Issues of Procedure in U.S. AD/CVD Law...CVD Investigation Section I: General Information Section B:...

United States Department of CommerceImport Administration

Issues of Procedure in U.S. AD/CVD Law

IADB & U.N. ECLAC Regional ConferenceMay 14, 2008y

Mark B. LehnardtOffice of Chief Counsel for Import Administration

U S D t t f C

Unofficial Document - For Presentation Purposes Only 1

U.S. Department of [email protected]

Procedure in AD & CVD Investigations

Procedure in Other Administrative Reviews


Procedure in AD & CVD Investigations

General InformationPetition & Initiation

Respondents & QuestionnairesPreliminary DeterminationPreliminary Determination

Verification, Case Briefs & HearingFinal Determination


General InformationGeneral Information


General Information:Timing of Events in Antidumping InvestigationsTiming of Events in Antidumping Investigations

ITC Preliminary

InjuryDetermination

20 DaysfromPetition*

140 DaysfromInitiation*

InitiationPetitionDOC

PreliminaryDumping or

SubsidyDetermination

DOCFinal

Dumping orSubsidy

Determination

ITCFinalInjury

DeterminationDetermination Determination

20 Days from Petition*

45 Days from Petition

140 Days from Initiation*

75 Days from DOC

45 Days from DOCPetition DOC

Prelim*DOC Final

Unofficial Document - For Presentation Purposes Only

* May be extended under certain circumstances

5

General Information: Timing of Events in Countervailing Duty InvestigationsTiming of Events in Countervailing Duty Investigations

ITC Preliminary

InjuryDetermination

20 DaysfromPetition*

140 DaysfromInitiation*

InitiationPetitionDOC

PreliminaryDumping or

SubsidyDetermination

DOCFinal

Dumping or Subsidy

Determination

ITCFinalInjury

DeterminationDetermination Determination

20 Days from Petition*

45 Days from Petition

65 Days from Initiation*

75 Days from DOC

45 Days from DOCPetition DOC

Prelim*DOC Final


* May be extended under certain circumstances

6

G l I f iGeneral Information:Events in AD and CVD Investigations

ITC DOC DOC ITCDOC ITCPreliminary

Decision

DOCPreliminary

Decision

DOCFinal

Decision

ITCFinal

Decision

Notice Published in Federal Register Notice Published in

F d l R i t AD or CVD

DOC Initiation

PetitionQuestionnaires g

Calculations DisclosedSignificant Ministerial Errors Corrected

Federal RegisterCalculations DisclosedMinisterial Errors Corrected

o COrder Published in Federal Register (if affirmative)

Petition Analyzed

Notice of Initiation Published

IssuedQuestionnaire Responses SubmittedS l t l Corrected

Liquidation of entries Suspended (if affirmative)Verifications

CorrectedSuspension of Liquidation Continued or Lifted

)Suspension of Liquidation Continued or Lifted

Consultation with affected country governments (CVD)

Supplemental Questionnaire IssuedSupplemental Response

Conducted and Reports IssuedCase and Rebuttal Briefs filedH i

(CVD) Response Submitted


Hearings Conducted

7

General Information: Foreign Parties That May Participate In Proceedings (Interested Parties)Participate In Proceedings (Interested Parties)

Foreign Manufacturers, Producers or Exporters of

Groups composed in the majority of foreign exportersProducers, or Exporters of

subject merchandiseForeign Governments (country

majority of foreign exporters, producers, or U.S. importers of subject merchandise

of manufacture, production, or export)U S Importers of subject

Industrial Users and Consumer Groups

U.S. Importers of subject merchandise


General Information: Filing Requirementsh i l i h b i fi d b fTechnical requirements that must be satisfied before DOC

accepts filingsRequirements include identifying the case and proceedingRequirements 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


General Information: Access to Information

DOC maintains a complete record of all submissions and documents generated by DOCsubmissions and documents generated by DOC in each proceeding

Confidential recordConfidential recordPublic file

B h h fid i l d bli dBoth the confidential and public records are maintained in DOC’s Central Records Unit (CRU)


(CRU)10


Our regulations require that public versions be made available of all submissions to andmade available of all submissions to and memoranda generated by DOC

Specific rules for ranging and/or redactingSpecific rules for ranging and/or redacting confidential data existThe protection of confidential data is vigorouslyThe protection of confidential data is vigorously enforced


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


General Information: Access to Confidential Information

The Administrative Protective Order (APO) is the legalThe 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 interestedproceedings to the legal representatives of interested parties

The representative of an interested party may not revealThe 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



In addition to the CRU, information is made available to parties via the following:

Federal Register noticesFederal Register noticesPublished analysis memorandaService by partiesService by partiesDisclosure to parties


General Information: Notification by DOC

We notify affected embassies upon receipt of petition and then again if a case is initiatedWe notify parties selected to respond to questionnairesWe conduct meetings with respondents to discuss questionnaires and other issuesWe notify parties of deficiencies in questionnaire

d i l l i iresponses and issue supplemental questionnairesWe notify interested parties of all deadlines


General Information: Online Resources

Federal Register (published determinations), Statutes (19 U.S.C. § 1671 to 1677n), and Regulations (19 C.F.R. §351 to 356): http://www.gpoaccess.gov

DOC I t Ad i i t ti W b it (i & d i iDOC Import Administration Website (issues & decisions memoranda, and other information): http://www.trade.gov/ia/


Petition & InitiationPetition & Initiation


Petition & Initiation: MechanicsDOC and the ITC simultaneously receive petitions from the affected U.S. industryWithin 20 days DOC determines whether to initiateWithin 20 days, DOC determines whether to initiate 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 thewhether the petition was filed by, or on behalf of the domestic industry (industry support)


Petition & Initiation: MechanicsAD/CVD investigations are almost always initiated inAD/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 caseDOC determines whether to initiate an investigationITC d t i h th th l t U S i d t hITC determines whether the relevant U.S. industry has been materially injured, or threatened by allegedly dumped or subsidized merchandiseDOC determines whether and to what extent dumping or subsidization is occurring


Petition & Initiation: ParticipationAny interested party may comment on the adequacy of industry supportindustry support

Petitioner may be asked to clarify the scope of the petition, domestic support factual support or legal argumentsdomestic support, factual support, or legal arguments

In Countervailing Duty cases, we provide an opportunity f lt ti b t th titi t th t ffor consultations about the petition to the government of exporting countries named in the petition


Respondents & QuestionnairesRespondents & Questionnaires


Respondents & Questionnaires:

Parties Who May Be Required To Respondy q p

ProducersExporters SuppliersSuppliersForeign Governments (where appropriate)



Mandatory Respondents/Respondent Selection

Where not practicable to examine each known producer and exporter examination is limited to:producer and exporter, examination is limited to:

a statistically valid sample of producers/exporters, or

exporters and producers accounting for the largest volume of the subject merchandise from the exporting

t th t b bl i dcountry that can be reasonably examined



General Questionnaire StructureAD Investigation

Section A: General InformationCVD Investigation

Section I: General InformationSection B: Comparison-Market SalesSection C: U S Market Sales

Section II: GovernmentGeneral QuestionsProgram Specific QuestionsSection C: U.S. Market Sales

Section D: Cost of Production & Constructed Value

Program Specific QuestionsAppendices (Standard Questions, Allocation, Grants, Loans, Tax, Provision of Good & Services)

Section E: Further Manufacturing in the United States

Provision of Good & Services)

Section III: Producer/ExporterSame topics as Government


States

24


Assistance to Respondents in Questionnaire Preparation

Assistance by the DOCClarification of questionnaire requirementsClarification of questionnaire requirementsLimiting 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



Submission of Factual Information

Interested parties can submit factual information at any time prior to the deadlineinformation at any time prior to the deadlineInterested parties can submit new factual information to rebut clarify or correct factualinformation to rebut, clarify, or correct factual information submitted by any other interested party at any time prior to the deadlines orparty at any time prior to the deadlines or within 10 days after submission of the original information (whichever is later)


( )

26

Preliminary DeterminationPreliminary Determination


Preliminary Determination: Announcement & Publication

Interested parties are notified by phone on “release date,” normally noon the day after the signature of the decisionPreliminary (and final) determinations are published in the Federal Register typically within 5-7 days following releasereleaseFact Sheets are also available on Import Administration’s website: http://ia.ita.doc.gov/ia-highlights-and-news.html


Preliminary Determination: ContentsP li i d t i tiPreliminary scope determinationPreliminary calculation methodologies determinedIf alleged, preliminary critical circumstances determinationa eged, p e a y c t ca c cu sta ces dete at oPreliminary cost of production analysis results, where appropriateP li i i /d it t f h d tPreliminary margin/deposit rate for each respondentPreliminary “All-Others” rateAny adjustments to the submitted data which the DOC has y jpreliminarily deemed appropriateSuspension of liquidation (if affirmative)


Preliminary Determination:

Correction of Significant Ministerial Errors

DOC discloses calculations & methodologies to each party

Mi i i l h i l l i l d hMinisterial errors – mathematical, clerical, and any other unintentional errors Commerce considers ministerial

All ti f i i t i l t b i d ithi 5Allegations of ministerial errors must be raised within 5 days of calculation disclosure

At thi t f th di ll d t bAt this stage of the proceeding, alleged errors must be “significant” – at least 5 percentage points and at least 25 percent of margin, or would result in zero or de minimismargin


Preliminary Determination: EffectCommerce instructs the U.S. Customs and Border Protection (CBP) to suspend liquidation on the product under investigation and to begin collecting a deposit basedunder investigation and to begin collecting a deposit based on the preliminary antidumping margin

An affirmative critical circumstances determinationAn affirmative critical circumstances determination imposes duties on entries up to 90 day prior

A margin of zero or de minimis does not result in gtermination of investigation


V ifi ti C B i f & H iVerification, Case Briefs & Hearing


Verification, Case Briefs & Hearing: Verification

IA is required by law to verify each d t’ ti i irespondent’s questionnaire response in

AD and CVD investigations

Verifications are conducted after the preliminary determinationpreliminary determination



Permission sought from Government of exporting country and from companyexporting country and from company Verification Outline

DOC ill id tif k t i d ifiDOC will identify key topics and specific information to be reviewed at verificationOutline provided to respondents with sufficientOutline provided to respondents with sufficient advance time to assemble requested information


information

34

Verification, Case Briefs & Hearing: VerificationDOC ill d t t i i ti fDOC will conduct extensive examination of company

books and records and government files (CVD only) to: i i i iAD Investigation

Confirm that all subject merchandise sold during the POI is reported

CVD InvestigationConfirm details of subsidy programsConfirm government records of

Confirm submitted sales recorded in company accountsConfirm accuracy of individual

participation Confirm participation and level of benefit received by company

transactionsConfirm submitted cost dataVerify charges and adjustments

Confirm company sales volumes


y g j

Verification, Case Briefs & Hearing: VerificationDuration of VerificationDuration of Verification

AD VerificationT i ll 5 ki d f

CVD VerificationT i ll 1 2 ki d b idTypically 5 working days for export

price (EP) and home market sales responsesT i ll 5 ki d f

Typically 1-2 working days per subsidy program with government agenciesTypically 1-2 working days per subsidy

i h iTypically 5 working days for constructed export price (CEP) and home market sales responses, plus 1-3 days for U S portion of CEP

program with companiesTypically 1-2 working days to confirm company sales volumes

days for U.S. portion of CEPTypically 5 working days for a cost of production verification


Verification, Case Briefs & Hearing: VerificationL ti f V ifi tiLocations for Verification

Government offices where key officials are stationedGovernment or Company facilities where relevantGovernment or Company facilities where relevant documents are maintainedFacilities where key company staff are located

May Include:All Pertinent Plants of ProductionSuppliersResellers



Verification ReportIA issues a comprehensive verification report p pof our findings that allows parties significant time and opportunity for interested parties to

lcomment upon results


Verification, Case Briefs & Hearing:

Opportunities to Present Arguments

Interested parties may submit arguments at f h di

pp g

any stage of the proceeding

However to ensure efficient and timelyHowever, to ensure efficient and timely completion of the proceeding, the DOC provides a formal structure for submittingprovides a formal structure for submitting such arguments


Verification, Case Briefs & Hearing:

Forms of Argument in ProceedingsEx-Parte Meetings - may be requested at any time but are held at the DOC’s discretion; discussion is limited to facts already on the recordalready on the recordLetters Filed by Parties - may be submitted at any timeCase Briefs - must be filed by the deadline specified in the

li i d t i ti li it d t f t l d thpreliminary determination; limited to facts already on the recordRebuttal Briefs - limited to issues raised in other parties’ case briefsHearings - normally public, but may include closed portion to address confidential information already on the


p yrecord

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

i d d bli iCase Briefs are due 50 days after publication of the preliminary determinationR b tt l B i f b b itt d 5 dRebuttal Briefs may be submitted 5 days after Case BriefsM t i l d f t l i f tiMay not include new factual information


Verification, Case Briefs & Hearing: Hearing

Hearings are held upon request

Parties may verbally present their views, but areParties may verbally present their views, but are limited to issues raised in case and rebuttal briefs

New factual information is not permittedNew factual information is not permitted

A verbatim transcript of the public session of all h i i il bl h blihearings is available to the public


Verification, Case Briefs & Hearing: Hearings

Hearing may include a closed session to discuss confidential information – only attorneys with APO access ma present or reb t in these sessionsAPO access may present or rebut in these sessions

If a portion of a hearing is closed the transcriptIf a portion of a hearing is closed, the transcript for the closed session only will be considered business proprietary and therefore subject to the regulations which govern administrative protective orders


Final DeterminationFinal Determination


Final Determination:

Similarities with Preliminary DeterminationSimilar procedures for announcement & publication and disclosure of calculations to

tipartiesSimilar contents (but all determinations are final)

(see slides 28-30)



Differences from Preliminary DeterminationCommerce publishes an “Issues & Decisions Memorandum” (made available on release date and noted on Import Administration website) that describeson Import Administration website) that describes Commerce’s position on each issue raised in briefs, rebuttal briefs and the hearing

All ministerial errors will be consideredAllegations due 5 days after calculations disclosedIf requested, Commerce will meet with parties to explain calculations and decisionsCommerce usually responds to error allegations within 30 days


Fi l D t i tiFinal Determination:

Imposition of the OrderAn order is the public announcement that the DOC will instructAn 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 determinationTh d t bli h d t hi h d t i t bThe order establishes date on which duty requirements become effective and provides notice to parties and the U.S. Customs and Border Patrol (CBP) that duties will be imposed



Role of U.S. Customs, Bond/Deposit Requirements Imposed

Following an affirmative final determination, CBP will continue to suspend liquidation and collect cash depositscontinue 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 l f d d it if t d b th fi lCBP also refunds deposits if warranted by the final determination


Procedure in Other Administrative Reviews(differences)(differences)

Administrative ReviewsSunset Reviews

Ch d Ci t R iChanged Circumstances ReviewsNew Shipper Reviewspp

Scope Inquiries


Administrative ReviewsDifferent timelinesDifferent purpose: to determine assessment rate f i i h P li i D i i (for entries since the Preliminary Determination (or most recent review) and to set cash deposit rates going forwardgoing forwardAdministrative reviews are not automatic – must be requested of exporters or producers by thebe requested of exporters or producers by the exporter or producer itself, their importers, domestic interested parties, or foreign governmentp g g


Administrative Reviewsifi i i i d f ll dVerifications visits are not mandatory for all respondents

Verifications visits are made before the preliminary determination is issueddetermination is issuedCompanies not individually reviewed are assessed at a review-specific all-others rateEntries not covered by a request for review are liquidated at the rate required upon entry


Sunset ReviewsDifferent timelinesDifferent timelinesDifferent purpose: to revoke the order, unless it is determined 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 their

itipositionsOrder is revoked if insufficient response from the domestic interested partiespOrder is continued if adequate response from the domestic industry, but inadequate response from respondent i t t d tiinterested parties


Sunset ReviewsAny interested party may file comments with DOC about any relevant issue in response to initiation of a sunset reviewreviewCommerce determines whether dumping or subsidization is likely to continue or recur if the order is revokedAfter an affirmative DOC determination, the ITC determines whether injury is likely to continue or recur if the order is revokedthe order is revokedOrder is continued only if both DOC and the ITC make affirmative determinations, otherwise DOC revokes the order


New Shipper ReviewsDifferent timelinesDifferent purpose: to provide an expedited reviewDifferent purpose: to provide an expedited review for a determination of a new shipper’s individual marginsMust not have shipped subject merchandise to the U.S. during the period of investigation, and not be related to any entity that didMust have a bona fide sale during the relevant

i dperiodUnofficial Document - For Presentation Purposes Only 54

Changed Circumstances Reviews

Different timelinesDifferent purpose: to address a variety of circumstances that fall outside the normal margin calculations of administrative reviews

Successor-in-interest determinationsPartial revocations of the order (scope)( p )


Scope InquiriesDifferent timelinesDifferent purpose: to determine whether specific

d i l d d i hi h f h dproducts are included within the scope of the orderDeterminations are not published in Federal R i t th t l t tiRegister, they are sent only to parties on scope service list (all parties that have participated in any segment of the proceeding)segment of the proceeding)List of scope rulings published quarterly in the Federal RegisterFederal Register


GraciasObrigadoObrigado

Thank you


HeinOnline -- CFR 250 2007

Issues of Procedure in U.S. AD/CVD Law...CVD Investigation Section I: General Information Section B:...

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