Antidumping

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Antidumping 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. Contact any Barnes/Richardson lawyer for further information.

How Cases Begin – Cases may be filed by a U.S. industry that can show that (a) prices of imports are unfairly low; and (b) the U.S. industry is being injured by these unfairly priced imports.
Deadlines – Cases have very strict and fast deadlines. The first hearing is 3 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.
Agencies involved – Cases are heard at the U.S. Department of Commerce (regarding the level of dumping) and the U.S. International Trade Commission (regarding whether injury exists).
Type of Relief – Relief is in the form of additional duties.
U.S. producers which are faced with low prices (often from Vietnam or China) like these cases since a successful case will effectively put a floor on prices.
Risks to Importers – Importers operating under a dumping order need to be very cautious since the dumping duty rates may change and the scope of the order may be modified.
What Is Dumping? – 2 main elements to dumping case: (1) Sales in the US at below “normal value” and (2) material injury or threat of such injury by reason of the dumped imports.
What is “Normal Value”? – “Normal value” is defined, in order of preference as:
1. Home market prices,
2. Third country prices if insufficient home market sales,
3. A “constructed value” based on costs of manufacture plus SG&A expenses and “normal” profit, if insufficient home market and third country sales,
4. Special rule for non-market economies such as China and Vietnam, based on actual inputs and “surrogate values” for those inputs. Surrogate values from India, the Philippines or similar countries.
What Dumping Is Not – Not simply underselling United States manufacturers. Not “illegal” or necessarily “wrong.” Similarly, antidumping duties are not supposed to be a “punishment” but to offset the amount of the “dumping.”
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 antidumping duty margin is for entries during that year.

For example, a company might deposit 10% dumping duties for January-December 2011. In January 2012 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.

The key point for exporter and importers is to plan ahead. Once the sales are made, it is too late to do as much to affect the outcome. Careful planning is needed before the sales are made, and before the review occurs.
One effect of the review is the payment of the duties for the past period (so-called retrospective assessment). The other effect of the review is that the new rate will be applied as the new estimate of dumping until the next completed review
ITC Injury Determination – Even if the Commerce Department finds dumping, the dumping duty order will not go into effect unless the ITC also finds that the domestic industry is injured by reason of the dumped 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 dumped 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.
Non-Reimbursement of dumping duties – Exporter/manufacturer may not simply reimburse importer for antidumping duties. If they do, Customs is to collect the dumping duties again. The idea is that antidumping duties will have economic impact in United States market and the duties are not to be absorbed by the exporter/manufacturer.
The Administrative Review Process – This process only occurs at the Commerce Department only. The retrospective assessment system in the U.S. means that the final liability for antidumping duties are determined only after the opportunity for a review. A review establishes the actual liability an importer must bear , which leads to a lack of predictability, particularly with non-market economies such as China and Vietnam. 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 dumping duties paid as a result of the review could be lower, or higher, than the amounts deposited initially.
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 may request (including an importer). 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 scope, and (2) if not, then Commerce conducts a further inquiry.

In further inquiry cases, Commerce often examines 5 factors to assist it in determining if a product is in or out of the scope of the order.
The 5 factors are:
1. (a) Physical characteristics of the product
2. (b) Expectation of ultimate consumers
3. (c) Ultimate use of product
4. (d) Channels of trade of product, and
5. (e) Manner of advertising and display
Because BRC is experienced in both customs law and antidumping practice, it is in a strong position to help clients navigate the complex issues that arise in the scope context.
New Shipper Reviews – Subject exporters/manufacturers who have not been reviewed pay “all others” rate. The “all others rate” generally is very high. The new shipper companies are able to be reviewed and obtain their own rate for their shipments, which should be substantially lower. There are special rules for such reviews, which include the ability to ask for reviews twice a year rather than only annually.
Other Issues – Other issues that arise in dumping cases that we frequently work on include five year “sunset” reviews determining whether there still would be injury to the U.S. industry if the dumping order were lifted.
Circumvention Issues – Circumvention of dumping duties can have administrative effects under the dumping law, as well as penalties from U.S. Customs & Border Protection, and even criminal liability in certain instances. Circumvention issues regarding dumping 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.

Dec. 3, 2020: CIT Pushes Back on EAPA
Nov. 2, 2020: New Petition: Polyester Textured Yarn from Indonesia, Malaysia, Thailand, and Vietnam
Oct. 11, 2020: New Petition: Thermal Paper from Germany, Japan, Korea and Spain
Oct. 1, 2020: New Petition: Utility Scale Wind Towers from India, Malaysia and Spain
Oct. 1, 2020: New Petition: Aluminum Foil from Armenia, Brazil, Oman, Russia and Turkey
Aug. 31, 2020: Commerce Proposes Major Changes to Maximize AD/CVD Enforcement
Aug. 31, 2020: Proposed Changes to New Shipper Reviews, Other AD and CVD Regulations
Aug. 26, 2020: Commerce Rejects Anticircumvention Proceedings to Overcome Negative ITC Injury Determinations
Aug. 12, 2020: New Petition: Chassis and Subassemblies Thereof from the PRC
June. 26, 2020: Twist Ties from China Subject of Antidumping and Countervailing Duty Petition
April 20, 2020: 90-Day Duty Payment Deferral in Response to COVID-19
November 28, 2017: Commerce Self-Initiates AD/CVD Investigations of Chinese Aluminum Sheet Imports
August 29: Antidumping/Countervailing Duty Petition Filed Concerning Titanium Sponge
August 16, 2017: AD/CVD Petition on Stainless Steel Flanges from China and India Filed with ITC, DOC
August 10, 2017: Commerce Rules Heat-Treated Aluminum 5050 Extrusions As Circumvention; Overturns Related Scope Rulings
June 14, 2017: Commerce Seeks Public Comment on Draft Sugar Suspension Agreement
June 6, 2017: U.S., Mexico Renegotiate Sugar Suspension Agreement
June 2, 2017: Antidumping/Countervailing Duty Petition Filed Concerning Citric Acid and Certain Citrate Salts from Three Countries
June, 1, 2017: Antidumping/Countervailing Duty Petition Filed Concerning Fine Denier Polyester Staple Fiber form Five Countries
May 18, 2017: President Trump Starts NAFTA Modification Process
May 10, 2017: International Trade Commission Institutes Second and Third Parts of Digital Trade Investigation
April 27, 2017: Antidumping/Countervailing Duty Petition Filed Concerning 100- to 150- Seat Large Civil Aircraft from Canada
April 26, 2017: Bureau of Industry and Security Solicits Public Comments, Announces Public Hearing for Section 232 Steel Investigation
April 25, 2017: Commerce Issues Preliminary Affirmative CVD, Critical Circumstances Determinations for Canadian Softwood Lumber
April 21, 2017: Commerce Department, USTR Solicit Public Comment on Trade Deficit Omnibus Report
April 21, 2017: Antidumping/Countervailing Duty Petition Filed Concerning Certain Tool Chests and Cabinets
April, 21, 2017: Antidumping/Countervailing Duty Petition Filed Concerning Certain Cold-Drawn Mechanical Tubing
April 20, 2017: President Trump Directs Commerce to Expedite National Security Investigation of Steel Imports
April 5, 2017: Antidumping Duty Petition Filed Concerning Carton-Closing Staples
March 29, 2017: Antidumping/Countervailing Duty Petition Filed Concerning Carbon and Alloy Steel Wire Rod
March 23, 2017: Antidumping/Countervailing Duty Petition Filed Concerning Biodiesel
March 16, 2017: Antidumping/Countervailing Duty Petition Filed Concerning Chinese Aluminum
March 16, 2017: Antidumping/Countervailing Duty Petition Filed Concerning Silicon Metal
January 19, 2017: Court of International Trade Limits Retroactive Application of Scope Determination
January 19, 2017: Presidential Authority over Trade
January 19, 2017: The National Trade Council
May 4, 2015: Commerce Resumes AD and CVD Case on Sugar for Mexico
Friday April 24, 2015: Senate Finance Committee and House Ways and Means Committee Pass TPA, Customs Reauthorization, and GSP Bills
December 11, 2014: Senators Urge South Africa to Remove Poultry Duties
December 10, 2014: Federal Circuit Will Not Rehear GRK Canada Tariff Classification Case
September 4, 2014: India Will Not Impose Antidumping Duties for Solar Cells
August 19, 2014: China Agrees to Negotiate a Suspension Agreement on Solar Panel Cells
August 14, 2014: USCIT Denies Amicus Curiae for Multilayered Wood Flooring
August 7, 2014: U.S. Concerns Regarding South Africa's Participation in the AGOA
July 15, 2014: WTO Finds U.S. Inconsistent with Obligations in India and China CVD Cases
March 10, 2014: White House Releases 2014 Trade Agenda
December 02, 2013: Manufacturing Company Settles Duty Evasion Suit

View Archive

Sept. 16, 2020: BRC Successfully Argues Before CAFC
May 4, 2017: BRC Partner Lawrence Friedman to Speak at Upcoming PERT Event
March 8, 2017: Barnes Partner Lawrence Friedman Quoted Regarding Tariff Engineering in Washington Post
January 30: David G. Forgue to Speak at Chicago Customs Broker and Freight Forwarder Association Seminar
January 19, 2017: David Forgue to Speak on AD/CVD Evasion at International Trade Club of Chicago
June 6, 2014: Larry Friedman Elected Vice President of CITBA
February 24, 2014: Barnes/Richardson Secures Unanimous Win at ITC
November 05, 2013: Barnes/Richardson Secures Unanimous Dismissal by ITC
July 26, 2013: BRC Partner Quoted on Threaded Rod Antidumping Investigation
July 10, 2013: Barnes/Richardson Secures Continuation of Suspension Agreement on Lemon Juice from Argentina
February 11, 2013: Barnes/Richardson Client Receives De Minimis Margin in Diamond Sawblades Case
May-June 2012: White House International Trade Initiatives
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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
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August 10, 2011: ENFORCE Act White Paper
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Antidumping

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