United States

H. Briefs

   1. COMMERCE

   Interested parties are given the opportunity to file affirmative and rebuttal briefs with Commerce.

   Only those arguments included in the written legal briefs may be raised at the public hearing.

   2. ITC

   In the preliminary phase investigation, any party may submit a written brief containing information and arguments pertinent to the injury investigation by the date specified in the ITC's notice of institution of the investigation.

   The date is usually a few days after the preliminary conference.

   Briefs may also contain responses to questions posed by Commission staff at the conference.

   In the final phase investigation, interested parties may submit a pre-hearing brief no later than four days prior to the hearing date specified in the notice of institution of the final phase investigation.

   The briefs present a party's case and include information and arguments which the party believes relevant to the ITC's injury determination.

   Any interested party may also file a post hearing brief concerning the information generated at or after the hearing.

   Post hearing briefs may also include response to questions posed by the ITC Commissioners at the hearing. Parties may also submit final comments on any information disclosed to them after they have filed their post hearing brief.

I. Final Determinations

   1. Commerce

   In a CVD investigation, Commerce must issue its final determination within 75 days after the date of its preliminary determination.

   In an AD investigation, Commerce must issue its final determination either 75 days or 135 days after the date of the preliminary determination. A longer period is permitted for making a final AD determination if the investigation is determined to be extraordinarily complicated.

   If Commerce's final AD or CVD determination is negative, the investigation is terminated and the ITC does not make a final injury determination.

   An affirmative determination by Commerce results in the suspension of liquidation (if not already in effect as a result of an affirmative preliminary determination).

   The ITC will then issue a final injury determination.

   2. ITC

   If Commerce makes an affirmative finding of dumping or countervailable subsidies, the ITC must issue a final injury determination within 120 days of the Commerce affirmative preliminary determination or 45 days of Commerce's final affirmative determination, whichever is later.

   If Commerce issued a negative preliminary determination and an affirmative final determination, the ITC must make its final injury determination within 75 days after Commerce's final affirmative determination.

   The ITC's determination is accompanied by written views explaining the basis for the determination.

   If the ITC finds injury or threat of injury to the domestic industry, an AD or CVD order is issued. From that point on, the U.S. Customs Service will require that all importers pay cash deposits on all entries of the subject merchandise in the amount of the producer/exporter specific AD or CVD rate or in the amount of the "all others" rate.

J. Maximum Length of Investigation

   Antidumping Duty Investigations - 407 days

   Countervailing Duty Investigations - 427 days

   Antidumping & Countervailing Duty Administrative Reviews - 545 days.

K. Maximum Duration of Antidumping and Countervailing Duty Orders

   After five years, AD and CVD orders will be revoked unless Commerce and the ITC determine that revocation would be likely to lead to the continuation or recurrence of dumping or subsidization, and injury.

L. Retroactivity

   If Commerce finds that critical circumstances exist, then any suspension of liquidation ordered is retroactively applied to unliquidated entries of merchandise entered up to 90 days prior to the date when the suspension of liquidation was originally ordered.

M. Best Information Available (or "Facts Available")

   Commerce uses "facts available" (previously referred to as "best information available") whenever:

         (1) a complete, accurate, and timely response to a request for factual information is not received; or

         (2) Commerce is unable to verify the accuracy and completeness of the factual information submitted within the specified time period.

   The Commission typically uses the facts available in making determination by weighing all of the available evidence regarding a multiplicity of factors relating to the domestic industry as a whole and by drawing reasonable inferences from the evidence if finds most persuasive.

   "Facts available" includes the factual information submitted in support of the petition or submitted by interested parties.

   The statute requires that whenever Commerce or the ITC relies on secondary information rather than information obtained in the course of an investigation or review, Commerce or the ITC must, to the extent practicable, corroborate that information from independent sources.

N. Consumers as Interested Parties

   Consumers, including industrial users, of merchandise subject to an investigation are allowed an opportunity to provide information or comments relevant to a particular determination of dumping, countervailable subsidies, or injury.

   However, consumers do not have full interested party status unless they also import subject merchandise.

O. Public Interest

1. Antidumping

   Under U.S. law, public interest considerations are not taken into account in issuing antidumping duty orders.

   If Commerce finds dumping and the ITC finds material injury to the domestic industry, an order will be issued in the full amount of the margin of dumping.

2. Countervailing

   Under U.S. law, public interest considerations are not taken into account in issuing countervailing duty orders.

   If Commerce finds countervailable subsidies and the ITC finds material injury to the domestic industry, an order will be issued in the full amount of the subsidy.

P. Undertakings or Commitments

   U.S. law provides for the suspension of countervailing duty and antidumping investigations. Commerce may suspend a countervailing duty investigation if the government of the country in which the countervailable subsidy practice is alleged to occur agrees to eliminate or offset completely the countervailable subsidy, or if the government or exporters agree to eliminate the injurious effect of the subsidy.

   Commerce may suspend an antidumping investigation if the exporters of the subject merchandise who account for substantially all of the imports of that merchandise agree to eliminate completely sales at less than fair value or to eliminate the injurious effect of the less than fair value sales.

   Before Commerce can enter into a suspension agreement (undertaking), it must first determine that acceptance of the agreement is in the public interest.

V. Review of Antidumping and Countervailing Duty Determinations

A. Annual Reviews

   Each year after issuing an antidumping or countervailing duty order or entering into a suspension agreement, Commerce will conduct, upon request by an interested party, an administrative review of the order or suspension agreement.

   Based upon an examination of the information updated since the last determination from the foreign producers/exporters (and, in CVD proceedings, the foreign government), Commerce will determine the actual margin of dumping or the net countervailable subsidy for all entries of merchandise subject to review.

   The administrative review is very similar to the investigation in terms of procedures and requirements.

   The Commerce Department publishes a notice announcing the initiation of the administrative review, issues questionnaires similar to those issued in the original investigation, conducts verification (though Commerce is not required to verify in every review), issues a preliminary results of review, accepts legal briefs, holds a public hearing if requested, and issues a final results of review.

   Commerce publishes in the Federal Register the results of any annual review which provides the level of any AD or CVD duties to be assessed and the new cash deposit rate applicable to future entries of that merchandise.

   The ITC does not re-examine injury to the domestic industry during annual administrative reviews. If the actual margin of dumping or rate of subsidization found in a review is lower than the previously established cash deposit rate, a refund of the over assessment is paid with interest to the importer.

   If the actual margin of dumping or subsidization is higher than the previously established cash deposit rate, the under-assessment will be collected with interest from the importer.

B. Duty Refund Review

   The United States does not need to conduct duty refund reviews.

   See "Annual Reviews" section above.

C. Sunset Review

   After five years, AD and CVD orders must be terminated unless Commerce and the ITC determine that the expiration of the order would be likely to lead to the continuation or recurrence of dumping or subsidization and injury.

   Commerce will publish a notice of initiation of a sunset review no later than thirty days before the fifth anniversary of the order.

   A party interested in maintaining the order must respond to the notice with adequate information concerning the likely effects of revocation.

   Commerce must complete its investigation within 240 days of the initiation date, and the ITC within 360 days from the initiation date.

   In AD reviews, Commerce is to make its determination by considering the weighted average dumping margins in the investigation and subsequent reviews, the volume of imports of the subject merchandise for the period before and after the issuance of the AD order, and if good cause is shown, other economic factors including price, cost, market share, exchange rates, and production capacity.

   Commerce is to provide the ITC with the magnitude of the margin of dumping that is likely to prevail if the order is revoked.

   In CVD reviews, Commerce is to consider the net countervailable subsidy determined in the investigation and subsequent reviews, whether the relevant subsidy programs have been continued, modified, or eliminated, and, if good cause is shown, any allegations of new countervailable subsidies.

   The ITC is to make its injury determination by considering such factors as the likely volume, price effect, and impact of the subject imports on the industry if the order is revoked.

D. Changed Circumstances Review

   A changed circumstances review is conducted if Commerce or the ITC receives information or a request from an interested party showing changed circumstances sufficient to warrant a review of a final determination or of a suspension agreement.

   U.S. law provides that the party seeking revocation of an order based on changed circumstances has the burden of persuasion with respect to whether there are changed circumstances sufficient to warrant such revocation.

E. New Shipper Review

1. Antidumping

   Commerce will initiate an expedited administrative review of new shippers, if requested.

   New shippers are defined as exporters or producers who demonstrate that they did not export the merchandise covered by an AD order to the United States during the original period of investigation and that they are not affiliated with a producer or exporter who did export the merchandise to the United States during the original period of investigation, including those producers or exporters not examined during the original investigation.

   Commerce will initiate new shipper reviews twice each year -- once at the end of the month following the 6-month anniversary date of the order, and once at the end of the month of the anniversary date of the order, whichever is earlier.

   For example, if the anniversary month of the order is January, and the new shipper submits a request for review in March, Commerce would initiate the review at the end of July rather than at the end of the following January.

2. Countervailing

   Commerce will initiate an expedited administrative review of new shippers, if requested.

   New shippers are defined as exporters or producers who demonstrate that they did not export the merchandise covered by a CVD order to the United States during the original period of investigation and that they are not affiliated with a producer or exporter who did export the merchandise to the United States during the original period of investigation, including those producers or exporters not examined during the original investigation.

   Commerce will initiate new shipper reviews twice each year -- once at the end of the month following the 6-month anniversary date of the order, and once at the end of the month of the anniversary date of the order, whichever is earlier.

   For example, if the anniversary month of the order is January, and the new shipper submits a request for review in March, Commerce would initiate the review at the end of July rather than at the end of the following January.

3. Judicial, Administrative or Other Review

   Any interested party to an AD or CVD proceeding may contest a final determination or review by Commerce or the ITC by filing an action in the U.S. Court of International Trade (CIT).

   In order to obtain judicial review, a summons must be filed within 30 days of the publication of the agency's final determination.

   The standard of review followed by the CIT is whether the agency's determination is supported by "substantial evidence on the record" or "otherwise in accordance with law".

   Final determinations in AD or CVD proceedings involving products of Canada or Mexico may be reviewed by a panel under Chapter 19 of the North American Free Trade Agreement (NAFTA) instead of by the CIT.

   A NAFTA panel decides whether U.S. law was applied correctly by Commerce and the ITC by following the standard of review in U.S. law.

F. Procedures for Due Process

1. Notification of Initiation of Investigation

   1. Commerce

   Within 20 days of receipt of the petition, Commerce must publish in the Federal Register either a notice of "Dismissal of Antidumping/Countervailing Duty Petition" or a notice of "Initiation of Antidumping/ Countervailing Duty Investigation".

   The former notice means that Commerce found the petition lacking in information to support the initiation of an investigation.

   The latter notice signals the initiation of a formal investigation by the Commerce Department.

   Upon receipt of an antidumping or countervailing duty petition, Commerce notifies the government of any exporting country named in the petition by delivering a public version of the petition to an appropriate representative of such country.

   In the case of a countervailing duty investigation, Commerce also provides the government of any exporting country named in the petition that is a Subsidies Agreement country an opportunity for consultations with respect to the petition.

   2. ITC

   Upon receipt of a petition, the ITC must publish a notice of "Institution and Scheduling of Preliminary Phase Investigation" in the Federal Register.

   The ITC is not required to publish this notice within any specified deadline; however, the notice usually appears within a week of the date the petition was filed.

2. Questionnaires (Distribution, Response Time, Extensions, Supplements)

   1. COMMERCE

   In an antidumping investigation, questionnaires are distributed to all producers and exporters involved in an investigation.

   In a countervailing duty proceeding, a questionnaire is sent to the government of the exporting country and, if known, to the producers and exporters.

   Commerce normally allows 30 days for a response, but extensions may be granted if the exporter provides an explanation of the need for such extension.

   Supplemental questionnaires may be issued, and the response time will depend on the nature of the information requested.

   In cases where Commerce has limited its examination to selected exporters and producers, it nevertheless will calculate an individual margin for any exporter or producer not selected for examination that provides the necessary information on a timely basis and in the form required.

   Where the number of exporters is particularly high, Commerce may decline to analyze voluntary responses because it would be unduly burdensome and would preclude the completion of timely investigations.

         a. AD INVESTIGATION

         The investigation begins with the presentation of a questionnaire by Commerce, which is designed to gather transactional data from the manufacturer and/or exporter, including all home market and export sales information.

   The questionnaire consists of the following sections:

               1) Section I - General Information requests information concerning the company, accounting practices, merchandise, and total sales of the subject merchandise in all markets;

               2) Section II - Sales in the Home Market or to Third Countries requests that the respondent provide a list of sales in the home market or, where appropriate, to third countries, and other information necessary to calculate the normal value of the merchandise;

               3) Section III - Sales to the U.S. requests that the respondent provide a list of sales to the U.S. and other data necessary to calculate the U.S. price;

               4) Section IV - Cost of Production/Constructed Value requires a response only if Commerce initiates an investigation of sales below cost, or if constructed value is necessary as the basis for determining normal value;

               5) Section V - Further Manufacturing requires a response only if further manufacturing in the U.S. is involved.

         b. CVD INVESTIGATION

         Commerce presents its questionnaire to the companies involved in the proceeding as well as to the government of the country where the companies are established.

   Both company and government questionnaires consist of two sections:

               1) general information about the company and

               2) information regarding the operation and use of specific subsidy programs.

   2. ITC

   In order to obtain information for its injury investigation, the ITC issues questionnaires to U.S. producers, importers, and purchasers (purchasers do not receive questionnaires in a preliminary phase investigation).

   The ITC only issues questionnaires to foreign producers and exporters if they are represented by counsel. The ITC requests financial information from U.S. producers and information from all recipients on purchasing, production, firm operations, competition, and data on imports, exports, shipments, and pricing.

3. Publication of Antidumping and Countervailing Duty Determinations

   1. COMMERCE

   Whenever Commerce makes an AD or CVD determination, it must notify the petitioner, other parties to the investigation, and the ITC of its determination, including the facts and methodology of the analysis upon which the determination is based.

   These determinations must be published in the Federal Register.

   2. ITC

   Whenever the ITC makes an injury determination, it serves a copy of the determination and a public version of the staff report on the petitioner, other parties to the investigation, and Commerce.

   ITC reports are publicly available, however they are not published in the Federal Register.

   Only a notice of the Commission's determination is published in the Federal Register.

4. Access to Public Information

   1. COMMERCE

   The public record of all AD/CVD investigations and reviews is maintained in the Central Records Unit of the Commerce Department in Washington, DC and is available to the public for inspection and copying.

   2. ITC

   The public record of injury investigations is maintained in the Dockets Room of the International Trade Commission in Washington, DC and is available for public inspection and copying.

   U.S. law requires that parties providing information for which proprietary treatment is requested also provide a non-proprietary summary in sufficient detail to permit a reasonable understanding of the substance of the information submitted in confidence.

   In certain circumstances, parties may indicate that such information is not susceptible to summary.

5. Access to Confidential Information

   1. COMMERCE

   A request for disclosure of business confidential data under administrative protective order ("APO") generally should be filed with the Commerce Department within 30 days after the date on which the notice of initiation was published in the Federal Register.

   The APO application describes in general terms the business confidential information requested and sets forth the reasons for the request.

   Upon receipt of the application, the Commerce Department will process the application and issue an administrative protective order which requires all proprietary information presented to, or obtained by Commerce, during an AD or CVD proceeding, to be disclosed to the representatives (usually the attorneys) of the interested parties who are parties to the proceeding.

   Privileged information and classified information of a type for which there is a clear and compelling need to withhold from disclosure is exempt from being disclosed under an APO.

   The representatives are not permitted to provide copies or discuss in any way the business confidential information received under APO.

   Such action would be considered a breach of the APO and could lead to severe penalties, such as disbarment.

   2. ITC

   Business proprietary information is made available to authorized applicants under an APO issued by the ITC in an investigation.

   An APO application must be received within seven days after publication in the Federal Register of the ITC's initiation notice in a preliminary phase investigation, or no later than 21 days before the scheduled date for the ITC's hearing in the final phase of investigation.

   As in the case of APO issued by Commerce, the representatives of an interested party are not permitted to provide copies of the business confidential information received under APO to individuals not subject to APO, nor can they discuss such information with individuals not subject to APO.

   Such action would be considered a breach of the APO and could lead to severe penalties, such as disbarment.

6. Decision Making Process (Ministerial Approval, Commission Vote, etc.)

   1. COMMERCE

   Commerce's AD and CVD determinations are made by the Assistant Secretary for Import Administration, who is appointed by the President and confirmed by the Congress.

   2. ITC

   For injury investigations by the ITC, a majority of the six Commissioners constitutes a quorum.

   In cases of a tie vote, the determination is deemed to be affirmative (i.e., in favor of the domestic industry).

G. Application and Collection of Duties

1. Suspension of Liquidation

   An affirmative Commerce preliminary determination results in the suspension of liquidation of all entries of the subject merchandise which are entered, or withdrawn from warehouse for consumption as of the date of publication in the Federal Register of the preliminary determination.

   If Commerce's preliminary determination is negative but the final determination is affirmative, Commerce orders the suspension of liquidation as of the date of the affirmative final determination.

2. Use of Bonds or Cash Deposits

   In the case of an affirmative Commerce preliminary determination, Commerce instructs Customs to require the payment of a cash deposit or posting of bond for each entry of the merchandise in an amount equal to the estimated margin of dumping or the amount of the net countervailable subsidy.

   If the final determination is affirmative, Commerce instructs Customs to require a cash deposit or bond in the amount of the final dumping margin or subsidy rate.

   If the ITC makes an affirmative final injury determination, Commerce will issue an AD or CVD order and will instruct the U.S. Customs Service to require cash deposits (i.e., no bonds) on all entries of the subject merchandise.

3. Methods of Liquidation

   The U.S. has a retrospective duty assessment system.

   This means that, at the time the merchandise covered by an order enters the U.S., the importer does not know the ultimate antidumping or countervailing duty liability.

   Each year after the order is issued, an administrative review may be requested by any interested party.

   The purpose of the administrative review is to calculate the precise margin of dumping or rate of subsidization on each entry.

   Once established, those prior entries are assessed duties and the entries are liquidated.

   Under the new statute, this should take no longer than about two and a half years for any single entry, at which point the importer can determine what its costs were for that entry (assuming there is no court challenge).

   The AD or CVD rate found in the administrative review then becomes the new cash deposit rate for future entries.

   If no review is requested, the entries are liquidated at the cash deposit rate.

H. Other

1. Anti-Circumvention

   U.S. law provides for the prevention of circumvention of antidumping and countervailing duty orders.

   There are special provisions for merchandise completed or assembled in the U.S. or in a third country, for minor alterations of subject merchandise, and for later-developed merchandise.

   The provisions focus on whether:

         (1) minor or insignificant assembly or completion is occurring in the U.S. (or a third country);

         (2) the value of the parts imported into the U.S. (or a third country) from the country subject to the order is a significant proportion of the total value of the finished product; and,

         (3) whether minor alterations of subject merchandise or later- developed merchandise constitute merchandise which has essentially the same characteristics as subject merchandise.

   The ITC must be consulted before Commerce makes a determination under most of these provisions.

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