IMPORT ADMINISTRATION POLICY BULLETIN Number: 93/1 Date: _______________ Topic: All Others Rate, Application Author: David Mueller (signed Sept.1, 1993) Approved:______________________________ Joseph A. Spetrini Acting Assistant Secretary for Import Administration Statement of Issue How to calculate and apply rates for deposit of estimated antidumping duty to entries of merchandise from exporters never individually investigated or reviewed. Summary of New Policy Ends the practice of updating the "all others" rate with each administrative review in favor of leaving the rate fixed at the all others rate found in the sales at less than fair value investigation. Discussion and History For setting cash deposits for unknown exporters (those whose sales have not been examined in the sales at less than fair value investigation or any administrative review) Import Administration followed a two-track process from 1980 to March 1991. Upon the issuance of an order, Customs was instructed to apply an all others rate to entries of merchandise from uninvestigated exporters. This rate was calculated as the weighted-average of all the rates from examined exporters, including rates based on the best information available but excluding those which were zero or de minimis. However, with the publication of final results of the first administrative review, a "new shipper" rate was applied to entries of merchandise from exporters whose first shipment occurred after the last day of the period reviewed (not after the date of publication). Subsequently, another new shipper rate was issued with each succeeding administrative review, which applied only to merchandise from exporters who began exporting to the United States after the last day of the last period reviewed. The new shipper rate was the highest calculated (i.e., not total BIA) rate of exporters examined in that review. At any one time there could co-exist the original all others rate and several new shipper rates, depending on the number of reviews completed. Customs was to determine which of the multiple all others and new shipper rates to apply to a given entry based on the date when the exporter made its first shipment to the United States. On April 3, 1989, Customs advised Import Administration, in conjunction with implementation of the Customs Automated Commercial System (ACS), that it was unable to determine when any given exporter's first shipment to the United States occurred. Also, the antidumping module of ACS (which screens entries of merchandise subject to antidumping proceedings to ensure correct cash deposit rates) was designed to contain only one all others or new shipper rate. Thus, Customs could not execute the instructions of Import Administration. In short, our policy of application of multiple rates for unknown exporters, based on date of first entry, was not just administratively inconvenient, it was not administrable at all. Customs reaffirmed their administrative problems with multiple all others/new shipper rates on June 22, 1992, in response to our Advanced Notice of Proposed Rulemaking, of December 5, 1991. No immediate change was made in the all others/new shipper rate practice. What is most probable was that during the period after 1989, and in all likelihood, prior to it, Customs import specialists simply applied current new shipper rates to entries of exporters who had not received individual rates in the investigation or a review. Of course, where individual import specialists had knowledge of the dates of earlier entry, they might well have applied the new shipper rate from an earlier period. However, absent any consistent data source to determine both dates of first shipment and an historical data base of prior new shipper and all others rates, the policy could not be uniformly applied as intended. On March 8, 1991 Import Administration ended the practice of maintaining separate rates for separate time periods in favor of one rate (now called the all others rate, whether based on the investigation or a review), periodically updated, to apply to all entries of merchandise from unexamined exporters while it remained in effect. The change was phased in, applying only for cases with preliminary results of administrative review signed after March 8, 1991. The all others rate from an investigation applied to entries up until the publication of the first final results of review. The all others rate determined in that review would apply to all entries until the publication of the final results from the next review, and so on. Calculation methodology of the rate was unchanged; the all others rate in an investigation remained the weighted average of all rates over de minimis, and when updated in a review was to be the highest calculated rate in the review. The post-March 1991 all others rate methodology was addressed by the Office of the Inspector General, and on April 22, 1993 the Import Administration Audit Action Plan committed IA to consider whether the calculation of the all others rate should be revised, and if so, to issue appropriate regulations. However since that time, the Court of International Trade (CIT) has struck down the post-March practice of assigning an updated all others rate to those companies which have never been investigated or reviewed by the Department of Commerce. See Floral Trade Council v. United States, Slip Op. 93.79, May 25, 1993; Federal Mogul Corp. v. United States, Slip. Op. 93-83, May 25, 1993. Although these two decisions did not deal with the issue of how the all others rate was to be calculated, by overturning the practice of updating the investigation rate with rates from administrative reviews, they rendered the calculation of such rates irrelevant. Although the decisions do not address the pre-March 1991 methodology, the inability of Customs to apply it makes its reinstitution non- viable. Accordingly, the Department recently reinstated the all others rate established in the investigation in two administrative reviews, Final Results of Antidumping Duty Administrative Review, Fresh and Chilled Atlantic Salmon from Norway (58 FR 37912, 37916, July 14, 1993) and Final Results of Administrative Review, Anti-Friction Bearings (Other Than Tapered Roller Bearings) and Parts from France, Germany, Italy, Japan, Romania, Singapore, Sweden, Thailand, and the United Kingdom (58 FR 39729). Statement of Policy and Implementation Effective immediately, the all others rate shall be established as follows: For administrative reviews of antidumping duty orders, the all others rate shall be the all others rate contained in the order, or that rate as amended for correction of clerical errors or as a result of litigation. For administrative reviews of antidumping findings, unless an all others rate can be ascertained from the Treasury Department investigation, the all others rate shall be the new shipper rate contained in the first final results of review of that finding published by Commerce, or the rate as amended following correction of clerical errors or as a result of litigation.