Countervailing Duties
PRINTWhile the law is extremely complex and practice in the area is changing constantly, the summary below provides a quick reference to the main issues. Because we have one of the largest trade remedies’ practices in the United States, we would be glad to answer any specific questions that you may have on these issues. Call Jeff Neeley or Matt McGrath in the Washington, D.C. office at 202-483-0070 for further information.
1. How Cases Begin—Cases may be filed by a U.S. industry that can show that (a) imports are subsidized; and (b) the U.S. industry is being injured by these subsidized imports.
2. Deadlines—Cases have very strict and fast deadlines. The first hearing is three weeks after the filing of a petition. Final determinations are made within one year. Interim relief is generally granted within 160 days of the initial filing.
3. Agencies involved—Cases are heard at the U.S. Department of Commerce (regarding the level of subsidies) and the U.S. International Trade Commission (regarding whether injury exists).
4. Type of Relief—Relief is in the form of additional duties. U.S. producers that are faced with subsidized imports like these cases because a successful case will effectively offset such subsidies.
5. Risks to Importers—Importers operating under a subsidy order need to be very cautious because the subsidy rates may change and the scope of the order may be modified.
6. What Is A Subsidy?—Subsidies may be such things as export subsidies, special tax zones for exporters, government loans at below market rates, preferential tax benefits for exporters, preferential tax benefits for certain industries, equity infusions in non-equity worthy companies.
7. Retroactive Assessment—Importers deposit duties based on the last completed calculation of rates, but these are only estimates and not final rates. Once each year a review will be conducted for the prior year’s sales to determine what the subsidy margin is for entries during that year.
For example, a company might deposit 10% subsidy duties for January-December 2011. In January 2012, the DOC begins to review those 2011 sales (review proceeding takes about one year). When a review is completed the actual duties are determined, which can be greater or less than the 10%. Importer gets refund or pays additional duties.
8. ITC Injury Determination—Even if the Commerce Department finds subsidies, the CVD order will not go into effect unless the ITC also finds that the domestic industry is injured by reason of the subsidized imports.
The essential argument of importers and exporters at the ITC usually is that U.S. industry is not being harmed (or threatened), usually because of a lack of any causal connection between the imports and the condition of the U.S. industry. The substantive argument often is based on an alleged lack of linkage between subsidized imports and condition of the US industry, differences in product segments leading to no real competition, other causes of the problems of the industry. Procedural steps include filing a notice of appearance, completing questionnaires, participating in staff conferences, and filing briefs with legal/factual arguments.
9. The Administrative Review Process—This process only occurs at the Commerce Department. The retrospective assessment system in the U.S. means that the final liability for subsidies is determined only after the opportunity for a review. The usual time frame for a review is 16-17 months.
Importers may request reviews for their own imported goods. Either domestic parties or foreign manufacturer may request a review for a foreign company. If a company is to request a review itself, it should prepare in advance and know the risks of such a review, because the CVD paid as a result of the review could be lower, or higher, than the amounts deposited initially.
10. Scope Issues—Only “subject goods” are those that are described in the order.
Sometimes it is possible to “clarify” the order to have imports excluded from the case. If this is done, then the imports are simply not subject to the order.
DOC conducts scope reviews. Any interested party (including an importer) may request a clarification. There is a two tier review process, depending on the case: (1) DOC decides whether the good is clearly outside of scope on face of the order, and (2) if not, then Commerce conducts a further inquiry.
In further inquiry cases, Commerce often examines five factors to assist it in determining if a product is in or out of the scope of the order. The factors are:
- Physical characteristics of the product
- Expectation of ultimate consumers
- Ultimate use of product
- Channels of trade of product, and
- Manner of advertising and display
Because BRC is experienced in both customs law and antidumping/CVD practice, it is in a strong position to help clients navigate the complex issues that arise in the scope context.
11. Other Issues—Other issues that arise in CVD cases, which we frequently address, include five year “sunset” reviews determining whether there still would be injury to the U.S. industry if the CVD order were lifted,
12. Circumvention Issues—Circumvention of CVD orders can have administrative effects under the CVD law, as well as penalties from U.S. Customs & Border Protection, and even criminal liability in certain instances. Circumvention issues regarding the CVD order (particularly with regard to Chinese goods) have become increasingly common in recent years. BRC’s expertise with regard to both CBP and the Commerce Department puts us in the position to work through all aspects of the problem for clients and attain a just result.
- May 20, 2013
- Cameron Kerry to Serve as Acting Commerce Secretary
- April 12, 2013
- ITA Updates Submission of Factual Information Regulations
- December 20, 2012
- House Republicans and Democrats Introduce Differing Customs Reauthorization Proposals
- September 21, 2012
- Legislative Update: Elections Delay Action on Trade Legislation
- September 17, 2012
- China Challenges U.S. Antidumping and Countervailing Measures
- September 17, 2012
- USTR Calls for Comments on WTO Dispute
- June 27, 2012
- Williamson Named ITC Chairman
- June 25, 2012
- USTR Calls for Comments on China WTO Case
- June 21, 2012
- Bryson Resigns as Commerce Secretary
- June 1, 2012
- CBP to Distribute FY 2012 Byrd Amendment Offsets
- May 30, 2012
- CAFC Grants Rehearing in CVD NME Case, Remands Constitutionality Issue to CIT
- May 30, 2012
- China Launches WTO Challenge to U.S. Countervailing Duties
- March 13, 2012
- President Signs Legislation Applying Countervailing Duties to NMEs
- March 6, 2012
- CBP Announces FY 2012 Trade Enforcement Priorities
- March 6, 2012
- Congress Passes Legislation to Maintain CVD Orders
- February 28, 2012
- President Obama Signs Executive Order Establishing Interagency Trade Enforcement Center
- February 14, 2012
- Commerce Department to Eliminate Zeroing in AD Reviews
- February 7, 2012
- U.S. to End Zeroing in AD/CVD Proceedings
- January 26, 2012
- President Announces New Trade Enforcement Unit
- December 19, 2011
- Federal Circuit Rules Against Application of CVD Laws to NMEs
- October 25, 2011
- Bryson Sworn in as Commerce Secretary
- October 21, 2011
- Senate Approves Bryson as Commerce Secretary
- October 12, 2011
- China Currency Bill Passes Senate, Faces Opposition from House
- October 3, 2011
- ITA to Require Cash Deposits in Future AD and CVD Investigations
- October 3, 2011
- ENFORCE Act Introduced in House
- February 28, 2013
- Barnes/Richardson Client Receives De Minimis Rate in Hardwood Plywood Preliminary Determination
- May-June 2012
-
White House International Trade Initiatives
By: David G. Forgue - December 6, 2011
-
The Latest Lurking International Trade Liability
By: David G. Forgue - December 6, 2011
-
David Forgue on The Latest Lurking International Trade Liability
By: David G. Forgue - Aug. 10, 2011
-
Barnes/Richardson Publishes White Paper on ENFORCE Act
By: David G. Forgue - August 10, 2011
-
ENFORCE Act White Paper
By: David G. Forgue
