SEPARATE RATES PRIMER

In U.S. antidumping investigations or reviews involving non-market economies (NME) such as Vietnam or the People's Republic of China, exporters must each participate in a separate rate test to receive a rate that is separate from the NME-wide rate.  Any exporters that fail to demonstrate that they are separate from the government entity are assigned the NME-wide rate under the involved antidumping duty order, which is invariably the highest possible rate, and which, as often as not, effectively bars the involved exporter from the U.S. market.

Exporters are awarded separate, company-specific duty rates if they can demonstrate an absence of government control, both in law and in fact, over export activities.  Evidence supporting a finding of de jure absence of government control includes: 1) an absence of restrictive stipulations associated with an individual exporter’s business and export licenses; 2) any legislative enactments decentralizing control of companies; and 3) any other formal measures by the central and/or local government decentralizing control of companies.

With respect to de facto government control, the U.S. Department of Commerce (the Department) considers four factors:  (1) whether export prices are set by, or subject to the approval of, a governmental authority; (2) whether a respondent has authority to negotiate and sign contracts and other agreements; (3) whether a respondent has autonomy from the government in making decisions regarding the selection of management; and (4) whether a respondent retains the proceeds of its export sales and makes independent decisions regarding the disposition of profits or financing of losses.

All NME exporters wishing to obtain a separate rate in an antidumping investigation or administrative review must complete a separate rate application form.  However, only those NME exporters selected as mandatory respondents are required to respond to the full antidumping questionnaire.  In other words, NME exporters wishing to obtain a separate rate do not necessarily need to participate in a full investigation or review proceeding, unless otherwise required to do so by the Department.  Consequently, an NME exporter may do much to secure or improve its access and competitive position with respect to the U.S. market by taking the simple step of applying for a separate rate.