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
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U.S. Department of [email protected]
Procedure in AD & CVD Investigations
Procedure in Other Administrative Reviews
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Procedure in AD & CVD Investigations
General InformationPetition & Initiation
Respondents & QuestionnairesPreliminary DeterminationPreliminary Determination
Verification, Case Briefs & HearingFinal Determination
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General InformationGeneral Information
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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
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* May be extended under certain circumstances
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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
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* May be extended under certain circumstances
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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
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Hearings Conducted
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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
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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
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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)
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(CRU)10
General Information: Access to Information
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
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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
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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
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General Information: Access to Information
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
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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
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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/
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Petition & InitiationPetition & Initiation
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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)
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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
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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
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Respondents & QuestionnairesRespondents & Questionnaires
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Respondents & Questionnaires:
Parties Who May Be Required To Respondy q p
ProducersExporters SuppliersSuppliersForeign Governments (where appropriate)
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Respondents & Questionnaires:
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
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Respondents & Questionnaires:
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
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States
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Respondents & Questionnaires:
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
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Respondents & Questionnaires:
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)
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( )
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Preliminary DeterminationPreliminary Determination
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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
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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)
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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
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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
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V ifi ti C B i f & H iVerification, Case Briefs & Hearing
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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
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Verification, Case Briefs & Hearing: Verification
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
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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
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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
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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
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Verification, Case Briefs & Hearing: Verification
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
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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
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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
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p yrecord
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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
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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
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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
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Final DeterminationFinal Determination
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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)
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Final Determination:
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
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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
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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 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
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Procedure in Other Administrative Reviews(differences)(differences)
Administrative ReviewsSunset Reviews
Ch d Ci t R iChanged Circumstances ReviewsNew Shipper Reviewspp
Scope Inquiries
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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
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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
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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
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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
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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
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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 )
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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
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GraciasObrigadoObrigado
Thank you
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HeinOnline -- CFR 250 2007
HeinOnline -- CFR 251 2007
HeinOnline -- CFR 252 2007
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