From December 4 2013 the Department of Commerce is applying a new methodology for selecting respondents in anti-dumping administrative reviews.

When the Department of Commerce cannot examine all respondents in an administrative review, it can review either the largest-volume exporters or a "statistically valid" sample of exporters, producers or products. The Department of Commerce has almost always adopted the first approach – reviewing only a small number of the largest-volume exporters. The new methodology expands and standardises use of the second statutory option – applying sampling when specified conditions are met. The Department of Commerce introduced this approach because its existing focus on the largest-volume exporters as subjects of administrative reviews potentially allows smaller-volume exporters to sell at unfairly low prices, undisciplined by the possibility that their behaviour would be subject to the department's scrutiny.

Under the new methodology, the Department of Commerce will apply sampling that is random, stratified and "probability proportional to size". The Department of Commerce asserts that:

  • stratification of the pool of potential respondents by volume of exports will ensure a representative cross-section of exporters; and
  • "probability proportional to size" (which makes a company's chance of selection proportional to its export volume) will prevent over-representation of small-volume exporters.

The resulting exposure of small exporters to selection addresses the Department of Commerce's stated enforcement concern; small-volume exporters will no longer be able to assume that their low volumes preclude individual review.

In applying the new methodology, the Department of Commerce will:

  • sort all respondent companies participating in an administrative review from largest to smallest based on import volumes;
  • segregate the companies into a number of strata corresponding to the maximum number of companies that it will subject to individual review; and
  • select one company from each stratum.

After conducting a review, the Department of Commerce will assign a sample rate to companies that were not selected. This rate will be an average of the individual rates calculated for the selected respondents, weighted by the import share of their corresponding strata.

The Department of Commerce has identified four threshold conditions that must be considered before using sampling in a particular case. In general, it must find that:

  • an interested party requests sampling;
  • the Department of Commerce has the resources to examine individually at least three of the exporting companies;
  • the largest three exporting companies (or more if more than three companies will be selected for individual review) normally account for no more than 50% of subject imports under review; and
  • the average export prices, dumping margins or both for the largest exporters differ from those of other exporters.(1)

The Department of Commerce's proposal could mean a significant change in administrative review procedures and the results of administrative reviews. However, critical details remain unclear and are likely to become apparent only as the methodology is implemented in individual cases. The following issues have raised concerns:

  • The timing and parties' strategies in administrative reviews may be fundamentally affected by the new methodology.
  • The stratification method, which will directly affect whether a particular company may be selected, needs to be clarified in practice.
  • The Department of Commerce has not stated the basis for measuring the 50% concentration threshold, which will determine whether it uses sampling in individual cases.
  • Assessment of the fourth threshold condition – a difference in pricing behaviour or likely dumping margins between large and small exporters – will not become clear until it is applied in new reviews.

Many critical aspects of the new rule may be clarified only in practice. Nonetheless, it is clear that the methodology will fundamentally change how parties must address anti-dumping administrative reviews and open the possibility for review to new exporters, especially low-volume exporters. Parties should monitor upcoming administrative reviews carefully to learn how the Department of Commerce is applying sampling and establishing the conditions for its use.

For further information on this topic please contact Neil Ellis, Brenda Jacobs or Dave M Wharwood at Sidley Austin LLP by telephone (+1 202 736 8000), fax (+1 202 736 8711) or email (nellis@sidley.com, bjacobs@sidley.com or dwharwood@sidley.com).The Sidley Ausin LLP website can be accessed at www.sidley.com.

 

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?Endnotes

(1) The department has identified certain changes in the update relative to the original 2010 proposal:

  • The methodology now applies only to administrative reviews, not investigations;
  • The existing 50% concentration threshold is a reduction from the initially proposed level of 75%; and
  • The update does not limit the number of strata to three or require equal-size strata by volume.