Chapter 3: Suspension Agreements under the U.S. Anti-Dumping Law
3.1 The U.S. Anti-Dumping Proceedings
From 1995 to 2014, there were 345 cases imposed definitive anti-dumping duties by the U.S.
investigating authorities (See Table 2). From Figure 8, we could find that the target countries are mainly from Asia and account for 55% of All Anti-Dumping Orders. China is the first target and accounts for 29% (99 cases) of all Anti-Dumping Orders between 1995 and 2014, whereas Japan, South Korea and Taiwan account for 7% (23 cases), 6% (19 cases) and 6% (20 cases) respectively. There are 7 Suspension Agreements in force from 4 countries covering 6 products (See Table 3), but none is from Asian Countries.
Figure 8. Target Countries/Regions of Imposing Definitive Anti-Dumping Duty, 1995- 2014
Source: WTO Statistics on anti-dumping measures
China India Indonesia Japan South
Korea Taiwan Mexico other
Percentage 29% 4% 3% 7% 6% 6% 5% 40%
Number 99 14 12 23 19 20 17 141
29%
4% 3%
7% 6% 6% 5%
40%
99
14 12
23 19 20 17
141
0 20 40 60 80 100 120 140 160
0%
5%
10%
15%
20%
25%
30%
35%
40%
45%
As mentioned in the Chapter 1.1, the U.S. anti-dumping law is addressed in Sections 731-781 of the Tariff Act and codified as amended at 19 U.S.C.1673-1677 (1993), as amended by the Trade Agreements Act of 1979, the Trade and Tariff Act of 1984, the Omnibus Trade and Competitiveness Act of 1988, and the Uruguay Round Agreements Act of 1995.36 Anti-dumping proceedings in the U.S. involve separate, but simultaneous, investigations by the Department of Commerce (DOC) and the International Trade Commission (ITC).37 The DOC is responsible for dumping investigation and the ITC is in charge of injury investigation.
An antidumping proceeding begins with simultaneous filing of a petition with the DOC and the ITC by a U.S. domestic industry producing a like product. The DOC will examine the prima facie evidence of dumping and injury in a petition within 20 days (to up to 40 days) to decide whether or not to initiate an investigation. A petition must be filed on behalf of an industry, if (1) the domestic producers or workers who support the petition account for at least 25 percent of the total production of the domestic like product, and (2) the domestic producers or workers who support the petition account for more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for or opposition to the petition.38
Upon initiation of the investigation by DOC, the ITC must investigate whether there is a reasonable indication that the U.S. domestic industry has been materially injured or is threatened with material injury by the allegedly dumped imports. If the preliminary injury determination of ITC is affirmative, the DOC begins its dumping investigation; otherwise the investigation will be terminated. In the case of the affirmative injury preliminary determination, the DOC will send the questionnaires to foreign producers or exporters then calculate the dumping margins according to the information provided in questionnaires and publish the result of calculation in a preliminary
36 Francesco Perone (1995), Page 64
37 An overview of antidumping proceeding. Retrieved from : http://www.adduci.com/node/111
38 Sections 732(c)(4)(A) of Tariff Act
determination. No matter the preliminary determination of dumping is affirmative or negative, the investigation will continue. If both preliminary determination of dumping and injury are affirmative, the provisional measures will be implemented.
Before making a final determination of dumping, the investigative staff of the DOC will conduct onsite verifications at the facilities of foreign manufacturers in order to verify the accuracy of the information provided to DOC. If final determination of dumping is negative or the dumping margin is de minimis, the investigation is terminated. Otherwise the ITC must, within a prescribed statutory time, make a final determination of whether a domestic industry is being materially injured or threatened with material injury. If the final determination of ITC is affirmative, then an antidumping order will be issued and the definitive anti-dumping duty will be imposed.39 With regard to US Anti-Dumping proceedings and the time frame of each phase please see Table 9.
With regard to the review of anti-dumping proceedings, it can be categorized as follows:
(1) Administrative Reviews:
One year after publication of an antidumping order, as well as during each subsequent year, any exporter of the product concerned which is subject to that order may request that the DOC conduct a review of the previous year's imports. During the review process, the DOC recalculates the dumping margin for the exporter, thus the Anti-Dumping duties assessed on the subject product may be raised or lowered depending on the price of sales transactions.40 The Department may also conduct administrative reviews to determine whether a suspension agreement has been violated or should be terminated. Administrative review procedures and practices for AD orders, AD findings, and suspension agreements are generally the same as those employed for investigations.
39 An overview of antidumping proceeding. Retrieved from : http://www.adduci.com/node/111
40 The relevant regulation please see § 351.213 Administrative review of orders and Suspension Agreements under Section 751(a) (1) of the Tariff Act.
Table 9. Flow Chart of the US’ Anti-Dumping Proceedings
“SLFV” stands for “sales at less than fair value”
Source: https://www.tid.gov.hk/english/trade_relations/ad/files/ad_flowchart_usa.pdf
(2) New Shipper Reviews:
Under U.S. antidumping law, anti-dumping orders apply on a national-wide basis and contain products from new shippers that were not involved in the original investigation. Exporters or producers may request a new shipper review if they have exported subject merchandise to the United States. They can obtain their own individual dumping margin on an expedited basis through the new shippers view.41
(3) Changed Circumstances Reviews:
In addition to an administrative review, interested parties may request a changed circumstances review of an Anti-Dumping Order or Suspension Agreement at any time while the DOC will determine whether there is sufficient cause to conduct the review. A changed circumstances review addresses questions about the applicability of the Anti-Dumping Order (for example, the change for scope of product concerned).42
(4) Five Year (“Sunset”) Reviews:
The Uruguay Round Agreements Act revised the Tariff Act of 1930, as amended, by requiring that Anti-Dumping Orders be revoked, and suspended investigations be terminated, after five years, unless revocation or termination would be likely to lead to a continuation or recurrence of (1) dumping, and (2) material injury to the domestic industry. Section 751(c) (1) of the Tariff Act requires the DOC and the ITC to conduct a review no later than five years after the issuance of an Anti-Dumping Order, the suspension of an investigation, or a prior five-year review.
The DOC is responsible for determining whether revocation of an Anti-Dumping Order, or termination of a suspended investigation, would be likely to lead to a continuation or recurrence
41 The relevant regulation please see § 351.214 New shipper reviews under Section 751(a) (2) (B) of the Tariff Act.
42 The relevant regulation please see 19 CFR 351.216 – changed circumstances review under Section 751(b) of the Act
of dumping; the ITC is in charge of determining whether revocation or termination would be likely lead to continued or recurring material injury to the domestic industry. If the determinations of both the DOC and the ITC are affirmative, the order (or suspended investigation) will continue (i.e., remain in place). If either the DOC’s determination or the ITC’s determination is negative, the order will be revoked (or the suspended investigation will be terminated). “Five Year Reviews” are commonly referred to as “Sunset Reviews”.43