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At the end of 2024, the U.S. Department of Commerce (DOC) issued a notice amending, supplementing, and repealing certain existing trade remedy regulations. These changes include codifying current procedures and methods in practice while developing or modifying existing legal regulations. The new provisions will officially take effect on January 15, 2025. Below is the translation of the changes provided by the Trade Remedies Authority of Vietnam under the Ministry of Industry and Trade.
Amendments to Trade Remedy Regulations for 2025
Regulations on Deposit Collection
The new regulation clarifies when deposit amounts should be applied on a per-unit basis instead of an ad valorem basis (percentage of the import value). In certain cases, DOC may require a per-unit calculation if sufficient information for an ad valorem calculation is unavailable or if a per-unit deposit better reflects actual transactions.
Regulations on Surrogate Country Selection
i) Switching to the use of GDP (instead of GNI under previous regulations or both GDP and GNI as proposed in the July 2024 draft) to determine countries with an economic development level equivalent to each non-market economy (NME) country. The list of surrogate countries for Vietnam (updated annually) will be announced by DOC following the issuance of this new regulation.
ii) Considering countries that are significant producers of comparable merchandise. Once the surrogate country list is published, DOC will select a significant producer of comparable goods from among the economically similar countries.
iii) If more than one country qualifies as an economically equivalent producer of similar goods, DOC will conduct a comprehensive review to select the surrogate country. Evaluation criteria include data availability, accessibility, and quality, as well as the similarity of products manufactured in potential surrogate countries compared to the investigated goods.
Regulations on Deadlines for Submitting New Factual Information
The regulation tightens submission deadlines for factual information: no later than 60 days before DOC issues a preliminary determination or review results in antidumping cases and 45 days in countervailing duty cases (previously 30 days). This extension allows DOC more time to evaluate surrogate country/value proposals for calculating dumping margins and benchmark values in countervailing duty cases involving NMEs.
Regulations on Separate Duty Rate Determination for Enterprises from Non-Market Economies
The revised policy on separate duty rate determination for enterprises from NMEs focuses on the following:
i) Stricter criteria for assessing state ownership.
ii) Additional factors for determining whether an enterprise is subject to government control in law and practice.
iii) Expanded application to exporters from third countries. If DOC determines that a company headquartered in a third country is effectively controlled by an NME government, it may be subject to the country-wide duty rate.
iv) Shortened deadline for separate duty rate applications. Previously, companies had 30 days after the initiation of an investigation to apply for a separate rate; the new rule shortens this to 21 days to allow DOC to quickly identify firms for official investigation.
Regulations on Mandatory and Voluntary Respondent Selection
DOC introduces a rule codifying the method for selecting a reasonable number of mandatory respondents in antidumping/countervailing duty investigations and reviews. The largest-volume exporters will be considered representative of other non-selected exporters, and the duties calculated for mandatory respondents will serve as the basis for determining duties for other exporters.
DOC may revoke the selection of a mandatory respondent if both the respondent and petitioner agree to exemption within five days after selection. Additionally, DOC establishes rules for voluntary respondent selection in investigations and reviews.
Regulations on the Application of Adverse Facts Available (AFA)
The amendment allows DOC to apply partial or total AFA when an exporting enterprise/government does not cooperate. DOC may use:
- Any previously calculated subsidy margin for identical or similar programs from the same country or any other program deemed reasonable when applying AFA in countervailing cases.
- Any dumping margins found in investigations/reviews when applying AFA in antidumping cases.
- The highest dumping or subsidy margin without needing to estimate an exact duty rate in cases where an exporter/government fails to cooperate. DOC is also not required to prove that such margins reflect the “commercial reality” of the involved parties.
Regulations on Subsidies (Countervailing)
i) DOC introduces a rule defining subsidies through government purchases from enterprises at above-market prices (MTAR), which could confer an undue benefit to the enterprises.
ii) A new rule states that a company may receive an export subsidy if it benefits from direct tax (e.g., income tax) or indirect tax (e.g., import duty) exemptions or reductions, or import fee reductions, where the amount paid under the program is less than it would have been otherwise, including cases where the company operates in a duty-free zone established by the exporting government.
iii) If a subsidized company is a corporation, including a parent company with independent business operations, DOC will allocate the subsidy across the consolidated revenue of the parent company and its subsidiaries.
iv) If cross-ownership exists between an input producer (directly or indirectly supplying a downstream producer) and the input production is primarily dedicated to manufacturing downstream products, DOC will allocate subsidies received by the input producer across the total revenue of both input and downstream products (excluding intercompany sales).
v) If cross-ownership exists between a utility provider (electricity, natural gas, or similar services) and a manufacturer of the investigated goods, DOC will allocate subsidies received by the utility provider across its total sales and the sales of the investigated goods manufacturer.
vi) Eliminating provisions treating broad-based subsidies (such as agricultural or SME subsidies) as “non-specific,” while adding a rule that disaster relief, pandemic aid, and employment support for certain worker groups (categorized by age, gender, disability status, veteran status, long-term unemployment, or rural/urban classification) remain “non-specific” and thus not subject to countervailing duties (CVD).
vii) Introducing a rule allowing the application of a single nationwide countervailing duty if separate rates cannot be determined, and clarifying that an NME-wide entity rate is distinct from the “all-others” rate in market economies.
Other Amendments
i) Clarifying that DOC does not consider affiliated parties as a single entity if the mentioned affiliates do not produce similar or identical goods to the investigated product, act as input suppliers, sell similar products domestically, or are affiliates where treating them as a single entity would be inappropriate based on case records.
ii) Establishing criteria for selecting sales sources, general and administrative costs, and profit figures when calculating constructed value for normal value determination in antidumping cases.
iii) Allowing antidumping/countervailing duties to be applied to specific producer/exporter combinations.
iv) Removing the requirement for case briefs and rebuttal briefs to include summaries of no more than five pages, as they were deemed overly general. Instead, the new rule mandates:
- A table of contents listing issues.
- A table of authorities citing relevant laws, regulations, administrative rulings, dispute settlements, and court decisions.
- Public summaries of no more than 450 words per argument (excluding citations).
v) No amendments yet to clarify whether DOC may share confidential business information with U.S. Customs and Border Protection (CBP) in cases involving fraud, tax evasion, or circumvention of trade remedy measures.
To protect their legitimate interests, manufacturers and exporters should familiarize themselves with the procedure and actively contact Vietnamese law firms specializing in anti-dumping and trade remedy for timely assistance.
View DOC’s new regulations here.
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