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U.S. Antidumping Law
Presentation for "How Jiangsu Business Responds To Foreign Anti-Dumping Actions: Rules & Practice"
Dumping Margin
Dumping Margin: Differences between the foreign and domestic market prices
Dumping Margin = Normal Price (domestic price) - Export Price (foreign price).
Dumping Margin = Normal value -Export Price * 100 Export Price
Actionable Dumping
Is there a dumping? Does that cause material injury to industry? Is this dumping Actionable?
Dumping causes or threatens to cause material injury to an established industry in the importing country that competes with the exporter, or it is materially retards the establishment of an industry that would compete with the exporter.
Grounds to Contest Antidumping Duty
Normal Value
Home Market Sale Third Country Sale Constructed Value
Home Market Sale
Weighted average price in the home market Comparable Price In the ordinary course of trade For the like product Destined for consumption in the exporting country Averaging and sampling may be used for a significant volume of sales or a significant number of price adjustments
Third Country Sale
No viable market at home Less than 5% of the quantity sold in countries other then the U.S. Foreign like product Sold for exportation To the countries other than the U.S.
Constructed Value
Costs of production (labor, raw materials, energy, and other utilities, representative capital costs). Actual amount of profit Selling, general and administrative expenses Cost of container, coverings, and other expenses A surrogate for profit and expenses if actual data is not available
Factors to Determine a Non-market Economy
Convertibility of the country's currency Free bargaining of wages Foreign investment Extent of government ownership Government control over allocation of resources, pricing and output decisions
Export Price
Export Price = Ex-factory Price
Make Adjustments to Calculate Comparable Price Packaging and freight Levels of trade (LOT) Physical features of the merchandise Taxation Volume Circumstances of Sale (COS) Others
Additions to Normal Value
Overseas packing costs
Deduction From Normal Value
Internal packing charges Internal freight charge Rebated or uncollected taxes Constructed Export Price Offset Capped at the amount of indirect selling expenses incurred in United States
Deduction from Export Price (or Constructed Export Price) Delivery expenses Export taxes U.S. import duties
Deduction Unique to Constructed Export Price
Selling commission Direct Selling expenses (credit expenses, guarantees, warrantees) (credit expenses incurred during production of the subject merchandise, prior to shipment) Selling expenses paid by seller on behalf of purchaser Indirect selling expenses Expenses and profit for further manufacturing in the U.S.
When to Use Constructed Export Price
The sale contract is between two entities in the U.S. and executed in the U.S. The exporter/producer is affiliated with the buyer The sale was between a U.S. affiliate of a foreign producer and unaffiliated U.S. purchaser
Addition to Export Price
Overseas packing costs Rebated or uncollected import duties CVDs imposed on subject merchandise
Contestable Concepts
Comparable price Ordinary course of trade Like product Reasonable addition to the cost What third country should be used to obtain a comparable price Calculation of the cost
Calculation of NV for NME Countries
Isolate Each Factor of the Production Process Choose a Surrogate Economy Country At Comparable Level of Economic Development And Produces Comparable Merchandise Assign a value to each factor of production equal to its cost in the surrogate country Add to those values an estimated amount for profit and general expenses
Separate Company-Specific Margin
Absence of government control on a de jure, and de facto basis
De Jure Absence of Government Control
No restrictive stipulations on individual exporters' business and export licenses Legislative enactments decentralizing control of companies Formal measures by the government decentralizing control of the companies
De facto Absence of Government Control
Each Exporter sets its own export prices Independently of the Government and Other Exporters Each Exporter Can Keep the Proceeds From its Sales Decisions regarding sales pricing, contracting, appointment of management personnel, disposition of profits are not reviewed nor approved by government.
Documents that can prove absence of government control
Government regulations, company business license, business plan, price negotiation documents, financial statements, organization charts, sample sales documents, product sales literature, Contracts, Invoices, Records of Payments, correspondence
Factors to Consider What Constitute Like Products
1. Physical appearance 2. Interchangeability 3. Channels of distribution 4. Customer Perception 5. Common Manufacturing facilities and production employees, 6. Price, where appropriate
Injury Determination
Domestic industry is being materially injured, or threatened with material injury, or the establishment of a domestic is materially retarded by reason of dumped products.
Cumulatively assess the volume and effect of like imports from two or more countries is the imports compete with each other and with like products of the U.S. domestic industry.
Imports from a country is negligible if they account for less than 3% of the volume of all imports of such merchandise and if imports from all countries accounting for less than 3 5 do not exceed 7%.
Relevant Factors to Determine Material Injury
The volume of imports, the effect of imports on U.S. prices of like merchandise, and the effects that imports have on U.S. producers of like products, lost sales, market shares, profits, productivity i.e. actual and potential decline in output, return on investment, utilization of production capacity, effects on cash flow, employment, inventories, wages, growth, the ability to raise capital, investment, negative effects on the development and production activities of the U.S. industry,
Effect of imports on Price
Significant Price under-selling by the imported merchandise Depresses prices to a significant degree or prevents price increases
Causation
Causal link between LTFV goods and material injury Preclude subject imports from being a material factor if other sources of injury may have a predominant effect in producing harm. The other factors can e global oversupply, the learning curve, and non subject products, mismanagement of U.S. companies, etc.
Cumulate the Impact of Imports Subject to Antidumping investigation
ITC will assess cumulatively the volume and effects of imports from more than one country if these imports compete with each other.
ITC can cumulate the impact of imports subject to the antidumping investigation together with the impact of imports subject to the countervailing duty investigation.
Four Test of Cumulation
Who Initiate AD Investigations
Self Initiated by Department of Commerce (DOC) Or a Petition Filed by an Interested Party such as:
Standing of a Petitioner
Procedural Process of Antidumping Case
File a petition with DOC and ITC ↓ DOC has 20 days to decide if the petition is legally sufficient, if management has opposite view with the workers, DOC has 40 days to decide initiation of investigation ↓ ITC make a determination whether there is reasonable indication of material injury within 45 days of the date of filing of the petition or self-initiation, or within 25 days after the date on which the ITC receives notice of initiation of the DOC has extended the period for initiation in order to poll the industry to determine standing. ↓ DOC conducts preliminary determination whether dumping is occurring within 140 days after initiation. Reasonable Basis to believe that merchandise is being sold or is likely to be sold at less than fair value. (LTFV). If complicated, 190 days after initiation. ↓ DOC order the suspension of liquidation of all entries of foreign merchandise, order the posting of a cash deposit, bond, or other appropriate security for each subsequent entry of the merchandise equal to the estimated margin of dumping ↓ DOC must issue its final LTFV determination within 75 days after the date of its preliminary determination. 135 days in case of extension. ↓ Within 120 days of a DOC affirmative preliminary determination or 45 days of a DOC affirmative final determination, whichever is longer, the ITC must make a final determination of material injury. ↓ DOC may suspend AD investigations based on agreements entered into with exporters ↓ DOC issue AD duty order within 7 days of notice of an affirmative final ITC determination ↓ If it involves products from Canada and Mexico, NAFTA panel if either the U.S., Canadian or Mexican government requests. ↓ Otherwise, Judicial Review by U.S. Court of International Trade.
A summons and petition for review must be filed concurrently within 30 days of publication of the final determination.
Stand of review: Whether the determination is supported by substantial evidence on the record or otherwise not in accordance with law; whether the preliminary determination is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. ↓ U.S. Courts of Appeals for the Federal District ↓ WTO panel review ↓ WTO appellate body ↓ If WTO dispute settlement panel or appellate body finds an action by DOC or ITC is not in conformity with U.S. obligations, USTR may request DOC or ITC to render its determination not inconsistence with those WTO DSB findings or direct ITC to revoke an order or direct DOC to implement a determination.
Qiang Bjornbak
Attorney at Law
523 West 6th Street, # 701 Los Angeles, CA 90014 Tel: 213 239 9730, 310 403 8516 Fax: 213 239 9730 Email: 这个 E-mail 地址已经被防止灌水恶意程序保护，您需要激活 Java Script 才能观看 |