U.S. Law on Trade Remedies Presented by Kenneth J. Pierce and Matthew R. Nicely Willkie Farr & Gallagher LLP for the Georgetown University Law Center NCIEC

U.S. Law on Trade RemediesU.S. Law on Trade RemediesPresented by

Kenneth J. Pierce and Matthew R. Nicely

Willkie Farr & Gallagher LLP

for the Georgetown University Law Center

NCIEC WTO Conference

sponsored by

U.S. – Vietnam Trade Council

11 March 2004


March 11, 2004

2

Willkie Farr & Gallagher LLP208677.1

Introduction Introduction

U.S. has litigious business cultureMost target “unfair” activity

– Antidumping duties– Countervailing duties– Section 337 - Intellectual property– Section 301 - Market Access

Other remedies– Section 201 (safeguards)– Special country-specific safeguards (China, Vietnam)– Section 232 (national security)– Special agriculture, textile measures


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Frequency of UseFrequency of Use

U.S. domestic industries frequent users Limited discretion by national authority

– Depends on type of measure– For AD/CVD, if legal requirements are met, trade restriction

must be imposed

AD most popular– 981 AD cases initiated from 1980-2003, averaging 43 per year

CVD next most popular– 348 cases from 1980-2003, averaging 15 per year

Safeguards used less, but becoming more popular in recent years


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Antidumping Investigations Case Activity(January 01, 1980 - December 31, 2003)

AD INITIATIONS


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Countervailing Duty Case Activity (January 01, 1980 - December 31, 2003)

CVD INITIATIONS


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Why so many AD cases?Why so many AD cases?

Historically, higher margins than CVD cases

Last longer than safeguard measuresGreater ability to manipulate rulesMuch weaker diplomatic reactionAble to target non-market economiesStandard part of business strategy


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Introduction - Fair versus UnfairIntroduction - Fair versus Unfair

Safeguard investigations involve so-called “fair trade” – there is no inherent problem with prices.

CVD: government subsidies allow an unfairly low price.

AD: sanctuary home market allows unfairly low price (in theory only).


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Introduction - The politics of “unfair”Introduction - The politics of “unfair”

The U.S. authorities – both the Administration and Congress – stress “unfair” trade.

A politically attractive message that appeals to domestic constituencies.

Builds a strong base of support for aggressive enforcement of unfair trade laws.

Who can object to stopping "unfair" actions?


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Introduction – Introduction – U.S. penchant for complexityU.S. penchant for complexity

The U.S. laws are among the most complex in the world. Many reasons.– U.S. system is legalistic in general.

– Bureaucrats like complexity; job security.

– Domestic interests like complexity; burden.

– No constituency for simplification.

– Ruling making is cumulative; just add new rules, and rarely rethink old rules.


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Introduction - The role of politicsIntroduction - The role of politics

In legislation– Whenever they lose an issue, domestic interests push

to reform the law. Generally successful.

– The argument of “closing the loopholes” is very attractive domestically.

– The changes are complex, and so few understand what the changes really mean.


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Introduction - The role of politicsIntroduction - The role of politics

In enforcement– Varies from case to case.– Low profile cases usually do not trigger politics;

members of Congress do not care.– High profile cases can involve a lot of politics.– Agency discretion can be exercised in various ways

in all three kinds of cases.


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The Reasons to DefendThe Reasons to Defend

Most cases never become “political” Successful “injury defense” means no duties imposed at

all Successful “margin calculation defense” creates

competitive advantages With prospective planning, possible to “beat the

system” May have “winners and losers” from case; not very

exporter is treated the same


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Procedural FrameworkProcedural Framework

Who’s Who - The Major Players– Commerce Department

• part of President’s cabinet - political: very responsive to needs of domestic industry

• responsible for formally initiating AD/CVD cases• responsible for calculating extent of dumping./subsidy

– International Trade Commission• independent, bi-partisan, quasi-judicial federal agency• 6 commissioners, by law 3 Democrats, 3 Republicans• responsible for determining whether domestic industry is

injured by imports


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Who’s who – cont’dWho’s who – cont’d

– United States Trade Representative (USTR)

• part of Executive Office of President

• principal trade policy advisor and chief trade negotiator

• assists the evaluation of remedy options in 201 cases

– U.S. Customs Service

• responsible for collecting all tariffs, including duties from trade cases

• no substantive role in AD/CVD

• determines country or origin for 201 cases


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Procedural Framework – cont’dProcedural Framework – cont’d

Six different steps in AD/CVD proceeding– Preparation and filing of petition, and initiation by

U.S. Government

– ITC preliminary phase

– DOC preliminary determination

– DOC final determination

– ITC final determination

– Annual reviews to calculate specific dumping liability


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Initiation– DOC makes determination whether initiation

standards are met; must decided within 20 days

– sufficiency of evidence cannot be challenged in AD cases; governments can challenge in CVD cases

– major issues is standing of petitioners

• DOC may poll industry if petitioners account for less than 50 percent

• if so, additional 20 days to decide


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ITC Preliminary Phase– phase is to determine whether sufficient evidence of

injury exists to allow case to go forward– very short; questionnaires issued day after petition; staff

conference (hearing) in just 21 days; ITC must make finding in 45 days

– law sets low standard -- whether there is a “reasonable indication” of material injury by reason of dumped imports

– most often, petitioners can meet standard; ITC makes negative determination in only about 15 percent of cases


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DOC Preliminary Determination– sets forth preliminary dumping or subsidy margin calculation

for mandatory respondents (“all others” rate for non-investigated companies)

– typically issued 160 days after petition filed (AD) (85 days in CVD)

– first action in case that has tangible consequences

• potential liability starts

• importers must post bond

– liability can be retroactive 90 days before prelim if “critical circumstances” found


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Procedural Framework - cont’dProcedural Framework - cont’d

DOC Final Determination– issued 75 days after preliminary

– final margin calculation for each mandatory respondent

– results will often change from preliminary

• after verification

• mistakes are corrected

– de minimis margins = 2% for AD; 1% for CVD (2% for CVD for developing countries)


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Procedural Framework - cont’dProcedural Framework - cont’d

ITC Final Determination– much more comprehensive investigation into competitive

dynamics of market, and effects of imports on industry• detailed questionnaires sent to U.S. producers, importers, foreign

exporters and customers• formal hearing before Commissioners• submission of pre-hearing and post-hearing briefs• economic modeling is often done

– determination on day 280 or 310 for AD; day 205 or 235 for CVD– if final determination is affirmative, AD/CVD order will be issued

(if DOC finds margins), usually one week after ITC final– following affirmative finding, importers must pay cash deposit


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Statutory Timetable for Antidumping Statutory Timetable for Antidumping Investigations (in days)Investigations (in days)

20 days

45 days1

45 days1

Petition filed with ITC and

Commerce or self-

initiated by Commerce

ITC affirmative preliminary

determination; case

continues

ITC negative preliminary

determination; case ends

Commerce terminates

investigation; case ends

Commerce affirmative preliminary

determination; case continues

Commerce negative

preliminary determination; case continues

Complicated case,



Complicated case,

Commerce negative


115 days

115 days

165 days

165 days

75 days Commerce affirmative final determination; case continues

Commerce negative final determination; case ends

Commerce affirmative final determination; case ends

Extended case, Commerce affirmative final determination; case continues

Extended case, Commerce negative final determination; case ends

Commerce affirmative final determination; case continues





Commerce affirmative negative final determination; case ends






75 days

135 days

135 days

75 days

75 days

135 days

135 days

75 days

75 days

135 days

135 days

75 days

75 days

135 days

135 days

45 days

45 days

75 days

75 days

45 days

45 days

75 days

75 days

ITC final determination

Total days








280

340

310

370

330

390

360

420


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Statutory Timetable for Countervailing Statutory Timetable for Countervailing Duty Investigations (in days)Duty Investigations (in days)

20 days

45 days1

45 days1

Petition filed with ITC and

Commerce or self-

initiated by Commerce

ITC affirmative preliminary

determination; case

continues

ITC negative preliminary

determination; case ends

Commerce terminates

investigation; case ends



Commerce negative


Complicated case,



Complicated case,

Commerce negative


40 days

40 days

105 days

105 days

75 days Commerce affirmative final determination; case continues


Commerce affirmative final determination; case ends




Commerce affirmative negative final determination; case ends


75 days

75 days

75 days

75 days

75 days

75 days

75 days

45 days

75 days

45 days

75 days


Total days




205

235

270

300


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Annual review to calculate liability– U.S. employs retrospective system

– actual liability is calculated following administrative review

– year-long process conducted by DOC based on recent data


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Appeal options– different appeal rights depending on trade remedy

in AD/CVD cases, U.S. law provides right to appeal to U.S. Court of International Trade– rigid time deadlines - must file papers within 30 days of

agency determination– CIT asks two questions: (1) is agency decision supported by

substantial evidence on record, and (2) does agency decision conform to statute

– outcome is remand to agency for re-determination

in Section 201 cases, no right of appeal on factual issues; legal only


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Safeguard Procedures – 3 StagesSafeguard Procedures – 3 Stages

Same procedures apply whether global or Vietnam-specific:– ITC injury phase – similar to AD/CVD “final”

phase

– ITC remedy phase – recommendations made to President

– President decision-making phase – decides whether to accept or reject ITC recommendations or create his own remedies


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Substantive Aspects of U.S. AD LawSubstantive Aspects of U.S. AD Law

Incredible burden on investigated foreign exporters in AD cases

• volume of data required -- all sales transactions and all costs for two markets for a year (or 6 months for NMEs, U.S. market only)

• must follow DOC product organization

• must obtain data from affiliated customers and suppliers

• everything must be verified to financial system


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Sample U.S. Sales Database for AD Case (NME)

FieldNumber

FieldDescription

FieldName

1.0 Complete Product Code PRODCODU

2.0 Matching Control Number CONNUMU

3.0 Sale Type SALEU

4.0 Customer Code CUSCODU

5.0 Date of Sale SALEDTU

6.0 Sale Invoice Number INVOICU

7.0 Sales Invoice Date SALINDTU

8.0

9.0 Terms of Delivery SALETERU

10.1 Quantity (as sold) QTY1U

Date of Shipment SHIPDTU


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FieldNumber

FieldDescription

FieldName

10.2 Quantity (headless, shell on) QTY2U

11.1 Quantity Unit of Measure (as sold) QT1UMU

11.2 Quantity Unit of Measure (headless, shell-on)

12.1 Gross Unit Price (as sold)

12.2 Gross Unit Price (headless, shell-on) GRSUPR2U

13.0 Discounts DISCTN(1-n)U

14.1-14.n Rebates REBATE(1-n)U

15.1-15.n

16.0 Inland Freight – Plant/Warehouse to Port of Exit DINLFTPU

17.0 Country of Manufacture Inland Insurance INSURU

Inland Freight – Plant to Distribution Warehouse

QT2UMU

GRSUPR1U

DINLFTWU

Sample U.S. Sales Database for AD Case (NME)(continued)


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FieldNumber

FieldDescription

FieldName

18.0 Brokerage and Handling DBROKU

19.0 International Freight INTNFRU

20.0 Marine Insurance

21.0 U.S. Inland Freight from Port to Warehouse

22.0 U.S. Inland Freight from Warehouse to the Unaffiliated Customer INLFWCU

23.0 U.S. Inland Insurance USINLINU

24.0 Other U.S. Transportation Expense USOTREU

25.0

26.0 Destination DESTU

27.0 Packing Materials PACKU

U.S. Customs Duty

MARININU

INFLPWU

USDUTYU



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FieldNumber

FieldDescription

FieldName

28.0 Unskilled Packing Labor PAKUNLBU

29.0 Skilled Packing Labor PAKSKLBU

30.0 U.S. Repacking Cost REPACKU

31.0 Further Manufacturing FURMANU

32.0 Foreign Trade Zone FTZU

33.0 Manufacturer MFRU



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ME Cases Involve More Fields for ME Cases Involve More Fields for ExpensesExpenses Commission Sale Agent Credit Expenses Advertising Expenses Warranty Expenses Technical Service Expenses Royalties Indirect Selling Expenses Variable COM Total COM


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Why all this data?Why all this data?

DOC uses the sales list to arrive at an ex-factory U.S. price to which it then compares “normal value”

Calculates this price for each type of product covered by case:– some cases involve many different kinds of

products; DOC tries to compare most similar


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If Exporters do not Participate, DOC If Exporters do not Participate, DOC may apply “facts available”may apply “facts available” DOC has broad discretion to use alternative facts

to calculate dumping margins if respondents do not cooperate

Usually, DOC chooses a rate from the petition, which can be as high as 100 to 200%

Understand what this means – if company does not participate, importers may have to pay 100% duties on imports, which means exporter is probably out of the U.S. market.


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Basics of The Dumping CalculationBasics of The Dumping Calculation In every case, DOC compares an exporter’s U.S. prices to

the exporter’s home market price – or some surrogate for home market price

Whether home market prices are used depends on several factors:– whether country is deemed NME – if so, special cost calculation

rules apply– whether home market sales are “viable” (5% of U.S. exports) – if

not, use “third country”– whether home market prices are above or below cost – if below,

use “constructed value” We will focus mostly on what happens if export country is

deemed NME


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Basics of The Dumping Calculation Basics of The Dumping Calculation (cont’d)(cont’d)

Whatever is used – home market price, third country price, or constructed value – DOC uses it to create what is called “normal value”

Both U.S. prices and normal value are reduced to the equivalent of “ex-factory U.S packed” in order to obtain an apples-to-apples comparison

This means many deductions to gross unit price Ultimate dumping calculation is:

U.S. price – Normal value U.S. price


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Separate Rules for Non-Market Separate Rules for Non-Market Economies (“NMEs”)Economies (“NMEs”)

Theory behind special NME rules is that home market prices and costs are not “market” driven and thus not comparable

DOC considers several factors to see if country is NME:– the extent to which the currency is convertible into currencies of other

countries;– the extent to which wage rates are determined by free bargaining

between labor and management;– the extent to which joint ventures or other investments by firms from

other countries are permitted;– the extent of government control over the means of production;– the extent of government control over the allocation of resources, prices,

and output decisions; and – any other factors DOC deems appropriate.


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Should Vietnam be an NME?Should Vietnam be an NME? Decision made in “Catfish” case to treat as NME. Arguments showed very similar to other developing

countries. Decision political; vestige of “cold war.” Unclear when this will change, but will continue to

update DOC; working toward “graduation.” In the meantime, consideration needs to be given to

which is more beneficial– NME means no CVD– NME means much less data required– Results could be better with, rather than without, NME, depending

on industry


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Exception to NMEException to NME

Even if Vietnam is NME, one exception exists called “market oriented industry” or “MOI”

This exception applies if entire industry – e.g., all catfish producers – can prove they abide by market principles

Very difficult to meet this standard because of industry-wide rule


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As an NME...As an NME...

When NME provision applies, DOC ignores home market prices and costs and “constructs” a normal value based on factors of production, values for which are derived from a “surrogate” market economy

So, a Vietnamese producer would provide information about factors of production; and value is based on costs in a similar market

Battle is over which market and which values in that market


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Which Surrogate Market is Used in Which Surrogate Market is Used in NME Cases?NME Cases?Standard is a market economy country

which is:– at a level of economic development comparable to

that of the NME country, and– a significant producer of comparable merchandise

“Comparable” economic development and “comparable” merchandise standards are as flexible as they need to be, but DOC will try to find most comparable


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Which Surrogate Market is Used in Which Surrogate Market is Used in NME Cases? (cont’d)NME Cases? (cont’d)Arguments on these issues can have a huge

impact on the marginArguments can also be made that certain of

a company’s costs are market oriented even if not all are, or that one country is better for one cost element than another


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Single or Separate Rates in NME Single or Separate Rates in NME CasesCases General rule is one rate for all exporters because

company distinctions in NME countries are assumed not based on market principles

Separate exporter rates are possible, however, as long as government intervention in “export activities” is minimal

Separate rate depends on active participation Non-participating exporters get high “facts

available” “country-wide” rate (usually based on petition)


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Assuming NME, What Do Exporters Assuming NME, What Do Exporters Need To Give DOC?Need To Give DOC?Section A Questionnaires – general

information on business structure and practices – very little data, mostly explanatory

Section B – Not Needed (home market sales)Section C – U.S. Sales ListSection D – Factors of Production


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Factors of Production – NME Factors of Production – NME Normal ValueNormal Value

Production Factor in Vietnam

Factor Quantity for One Unit

Value in Surrogate Country

Per Unit Cost

Raw Material #1 100 lbs. $0.35/lb $ 35.00

Raw Material #2 2 lbs. $2.50/lb 5.00

Labor 45 min. $10/hr. 7.50

Subtotal $49.50

Factory Overhead 20% of foregoing 9.90

Subtotal $59.40

SG&A 20% of foregoing $11.88

Subtotal $71.28

Profit 5% of foregoing $ 3.56

Packing 1 carton $2.00/[carton] $ 2.00

Total Normal Value $76.84


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What if no NME treatment?What if no NME treatment? Full comparison market sales database required, much like

U.S. sales list, to reach ex-factory comparison market price– preference is for home market, but must be “viable”– if not viable, or if “particular market situation” exists, third

country market is chosen – usually largest, but should be similar products to U.S.

Much more detailed cost information is collected to calculate fully distributed actual costs– to see whether home market sales are below cost– if below cost, then costs are used to calculate “constructed value”

for normal value– also used for “difference in merchandise” adjustments when non-

identical products are compared


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What sales can be used?What sales can be used?

Sales to unaffiliated parties Possible exception for affiliated resellers selling

limited quantities Affiliates includes those “in position to exercise

restraint or direction” If affiliated, DOC asks for downstream sales Home market sales above cost (according to 80/20

rule) Home market sales of most similar merchandise to

U.S. sale


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What prices can be used?What prices can be used?

Preference for identical match – two products with same DOC characteristics

Can use similar match, if cost differences less than 20%

At same level of trade Price must be above “cost” to be used in

comparison If initial match fails, look for other similar home

market prices that are above cost


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Basics of Cost CalculationsBasics of Cost Calculations

Fully-distributed (average) actual costs– Must capture all costs on income statement

– Must be actual, not estimated

– Consolidate expenses for group

– Special rules for related suppliers

Product specific basis– Based on DOC categories

– Need to adapt current system to DOC categories


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Basics of Cost CalculationsBasics of Cost Calculations

For the entire period of investigation– Normally one year, most recent four quarters

– Can go broader or narrower

Application of “80-20 Rule”– If few than 20% below cost, use all sales

– If 20% or more below cost, exclude below cost

– Can have isolated sales as basis for comparison


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Effect of DOC DeterminationEffect of DOC Determination

Whatever way DOC calculates the dumping margin, the result is a duty placed on shipments of your products

Importers are responsible to pay the duty If too high, importers could decide to stop doing

business with you So, exporters gain advantage by getting lower rates Either way, still lower rates can be obtained in

annual administrative reviews


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Finally, Consider Suspension Finally, Consider Suspension AgreementsAgreements

Suspension agreements are alternatives to duties which DOC has authority to negotiate

Rather than duties, exporters can agree to minimum prices and/or quantitative restrictions

Involvement of all exporters and governments will be critical for this to be a viable option


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ITC InvestigationITC Investigation Even if DOC investigation does not result in zero or

acceptably low AD duty rate, you can still win on injury

Data requirements from exporters very low, but very important to get “friends” in the U.S. ready to help

Point is to argue why imports are not the U.S. industry’s problem

Negligibility also a possible out for smaller countries, but usually already considered by petitioners


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ITC Investigation (cont’d)ITC Investigation (cont’d)

Organize “friends”– political support – McCain, Kerry

– importers

– customers

– the press

Make use of the pro-Vietnam support among U.S. media; history matters.


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ITC Will Also Make Its Decision ITC Will Also Make Its Decision Based on FactsBased on FactsFactors considered

– volume of imports (absolute and market share)– price of imports (trends and comparison to domestic

prices)– impact on domestic industry (industry financial

performanceCritical issue in every case is whether

imports caused the injuryITC must consider alternative causes


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Alternate causesAlternate causes

Even if import volume and price trends are unfavorable, critical question is what else is causing the domestic industry ills, such as– intra industry competition

– inefficient production


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What Happens Next?What Happens Next?

If ITC votes negative on injury, no duties – DOC calculation is irrelevant

If ITC votes affirmative, duty deposits continue to be collected at the amount of dumping margin

Actual AD duty liability is decided during the annual “administrative review” process, when targeted sales can be made to lower or erase the duties (details to be discussed another time)


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BEGINYEAR 1

Petition filed

No Liability*

DOC aff. preliminary

determination published

assume 5%ITC affirmative

preliminary published

DOC revised preliminary published

assume 7%

10% cash deposit

DOC affirmative final** published

assume 10%

ITC affirmative final published

AD Order published

Maximum liability of 5% if cash deposit or secured by bond.



Unlimited liability whether secured by cash deposit or bond of 10%

Unlimited liability; cash deposits required of 10% (may not be secured by bond)

ENDYEAR 2

Opportunity to request a review

of POR 1 (anniversary

month of order).

If no review, liquidate at deposits.

If review requested, preliminary

decision in review of no effect.

20% cash deposit

***

Liquidate POR 1. If cash deposits or bond, DOC preliminary to DOC revised preliminary, at 5% (cap); DOC revised preliminary to DOC final at 7% (cap); DOC final to ITC final at 10% (cap). ITC final to AD order at 20% (owe 10%). AD order to end of review period at 20% + interest. Interest owed on entries from AD order to end of review period.

Unlimited liability; cash deposits required of 20% (duties may not be secured by bond)

Final decision in review published

assume 20%.

Unlimited liability; cash deposits required of 10% (duties may not be secured by bond)

ENDYEAR 3

Opportunity to request a review

of POR 2 (anniversary

month of order).

If no review, liquidate at deposits.

If review requested, preliminary

decision in review of no effect.

Liquidate POR 2 at 5%, refund 5% + interest

Final decision in review published

assume 5%.

* Assumes no critical circumstances allegation and affirmative finding which, if affirmative, could retroactively extend antidumping duty liability for up to 90 days before an affirmative DOC preliminary determination. ** Assumes no revised DOC final.

US Antidumping Law


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CVD Cases in the U.S.CVD Cases in the U.S.

Generally follow same procedures as ADGenerally follow rules in SCM AgreementDOC practice somewhat less severe Cannot bring a CVD case against NMESpecial rules for developing countries

– 2% de minimis rule– 4%/9% rules for neglibility

More flexibility on diplomatic approaches


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Tying/Measuring CVD BenefitsTying/Measuring CVD Benefits

THE NUMERATORS Some connection to subject merchandise

(cannot be exclusively tied only to non-subject merchandise) – also affects denominator

Benchmarks – what would company have paid in the market– Company-specific or country wide on loans (creditworthiness)– Private supplier prices– Stock prices (unless unequityworthy – than grant)– Open market cost (e.g., loan with government guarantee)


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Numerator Cont.’dNumerator Cont.’d

Period allocations Recurring subsidies expensed in year of receipt (e.g., electricity

discounts, POR book ends) AUL (“Average Useful Life”) Periods

– Applies to “non-recurring” subsidies• Grants, equity

– IRS industry tables– Spread benefits forward over AUL– Huge expansion of the period under investigation (steel 15

years) Time value of money

– Every repayment delay is alleged to be a loan


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CVD DENOMINATORSCVD DENOMINATORS

Either allocate out of POR and AUL, prove no tie to U.S. sales or tie to largest denominator

1. U.S. sales of subject merchandise

2. All U.S. sales

3. All export sales of subject merchandise

4. All export sales

5. All sales of subject merchandise

6. All sales


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Safeguard Cases in the U.S.Safeguard Cases in the U.S.Historically less popular than AD casesITC has two stages

– Injury stage: are imports a substantial cause of serious injury; similar to AD/CVD “final stage”

– Remedy stage: recommends remedy to PresidentPresident makes final decision

– USTR process at working level– Final decision at Cabinet/Presidential level– Can accept, reject, or modify the recommendation

Documents

U.S. Law on Trade Remedies Presented by Kenneth J. Pierce and Matthew R. Nicely Willkie Farr & Gallagher LLP for the Georgetown University Law Center NCIEC