ANTIDUMPING DUTIES (AD)
“Unfair Trade Practice”
COUNTERVAILING DUTIES (CVD)
“Unfair Trade Practice”
Section 421 (China‐Specific Safeguard):
Expires in 2013
No Unfair Trade Practice Required
Global Safeguard (Section 201)
No Unfair Trade Practice Required
Trade Issue: Pricing – selling in the United States at less than “normal value” (i.e. dumping). NV is the home market price or for NMEs (China, Vietnam) a constructed value. Trade Issue: Foreign government subsidies that benefit subject imports into the United States Trade Issue: Surge in imports from China causing “market disruption” Trade Issue: Surge in imports
Requirements: (1) the subject imports are “dumped” and (2) dumped imports causing (or threatening to cause) “material injury” to the domestic industry Requirements: (1) the subject imports are subsidized and (2) subsidized imports causing (or threatening to cause) “material injury” to the domestic industry Requirements: Market Disruption –(1) “rapidly increasing” imports from China; (2) that are a “significant cause” or “material injury” to the domestic industry Requirements: (1) increased imports, which are (2) a “substantial cause” or “serious injury” to the domestic industry
Remedy/Duration: Antidumping Duties are mandatory if the criteria are met; duties can remain indefinitely subject to five‐year review Remedy/Duration: Countervailing Duties are mandatory if the criteria are met; duties can remain indefinitely subject to five‐year review Remedy/Duration: Discretionary – tariff, quota, or tariff rate quota; applied to Chinese imports only; restrictions are typically eased each year. Duration of the safeguard is typically 3 years because of potential countermeasures by China is the safeguard measure is extended Remedy/Duration: Discretionary – tariff, quota, or tariff rate quota; must be applied globally and are decreased each year. Duration of the safeguard is typically 4 years
Responsible Agencies: Commerce for dumping analysis; ITC for injury analysis Responsible Agencies: Commerce for subsidy analysis; ITC for injury analysis Responsible Agencies: ITC for market disruption and “recommended” remedy; President (USTR) final decision on remedy Responsible Agencies: ITC for increased imports, injury, and “recommended” remedy; President (USTR) final decision on remedy
Standing: U.S. producers of “like product”; includes unions representing workers in the industry Standing: U.S. producers of “like product”; includes unions representing workers in the industry Standing: U.S. producers of “like” or “directly competitive” product ; interpreted to include unions Standing: U.S. producers of “like” or “directly competitive” product ; interpreted to include unions
Post Order Process: The U.S. has a “retrospective” system under which estimated AD duties are collected at the time of entry. Each year during the anniversary month of the AD Order, importers, exporters, or domestic producers may request a review If there is a review, final duties are assessed based on the results of the review; if the rate is higher the additional duties are collected with interest; if the rate is lower the excess is refunded with interest. If no review is requested, entries are liquidated at the case deposit rate in effect at time of entry. Post Order Process: The U.S. has a “retrospective” system under which estimated CVD duties are collected at the time of entry. Each year during the anniversary month of the CVD Order, importers, exporters, or domestic producers may request a review If there is a review, final duties are assessed based on the results of the review; if the rate is higher the additional duties are collected with interest; if the rate is lower the excess is refunded with interest. If no review is requested, entries are liquidated at the case deposit rate in effect at time of entry. Post‐Order Process: Import restrictions put in place to remedy market disruption are typically eased over a three year period; there are provisions for monitoring, review and modification of the remedy. Post‐Order Process: Import restrictions put in place to remedy market disruption are typically eased each year; there are provisions for monitoring, review and modification of the remedy.
Investigative Process: Investigation takes 12‐18 months; there are both preliminary and final decisions by Commerce and the ITC; data is collected through a series of detailed questionnaires and an on‐site verification by Commerce of the foreign producers’ questionnaire responses Investigative Process: Investigation takes 12‐18 months; there are both preliminary and final decisions by Commerce and the ITC; data is collected through a series of detailed questionnaires and an on‐site verification by Commerce of the foreign producers’ and foreign government’s questionnaire responses Investigative Process: Short process (5 months total) – ITC investigation is Completed within 60‐75 days (2‐2.5 months), including pre‐ and post‐hearing submissions and formal hearing before the ITC; followed by a Presidential review process lasting approximately 2.5 months. USTR conducts the latter process and makes a confidential recommendation on remedy to the President. The President has the discretion to take the ITC’s recommendation, fashion a different remedy or elect not to impose any restrictions on imports Investigative Process: The investigation normally takes 180 days (6 months) it can be extended to 240 days in certain circumstances. Normally, the President has 60 days from receipt of the ITC’s report within which to take action.

About Author:
Ms. Nithya Nagarajan
Law Offices of Nithya Nagarajan, LLC