ANNOUNCED AS TEMPORARYNo
The International Trade Administration (ITA) of the U.S. Department of Commerce published a final rule on March 24, 2016 modifying its regulations pertaining to price adjustments in antidumping duty proceedings. These modifications clarify that the ITA does not intend to accept a price adjustment that is made after the time of sale unless the interested party demonstrates, to the satisfaction of the department, its entitlement to such an adjustment. The ITA also adopted in this final rule a non-exhaustive list of factors that it may consider in determining whether to accept a price adjustment that is made after the time of sale. These new rules reinstate but modify the practices that had been in place prior to a court ruling. The earlier rules dated to 1997, and defined 'price adjustment' to describe a category of changes to a price (e.g., discounts, rebates, and post-sale price adjustments) that affect the net outlay of funds by the purchaser. Since that time, the ITA applied its practice of not granting price adjustments where the terms and conditions were not established and known to the customer at the time of sale because of the potential for manipulation of dumping margins through so-called 'after-the-fact' adjustments. In a March, 2014 decision, however, the Court of International Trade (CIT) disagreed. The court stated that, as then written, the regulations did not give the ITA such discretion. The net effect of this rule change appears to operate to the benefit of petitioners rather that respondents, at least by comparison to the CIT decision. The impact may be greatest on companies in those countries that are subject to the largest number of antidumping orders.
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