters argues that Commerce has expressly  recognized in the 1997 
Final Rule that notice and fairness are key  factors in a circumvention case. These commenters argue 
that the issue  regarding the apparent unfairness associated with retroactively  imposing duties on 
merchandise prior to initiation of an inquiry was  expressly addressed in Fasteners, where the Federal 
Circuit held that  Commerce exceeded its regulatory authority. \148\ The commenters also  argue that 
the court's reasoning was based on t he 1997 Final Rule and  Commerce has failed to provide an 
adequate explanation as to why it is  no longer extremely unfair to respondents to subject entries to 
duty assessment with no prior notice based on nothing more than a domestic  party's allegation. 
Further, these commenters argue that the Federal  Circuit's decision in Sunpreme cannot justify 
retroactive assessment  because that case concerned CBP's suspension authority, not Commerce's  
authority to reach all unliquidated entries prior to the initiation of  a circumvention 
inquiry. \149\ Finally, they state that the proposal is  even more blatantly unfair in the circumvention 
context with third  country completion, where there has been no AD/CVD investigation, no  injury 
finding, no suspension, and no notice of findings in the Federal  Register. They also state that it is 
unreasonable to assume importers  can make a prediction concerning merchandise produced in a 
separate  country.  
---------------------------------------------------------------------------  
 \148\ See Fasteners, 947 F.3d at 803.  
 \149\ See Sunpreme, 946 F.3d at 1316 -18. 
---------------------------------------------------------------------------  
 Response:  
 As discussed above, after consideration of these comments, Commerce  is adopting a revi sed 
framework under paragraph (l) with respect to  entries that pre -date the date of initiation of a 
circumvention  inquiry. First, under paragraph (l)(1), Commerce is clarifying that, at  the time of 
initiation of a circumvention inquiry, Commerce will direc t CBP to continue the suspension of 
liquidation of entries subject to the  inquiry (if any) that were already subject to the suspension of  
liquidation and to collect the applicable cash deposits. Second,  Commerce is clarifying its treatment 
of unliquidated entries not yet  suspended which entered before the date of initiation of the inquiry.  
Specifically, paragraphs (l)(2)(iii)(A) and (l)(3)(iii)(A) provide  that, at the time of a preliminary or 
final affirmative circumvention  determination, if Commerce determ ines that it is appropriate to do 
so, Commerce may direct CBP to begin the suspension of liquidation of  certain unliquidated entries 
not previously suspended, which entered  before the date of publication of notice of initiation of the 
inquiry,  and collect the applicable cash deposits. This includes any  unliquidated entries back to the 
first date of suspension under the  order that remain unliquidated at the time of the preliminary or 
final circumvention determination. \150\ Under this framework, Comme rce may  consider upon timely 
request of an interested party or at its own  discretion whether such suspension of liquidation and 
application of  cash deposits, also referred to as retroactive suspension, should be  applied to certain G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  entries which pre -date th e date of initiation, i.e.,  to a specific alternative retroactive suspension 
date. In response to a  timely request from an interested party, Commerce will only consider an  
alternative date based on a specific argument supported by evidence  establishing the  
appropriateness of that alternative date. In addition,  as explained further below, because this is a 
determination separate  from a determination as to whether the elements for circumvention  exist, 
the evidence required to support retroactive suspension mu st go beyond the evidence required to 
establish circumvention of the order  under the relevant criteria. Further, Commerce may consult 
with CBP as  necessary under this provision to determine if suspension of  liquidation should fall on 
the date of initiation  or to entries  preceding that date.  
---------------------------------------------------------------------------  
 \150\ As stated above in the discussion of new paragraph (l)(5),  consistent with current practice 
and in accordance with CBP's  statutory and regulatory authorities, CBP may stay its action on  entries 
of products that CBP has liquidated but for which  liquidation is not yet final pending the outcome of 
a circumvention  inquiry. Additionally, any instructions issued by Commerce direct ing CBP to "lift 
suspension of liquidation " and assess duties at the  applicable AD/CVD rate would not limit CBP's 
ability to (1) suspend  liquidation/assess duties/take any other measures pursuant to CBP's  EAPA 
investigation authority under section 517 of t he Act  specifically, or (2) suspend liquidation/assess 
duties/take any  other action within CBP's or HSI's authority with respect to AD/CVD  entries.  
---------------------------------------------------------------------------  
 In establishing this framework, which differs from the scope  framework applied under Sec.  
351.225(l), we recognize that neither  section 781 of the Act nor any other provision of the Act 
contains  specific guidance regarding when merchandise found to be circumventing  an AD and/or 
CVD order should be subject to suspension of liquidation  and cash deposit requirements. When 
Congress passed the Omnibus and  Trade  Competitiveness Act of 1 988, it explained that the purpose 
of the  circumvention statute "is to authorize the Commerce Department to  apply antidumping and 
countervailing duty orders in such a way as to  prevent circumvention and diversion of U.S. law. " 
\151\ Congress also  recognize d that "aggressive implementation of [the circumvention  statute] by 
the Commerce Department can foreclose these practices. " \152\ 
---------------------------------------------------------------------------  
 \151\ See S. Rep. No. 100 -71, at 101.  
 \152\ Id. 
---------------------------------------------------------------------------  
 In light of this language, we are cognizant of the purpose of the  AD/CVD law generally and the 
circumvention provisions, in particular,  to prevent parties from undermining the eff ectiveness of 
these trade  remedies through circumvention measures. Congress, and the courts, have  long 
recognized that Commerce has the vested authority to administer  the trade remedy laws in 
accordance with their intent, and has the  discretion to take appropriate enforcement measures to 
ensure the  effectiveness of its AD/CVD orders by preventing duty evasion and  circumvention.  
\153\ Weighing in favor of retroactive suspension are  Commerce's objectives to promote the 
effectiveness and remedial purpose  of AD/CVD orders; to provide the requisite relief to domestic  
industries suffering from attempts by others to undermine that relief;  to deter parties from engaging 
in the circumvention practices in the  first instance; and to encourage parties to maintain a 
reasonable  awareness whether the product they are producing, exporting, or  importing is subject to 
an AD/CVD order, and also to scrutinize the  parties with which they do business (for example, to 
determine whether  a supplier is a respondent in a U.S. AD/CVD  proceeding, which could  indicate 
possible circumvention activity depending on the  circumstances). Therefore, based on these 
objectives, we agree, to an  extent, with commenters in favor of the Proposed Rule.  
------------------------------------------------ ---------------------------  
 \153\ See generally section 781 of the Act; SAA at 892 -95; Tung  Mung, 219 F. Supp. 2d at 
1343 ( "Commerce has a duty to avoid the  evasion of antidumping duties. [Commerce] `has been 
vested with  authority to administer the antidu mping laws in accordance with the  legislative intent. 
To this end, [Commerce] has a certain amount of  discretion [to act] . . . with the purpose in mind 
of preventing the  intentional evasion or circumvention of the antidumping duty law.'  ") (quoting 
Mitsub ishi I, 700 F. Supp. at 555; see also Torrington  Co. v. United States, 745 F. Supp. 718, 721 
(CIT 1990), aff'd 938  F.2d 1276 (Fed. Cir. 1991).  
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   On the other hand, we also agree to some degree with arguments  raised by the commenters 
opposed to the Proposed Rule that retroactive  application of circumvention determinations m ay not 
be appropriate in  all instances. Depending on the circumstances of a given case, prior to  the notice 
of initiation of the circumvention inquiry, certain  exporters, producers, and/or importers of products 
alleged to be  circumventing may not be aware that Commerce could apply AD/CVDs to  such 
products --which "do not fall within the order's literal scope " \154\--through an affirmative 
circumvention determination.  
---------------------------------------------------------------------------  
 \154\ See Deacero, 817 F.3d at 1337 -38 ("In order to  effectively combat circumvention of 
antidumping duty orders,  Commerce may determine that certain types of articles are within the 
scope of a duty order, even when the articles do not fall within the  order's literal scope. The Tariff 
Act identifies four articles that  may fall within the scope of a duty order without unlawfully  expanding 
the order's reach[.] " (internal citations om itted)).  
---------------------------------------------------------------------------  
 In light of the concerns raised by those opposed to the Proposed  Rule, and the need to 
effectively administer and enforce the  circumvention laws under section 781 of the Act, we have 
therefore  modified paragraphs (l)(2)(iii)(A) and (l)(3)(iii)(A) as described  above. In determining 
whether to suspend liquidation of entries  preceding initiation, Commerce will consider its objectives 
described  above (e.g., to promote the effe ctiveness and remedial purpose of AD/  CVD orders; to 
provide the requisite relief to domestic industries; to  deter parties from engaging in circumvention; 
and to encourage parties  to maintain a reasonable awareness of their business activities) in  light of 
the circumstances set forth on the administrative record. This  framework recognizes that although 
merchandise may not fall within the  literal terms of the order, this does not mean, depending on the  
circumstances, that parties are completely unawa re of an existing order  or previous circumvention 
determinations relevant to their product, or  even unaware that their products are or may be 
circumventing the order.  Thus, in certain instances, we disagree that it would be unfair to all  parties 
or that al l parties would have "no notice " or lack due  process in every case before potential duty 
liability attaches to  entries that pre -date the date of initiation of the inquiry pursuant to  an 
affirmative circumvention determination. In fact, we believe that  there are scenarios in which parties 
will certainly have notice before  potential duty liability attaches to entries that pre -date the date of  
initiation. Therefore, the appropriateness of applying duty liability  to pre -initiation entries pursuant 
to an affirma tive circumvention  determination must be determined by Commerce on a case -by-case 
basis.  
 For example, Commerce has published hundreds of AD/CVD orders on  numerous types of 
products covering multiple countries and issued  numerous circumvention determinatio ns. The 
Federal Circuit has  recognized that Federal Register documents are treated as legally  effective 
notices in a wide range of circumstances. \155\ In certain  cases, the courts have determined that a 
party that did not receive  actual notice nonetheless received constructive notice of an event  through 
the publication of a Federal Register document. \156\ These  published documents and accompanying 
memoranda would put parties on  notice that circumvention occurred in previous instances under the 
same  order by  the same or different companies, or that the same pattern of  circumvention occurred 
in previous instances involving the same product  for a different country. This type of evidence could 
serve as the  evidence needed to consider retroactive suspension appro priate under  paragraphs 
(l)(2)(iii) and (l)(3)(iii), because, as noted above, such  evidence would go beyond the evidence 
required to establish  circumvention of the order under the relevant criteria.  
---------------------------------------------------------------------------  
 \155\ Suntec, 857 F.3d at 1370.  
 \156\ Id. 
---------------------------------------------------------------------------  
 Allowing for retroactive suspension in such instances would  encourage parties to maintain a 
reasonable awareness of whether the  product they are producing, exporting, or importing is subject 
to an AD/CVD order, and also to scrutinize the parties with whom they do  business (as stated above). 
As a general matter, im porters are expected  to perform their due diligence and exercise reasonable 
care in  conducting their business. Certain importers are also required to  provide or maintain relevant 
information for their product; and,  depending on the type of product, more de tailed information may 
be mandated based on requirements established by CBP, Commerce, or other  Federal 
agencies. \157\ In light of these existing obligations and  requirements, a reasonable importer may 
be expected to know, at a  minimum, the identity of  certain parties in the transaction chain, G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  understand the imported  product, including where it was made, how it was made, and the  
components of the product (and, in some instances, the source of those  components). Furthermore, 
an importer of a product under an  HTSUS  category that is associated with an AD/CVD order would 
be faced with a  particular responsibility to ensure whether the product is subject to  an AD/CVD 
order. And, as described above, an importer would generally  be charged with reviewing prior Federa l 
Register notices relevant to  its product and to the producers and exporters of its products.  
---------------------------------------------------------------------------  
 \157\ For example, importers of steel products are required to  obtain a steel import  license 
through Commerce's Steel Import  Monitoring and Analysis (SIMA) online license system. See 19  CFR 
part 360. In their license application, importers are required to  report, among other requirements, 
the country of origin of the  product, along with t he country where the steel used in the mill  product 
is melted and poured (which may differ from the claimed  country of origin). Steel importers must 
also furnish steel mill  test certificates that provide detailed information regarding the  imported steel 
product. See Steel Import Monitoring Analysis System,  85 FR 56162 (Sept.  11, 2020).  
---------------------------------------------------------------------------  
 Moreover, in determining whether to apply retroactive suspension,  certain evidence, apart from 
the evidence required to establish  circumvention of the order under the relevant criteria, may be  
considered in light of Commerce's objective to deter parties from  engaging in the circumvention 
practices in the first instance. \158\ Just as there is no right to import, \159\ there is no right to  
circumvent the order with impunity until or unless a party gets caught  in the circumvention scheme. 
In practice, in individual circumvention  inquiries, Commerce will have to balance its various 
objectives in  ensuring the effectiveness of all AD/CVD orders, along with case - specific 
considerations. For example, Commerce must consider its  objective to deter parties from engaging 
in the circumvention practices  in the first instance in light of the fac ts surrounding an importer's  
classification of an entry as not subject to AD/CVDs. Exactly how to  strike this balance should emerge 
over time, through Commerce's  practice and consideration of case -specific issues.  
------------------------------------------ ---------------------------------  
 \158\ We note that the AD/CVD statute on the whole, as well as  the circumvention provisions 
in particular, do not contain intent  elements. See, e.g., Nippon Steel Corp. v. United States, 337 
F.3d 1373, 1382 (Fed. Cir. 200 3) (explaining that, in the context of an  adverse facts available 
determination under section 776(b) of the  Act, [w]hile intentional conduct, such as deliberate 
concealment or  inaccurate reporting, surely evinces a failure to cooperate, the  statute does no t 
contain an intent element. "). However, evidence  demonstrating intentional conduct may support 
retroactive suspension  because such evidence could indicate that there was no lack of  notice about 
the order or the fact that the particular product might  be circumventing the order before the date of 
initiation, thereby  undermining arguments regarding fairness, notice, and due process in  a given 
case. 
 \159\ See GPX International Tire Corporation v. United States,  893 F. Supp. 2d 1296, 1313 
(CIT 2013) ( "[T]he court notes 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.") (citing  
Norwegian Nitrogen Prods. Co. v. United States, 288 U.S. 294, 318  (1933) (recognizing that as with 
tax rates '[n]o one has a legal  right to the maintenance of an existing rate or duty.')).  
----------------------------------------------------- ----------------------  
 Lastly, to the extent parties argue that it is unfair to apply AD/  CVDs retroactively to 
merchandise which may not fall within the literal  terms of the order without adequate notice, this 
final rule provides  additional notice to par ties that AD/CVDs may be applied retroactively  because of 
a subsequent affirmative circumvention determination,  depending on the circumstances described 
above.  
 In response to arguments regarding notice of circumvention  inquiries, we note that, as provided  
under Sec.  351.226(b) or (d),  Commerce publishes notice of initiation of a circumvention inquiry in  
the Federal Register. In addition, Commerce publishes notice of its  preliminary and final 
circumvention determinations as well, as provided  under Sec.  351.226(g)(1) and (2).  
 In light of the above, Commerce may consider whether retroactive  suspension should be applied 
to entries prior to the date of  initiation, based upon available information on the record, at the time  
of the first affirmative (prelimin ary or final) circumvention  determination. In exercising its discretion 
under this provision,  Commerce will consider whether there is information on the record  supporting G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  retroactive suspension, which goes beyond the evidence  required to establish circumve ntion of the 
order under the relevant  criteria.  
 
(b) Suspension of Liquidation and Cash Deposits at Initiation  
 
 Several commenters generally agree with Commerce's proposal under  Sec.  351.226(l)(1) to 
instruct CBP upon initiation of a circumvention  inquir y to continue to suspend liquidation of products 
that are already  subject to suspension. Some commenters oppose Commerce's proposal under  Sec.  
351.226(l)(1) to require cash deposits at the time of initiation  of a circumvention inquiry, arguing 
that it is contrary to statute,  unreasonable, and unfair. These commenters argue that, under current  
practice, cash deposits are not required until Commerce makes a  preliminary determination of 
circumvention.  
 As with proposed Sec.  351.225(l)(1), in the context o f circumvention, several commenters 
argue Commerce should instruct CBP to  begin suspending liquidation of entries not already 
suspended by CBP at  an earlier stage in a circumvention inquiry. Specifically, these  commenters 
request that Commerce instruct CBP  upon initiation of a  circumvention inquiry to suspend liquidation 
of entries which are not  already subject to suspension of liquidation, and to require cash  deposits. 
Likewise, we received similar comments and rebuttal comments  to those described above re garding 
Sec.  351.225(l)(1), both supporting  and opposing this proposal, which we incorporate herein.  
 In the context of circumvention, several commenters further argue  that unless CBP suspends 
liquidation under its own authority, in most  cases products su bject to a circumvention inquiry will 
not have  liquidation suspended when Commerce initiates a circumvention inquiry,  and thus, certain 
circumventing products will liquidate without duty  liability. These commenters argue that waiting 
until a preliminary  determination of circumvention to begin suspension of liquidation  undermines the 
relief to the domestic industries, and that suspending  liquidation and requiring cash deposits upon 
initiation of a  circumvention inquiry is consistent with Congress's intent to  aggressively implement 
the circumvention statute. These commenters  argue that Commerce's concerns in the 1997 Final 
Rule do not apply in  circumvention because the proposed regulations clearly outline the  factors 
necessary to allege a prima facie case of circumvention. These  commenters further argue that 
circumvention typically requires an  affirmative act by foreign producers, so it is unlikely foreign  
producers will be unaware that their actions potentially circumvent an  order. Additionally, these 
comment ers argue there is no economic harm  when entries are suspended at initiation and cash 
deposits are set to  zero, but that doing so preserves potentially circumventing entries for  duty 
assessment.  
 As noted above, in rebuttal, certain commenters oppose the p roposal  that Commerce direct 
CBP, upon initiation of a circumvention inquiry,  to suspend liquidation of unliquidated entries not 
previously suspended  and to require cash deposits. In addition to rebuttal comments  described under 
Sec.  351.225(l)(1), one co mmenter points out that  petitioning parties have inconsistently argued 
that Commerce should  lower the threshold for initiating a circumvention inquiry while also  arguing 
that these same criteria establish a prima facie case of  circumvention and support the ir proposal 
that suspension of liquidation  for entries not already suspended should begin upon initiation of a  
circumvention inquiry.  
 Response:  
 We have left unchanged Sec.  351 .226(l)(1), which states that, upon  initiation of a 
circumvention inquiry, Commerce will direct CBP to  continue the suspension of liquidation (if any) 
of previously suspended  entries and to apply the applicable cash deposit rate. In addition, we  have 
considered the proposal by some commenters that Commerce should  instruc t CBP upon initiation of 
a circumvention inquiry to begin the  suspension of liquidation of unliquidated entries not previously  
suspended and to require cash deposits on such entries (either at zero  or at the rate in effect at the 
time of entry). We have al so considered  the arguments in opposition to this proposal. As noted 
above, the  statute does not provide direction to Commerce on the suspension of  liquidation of entries 
subject to a circumvention inquiry. Therefore,  after consideration of the parties' ar guments and 
based on current  practical and administrability concerns, we have decided to continue to  order 
suspension of liquidation and collection of cash deposits for  such entries only after Commerce's first 
(preliminary or final)  affirmative circumventi on determination. As a result, and for many of  the same 
reasons described in detail above under the discussion of  Sec.  351 .225(l), we have not accepted 
the proposal.  
 In particular, during the 45 -day period in which Commerce has to  decide whether to initiate an 
inquiry based on a circumvention request,  Commerce must consider whether the request alleges the 
elements  necessary for a circumvention determination under section 781 of the  Act and is 
accompanied by information reasonably available to the  interested party supporting these 
allegations. During this time,  Commerce may receive comments from other interested parties, and G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  may issue questionnaires to the requestor to seek clarification or  additional information. Although 
Commerce may seek clarificati on of the  description of the product at issue, it would likely be difficult 
for Commerce to fully analyze the description of the product at issue, such  that it would be 
appropriate to direct CBP to begin suspension of  liquidation for entries not previously  suspended. 
We recognize that  once initiated, paragraph (l)(1) provides that Commerce will direct CBP  to 
continue the suspension of liquidation of previously suspended  entries and to apply the applicable 
cash deposit rate. However, for the  reasons discussed above under Sec.  351 .225(l), we find it 
acceptable  for Commerce to incorporate the description of the product in the  circumvention request 
"as is" in such instructions to CBP, even if  Commerce has not had a great deal of time to fully an alyze 
the description, because Commerce is seeking to maintain the status quo  with respect to this group 
of previously suspended entries.  
 On the other hand, we find that ordering suspension for the first  time on merchandise which 
was not previously suspen ded, based only on  the description of the product at issue in the 
circumvention request,  raises practical and administrability concerns. Specifically, before  initiation, 
Commerce may not have adequate time to analyze the  description of the product at issue  to ensure 
that when such a  description is provided in CBP instructions, CBP is able to administer  and enforce 
those instructions without difficulty. Notably, there may  be instances in which Commerce finds that 
the record and product  descriptions are suffi cient and clear enough to warrant combining  initiation 
with a concurrent affirmative preliminary circumvention  determination. However, in the cases in 
which Commerce just initiates a  scope inquiry, Commerce will not have reached any sort of 
determination  on the merits that the product at issue is circumventing the order.  
 Further, we are also concerned with the significant administrative  burden that would result if 
we were to instruct CBP to begin suspension  of liquidation and collection of cash deposits of  all 
entries at  initiation, regardless if they are determined later to be circumventing  an AD/CVD order. 
For example, under one possible scenario, such  suspension could result in a multi -step process of 
Commerce: (1)  Directing CBP to convert all non -AD/CVD  type entries meeting the  description of the 
product at issue to AD/CVD type entries and  directing CBP to suspend liquidation without any cash 
deposits at the  time of initiation; (2) directing CBP subsequently, upon the event of  an affirmative 
preliminary determination, to collect cash deposits at  the rate to be determined applicable 
retroactively; and (3) directing  CBP, in the event of a negative final determination, to lift suspension  
and liquidate entries without regard to AD/CVDs. This is just one  sequence of circumvention inquiry 
proceedings and determinations, among  several, that reflects the additional administrative burden 
that suspension of liquidation of all entries of the product described in a  circumvention request at 
initiation would requir e of Commerce and CBP.  
 We are cognizant of the concerns expressed by some commenters that  certain entries that 
entered prior to an affirmative preliminary  determination may liquidate without being assessed 
AD/CVDs, and that  parties later found to be circu mventing the order may benefit from this  
arrangement. We have also considered the suggestion of some commenters  to begin the suspension 
of liquidation of not yet liquidated entries at  the time of initiation, with a cash deposit rate of zero, 
which they  argue means there would be no economic harm to importers. However,  Commerce 
believes that this balance between enforcement concerns and  practical and administrability 
considerations described above weighs in  favor of maintaining its current practice of not im posing 
either  suspension of liquidation and/or cash deposit requirements until making  either an affirmative 
preliminary or final affirmative determination,  whichever occurs first.  
 That said, although we are not adopting the suggestions that we  suspend liq uidation of all 
entries described in circumvention requests  at initiation, we note that we have made numerous other 
changes  throughout these regulations, such as the remedy provisions found in  Sec.  351 .226(m) 
and the certification process addressed in Sec .  351.228, in addition to the changes discussed above 
for paragraph (l),  that we believe significantly strengthen the administration and  enforcement of 
AD/CVD laws, and, overall, these changes minimize the  opportunities for gamesmanship and evasion 
of AD/ CVD orders while also  mitigating the harm to importers that may be acting in good faith.  
 With respect to the comment that Commerce should not require cash  deposits upon initiation 
of a circumvention inquiry, it is unclear  whether these commenters believe that under Sec.  
351.226(l)(1),  Commerce would be directing CBP to begin suspension of liquidation and  require cash 
deposits of all unliquidated entries (including entries  not previously suspended by CBP), or whether 
the commenter disagrees  that Commerce should inform CBP that it has initiated a circumvention  
inquiry and direct CBP to continue any suspension of liquidation and  collection of cash deposits 
already in place. As noted in response to a  similar comment regarding Sec.  351.225(l), CBP ha s 
independent  authority to suspend liquidation. Thus, at the time Commerce initiates  a circumvention 
inquiry, although perhaps less common in the  circumvention context, CBP may have already 
suspended liquidation for  entries of products subject to the circu mvention inquiry. We clarify  that, 
under Sec.  351.226(l)(1), when Commerce initiates a  circumvention inquiry, it  does not intend to G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  direct CBP to suspend liquidation and collect cash  deposits in the first instance. Rather, Commerce 
will inform CBP that  it has initiated a circumvention inquiry and direct CBP to continue the  suspension 
of liquidation of any unliquidated entries of products  subject to the circumvention inquiry that have 
already been suspended  by CBP. This is consistent with current Sec.  351.225(l)(1), the  existing 
regulation governing suspension of liquidation in  circumvention inquiries, in the sense that both the 
current and revised  regulation require suspension of liquidation to continue at the  applicable cash 
deposit rate for previously suspended entries after  initiation of a circumvention inquiry. Although it 
has not been  Commerce's practice under the existing regulations to direct CBP upon  initiation of a 
circumvention inquiry to continue any suspension of  liquidation already  subject to suspension and 
collect cash deposits,  current Sec.  351 .225(l)(1) provides that any such suspension by CBP  will 
continue when Commerce initiates a circumvention inquiry.  Consistent with the noted policy 
objectives of the AD/CVD law  (including t he protection of revenue), \160\ Commerce has revised 
Sec.  351 .226(l)(1) to require the issuance of instructions to ensure that  entries previously 
suspended by CBP continue to be suspended during the  pendency of the circumvention inquiry.  
----------------- ----------------------------------------------------------  
 \160\ See Guangdong Wireking, 745 F.3d at 1203; and Sunpreme,  946 F.3d at 1321 -22. 
---------------------------------------------------------------------------  
(c) Action Pursuant to a Negative Pre liminary Circumvention  Determination  
 
 Certain commenters oppose the proposal not to include a requirement  for Commerce to notify 
CBP of a negative preliminary circumvention  determination that the product at issue is not 
circumventing the  relevant order al ong with instructions to terminate the suspension of  liquidation 
for any entries previously suspended by CBP and to refund  cash deposits of estimated duties. These 
commenters argue that the  proposal is contrary to the statute and would be manifestly unfair  to 
importers because entries for which liquidation has already been  suspended by CBP may have been 
in error or based on a misunderstanding  of the scope. According to these commenters, to continue 
to collect  cash deposits following a negative preliminary c ircumvention  determination is unlawful, 
especially where the product is entering  from a country different from the country to which an order 
applies and  for which no injury determination has been made. These commenters also  argue that, 
in the context of investigations, provisional measures are  not imposed following a negative 
preliminary determination.  
 In rebuttal, several commenters responded with arguments supporting  the proposal not to 
include a requirement for Commerce to notify CBP of  a negative preliminary circumvention 
determination. Many of these  commenters argue that duty collection is a guiding principle for this  
rulemaking and notifying CBP at the time of a final circumvention  determination ensures that any 
duties collected are prese rved in the  event Commerce reverses its position after a negative 
preliminary  circumvention determination. These same commenters believe that this  particular aspect 
of the suspension of liquidation rules applicable to  circumvention inquiries will encourage  importers 
to seek scope rulings  earlier in the proceeding or risk having entries suspended by CBP.  Another 
group of commenters agreed that the proposal ensures the  appropriate application of AD/CVD orders 
in the event of an affirmative  final circumvention  determination. These commenters believe the  
proposal is consistent with the overall objective of addressing serious  enforcement concerns and the 
very real risk of duty evasion.  
 Response:  
 We have left unchanged proposed Sec.  351.226(l)(2) with respect to  this issue. Under the 
existing regulations, if Commerce issues a  preliminary circumvention determination that the product 
at issue is  not circumventing the order, Commerce is required to notify CBP and  direct CBP to 
terminate the suspension of liquidation for any entries  previously suspended by CBP with refunds of 
any cash deposits paid as  estimated duties. In the Proposed Rule, Commerce proposed not to  include 
this requirement so that Commerce would no longer issue  instructions to  CBP at the time of a 
negative preliminary circumvention  determination. Instead, by not including this requirement, any 
entries  previously suspended by CBP pursuant to its own authority would remain  suspended pending 
completion of the circumvention inquiry  and a final  determination on the matter. We believe that 
adoption of the proposal  is necessary to preserve the status quo for the duration of the  circumvention 
inquiry and ensure the appropriate application of AD/CVDs  in the event of an affirmative final 
circumvention determination.  Consistent with the aforementioned underlying policy objectives of the  
Act, including the protection of the revenue, \161\ Commerce has decided  that it is not appropriate 
to require notifying CBP of negative  preliminary circumve ntion determinations with instructions to G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  terminate  the suspension of liquidation for any entries previously suspended by  CBP and to refund 
any cash deposits paid as estimated duties.  
------------------------------------------------------------------------ --- 
 \161\ Id. 
---------------------------------------------------------------------------  
 With respect to the argument that provisional measures are not  imposed following a negative 
preliminary determination in an  investigation, Commerce will not direct CBP to suspend liquidation 
of entries not already suspended by CBP following a negative preliminary  circumvention 
determination. However, any suspension of liquidation  ordered by CBP pursuant to its own authority 
will be left undisturbed  to preserve the st atus quo until the conclusion of the circumvention  inquiry. 
We disagree with the commenters that argue the proposal is  contrary to the statute. As discussed 
above, Congress enacted section  781 of the Act to combat certain forms of circumvention of AD/CVD  
orders; however, neither section 781 of the Act nor any other provision  of the Act contains specific 
guidance regarding suspension of  liquidation and cash deposit requirements in the context of  
circumvention inquiries. The rules adopted herein are a reasona ble exercise of Commerce's 
discretion in light of the statutory aims to  prevent circumvention and evasion. Moreover, Commerce's 
final circumvention determination and any subsequent instructions to CBP will  clarify the appropriate 
status of such entries.  
 Consistent with Congress's intent when enacting the circumvention  statute, the proposal not to 
require Commerce to notify CBP of a  negative preliminary circumvention determination will help 
prevent  companies from eluding the payment of duties if Commerce ultimately  concludes in a final 
determination that the merchandise is  circumventing an order.   
 
(d) Clarifying the Product at Issue  
 
 One commenter opposes the proposal to suspend liquidation of  unliquidated entries of the 
"product at issue " witho ut any limitation  as to when the entries occurred. The commenter states 
that the proposed  regulations are vague because the language does not limit any new  suspension 
of liquidation instructions to only apply to unliquidated  entries made on or after the un derlying case 
order's  earliest suspension of liquidation. The commenter asserts that language  must be added to 
Sec. Sec.  351 .226(l)(2) and (3) that restricts the  imposition of suspension of liquidation and cash 
deposit requirements  to the entries of the applicable manufacturer or exporter. The  commenter 
claims that the United States is not entitled to AD/CVDs on  entries that are not covered by or subject 
to the order.  
 Response:  
 We have left paragraphs (l)(2) and (3) unchanged from how they were  proposed with respect 
to this issue. First, we agree with the commenter  that Commerce does have the authority to direct 
CBP to impose AD/CVDs  on entries that are not subject to an order by virtue of pre -dating the  first 
date of suspension associated with that order. Accordingly, such  retroactive suspension of liquidation 
and collection of cash deposits  would not be imposed on entries that predate the first date of  
suspension in the relevant AD and/or CVD proceeding. Second, the  reference to the "product at 
issue" in paragraphs (l)(2) and (3)  refers to the product that is the subject of the inquiry, and that 
for purposes of (l), the appropriate scope of products impacted, either on  a country -wide or 
company -specific basis, are discussed under revised  Sec.  351 .226(m), discussed below. Third, we 
do not disagree that AD/  CVDs or cash deposits may not be applied on entries not covered by or  
subject to the order; however, the commenter's assertion that Commerce  must limit the imposition 
of suspension of liquidation an d cash deposit  requirements to the entries of the applicable 
manufacturer or exporter  is incorrect. If Commerce determines that a product is subject to the  order 
following an affirmative circumvention determination, then it has  the authority to impose 
antidumping and/or countervailing duties to  entries of that product. Additionally, as Commerce 
explains below in  response to comments made on Sec.  351 .226(m), Commerce has the ability  to 
apply a remedy which is producer -specific, exporter -specific,  importer -specific, or a combination of 
any of those remedies Commerce  also has the ability to apply its circumvention determination on a  
country -wide basis to all products from the same country as the  particular product at issue and with 
the same relevant  physical  characteristics, and even to apply its circumvention determination to  
physically similar products as well (i.e., not physically identical in  all relevant characteristics). 
Therefore, Commerce need not limit its  ability to suspend liquidation for imports of merchandise 
found to be  circumventing an AD/CVD order under Sec.  351 .226(l)(2) and (3).   
 
 G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  (e) Notification to Sureties  
 
 One commenter requests that sureties be notified, either by  Commerce or CBP, at the time CBP 
is instructed to begin the suspension  or continue the suspension of liquidation of entries for AD/CVD  
purposes in the context of a circumvention inquiry. This commenter  argues that the duties demanded 
from sureties may be in amounts which  exceed the bond and without any prior notice  to the surety 
to allow for  participation in administrative proceedings and communication with the  bond principal, 
i.e., the importer, to address or satisfy AD/CVD  requirements. This commenter believes providing 
notice of any  suspension of liquidation ordered in the context of circumvention  inquiries will help 
sureties manage risk.  
 Response:  
 For the reasons discussed above regarding Sec.  351 .225(l), comment  12(f), in the context of 
scope, we have not modified paragraph (l) in  Sec.  351 .226 to include a requirement to notify the 
involved surety or  sureties that Commerce has instructed CBP to suspend or to continue to  suspend 
liquidation of entries for AD/CVD purposes. However, we note  that, under Sec.  351 .226(b) and 
(d)(3), sureties will b e notified of  Commerce's self -initiation of a circumvention inquiry or initiation 
of a circumvention inquiry based on a request through publication in the  Federal Register.  
13. Section 351.226(m) --Applicability of Circumvention Determinations;  Companion Or ders 
 Section 351.226(m) is the provision through which Commerce applies  circumvention 
determinations. Commerce received several comments on  this proposal, with some commenters 
expressing satisfaction that  Commerce indicated under the proposed Sec.  351 .226(m)(1) that it 
would  consider, based on the available record evidence, whether the  circumvention determination 
should be applied on a country -wide basis,  while others expressed concern with that language. For 
those commenters  advocating a country -wide application, they emphasize that a such an  analysis 
avoids repeated requests for circumvention inquiries on the  same product against exporters from 
the same country, thereby  conserving Commerce resources and ensuring the effectiveness of trade  
remedies. They further suggest that Commerce take the additional step  in the final regulations of 
making a country -wide application the  default remedy for most circumvention determinations, with 
an exception  only in rare cases for the application of a com pany-specific remedy.  
 Other commenters express concerns over the use of the country -wide remedy, asking 
Commerce to clarify the bases or criteria it would use  to determine when the use of a country -wide 
remedy versus when a  company -specific remedy is appr opriate. Some commenters even oppose it  
outright, arguing that the country -wide remedy is too harsh when the  majority of producers in a 
foreign country have not sought to  circumvent the United States' AD and CVD orders. Those 
commenters argue  that a compan y-specific remedy is more balanced, targeting only those  
participating in bad behavior.  
 Still other commenters suggest that Commerce limit a country -wide circumvention remedy to 
cases of repeated action and not apply the  country -wide remedy to circumventi on determinations in 
the first  instance. They emphasize that the facts surrounding most circumvention  allegations and 
findings are often exporter -specific, and only in rare  cases do they involve repeated activity.  
 In addition, some commenters suggest that  if Commerce does make a  country -wide remedy 
the default remedy, that it also create a mechanism  by which exporters may request exemption 
from that remedy.  In rebuttal,  other commenters agree with this suggestion and emphasize that 
because  many exporters o f the same merchandise have not engaged in any  circumventing activities, 
the creation of an exemption mechanism would  be a practical alternative when Commerce cannot 
individually analyze  all companies willing to participate in circumvention proceedings or  make a 
circumvention determination on a company -specific basis.  
 Several other commenters argue that Commerce should, in fact,  expand the remedies available 
to it in Sec.  351 .226(m) to include not  only country -wide remedies, company -specific remedies, 
and the use of  certifications, as described in greater detail in Sec.  351 .228 of  these regulations, but 
also a remedy which takes into consideration the  possibility of future circumvention and is applied 
to imports of  products similar to, but not the same as, the particular product  subject to the 
circumvention inquiry. Specifically, those commenters  cite to the remedy Commerce applied in  Wire 
Rod from Mexico. \162\ In that case, Commerce determined that to  prevent the repeated 
circumvention by a company  of the AD order, it  found that all wire rod under 4.75 mm in diameter, 
including wire rod  with a diameter less than 4.4. mm, produced and/or exported by that  company, 
to be merchandise altered in minor respects and within the  class or kind of merchandise subject to 
the order. The commenters argue  that because discovering circumvention normally requires 
significant  resources and time, Commerce should not have to wait for a company to  circumvent an 
order in the same general manner again, as that could  result  in the repetitive undermining of U.S. G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  trade remedy laws. They  argue that Commerce should be able to foreclose predictable, potential  
circumvention schemes by applying a country -wide remedy that applies  not only to identical 
products, but similar products,  as well.  Furthermore, they rebut the claims that Commerce should 
have any  "default " remedy under Sec.  351 .225(m), because the appropriateness  of a remedy should 
be one that is determined on a case -by-case basis.  
------------------------------------------ ---------------------------------  
 \162\ Carbon and Certain Alloy Steel Wire Rod from Mexico: Final  Affirmative Determination of 
Circumvention of the Antidumping Duty  Order, 84 FR 9089 (Mar. 13, 2019), and accompanying 
Issues and  Decision Memorandum (Wire Rod from Mexico); see also Carbon and  Certain Alloy Steel 
Wire Rod from Mexico: Preliminary Affirmative  Determination of Circumvention of the Antidumping 
Duty Order, 83 FR  53030 (Oct. 19, 2018), and accompanying Preliminary Decision  Memorandum 
(Wire Rod from Mexico Preliminary Memorandum).  
---------------------------------------------------------------------------  
 Another commenter rebuts the arguments from some commenters that  country -wide remedies 
should be applied only to parties who have  repeatedly b een found to circumvent an order. It notes 
that producer - specific circumvention findings are often ineffective because parties  merely rearrange 
and shift operations to continue circumventing after  Commerce has issued a circumvention finding. 
It highlights  the importance of country -wide remedies to ensure relief from  circumvention, when 
record evidence supports such an application.  
 Finally, one commenter expresses its support for Commerce's ability  in Sec.  351 .226(m)(2) to 
request information concerning the product  that is the subject of the circumvention inquiry for 
purposes of an  administrative review under Sec.  351 .213. 
 Response:  
 Upon consideration of the various arguments on this provision, we  have determined to revise 
Sec.  351 .226(m)(1 ). We agree with the  commenters that Commerce has multiple potential 
remedies available to  it upon an affirmative finding of circumvention, each of those listed  in the final 
rule which may be combined with certain others listed if  the facts warrant such an  application. There 
may be other options for  remedies, as well, so it is important to emphasize that this list is  not 
exhaustive. Further, although the rule applies to products "from the same country, " this language is 
not meant to delineate only the  country of export. It could mean the country of export, but it could  
also mean the country of production or country of further processing,  depending on the product at 
issue and the facts in a given case. It  is not uncommon for products produced or further processed 
in one country  to be transshipped and exported to the United States through another  country. In 
that scenario, regardless of the reported country of export  to the United States, if a product at is sue 
was found to be  circumventing an AD and/or CVD order, that merchandise could be  considered 
"from" the country of production or further processing,  and remedies under this provision could 
apply to those imported  products.  
 Commerce has the ability to ap ply a remedy which is producer - specific, exporter -specific, 
importer -specific, or a combination of any  of those remedies, such as applying a circumvention 
determination to  merchandise produced and exported by a particular company, or  merchandise 
produced by one company, exported by a second, and imported  by a third. We have, therefore, 
included all of these options in the  regulation.  
 Furthermore, Commerce has the ability to apply its circumvention  determination on a country -
wide basis to all products from  the same  country as the product at issue and with the same relevant 
physical  characteristics. When Commerce uses the term "relevant " here, it  means that if Commerce's 
circumvention determination focused on  particular physical characteristics, such as the height and 
width of  the particular product, then those are the physical characteristics  which are the "same " and 
"relevant " for purposes of a country -wide application, regardless of producer, exporter, or 
importer. \163\ 
---------------------------------------------------------------------------  
 \163\ In other words, two products with the same height or width  might be considered the 
"same, " despite different colors or  weights, if those additional physical characteristics are not  
relevant to Commerce's circumvention determination.  
---------------------------------------------------------------------------  
 We agree with commenters who argue that Commerce has an additional  practice, as reflected 
in Wire Rod from Mexico, wher e it may determine  that based on record evidence and to prevent 
future evasion concerns,  the appropriate remedy should include products which are similar to the  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  circumventing merchandise. We have incorporated that option into the  regulation as Sec.  
351.226(m)(1)(iii), and also provided that Commerce  may apply that option on a country -wide basis.  
 Commerce frequently uses certifications in conjunction with other  remedies in response to 
affirmative circumvention determinations. Thus,  we have added reference to that remedy as well in 
Sec.  351 .226(m)(1).  Further, we have used the conjunction "and" between these remedies,  rather 
than "or," because Commerce also has the authority to apply a  remedy which is a combination of 
two or more of these remedies, such  as, for example, the use of certifications under Sec.  351 .228 
and the  country -wide remedy under Sec.  351 .226(m)(1)(i).  
 Additionally, Commerce has determined not to make any of these  options a "default " option. 
We agree with the commenters who argue  that Commerce should maintain flexibility in applying 
remedies to  address its circumvention determinations on a case -by-case basis. For  example, there 
may be cases in which Commerce finds that the  circumvention of an order by a particular product 
was unique to  a particular exporter, producer, or importer, and that it is unlikely  that other producers 
or exporters would or could engage in the same or  similar forms of circumvention in the future. In 
that situation,  Commerce might determine that the most appropriat e remedy to apply in  that case 
is a company -specific application. On the other hand,  Commerce might conclude that the observed 
circumvention could be  replicated by other producers, exporters, or importers of the same  product, 
and, therefore, determine that  the application of a country - wide remedy is appropriate.  
 The remedy which Commerce may apply with potentially the greatest  impact, however, is that 
of the remedy used in Wire Rod from Mexico. In  that case, Commerce had initially determined in an 
earlier  circumvention determination that a producer and exporter had  circumvented the Wire Rod 
from Mexico order through its production and  export of wire rod with actual diameters between 
4.75 mm and 5.00  mm.\164\ Commerce, therefore, expanded the scope o f the order through  its 
circumvention determination to cover those products. Subsequently,  the same company produced 
and exported wire rod with a 4.4 mm diameter,  which Commerce found was a minor alteration to 
circumvent, yet again,  the Wire Rod from Mexico order. In determining the appropriate remedy,  
Commerce considered the fact that the producer/exporter had now been  determined twice to have 
circumvented the Wire Rod from Mexico order,  engaging in efforts to evade the payment of AD 
duties. Further, there was evidence on the record that at least one other producer made wire  rod 
with a diameter less than 4.4 mm. Commerce concluded that the  record reflected that a remedy 
was necessary to ensure that the  exporter/producer at issue in that case would not engage in further  
circumvention of the Wire Rod from Mexico order in the future. Thus,  Commerce concluded that the 
"history of the proceeding " indicated  that "limiting " the "affirmative circumvention finding in this  
inquiry to wire rod with a diameter grea ter than or equal to 4.4 mm and  less than 4.75 mm could 
allow for further circumvention of the Order " if the exporter/producer were permitted "to again make 
another  marginal change to the diameter of its wire rod. " \165\ 
----------------------------------- ----------------------------------------  
 \164\ See Carbon and Certain Alloy Steel Wire Rod from Mexico:  Affirmative Final Determination 
of Circumvention of the Antidumping  Duty Order, 77 FR 59892 (Oct. 1, 2012), and accompanying 
Issues and  Decision Memorandum.  
 \165\ See Wire Rod from Mexico Preliminary Memorandum (emphasis  in original).  
---------------------------------------------------------------------------  
 In reaching that decision, Commerce explained the legal basis for  its determina tion that it 
should apply this particular remedy under  these specific facts. Citing to the legislative history 
accompanying  the Omnibus and Trade Competitiveness Act in 1988, Commerce explained  that 
Congress was concerned about preventing "circumvention an d diversion " of United States trade 
laws, and the undermining of the  effectiveness of trade remedies through "'loopholes,' i.e., foreign  
companies evading orders by making slight changes in their method of  production, because such 
scenarios "seriously unde rmine the  effectiveness of the remedies provided by the antidumping and  
countervailing duty proceedings. . . . " \166\ Accordingly, Commerce  explained that as the agency 
"vested with authority to administer the  antidumping laws in accordance with the legisl ative intent " 
and, it  "has a certain amount of discretion [to act] ... with the purpose in  mind of preventing the 
intentional evasion or circumvention of the  antidumping duty law. " \167\ 
---------------------------------------------------------------------------  
 \166\ Id. (citing S. Rep. No. 100 -71, at 101 and H.R. Rep. No.  100-576, at 600). Commerce 
also noted that in the SAA, Congress  recognized that "aggressive implementation of [the 
circumvention  statute] by the Commerce Department can foreclose these practices. " See id. (citing 
the SAA at 892 -95). G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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   \167\ See id. (citing Tung Mung, 219 F. Supp. 2d at 1343  (quoting Mitsubishi I, 700 F. Supp. 
at 555), aff'd in Mitsubishi II,  898 F.2d at 1583).  
---------------------------------------------------------------------------  
 Furthermore, Commerce explained that in "enacting the  circumvention provisions, Congress did 
not intend to allow foreign  companies to avoid antidumping duties by advantageo usly modifying 
their manufacturing process to produce merchandise altered in minor respects  in form or appearance 
from that which is covered by the order. In  similar circumstances, Commerce has found it 
appropriate to implement  measures necessary to preven t future circumvention. " \168\ Commerce,  
therefore, concluded that the "circumstances of this proceeding  require Commerce to exercise its 
discretionary authority under the  antidumping duty law in a manner that is tailored to prevent future  
evasion or circu mvention of the Order by " the producer/exporter at  issue. \169\ 
---------------------------------------------------------------------------  
 \168\ See id. (citing to Affirmative Final Determination of  Circumvention of the Antidumping 
Duty Order on Certain C ut-to-Length  Carbon Steel Plate from the People's Republic of China, 76 FR 
50996,  50997 (August 17, 2011), which was an affirmative circumvention that  was applied to all 
producers in the subject country where  circumvention occurred repeatedly by multiple parties 
producing and  importing different specifications of cut -to-length plate that used  boron).  
 \169\ Id. (citing also to Appleton Papers, Inc. v. United  States, 929 F. Supp. 2d 1329, 1337 
(CIT 2013) ( "Commerce has a  certain amount of discretio n to act in order to 'prevent [] the  
intentional evasion or circumvention' of the Act. To that end,  Commerce may impose measures . . . 
where it believes they will be  effective in preventing future circumvention of its orders. ") (internal 
citations omitted) ). 
---------------------------------------------------------------------------  
 In drafting the remedies listed in paragraph (m), we have  determined that there may be 
situations in which Commerce applies its  circumvention determinations to similar products  not only 
on an  exporter/producer basis, as it did in Wire Rod from Mexico, but also on  country -wide basis. 
For example, if Commerce determines that more than  one producer or exporter has consistently 
altered merchandise related  to a single case, such a co nclusion might lead Commerce to apply a  
"similar product " remedy to the country as a whole, regardless of  producers, exporters, or importers. 
Likewise, Commerce might decide to  apply a certification requirement under Sec.  351 .228 alongside 
a country -wide determination that covers the same products or a country - wide determination that 
covers similar products. As we have indicated,  the most important factor is that Commerce has the 
flexibility to apply  a remedy in accordance with a circumvention determination on a case -by- case 
basis which it finds to be appropriate given the facts on the  record and its policies and practices.  
 In light of these changes to our regulations, we have not adopted  the suggestion by multiple 
parties to cre ate a new procedure by which  to review additional exporters or producers to determine 
if parties  that have not engaged in any circumventing activities should be exempt  from country -wide 
determinations. Still, we recognize that, in some  circumstances, Comme rce uses the certification 
program, as described in  Sec.  351 .228 of these regulations, to allow parties who have not  engaged 
in the practices which Commerce determined were circumventing  an order to certify that they did 
not participate in such conduct.  Additionally, as discussed below under Sec.  351 .228, parties can 
seek a changed circumstances review or raise issues regarding ongoing  certification requirements 
in the context of an administrative review,  as appropriate.  
 Finally, we have changed the term "merchandise at issue " to "product at issue " in paragraph 
(m)(2) to use the same terminology as  that used in Sec.  351 .226(m)(1) and other provisions of 
these  regulations.  
14. Section 351.226(n) --Service of Circumvention I nquiry Request;  Annual Inquiry Service List; 
Entry of Appearance  
 Section 351.226(n) Provides the service procedures for the  circumvention regulation. We 
received two comments on this provision.  
 First, one commenter requests that Commerce provide sureties  "interested party " status and 
allow them to receive notice under this  provision.  
 Second, another commenter points out that currently, Commerce  automatically places foreign 
governments on the segment of a proceeding  that commences under a CVD orde r, but under 
proposed Sec.  351 .226(m),  all circumvention determinations applicable to companion orders will 
be conducted on the record of the AD order. That commenter, therefore,  requests that Commerce G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  modify Sec.  351 .226(n) to automatically place  foreig n governments on the segment of the AD 
proceeding in which the  circumvention inquiry is conducted for both companion orders.  
 Response:  
 In response to the surety issue, as discussed in response to this  same commenter under Sec.  
351.225(l) and (n) and oth er provisions, we  have not provided sureties with "interested party " status 
because,  among other  reasons, section 771(9) of the Act lists the parties who are  "interested parties " 
under the AD and CVD laws, and surety companies  are not included on that list.  
 On the other hand, as we explained above, we have modified Sec.  351 .225(n) to automatically 
include foreign governments on the annual  inquiry service list for AD or CVD proce edings after the 
foreign  governments' first request to be on that list; meaning that if they are  on that list they will 
receive copies of all circumvention inquiry  requests. In light of the fact that foreign governments will 
get notification of all such re quests, we disagree that they should also  automatically be placed on 
the service list of particular segments of  AD or CVD proceedings. Like petitioners and all other 
interested  parties, if they decide to participate in the circumvention inquiry  segment of the 
proceeding, foreign governments will have an opportunity  to timely request placement on a 
segment -specific service list.  
 In addition, in addressing comments on proposed Sec.  351 .226(n)(2), we realized that we had 
not included the self -initiation  of circumvention inquiries in the description of determinations which  
lead to the establishment of a segment -specific service list in the  Proposed Rule. Such an exclusion 
was an oversight. Accordingly, we have  added language to that provision to that effect in  these final  
regulations.  
15. Section 351.226(o) --Suspended Investigations; Suspension Agreements  
 Commerce received no comments on this provision. We have made minor  modifications to this 
paragraph, however, to bring it into conformity  with the similar provisions of Sec. Sec.  351 .225(p) 
and 351.227(o).  
Covered Merchandise Referrals --Sec.  351 .227 
 Section 351.227 addresses procedures when Commerce receives a  covered merchandise 
referral from CBP under section 517 of the Act. As  explained in the Proposed Rule, \170\ Commerce 
and CBP each have their  own independent authorities under the AD/CVD statutory framework to  
address the circumvention and evasion of AD/CVD orders. Section 517 of  the Act establishes a formal 
process for CBP to  investigate potential  duty evasion of AD/CVD orders. During an EAPA 
investigation, if CBP is  unable to determine whether the merchandise at issue is "covered  
merchandise " within the meaning of section 517(a)(3) of the Act,  pursuant to section 517(b)(4)(A)  
of the Act, CBP shall refer the matter  to Commerce to make a covered merchandise determination 
(covered  merchandise referral). In the Proposed Rule, Commerce proposed adopting  new Sec.  
351.227 to address procedures and standards specific to  covered merchandise referrals that 
Commerce receives from CBP in  connection with an EAPA investigation. \171\ To summarize, in 
proposing  this new regulation, Commerce took into account considerations relating  to flexibility in 
requesting the information tha t Commerce needs in  making a covered merchandise determination, 
the timeliness of  Commerce's covered merchandise determination in response to a CBP  referral, and 
the need to afford parties opportunities to submit  evidence and argument for Commerce's 
consid eration and allow Commerce  sufficient time to consider such evidence and argument for 
purposes of  reaching a well -reasoned determination. \172\ 
---------------------------------------------------------------------------  
 \170\ See Proposed Rule, 85 FR 49472  at 49489.  
 \171\ Id. at 49489 -91. 
 \172\ Id. at 49489 -90. 
---------------------------------------------------------------------------  
 The Proposed Rule also explained that there is a potential  significant overlap between the inquiry 
that Commerce underta kes in  response to a covered merchandise referral through a covered  
merchandise inquiry, a scope inquiry conducted under Sec. 351.225, and  a circumvention inquiry 
conducted under Sec.  351 .226. Congress has  directed Commerce to make covered merchandise 
determinations pursuant  to its existing authority under the Act, \173\ and, thus, Commerce has  
utilized its authority and procedures for issuing scope and  circumvention determinations to 
determine whether a product is  "covered merchandise. " Accordingly, many provisions in Sec.  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  351.227 were crafted to mirror the corresponding provisions in Sec. Sec.  351 .225 and 351.226, 
which have been further revised in this final  rule. 
---------------------------------------------------------------------- ----- 
 \173\ See section 517(b)(4)(A)(i) of the Act (providing that,  upon referral from CBP, Commerce 
shall ". . . determine whether the  merchandise is covered merchandise pursuant to the authority of  
[Commerce] under subtitle IV [of the Act.] "). 
--------- ------------------------------------------------------------------  
 We received numerous comments and rebuttal submissions on the  proposed adoption of Sec.  
351.227, some in favor and some in  opposition. Below, we briefly discuss each provision, address 
any comments received, and, where appropriate, explain any changes to the  Proposed Rule in 
response to comments. In addition, we explain  additional modifications to the Proposed Rule where 
we have determined  that such amendments brought Sec.  351 .227 into gr eater conformity with  
scope and circumvention regulations Sec. Sec.  351 .225 and 351.226, or  otherwise provided greater 
clarity to these regulations.  
1. Section 351.227(a) --Introduction  
 Paragraph (a) is an introductory provision to Sec.  351 .227, which  briefly describes the 
framework of CBP's EAPA investigations and  covered merchandise referrals under section 517 of the 
Act and the  procedures for Commerce's covered merchandise inquiries a nd determinations. We 
received no comments on Sec.  351 .227(a) and no  changes are being made to this provision in this 
final rule.  
2. Section 351.227(b) --Actions With Respect to Covered Merchandise  Referral  
 Under Sec.  351 .227(b) of the Proposed Rule, Com merce proposed  taking one of the following 
three actions within 15 days after  receiving a covered merchandise referral that Commerce 
determines to be  sufficient: \174\ (1) Initiate a covered merchandise inquiry; (2) self - initiate a 
circumvention inquiry in  accordance with Sec.  351 .226(b);  or (3) address the referral in an ongoing 
segment of a proceeding  (e.g., a scope inquiry under Sec.  351 .225 or a circumvention inquiry  under 
Sec.  351 .226). After consideration of comments on the Proposed  Rule, Commerce is adopting 
certain changes to Sec.  351 .227(b) in this  final rule.  
---------------------------------------------------------------------------  
 \174\ As explained in the Proposed Rule, in determining whether  a covered merchandise referral 
is sufficient, Commerce may consider,  among other things, whether the referral has provided the 
name and  contact information of the parties to CBP's EAPA investigation,  including the name and 
contact information of any known  representative acting on behalf of  such parties; an adequate  
description of the alleged covered merchandise; identification of  the applicable AD and/or CVD 
orders; and any necessary information  reasonably available to CBP regarding whether the 
merchandise at  issue is covered merchandise. S ee Proposed Rule, 85 FR 49472 at  49490.  
---------------------------------------------------------------------------  
 First, upon further consideration, we find it reasonable to  increase the time period during which 
Commerce must decide what action  to take upon receipt of a sufficient covered merchandise referral 
from 15 days to 20 days. In the Proposed Rule, we explained that, although  the EAPA does not 
prescribe timing requirements for Commerce, we took  timeliness into account in drafting the 
proposed  deadlines and  procedures in Sec.  351 .227.\175\ While timeliness continues to be a  
significant consideration in drafting this final rule, increasing the  proposed 15 -day deadline to 
20 days will give Commerce the time it  needs at this initial stage while a lso ensuring that Commerce 
takes  swift action after receiving a sufficient covered merchandise referral.  This 20 -day deadline 
remains shorter than the deadlines at similar stages in  scope inquiries under Sec.  351 .225(d) (30 
days with an inquiry deemed  initiated on day 31) and circumvention inquiries under Sec.  351 .226(d)  
(30 days with the possibility of a 15 -day extension).  
---------------------------------------------------------------------------  
 \175\ See Proposed Rule, 85 FR 49472 at 49489.  
--------- ------------------------------------------------------------------  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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   Second, we are removing one of the three actions in Sec.  351 .227 that Commerce proposed 
to take upon receiving a sufficient covered  merchandise referral --paragraph (b)(2) that had provided 
that Commerce  may self -initiate a circumvention inquiry in accordance with Sec.  351 .226(b). To be 
clear, Commerce retains the authority and discretion  to self -initiate a circumvention inquiry pursuant 
to Sec.  351 .226(b)  if it determines from ava ilable information that an inquiry is  warranted. However, 
we are adopting an approach which will allow  Commerce to immediately initiate a covered 
merchandise inquiry within  20 days of receipt of a sufficient referral and conduct a circumvention  
analysis in  reaching a covered merchandise determination. Specifically,  under Sec.  351 .227(b)(1), 
when read in conjunction with paragraph (f),  Commerce may initiate a covered merchandise inquiry 
and rely on either  the scope analysis described under Sec.  351 .225(j) or (k), or the  circumvention 
criteria under section 781 of the Act (as reflected in  paragraphs (h), (i), (j), and (k) of Sec.  
351.226), in issuing a  covered merchandise determination. Importantly, initiation of a covered  
merchandise inquiry simply allows Commerce to begin its inquiry into  the appropriate analysis to 
use for its covered merchandise  determination. In other words, Commerce does not need to have  
identified, at this early stage of the proceeding, before the benefit  of evidence and argument 
presented by interested parties, whether to  conduct a scope or circumvention analysis. Rather, 
Commerce will  consider the appropriate analysis on a case -by-case basis.  
 This framework, coupled with the expedited deadlines for completion  of a covered merchandis e 
inquiry under Sec.  351 .227(c) (a maximum  deadline of 270 days, rather than a maximum deadline 
of 365 days under  Sec.  351 .226(e) for completion of a circumvention inquiry), means that  
Commerce can still apply the same analysis and reach the same  determination it would if it self -
initiated a circumvention inquiry,  but on an expedited basis. An additional consideration informing 
this approach is that, although a covered merchandise referral may be found  sufficient for purposes 
of initiating a covere d merchandise inquiry, a  referral likely will not have all the information needed 
regarding the  elements necessary for a circumvention determination under section 781  of the Act, 
as required for self -initiation of a circumvention inquiry  under Sec.  351 .226(b).\176\ Thus, under 
this preferred approach  described in Sec.  351 .227(b)(1), Commerce can initiate its covered  
merchandise inquiry, collect information and arguments from interested  parties regarding either a 
scope analysis or the elements necessary fo r a circumvention determination (or both), and issue a 
determination on  an expedited basis. For these reasons, we have removed reference to  Sec.  
351.226(b) in Sec.  351 .227(b).  
---------------------------------------------------------------------------  
 \176\ This is because, for example, the information CBP provides  with its referral may pertain 
only to a single company, may rely  heavily on BPI, or may not provide the kind of detail Commerce 
might  need to self -initiate a circumvention inquiry.  
----------- ----------------------------------------------------------------  
 The one alternative to Sec.  351 .227(b)(1) is provided in Sec.  351 .227(b)(2) (paragraph (b)(3) 
in the Proposed Rule). Under this  alternative, Commerce envisions that a scope or circumventio n 
inquiry  may already be underway at the time Commerce receives a sufficient  covered merchandise 
referral. In this scenario, Commerce may elect to  address the referral in an ongoing segment of the 
proceeding, rather  than starting at the beginning of a new inquiry. Under such a scenario,  as 
provided under Sec.  351 .227(e)(3), Commerce would transmit a copy  of the final action in that 
segment to CBP in accordance with section  517(b)(4)(B) of the Act.  
 These changes simplify the procedures for covered merchandise  referrals and still provide for 
the flexibility that Commerce  endeavored to create in the Proposed Rule. The remaining changes to  
Sec.  351 .227(b) consist of minor revisions to the text of the two  remaining subparagraphs and 
conforming changes required after removal  of proposed Sec.  351 .227(b)(2).  
 
(a) Authority To Self -Initiate a Circumvention Inquiry and To Integrate  Covered Merchandise 
Referrals Into Other Segments  
 
 One commenter asserts that Commerce is not authorized to use scope  or circumvention tools 
to address covered merchandise referrals. This  commenter opposes the covered merchandise 
regulations on the basis that  CBP's EAPA investigations are largely conducted in secret and these  
investigations do not conform to Commerce's unfai r trade practice or  the AD Agreement. This 
commenter appears to argue that Commerce should  not pursue any additional fact -finding inquiries 
in addition to CBP's  own inquiry, claiming that the legislative history of section 517 of  the Act has 
made it clear that either Commerce or CBP was intended to  conduct investigations of evasion, but 
not both. This commenter argues  that Commerce's own factual inquiry is a waste of resources and 
a burden on the parties in an EAPA investigation. This commenter further  argues that EAPA -covered G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  merchandise referrals should not be  intertwined with a circumvention inquiry or any other ongoing 
segment  of a proceeding. In the alternative, this commenter argues that  Commerce should not be 
permitted to self -initiate a circumvention  inquiry unless it can meet the requirements set forth under 
proposed  Sec.  351 .226(c)(2). This commenter also argues that Commerce should  refrain from 
conducting a circumvention inquiry within the framework of  an EAPA investigation because of the 
harsh consequences of EAPA  investigations. The commenter claims that the proposed regulatory  
provision requiring that Commerce merely believe that an inquiry is  "warranted " to initiate invites 
an abuse of Commerce's self -given  authority to self -initiate a circumvention inquiry. The commenter  
asserts that if Commerce cannot resolve the scope issue that is the  basis of CBP's covered 
merchandise referral within a reasonable time,  then CBP's EAPA investigation should be concluded 
with no finding of  evasion. Aft er such a conclusion, Commerce could then conduct its  circumvention 
inquiry within the framework of its own statutory  authority. This commenter also made general 
comments about the  differences between CBP's and Commerce's authority and claimed that  
Commerc e does not have the authority to intertwine EAPA -covered  merchandise referrals and 
AD/CVD proceedings.  
 A few commenters assert that the Proposed Rule does not explain why  a referral from CBP 
should be treated differently, nor does the  Proposed Rule justif y Commerce's authority to do so. 
Another commenter  argued that Commerce needs to distinguish between its different  proceedings, 
including scope, circumvention, and covered merchandise  inquiries, in order to ensure predictability 
and legal certainty for  stakeholders. This commenter requested clarification on the implication  that, 
in its response to CBP on covered merchandise referrals, Commerce  may rely on varying analyses 
regarding country of origin, scope  rulings, or circumvention.  
 Several commenters rebu t the assertion that Commerce cannot self - initiate a circumvention 
inquiry or  integrate covered merchandise referrals into other segments of the  proceeding. They 
argue that Congress authorized CBP to make a covered  merchandise referral to Commerce so that 
Commerce may determine whether  the products are covered by the scope of an order. They note 
that nothing precludes Commerce from relying on information from an EAPA  investigation to initiate 
an inquiry under its own authority. They  state that U.S. gov ernment agencies must take a 
coordinated approach to  enforce trade laws and protect domestic industries. They also state  that 
arguments that EAPA investigations and Commerce's proceedings  should never be intertwined are 
irrelevant, legally flawed, and shou ld be dismissed.  
 Response:  
 We disagree with the commenters that argue Commerce should not  conduct a covered 
merchandise inquiry in response to a covered  merchandise referral from CBP. As explained in the 
Proposed Rule, \177\ pursuant to section 421 of the  TFTEA/EAPA, section 517 was added to the  Act 
and establishes a formal process for CBP to conduct an EAPA  investigation. If CBP is unable to 
determine whether the merchandise at  issue is covered merchandise within the meaning of section 
517(a)(3) of  the Ac t, then section 517(b)(4) of the Act requires CBP to make a  covered merchandise 
referral to Commerce. Pursuant to section  517(b)(4)(A)(i) of the Act, Commerce determines whether 
merchandise is  covered by the scope of an order "pursuant to the authority of the administering 
authority under title VII. " Title VII of the Act  provides the basis for Commerce's authority to 
administer the AD/CVD  laws, including making class or kind determinations. \178\ Thus,  Congress 
expressly provided that, in answering a covered  merchandise  referral, Commerce should use its 
existing authority to determine  whether the merchandise at issue is covered by the scope of the 
order.  In doing so, Congress did not limit Commerce in the procedures that it  may use to determine 
whether the merchandise at issue is covered by the  scope of an order.  
---------------------------------------------------------------------------  
 \177\ See Proposed Rule, 85 FR 49472 at 49489.  
 \178\ Id. at 49475, 49484; see also section 701(a) of the Act;  section 70 6(a)(2) of the Act; 
section 731(a) of the Act; section  736(a)(2) of the Act; and section 771(25) of the Act.  
---------------------------------------------------------------------------  
 The commenter's arguments regarding the legislative history and  whethe r Commerce should 
be pursuing any fact -finding inquiry in  relation to a covered merchandise referral from CBP are 
contrary to  Congress's intent as expressed in the language of section 517 of the  Act. When CBP 
submits its referral to Commerce, Commerce is c harged  with determining if the merchandise at issue 
is subject to the scope of  an order. If Commerce could not request information from parties, and  
conduct its own fact -finding inquiry, then it would be unable to  perform its function under the statute 
to answer CBP's referral.  Commerce's existing authority allows it to conduct its own fact -finding  
inquiry to make a class or kind determination and, as explained in the  Proposed Rule, Sec.  351 .227 
allows for flexibility in relying on the  standards for scope issues under Sec.  351 .225 or circumvention G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  issues  under Sec.  351 .226, as appropriate, in issuing a covered merchandise  determination. While 
Commerce has only received a limited number of  these referrals to date, analyzing a covered 
merchandise referral u nder these criteria is consistent with how Commerce has answered covered  
merchandise referrals. \179\ For further clarity, as provided in adopted  Sec.  351 .227(b)(2), 
Commerce may also address a covered merchandise  referral in the context of an ongoing segm ent 
of the proceeding.  Furthermore, as discussed below under Sec.  351 .227(d)(5)(ii), Commerce  may 
also rescind a covered merchandise inquiry and address a covered  merchandise referral in another 
segment of the proceeding, as  appropriate.  
---------------------------------------------------------------------------  
 \179\ Commerce has addressed covered merchandise referrals using  both scope and 
circumvention analyses. See, e.g., Wooden Bedroom  Furniture From the People's Republic of China: 
Notice of Covered  Merchandise Referral, 83 FR 9272 (March 5, 2018) (Wooden Bedroom  Furniture); 
Hydrofluorocarbon Blends From the People's Republic of  China: Notice of Covered Merchandise 
Referral, 83 FR 9277 (March 5,  2018) (HFC Blends); and Diamond Sawblade s and Parts Thereof 
From the  People's Republic of China: Notice of Covered Merchandise Referral,  83 FR 9280 (March 5, 
2018) (Diamond Sawblades).  
---------------------------------------------------------------------------  
 Nor do we agree with commenters' a rgument that Commerce does not  have the authority to 
self-initiate a circumvention inquiry in the  context of a covered merchandise referral. As explained 
above, Congress  authorized Commerce to determine whether the merchandise at issue is  covered 
by the sc ope of an order, and Congress did not limit Commerce's  discretion in determining the 
appropriate procedures to make a covered  merchandise determination. In any event, as explained 
above, Commerce  has removed the express reference to self -initiation of a ci rcumvention  inquiry 
under Sec.  351 .227(b) for purposes of streamlining its  procedures because a circumvention analysis 
can be performed, on an  expedited basis, in a covered merchandise inquiry as provided for under  
Sec.  351 .227(b) and (f). Nor do we find  persuasive the argument that  Commerce must refrain from 
conducting a circumvention inquiry within  the framework of an EAPA investigation because of the 
"harsh  consequences " of an EAPA investigation. Notably, while Commerce's and  CBP's duties and 
responsibilities under the AD/CVD statutory framework  are often related, Commerce and CBP are 
U.S. government agencies that  operate independently and pursuant to distinct statutory m andates 
and authorities. CBP's EAPA investigation and Commerce's segment answering  a covered 
merchandise referral are two separate proceedings and each  proceeding addresses different issues. 
CBP's EAPA investigation  addresses evasion concerns as outlined u nder section 517 of the Act.  This 
is distinct from, but aided by, Commerce's covered merchandise  inquiry (or another segment of the 
proceeding used to address a covered  merchandise referral), which determines whether 
merchandise is subject  to the scope of an order.  
 Additionally, the adoption of Sec.  351 .227 is intended to fit into  the current statutory scheme 
and the revised regulatory framework  adopted in this final rule, under which Commerce may already 
request  participation of interested parties and is sue a substantive  determination whether certain 
merchandise is covered by the scope of an  AD/CVD order.  
 We also disagree with a commenter's argument that if Commerce  cannot resolve the scope 
issue that is the basis of CBP's referral  within a reasonable time, then CBP's EAPA investigation 
should be  concluded with no finding of evasion, and that Commerce can then  examine whether the 
merchandise is circumventing an order. First, as  Commerce noted in the Proposed Rule, Congress 
did not prescribe t iming  requirements for Commerce to reach its covered merchandise  
determination. As contemplated in the Proposed Rule, there may be a  need for Commerce to seek 
further information to establish a more  detailed description of the merchandise at issue, or enga ge 
in a complex analysis, before determining whether the merchandise is covered  merchandise. 
Commerce is mindful that section 517(b)(4)(B) of the Act  instructs Commerce to promptly transmit 
its determination to CBP, and  that CBP's deadlines to complete its  EAPA investigation will be stayed  
pending completion of Commerce's covered merchandise determination. At  the same time, as 
explained further below in response to comments on  proposed paragraph (c), Commerce requires  
sufficient time to request necessary information, allow parties an  opportunity to comment and 
submit factual information, analyze the  issues and record evidence, and to issue a covered 
merchandise  determination. The deadlines established in paragraph (c) ensure that  Commerce will 
issue a covered merchandise determination within a  reasonable timeframe and are more expedient 
than the deadlines  established for scope and circumvention inquiries.  
 Second, this commenter's argument conflates the two different  proceedings. Under section 
517(b)(4)(A)(i) of the Act, Commerce is  tasked with determining whether the merchandise at issue G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  is covered by  the scope of the order, not determining whether covered merchandise has  entered the 
United States through evasion.  
 Finally, as noted above, Commerc e is not precluded from conducting  a covered merchandise 
referral in a circumvention inquiry as a means to  address CBP's covered merchandise referral. The 
commenter's argument to  the contrary suffers from the misconception that unliquidated entries  of 
products that circumvent an AD/CVD order and enter without the  payment of duties are beyond the 
reach of trade remedies unless and  until a domestic interested party alerts Commerce that 
circumvention is  occurring and Commerce actually initiates a circumvention  inquiry.  Congress 
enacted section 781 of the Act to combat certain forms of  circumvention of AD and CVD orders; 
however, neither section 781 of the  Act nor any other provision of the Act contains specific guidance  
regarding when merchandise found to be ci rcumventing an AD and/or CVD  order should be subject 
to the order. As discussed in great detail  above in our analysis under Sec.  351 .226(l), merchandise 
not covered  by the literal terms of an order may, under certain factual scenarios,  be subject to the 
imposition of AD/CVDs prior to the date a  circumvention inquiry is initiated. Moreover, Commerce's 
regulations do  not address CBP's independent authority to suspend liquidation for  purposes of its 
EAPA investigation under section 517 of the Act.  
 
(b) Participation of Interested Parties and Opportunity to Comment  Prior to Initiation  
 
 We received a few comments on proposed Sec.  351 .227(b) requesting  clarification on the 
participation of interested parties in the segment  of the proceeding used to addres s a covered 
merchandise referral, as  well as whether parties will have an opportunity to comment on a  covered 
merchandise referral prior to Commerce initiating a covered  merchandise inquiry. One commenter 
noted that in the Proposed Rule,  Commerce stated it  will decide whether to initiate an inquiry in  
response to a covered merchandise referral from CBP within 15 days.  This commenter requested 
that Commerce modify proposed Sec.  351 .227(b)  to notify interested parties on the annual inquiry 
service list of th e referral from CBP within 7 days of receipt of the referral. This  commenter also 
requested that Commerce provide parties an opportunity  to comment on the referral prior to 
initiating a covered merchandise  inquiry.  
 Another commenter rebutted the request t o provide notice to  petitioners and other interested 
parties on the annual inquiry service  list when Commerce receives a covered merchandise referral 
from CBP.  This commenter requested that we not allow these parties an opportunity  to comment on 
the covere d merchandise referral prior to initiating a  covered merchandise referral.  
 Response:  
 Commerce is not adopting the recommendation to notify interested  parties on the annual inquiry 
service list when Commerce receives a  covered merchandise referral from CBP. Nor is Commerce 
adopting the  recommendation to allow parties to comment on the covered merchandise  referral prior 
to initiating a covered merchandise inquiry. As  explained above, Congress authorized CBP to 
investigate evasion of AD/  CVD orders. I f CBP cannot determine whether the merchandise at issue 
is covered merchandise, then it is required to refer the inquiry to  Commerce and Commerce is 
required to make a covered merchandise  determination. Given this statutory directive, Commerce 
will not not ify parties or allow parties the opportunity to comment on the covered  merchandise 
referral prior to taking action in response to a referral.  Instead, Commerce will publish notice of its 
intent to address the  covered merchandise referral pursuant to Sec.  351.227(b) in the  Federal 
Register, allow parties the opportunity to enter an appearance  on the segment -specific service list, 
submit an APO application, and  review and comment on the referral in accordance with its outlined  
procedures.  
 Additionally, Comm erce disagrees with one commenter's claim that it  cannot allow any party 
that is not an interested party in CBP's EAPA  investigation to participate in a covered merchandise 
inquiry. As  explained above, pursuant to section 517(b)(4)(A)(i) of the Act,  Commer ce determines 
whether merchandise is covered by the scope of an  order "pursuant to the authority of the 
administering authority under  title VII. " Title VII of the Act provides the basis for Commerce's  
authority to administer the AD/CVD laws, including making class or kind  determinations. \180\ Thus, 
Congress expressly provided that Commerce  should use its existing authority in responding to a 
covered  merchandise referral from CBP. By statute, Commerce provides interested  parties the 
opportunity  to comment and participate in AD/CVD  proceedings. \181\ Commerce has provided 
additional explanation below  under proposed Sec.  351 .227(n) in response to this comment 
regarding  interested party participation in Commerce's segment of the proceeding  addressi ng a 
covered merchandise referral.  
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   \180\ See Proposed Rule, 85 FR 49472 at 49475, 49484; see also  section 701(a) of the Act; 
section 706(a)(2) of the Act; section  731(a) of the Ac t; section 736(a)(2) of the Act; and section 
771(25)  of the Act.  
 \181\ See section 782(g) of the Act ( "Information that is  submitted on a timely basis to the 
administering authority . . .  during the course of a proceeding under this title shall be subject  to 
comment by other parties to the proceeding within such reasonable  time as the administering 
authority . . . shall provide. "); see  also Mid Continent Nail Corp. v. United States, 712 F. Supp. 2d  
1370, 1375 (CIT 2010) ( "Congress has provided a fair proce ss for  commenting within the statutory 
language of [section 782(g) of the  Act]."). 
---------------------------------------------------------------------------  
3. Section 351.227(c) --Deadlines for Covered Merchandise Determinations  
 Section 351.227(c) of the Proposed Rule provided the deadline for  Commerce to conduct 
covered merchandise inquiries and also set forth  that Commerce could only extend the deadline if it 
determines that the  inquiry is extraordinarily complicated. After consideratio n of the  comments on 
the Proposed Rule, detailed below, and in light of changes  to Sec. Sec.  351 .225 and 351.226, 
Commerce is adopting certain changes  to Sec.  351 .227(c) in this final rule. For clarity, we first 
describe  the revisions to Sec.  351 .227(c)  in these introductory paragraphs,  before discussing 
comments and responses to comments below.  
 To conform with similar provisions in Sec. Sec.  351 .225 and  351.226, we have revised the 
heading of proposed Sec.  351 .227(c) from  "Time limits " to "Deadlines for covered merchandise  
determinations, " which better reflects the nature of this. Similarly,  as with Sec. Sec.  351 .225 and 
351.226, we have moved and made minor  revisions to the provision allowing for alignment of the 
deadlines for  a covered me rchandise  determination with the deadlines in another segment of a 
proceeding  from proposed Sec.  351.227(d)(6) to Sec.  351 .227(c)(3). Placing the  alignment 
provision within Sec.  351.227(c) clarifies that the deadline  for a covered merchandise determination 
will no longer apply if the  deadline for the covered merchandise inquiry is aligned with the  deadlines 
of another segment of the proceeding.  
 While we are adopting Sec.  351 .227(c)(1) and the initial 120 -day deadline for a covered 
merchandise  determination as proposed in the  Proposed Rule, as further explained below, we are 
changing Sec.  351 .227(c)(2) in this final rule to increase the number of days that  Commerce may 
extend the deadlines for issuing a final covered  merchandise determination from an additional 
60 days to up to an  additional 150 days (for a fully -extended total of 270 days).  Additionally, we are 
changing the standard for an extension under Sec.  351 .227(c)(2) from "extraordinarily complicated " 
to "good cause, " and have provided  examples of situations in which good cause exists to  warrant an 
extension. One example of good cause specific to covered  merchandise inquiries that we have added 
in Sec.  351 .227(c)(2)(iii)  refers to a situation where Commerce has determined to address a scope  
or circumvention issue from another segment of the proceeding (such as  a scope or circumvention 
inquiry) involving the same or similar  products in the covered merchandise inquiry. These changes 
provide  Commerce with flexibility as it continues to gain experience in this  new area of the law, 
establish procedures that remain more expedient  than those provided for scope inquiries under Sec.  
351.225 and  circumvention inquiries under Sec.  351 .226, and ensure that Commerce  will have 
suffic ient time to consider all evidence and arguments  submitted and reach a well -reasoned 
determination that may be subject  to judicial review.  
 As noted above, Commerce received numerous comments on Sec.  351 .227(c). Summaries of 
those comments, and responses to those  comments, are provided below.  
 
(a) Clarification of Applicable Deadlines  
 
 We received several comments asking for clarification of the  applicable deadlines when 
Commerce receives a covered merchandise  referral, or otherwise proposing alternative deadlines. 
Several  commenters generally request that Commerce complete covered merchandise  inquiries on 
an expedited basis. One group of commenters proposes that  Commerce complete a covered 
merchandise inquiry within 45 days of the  initiation notice public ation date, with an extension 
possibility of an  additional 45 days if the covered merchandise inquiry is  extraordinarily complicated. 
This group of commenters argues that an  expedited timeframe is appropriate and fair because 
parties have  already participa ted in the EAPA investigation for up to 360 days. Two  other 
commenters propose that the expedited timeframes in proposed  Sec.  351 .227(c) should apply to 
circumvention inquiries self -initiated  under proposed Sec.  351 .227(b)(2). One commenter requests  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  clarification of what time limits apply when Commerce addresses a  covered merchandise referral in 
an ongoing segment under proposed Sec.  351 .227(b)(3). Another commenter proposes that 
Commerce revise proposed  Sec.  351 .227(b)(3) to state that Com merce will address a covered  
merchandise referral in an ongoing segment only if Commerce determines  it can do so "without 
undue delay. " 
 Response:  
 We have not adopted the proposed modifications to further expedite  the deadlines in 
Commerce's covered merch andise inquiries. As explained  further below, we have made changes to 
Sec.  351 .227(c) to maintain  flexibility and to provide Commerce additional time to complete a  
covered merchandise inquiry. Specifically, although we are adopting the  initial 120 -day per iod under 
Sec.  351 .227(c)(1), we are increasing the  number of days that Commerce may extend the deadlines 
for issuing a  final covered merchandise determination under paragraph (c)(2) from an  additional 
60 days to up to an additional 150 days (for a fully - extended total of 270 days). Additionally, we 
are changing the standard  for an extension from "extraordinarily complicated " to "good cause, " and 
have provided examples of situations in which good cause  exists to warrant an extension. We believe 
an "extraordinarily  complicated " standard would unduly restrict Commerce's ability to  extend the 
deadline and, although the same standard is provided u nder new Sec.  351 .226(e)(2), that 
heightened standard applies only to an  extension that goes beyond the 300 -day deadline referenced 
in the  statute for a final circumvention determination. \182\ We believe that  applying the same 
standard in covered merchand ise inquiries at the 120 -day mark is unworkable and fails to recognize 
that covered merchandise  referrals will often present complex scope and circumvention issues.  
---------------------------------------------------------------------------  
 \182\ See sect ion 781(f) of the Act.  
---------------------------------------------------------------------------  
 As we stated in the Proposed Rule, in proposing Sec.  351 .227,  Commerce has taken into 
account considerations relating to flexibility  in Commerce's ability to request information necessary 
for its analysis  in reaching a covered merchandise determination, timeliness, and  scheduling that 
allows Commerce sufficient time to analyze the issues  and the record evidence and issue a 
determination that may be subject  to judicial review. \183\ Although the EAPA does not prescribe 
timing  requirements for Commerce to reach its covered merchandise  determinations, Commerce is 
mindful that section 517(b)(4)(B) of the  Act instructs Commerce to promptly transmit its 
determinatio n to CBP,  and that CBP's deadlines to complete its EAPA investigation will be  stayed 
pending completion of Commerce's covered merchandise  determination. Upon further consideration, 
Commerce believes additional  time may be necessary to allow Commerce sufficient time to request  
necessary information, allow parties an opportunity to comment and  submit factual information, 
analyze the issues and record evidence, and  to issue a covered merchandise determination. As 
explained below in our  discussio n of Sec.  351 .227(d), we have increased the time periods for  parties 
to comment and submit factual information. While these  increases provide interested parties with 
additional time to comment  and submit factual information to Commerce, they further short en the  
time Commerce has to consider and analyze such information, and to  subsequently issue a timely 
and well -reasoned covered merchandise  determination that may be subject to judicial review.  
-------------------------------------------------------------- -------------  
 \183\ See Proposed Rule, 85 FR 49472 at 49489 -90. 
---------------------------------------------------------------------------  
 Additionally, Commerce is cognizant that covered merchandise  inquiries are a new type of 
segment, and, to date, the limited number  of covered merchandise referrals Commerce has received 
have presented  novel or complex issues. Thus, Commerce believes it is important to  maintain 
flexibility to ensure sufficient time for Commerce to complete  a covered merchandise  determination. 
Nonetheless, Commerce continues to  be mindful of timeliness considerations and notes that even 
with the  additional extension days, the deadline to complete a fully extended  covered merchandise 
inquiry under Sec.  351 .227(b)(1) is shorter th an the deadlines to complete a fully extended scope 
or circumvention  inquiry under Sec. Sec.  351 .225 and 351.226. Moreover, it is not  necessarily the 
case that Commerce  will always extend the deadline for a covered merchandise inquiry,  especially 
when the inquiry is fairly simple, straightforward, and/or  uncontested. In such cases, Commerce 
might issue a covered merchandise  determination within the initial 120 -day period provided under 
Sec.  351 .227(c)(1). Nor is it necessarily the case that Commerce will extend  the deadline of a 
covered merchandise inquiry the full 150 days allowed  under Sec.  351 .227(c)(2) if Commerce is 
able to issue a covered  merchandise determination within a shorter timeframe.  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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   In response to the comment that the ex pedited time frames in Sec.  351 .227(c) should apply 
to circumvention inquiries self -initiated under  proposed Sec.  351 .227(b)(2), as discussed above, 
we have removed this  proposed subparagraph. However, to be clear, Commerce maintains its  
authority to sel f-initiate a circumvention inquiry under Sec.  351 .226(b) if it determines from 
available information that an inquiry  is warranted. If Commerce self -initiates a circumvention 
inquiry, Sec.  351 .226 would govern and the deadlines under Sec.  351 .226(e) woul d apply.  
 In response to the comment asking for clarification of what  deadlines apply when Commerce 
addresses a covered merchandise referral  in an ongoing segment of the proceeding, we clarify that, 
in that  situation, the deadlines in the ongoing segment w ould continue to  apply. By contrast, if 
Commerce initiates a covered merchandise inquiry  under Sec.  351 .227(b)(1), the expedited 
deadlines of Sec.  351 .227(c)  apply.  
 In response to the comment that Commerce should only address a  covered merchandise refer ral 
in an ongoing segment if it determines it  can do so "without undue delay, " we disagree that it is 
necessary to  revise the regulation to include this language. As noted above,  however, Commerce is 
mindful of timeliness considerations and will  continue to take these considerations into account when 
it receives a  covered merchandise referral from CBP.   
 
(b) Deadline for Issuance of Preliminary Covered Merchandise  Determinations  
 
 One commenter argues that Commerce should also have a deadline for  preliminary covered 
merchandise determinations when not issued  concurrently with the initiation of a covered 
merchandise inquiry.  According to this commenter, this would allow for greater certainty and  clarity 
because interested parties would know when to expect a  preliminary covered merchandise 
determination.  
 Response:  
 We have not adopted changes establishing a deadline for preliminary  covered merchandise 
determinations. As with scope inquiries, Commerce  is not required to issue a preliminary covered 
merchandise  determination in every case. When Commerce determines that a  preliminary covered 
merchandise determination is warranted, we do not  believe Commerce should be restricted by a 
specific deadline in the  regulations. Instead, we believe that Commerce should have the  flexibility 
to determine whether to issue a preliminary covered  merchandise determination. Furthermore, it 
would be unreasonable to  require Commerce to issue a preliminary covered merchandise  
determination when the facts on the rec ord are simple enough for  Commerce to issue a final covered 
merchandise determination on or  before 120 days after the date of notice of initiation of a covered  
merchandise inquiry is published in the Federal Register. Therefore, we  have not modified the 
deadlines in Sec.  351 .227(c) to mandate the  issuance of a preliminary covered merchandise 
determination.  
4. Section 351.227(d) --Covered Merchandise Inquiry Procedures  
 Section 351.227(d) of the Proposed Rule provides the procedures for  covered merchandise 
inquiries, including the deadlines for comments and  the submission of factual information, in the 
event such an inquiry is  initiated pursuant to paragraph (b)(1). Much of this provision tracks  the 
procedures provided for scope inquiries under Sec.  351 .225( f) and  circumvention inquiries under 
Sec.  351 .226(f). As discussed above, we  have considered the comments submitted regarding these 
procedures and  have determined to modify the proposed deadlines to allow interested  parties 
additional time to submit comme nts and factual information from  20 to 30 days under Sec.  
351.227(d)(1), from 10 to 14 days under Sec.  351 .227(d)(1) through (3), and from five to seven 
days under Sec.  351 .227(d)(2) and (3). This follows the same modifications to the  deadlines for 
comm ents and factual information in scope and  circumvention inquiries under Sec. Sec.  351 .225 
and 351.226. We have  also made a minor revision to the text of Sec.  351 .227(d)(3) to add  language 
that was inadvertently omitted in the Proposed Rule. Within  proposed Sec.  351 .227(d)(4), one 
commenter identified an incorrect  reference to "paragraphs (e)(1) through (3), " which we are 
correcting  to make reference to "paragraphs (d)(1) through (3) " as intended in  the Proposed Rule.  
 Additionally, in line with the  changes to similar provisions in  Sec. Sec.  351 .225 and 351.226, 
we have made changes to Sec.  351 .227(d)(5) to provide clarity and to establish more streamlined  
procedures in covered merchandise inquiries. Specifically, we have  limited this provision to provide 
that Commerce may rescind a covered  merchandise inquiry in a variety of situations and removed 
language  indicating that Commerce may "forgo" such an inquiry. As established  under Sec.  
351.227(b)(2), Commerce may determine not to initiate a  covered  merchandise inquiry if it 
determines to address the issue in  another segment of the proceeding. With respect to rescission, 
Sec.  351 .227(d)(5) provides that, if Commerce determines it appropriate to  do so, Commerce may G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  rescind, in whole or in part, a cov ered merchandise  inquiry. We have also included an express 
requirement for Commerce to  notify interested parties when a covered merchandise inquiry has 
been rescinded.  
 Proposed Sec.  351 .227(d)(5) further provided a non -exhaustive list  of three situations in which 
Commerce may rescind a covered merchandise  inquiry. In this final rule, we have adopted the first 
situation listed  in Sec.  351 .227(d)(5)(i) (i.e., rescission when CBP withdraws its  covered 
merchandise referral). We have removed propose d Sec.  351 .227(d)(5)(ii) and (iii), which, upon 
reflection, may have led to  some confusion about the interplay between covered merchandise  
inquiries and other segments of a proceeding. Therefore, we are  adopting a new Sec.  
351.227(d)(5)(ii) to describe a  situation where,  after initiation of a covered merchandise inquiry, 
Commerce may rescind  the inquiry if it determines that it can address the covered  merchandise 
referral in an ongoing scope or circumvention inquiry.  Under such a scenario, as provided und er Sec.  
351.227(e)(3), Commerce  would transmit a copy of the final action in that segment to CBP in  
accordance with section 517(b)(4)(B) of the Act. These changes also  reflect that we do not consider 
it appropriate to rely on a prior scope  or circumventio n determination to serve as the basis for a 
covered  merchandise determination without conducting an inquiry (whether a  covered merchandise 
inquiry or an ongoing scope or circumvention  inquiry) and affording interested parties an opportunity 
to participate.  
 Lastly, we have made modifications to proposed Sec.  351 .227(d)(6)  to conform to the changes 
being made to similar provisions in  Sec. Sec.  351 .225 and 351.226 discussed above. In addition to 
minor  revisions to the text of proposed Sec.  351 .227(d)(6), we have moved  and made minor 
revisions to the provision allowing for alignment of the  deadlines for a covered merchandise 
determination with the deadlines in  another segment of a proceeding from proposed Sec.  
351.227(d)(6) to  Sec.  351 .227(c)(3), as explained above. We have also moved the  provision 
explaining that Commerce may request information concerning  the product that is the subject of a 
covered merchand ise inquiry with  respect to another segment of the proceeding, such as an 
administrative  review, from proposed Sec.  351 .227(m)(2) to Sec.  351 .227(d)(7). The  changes we 
have made are reflected in the regulatory text adopted in  this final rule.  
 Several co mmenters propose that Commerce allow interested parties  an opportunity to 
comment and provide factual information prior to any  decision to rescind a covered merchandise 
inquiry under proposed Sec.  351 .227(d)(5). These commenters indicate that there may be  instances  
where Commerce decides to address its covered merchandise determination  in a separate segment 
of the proceeding, but an interested party  believes that the separate segment does not cover the 
product that is  the subject of the referral. These com menters suggest that Commerce  provide a 
period for interested parties to comment and provide factual  information on a decision that a 
determination in another segment  negates the need to conduct a covered merchandise inquiry, and 
further  claim that this wo uld serve as a procedural safeguard before  rescission.  
 One commenter submitted rebuttal comments generally arguing that  EAPA covered 
merchandise referrals and Commerce's AD/CVD proceedings  should be kept separate, and that 
Commerce should not allow partie s that are not a party to CBP's EAPA investigation to participate in  
covered merchandise inquires whatsoever.  
 Response:  
 Commerce is not adopting the proposal to allow interested parties  an opportunity to comment 
and provide factual information prior to a decision to rescind a covered merchandise inquiry under 
Sec.  351 .227(d)(5). As stated in the Proposed Rule, Commerce recognizes the  potential significant 
overlap between a covered merchandise inquiry,  scope inquiry, circumvention inquiry, and any other 
segments of a  proceeding that may address scope issues. \184\ There may be situatiIns  in which it 
may not be apparent that Commerce can address a covered  merchandise referral in another segment 
of a proceeding until after  Commerce initiates a covered mercha ndise inquiry under Sec.  
351.227(b)(1). Additionally, there may be situations in which CBP  withdraws its request for a 
covered merchandise inquiry. In such  situations, Commerce maintains its flexibility to rescind the 
covered  merchandise inquiry. Although  Commerce appreciates the concern that  interested parties 
may not agree with a decision to rescind a covered  merchandise inquiry, Commerce disagrees that 
it should provide a period  for comment and submission of factual information in these instances.  
Comme rce notes that it already provides interested parties multiple  opportunities to comment and 
provide factual information under Sec.  351 .227(d), including after initiation of a covered 
merchandise  inquiry. To the extent interested parties believe that Comme rce should  proceed with a 
covered merchandise inquiry after initiation, parties  may provide comments to that effect at that 
time. 
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 \184\ Id. at 49490.  
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   We disagree with the comment that Commerce should not allow parties  that are not a party to 
CBP's EAPA investigation to participate in  covered merchandise inquiries whatsoever. As also 
explained in response  to similar comments submitted regarding proposed Sec.  351 .227(b) and  (n), 
section 517 of the Act provides that Commerce should use its  existing authority to determine 
whether the merchandise at issue is  covered merchandise in responding to a cove red merchandise 
referral  from CBP. \185\ By statute, Commerce provides interested parties the  opportunity to 
comment and participate in AD/CVD proceedings. \186\ Commerce believes that this authority 
equally applies when it makes  covered merchandise determin ations, which may apply more broadly 
to merchandise that is produced, exported, or imported by interested  parties that are not a party to 
CBP's EAPA investigation itself. Thus,  Commerce disagrees that it should not allow parties that are 
not a party to CBP 's EAPA investigation to participate in Commerce's covered  merchandise inquiries.  
---------------------------------------------------------------------------  
 \185\ See section 517(b)(4)(A)(i) of the Act.  
 \186\ See section 782(g) of the Act.  
------------- --------------------------------------------------------------  
5. Section 351.227(e) --Covered Merchandise Determinations  
 Section 351.227(e) addresses covered merchandise determinations  issued by Commerce either 
in connection with a covered merchandise  inquiry or another segment of the proceeding under which 
Commerce  addresses a covered merchandise referral. Apart from a minor revision  to the text in Sec.  
351.227(e)(3), no changes are being made to this  provision in this final rule.  
 One commenter notes that in proposed Sec.  351 .227(e)(2) and (3),  Commerce specifies that 
a final determination as to whether merchandise  is covered by the scope of an order shall be 
"promptly " transmitted  to Commerce. This commenter requests that the term  "promptly " be 
expressly defined to mean no later than seven days after publication of  a final determination in the 
Federal Register. This commenter notes  that defining "promptly " will provide additional clarity and  
consistency, and support transparency.  
 Response:  
 We are not adopting the proposal to define "promptly " in Sec.  351 .227(e)(2) and (3) to mean 
no later than seven days after  publication of a final determination. As Commerce stated in the  
Proposed Rule, the term "promptly " is not defined in sect ion 517(b)(4)(B) of the Act. \187\ However, 
consistent with the use of the  same term in revised Sec. Sec.  351 .225 and 351.226, it is Commerce's  
expectation that prompt conveyance and transmittal of a copy of the  final covered merchandise 
determination to CBP normally would occur no  more than five business days from the publication of 
the determination  in the Federal Register. We further clarify that to the extent  Commerce's covered 
merchandise determination is addressed through an  ongoing scope inquiry, which would not 
generally result in a final  scope ruling that is published in the Federal Register, \188\ we expect  that 
prompt conveyance and transmittal of the covered merchandise  determination would normally occur 
no more than five busines s days from  the date of issuance of the final scope ruling.  
---------------------------------------------------------------------------  
 \187\ See Proposed Rule, 85 FR 49472 at 49490.  
 \188\ Although final scope rulings are not published in the  Federal Reg ister, under Sec.  
351.225(o)), on a quarterly basis,  Commerce publishes in the Federal Register a list of final scope  
rulings issued within the previous three months. Under Sec.  351 .225(o), Commerce may also 
include complete public versions of  scope ruli ngs on its website should it determine such placement 
is warranted.  
---------------------------------------------------------------------------  
6. Section 351.227(f) --Basis for Covered Merchandise Determination  
 Section 351.227(f) in the Proposed Rule prov ided that Commerce may  rely on the standards 
under Sec.  351 .227(j) and (k) of Sec.  351 .225, or the provisions of section 781 of the Act 
(paragraphs (h), (i), (j),  or (k) of Sec.  351 .226), in reaching a covered merchandise  determination. 
We have made minor revisions to clarify that Commerce  may utilize the analyses described in any 
of the aforementioned  provisions when conducting a covered merchandise inquiry.  
 G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  (a) Circumvention Analysis To Address Covered Merchandise Referrals  
 
 One commenter argues that Commerce should refrain from conducting a  circumvention inquiry 
within the framework of an EAPA investigation  because of the harsh consequences parties may face 
in EAPA  investigations. The commenter asserts that if Commerce cannot resolve  the scope issue that 
is the basis of CBP's covered merchandise referral  within a reasonable time, then CBP's EAPA 
investigation should be  concluded with no finding of evasion. After such a conclusion, Commerce  
could then conduct its circumvention inquiry within  the framework of  its own statutory authority.  
 Response:  
 We disagree with this commenter. We have already addressed this  commenter's arguments on 
proposed Sec.  351 .227(b) in relation to  Commerce's authority to address a covered merchandise 
referral in  another segment of the proceeding (i.e., an ongoing circumvention  inquiry), and 
incorporate our response herein. However, we are also  addressing this commenter's arguments in 
our analysis of Sec.  351 .227(f) to the extent the commenter objects to Commerce's ability to  use 
the circumvention criteria under section 781 of the Act (paragraphs  (h), (i), (j), or (k) under 
Sec.  351.226) when conducting a covered  merchandise inquiry. Consistent with our analysis of 
comments under  Sec.  351 .227(b) above, w e believe that we have the authority to  conduct an 
analysis for circumvention under section 781 of the Act and  Sec.  351 .226, as appropriate, in the 
context of a covered merchandise  inquiry. Congress expressly provided that Commerce should use 
its existing  authority in responding to a covered merchandise referral from  CBP. This includes the 
authority to bring circumventing merchandise  within the scope of an AD/CVD order. Finally, as noted 
above, Commerce  is not limited from examining a covered merchandise r eferral in the  context of a 
circumvention proceeding, as appropriate.  
 
(b) Application of Facts Available and Facts Available With an Adverse  Inference in Covered 
Merchandise Inquiries  
 
 One commenter requests that, as Commerce stated with regard to  Sec.  351.225 in the 
Proposed Rule, Commerce should clarify that it may  apply facts available or facts available with an 
adverse inference,  pursuant to section 776 of the Act, where a party fails to provide  information 
requested in a covered merchandise inquiry,  or in a  circumvention inquiry or other segment of the 
proceeding that Commerce  uses to address a covered merchandise referral. This commenter states  
that this change is necessary to align Sec.  351 .227 with Sec.  351 .225, and to avoid adverse 
decisions based on the view that the two  provisions are not parallel and must mean different things.  
 Response:  
 We agree and clarify herein that, just as with a scope ruling under  Sec.  351 .225 and a 
circumvention determination under Sec.  351 .226, Commer ce has the authority to apply facts 
available, including facts  available with an adverse inference, pursuant to section 776 of the  Act, to 
covered merchandise inquiries under Sec.  351 .227. 
7. Sections 351.227(g) -(k) 
 As explained in the Proposed Rule, pro posed Sec. Sec.  351 .227(g)  through (k) in Sec.  351 .227 
have been reserved to maintain consistency  with Sec. Sec.  351 .225 and 351.226.  
8. Section 351.227(l) --Suspension of Liquidation  
 Section 351.227(l) provides the rules for the suspension of  liquidati on and the requirement of 
cash deposits for entries of the  product at issue in covered merchandise inquiries. The Act does not  
provide direction to Commerce regarding the suspension of liquidation  for entries subject to a 
covered merchandise inquiry. Under Sec.  351 .227(l) in the Proposed Rule, Commerce proposed 
that, at the time of  an affirmative preliminary or final covered merchandise determination,  
Commerce would direct CBP to begin the suspensi on of liquidation for  any unliquidated entries not 
yet suspended and collect applicable cash  deposits. Commerce received numerous comments on 
Sec.  351 .227(l) for  Sec. Sec.  351 .225 and 351.226 but received only one comment on  proposed 
Sec.  351 .227(l) con cerning notice to sureties, which has  already been addressed elsewhere in this 
final rule (see discussion  regarding Sec.  351 .225(l)). After consideration of corresponding  changes 
to similar language in Sec. Sec.  351 .225(l) and 351.226(l),  Commerce is ado pting certain changes 
to Sec.  351 .227(l) in this final  rule, which are briefly described below. Also discussed herein are the  
specific applicability dates for Sec.  351 .227(l) as referenced in the  Applicability Dates section of this 
preamble.  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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   Section 351.227(l)(1), which describes Commerce's actions at the  time of initiation of a covered 
merchandise inquiry, is slightly  revised from the Proposed Rule to mirror changes in Sec. 
Sec.  351.225(l)(1) and 351.226(l)(1), which are described above.  Additionally, because 
Sec.  351.227(l)(2) and (3) concerning Commerce's  actions in the event of an affirmative 
preliminary or final covered  merchandise determination largely mirror similar provisions in  Sec. 
Sec.  351.225 and 351.226, with a few exceptions de scribed below,  we are adopting the same 
changes to paragraphs (l)(2) and (l)(3) in  Sec.  351 .227 that are being made to the paragraphs 
(l)(2) and (l)(3)  in Sec. Sec.  351 .225 and 351.226. Section 351.227(l)(4), which we  touch on briefly 
below, describes Commerce's actions in the event of a  negative final covered merchandise 
determination, remains unchanged  from the Proposed Rule. Lastly, Commerce is adding a new 
provision,  paragraph (l)(5), to include specific reference to CBP's authority,  descr ibed below.  
 New Sec.  351 .227(l)(2)(iii) and (l)(3)(iii) provide that, at the  time of an affirmative preliminary 
or final covered merchandise  determination, Commerce normally will direct CBP to begin the  
suspension of liquidation of certain unliquidated e ntries not  previously suspended, which entered 
before the date of publication of  the notice of initiation of the inquiry, and apply the applicable cash  
deposit rate. Under this framework, Commerce maintains the flexibility  in covered merchandise 
inquiries to apply, depending on the nature of  the product at issue in the covered merchandise 
referral, rules for the  suspension of liquidation and cash deposits in a manner appropriate to  the 
situation. This includes establishing a specific alternative  retroactive  suspension date. If Commerce 
considers an alternative date  for not yet suspended entries pre -dating the date of initiation,  
Commerce may consult with CBP.  
 These rules differ in significant ways from the scope and  circumvention suspension of liquidation 
rules under Sec. Sec.  351 .225 and 351.226, which reflects the unique nature of a covered 
merchandise  inquiry. Specifically, in contrast to scope and circumvention  inquiries, covered 
merchandise inquiries are a new type of proceeding  and stem from a referra l from CBP concerning 
potential evasion.  Therefore, we find it appropriate to exercise our discretion on a case - by-case 
basis and may consult with CBP on whether to adopt an  alternative date in light of the facts of a 
given case, including the  circumstanc es which led to the referral. This will allow our practice  to 
develop on a case -by-case basis, rather than  adopt more detailed procedures in this final rule.  
 With respect to Sec.  351 .227(l)(4), we have retained language to  provide that when Commerce 
issues a final negative covered merchandise  determination, entries subject to suspension of 
liquidation as a result  of another segment of a proceeding, if any, will remain suspended until  the 
other segment of the proceeding has concluded. Although  perhaps  less common in this context, it is 
possible that there could be a  scenario in which it would not be appropriate to immediately direct 
CBP to liquidate entries without regard to duties. Therefore, to avoid  confusion in this particular 
scenario, thi s language is retained in  Sec.  351 .227(l)(4).  
 Lastly, new Sec.  351 .227(l)(5) provides language to clarify CBP's  authority to take related 
action. Specifically, this language clarifies  that the rules established by Commerce in Sec.  351 .227 
do not affect  CBP's authority to take any additional action with respect to the  suspension of 
liquidation or related measures. This is identical  language to the language for Sec. Sec. 351.225(l) 
and 351.226(l),  which is explained above and not repeated here.  
 Finally, there is one clarification to this revised framework, as  noted in the DATES section and 
the Applicability Dates section of this  preamble, and as discussed in great detail above regarding 
Sec.  351 .225(l)(2)(iii) and (l)(3)(iii) for scope inquiries and Sec.  351 .226(l)(2)(iii) and (l)(3)(iii) 
for circumvention inquiries,  regarding the effective date and applicability dates. For the reasons  
explained above, Commerce will not apply paragraphs (l)(2)(i ii) and  (l)(3)(iii) of Sec.  351 .227 in a 
way that would direct CBP to begin  the suspension of liquidation of unliquidated entries not yet  
suspended, entered, or withdrawn from warehouse, for consumption, prior  to the effective date 
identified in the DATES  section. However, as  discussed above, the framework established in Sec.  
351.227 does not  affect CBP's authority to take any additional action with respect to  the suspension 
of liquidation or related measures.  
9. Section 351.227(m) --Applicability of Cover ed Merchandise  Determination; Companion Orders  
 Section 351.227(m) addresses the effect and application of covered  merchandise 
determinations. We received no comments on proposed Sec.  351 .227(m). However, because certain 
changes are being made to  Sec. Sec.  351 .225 and 351.226, as discussed above, we have made  
conforming changes to paragraph (m) in Sec.  351 .227, as reflected in  the regulatory text adopted 
in this final rule.  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  10. Section 351.227(n) --Service List  
 Section 351.227(n) provides the service procedures for covered  merchandise inquiries. Given 
the unique nature of a covered merchandise  referral, which originates from another agency, and is 
placed on the  record of the relevant segment by Commerce once deemed sufficient,  there is no need 
to adopt similar language from Sec. Sec.  351 .225(n)  and 351.226(n) concerning the annual inquiry 
service list. Rather, as  provided under Sec.  351 .227(b), once Commerce determines the referral  is 
sufficient, Commerce will publish notice o f its intent to address  the covered merchandise referral in 
either a covered merchandise  inquiry or another segment of a proceeding in the Federal Register,  
allow parties the opportunity to enter an appearance on the segment - specific service list, submit 
an APO application, and review and  comment on the referral in accordance with its outlined 
procedures.  
 Several commenters generally support interested party participation  in Commerce's segment 
of the proceeding used to address a covered  merchandise referr al, while a few commenters argue 
that Commerce should  not allow a party that is not a party in CBP's EAPA investigation to  participate 
in Commerce's segment of the proceeding, raising the same  arguments raised regarding other 
provisions under Sec.  351 .227. 
 Response:  
 For the reasons discussed above, we disagree that Commerce should  not allow a party that is 
not a party in CBP's EAPA investigation to  participate in a segment of the proceeding used to address 
a covered  merchandise referral. Consistent with the statute and Commerce's  practice, parties that 
may have an interest in a determination of  whether a product is covered by the scope of an order 
will have the  opportunity to participate in that segment of the proceeding to address  a covered 
merchandise referral.  
11. Section 351.227(o) --Suspended Investigations; Suspension Agreements  
 Section 351.227(o) allows the covered merchandise referral  procedures set forth in 
Sec.  351.227 to apply to suspended  investigations and suspension agreements. We received no 
comments on  proposed Sec.  351 .227(o). However, we have made minor revisions to  reflect that 
Commerce may, in general, use the procedures under Sec.  351 .227 in determining whether the 
product at issue is covered  merchandise with respect to a suspended investigation or a suspension  
agreement.  
Certifications --Sec.  351 .228 
 Section 351.228, a new provision proposed in the Proposed Rule,  sets out procedures for 
complying with certification requirements that  Commerce may impose on interested par ties in the 
context of AD and CVD  proceedings. \189\ It also sets out consequences for a party's failure  to satisfy 
certification requirements. We received comments from  various parties regarding Sec.  351 .228. 
After consideration of  comments, we are adopti ng Sec.  351 .228 as proposed in the Proposed  Rule 
with clarifying edits. Specifically, we are modifying Sec.  351 .228 to reflect updated paragraph 
numbering and to mirror similar  language regarding the suspension of liquidation, application of 
cash deposits, and assessment of AD/CVDs in other parts of Commerce's  regulations.  --------------
-------------------------------------------------------------  
 \189\ See Proposed Rule, 85 FR 49472 at 49491.  
------------------------------------------------------ ---------------------  
1. General Comments  
 Several commenters generally support adopting Sec.  351 .228, because it codifies Commerce's 
existing practice to require  certifications, for various reasons, in certain proceedings.  Particularly, 
these commenters referred to certifications in Commerce's  circumvention determinations, such as 
where Commerce has required  parties to certify that the importer did not import, and the exporter  
did not ship, merchandise from a third country to the United States  that origin ates from the country 
that is subject to the AD and/or CVD  order. One party also explained that such certification 
requirements  will allow Commerce to target merchandise circumventing an order with  "greater 
precision " and finely tune scope language to corr espond with  a scope's intent. Another commenter 
expressed approval of Commerce's  imposition of cash deposits if certifications are not provided or 
are false or fraudulent. Other commenters generally oppose Sec.  351 .228. Several commenters G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  contend that additional certifications, such as  those proposed in Sec.  351 .228, have little benefit 
towards Commerce's  AD/CVD goals, are unnecessary, and are burdenso me. 
 Response:  
 Commerce agrees with the comments supporting Sec.  351 .228. As  discussed in the Proposed 
Rule, Sec.  351 .228 is a codification of  existing practice, although it may also be applicable in 
contexts where  it has not yet been applied, as well. For this reason,  because Sec.  351 .228 merely 
codifies existing practice, we disagree  with comments in opposition.  
 Section 351.228 itself does not impose any additional requirements  on parties. Instead, this 
provision adopts existing practice and  enhances that practice to clarify the consequences for failure 
to provide certifications to all parties subject to any current or future  certifications. To the extent 
that parties are faced with any  additional burdens pursuant to such certifications, such po tential  
burdens are directly related to the proceeding itself in which Commerce  adopted the certification 
and relevant requirements. Furthermore, as  detailed below, Commerce considers the benefit that 
certifications  afford the agency as well as CBP, includ ing the flexibility to create  certification 
processes in various proceedings for various reasons, to  outweigh the burden on the parties. 
Specifically, certifications  strengthen Commerce's enforcement of the AD/CVD laws, including taking  
steps to prevent evasion and circumvention of AD and CVD orders by  producers, exporters, and 
importers.  
 In a given case, Commerce considers the burden on parties to  complete the certification 
requirements while also taking into  consideration the information that C ommerce and CBP need in 
their respective roles in administering and enforcing AD/CVD orders.  Furthermore, each certification 
is narrowly tailored to the particular  situation --for example, allowing Commerce to target 
merchandise  circumventing an order with "greater precision " and finely tune scope  language to 
correspond with a scope's intent.  
 Additionally, the certifications and related requirements currently  in effect and codified pursuant 
to Sec.  351 .228 serve a different  purpose from CBP's existing requ irements for importers regarding 
the "reasonable care " standard. As explained below, certifications are an  additional tool for 
Commerce and CBP to evaluate whether entries should  be filed as either not subject to an AD and/or 
CVD order (e.g., Type  01) or s ubject to an AD/CVD order (e.g., Type 03), beyond current  
requirements. In instances in which certifications are required,  parties would not be able to file an 
entry as not subject to an AD and/  or CVD order without having the information or knowledge 
required of  the certification, in light of Commerce's determination at issue.  Although this information 
and knowledge may be inherent in a party's  entry summary paperwork, the benefit of the 
certification is to ensure  the party exercises reasonable care when determining the proper entry  
type. 
2. Administrability and Vagueness  
 One commenter believes that Sec.  351 .228 is vague and not  administrable. Specifically, the 
commenter requests that Commerce  provide a list of proceedings in which certifications wi ll be 
required  and propose language that parties must use to certify their  merchandise. Other commenters 
contend that Commerce requires  flexibility in identifying proceedings where certification is  
appropriate. These commenters identify that Commerce has u sed certifications in circumvention 
inquiries, scope inquiries, and changed  circumstances reviews, and Commerce should not limit its 
certification  practice to specific proceedings because doing so would undermine its  ability to address 
evasion. One comment er also contends that Sec.  351 .228 is unclear regarding to whom interested 
parties must transmit  electronic certifications or how a party may demonstrate that it has  complied.  
 Response:  
 Commerce is not providing an exhaustive list of every proceeding in  which it intends to impose 
a certification requirement consistent with  Sec.  351 .228. Rather, Commerce intends to evaluate 
proceedings on a  case-by-case basis and determine whether a certification requirement  under Sec.  
351.228 is necessary due to the sp ecific circumstances of  an individual proceeding. As explained 
above, Commerce has implemented  a certification requirement as a result of circumvention  
determinations, \190\ but it has also instituted certification  requirements to carry out the terms of 
certain suspension agreements  and for various AD and CVD orders. \191\ 
---------------------------------------------------------------------------  
 \190\ See, e.g., Carbon Steel Butt -Weld Pipe Fittings from the  People's Republic of China: Final 
Affirmative Determination of  Circumvention of the Antidumping Duty Order, 84 FR 29164 (June 21,  
2019) (Butt -Weld Pipe from China Final) (where Commerce instituted a  certification requirement for 
parties to certify that their  merchandise was not circumventing an existi ng order); and Steel  
Concrete Reinforcing Bar from Mexico: Final Affirmative  Determination of Circumvention of the G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  Antidumping Duty Order, 85 FR  34705, 34706 (June 8, 2020) (where Commerce required 
certifications  from importers to exclude a category of mer chandise produced for an  identified 
construction project and produced according to an  engineer's structural design consistent with an 
industry standard)  
 \191\ See, e.g., Sugar from Mexico: Suspension of Countervailing  Duty Investigation, 79 FR 
78044 (Dece mber 29, 2014) (where Commerce  required importers, exporters, and producers to 
certify certain  requirements with respect to entries of subject merchandise subject  to the agreement.  
---------------------------------------------------------------------------  
 Further, because Commerce intends to evaluate the circumstances of  each case individually and 
determine whether a certification  requirement is appropriate, it has provided several methods by 
which a  party may be required to satisfy a certification requir ement under  Sec.  351 .228. For 
example, under Sec.  351 .228(a)(1), Commerce may  require an interested party to maintain a 
completed certification, and,  under Sec.  351 .228(a)(2), provide a certification electronically at  the 
time of entry or entry summary.  Additionally, under Sec.  351 .228(a)(3), where Commerce requires 
a party to maintain a completed  certification, it may require the party to provide the certification,  to 
whatever agency inquires, upon request. Section 351.228 also states  that Commerce may require a 
party to otherwise demonstrate compliance  with a certification requirement. Because Commerce is 
implementing  certification requirements under Sec.  351 .228 on a case -by-case basis,  it intends to 
issue specific instructions, if necess ary, in the context  of each proceeding where it implements 
certification requirements.  Finally, Commerce is not providing certification language generally  
applicable in all relevant cases, but as it has done in the past, if  necessary, Commerce intends to 
issue the relevant certification  language in the context of specific proceedings. \192\ 
---------------------------------------------------------------------------  
 \192\ See, e.g., Butt -Weld Pipe from China Final; Carbon Steel  Butt-Weld Pipe Fittings from the 
People's Republic of China:  Preliminary Affirmative Determination of Circumvention of the  
Antidumping Duty Order, 83 FR 35205 (July 25, 2018). In both, its  preliminary and final 
Federal  Register notices in some circumvention  cases, Commer ce has provided certification language 
as an appendix.  
---------------------------------------------------------------------------  
3. Relationship to CBP Measures  
 Several commenters claim that, because CBP already has measures in  place requiring parties 
to properly classify entries and mechanisms to  address missing or fraudulent certifications, Sec.  
351.228 is  redundant or infringes CBP's existing authority. One commenter affirms  that CBP already 
requires importers to exercise reasonable care in  filing entries as Type 01 (e.g., not subject to an 
AD/CVD order), or  Type 03 (e.g., subject to an AD/CVD order), and Sec.  351 .228 is,  therefore, 
redundant. Several commenters take issue with the language  in Sec.  351 .228 pertaining to missing 
certificatio ns, or false or  fraudulent certifications, asserting that there are already procedures  in 
place for CBP to address missing and fraudulent certifications. \193\ Additionally, some  commenters 
claim that Sec.  351 .228 infringes on CBP's authority to  enforce co llection of import documents and 
address fraud. \194\ The same  parties also raised the possibility that, where both CBP and Commerce  
investigate certifications, under Sec.  351 .228, both agencies could  reach opposing or contradictory 
conclusions.  
---------- -----------------------------------------------------------------  
 \193\ According to the commenter, importers that improperly  declare goods face penalties 
under 19 U.S.C. 1592, 31 U.S.C. 3729,  and they are also subject to EAPA, under 19 U.S.C. 1517.  
 \194\ The commenter cites to 19 U.S.C. 1509 and 19 CFR 151.11,  regarding CBP's authority to 
collect missing certifications, and 19  CFR 101.9(b), regarding CBP's procedure for parties to file post  
summary correction. Commenters also cite to 19 U.S.C. 1592, whic h prohibits importation, or 
attempted importation by false documents  or material omission, and 19 CFR 171, Appendix B, which 
provide CBP  with a mechanism to determine whether fraud has occurred.  
------------------------------------------------------------- --------------  
 Response:  
 We disagree. Although CBP may already require parties to exercise  reasonable care in filing 
their entries as not subject to an AD and/or  CVD order (e.g., Type 01) or subject to an AD and/or G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  CVD order (e.g.,  Type 03), the certifications and related requirements currently in  effect and adopted 
pursuant to Sec.  351 .228 serve a different purpose,  and, furthermore, are intended to complement, 
not supplant, CBP's  existing authority. We note that Commerce frequently imposes  certifications in 
instances in which CBP may not be able to ascertain  certain identifying details relevant to the 
product's classification as  either subject to or not subject t o an AD and/or CVD proceeding through  
physical inspection or the relevant sales documentation accompanying  the entry summary, and, 
thus, could not confirm through these means  alone whether a particular entry has been properly 
designated as, for  example, Ty pe 01. \195\ In such instances, both CBP and Commerce would  rely 
on the certifications as an additional tool to ascertain whether  the entry correctly was filed as an 
entry type not subject to an AD  and/or CVD proceeding.  
------------------------------------ ---------------------------------------  
 \195\ For example, in the circumvention inquiry on certain  corrosion -resistant steel products 
(CORE) from Vietnam, Commerce  explained that CBP could not identify whether an entry of a CORE  
product from Vietnam conta ined substrate from China based on  physical inspection. In addition, 
Commerce explained that "sales documentation provided along with the entry package may not be  
helpful, as the source of the substrate may not be apparent from  invoices, bills of lading, etc., 
especially for steel that has  passed through multiple hands (producer, exporter, trading company)  
obscuring the source of the substrate. " See Certain Corrosion - Resistant Steel Products from the 
People's Republic of China:  Affirmative Final D etermination of Anti -Circumvention Inquiries on  the 
Antidumping Duty and Countervailing Duty Orders, 83 FR 23895  (May 23, 2018) and accompanying 
IDM at 27 -28. 
---------------------------------------------------------------------------  
 Additionally, as sta ted in the Proposed Rule, Commerce recognizes  that CBP has its own 
independent authority to address import  documentation related to negligence, gross negligence, or 
fraud. \196\ However, enforcement of the AD/CVD laws, including taking steps to  prevent evas ion 
and circumvention of AD and CVD orders by producers,  exporters, and importers, is well within 
Commerce's authority and is of  paramount importance to Commerce. The addition of a certification  
requirement, where necessary based on a given case, strengthe ns the  administration and 
enforcement of the AD and CVD orders by reducing the  possibility that entries may be inaccurately 
filed by importers. Given  the complex supply chains that may be involved with certain types of  
subject merchandise (which may involv e input producers, intermediate  processors, producers, 
exporters, trading companies, importers, etc.),  certifications provide additional assurance that the 
producer,  exporter, and/or importer sought adequate information regarding the  relevant product in 
order to accurately certify a particular entry as  not subject to an order.  
---------------------------------------------------------------------------  
 \196\ Additionally, HSI has the authority to investigate  criminal violations related to illegal 
evasion of  payment of  required duties, including payment of AD/CVDs. See, e.g., 18 U.S.C.  542. 
---------------------------------------------------------------------------  
 Furthermore, as stated in the Proposed Rule, Sec. 351.228 is not  intended to supplant CBP's 
authority, nor is a formal finding by CBP  required for Commerce to determine, within its own 
authority, that the  certification is deficient and unreliable. Whether a certification  contains "material " 
or "fraudulent " information is a determination  that would be made by Commerce pursuant to its own 
authority and  consideration of the normal meaning of those terms (although  determinations by other 
agencies may be informative). As noted, CBP has  its own individual authority and would continue to 
exercise t hat authority as appropriate, as well.  
 In sum, certifications are imposed on a case -specific basis in  numerous contexts; such 
certifications do not infringe on CBP's  authority and operate in a manner that is consistent with the 
broader  framework pertainin g to CBP's requirements for importers.  
4. Certification in Entry Summaries  
 Several commenters suggested that certifications could be a  recordkeeping requirement, 
submitted with a party's entry summary, or  some other means to implement the certification 
scheme. Parties  requested that Commerce require certifications as part of the entry  summary G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  processes, as opposed to a recordkeeping requirement. These  parties argued that certification at 
entry would be relevant where  certification is tied t o end -use. 
 Response:  
 Commerce disagrees with the commenters that Commerce should  restrict its discretion in this 
manner. Generally, Commerce's current  certifications impose a recordkeeping requirement. The 
regulation as  drafted provides Commerce the flex ibility, on a case -by-case basis, to  determine 
whether a recordkeeping requirement, filing upon entry  summary, or some other means is an 
appropriate mechanism to enforce the  certification scheme.  
5. Other Comments  
 Numerous commenters recommended various a dditional changes to Sec.  351 .228. First, one 
commenter noted that certification requirements  should not be unduly burdensome on 
importers/foreign producers and  should not limit legitimate market access. Second, other 
commenters  proposed that Commerce rev iew certifications as a "meaningful and  regular part " of 
annual reviews and/or implement an appeal process to  allow for revisions to the certification scheme. 
Third, one commenter  also proposes that Commerce articulate a notice requirement in the form  of 
specific instructions to CBP, which would be available to all  parties handling the entry to ensure that 
they are aware of the  certification requirement. Fourth, one commenter requests that notice  should 
be provided to an importer's surety when the importer  has not  properly certified its entries and CBP 
has begun suspending and  collecting cash deposits on the entries. This commenter argues that  this 
will help the surety manage its risk and protect the revenue and  integrity of the AD/CVD process. 
Fifth, one c ommenter also points to  Commerce's existing requirement to provide an annual 
non-reimbursement  statement for goods covered by AD/CVD orders and states that Commerce  has 
not explained the benefit of requiring additional certifications or  an estimate for the  cost of the 
additional paperwork burden. Sixth, one  commenter requested that Commerce require parties to 
affirmatively  state a product's country of origin, or if applicable country/countries  of processing in 
its certification.  
 Response:  
 First, in Commer ce's view, the regulations as drafted are necessary  and do not limit legitimate 
market access.  
 Second, Commerce already provides parties with a mechanism whereby  it may reconsider a 
determination  underlying a certification requirement as part of a changed  circumstances or 
administrative review. \197\ This process also allows  Commerce flexibility to meaningfully review 
certifications and does not  preclude Commerce from reviewing an existing certification in the  context 
of an administrative review. How ever, Commerce intends to  continue evaluating how it may 
incorporate a review of certifications  in additional proceedings if it determines that such action is  
necessary and feasible.  
---------------------------------------------------------------------------  
 \197\ See, e.g., Butt -Weld Pipe from China Final; see also  Glycine from the People's Republic 
of China: Final Partial  Affirmative Determination of Circumvention of the Antidumping  Duty Order, 
77 FR 73426 (December 10, 2012).  
---------------------------------------------------------------------------  
 Third, generally, where relevant, Commerce has provided notice in  its preliminary and final 
determinations, as well as providing  certification language in its customs instructions.  
\198\ Commerce,  therefore, intends to determine whether notice is relevant on a case - by-case 
basis and does not find it necessary to add a notice  requirement to the existing language of Sec.  
351.228. 
------ ---------------------------------------------------------------------  
 \198\ See, e.g., Certain Cold -Rolled Steel Flats Products from  the People's Republic of China: 
Affirmative Preliminary  Determination of Anti -Circumvention Inquiries on the Antidumping  Duty and 
Countervailing Duty Orders, 82 FR 58178 (December 11,  2017); see also Certain Cold -Rolled Steel 
Flat Products from the  People's Republic of China: Affirmative Final Determination of  Circumvention 
of the Antidumping Duty and Countervailing Duty  Orders, 83 FR 23891 (May 23, 2018).  
---------------------------------------------------------------------------  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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   Fourth, as discussed above regarding Sec.  351 .225(l), (comment  12(f)), in the context of 
scope, we recognize and appreciat e the unique  role of sureties in the payment and collection of 
AD/CVDs, and that  sureties need timely access to information to assess the risk that they  assume 
when underwriting bonds for imports of merchandise subject to  AD/CVD orders. As such, in respons e 
to these comments, Commerce intends  to consult with CBP and explore whether and how sureties 
may be  notified with respect to any certification requirement.  
 Fifth, we disagree with the commenter regarding the existing  reimbursement certification for 
importers and additional burden to  parties. The certification proposed in Sec.  351 .228 serves a 
different  purpose from Commerce's importer reimbursement certification  requirement. Whereas 
importer reimbursement certifications, described  in Sec.  351 .402(f)(2) , certify whether an importer 
was reimbursed AD  or CVD duties by an exporter/producer, certifications under Sec.  351 .228 
generally serve specialized purposes and are unrelated to  reimbursement. For instance, Commerce 
has, upon making an affirmative  determ ination of circumvention on a country -wide basis, permitted  
importers and exporters to certify that the importer did not import,  and the exporter did not ship, 
merchandise from a third country to the  United States that originates from the country that is s ubject 
to the  AD and/or CVD order. \199\ Additionally, with respect to any additional  arguments regarding 
the potential cost and burden on parties, see the  Classifications section in this final rule for further 
discussion.  
---------------------------------- -----------------------------------------  
 \199\ See, e.g., Butt -Weld Pipe from China Final; and Certain  Cold-Rolled Steel Flat Products 
from the People's Republic of China:  Affirmative Final Determination of Circumvention of the 
Antidumping  Duty and Countervailing Duty Orders, 83 FR 23891 (May 23, 2018).  
---------------------------------------------------------------------------  
 Sixth, and finally, Commerce will consider the commenter's  suggestion to require parties to 
affirmatively state a product's  country of origin in its certification on a case -by-case basis. We do  
not believe such language needs to be adopted in the regulation itself  at this time.  
Importer Reimbursement Certification --Sec.  351 .402(f)(2)  
 Section 351.402(f)(2) provides the requir ement that importers  certify with CBP prior to 
liquidation whether the importer has or has  not entered into an agreement for the payment or 
reimbursement of AD/  CVDs by the exporter or producer. In the Proposed Rule, Commerce  proposed 
to modify this provis ion to better conform with CBP's  procedures in collecting electronic, rather than 
paper, certifications  and to clarify that, although the certification is required prior to  liquidation, CBP 
could also accept the reimbursement certification in  accordance wi th its protest procedures.  
\200\ We received several  comments both in support of, and in opposition to, the Proposed Rule,  
and no rebuttal comments.  
---------------------------------------------------------------------------  
 \200\ See Proposed Rule, 85 FR at 49472 at 49491 -92. 
---------------------------------------------------------------------------  
 After review of proposed Sec.  351 .402(f)(2) and the comments  submitted pertaining to that 
section, we are modifying Sec.  351 .402(f)(2) in certain respects. Specifically, Sec.  351 .402(f)(2)(i), 
which does not require specific certification  language, and, instead, allows for importers to certify to 
the substance of the certification prior to liquidation, now provides that  the certification must contain 
the information necessary to link the  certification to the relevant entry or entry line number(s). We 
are also adopting clarifying edits to reflect that Sec.  351 .402( f)(2)(iii)  is an exception to 
Sec.  351.402(f)(2)(i) in allowing for  certifications to be filed during CBP's protest proceedings. In  
addition, we are modifying Sec.  351 .402(f)(2)(iii) to indicate that  CBP may accept the certification 
in accordance with it s protest  procedures under 19 U.S.C. 1514, unless otherwise directed. We have  
left unchanged proposed Sec.  351 .402(f)(2)(ii), which allows the  certification to be filed either 
electronically or in paper form in  accordance with CBP's requirements, as appli cable. We are also 
adopting  minor clarifying edits to Sec.  351 .402(f)(2)(iii), which describes the  entries subject to the 
certification requirement.  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  1. Streamlining Certification Requirements  
 A few commenters generally support the proposal to streamline the  importer reimbursement 
certification process and make it more efficient  and user -friendly. Several commenters object to the 
removal of express  certification language. Some of these commenters argue that Commerce  should 
reconsider and retain the current, specific language to prevent  foreign producers and exporters from 
responding to the certification in  a self -serving and non -specific manner. These commenters argue 
that any  relaxation of these requirements appears to be inconsistent with  Comme rce's goals to 
improve enforcement of the AD/CVD laws, as well as  prevent evasion of current trade remedies.  
 Response:  
 We disagree with comments objecting to the streamlining of the  certification language and 
procedures. However, in reviewing comments,  Commerce is modifying Sec.  351 .402(f)(2)(i) to 
provide some additional  specificity and clarify that the certification must contain the  information 
necessary to link the certification to the relevant entry  or entry line number(s). As discussed in the 
Propos ed Rule, under CBP's  current requirements, parties may certify to the substance of the  current 
regulatory certification language through a variety of  electronic means. Commerce is aligning its 
regulation with these  requirements, which allow for better trac king, tracing, and matching of  entries, 
by entry or entry line number, to the certification (either a  blanket or individual certification). This 
also allows for easier  retrieval of certification information directly from CBP's Automated  Commercial 
Environm ent (ACE) system. Therefore, we find that this is a  significant improvement upon the 
previous requirement for paper  certifications and remains consistent  with our goal of stronger 
enforcement while also improving  administrability.  
2. Acceptance of Certifications During Protest Proceedings  
 Several commenters object to proposed Sec.  351 .402(f)(2)(iii),  which allows for missing 
certifications to be filed during CBP's  protest proceedings under 19 U.S.C. 1514. These commenters 
argue that  the proposal t o allow a belated certificate runs contrary to the strong  enforcement of 
trade remedy laws and is inconsistent with proposed  Sec.  351 .402(f)(i)'s requirement that the 
importer must certify prior  to liquidation. These commenters further argue that the Prop osed Rule  
acknowledges this conflict but offers no rationale, and that to the  extent administrability concerns 
exist, those are best addressed by  CBP's regulations.  
 Certain commenters also argue that in past cases Commerce has  asserted its authority not o nly 
to assess double AD duties, but to also  establish cash deposit rates reflecting the reimbursement of 
duties  prior to assessment during the administrative review process. They also  argue that the 
proposed revisions state that the requirement to file a  certificate prior to liquidation remains 
obligatory; but allows CBP, at  its discretion, to accept certificates in accordance with its protest  
procedures. According to these commenters, this would seem to allow  importers to raise arguments 
with a separate ag ency that the adjustment  should not be applied because the importer has provided 
the certificate  during the protest proceeding, and this might otherwise undermine an  established 
agency practice in addressing circumstances where Commerce  has already determi ned that 
reimbursement has taken place and imposed  double cash deposits accordingly.  
 Commenters also argue that Commerce should make clear that, under  Sec.  351 .402(f)(3), if 
the certification has not been filed by the  time of the administrative review, Commerce may presume 
that the  failure to have filed the certification by that date is due to the  payment or reimbursement 
of duties by the exporter or producer. These  commenters argue that the proposed regulation allows 
for parties t o file the certification during the protest phase, after the review  process has ended and 
liquidation has occurred, and, therefore,  Commerce cannot properly complete the review without 
the certification.  
 Response:  
 In light of these comments, Commerce is modifying Sec.  351 .402(f)(2)(i) and (iii) in certain 
respects to clarify and better  explain that acceptance of a certification during the protest phase is  
an exception to the general rule that certifications are due prior to  liquidation. However, contrary  to 
certain comments, we do not see this  as setting up a potential abuse of the process, because: (1) 
Commerce  has included this relevant language in CBP instructions for almost a  decade, and we are 
merely codifying that language in the regulation;  (2) we have not seen evidence of any abuse of 
this exception; and (3)  nor have we heard any complaints from petitioners or CBP that there has  
been any abuse of this exception. Indeed, commenters were only able to  point to three examples 
over the past 25 years whe re there has been a  reimbursement scheme uncovered during the 
administrative review  process, and those examples do not point to the unreasonableness of our  
policy choice in the Proposed Rule. Moreover, not all liquidations  result in protests, and not all 
protests deal with importer  reimbursement issues, so this issue has limited practical  applicability.  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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   Further, many of the comments at issue were focused more on a  request to alter the deadline 
so that parties must submit their  certification prior to the start of the administrative review (even  
earlier than the current deadline of prior to liquidation). In  practice, most, if not all, companies filing 
certifications will do so  upon entry summary --well before the start of the review. Additionally,  during 
the course of the review, Commerce asks respondents directly if  they have reimbursed or entered 
into any agreement to reimburse the  importer --it is this information that we rely upon in conducting 
our AD  calculations. If we discover there has been such reimbu rsement or  agreement, we take that 
into account either by: (1) Making a deduction  to export price or constructed export price pursuant 
to Sec.  351 .402(f)(1)(i): Or (2) when appropriate, applying facts available  with an adverse inference 
pursuant to sectio n 776(a) -(b) of the Act if  the party has, for example, failed verification or otherwise 
failed to  cooperate in this respect. The resulting assessment rate and cash  deposit rate will then 
reflect the appropriate adjustment. If need be,  in a given case, Comm erce can explain in its CBP 
instructions that CBP  should not accept certifications from a given importer during any  protest 
proceeding based on any decisions made with respect to this  issue in the administrative review. 
Therefore, in light of the above,  Commerce is modifying Sec.  351 .402(f)(2)(iii) to indicate that CBP 
may accept the certification in accordance with its protest procedures  under 19 U.S.C. 1514, unless 
otherwise directed.  
3. Additional Notification  
 One commenter requests that Commerce and C BP provide additional  notification to sureties 
through the Automated Surety Interface (ASI)  with respect to any certification which will allow the 
sureties to more  effectively secure and underwrite the duty obligations under AD and CVD  laws. 
 Response:  
 For the reasons discussed above regarding Sec.  351 .225(l),  (comment 12(f)), in the context 
of scope, and numerous other  provisions, we recognize and appreciate the unique role of sureties in  
the payment and collection of AD/CVD cash deposits an d duties, and that  sureties need timely access 
to information to assess the risk that they  assume when underwriting bonds for imports of 
merchandise subject to  AD/CVD orders. As such, in response to these comments, Commerce intends  
to consult with CBP and explore whether and how sureties may be  notified with respect to any 
importer reimbursement certification.  
Procedural Amendments --Sec. Sec.  351 .103(d) Introductory Text and  (d)(1) and 
351.305(d)  
1. Sections 351.103(d) Introductory Text and (d)(1) --Central  Records  Unit and Administrative 
Protective Order and Dockets Unit  
 To implement the substantive changes pertaining to scope inquiries  (Sec.  351 .225), 
circumvention inquiries ( Sec.  351 .226), and covered  merchandise inquiries ( Sec.  351 .227), 
Commerce proposed to modify  Sec.  351 .103(d)(1) to reflect that an interested party filing a scope  
ruling application or a circumvention request, as well as any publicly  identified parties in a covered 
merchandise referral from CBP, under  section 517 of th e Act, need not file an entry of appearance. 
We received many positive comments in support of this provision. However,  one commenter argued 
that Commerce should revisit Sec.  351 .103(d)(1)  and remove the allowance of the entry of 
appearance to be filed as a cover letter to an application for APO access, to bring it into  conformity 
with requirements for notices of appearances in other  circumstances.  
 Response:  
 We note that the allowance for a cover letter/entry of appearance  for APO filings already existed 
in the regulations before Commerce  proposed amending them, so the comment is, in fact, not on 
revisions  Commerce has made, but on  its existing regulations. That being said, the ability for parties 
to file their entry of appearance in their APO cover letter is intended to  save time and resources and 
is not mandatory for filers. We see no  reason to make this change, and, in fact, if we were to remove 
this option for APO filers, we find that it would only further burden the  parties and Commerce's A PO 
system with unnecessary additional  paperwork.  
 In addition, Commerce is making two minor clarification and  correction revisions to Sec.  
351.103(d) introductory text and (d)(1)  unrelated to the comments raised. First, in paragraph (d) 
introductory  text, Commerce is adding reference to the annual inquiry service list  which must be 
used for requests for circumvention inquiries under Sec.  351 .226(n), to mirror the existing reference 
to the annual inquiry  service list for scope ruling applications under Sec.  351 .225(n).  Second, in 
paragraph (d)(1), Commerce is amending a typographical error  following the phrase "in a covered G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  merchandise referral to " with a  citation to Sec.  351 .227, rather than the incorrect reference to Sec.  
351.226 as appeared in the Pro posed Rule.  
2. Section 351.305(d) --Access to Business Proprietary Information  
 Section 351.305(d) provides for additional importer filing  requirements with Commerce, 
differing from the filing requirements of  exporters, producers, or domestic producers, to obtain 
access to BPI  through an APO application. In the Proposed Rule, Commerce proposed to  amend 
Sec.  351.305(d) to add reference to importers in circumvention  inquiries and to exempt importers 
identified by CBP in a covered  merchandise ref erral from these specific filing requirements. 
Commerce  received only support from commenters on changes made to this provision  and has not 
made any changes from the Proposed Rule.  
Other Comments  
 In addition to the comments discussed above, Commerce also received  some comments that 
did not relate to a particular provision in the  Proposed Rule. Instead, they relate to Sec. 
Sec.  351.213, 351.302, and  351.303, or pertain to our general rulemaking process or matters  
outside of the regulatory framework. For th e following reasons, we are  not making the requested 
changes to our regulations.  
1. Amend Regulation on Administrative Reviews To Include the Enumerated  Factor for Bona Fide 
Sales  
 One commenter argues that Sec.  351 .214(b)(2)(v)(D) through (E) and  (f)(3) should be 
reproduced in Sec.  351 .213 so that the bona fide  sales analysis proposed for new shipper reviews 
would also apply to  annual administrative reviews of AD/CVD orders, especially when such  reviews 
involve few or singular sales or entries. Th e commenter  requests that the final rule should reproduce 
in Sec.  351 .213 governing administrative reviews the specific proposed Sec.  351 .214(b)(2)(v)(D) 
through (E) and (f)(3), which outline a number of  documents a new shipper is required to include 
with a review request,  and to mirror the factors listed in section 751(a)(2)(B)(iv)(I) -(VI) of  the Act 
that pertain to new shipper reviews. In effect, the commenter  proposes that a request for an annual 
administrative review include  documentation concerning b usiness activities and establishing the  
circumstances surrounding sales including prices, expenses, whether  sales were resold for profit in 
the United States, and whether such  sales were made at arm's -length prices. Additionally, the 
commenter  argues that an annual administrative review could be rescinded if the  information 
necessary to conduct a bona fide sales analysis is not on  the administrative record. The commenter's 
rationale is that  administrative reviews are more common and numerous than new shippe r reviews. 
Applied to annual administrative reviews which involve few or  singular sales or entries, the 
commenter claims that the bona fide  sales analysis requirements would discourage meritless claims 
and conserve Commerce's resources in conducting review s. 
 Another commenter responded, stating that Commerce should reject  the commenter's 
suggestion that Commerce perform a bona fides analysis  on the sales of exporters participating in 
administrative reviews. This  commenter argues that Commerce should not er ect artificial barriers to  
respondents' efforts and that such barriers would only work to create  an unfair advantage for 
petitioners and could never create a level  playing field, as the AD/CVD laws are intended. 
Additionally, several  commenters proposed in  rebuttal comments that Commerce analyze new  
shipper reviews within the administrative review process under Sec.  352.213.  
 Response:  
 We have left unchanged Sec.  351 .213 governing administrative  reviews.  
 As explained in the Proposed Rule, Commerce is amending Sec.  351 .214 pertaining to new 
shipper reviews to conform with changes to  section 751(a)(2)(B) of the Act made by Congress with 
the enactment of  section 433 of EAPA to address circumvention by new sh ippers in the  context of 
new shipper reviews. While Commerce remains cognizant of the  potential for misuse of 
administrative review processes in AD and CVD  proceedings, amendments to Sec.  351 .213, which 
governs administrative  review of orders and suspensi on agreements, is beyond the scope of the  
Proposed Rule and section 433 of EAPA. The Proposed Rule did not  propose changes to this 
regulatory provision. Accordingly, any  consideration or implementation of such proposals would 
require a  notice and comment p roceeding, which did not occur in this rulemaking  with respect to 
Sec.  351 .213. Therefore, we find that these proposals  are beyond the scope of the Proposed Rule 
and section 433 of EAPA.  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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   Importantly, we agree that the bona fide sales analysis constitutes  an important check on the 
misuse of administrative review processes to  circumvent duty orders or obtain a contrived dumping 
margin. Commerce  has a well -established practice of conducting a bona fide sales  analysis in 
administrative reviews, whe re warranted. \201\ The CIT has  stated that Commerce's practice clearly 
demonstrates that Commerce is  "highly likely to examine objective, verifiable factors " to confirm  
that a sale is not being made to circumvent or evade an antidumping  duty order. \202\ Therefore, 
while the documents necessary to perform a  bona fide sales analysis are not required in a request 
for an annual  administrative review, Commerce retains its well -established practice  of conducting a 
bona fide sales analysis in such ad ministrative  reviews, where warranted, to address efforts to evade 
or dilute the  effectiveness of its AD/CVD orders through the use of non -bona fide  sales. Lastly, we 
have not adopted the commenters' rebuttal proposal  that Commerce analyze new shipper revi ews 
within the administrative  review process under Sec.  351 .213. This commenters' proposal is also  
beyond the scope of this final rule, as such an amendment would require  a notice and comment 
proceeding pertaining to Sec.  351 .213 governing  administrative  reviews. Moreover, such an 
amendment would be contrary  to section 751(a)(2)(B) of the Act which provides  new shippers a 
review process apart from the administrative review  process to obtain an AD margin or CVD rate 
based on bona fide sales.  
-------------- -------------------------------------------------------------  
 \201\ See, e.g., Silicon Metal From the People's Republic of  China: Final Results of Antidumping 
Duty Administrative Review;  2017-2018, 84 FR 69361 (Dec. 18, 2019); see also, e.g., Certain  Pasta 
From Turkey: Final Results and Rescission of Antidumping Duty  Administrative Review; 2015 -2016, 
83 FR 6516 (Feb. 14, 2018).  
 \202\ See Hebei New Donghua Amino Acid Co., Ltd. v. United  States, 374 F. Supp. 2d 1333, 
1339-40 (CIT 2005).  
-------------------- -------------------------------------------------------  
2. Section 351.302(c) and (d) --Requests for Extension  
 Several commenters suggest that Commerce modify Sec. 351.302 to  limit the number of days 
of extensions of time to complete  questionnaire responses, for both initial and supplemental  
questionnaire responses, to a total of 30 calendar days. These  commenters argue that by shortening 
the number of days available for  extensions, Commerce will have more time to consider arguments 
and will  have greater certainty concerning when filings will be made,  alleviating stress over 
overlapping submissions across multiple cases.  Several other commenters also argue that 
respondents have repeatedly  requested extensions for questionnaire responses  as a method of  
delaying the proceeding and limiting the time available for Commerce to  conduct its investigation or 
review, and that Commerce should address  this issue by limiting the extension of time for 
questionnaire  responses to 30 days.  
 Other commen ters challenge the above arguments, stating that  Commerce already has 
complete control of the number and length of  extensions it grants, and further argue that Commerce 
allows for such  extensions because it is fully aware of the fact that first -time foreig n respondents do 
not maintain their books and records in  anticipation of the initiation of an AD or CVD investigation 
against  their subject exports. These commenters also argue that the proposal of  limiting extension 
requests should be rejected because the  comments  proposing this limit are not responsive to any 
provision in the  Proposed Rule, establishing such a limit would be in violation of the  requirements 
set forth in the Administrative Procedures Act, and  establishing such a limitation in the regulatio n 
would deny Commerce  the flexibility required to work with respondents to ensure accuracy  and 
fairness in its decisions. They point out that each proceeding  before Commerce and each company 
under review is unique, and, thus, the  information that Commerce may seek in a particular 
proceeding can vary  wildly, pointing to different administrative cases as examples of how  great a 
variance there can be in the amount of information sought by  Commerce in a given proceeding.  
 In addition, they argue that m aking such a change would contravene  the United States' 
international obligations to provide parties with  ample opportunity to present all evidence that they 
consider relevant  in respect of the investigation under Article 6.1 of the AD Agreement  and Articl e 
12.1 of the SCM Agreement.  
 Finally, one commenter argues that adopting such a short, arbitrary  limit on time would create 
significant risk of due process violations  by denying parties the time required to gather and present 
information  necessary to defe nd their interests.  
 Response:  
 Commerce has not adopted this proposal and will not be modifying  Sec.  351 .302 at this time. 
The Proposed Rule did not cover or address  this regulatory provision, and such an argument is G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  outside the scope of  the modification s and additions to regulations that we have proposed  and upon 
which we have invited commentary. Any consideration or  implementation of such a requirement 
would require a notice and  comment, which did not occur in this rulemaking with respect to 
Sec.  351.302. 
 Additionally, as mentioned by some of the other commenters,  Commerce is already in full 
control of the number and length of  extensions it grants, and there has been no evidence of the 
extension  process being manipulated to prevent Commerce from having enough time  to properly 
conduct its investigations or reviews. Given Commerce's  current discretion to determine whether to 
grant an extension request,  placing a maximum limit on the number of days that can be granted 
would  only serve to limit Commer ce's discretion in how it handles such  requests, and further restrict 
Commerce's ability to ensure the  accuracy and fairness of its decisions.  
3. Section 351.303(g) --Certification of Documents  
 One commenter argues that Commerce's regulations in Sec.  351 .303(g), which require a 
company representative to certify as to the  accuracy of information that does not belong to the 
company and that  the company did not develop, has created an unnecessary b urden on  petitioners 
and petitioners' counsel. They suggest changes to Sec.  351 .303(g) restricting the certification 
requirement to requiring a  certification from the company or government representative only when  
the factual information was provided by t he company or government  representative in question or 
by a company or government that is not  represented by legal counsel.  
 Response:  
 Commerce has not adopted this proposal and is not modifying Sec.  351 .303(g) at this time. 
The Proposed Rule did not cov er or address  this regulatory provision, and such an argument is 
outside the scope of  the modifications and additions to regulations that we have proposed  and upon 
which we have invited commentary. Any consideration or  implementation of such a requirement 
would require notice and comment,  which did not occur in this rulemaking with respect to 
Sec.  351.303. 
4. Comments on Overall Drafting Approach  
 In general, many commenters commended Commerce on the updates and  additions to its 
regulations, cl aiming that such changes were a long  time coming and warranted. In particular, 
several commenters expressed  general support and appreciation for Commerce's commitment and 
efforts  to effectively administer the AD/CVD laws, and state that the proposed  regula tions are 
intended to close several loopholes that currently  weaken the efficacy of the U.S. trade laws with 
reasonable, fair, and  equitable modifications that strengthen its current regulations.  
 However, Commerce received criticism as well. One commenter , although complimentary of the 
Proposed Rule, argued that sureties  should be treated as interested parties and was critical that the  
revised and new regulations do not provide for notifications to  sureties of filings and determinations.  
 A few commenters expressed concern about the 30 -day deadline for  initial comments on the 
Proposed Rule and requested a rebuttal period,  as well. In response, Commerce provided a 14 -day-
period for parties to  file rebuttal comments, but did not provide extensions for the ini tial party 
comments. The commenters argued that 30 days for parties to file  comments did not allow an 
adequate period of time for outside parties  to consider the effects of the regulatory changes on 
importers. One  commenter argued that because the regulato ry changes were submitted  during a 
national pandemic, when most offices are operating remotely,  it made it difficult to review, absorb, 
and discuss the potential  impact of these regulations with their clients in a 30 -day time span.  
Furthermore, they pointe d out that when Commerce revised its  (comprehensive) regulations in 1996 
and 1997, it allowed parties more  time to provide comments.  
 Some commenters generally opposed the changes to the regulations,  arguing  that they place 
too much responsibility and cost on the shoulders of  importers and not enough responsibility on the 
shoulders of exporters  and producers. They argue that Commerce should revise its Proposed Rule  
to focus primarily on foreign exporters with related importers, the  parties that would be aware of 
schemes to circumvent and evade the AD  and CVD laws, and not on unrelated importers with little 
to no knowledge of such schemes.  
 Finally, one commenter argues that the benefits of the proposed  regulations in stopping 
companies  from intentionally circumventing or  evading AD or CVD orders would be outweighed by 
the negative impact the  Proposed Rule would have on conscientious importers, particularly  smaller 
companies, through the assignment and collection of retroactive  AD/CVDs. The commenter points 
out that many sureties will not guarantee  a bond associated with a product that has been subject to 
a circumvention inquiry or covered by the scope of an AD or CVD order,  which creates a burden for G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  small companies who simply cannot aff ord the  additional costs resulting from a circumvention 
determination.  
 Commerce's  Response:  
 First, Commerce disagrees with the argument made by commenters that  30 days is insufficient 
for parties to consider and respond to the  changes made in the propose d regulations. Under 5 U.S.C. 
553, which  lays out the procedural requirements for revising federal regulations,  30 days is the 
standard that must be met by any agency when proposing  changes to their regulations. Over the 
past 20 years of administering  and enforcing the current iteration of the regulations, Commerce has  
discovered some inefficiencies and burdens that applied equally to our  procedures for all interested 
parties --domestic producers, U.S.  importers, and foreign exporters, alike. Over the years, we have 
heard  complaints about those inefficiencies and burdens, but could do nothing  about them without 
modifying our regulations. Furthermore, we have  built a practice in some regards, like Commerce's 
substantial  transformation test, which should be codified in the regulations, but  are not. In addition, 
we have discovered that our regulations do not  adequately address some matters, such as the 
problem of circumvention  of our orders. In short, none of these problems or concerns should be  new 
to thos e who practice AD and CVD law before Commerce.  
 Furthermore, comparing these regulations, which address new shipper  reviews, scope rulings, 
circumvention determinations, and a few other  matters, with the 1997 Final Rule which revised 
nearly all of  Commerce 's regulations covering most of Commerce's AD and procedural  practice is an 
unreasonable comparison. These are important  regulations, but they are still limited in the areas to 
which they  apply. Thus, we do not find the time limits Commerce provided to  outside parties for 
comments on those regulations to be comparable to  the time limits parties needed to comment on 
these regulations. We  continue to believe that a 30 -day period for parties to prepare and  file initial 
comments on the Proposed Rule was suffici ent. 
 That being said, Commerce recognized in response to early comments  which it received from 
outside parties that the agency had not  initially provided parties with an opportunity to file rebuttal  
comments, and that both Commerce and the public as a who le could  benefit if parties had time to 
file rebuttal comments. Accordingly,  Commerce granted 14 days after the close of the initial 
comment period  for parties to file rebuttal comments, and the agency received many  rebuttal 
comments, which we found to be helpful to our analysis. Thus,  we extended the period in which 
parties could provide meaningful  insight and commentary, and as noted, many took the agency up 
on its  offer to prepare and file rebuttal comments. We consider that  additional time for commentar y 
further evidence that we met the  statutory requirements of 5 U.S.C. 553.  
 Second, the changes and additions found in these final regulations  are consistent with the 
requirements of the Act and are narrowly  tailored to address Commerce's concerns. Commerc e 
recognizes the issues  expressed by several commenters regarding the potential effect the  regulatory 
changes may have on various interested parties. As explained  herein, in response to many of those 
comments, we have made  modifications from the Proposed R ule to these final regulations.  
\203\ That being said, we disagree with the commenters who argued that we  should retain the 
current regulations unchanged, and forgo these  updates and changes. These changes are necessary 
and will improve both  the administration and enforcement of the various areas of AD and CVD  law 
which they cover.  
---------------------------------------------------------------------------  
 \203\ For example, in response to the comment that Commerce  should revise its Proposed Rule 
to focus primarily on foreign  exporters with related importers in addressing circumvention and  
evasion, as discussed above under Sec.  351 .226(l), Commerce is  modifying this provision to take 
into account such potential  concerns.  
------------ ---------------------------------------------------------------  
 Finally, we disagree that these improvements to our regulations  will create an outsized burden 
for small importers, and in fact, we  believe we have appropriately balanced the interests of all  
affected  parties with the U.S. Government's statutory mandate and Commerce's  policy to prevent 
circumvention and evasion of the application of AD  and CVD orders.  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  5. Additional Unrelated Comments  
 Several commenters made comments unrelated to the regulatio ns and  their purpose, and as 
such these comments will not be summarized or  addressed herein.  
Classifications  
Executive Order 12866  
 OMB has determined that this final rule is significant for purposes  of Executive Order 12866.  
Paperwork Reduction Act  
 This proposed rule contains no collection of information subject to  the Paperwork Reduction Act, 
44 U.S.C. Chapter 35.  
Executive Order 13132  
 This proposed rule does not contain policies with federalism  implications as that term is defined 
in section 1(a) of Executive Order  13132, dated August 4, 1999 (64 FR 43255 (August 10, 1999)).  
Regulatory Flexibility Act  
 The Chief Counsel for Regulation of the Department of Commerce  certified to the Chief Counsel 
for Advocacy of the Small Business  Admini stration at the proposed rule stage that this rule, if 
adopted,  would not have a significant economic impact on a substantial number of  small entities as 
that term is defined in the Regulatory Flexibility  Act, 5 U.S.C. 601 et seq. For that reason, no Initi al 
Regulatory  Flexibility Analysis was required. A summary of the need for,  objectives of, and legal 
basis for this rule is provided in the  preamble in this final rule and the preamble to the Proposed 
Rule and  is not repeated here. The factual basis for th e certification is found  in the Proposed Rule 
and is repeated below.  
 Commerce did receive comments on the certification. For the reasons  discussed below, 
Commerce states that the certification stands because  the final rule will not have a significant 
economic impact on a  substantial number of small entities.  
 The entities upon which this rulemaking could have an impact  include foreign governments, 
foreign exporters and producers, some of  whom are affiliated with U.S. companies, and  U.S. 
importers. Commerce currently does not have information on the  number of entities that would be 
considered small under the Small  Business Administration's size standards for small businesses in 
the relevant industries. However, some of these entities may be c onsidered  small entities under the 
appropriate industry size standards. Although  this rule may indirectly impact small entities that are 
parties to  individual AD and CVD proceedings, it will not have a significant  economic impact on any 
such entities; the rule applies to  administrative enforcement actions, and only clarifies and 
establishes  streamlined procedures. It does not impose any significant costs on  regulated entities. 
Therefore, the rule would not have a significant  economic impact on a substantial  number of small 
business entities.  
 Commerce received two comments in response to its determination not  to prepare an Initial 
Regulatory Flexibility Analysis. One commenter  argues that the rule will incur new additional costs 
to affected U.S.  importers in  terms of the paperwork burden for additional  certifications under 
Sec.  351.228, costs associated with the  rebuilding of supply chains to address country -wide 
circumvention  determinations under Sec.  351 .226, and the retroactive application of  scope rulin gs 
under Sec.  351 .225. This commenter further argues that,  contrary to Commerce's certification 
statement in the Proposed Rule,  these are not enforcement actions but rather are new requirements 
or changed procedures that would directly impact U.S. importe rs. For these  reasons, the commenter 
argues that Commerce should prepare a regulatory  impact analysis inclusive of these costs to ensure 
that the rule does  not impose significant costs on small entities.  
 In response to this comment, a second commenter agrees that  Commerce should be required 
to prepare a regulatory flexibility  analysis. This commenter points to comments from several other 
parties  in arguing that a substantial number of small business will be directly  adversely affected, not 
indirectly impacted as stated in Commerce's  certification statement in the Proposed Rule. This 
commenter argues  that, with respect to the proposed comment period for industry support  
comments in response to a petition under Sec.  351 .203(g), small and  medium enterprises would G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  have difficulty meeting such deadlines because  these entities do not have the compliance or 
government relations  expertise to monitor Commerce's electronic docket on ACCESS.  Additionally, 
this commenter reiterates arguments from the first  commenter regarding the retroactive effect of 
scope ruling and  circumvention determinations under proposed Sec. Sec.  351 .225 and  351.226 and 
the impact on a substantial number of small entities.  
 Response:  
 As stated in the certification statement in the  Proposed Rule, the  proposed regulations, as 
further revised and adopted in this final  rule, will not have a significant economic impact on a 
substantial  number of small entities.  
 Regarding the number of small entities that may be indirectly  impacted, as stated in the 
Proposed Rule, the entities upon which this  rulemaking could have an impact include foreign 
governments, foreign  exporters and producers, some of whom are affiliated with U.S.  companies, 
and U.S. importers. Commerce currently does not have  information on the number of entities that 
would be considered small  under the Small Business Administration's size standards for small  
businesses in the relevant industries. However, some of these entities  may be considered small 
entities under the appropriate industry size  standards. Additionally, based on Commerce's 
experience in AD and CVD  proceedings, Commerce estimates that the number of small entities  
impacted by these revised regulations will not be substantial  
  Regarding the potential for a significant economic impact, although  these revised regulations 
may indirectly impact small entities that are  parties to individual AD and CVD proceedings, those 
impacts will not  have a significant economic impact on any such entities.  
 Moreover, as a gene ral matter, Commerce's proceedings, including  each of the types of 
proceedings discussed in this rule (AD and CVD  investigations, new shipper reviews, administrative 
reviews, scope  inquiries, circumvention inquiries, and covered merchandise inquiries),  afford fair 
notice and due process to all parties, including small  businesses. Commerce will ensure that any 
small business that is  potentially prejudiced by proceedings conducted in accordance with  these 
regulations will receive appropriate legal notice, as well as a  full and fair opportunity to present 
relevant information and arguments  to Commerce, before a determination is made that may have 
some impact  on such entity. We also note that, under the governing statute and in  practice, 
Commerce will consider a ny difficulties experienced by  interested parties, particularly small 
companies or those not  represented by counsel, in supplying any information requested, and  provide 
any assistance to such parties that is practicable. \204\ 
------------------------------ ---------------------------------------------  
 \204\ See section 782(c) of the Act.  
---------------------------------------------------------------------------  
 As summarized above, two commenters raised arguments regarding the  impact on small 
entities ari sing from the certification requirements  under Sec.  351 .228, country -wide circumvention 
determinations and  retroactive application under Sec.  351 .226, the retroactive  application of scope 
rulings under Sec.  351 .225, and the comment  deadline for industry support under Sec.  351 .203(g).  
 First, as explained above in response to a similar comment  pertaining to Sec.  351 .228, the 
regulation itself does not impose any  burden; a determination of whether to implement a certification  
require ment is made on the record of an individual case --the regulation  merely codifies existing 
practice. Further, any burden related to  Commerce's determination, in a given case, to impose a 
certification  requirement on importers is narrowly tailored to the fac ts of its  determination and is 
otherwise a minimal burden. Moreover, any such  burden resulting from a certification requirement 
is outweighed by its  benefits. For example, companies that export or import under a  certification 
scheme will potentially have l ess duty liability than  other similarly situated importers or exporters.  
 Second, with respect to any rebuilding of supply chains to address  country -wide circumvention 
determinations, Commerce's role by statute,  and the purpose of the AD/CVD law, is not to manage 
the business  operations of domestic importers, but to enforce the trade remedy laws  and ensure 
that those laws will not be circumvented. In accordance with  this framework, producers, exporters, 
and importers must determine how  best to comply with  an AD/CVD order pursuant to any number 
of business  decisions, in light of the order and in response to a scope ruling,  circumvention 
determination, or covered merchandise determination.  
 Third, as explained above, Commerce has revised its suspension of  liquidation provisions under 
Sec. Sec.  351 .225(l) and 351.226(l) for  scope and circumvention inquiries in light of comments 
from several  parties. Commerce will now consider additional information under  certain scenarios in 
scope inquiries to determine if th e application of  retroactive suspension is appropriate. Furthermore, 
Commerce will only  apply its circumvention determinations to entries that precede the date  of 
initiation of the circumvention inquiry when it determines the facts on  the record warrant such an G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  application. Additionally, these revisions  to Commerce's regulations will not impact any imports of 
entries that  pre-date the effective date of the final rule, as explained in the  DATES section and the 
Applicability Dates section  of the preamble of  this final rule, and in more detail under Sec. 
Sec.  351.225(l) and  351.226(l). Through these revisions to the Proposed Rule, Commerce has  
reduced any impact on U.S. importers, which may include small entities,  and further reduced the 
number of small entities that may be impacted.  Therefore, the final rule will not have a direct, 
significant economic  impact on a substantial number of small entities.  
 Fourth, and finally, with respect to the argument that the comment  period for industry s upport 
would significantly impact a substantial  number of small entities, we disagree. Under 
Sec.  351.203(g), Commerce  is establishing a deadline for comments on the issue of domestic  
industry support of an AD or CVD petition no later than five business  days before the scheduled date 
of initiation, and rebuttal comments no  later than two calendar days thereafter. Currently, there is 
no established comment period, meaning parties can comment up until the  day of Commerce's 
decision. As stated in the certific ation statement,  this is a clarification of Commerce's procedures 
and does not impose  any direct cost, let alone a significant cost, on small entities.  Further, the 
parties that normally comment on industry support include  domestic producers of like produc ts that 
may be considered small  entities under the appropriate SBA small business size standard.  Although 
Commerce is unable to estimate the number of producers that  may be considered small entities, 
Commerce does not anticipate that the  number affected by  the proposed rule will be substantial. 
Typically,  domestic producers that bring a petition or participate actively in an  AD or CVD proceeding 
account for a large amount of the domestic  production within an industry, so it is unlikely that many 
of these  domestic producers will be small entities. Therefore, the proposed  regulation, as adopted 
in this final rule, will not have a significant  economic impact on a substantial number of small entities.  
 In sum, Commerce does not dispute that these new and revis ed regulations will have an impact 
on U.S. importers. However, the current  regulations and Commerce's AD and CVD proceedings 
already have an  impact on those entities. Thus, the question for purposes of a  regulatory impact 
analysis is whether these revision s and additions are  such that the changes will have an economic 
impact which is significant  on a substantial number of small entities. They will not.  
 For these reasons, we continue to find that neither an Initial  Regulatory Flexibility Analysis nor 
a Fina l Regulatory Flexibility  Analysis is required and none has been prepared. Therefore, Commerce  
certified that the final rule will not have a significant impact on a  substantial number of small 
business entities.  
List of Subjects in 19 CFR Part 351  
 Administ rative practice and procedure, Antidumping, Business and  industry, Cheese, 
Confidential business information, Countervailing  duties, Freedom of information, Investigations, 
Reporting and  recordkeeping requirements.  
 Dated: August 16, 2021.  
Christian Marsh,  Acting Assistant Secretary for Enforcement and Compliance.  
 For the reasons stated in the preamble, the Department of Commerce  amends 19 CFR part 351 
as follows:  
PART 351 --ANTIDUMPING AND COUNTERVAILING DUTIES  
1. The authority citation for part 351 contin ues to read as follows:  
 Authority: 5 U.S.C. 301; 19 U.S.C. 1202 note; 19 U.S.C. 1303  note; 19 U.S.C. 1671 et seq.; 
and 19 U.S.C. 3538.  
 
2. In Sec.  351 .103, effective November 4, 2021, revise paragraphs (d)  introductory text and (d)(1) 
to read as follows:  
Sec.  351 .103 Central Records Unit and Administrative Protective Order  and Dockets Unit.  
 
 (d) The APO/Dockets Unit will maintain and make available a public  service list for each segment 
of a proceeding. The service list for an  application for a scope ruling is described in Sec.  351 .225(n). 
The service list for a request for a circumvention inquiry is described in  Sec.  351 .226(n).  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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   (1) With the exception of a petitioner filing a petition in an  investigation pursuant to Sec.  
351.202, an interest ed party filing a  scope ruling application pursuant to Sec.  351 .225(c), an 
interested  party filing a request for a circumvention inquiry pursuant to Sec.  351 .226(c), and those 
relevant parties identified by the Customs  Service in a covered merchandise re ferral pursuant to 
Sec.  351 .227,  all persons wishing to participate in a segment of a proceeding must  file an entry of 
appearance. The entry of appearance must identify the  name of the interested party, how that party 
qualifies as an interested  party under Sec.  351 .102(b)(29) and section 771(9) of the Act, and the  
name of the firm, if any, representing the interested party in that  particular segment of the 
proceeding. All persons who file an entry of  appearance and qualify as an interested party  will be 
included in the  public service list for the segment of the proceeding in which the  entry of appearance 
is submitted. The entry of appearance may be filed  as a cover letter to an application for APO access. 
If the  representative of the interested p arty is not requesting access to  business proprietary 
information under APO, the entry of appearance  must be filed separately from any other document 
filed with the  Department. If the interested party is a coalition or association as  defined in 
subparagrap h (A), (E), (F) or (G) of section 771(9) of the  Act, the entry of appearance must identify 
all of the members of the  coalition or association.  
 
3. In Sec.  351 .203, effective October 20, 2021, add paragraph (g) to  read as follows:  
Sec.  351 .203 Determinati on of sufficiency of petition.  
 
 (g) Time limits for filing interested party comments on industry  support. For purposes of 
sections 702(c)(4)(E) and 732(c)(4)(E) of the  Act, the Secretary will consider comments or 
information on the issue  of industry suppo rt submitted no later than 5 business days before the  date 
referenced in paragraph (b)(1) of this section by any interested  party under section 771(9) of the 
Act. The Secretary will consider  rebuttal comments or information to rebut, clarify, or correct such  
information on industry support submitted by any interested party no  later than two calendar days 
from the time limit for filing comments.  
4. Effective October 20, 2021, revise Sec.  351 .214 to read as follows:  
Sec.  351 .214 New shipper reviews under section 751(a)(2)(B) of the  Act. 
 (a) Introduction.  Section 751(a)(2)(B) of the Act provides a  procedure by which so -called "new 
shippers " can obtain their own  individual dumping margin or countervailable subsidy rate on an  
expedited basis. In general, a new shipper is an exporter or producer  that did not export, and is not 
affiliated with an exporter or producer  that did export, to the United States during the period of  
investigation. Furthermore, section  751(a)(2)(B)(iv) requires tha t the Secretary make a 
determination of  whether the sales under review are bona fide. This section contains  rules regarding 
requests for new shipper reviews and procedures for  conducting such reviews, as well as 
requirements for determining  whether sales a re bona fide under section 751(a)(2)(B)(iv) of the Act.  
In addition, this section contains rules regarding requests for  expedited reviews by non -investigated 
exporters in certain  countervailing duty proceedings and procedures for conducting such  reviews.  
 (b) Request for new shipper review --(1) Requirement of sale or  export . Subject to the 
requirements of section 751(a)(2)(B) of the Act  and this section, an exporter or producer may 
request a new shipper  review if it has exported, or sold for export, subject  merchandise to  the United 
States and can demonstrate the existence of a bona fide  sale. 
 (2) Contents of request . A request for a new shipper review must  contain the following:  
 (i) If the person requesting the review is both the exporter and  producer of the merchandise, a 
certification that the person requesting  the review did not export subject merchandise to the 
United  States (or,  in the case of a regional industry, did not export the subject  merchandise for sale 
in the region concerned) dur ing the period of  investigation;  
 (ii) If the person requesting the review is the exporter, but not  the producer, of the subject 
merchandise:  
 (A) The certification described in paragraph (b)(2)(i) of this  section; and  
 (B) A certification from the person that produced or supplied the  subject merchandise to the 
person requesting the review that that  producer or supplier did not export the subject merchandise 
to the  United States (or, in the case of a regional industry, did not export  the subject merchandise  
for sale in the region concerned) during the  period of investigation;  
 (iii)(A) A certification that, since the investigation was  initiated, such exporter or producer has 
never been affiliated with any  exporter or producer who exported the subject merchan dise to the G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  United  States (or in the case of a regional industry, who exported the subject  merchandise for sale 
in the region concerned) during the period of  investigation, including those not individually examined 
during the  investigation; and  
 (B) In an antidumping proceeding involving imports from a nonmarket  economy country, a 
certification that the export activities of such  exporter or producer are not controlled by the central 
government;  
 (iv) Certain information regarding the unaffiliated customer:  
 (A) A certification from the exporter or producer that it will  provide, to the fullest extent 
possible, necessary information related  to the unaffiliated customer in the United States during the 
new shipper review; and  
 (B) A certification by the unaffili ated customer of its willingness  to participate in the new shipper 
review and provide information  relevant to the new shipper review, if such information is requested 
by the Secretary, or an explanation by the producer/exporter of why such  certification fr om the 
unaffiliated customer cannot be provided.  
 (v) Documentation establishing:  
 (A) The date on which subject merchandise of the exporter or  producer making the request was 
first entered, or withdrawn from  warehouse, for consumption, or, if the exporter or producer cannot  
establish the date of first entry, the date on which the exporter or  producer first shipped the subject 
merchandise for export to the United  States;  
 (B) The volume of that shipment and any subsequent shipments,  including whethe r such 
shipments were made in commercial quantities;  
 (C) The date of the first sale, and any subsequent sales, to an  unaffiliated customer in the 
United States;  
 (D) The circumstances surrounding such sale(s), including but not  limited to:  
 (1) The price of such sales;  
 (2) Any expenses arising from such sales;  
 (3) Whether the subject merchandise involved in such sales was  resold in the United States at 
a profit;  
 (4) Whether such sales were made on an arms -length basis; and  
 (E) Additional document ation regarding the business activities of  the producer or exporter, 
including but not limited to:  
 (1) The producer or exporter's offers to sell merchandise in the  United States;  
 (2) An identification of the complete circumstance surrounding the  producer  or exporter's sales 
to the United States, as well as any home  market or third country sales;  
 (3) In the case of a non -producing exporter, an explanation of the  exporter's relationship with 
its producer/supplier; and  
 (4) An identification of the producer 's or exporter's relationship  to the first unaffiliated U.S. 
purchaser;  
 (vi) In the case of a review of a countervailing duty order, a  certification that the exporter or 
producer has informed the government  of the exporting country that the government wil l be required 
to provide a full response to the Department's questionnaire.  
 (c) Deadline for requesting review . An exporter or producer may  request a new shipper review 
within one year of the date referred to in  paragraph (b)(2)(v)(A) of this section.  
 (d) Initiation of new shipper review --(1) In general . If the  requirements for a request for new 
shipper review under paragraph (b)  of this section are satisfied, the Secretary will initiate a new  
shipper review under this section in the calendar month immediately  following the anniversary month 
or the semiannual anniversary month if  the request for the review is made during the 6 -month 
period ending  with the end of the anniversary month or the semiannual anniversary  month 
(whichever is applicable).  
 (2) Semiannual anniversary month . The semiannual anniversary month  is the calendar month 
that is 6 months after the anniversary month.  
 (3) Example . An order is published in January. The anniversary  month would be January, and 
the semiannual anniversary month  would be  July. If the Secretary received a request for a new 
shipper review at  any time during the period February -July, the Secretary would initiate  a new 
shipper review in August. If the Secretary received a request for  a new shipper review at any time 
during the period August -January, the  Secretary would initiate a new shipper review in February.  
 (4) Exception . If the Secretary determines that the requirements  for a request for new shipper 
review under paragraph (b) of this  section have not been satisf ied, the Secretary will reject the 
request  and provide a written explanation of the reasons for the rejection.  
 (e) Suspension of liquidation . When the Secretary initiates a new  shipper review under this 
section, the Secretary will direct the  Customs Servi ce to suspend or continue to suspend liquidation G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  of any  unliquidated entries of the subject merchandise from the relevant  exporter or producer at the 
applicable cash deposit rate.  
 (f) Rescission of new shipper review --(1) Withdrawal of request for  review . The Secretary may 
rescind a new shipper review under this  section, in whole or in part, if a producer or exporter that 
requested  a review withdraws its request not later than 60 days after the date of  publication of 
notice of initiation of the requested review.  
 (2) Absence of entry and sale to an unaffiliated customer . The  Secretary may rescind a new 
shipper review, in whole or in part, if the  Secretary concludes that:  
 (i) As of the end of the normal period of review referred to in  paragraph (g) of this  section, 
there has not been an entry and sale to  an unaffiliated customer in the United States of subject 
merchandise;  and 
 (ii) An expansion of the normal period of review to include an  entry and sale to an unaffiliated 
customer in the United States of  subject merchandise would be likely to prevent the completion of 
the review within the time limits set forth in paragraph (i) of this  section;  
 (3) Absence of bona fide sale to an unaffiliated customer . The  Secretary may rescind a new 
shipper review, in whole or in part, if the  Secretary concludes that:  
 (i) Information that the Secretary considers necessary to conduct a  bona fide sale analysis is 
not on the record; or  
 (ii) The producer or exporter seeking a new shipper review has  failed to demonstrate t o the 
satisfaction of the Secretary the  existence of a bona fide sale to an unaffiliated customer.  
 (4) Notice of rescission . If the Secretary rescinds a new shipper  review (in whole or in part), 
the Secretary will publish in the Federal  Register notice of "Rescission of Antidumping (Countervailing 
Duty)  New Shipper Review " or, if appropriate, "Partial Rescission of  Antidumping (Countervailing 
Duty) New Shipper Review. " 
 (g) Period of review --(1) Antidumping proceeding --(i) In general . Except as provided in 
paragraph (g)(1)(ii) of this section, in an  antidumping proceeding, a new shipper review under this 
section  normally will cover, as appropriate, entries, exports, or sales during  the following time 
periods:  
 (A) If the new shipper review  was initiated in the month  immediately following the anniversary 
month, the twelve -month period  immediately preceding the anniversary month; or  
 (B) If the new shipper review was initiated in the month  immediately following the semiannual 
anniversary mont h, the period of  review will be the six -month period immediately preceding the  
semiannual anniversary month.  
 (ii) Exceptions . (A) If the Secretary initiates a new shipper  review under this section in the 
month immediately following the first  anniversary m onth, the review normally will cover, as 
appropriate,  entries, exports, or sales during the period from the date of  suspension of liquidation 
under this part to the end of the month  immediately preceding the first anniversary month.  
 (B) If the Secretary i nitiates a new shipper review under this  section in the month immediately 
following the first semiannual  anniversary month, the review normally will cover, as appropriate,  
entries, exports, or sales during the period from the date of  suspension of liquidat ion under this part 
to the end of the month  immediately preceding the first semiannual anniversary month.  
 (2) Countervailing duty proceeding . In a countervailing duty  proceeding, the period of review 
for a new shipper review under this  section will be the same period as that specified in Sec.  
351.213(e)(2) for an administrative review.  
 (h) Procedures . The Secretary will conduct a new shipper review  under this section in 
accordance with Sec.  351 .221. 
 (i) Time limits --(1) In general. U nless the time limit is waived  under paragraph (j)(3) of this 
section, the Secretary will issue  preliminary results of review (see Sec.  351 .221(b)(4)) within 180 
days after the date on which the new shipper review was initiated, and final  results of revie w (see 
Sec.  351 .221(b)(5)) within 90 days after the  date on which the preliminary results were issued.  
 (2) Exception . If the Secretary concludes that a new shipper review  is extraordinarily 
complicated, the Secretary may extend the 180 -day period to 300 days, and may extend the 90 -day 
period to 150 days.  
 (j) Multiple reviews . Notwithstanding any other provision of this  subpart, if a review (or a 
request for a review) under Sec.  351 .213 (administrative review), Sec.  351 .214 (new shipper 
review), Sec.  3 51.215 (expedited antidumping review), or Sec.  351 .216 (changed  circumstances 
review) covers merchandise of an exporter or producer  subject to a review (or to a request for a 
review) under this section,  the Secretary may, after consulting with the exporter or producer:  
 (1) Rescind, in whole or in part, a review in progress under this  subpart;  
 (2) Decline to initiate, in whole or in part, a review under this  subpart; or  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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   (3) Where the requesting producer or exporter agrees in writing to  waive the t ime limits of 
paragraph (i) of this section, conduct  concurrent reviews, in which case all other provisions of this 
section  will continue to apply with respect to the exporter or producer.  
 (k) Determinations based on bona fide sales . In determining whethe r the U.S. sales of an 
exporter or producer made during the period  covered by the review are bona fide, the Secretary 
shall consider the  factors identified at section 751(a)(2)(B)(iv) of the Act. In  accordance with section 
751(a)(2)(B)(iv)(VII) of the Act,  the Secretary  shall consider the following factors:  
 (1) Whether the producer, exporter, or customer was established for  purposes of the sale(s) in 
question after the imposition of the  relevant antidumping or countervailing duty order;  
 (2) Whether the pr oducer, exporter, or customer has lines of  business unrelated to the subject 
merchandise;  
 (3) The quantity of sales; and  
 (4) Any other factor that the Secretary determines to be relevant  with respect to the future 
selling behavior of the producer or  exporter, including any other indicia that the sale was not  
commercially viable.  
 (l) Expedited reviews in countervailing duty proceedings for  noninvestigated exporters --(1) 
Request for review . If, in a  countervailing duty investigation, the Secretary limited the number of  
exporters or producers to be individually examined under section  777A(e)(2)(A) of the Act, an 
exporter that the Secretary did not select  for individual examination or that the Secretary did not 
accept as a  voluntary respondent (see Sec.  351 .204(d)) may request a review under  this paragraph 
(l). An exporter must submit a request for review within  30 days of the date of publication in the 
Federal Register of the  countervailing duty order. A request must be accompanied by a  certification  
that: 
 (i) The requester exported the subject merchandise to the United  States during the period of 
investigation;  
 (ii) The requester is not affiliated with an exporter or producer  that the Secretary individually 
examined in the investigation; and  
 (iii) The requester has informed the government of the exporting  country that the government 
will be required to provide a full response  to the Department's questionnaire.  
 (2) Initiation of review --(i) In general . The Secretary will  initiate a review in t he month following 
the month in which a request  for review is due under paragraph (l)(1) of this section.  
 (ii) Example . The Secretary publishes a countervailing duty order  on January 15. An exporter 
would have to submit a request for a review  by February 14. The Secretary would initiate a review 
in March.  
 (3) Conduct of review . The Secretary will conduct a review under  this paragraph (l) in 
accordance with the provisions of this section  applicable to new shipper reviews, subject to the 
following exceptions:  
 (i) The period of review will be the period of investigation used  by the Secretary in the 
investigation that resulted in the publication  of the countervailing duty order (see Sec.  
351.204(b)(2));  
 (ii) The final results of a review under this  paragraph (l) will  not be the basis for the assessment 
of countervailing duties; and  
 (iii) The Secretary may exclude from the countervailing duty order  in question any exporter for 
which the Secretary determines an  individual net countervailable subsidy rate of zero or de minimis 
(see Sec.  351 .204(e)(1)), provided that the Secretary has verified the  information on which the 
exclusion is based.  
 (m) Exception from assessment in regional industry cases . For procedures relating to a request 
for the exceptio n from the assessment  of antidumping or countervailing duties in a regional industry 
case, see Sec.  351 .212(f).  
5. Effective November 4, 2021, revise Sec.  351 .225 to read as follows:  
Sec.  351 .225 Scope rulings.  
 (a) Introduction . Questions sometimes arise as to whether a  particular product is covered by 
the scope of an antidumping or  countervailing duty order. Such questions may arise for a variety of  
reasons given that the description of the merchandise subject to the  scope is written in ge neral 
terms. The Secretary will initiate and  conduct a scope inquiry and issue a scope ruling to determine 
whether  or not a product is covered by the scope of an order at the request of  an interested party 
or on the Secretary's initiative. A scope ruling  that a product is covered by the scope of an order is 
a determination  that the product has always been covered by the scope of that order.  This section G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  contains rules and procedures regarding scope rulings,  including scope ruling applications, scope 
inquiri es, and standards  used in determining whether a product is covered by the scope of an  order. 
Unless otherwise specified, the procedures as described in  subpart C of this part (Sec. Sec.  351 .301 
through 351.308 and  Sec. Sec.  351 .312 through 351.313) apply  to this section.  
 (b) Self-initiation of a scope inquiry . If the Secretary determines  from available information that 
an inquiry is warranted to determine  whether a product is covered by the scope of an order, the 
Secretary  may initiate a scope inquiry and publish a notice of initiation in the  Federal Register.  
 (c) Scope ruling application --(1) Contents . An interested party may  submit a scope ruling 
application requesting that the Secretary conduct  a scope inquiry to determine whether a product,  
which is or has been in  actual production by the time of the filing of the application, is  covered by 
the scope of an order. The Secretary will make available a  scope ruling application, which the 
applicant must complete and serve  in accordance with the r equirements of paragraph (n) of this 
section.  
 (2) Requested information . To the extent reasonably available to  the applicant, the scope ruling 
application must include the following  requested information and relevant supporting 
documentation.  
 (i) A detai led description of the product and its uses, as  necessary:  
 (A) The physical characteristics (including chemical, dimensional,  and technical characteristics) 
of the product;  
 (B) The country(ies) where the product is produced, the country  from where the pr oduct is 
exported, and if imported, the declared  country of origin;  
 (C) The product's tariff classification under the Harmonized Tariff  Schedule of the United States 
and copies of any Customs rulings  relevant to the tariff classification;  
 (D) The uses of  the product;  
 (E) Clear and legible photographs, schematic drawings,  specifications, standards, marketing 
materials, and any other exemplars  providing a visual depiction of the product; and  
 (F) A description of parts, materials, and the production proces s employed in the production of 
the product;  
 (ii) A concise public summary of the product's description under  paragraphs (c)(2)(i)(A) through 
(C) of this section.  
 (iii) The name and address of the producer, exporter, and importer  of the product.  
 (iv) A  narrative history of the production of the product at issue,  including a history of earlier 
versions of the product if this is not  the first model of the product.  
 (v) The volume of annual production of the product for the most  recently completed fiscal y ear. 
 (vi) If the product has been imported into the United States as of  the date of the filing of the 
scope ruling application:  
 (A) An explanation as to whether an entry of the product has been  declared by an importer, or 
determined by the Customs Servic e, as subject to an order, and  
 (B) Relevant documentation, including dated copies of the Customs  Service entry summary 
forms (or electronic entry processing system  documentation) identifying the product upon 
importation and other  related commercial docume nts, including invoices and contracts, which  reflect 
the details surrounding the sale and purchase of that imported  product.  
 (vii) A statement as to whether the product undergoes any  additional processing in the United 
States after importation, or in a  third country before importation, and a statement as to the 
relevance  of this processing to the scope of the order.  
 (viii) The applicant's statement as to whether the product is  covered by the scope of the order, 
including:  
 (A) An explanation with specific reference to paragraph (j) and (k)  of this section, as 
appropriate;  
 (B) Citations to any applicable legal authority; and  
 (C) Whether there are companion orders as described in paragraph  (m)(2) of this section.  
 (ix) Factual information supportin g the applicant's position,  including full copies of prior scope 
determinations and relevant  excerpts of other documents identified in paragraph (k)(1) of this  
section.  
 (d) Initiation of a scope inquiry and other actions based on a  scope ruling applicatio n--(1) 
Initiation of a scope inquiry based on a  scope ruling application . Except as provided under paragraph 
(d)(2) of  this section, within 30 days after the filing of a scope ruling  application, the Secretary will 
determine whether to accept or reject  the scope ruling application.  
 (i) If the Secretary determines that a scope ruling application is  incomplete or otherwise 
unacceptable, the Secretary may reject the  scope ruling application and will provide a written 
explanation of the  reasons for t he rejection. If the scope ruling application is rejected,  the applicant 
may resubmit the full application at any time, with all  identified deficiencies corrected.  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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   (ii) If the Secretary does not reject the scope ruling application  or initiate the scope in quiry 
within 31 days after the filing of the  application, the application will be deemed accepted and the 
scope  inquiry will be deemed initiated.  
 (2) Addressing the scope issue in another segment of the  proceeding . Within 30 days after the 
filing of a sco pe ruling  application, if the Secretary determines upon review of the application  that 
the scope issue before the Secretary should be addressed in an  ongoing segment of the proceeding, 
such as a circumvention inquiry  under Sec.  351 .226 or a covered mercha ndise inquiry under Sec.  
351.227, rather than  initiating a scope inquiry, the Secretary will notify the applicant of  its intent to 
address the scope issue in such other segment.  
 (3) Notice of scope applications . On a monthly basis, the Secretary  will publish a notice in the 
Federal Register listing scope  applications filed with the Secretary.  
 (e) Deadlines for scope rulings --(1) In general . The Secretary  shall issue a final scope ruling 
within 120 days after the date on  which the scope inquiry was ini tiated under paragraph (b) or (d) 
of this section.  
 (2) Extension . The Secretary may extend the deadline in paragraph  (e)(1) of this section by no 
more than 180 days if the Secretary  determines that good cause exists to warrant an extension. 
Situations  in which good cause has been demonstrated may include:  
 (i) If the Secretary has issued questionnaires to the applicant or  other interested parties; 
received responses to those questionnaires;  and determined that an extension is warranted to 
request further  information or consider and address the parties' responses on the  record adequately; 
or 
 (ii) The Secretary has issued a preliminary scope ruling (see  paragraph (g) of this section).  
 (3) Alignment with other segments . If the Secretary determines it  is appr opriate to do so, the 
Secretary may align the deadlines under  this paragraph with the deadlines of another segment of 
the proceeding.  
 (f) Scope inquiry procedures . (1) Within 30 days of the Secretary's  self-initiation of a scope 
inquiry under paragraph (b ) of this section,  interested parties are permitted one opportunity to 
submit comments and  factual information addressing the self -initiation. Within 14 days of  the filing 
of such comments, any interested party is permitted one  opportunity to submit commen ts and 
factual information to rebut,  clarify, or correct factual information submitted by the other  interested 
parties.  
 (2) Within 30 days of the initiation of a scope inquiry under  paragraph (d)(2) of this section, an 
interested party other than the  applicant is permitted one opportunity to submit comments and 
factual  information to rebut, clarify, or correct factual information contained  in the scope ruling 
application. Within 14 days of the filing of such  rebuttal, clarification, or correction, the applicant is 
permitted one  opportunity to submit comments and factual information to rebut,  clarify, or correct 
factual information submitted in the interested  party's rebuttal, clarification or correction.  
 (3) Following initiation of a scope inquiry unde r paragraph (b) or  (d) of this section, the 
Secretary may issue questionnaires and verify  submissions received, where appropriate. The 
Secretary may limit  issuance of questionnaires to a reasonable number of respondents.  
Questionnaire responses are due on the date specified by the Secretary.  Within 14 days after a 
questionnaire response has been filed with the  Secretary, an interested party other than the original 
submitter is  permitted one opportunity to submit comments and factual information to  rebut, cl arify, 
or correct factual information contained in the  questionnaire response. Within seven days of the 
filing of such  rebuttal, clarification, or correction, the original submitter is  permitted one opportunity 
to submit comments and factual information to  rebut, clarify, or correct factual information 
submitted in the  interested party's rebuttal, clarification or correction.  
 (4) If the Secretary issues a preliminary scope ruling under  paragraph (g) of this section, which 
is not issued concurrently with  the initiation of the scope inquiry, the Secretary will establish a  
schedule for the filing of scope comments and rebuttal comments. Unless  otherwise specified, any 
interested party may submit scope comments  within 14 days after the issuance of the prelimina ry 
scope ruling, and  any interested party may submit rebuttal comments within 7 days  thereafter. 
Unless otherwise specified, no new factual information will  be accepted in the scope or rebuttal 
comments.  
 (5) If the Secretary issues a preliminary scope rul ing concurrently  with the initiation of a scope 
inquiry under paragraph (g) of this  section, paragraphs (f)(1) through (4) of this section will not 
apply.  In such a situation, the Secretary will establish appropriate  procedures on a case -specific 
basis.  
 (6) If the Secretary determines it is appropriate to do so, the  Secretary may rescind, in whole 
or in part, a scope inquiry under this  section and will notify interested parties.  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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   (7) If the Secretary determines it is appropriate to do so, the  Secretary may  alter or extend 
any time limits under this paragraph or  establish a separate schedule for the filing of comments 
and/or factual  information during the scope inquiry.  
 (g) Preliminary scope ruling . The Secretary may issue a preliminary  scope ruling, based upon 
the available information at the time, as to  whether there is a reasonable basis to believe or suspect 
that the  product subject to a scope inquiry is covered by the scope of the  order. In determining 
whether to issue a preliminary scope ruling, the Secretary may consider the complexity of the issues 
and arguments  raised in the scope inquiry. The Secretary may issue a preliminary  scope ruling 
concurrently with the initiation of a scope inquiry under  paragraph (b) or (d) of this section.  
 (h) Final scope ruling . The Secretary will issue a final scope  ruling as to whether the product 
that is the subject of the scope  inquiry is covered by the scope of the order, including an explanation  
of the factual and legal conclusions on which the final scop e ruling is  based. The Secretary will 
promptly convey a copy of the final scope  ruling in the manner prescribed by section 
516A(a)(2)(A)(ii) of the Act  to all parties to the proceeding (see Sec.  351 .102(b)(36)), subject to  
the notice requirements for Gove rnments of an FTA country under Sec.  356.6 and Sec. 356.7.  
 (i) Other segments of the proceeding . (1) Notwithstanding any other  provision of this section, 
the Secretary may, but is not required to,  address scope issues in another segment of the 
proceeding,  such as an  administrative review under Sec.  351 .213, a circumvention inquiry  under 
Sec.  351 .226, or a covered merchandise inquiry under Sec.  351 .227 without conducting or 
completing a scope inquiry under this  section. For example, the Secretary may res cind a scope 
inquiry under  paragraph (f)(6) of this section and determine whether the product at  issue is covered 
by the scope of the order in another segment of the  proceeding (including another scope inquiry).  
 (2) During the pendency of a scope inquiry or upon issuance of a  final scope ruling under 
paragraph (h) of this section, the Secretary  may take any further action, as appropriate, with respect 
to another  segment of the proceeding. For example, if the Secretary considers it  appropriate, the 
Secretary may request information concerning the  product that is the subject of the scope inquiry 
for purpose of an  administrative review under Sec.  351 .213. 
 (j) Country of origin determinations . In considering whether a  product is covered by the scope 
of the order at issue, the Secretary  may need to determine the country of origin of the product. To 
make  such a determination, the Secretary may use any reasonable method and  is not bound by the 
determinations of any other agency, including  tariff classific ation and country of origin marking 
rulings issued by  the Customs Service.  
 (1) In determining the country of origin, the Secretary may conduct  a substantial transformation 
analysis that considers relevant factors  that arise on a case -by-case basis, includ ing: 
 (i) Whether the processed downstream product is a different class  or kind of merchandise than 
the upstream product;  
 (ii) The physical characteristics (including chemical, dimensional,  and technical characteristics) 
of the product;  
 (iii) The intende d end -use of the downstream product;  
 (iv) The cost of production/value added of further processing in  the third country or countries;  
 (v) The nature and sophistication of processing in the third  country or countries; and  (vi) The 
level of investment in the third country or countries.  
 (2) In conducting a country of origin determination, the Secretary  also may consider where the 
essential component of the product is  produced or where the essential characteristics of the product 
are imparted.  
 (k) Scope rulings . (1) In determining whether a product is covered  by the scope of the order at 
issue, the Secretary will consider the  language of the scope and may make its determination on this 
basis alone if the language of the scope, including the de scriptions of  merchandise expressly 
excluded from the scope, is dispositive.  
 (i) The following primary interpretive sources may be taken into  account under paragraph (k)(1) 
introductory text of this section, at  the discretion of the Secretary:  
 (A) The de scriptions of the merchandise contained in the petition  pertaining to the order at 
issue;  
 (B) The descriptions of the merchandise contained in the initial  investigation pertaining to the 
order at issue;  
 (C) Previous or concurrent determinations of the Se cretary,  including prior scope rulings, 
memoranda, or clarifications pertaining  to both the order at issue, as well as other orders with same 
or similar language as that of the order at issue; and  
 (D) Determinations of the Commission pertaining to the ord er at issue, including reports issued 
pursuant to the Commission's initial  investigation.  
 (ii) The Secretary may also consider secondary interpretive sources  under paragraph (k)(1) 
introductory text of this section, such as any  other determinations of the  Secretary or the G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  Commission not identified  above, Customs rulings or determinations, industry usage, dictionaries,  
and any other relevant record evidence. However, in the event of a  conflict between these secondary 
interpretive sources and the primary  interpretive sources under paragraph (k)(1)(i) of this section, 
the primary interpretive sources will normally govern in determining  whether a product is covered 
by the scope of the order at issue.  
 (2)(i) If the Secretary determines that the sources under paragraph  (k)(1) of this section are 
not dispositive, the Secretary will then  further consider the following factors:  
 (A) The physical characteristics (including chemical, dimensional,  and technical characteristics) 
of the product;  
 (B) The expectat ions of the ultimate users;  
 (C) The ultimate use of the product;  
 (D) The channels of trade in which the product is sold; and  
 (E) The manner in which the product is advertised and displayed.  
 (ii) In the event of a conflict between the factors under paragraph  (k)(2)(i) of this section, 
paragraph (k)(2)(i)(A) will normally be  allotted greater weight than the other factors.  
 (3) If merchandise contains or consists of two or more components  and the product at issue in 
the scope inquiry is a component of that merchandise as a whole, the Secretary may adopt the 
following analysis:  
 (i) The Secretary will analyze the scope language under paragraph  (k)(1) of this section, and, 
if necessary, the factors under paragraph  (k)(2) of this section, to determine if t he component 
product, standing  alone, would be covered by an order;  
 (ii) If the Secretary determines that the component product would  otherwise be covered by the 
scope of an order as a result of the  analysis under (k)(3)(i) of this section, the Secretary will consider  
the scope language under paragraph (k)(1) of this section to determine  whether the component 
product's inclusion in the merchandise as a whole  results in its exclusion from the scope of the order; 
and 
 (iii) If the Secretary determines the an alysis under (k)(3)(ii) of  this section does not resolve 
whether the component product's inclusion  in the merchandise as a whole results in its exclusion 
from the scope  of the order, then the Secretary will consider, as appropriate, the  following relevant 
factors that may arise on a product -specific basis:  
 (A) The practicability of separating the in -scope component for  repackaging or resale, 
considering the relative difficulty and expense  of separating the components;  
 (B) The measurable value of the in -scope component as compared to  the measurable value of 
the merchandise as a whole; and  
 (C) The ultimate use or function of the in -scope component relative  to the ultimate use or 
function of the merchandise as a whole.   
(l) Suspension of liquidation . (1) When the Secretary initiates a  scope inquiry under paragraph (b) 
or (d) of this section, the Secretary  will notify the Customs Service of the initiation and direct the  
Customs Service to continue the suspension of liquidation of entries of  products subject to the scope 
inquiry that were already subject to the  suspension of liquidation, and to apply the cash deposit rate 
that would be applicable if the product were determined to be covered by the  scope of the order.  
 (2) If the Secretary iss ues a preliminary scope ruling under  paragraph (g) of this section that 
the product at issue is covered by  the scope of the order, the Secretary will take the following 
actions:  
 (i) The Secretary will direct the Customs Service to continue the  suspension of liquidation of 
previously suspended entries and apply the  applicable cash deposit rate;  
 (ii) The Secretary will direct the Customs Service to begin the  suspension of liquidation and 
require a cash deposit of estimated  duties, at the applicable rate, fo r each unliquidated entry of the  
product not yet suspended, entered, or withdrawn from warehouse, for  consumption on or after the 
date of initiation of the scope inquiry;  and 
 (iii)(A) In general . Subject to paragraph (l)(2)(iii)(B) of this  section, the Se cretary normally will 
direct the Customs Service to  begin the suspension of liquidation and require a cash deposit of  
estimated duties, at the applicable rate, for each unliquidated entry  of the product not yet 
suspended, entered, or withdrawn from warehou se, for consumption prior to the date of initiation of 
the scope inquiry.  
 (B) Exception . If the Secretary determines it is appropriate to do  so, the Secretary may, at the 
timely request of an interested party or  at the Secretary's discretion, direct the C ustoms Service to 
begin the  suspension of liquidation and apply the applicable cash deposit rate  under paragraph 
(l)(2)(iii)(A) of this section at an alternative date.  In response to a timely request from an interested 
party, the Secretary  will only consider an alternative date based on a specific argument  supported 
by evidence establishing the appropriateness of that  alternative date.  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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   (3) If the Secretary issues a final scope ruling under paragraph  (h) of this section that the 
product at issue is  covered by the scope of the order, the Secretary will take the  following actions:  
 (i) The Secretary will direct the Customs Service to continue the  suspension of liquidation of 
previously suspended entries and apply the  applicable cash deposit rate until ap propriate liquidation 
instructions  are issued;  
 (ii) The Secretary will direct the Customs Service to begin the  suspension of liquidation and 
require a cash deposit of estimated  duties, at the applicable rate, for each unliquidated entry of the  
product not  yet suspended, entered, or withdrawn from warehouse, for  consumption on or after the 
date of initiation of the scope inquiry  until appropriate liquidation instructions are issued; and  
 (iii)(A) In general . Subject to paragraph (l)(3)(iii)(B) of this  section, the Secretary normally will 
direct the Customs Service to  begin the suspension of liquidation and require a cash deposit of  
estimated duties, at the applicable rate, for each unliquidated entry  of the product not yet 
suspended, entered, or withdrawn fr om warehouse,  for consumption prior to the date of initiation of 
the scope inquiry  until appropriate liquidation instructions are issued.  
 (B) Exception . If the Secretary determines it is appropriate to do  so, the Secretary may, at the 
timely request of an  interested party or  at the Secretary's discretion, direct the Customs Service to 
begin the  suspension of liquidation and apply the applicable cash deposit rate  under paragraph 
(l)(3)(iii)(A) of this section at an alternative date  until appropriate liquidation instructions are issued. 
In response to a  timely request from an interested party, the Secretary will only  consider an 
alternative date based on a specific argument supported by  evidence establishing the 
appropriateness of that alte rnative date.  
 (4) If the Secretary issues a final scope ruling under paragraph  (h) of this section that the 
product is not covered by the scope of the  order, and entries of the product at issue are not otherwise 
subject to  suspension of liquidation as a r esult of another segment of the  proceeding, such as a 
circumvention inquiry under Sec.  351 .226 or a  covered merchandise inquiry under Sec.  351 .227, 
the Secretary will  order the Customs Service to terminate the suspension of liquidation  and refund 
any cas h deposits for such entries.  
 (5) Nothing in this section affects the Customs Service's authority  to take any additional action 
with respect to the suspension of  liquidation or related measures.  
 (m) Applicability of scope rulings ; companion orders --(1) Applicability of scope rulings . In 
conducting a scope inquiry under  this section, the Secretary shall consider, based on the available  
record evidence, whether the scope ruling should be applied:  
 (i) On a producer -specific, exporter -specific, import er-specific  basis, or some combination 
thereof; or  
 (ii) To all products from the same country with the same relevant  physical characteristics, 
(including chemical, dimensional and  technical characteristics) as the product at issue, on a country -
wide basis, regardless of the producer, exporter or importer of those  products.  
 (2) Companion antidumping and countervailing duty orders . If there  are companion 
antidumping and countervailing duty orders covering the  same merchandise from the same country 
of origin , the requesting  interested party under paragraph (c) of this section must file the  scope 
ruling application pertaining to both orders only on the record  of the antidumping duty proceeding. 
Should the Secretary determine to  initiate a scope inquiry under paragraph (b) or (d) of this section,  
the Secretary will initiate and conduct a single inquiry with respect  to the product at issue for both 
orders only on the record of the  antidumping proceeding. Once the Secretary issues a final scope 
ruling  on th e record of the antidumping duty proceeding, the Secretary will  include a copy of that 
scope ruling on the record of the countervailing  duty proceeding.  
 (n) Service of scope ruling application; annual inquiry service  list; entry of appearance . (1) The 
requirements of Sec.  351 .303(f)  apply to this section, except that an interested party that submits 
a scope ruling application under paragraph (c) of this section must serve  a copy of the application 
on all persons on the annual inquiry service  list for that  order, as well as the companion order, if 
any, as  described in paragraph (m)(2) of this section. If a scope ruling  application is rejected and 
resubmitted pursuant to paragraph (d)(1) of  this section, service of the resubmitted application is 
not required  under this paragraph, unless otherwise specified.  
 (2) For purposes of this section, the "annual inquiry service  list" will include the petitioner(s) 
and those parties that file a  request for inclusion on the annual inquiry service list for a  proceeding, 
in accordance with the Secretary's established procedures.  
 (3) A new "annual inquiry service list " will be established on a  yearly basis. Parties filing a 
request for inclusion on that list must  file a request during the anniversary month of t he publication 
of the  antidumping or countervailing duty order. Only the petitioner and the  government of the 
foreign country at issue in an antidumping or  countervailing duty order will be automatically placed 
on the new  annual inquiry service list once t he previous year's list has been  replaced.  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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   (4) Once a scope inquiry has been self -initiated or a scope ruling  application is accepted by the 
Secretary, a segment -specific service  list will be established and the requirements of Sec.  
351.303(f) will  apply . Parties other than the scope ruling applicant under paragraph  (c) of this 
section that wish to participate in the scope inquiry must  file an entry of appearance in accordance 
with Sec.  351 .103(d)(1).  
 (o) Publication of list of final scope rulings . On a  quarterly  basis, the Secretary will publish in 
the Federal Register a list of  final scope rulings issued within the previous three months. This list  will 
include the case name, and a brief description of the ruling. The  Secretary also may include complete  
public versions of its scope  rulings on its website, should the Secretary determine such placement  
is warranted.  
 (p) Suspended investigations; suspension agreements . The Secretary  may apply the procedures 
set forth in this section in determining  whether a product at issue is covered by the scope of a 
suspended  investigation or a suspension agreement (see Sec.  351 .208).  
 (q) Scope clarifications . The Secretary may issue a scope  clarification in any segment of a 
proceeding providing an  interpretati on of specific language in the scope of an order or  addressing 
whether a product is covered or excluded by the scope of an  order at issue based on previous scope 
determinations covering the same  or similar products. Such a scope clarification may take the form 
of an interpretive footnote to the scope when the scope is published or  issued in instructions to the 
Customs Service.  
6. Effective November 4, 2021, add Sec.  351 .226 to subpart B to read  as follows:  
Sec.  351 .226 Circumvention inquiries.  
 (a) Introduction.  Section 781 of the Act addresses the  circumvention of antidumping and 
countervailing duty orders. This  provision recognizes that circumvention seriously undermines the  
effectiveness of the remedies provided by the antidumping and  countervailing duty proceedings and 
frustrates the purposes for which  these laws were enacted. Section 781 of the Act allows  the 
Secretary to apply antidumping and countervailing duty orders in  such a way as to prevent 
circumvention by including within the  scope of  the order four distinct categories of merchandise. The 
Secretary will  initiate and conduct a circumvention inquiry at the request of an  interested party or 
on the Secretary's initiative, and issue a  circumvention determination as provided for und er section 
781 of the  Act and the rules and procedures in this section. Unless otherwise  specified, the 
procedures as described in subpart C of this part  (Sec. Sec.  351 .301 through 351.308 and 351.312 
through 351.313) apply  to this section.  
 (b) Self-initiation of circumvention inquiry . If the Secretary  determines from available 
information that an inquiry is warranted into  the question of whether the elements necessary for a 
circumvention  determination under section 781 of the Act exist, the Secretary may  initiate a 
circumvention inquiry and publish a notice of initiation in  the Federal Register.  
 (c) Circumvention inquiry request --(1) In general . An interested  party may submit a request 
for a circumvention inquiry that alleges  that the elements necessary for a circumvention 
determination under  section 781 of the Act exist and that is accompanied by information  reasonably 
available to the interested party supporting these  allegations. The circumvention inquiry request 
must be served in  accordance with the requirements of paragraph (n) of this section.  
 (2) Contents of request . To the extent reasonably available to the  requestor, a circumvention 
inquiry request must include the following  requested information under paragraph (c)(1) of this 
section and  relevant supporting documentation:  
 (i) A detailed description of the merchandise allegedly  circumventing the antidumping or 
countervailing duty order, including:  
 (A) The physical characteristics (including chemical, dimensional  or technical characteristics ) of 
the product;  
 (B) The country(ies) where the product is produced, the country  from where it is exported, and 
the declared country of origin;  
 (C) The product's tariff classification under the Harmonized Tariff  Schedule of the United States 
and copies of any Customs rulings  relevant to the tariff classification;  
 (D) The uses of the product;  
 (E) Clear and legible photographs, schematic drawings,  specifications, standards, marketing 
materials, and any other exemplars  providing a visual depiction of the product; and  
 (F) A description of parts, materials, and the production process  employed in the production of 
the product.  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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   (ii) A concise public summary of the product's description under  paragraphs (c)(2)(i)(A) through 
(C) of this section.  
 (iii) The nam e and address of the producer, exporter, and importer  of the product. If the full 
universe of parties allegedly circumventing  the order(s) is unknown, then examples are sufficient.  
 (iv) A statement of the requestor's position as to the nature of  the alleg ed circumvention under 
section 781 of the Act, such as a  description of the procedures, channels of trade, and foreign 
countries  involved (including a description of the processes occurring in each  country), as 
appropriate.  
 (v) A statement of the requesto r's position as to whether the  circumvention inquiry, if initiated, 
should be conducted on a country - wide basis.  
 (vi) Factual information supporting this position, including import  and export data relevant to 
the merchandise allegedly circumventing the  antidumping or countervailing duty order.  
 (d) Initiation of a circumvention inquiry and other actions based  on a request --(1) Initiation of 
a circumvention inquiry . Except as  provided under paragraph (d)(2) of this section, within 30 days 
after the filing of a request for a circumvention inquiry, the Secretary will  determine whether to 
accept or reject the request. If it is not  practicable to determine whether to accept or reject a request 
within  30 days, the Secretary may extend that deadline by an additional 15  days.  
 (i) If the Secretary determines that the request is incomplete or  otherwise unacceptable, the 
Secretary may reject the request, and will  provide a written explanation of the reasons for the 
rejection. If the  request is r ejected, the requestor may resubmit the full request at any  time, with 
all identified deficiencies corrected.  
 (ii) If the Secretary determines that a request for a circumvention  inquiry satisfies the 
requirements of paragraph (c) of this section,  the Secr etary will accept the request and initiate a 
circumvention  inquiry. The Secretary will publish a notice of initiation in the  Federal Register.  
 (2) Other actions based on a request for a circumvention inquiry . Where applicable, the 
Secretary may take one o f the following actions  within the applicable timeline under paragraph 
(d)(1) of this section:  
 (i) If the Secretary determines upon review of a request for a  circumvention inquiry that a scope 
ruling is warranted before the  Secretary can conduct a circumv ention analysis, the Secretary may  
either initiate the circumvention inquiry under paragraph (d)(1)(ii) of  this section and address the 
scope issue in the circumvention inquiry  (see Sec.  351 .225(i)(1)), or defer initiation of the 
circumvention  inquiry pending the completion of any ongoing or new segment of the  proceeding 
addressing the scope issue. When initiation is deferred  pending another segment of the proceeding, 
if the result of that other  segment is that the product at issue  is not covered by the scope of the  
antidumping and/or countervailing duty order(s) at issue, the Secretary  may immediately initiate 
the circumvention inquiry upon the issuance of  the final decision in that other segment; or  
 (ii) If the Secretary determin es upon review of the request for a  circumvention inquiry that the 
circumvention issue should be addressed  in an ongoing segment of the proceeding, such as a 
covered merchandise  inquiry under Sec.  351 .227, rather than initiating a circumvention  inquiry, t he 
Secretary will notify the requestor of its intent to  address the circumvention issue in such other 
segment.  
 (e) Deadlines for circumvention determinations --(1) Preliminary  determination . The Secretary 
will issue a preliminary determination  under paragr aph (g)(1) of this section no later than 150 days 
from the  date of publication of the notice of initiation of a circumvention  inquiry under paragraph 
(b) or (d) of this section.  
 (2) Final determination . In accordance with section 781(f) of the  Act, the Se cretary shall, to the 
maximum extent practicable, issue a  final determination under paragraph (g)(2) of this section no 
later than 300 days from the date of publication of the notice of initiation  of a circumvention inquiry 
under paragraph (b) or (d) of th is section.  If the Secretary concludes that the inquiry is 
extraordinarily  complicated and additional time is necessary to issue a final  circumvention 
determination, then the Secretary may extend the 300 -day deadline by no more than 65 days.  
 (3) Alignment with other segments . If the Secretary determines it  is appropriate to do so, the 
Secretary may align the deadlines under  this paragraph with the deadlines of another segment of 
the proceeding.  
 (f) Circumvention inquiry procedures . (1) Within 30 days of the  publication of the notice of the 
Secretary's self -initiation of a  circumvention inquiry under paragraph (b) of this section, interested  
parties are permitted one opportunity to submit comments and  factual information addressing the 
self-initiat ion. Within 14 days of  the filing of such comments, any interested party is permitted one  
opportunity to submit comments and factual information to rebut,  clarify, or correct factual 
information submitted by the other  interested parties.  
 (2) Within 30 day s of the publication of the notice of initiation  of a circumvention inquiry under 
paragraph (d) of this section, an  interested party other than the requestor is permitted one G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  opportunity  to submit comments and factual information to rebut, clarify, or  correct factual 
information contained in the request. Within 14 days of  the filing of such rebuttal, clarification, or 
correction, the  requestor is permitted one opportunity to submit comments and factual  information 
to rebut, clarify, or correct factual infor mation contained  in the interested party's rebuttal, 
clarification or correction.  
 (3) Following initiation of a circumvention inquiry under paragraph  (b) or (d) of this section, the 
Secretary may issue questionnaires and  verify submissions received, where  appropriate. The 
Secretary may limit  issuance of questionnaires to a reasonable number of respondents.  
Questionnaire responses are due on the date specified by the Secretary.  Within 14 days after a 
questionnaire response has been filed with the  Secretary,  an interested party other than the original 
submitter is  permitted one opportunity to submit comments and factual information to  rebut, clarify, 
or correct factual information contained in the  questionnaire response. Within 7 days of the filing of 
such rebuttal,  clarification, or correction, the original submitter is permitted one  opportunity to 
submit comments and factual information to rebut,  clarify, or correct factual information contained 
in the interested  party's rebuttal, clarification or cor rection.  
 (4) If the Secretary issues a preliminary circumvention  determination under paragraph (g)(1) 
of this section, which is not  issued concurrently with the initiation of the circumvention inquiry,  the 
Secretary will establish a schedule for the filin g of comments and  rebuttal comments. Unless 
otherwise specified, any interested party may  submit comments within 14 days after the issuance 
of the preliminary  circumvention determination, and any interested party may submit  rebuttal 
comments within 7 days thereafter. Unless otherwise specified,  no new factual information will be 
accepted in the comments or rebuttal  comments.  
 (5) If the Secretary issues a preliminary circumvention  determination concurrently with the 
initiation of the circumvention  inquiry u nder paragraph (g)(1) of this section, paragraphs (f)(1)  
through (4) will not apply. In such a situation, the Secretary will  establish appropriate procedures 
on a case -specific basis.  
 (6) If the Secretary determines it is appropriate to do so, the  Secreta ry may rescind, in whole 
or in part, a circumvention inquiry,  under this section and will notify interested parties. Situations in  
which the Secretary may rescind a circumvention inquiry include:  
 (i) The requestor timely withdraws its request for a circum vention  inquiry under paragraph (c) 
of this section;  
 (ii) The Secretary issues a final determination in another segment  of a proceeding, and has 
determined that the merchandise at issue in  the circumvention inquiry is covered by the scope of 
the antidumpi ng or countervailing duty order;  
 (iii) The Secretary has initiated a circumvention inquiry under  paragraph (b) or (d) of this 
section to examine circumvention under two  or more provisions under paragraph (h), (i), (j), or (k) 
of this  section, and determin es that it is not necessary to issue a final  circumvention determination 
with respect to one of those paragraphs.  For example, if the Secretary initiates a circumvention 
inquiry to  examine whether merchandise is altered in minor respects under  paragraph (j ) of this 
section or later -developed merchandise under  paragraph (k) of this section, the Secretary may 
rescind the inquiry in  part to address only one of those provisions; or  
 (iv) The Secretary has initiated a covered merchandise inquiry  under Sec.  351.227 and 
determined that it can address the necessary  elements for a circumvention determination under 
section 781 of the Act  in that proceeding.  
 (7) If the Secretary determines it is appropriate to do so, the  Secretary may alter or extend 
any time lim its under this paragraph or  establish a separate schedule for the filing of comments 
and/or factual  information during the circumvention inquiry.  
 (8)(i) The Secretary will notify the Commission in writing of the  proposed inclusion of products 
in an order prior to issuing a final  determination under paragraph (g)(2) of this section based on a  
determination under:  
 (A) Section 781(a) of the Act (paragraph (h) of this section) with  respect to merchandise 
completed or assembled in the United States  (other than  minor completion or assembly);  
 (B) Section 781(b) of the Act (paragraph (i) of this section) with  respect to merchandise 
completed or assembled in other foreign  countries; or  
 (C) Section 781(d) of the Act (paragraph (k) of this section) with  respect to later -developed 
products that incorporate a significant  technological advance or significant alteration of an earlier 
product.  
 (ii) If the Secretary notifies the Commission under paragraph  (f)(8)(i) of this section, upon the 
written request of the Commission,  the Secretary will consult with the Commission regarding the 
proposed  inclusion, and any such consultation will be completed within 15 days  after the date of 
such request. If, after consultation, the Commission  believes that a significant i njury issue is 
presented by the proposed  inclusion of a product within an order, the Commission may provide  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  written advice to the Secretary as to whether the inclusion would be  inconsistent with the affirmative 
injury determination of the  Commission on whi ch the order is based.  
 (9) During the pendency of a circumvention inquiry or upon issuance  of a final circumvention 
determination under paragraph (g)(2) of this  section, the Secretary may take any further action, as 
appropriate,  with respect to another se gment of the proceeding. For example, if the  Secretary 
considers it appropriate, the Secretary may request  information concerning the product that is the 
subject of the  circumvention inquiry for purposes of an administrative review under  Sec.  351 .213.  
 (g) Circumvention determinations --(1) Preliminary determination . The Secretary will issue a 
preliminary determination, based upon the  available information at the time, as to whether there is 
a reasonable  basis to believe or suspect that the element s necessary for a  circumvention 
determination under section 781 of the Act exist. The  preliminary determination will be published in 
the Federal Register.  The Secretary may publish notice of a preliminary determination  concurrently 
with the notice of initi ation of a circumvention inquiry  under paragraph (b) or (d) of this section.  
 (2) Final determination . The Secretary will issue a final  determination as to whether the 
elements necessary for a circumvention  determination under section 781 of the Act exist,  in which 
case the  merchandise at issue will be included within the scope of the order. As  part of its 
determination, the Secretary will include an explanation of  the factual and legal conclusions on  which 
the final determination is based. The final determ ination will be  published in the Federal Register. 
Promptly after publication, the  Secretary will convey a copy of the final determination in the manner  
prescribed by section 516A(a)(2)(A)(ii) of the Act to all parties to  the proceeding (see Sec.  
351.102( b)(36)).  
 (h) Products completed or assembled in the United States . Under  section 781(a) of the Act, the 
Secretary may include within the scope  of an antidumping or countervailing duty order imported 
parts or  components referred to in section 781(a)(1)(B) of the Act that are used  in the completion 
or assembly of the merchandise in the United States  at any time such order is in effect. In 
determining the value of parts  or components (including such purchases from another person) under  
section 781(a)(1)(D) of the Act, or of processing performed (including  by another person) under 
section 781(a)(2)(E) of the Act, the Secretary  may determine the value of the part or component 
on the basis of the  cost of producing the part or component under sectio n 773(e) of the  Act--or, in 
the case of nonmarket economies, on the basis of section  773(c) of the Act.  
 (i) Products completed or assembled in other foreign countries . Under section 781(b) of the Act, 
the Secretary may include within the  scope of an antid umping or countervailing duty order, at any 
time such  order is in effect, imported merchandise completed or assembled in a  foreign country 
other than the country to which the order applies. In  determining the value of parts or components 
(including such pu rchases  from another person) under section 781(b)(1)(D) of the Act, or of  
processing performed (including by another person) under section  781(b)(2)(E) of the Act, the 
Secretary may determine the value of the  part or component on the basis of the cost of p roducing 
the part or  component under section 773(e) of the Act --or, in the case of nonmarket  economies, on 
the basis of section 773(c) of the Act.  
 (j) Minor alterations of merchandise . Under section 781(c) of the  Act, the Secretary may include 
within the scope of an antidumping or  countervailing duty order articles altered in form or 
appearance in  minor respects. The Secretary may consider such criteria including, but  not limited 
to, the overall physical characteristics of the  merchandise, (including chemi cal, dimensional, and 
technical  characteristics), the expectations of the ultimate users, the use of  the merchandise, the 
channels of marketing and the cost of any  modification relative to the total value of the imported 
products. The  Secretary also may co nsider the circumstances under which the products  enter the 
United States, including but not limited to the timing of the  entries and the quantity of merchandise 
entered during the  circumvention review period.  
 (k) Later-developed merchandise . In determining whether later - developed merchandise is 
within the scope of an antidumping or  countervailing duty order, the Secretary will apply 
section  781(d) of  the Act. In determining whether merchandise is "later-developed " the Secretary 
will examine whet her the merchandise at issue was  commercially available at the time of the 
initiation of the underlying  antidumping or countervailing duty investigation.  
 (l) Suspension of liquidation . (1) When the Secretary publishes a  notice of initiation of a 
circumven tion inquiry under paragraph (b) or  (d) of this section, the Secretary will notify the 
Customs Service of  the initiation and direct the Customs Service to continue the  suspension of 
liquidation of entries of products subject to the  circumvention inquiry th at were already subject to 
the suspension of  liquidation, and to apply the cash deposit rate that would be  applicable if the 
product were determined to be covered by the scope of  the order.  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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   (2) If the Secretary issues an affirmative preliminary  determinat ion under paragraph (g)(1) of 
this section that the product  at issue is covered by the scope of the order, the Secretary will take  
the following actions:  
 (i) The Secretary will direct the Customs Service to continue the  suspension of liquidation of 
previo usly suspended entries and apply the  applicable cash deposit rate;  
 (ii) The Secretary will direct the Customs Service to begin the  suspension of liquidation and 
require a cash deposit of estimated  duties, at the applicable rate, for each unliquidated entry of the  
product not yet suspended, entered, or withdrawn from warehouse, for  consumption on or after the 
date of publication of the notice of  initiation of the inquiry; and  
 (iii)(A) In general . Subject to paragraph (l)(2)(iii)(B) of this  section, if the Secretary determines 
that it is appropriate to do so,  the Secretary may direct the Customs Service to begin the suspension 
of liquidation and require a cash deposit of estimated duties, at the  applicable rate, for each 
unliquidated entry o f the product not yet  suspended, entered, or withdrawn from warehouse, for 
consumption prior  to the date of publication of the notice of initiation of the inquiry.  The Secretary 
may take action under this provision at the timely  request of an interested pa rty or at the Secretary's 
discretion. In  response to a timely request from an interested party, the Secretary  will only consider 
an alternative date based on a specific argument  supported by evidence establishing the 
appropriateness of that  alternative dat e. 
 (B) Exception . If the Secretary has determined to address a covered  merchandise referral (see 
Sec.  351 .227) in a circumvention inquiry  under Sec.  351 .226, the rules of Sec.  351 .227(l)(2)(iii) 
will apply.  
 (3) If the Secretary issues an affirmative f inal determination  under paragraph (g)(2) of this 
section that the product at issue is  covered by the scope of the order, the following rules will apply:  
 (i) The Secretary will direct the Customs Service to continue the  suspension of liquidation of 
previo usly suspended entries and apply the  applicable cash deposit rate until appropriate liquidation 
instructions  are issued;  
 (ii) The Secretary will direct the Customs Service to begin the  suspension of liquidation and 
require a cash deposit of estimated  duties, at the applicable rate, for each unliquidated entry of the  
product not yet suspended, entered, or withdrawn from warehouse, for  consumption on or after the 
date of publication of the notice of  initiation of the inquiry until appropriate l iquidation instructions  
are issued; and  
 (iii)(A) In general . Subject to paragraph (l)(3)(iii)(B) of this  section, if the Secretary determines 
that it is appropriate to do so,  the Secretary may direct the Customs Service to begin the suspension 
of liquidat ion and require a cash deposit of estimated duties, at the  applicable rate, for each 
unliquidated entry of the product not yet  suspended, entered, or withdrawn from warehouse, for 
consumption prior  to the date of publication of the notice of initiation of the inquiry  until appropriate 
liquidation instructions are issued. The Secretary  may take action under this provision at the timely 
request of an  interested party or at the Secretary's discretion. In response to a  timely request from 
an interested party, t he Secretary will only  consider an alternative date based on a specific argument 
supported by  evidence establishing the appropriateness of that alternative date.  
 (B) Exception . If the Secretary has determined to address a covered  merchandise referral (see  
Sec.  351 .227) in a circumvention inquiry  under Sec.  351 .226, the rules of Sec.  351 .227(l)(3)(iii) 
will apply.  
 (4) If the Secretary issues a negative final determination under  paragraph (g)(2) of this section, 
and entries of the product are not  otherwi se subject to suspension of liquidation as a result of another  
segment of the proceeding, such as a covered merchandise inquiry under  Sec.  351 .227, the 
Secretary will order the Customs Service to  terminate the suspension of liquidation and refund any 
cash deposits  for such entries.  
 (5) Nothing in this section affects the Customs Service's authority  to take any additional action 
with respect to the suspension of  liquidation or related measures.  
 (m) Applicability of circumvention determination ; compani on orders --(1) Applicability of 
circumvention determination. In conducting  a circumvention inquiry under this section, the Secretary 
shall consider, based on the available record evidence, the appropriate  remedy to address 
circumvention and to prevent evas ion of the order.  Such remedies may include:  
 (i) The application of the determination on a producer -specific,  exporter -specific, importer -
specific basis, or some combination  thereof;  
 (ii) The application of the determination on a country -wide basis  to all products from the same 
country as the product at issue with the  same relevant physical characteristics, (including chemical,  
dimensional and technical characteristics), regardless of producer,  exporter, or importer of those 
products;  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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   (iii) The applicati on of the determination on a country -wide basis  to all products from the same 
country as the product at issue with  similar relevant physical characteristics, (including chemical,  
dimensional and technical characteristics), regardless of producer,  exporter,  or importer of those 
products; and  
 (iv) The implementation of a certification requirement under 19 CFR  351.228.  
 (2) Companion antidumping and countervailing duty orders . If there  are companion 
antidumping and countervailing duty orders covering the  same merchandise from the same country 
of origin, the requesting  interested party under paragraph (c) of this section must file the  request 
pertaining to both orders only on the record of the antidumping  duty proceeding. Should the 
Secretary determine to i nitiate a  circumvention inquiry under paragraph (b) or (d) of this section, 
the Secretary will initiate and conduct a single inquiry with respect to  the product at issue for both 
orders only on the record of the  antidumping proceeding. Once the Secretary i ssues a final 
circumvention  determination on the record of the antidumping duty proceeding, the  Secretary will 
include a copy of that determination on the record of  the countervailing duty proceeding.  
 (n) Service of circumvention inquiry request; annual i nquiry  service list; entry of appearance . 
(1) The requirements of Sec.  351 .303(f) apply to this section, except that an interested party that  
submits a circumvention inquiry request under paragraph (c) of this  section must serve a copy of 
that inquiry req uest on all persons on the  annual inquiry service list for that order, as well as the 
companion  order, if any, as described in paragraph (m)(2) of this section. The  procedures and 
description pertaining to the "annual inquiry service  list" are set forth in  Sec.  351 .225(n)(1) through 
(3). 
 (2) Once a circumvention inquiry is self -initiated or a  circumvention inquiry request is accepted 
by the Secretary, a segment - specific service list will be established and the requirements of Sec.  
351.303(f) will apply. Parties other than the interested party  requesting a circumvention inquiry that 
wish to participate in the  circumvention inquiry must file an entry of appearance  in accordance  with 
Sec.  351 .103(d)(1).  
 (o) Suspended investigations; suspension agreements . The Secretary  may, in accordance with 
section 781 of the Act, apply the procedures  set forth in this section in determining whether the 
product at issue  circumvented a suspended investigation or a suspension agreement (see  Sec.  
351.208).  
7. Effective November 4, 2021, add Sec.  351 .227 to subpart B to read  as follows:  
Sec.  351 .227 Covered merchandise referrals.  
 (a) Introduction . The Trade Facilitation and Trade Enforcement Act  of 2015 contains Title IV --
Prevention of Evasion of Antidumping and  Countervailing Duty Orders (short title "Enforce and 
Protect Act of  2015" or "EAPA") (Pub. L. 114 -125, sections 401, 421, 130 Stat. 122,  155, 161 
(2016)). The Enforce and Protect Act of 2015 added section 517  to the Act, which established a new 
framework by which the Customs  Service can conduct civil administrative investigations of potential  
duty evasion of an antidumping and/or countervailing duty or der (referred to herein as an "EAPA 
investigation "). Section  517(b)(4)(A)(i) of the Act provides a procedure whereby if, during the  course 
of an EAPA investigation, the Customs Service is unable to  determine whether the merchandise at 
issue is covered merc handise  within the meaning of section 517(a)(3) of the Act, it shall refer the  
matter to the Secretary to make such a determination (referred to  herein as a "covered merchandise 
referral "). Section 517(b)(4)(B) of  the Act directs the Secretary to determine  whether the 
merchandise is  covered merchandise and promptly transmit the determination to the  Customs 
Service. The Secretary will consider a covered merchandise  referral and issue a covered merchandise 
determination in accordance  with the rules and proced ures in this section. Unless otherwise  
specified, the procedures as described in subpart C of this part  (Sec. Sec.  351 .301 through 351.308 
and 351.312 through 351.313) apply  to this section.  
 (b) Actions with respect to covered merchandise referral . Within 20  days after receiving a 
covered merchandise referral from the Customs  Service pursuant to section 517(b)(4)(A)(i) of the 
Act that the  Secretary determines to be sufficient, the Secretary will take the  following action.  
 (1) Initiate a co vered merchandise inquiry and publish a notice of  initiation in the Federal 
Register; or  
 (2) If the Secretary determines upon review of the covered  merchandise referral that the issue 
can be addressed in an ongoing  segment of the proceeding, such as a sco pe inquiry under Sec.  
351.225 or a circumvention inquiry under Sec.  351 .226, rather than initiating  the covered 
merchandise inquiry, the Secretary will publish a notice of  its intent to address the covered 
merchandise referral in such other  segment in th e Federal Register.  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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   (c) Deadlines for covered merchandise determinations --(1) In general . When the Secretary 
initiates a covered merchandise inquiry  under paragraph (b)(1) of this section, the Secretary shall 
issue a  final covered merchandise determinatio n within 120 days from the date  of publication of the 
notice of initiation.  
 (2) Extension . The Secretary may extend the deadline in paragraph  (c)(1) of this section by no 
more than 150 days if the Secretary  determines that good cause exists to warrant an extension. 
Situations  in which good cause has been demonstrated may include:  
 (i) If the Secretary has issued questionnaires to interested  parties; received responses to those 
questionnaires; and determined  that an extension is warranted to requ est further information or  
consider and address the parties' responses on the record adequately;  
 (ii) The Secretary has issued a preliminary covered merchandise  determination (see paragraph 
(e)(1) of this section); or  
 (iii) The Secretary has determined to address a scope or  circumvention issue from another 
segment of the proceeding involving  the same or similar products in the covered merchandise 
inquiry,  pursuant to Sec.  351 .225(d)(2) or (i) or Sec.  351 .226(f)(6)(iv).  
 (3) Alignment with ot her segments . If the Secretary determines it  is appropriate to do so, the 
Secretary may align the deadlines under  this paragraph with the deadlines of another segment of 
the proceeding.  
 (d) Covered merchandise inquiry procedures . (1) Within 30 days of  the date of publication of 
the notice of an initiation of a covered  merchandise inquiry under paragraph (b)(1) of this section, 
interested  parties are permitted one opportunity to submit comment and factual  information 
addressing the initiation. Within 14 day s of the filing of  such comments, any interested party is 
permitted one opportunity to  submit comment and factual information to rebut, clarify, or correct  
factual information submitted by the other interested parties.  
 (2) Following initiation of a covere d merchandise inquiry under  paragraph (b)(1) of this section, 
the Secretary may issue  questionnaires and verify submissions received, where appropriate. The  
Secretary may limit issuance of questionnaires to a reasonable number  of respondents. 
Questionnaire responses are due on the date specified  by the Secretary. Within 14 days after a 
questionnaire response has  been filed with the Secretary, an interested party other than the  original 
submitter is permitted one opportunity to submit comment an d factual information to rebut, clarify, 
or correct factual information  contained in the questionnaire response. Within 7 days of the filing of  
such rebuttal, clarification, or correction, the original submitter is  permitted one opportunity to 
submit comme nt and factual information to  rebut, clarify, or correct factual information submitted 
in the  interested party's rebuttal, clarification or correction.  
 (3) If the Secretary issues a preliminary covered merchandise  determination under paragraph 
(e)(1) of t his section, which is not  issued concurrently with the initiation of a covered merchandise  
inquiry, the Secretary will establish a schedule for the filing of  comments and rebuttal comments. 
Unless otherwise specified, any  interested party may submit commen ts within 14 days after the 
issuance  of the preliminary covered merchandise determination, and any  interested party may 
submit rebuttal comments within 7 days thereafter.  Unless otherwise specified, no new factual 
information will be accepted  in the commen ts or rebuttal comments.  
 (4) If the Secretary issues a preliminary covered merchandise  determination concurrently with 
the initiation of the covered  merchandise inquiry under paragraph (e)(1) of this section, paragraphs  
(d)(1) through (3) will not apply. In such a situation, the Secretary  will establish appropriate 
procedures on a case -specific basis.  
 (5) If the Secretary determines it appropriate to do so, the  Secretary may rescind, in whole or 
in part, a covered merchandise  inquiry under this section an d will notify interested parties.  Situations 
in which the Secretary may rescind a covered merchandise  inquiry include:  
 (i) The Customs Service withdraws its request for a covered  merchandise inquiry under 
paragraph (b) of this section; or  
 (ii) The Secret ary has initiated a scope inquiry under Sec.  351 .225 or a circumvention inquiry 
under Sec.  351 .226 and determines  that it can address the covered merchandise referral in such 
other  segment of the proceeding.  
 (6) If the Secretary determines it is appropriate to do so, the  Secretary may alter or extend 
any time limits under this paragraph or  establish a separate schedule for the filing of comments 
and/or factual  information during the covered merchandise inquiry.  
 (7) During the pendency of a covere d merchandise inquiry or upon  issuance of a final covered 
merchandise determination under paragraph  (e)(2) of this section, the Secretary may take any 
further action, as  appropriate, with respect to another segment of the proceeding. For  example, if 
the Se cretary considers it appropriate, the Secretary may  request information concerning the 
product that is the subject of the  covered merchandise inquiry for purpose of an administrative 
review  under Sec.  351 .213. G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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   (e) Covered merchandise determinations --(1) Preliminary  determination . The Secretary may 
issue a preliminary determination,  based upon the available information at the time, as to whether 
there  is a reasonable basis to believe or suspect that the product that is  the subject of the covered 
merchandis e inquiry is covered by the scope  of the order. In determining whether to issue a 
preliminary  determination, the Secretary may consider the complexity of the issues  and arguments 
raised in the context of the covered merchandise inquiry.  The preliminary det ermination will be 
published in the Federal  Register. The Secretary may publish notice of a preliminary  determination 
concurrently with the notice of initiation of a covered  merchandise inquiry under paragraph (b)(1) 
of this section.  
 (2) Final determinati on. The Secretary will issue a final  determination as to whether the product 
that is the subject of the  covered merchandise inquiry is covered by the scope of the order. As  part 
of its determination, the Secretary will include an explanation of  the factual and legal conclusions on 
which the final determination is  based. The final determination will be published in the Federal  
Register. Promptly after publication, the Secretary will:  
 (i) Convey a copy of the final determination in the manner  prescrib ed by section 
516A(a)(2)(A)(ii) of the Act to all parties to  the proceeding (see Sec.  351 .102(b)(36)); and  
 (ii) Transmit a copy of the final covered merchandise determination  to the Customs Service in 
accordance with section 517(b)(4)(B) of the  Act. 
 (3) Covered merchandise determinations in other segments of the  proceeding . If the Secretary 
addresses the covered merchandise referral  in another segment of the proceeding as provided for 
under paragraph  (b)(2) or (d)(5)(ii) of this section, the Secretary wi ll promptly  transmit a copy of 
the final action in that segment to the Customs  Service in accordance with section 517(b)(4)(B) of 
the Act.  
 (f) Basis for covered merchandise determination . In determining  whether a product is covered 
by the scope of the ord er under this  section, the Secretary may utilize the analysis described in 
paragraphs  (j) and (k) of Sec.  351 .225 or any provision under section 781 of the  Act (paragraph 
(h), (i), (j), or (k) of Sec.  351 .226).  
 (g)-(k) [Reserved]  
 (l) Suspension of liqu idation . (1) When the Secretary publishes a  notice of initiation of a covered 
merchandise inquiry under paragraph  (b)(1) of this section, the Secretary will notify the Customs 
Service  of the initiation and direct the Customs Service to continue the  suspension of liquidation of 
entries of products subject to the covered  merchandise inquiry that were already subject to the 
suspension of  liquidation, and to apply the cash deposit rate that would be  applicable if the product 
were determined to be covered  by the scope of  the order.  
 (2) If the Secretary issues an affirmative preliminary covered  merchandise determination under 
paragraph (e)(1) of this section that  the product at issue is covered by the scope  of the order, the 
Secretary will take the following actions:  
 (i) The Secretary will direct the Customs Service to continue the  suspension of liquidation of 
previously suspended entries and apply the  applicable cash deposit rate;  
 (ii) The Secretary will direct the Customs Service to begin the  suspension of liquidation and 
require a cash deposit of estimated  duties, at the applicable rate, for each unliquidated entry of the  
product not yet suspended, entered, or withdrawn from warehouse, for  consumption on or after the 
date of publication of the no tice of  initiation of the covered merchandise inquiry; and  
 (iii) The Secretary normally will direct the Customs Service to  begin the suspension of liquidation 
and require a cash deposit of  estimated duties, at the applicable rate, for each unliquidated en try of 
the product not yet suspended, entered, or withdrawn from warehouse,  for consumption prior to the 
date of publication of the notice of  initiation of the covered merchandise inquiry.  
 (3) If the Secretary issues an affirmative final covered  merchandi se determination under 
paragraph (e)(2) of this section that  the product at issue is covered by the scope of the order, the  
Secretary will take the following actions:  
 (i) The Secretary will direct the Customs Service to continue the  suspension of liquidat ion of 
previously suspended entries and apply the  applicable cash deposit rate until appropriate liquidation 
instructions  are issued;  
 (ii) The Secretary will direct the Customs Service to begin the  suspension of liquidation and 
require a cash deposit of e stimated  duties, at the applicable rate, for each unliquidated entry of the  
product not yet suspended, entered, or withdrawn from warehouse, for  consumption on or after the 
date of publication of the notice of  initiation of the covered merchandise inquiry until appropriate  
liquidation instructions are issued; and  
 (iii) The Secretary normally will direct the Customs Service to  begin the suspension of liquidation 
and require a cash deposit of  estimated duties, at the applicable rate, for each unliquidated entry  of 
the product not yet suspended, entered, or withdrawn from warehouse,  for consumption prior to the G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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  date of publication of the notice of  initiation of the covered merchandise inquiry until appropriate  
liquidation instructions are i ssued.  
 (4) If the Secretary issues a negative final covered merchandise  determination under paragraph 
(e)(2) of this section that the product  at issue is not covered by the scope of the order, and entries 
of the  product at issue are not otherwise subject to suspension of liquidation  as a result of another 
segment of a proceeding, such as a circumvention  inquiry under Sec. 351.226, the Secretary will 
direct the Customs  Service to terminate the suspension of liquidation and refund any cash  deposits 
for such entries.  
 (5) Nothing in this section affects the Customs Service's authority  to take any additional action 
with respect to the suspension of  liquidation or related measures.  
 (m) Applicability of covered merchandise determination; companion  orders --(1) Applicability of 
covered merchandise determination . In conducting a covered merchandise inquiry under this 
section, the  Secretary shall consider, based on the available record evidence,  whether the covered 
merchandise determination should be applied:  
 (i) On a producer -specific, exporter -specific, importer -specific  basis, or some combination 
thereof; or  
 (ii) To all products from the same country with the same relevant  physical characteristics, 
(including chemical, dimensional and  technical characteristics)  as the product at issue, on a country -
wide basis, regardless of the producer, exporter or importer of those  products.  
 (2) Companion antidumping and countervailing duty orders . If there  are companion 
antidumping and countervailing duty orders covering the  same merchandise from the same country 
of origin, and should the  Secretary determine to initiate a covered merchandise inquiry under  
paragraph (b)(1) of this section, the Secretary will initiate and  conduct a single inquiry with respect 
to the product at issue only on  the record of the antidumping duty proceeding. Once the Secretary  
issues a final covered merchandise determination on the record of the  antidumping duty proceeding, 
the Secretary will include a copy of that  determination on the record of the countervailing duty 
proceeding and  notify the Customs Service in accordance with paragraph (l) of this  section.  
 (n) Service list . Once the Secretary initiates a covered  merchandise inquiry under paragraph 
(b)(1) of this section, a segment - specific servic e list will be established and the requirements of 
Sec.  351 .303(f) will apply. Parties other than those relevant parties  identified by the Customs 
Service in the covered merchandise referral  that wish to participate in the covered merchandise 
inquiry must  file an entry of appearance in accordance with Sec.  351 .103(d)(1).  
 (o) Suspended investigations; suspension agreements . The Secretary  may apply the procedures 
set forth in this section in determining  whether the product at issue is covered merchandise with 
respect to a  suspended investigation or a suspension agreement (see Sec.  351 .208).  
8. Effective October 20, 2021, add Sec.  351 .228 to subpart B to read  as follows:  
Sec.  351 .228 Certification by importer or other interested party.  
 (a) Certification requirements . (1) The Secretary may determine in  the context of an 
antidumping or countervailing duty proceeding that an  importer or other interested party shall:  
 (i) Maintain a certification for entries of merchandise into the  customs territory of the United 
States;  
 (ii) Provide a certification by electronic means at the time of  entry or entry summary; or  
 (iii) Otherwise demonstrate compliance with a certification  requirement as determined by the 
Secretary, in consultation with the  Customs Service.  
 (2) Where the certification is required to be maintained by the  importer or other interested 
party under paragraph (a)(1) of this  section, the Secretary and/or the Customs Service may require 
the importer or other interested party to provid e such a certification to  the requesting agency upon 
request.  
 (b) Consequences for no provision of a certificate; provision of a  false certificate . (1) The 
Secretary may instruct the Customs Service  to suspend liquidation of entries of the importer or 
entries associated  with the other interested party and require a cash deposit of estimated  duties at 
the applicable rate if:  
 (i) The importer or other interested party has not provided to the  Secretary or the Customs 
Service, as appropriate, the certificatio n described under paragraph (a) of this section either as 
required or  upon request for such entries; or  
 (ii) The importer or other interested party provided a  certification in accordance with paragraph 
(a) of this section for such  entries, but the certifi cation contained materially false, fictitious  or 
fraudulent statements or representations, or contained material  omissions.  G/ADP/N/1/USA/1/Suppl.31 • G/SCM/N/1/USA/1/Suppl.32  
 
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   (2) Under paragraph (b)(1)(i) or (ii) of this section, the  Secretary may also instruct the Customs 
Service to assess antidumping  or countervailing duties,  as the case may be, at the applicable rate.  
9. In Sec.  351 .305, effective November 4, 2021, revise paragraph (d)  to read as follows:  
Sec.  351 .305 Access to business proprietary information.  
 (d) Additional filing requirements for importers . If an applicant  represents a party claiming to 
be an interested party by virtue of  being an importer, then the applicant shall submit, along with 
the Form  ITA-367, documentary evidence demonstrating that during the applicable  period of 
investigation or period of review the interested party  imported subject merchandise. For a scope 
segment of a proceeding  pursuant to Sec.  351 .225 or a circumvention segment of a proceeding  
pursuant to Sec.  351 .226, the applicant must present documentary  evidence that the interested 
party imported subject merchandise, or  that it has taken steps towards importing the merchandise 
subject to  the scope or circumvention inquiry. For a covered merchandise referral  segment of a 
proceeding purs uant to Sec.  351 .227, an applicant  representing an interested party that has been 
identified by the  Customs Service as the importer in a covered merchandise referral is  exempt from 
the requirements of providing documentary evidence to  demonstrate that it is an importer for 
purposes of that segment of a  proceeding.  
10. In Sec.  351 .402, effective October 20, 2021, revise paragraph  (f)(2) to read as follows:  
Sec.  351 .402 Calculation of export price and constructed export  price; reimbursement of 
antidumping and countervailing duties.  
 (f) * * *  
 (2) Reimbursement certification . (i) The importer must certify with  the Customs Service prior 
to liquidation (except as provided for in  paragraph (f)(2)(iii) of this section) whether the importer 
has or has  not been reimbursed or entered into any agreement or understanding for  the payment 
or for the refunding to the importer by the manufacturer,  producer, seller, or exporter for all or any 
part of the antidumping  and countervailing duties, as appropriate. Such ce rtifications should  identify 
the commodity and country and contain the information  necessary to link the certification to the 
relevant entry or entry line  number(s).  
 (ii) The reimbursement certification may be filed either  electronically or in paper in ac cordance 
with the Customs Service's  requirements, as applicable.  
 (iii) If an importer does not provide its reimbursement  certification prior to liquidation, the 
Customs Service may accept the  reimbursement certification in accordance with its protest 
procedures  under 19 U.S.C. 1514, unless otherwise directed.  
 (iv) Reimbursement certifications are required for entries of the  relevant commodity that have 
been imported on or after the date of  publication of the antidumping notice in the Federal Register 
that first suspended liquidation in that proceeding.  
* * * * * 
[FR Doc. 2021 -17861 Filed 9 -16-21; 8:45 am]  
BILLING CODE 3510 -DS-P 
 
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