Issues of Procedure in AD/CVD Cases

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

Procedure in AD & CVD Investigations

Procedure 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


General Information


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


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


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

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


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


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 DOC’s Central Records Unit
(CRU)


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


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 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



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


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


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 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/


Petition & Initiation


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)


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


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


Respondents & Questionnaires


Respondents & Questionnaires:

Parties Who May Be Required To Respond
y q p
Producers
Exporters
Suppliers
Foreign Governments
(where appropriate)


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



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

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


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)
( )

Preliminary Determination


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 Administration’s
website: http://ia.ita.doc.gov/ia-highlights-and-news.html


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)


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

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


Verification, C
V ifi ti Case Briefs & Hearing
Bi f H i


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



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

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


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


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



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


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


Verification, Case Briefs & Hearing:

Forms of Argument in Proceedings
Ex-Parte Meetings - may be requested at any time but are
held at the DOC’s 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

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

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


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


Final Determination


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)



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


Fi l D t i ti

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


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


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

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

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


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

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

New Shipper Reviews
Different timelines
Different purpose: to provide an expedited review
for a determination of a new shipper’s 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

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 )

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

Gracias
Obrigado
Thank you


Issues of Procedure in AD/CVD Cases

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