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Issues of Procedure in AD/CVD Cases
 

Issues of Procedure in AD/CVD Cases

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Department of Commerce presentation on international trade, covering anti-dumping/countervailing duties law.

Department of Commerce presentation on international trade, covering anti-dumping/countervailing duties law.

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    Issues of Procedure in AD/CVD Cases Issues of Procedure in AD/CVD Cases Presentation Transcript

    • United States Department of Commerce Import Administration Issues of Procedure in U.S. AD/CVD LawIADB & U.N. ECLAC Regional Conference May 14, 2008 y Mark B. Lehnardt Office of Chief Counsel for Import Administration U.S. Department of C US D t t f Commerce Mark.Lehnardt@mail.doc.gov Unofficial Document - For Presentation Purposes Only 1
    • Procedure in AD & CVD InvestigationsProcedure in Other Administrative Reviews Unofficial Document - For Presentation Purposes Only 2
    • Procedure in AD & CVD Investigations General Information Petition & Initiation Respondents & Questionnaires Preliminary Determination Verification, Case Briefs & Hearing Final Determination Unofficial Document - For Presentation Purposes Only 3
    • General Information Unofficial Document - For Presentation Purposes Only 4
    • General Information: Timing of Events in Antidumping Investigations ITC DOC DOC 20 Days 140 Days ITCPetition Preliminary Preliminary Final Initiation from from Final Injury Dumping or Dumping or Petition* Initiation* Injury Determination Subsidy Subsidy Determination Determination Determination 20 Days 45 Days 140 Days 75 Days 45 Days from from from from from Petition Petition* Petition Initiation* DOC DOC Prelim* Final* May be extended under certain circumstances Unofficial Document - For Presentation Purposes Only 5
    • General Information:Timing of Events in Countervailing Duty Investigations ITC DOC DOC ITC 20 Days 140 Days Preliminary FinalPetition Initiation Preliminary Final from Injury from Dumping or Dumping or Injury Petition* Determination Initiation* Subsidy Subsidy Determination Determination Determination 20 Days 45 Days 65 Days 75 Days 45 Days from from from from from Petition Petition* Petition Initiation* DOC DOC Prelim* Final* May be extended under certain circumstances Unofficial Document - For Presentation Purposes Only 6
    • General I f G l Information: i Events in AD and CVD Investigations DOC ITC DOC DOC ITCInitiation Preliminary Preliminary Final Final Decision Decision Decision Decision Notice Published in Questionnaires Federal Register g Notice Published in AD or C o CVDPetition Issued Federal Register F d lR i tAnalyzed Calculations Order Questionnaire Disclosed Calculations Published inNotice of Responses Disclosed FederalInitiation Significant Submitted Ministerial Errors Register (ifPublished Ministerial Errors Corrected affirmative) ) Supplemental S l t l CorrectedConsultation Suspension of Suspension of Questionnaire Liquidation ofwith affected Liquidation Liquidation Issued entries Suspendedcountry Continued or Lifted Continued or Supplemental (if affirmative)governments Lifted(CVD) Response Verifications Submitted Conducted and Reports Issued Case and Rebuttal Briefs filed Hearings H i Conducted Unofficial Document - For Presentation Purposes Only 7
    • General Information: Foreign Parties That MayParticipate In Proceedings (Interested Parties)Foreign Manufacturers, Groups composed in theProducers,Producers or Exporters of majority of foreign exporters, exporterssubject merchandise producers, or U.S. importers ofForeign Governments (country subject merchandiseof manufacture, production, or Industrial Users and Consumerexport) GroupsU.S.U S Importers of subjectmerchandise Unofficial Document - For Presentation Purposes Only 8
    • General Information: Filing RequirementsTechnical requirements that must be satisfied before DOC h i l i h b i fi d b faccepts filingsRequirements include identifying the case and proceedingon documents, submitting proper number of copies,including certifications of accuracy (by party & attorney)*Failure to file properly may result in DOC rejecting thesubmission and requiring resubmission*see attachment containing general filing requirements Unofficial Document - For Presentation Purposes Only 9
    • General Information: Access to InformationDOC maintains a complete record of allsubmissions and documents generated by DOCin each proceeding Confidential record Public fileBoth hB h the confidential and public records are fid i l d bli dmaintained in DOC’s Central Records Unit(CRU) Unofficial Document - For Presentation Purposes Only 10
    • General Information: Access to InformationOur regulations require that public versions bemade available of all submissions to andmemoranda generated by DOC Specific rules for ranging and/or redacting confidential data exist The protection of confidential data is vigorously enforced Unofficial Document - For Presentation Purposes Only 11
    • General Information: Access to Confidential Information Under certain circumstances, legal representatives for interested parties are allowed access to confidential information submitted to the DOC in the course of a proceeding Access to confidential information is permitted to provide maximum opportunity to understand the facts and calculations underlying the case and to defend their parties’ interests in the proceeding Unofficial Document - For Presentation Purposes Only 12
    • General Information: Access to Confidential Information The Administrative Protective Order (APO) is the legal mechanism by which the DOC controls the limited disclosure of business proprietary information in AD/CVD proceedings to the legal representatives of interested parties The representative of an interested party may not reveal APO protected information to officials of the interested party that it represents Significant penalties may be applied to violators of an APO Unofficial Document - For Presentation Purposes Only 13
    • General Information: Access to Information In addition to the CRU, information is made available to parties via the following: Federal Register notices Published analysis memoranda Service by parties Disclosure to parties Unofficial Document - For Presentation Purposes Only 14
    • General Information: Notification by DOCWe notify affected embassies upon receipt of petitionand then again if a case is initiatedWe notify parties selected to respond to questionnairesWe conduct meetings with respondents to discussquestionnaires and other issuesWe notify parties of deficiencies in questionnaireresponses and i d issue supplemental questionnaires l l i iWe notify interested parties of all deadlines Unofficial Document - For Presentation Purposes Only 15
    • General Information: Online ResourcesFederal Register (published determinations), Statutes (19U.S.C. § 1671 to 1677n), and Regulations (19 C.F.R. §351 to 356): http://www.gpoaccess.govDOC I Import Ad i i t ti Website (issues & decisions t Administration W b it (i d iimemoranda, and other information):http://www.trade.gov/ia/ Unofficial Document - For Presentation Purposes Only 16
    • Petition & Initiation Unofficial Document - For Presentation Purposes Only 17
    • Petition & Initiation: Mechanics DOC and the ITC simultaneously receive petitions from the affected U.S. industry Within 20 days, DOC determines whether to initiate days an investigation by determining accuracy and adequacy of evidence supporting the petition, y q y pp g p , whether the petition alleges elements necessary to finding dumping or subsidy and injury, and whether the petition was filed by, or on behalf of the by domestic industry (industry support) Unofficial Document - For Presentation Purposes Only 18
    • Petition & Initiation: Mechanics AD/CVD investigations are almost always initiated in response to petitions filed by an affected U.S. industry, although under rare circumstances DOC may self-initiate a case DOC determines whether to initiate an investigation ITC determines whether the relevant U.S. industry has d t i h th th l tUS i d t h been materially injured, or threatened by allegedly dumped or subsidized merchandise DOC determines whether and to what extent dumping or subsidization is occurring Unofficial Document - For Presentation Purposes Only 19
    • Petition & Initiation: Participation Any interested party may comment on the adequacy of industry support Petitioner may be asked to clarify the scope of the petition, domestic support, factual support, or legal arguments support support In Countervailing Duty cases, we provide an opportunity for f consultations about the petition to the government of lt ti b t th titi t th t f exporting countries named in the petition Unofficial Document - For Presentation Purposes Only 20
    • Respondents & Questionnaires Unofficial Document - For Presentation Purposes Only 21
    • Respondents & Questionnaires:Parties Who May Be Required To Respond y q p Producers Exporters Suppliers Foreign Governments (where appropriate) Unofficial Document - For Presentation Purposes Only 22
    • Respondents & Questionnaires:Mandatory Respondents/Respondent SelectionWhere not practicable to examine each knownproducer and exporter examination is limited to: exporter, a statistically valid sample of producers/exporters, or exporters and producers accounting for the largest volume of the subject merchandise from the exporting country that can be reasonably examined t th t b bl i d Unofficial Document - For Presentation Purposes Only 23
    • Respondents & Questionnaires: General Questionnaire Structure AD Investigation CVD InvestigationSection A: General Information Section I: General InformationSection B: Comparison-Market Section II: GovernmentSales General QuestionsSection C: U.S. Market Sales US Program Specific Questions Appendices (Standard Questions,Section D: Cost of Production Allocation, Grants, Loans, Tax,& Constructed Value Provision of Good & Services)Section E: Further Section III: Producer/ExporterManufacturing in the United Same topics as GovernmentStates Unofficial Document - For Presentation Purposes Only 24
    • Respondents & Questionnaires:Assistance to Respondents in Questionnaire Preparation Assistance by the DOC Clarification of questionnaire requirements Limiting reporting requirements if undue burden exists Typically provide generous extensions (within statutory timeframe), upon request, to work with y ), p q , respondents to attain more accurate information Use of outside legal representation Unofficial Document - For Presentation Purposes Only 25
    • Respondents & Questionnaires: Submission of Factual InformationInterested parties can submit factualinformation at any time prior to the deadlineInterested parties can submit new factualinformation to rebut, clarify, or correct factual rebut clarifyinformation submitted by any other interestedparty at any time prior to the deadlines orwithin 10 days after submission of the originalinformation (whichever is later) ( ) Unofficial Document - For Presentation Purposes Only 26
    • Preliminary Determination Unofficial Document - For Presentation Purposes Only 27
    • Preliminary Determination: Announcement & PublicationInterested parties are notified by phone on “release date,”normally noon the day after the signature of the decisionPreliminary (and final) determinations are published in theFederal Register typically within 5-7 days followingreleaseFact Sheets are also available on Import Administration’swebsite: http://ia.ita.doc.gov/ia-highlights-and-news.html Unofficial Document - For Presentation Purposes Only 28
    • Preliminary Determination: ContentsPreliminary scope determinationP li i d t i tiPreliminary calculation methodologies determinedIf alleged, p e a eged, preliminary critical c cu sta ces determination a y c t ca circumstances dete at oPreliminary cost of production analysis results, whereappropriatePreliminary margin/deposit rate for each respondentP li i i /d it t f h d tPreliminary “All-Others” rateAny adjustments to the submitted data which the DOC has y jpreliminarily deemed appropriateSuspension of liquidation (if affirmative) Unofficial Document - For Presentation Purposes Only 29
    • Preliminary Determination:Correction of Significant Ministerial Errors DOC discloses calculations & methodologies to each party Ministerial Mi i i l errors – mathematical, clerical, and any other h i l l i l d h unintentional errors Commerce considers ministerial Allegations of ministerial errors must be raised within 5 All ti f i it i l t b i d ithi days of calculation disclosure At thi stage of the proceeding, alleged errors must be this t f th di ll d tb “significant” – at least 5 percentage points and at least 25 percent of margin, or would result in zero or de minimis margin Unofficial Document - For Presentation Purposes Only 30
    • Preliminary Determination: EffectCommerce instructs the U.S. Customs and BorderProtection (CBP) to suspend liquidation on the productunder investigation and to begin collecting a deposit basedon the preliminary antidumping marginAn affirmative critical circumstances determinationimposes duties on entries up to 90 day priorA margin of zero or de minimis does not result in gtermination of investigation Unofficial Document - For Presentation Purposes Only 31
    • Verification, CV ifi ti Case Briefs & Hearing Bi f H i Unofficial Document - For Presentation Purposes Only 32
    • Verification, Case Briefs & Hearing: Verification IA is required by law to verify each respondent’s questionnaire response in d t’ ti i i AD and CVD investigations Verifications are conducted after the preliminary determination Unofficial Document - For Presentation Purposes Only 33
    • Verification, Case Briefs & Hearing: Verification Permission sought from Government of exporting country and from company Verification Outline DOC will identify key topics and specific ill id tif k t i d ifi information to be reviewed at verification Outline provided to respondents with sufficient advance time to assemble requested information Unofficial Document - For Presentation Purposes Only 34
    • Verification, Case Briefs & Hearing: VerificationDOC will conduct extensive examination of company ill d t t i i ti f books and records and government files (CVD only) to: AD Investigation i i i i CVD InvestigationConfirm that all subject merchandise Confirm details of subsidy programssold during the POI is reported Confirm government records ofConfirm submitted sales recorded in participationcompany accounts Confirm participation and level ofConfirm accuracy of individual benefit received by companytransactions Confirm company sales volumesConfirm submitted cost dataVerify charges and adjustments y g j Unofficial Document - For Presentation Purposes Only 35
    • Verification, Case Briefs & Hearing: Verification Duration of Verification AD Verification CVD VerificationTypicallyT i ll 5 working days for export ki d f Typically 1 2 T i ll 1-2 working days per subsidy ki d b idprice (EP) and home market sales program with government agenciesresponses Typically 1-2 working days per subsidyTypicallyT i ll 5 working days for ki d f program with companies ih iconstructed export price (CEP) and Typically 1-2 working days to confirmhome market sales responses, plus 1-3 company sales volumesdays for U S portion of CEP U.S.Typically 5 working days for a cost ofproduction verification Unofficial Document - For Presentation Purposes Only 36
    • Verification, Case Briefs & Hearing: Verification Locations for Verification L ti f V ifi ti Government offices where key officials are stationed Government or Company facilities where relevant documents are maintained Facilities where key company staff are located May Include: All Pertinent Plants of Production Suppliers Resellers Unofficial Document - For Presentation Purposes Only 37
    • Verification, Case Briefs & Hearing: Verification Verification Report IA issues a comprehensive verification report p p of our findings that allows parties significant time and opportunity for interested parties to comment upon results l Unofficial Document - For Presentation Purposes Only 38
    • Verification, Case Briefs & Hearing: Opportunities to Present Arguments pp gInterested parties may submit arguments atany stage of the proceeding f h diHowever,However to ensure efficient and timelycompletion of the proceeding, the DOCprovides a formal structure for submittingsuch arguments Unofficial Document - For Presentation Purposes Only 39
    • Verification, Case Briefs & Hearing: Forms of Argument in ProceedingsEx-Parte Meetings - may be requested at any time but areheld at the DOC’s discretion; discussion is limited to factsalready on the recordLetters Filed by Parties - may be submitted at any timeCase Briefs - must be filed by the deadline specified in thepreliminary determination; limited to facts already on the li i d t i ti li it d t f t l d threcordRebuttal Briefs - limited to issues raised in other parties’case briefsHearings - normally public, but may include closedpportion to address confidential information already on the yrecord Unofficial Document - For Presentation Purposes Only 40
    • Verification, Case Briefs & Hearing: Case Briefs Interested parties, industrial users, and consumer groups may submit written argument in Case Briefs regarding the preliminary determination and calculations Case Briefs are due 50 days after publication i d d bli i of the preliminary determination Rebuttal B i f R b tt l Briefs may be submitted 5 days b b itt d d after Case Briefs May t i l d M not include new factual information f t li f ti Unofficial Document - For Presentation Purposes Only 41
    • Verification, Case Briefs & Hearing: Hearing Hearings are held upon request Parties may verbally present their views, but are limited to issues raised in case and rebuttal briefs New factual information is not permitted A verbatim transcript of the public session of all hearings is available to the public h i i il bl h bli Unofficial Document - For Presentation Purposes Only 42
    • Verification, Case Briefs & Hearing: Hearings Hearing may include a closed session to discuss confidential information – only attorneys with APO access may present or rebut in these sessions ma reb t If a portion of a hearing is closed the transcript closed, for the closed session only will be considered business proprietary and therefore subject to the regulations which govern administrative protective orders Unofficial Document - For Presentation Purposes Only 43
    • Final Determination Unofficial Document - For Presentation Purposes Only 44
    • Final Determination:Similarities with Preliminary Determination Similar procedures for announcement & publication and disclosure of calculations to parties ti Similar contents (but all determinations are final) (see slides 28-30) Unofficial Document - For Presentation Purposes Only 45
    • Final Determination:Differences from Preliminary Determination Commerce publishes an “Issues & Decisions Memorandum” (made available on release date and noted on Import Administration website) that describes Commerce’s position on each issue raised in briefs, rebuttal briefs and the hearing All ministerial errors will be considered Allegations due 5 days after calculations disclosed If requested, Commerce will meet with parties to explain calculations and decisions Commerce usually responds to error allegations within 30 days Unofficial Document - For Presentation Purposes Only 46
    • Fi l D t i ti Final Determination: Imposition of the OrderAn order is the public announcement that the DOC will instructCBP to assess duties pursuant to the affirmative finaldeterminations of the DOC and ITCOrders are issued within 7 days after the ITC notifies the DOC ofits affirmative injury determinationThe dTh order establishes date on which duty requirements become t bli h d t hi h d t i t beffective and provides notice to parties and the U.S. Customs andBorder Patrol (CBP) that duties will be imposed Unofficial Document - For Presentation Purposes Only 47
    • Final Determination:Role of U.S. Customs, Bond/Deposit Requirements Imposed Following an affirmative final determination, CBP will continue to suspend liquidation and collect cash deposits at the final rate, as directed by Commerce The CBP collects deposits and liquidates entries, but does not have a role in the calculation of antidumping margins. CBP also refunds d l f d deposits if warranted by the final it t d b th fi l determination Unofficial Document - For Presentation Purposes Only 48
    • Procedure in Other Administrative Reviews (differences) Administrative Reviews Sunset Reviews Changed Ci Ch d Circumstances Reviews t R i New Shipper Reviews pp Scope Inquiries Unofficial Document - For Presentation Purposes Only 49
    • Administrative ReviewsDifferent timelinesDifferent purpose: to determine assessment rateforf entries since the Preliminary Determination (or i i h P li i D i i (most recent review) and to set cash deposit ratesgoing forwardAdministrative reviews are not automatic – mustbe requested of exporters or producers by theexporter or producer itself, their importers,domestic interested parties, or foreign government p g g Unofficial Document - For Presentation Purposes Only 50
    • Administrative ReviewsVerifications visits are not mandatory for all respondents ifi i ii d f ll dVerifications visits are made before the preliminarydetermination is issuedCompanies not individually reviewed are assessed at areview-specific all-others rateEntries not covered by a request for review are liquidatedat the rate required upon entry Unofficial Document - For Presentation Purposes Only 51
    • Sunset ReviewsDifferent timelinesDifferent purpose: to revoke the order, unless it isdetermined that dumping or subsidy and injury are likely to p g y j y ycontinue or recur if the order is revokedAutomatically initiated, but parties must indicate theirpositions itiOrder is revoked if insufficient response from the domesticinterested parties pOrder is continued if adequate response from the domesticindustry, but inadequate response from respondentinterested partiesi t t d ti Unofficial Document - For Presentation Purposes Only 52
    • Sunset ReviewsAny interested party may file comments with DOC aboutany relevant issue in response to initiation of a sunsetreviewCommerce determines whether dumping or subsidizationis likely to continue or recur if the order is revokedAfter an affirmative DOC determination, the ITCdetermines whether injury is likely to continue or recur ifthe order is revokedOrder is continued only if both DOC and the ITC makeaffirmative determinations, otherwise DOC revokes theorder Unofficial Document - For Presentation Purposes Only 53
    • New Shipper ReviewsDifferent timelinesDifferent purpose: to provide an expedited reviewfor a determination of a new shipper’s individualmarginsMust not have shipped subject merchandise to theU.S. during the period of investigation, and not berelated to any entity that didMust have a bona fide sale during the relevantperiod i d Unofficial Document - For Presentation Purposes Only 54
    • Changed Circumstances Reviews Different timelines Different purpose: to address a variety of circumstances that fall outside the normal margin calculations of administrative reviews Successor-in-interest determinations Partial revocations of the order (scope) ( p ) Unofficial Document - For Presentation Purposes Only 55
    • Scope InquiriesDifferent timelinesDifferent purpose: to determine whether specificproducts are included within the scope of the order d i l d d i hi h f h dDeterminations are not published in FederalRegister, thR i t they are sent only to parties on scope t l t tiservice list (all parties that have participated in anysegment of the proceeding)List of scope rulings published quarterly in theFederal Register Unofficial Document - For Presentation Purposes Only 56
    • Gracias Obrigado Thank youUnofficial Document - ForPresentation Purposes Only 57
    • HeinOnline -- CFR 250 2007
    • HeinOnline -- CFR 251 2007
    • HeinOnline -- CFR 252 2007