Issues of Procedure in AD/CVD Cases
1 like1,621 views
Department of Commerce presentation on international trade, covering anti-dumping/countervailing duties law.
Issues of Procedure in AD/CVD Cases
- 1. United States Department of Commerce Import Administration Issues of Procedure in U.S. AD/CVD Law IADB & 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
- 2. Procedure in AD & CVD Investigations Procedure in Other Administrative Reviews Unofficial Document - For Presentation Purposes Only 2
- 3. 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
- 4. General Information Unofficial Document - For Presentation Purposes Only 4
- 5. General Information: Timing of Events in Antidumping Investigations ITC DOC DOC 20 Days 140 Days ITC Petition 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
- 6. General Information: Timing of Events in Countervailing Duty Investigations ITC DOC DOC ITC 20 Days 140 Days Preliminary Final Petition 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
- 7. General I f G l Information: i Events in AD and CVD Investigations DOC ITC DOC DOC ITC Initiation Preliminary Preliminary Final Final Decision Decision Decision Decision Notice Published in Questionnaires Federal Register g Notice Published in AD or C o CVD Petition Issued Federal Register F d lR i t Analyzed Calculations Order Questionnaire Disclosed Calculations Published in Notice of Responses Disclosed Federal Initiation Significant Submitted Ministerial Errors Register (if Published Ministerial Errors Corrected affirmative) ) Supplemental S l t l Corrected Consultation Suspension of Suspension of Questionnaire Liquidation of with affected Liquidation Liquidation Issued entries Suspended country 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
- 8. General Information: Foreign Parties That May Participate In Proceedings (Interested Parties) Foreign Manufacturers, Groups composed in the Producers, Producers or Exporters of majority of foreign exporters, exporters subject merchandise producers, or U.S. importers of Foreign Governments (country subject merchandise of manufacture, production, or Industrial Users and Consumer export) Groups U.S. U S Importers of subject merchandise Unofficial Document - For Presentation Purposes Only 8
- 9. General Information: Filing Requirements Technical requirements that must be satisfied before DOC h i l i h b i fi d b f accepts filings Requirements include identifying the case and proceeding on documents, submitting proper number of copies, including certifications of accuracy (by party & attorney)* Failure to file properly may result in DOC rejecting the submission and requiring resubmission *see attachment containing general filing requirements Unofficial Document - For Presentation Purposes Only 9
- 10. General Information: Access to Information DOC maintains a complete record of all submissions and documents generated by DOC in each proceeding Confidential record Public file Both h B h the confidential and public records are fid i l d bli d maintained in DOCs Central Records Unit (CRU) Unofficial Document - For Presentation Purposes Only 10
- 11. General Information: Access to Information Our regulations require that public versions be made available of all submissions to and memoranda 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
- 12. 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
- 13. 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
- 14. 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
- 15. General Information: Notification by DOC We notify affected embassies upon receipt of petition and then again if a case is initiated We notify parties selected to respond to questionnaires We conduct meetings with respondents to discuss questionnaires and other issues We notify parties of deficiencies in questionnaire responses and i d issue supplemental questionnaires l l i i We notify interested parties of all deadlines Unofficial Document - For Presentation Purposes Only 15
- 16. General Information: Online Resources Federal Register (published determinations), Statutes (19 U.S.C. 則 1671 to 1677n), and Regulations (19 C.F.R. 則 351 to 356): http://www.gpoaccess.gov DOC I Import Ad i i t ti Website (issues & decisions t Administration W b it (i d ii memoranda, and other information): http://www.trade.gov/ia/ Unofficial Document - For Presentation Purposes Only 16
- 17. Petition & Initiation Unofficial Document - For Presentation Purposes Only 17
- 18. 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
- 19. 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
- 20. 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
- 21. Respondents & Questionnaires Unofficial Document - For Presentation Purposes Only 21
- 22. 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
- 23. Respondents & Questionnaires: Mandatory Respondents/Respondent Selection Where not practicable to examine each known producer 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
- 24. Respondents & Questionnaires: General Questionnaire Structure AD Investigation CVD Investigation Section A: General Information Section I: General Information Section B: Comparison-Market Section II: Government Sales General Questions Section 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/Exporter Manufacturing in the United Same topics as Government States Unofficial Document - For Presentation Purposes Only 24
- 25. 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
- 26. Respondents & Questionnaires: Submission of Factual Information Interested parties can submit factual information at any time prior to the deadline Interested parties can submit new factual information to rebut, clarify, or correct factual rebut clarify information submitted by any other interested party at any time prior to the deadlines or within 10 days after submission of the original information (whichever is later) ( ) Unofficial Document - For Presentation Purposes Only 26
- 27. Preliminary Determination Unofficial Document - For Presentation Purposes Only 27
- 28. Preliminary Determination: Announcement & Publication Interested parties are notified by phone on release date, normally noon the day after the signature of the decision Preliminary (and final) determinations are published in the Federal Register typically within 5-7 days following release Fact Sheets are also available on Import Administrations website: http://ia.ita.doc.gov/ia-highlights-and-news.html Unofficial Document - For Presentation Purposes Only 28
- 29. Preliminary Determination: Contents Preliminary scope determination P li i d t i ti Preliminary calculation methodologies determined If alleged, p e a eged, preliminary critical c cu sta ces determination a y c t ca circumstances dete at o Preliminary cost of production analysis results, where appropriate Preliminary margin/deposit rate for each respondent P li i i /d it t f h d t Preliminary All-Others rate Any adjustments to the submitted data which the DOC has y j preliminarily deemed appropriate Suspension of liquidation (if affirmative) Unofficial Document - For Presentation Purposes Only 29
- 30. 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
- 31. Preliminary Determination: Effect Commerce instructs the U.S. Customs and Border Protection (CBP) to suspend liquidation on the product under investigation and to begin collecting a deposit based on the preliminary antidumping margin An affirmative critical circumstances determination imposes duties on entries up to 90 day prior A margin of zero or de minimis does not result in g termination of investigation Unofficial Document - For Presentation Purposes Only 31
- 32. Verification, C V ifi ti Case Briefs & Hearing Bi f H i Unofficial Document - For Presentation Purposes Only 32
- 33. Verification, Case Briefs & Hearing: Verification IA is required by law to verify each respondents 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
- 34. 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
- 35. Verification, Case Briefs & Hearing: Verification DOC 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 Investigation Confirm that all subject merchandise Confirm details of subsidy programs sold during the POI is reported Confirm government records of Confirm submitted sales recorded in participation company accounts Confirm participation and level of Confirm accuracy of individual benefit received by company transactions Confirm company sales volumes Confirm submitted cost data Verify charges and adjustments y g j Unofficial Document - For Presentation Purposes Only 35
- 36. Verification, Case Briefs & Hearing: Verification Duration of Verification AD Verification CVD Verification Typically T 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 id price (EP) and home market sales program with government agencies responses Typically 1-2 working days per subsidy Typically T i ll 5 working days for ki d f program with companies ih i constructed export price (CEP) and Typically 1-2 working days to confirm home market sales responses, plus 1-3 company sales volumes days for U S portion of CEP U.S. Typically 5 working days for a cost of production verification Unofficial Document - For Presentation Purposes Only 36
- 37. 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
- 38. 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
- 39. Verification, Case Briefs & Hearing: Opportunities to Present Arguments pp g Interested parties may submit arguments at any stage of the proceeding f h di However, However to ensure efficient and timely completion of the proceeding, the DOC provides a formal structure for submitting such arguments Unofficial Document - For Presentation Purposes Only 39
- 40. Verification, Case Briefs & Hearing: Forms of Argument in Proceedings Ex-Parte Meetings - may be requested at any time but are held at the DOCs discretion; discussion is limited to facts already on the record Letters Filed by Parties - may be submitted at any time Case Briefs - must be filed by the deadline specified in the preliminary determination; limited to facts already on the li i d t i ti li it d t f t l d th record Rebuttal Briefs - limited to issues raised in other parties case briefs Hearings - normally public, but may include closed p portion to address confidential information already on the y record Unofficial Document - For Presentation Purposes Only 40
- 41. 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
- 42. 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
- 43. 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
- 44. Final Determination Unofficial Document - For Presentation Purposes Only 44
- 45. 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
- 46. 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 Commerces 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
- 47. Fi l D t i ti Final Determination: Imposition of the Order An order is the public announcement that the DOC will instruct CBP to assess duties pursuant to the affirmative final determinations of the DOC and ITC Orders are issued within 7 days after the ITC notifies the DOC of its affirmative injury determination The d Th order establishes date on which duty requirements become t bli h d t hi h d t i t b effective and provides notice to parties and the U.S. Customs and Border Patrol (CBP) that duties will be imposed Unofficial Document - For Presentation Purposes Only 47
- 48. 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
- 49. 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
- 50. Administrative Reviews Different timelines Different purpose: to determine assessment rate for f entries since the Preliminary Determination (or i i h P li i D i i ( most recent review) and to set cash deposit rates going forward Administrative reviews are not automatic must be requested of exporters or producers by the exporter or producer itself, their importers, domestic interested parties, or foreign government p g g Unofficial Document - For Presentation Purposes Only 50
- 51. Administrative Reviews Verifications visits are not mandatory for all respondents ifi i ii d f ll d Verifications visits are made before the preliminary determination is issued Companies not individually reviewed are assessed at a review-specific all-others rate Entries not covered by a request for review are liquidated at the rate required upon entry Unofficial Document - For Presentation Purposes Only 51
- 52. Sunset Reviews Different timelines Different purpose: to revoke the order, unless it is determined that dumping or subsidy and injury are likely to p g y j y y continue or recur if the order is revoked Automatically initiated, but parties must indicate their positions iti Order is revoked if insufficient response from the domestic interested parties p Order is continued if adequate response from the domestic industry, but inadequate response from respondent interested parties i t t d ti Unofficial Document - For Presentation Purposes Only 52
- 53. Sunset Reviews Any interested party may file comments with DOC about any relevant issue in response to initiation of a sunset review Commerce determines whether dumping or subsidization is likely to continue or recur if the order is revoked After an affirmative DOC determination, the ITC determines whether injury is likely to continue or recur if the order is revoked Order is continued only if both DOC and the ITC make affirmative determinations, otherwise DOC revokes the order Unofficial Document - For Presentation Purposes Only 53
- 54. New Shipper Reviews Different timelines Different purpose: to provide an expedited review for a determination of a new shippers individual margins Must not have shipped subject merchandise to the U.S. during the period of investigation, and not be related to any entity that did Must have a bona fide sale during the relevant period i d Unofficial Document - For Presentation Purposes Only 54
- 55. 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
- 56. Scope Inquiries Different timelines Different purpose: to determine whether specific products are included within the scope of the order d i l d d i hi h f h d Determinations are not published in Federal Register, th R i t they are sent only to parties on scope t l t ti service list (all parties that have participated in any segment of the proceeding) List of scope rulings published quarterly in the Federal Register Unofficial Document - For Presentation Purposes Only 56
- 57. Gracias Obrigado Thank you Unofficial Document - For Presentation Purposes Only 57
- 58. HeinOnline -- CFR 250 2007
- 59. HeinOnline -- CFR 251 2007
- 60. HeinOnline -- CFR 252 2007