U.S. Court of International Trade Overview: Non-Market Economy Cases in 2011

By Davis, Mark David; Campau, Doug et al. | Georgetown Journal of International Law, Fall 2012 | Go to article overview

U.S. Court of International Trade Overview: Non-Market Economy Cases in 2011


Davis, Mark David, Campau, Doug, Chen, Irene, Lehnardt, Mark B., Nagarajan, Nithya, Yu, Steven, Georgetown Journal of International Law


TABLE OF CONTENTS

I. INTRODUCTION
II. COMMERCE DEPARTMENT PROCEDURAL ISSUES
     A. Notice of Initiation
     B. Due Process
     C. Combination Rates
     D. Zeroing
     E. Entry Date Indicating POR Sale
     F. Determining the Average Rate for Non-Investigated
        Respondents
     G. Export Tax/VA T
     H. Certification Requirements
     I. Revocation
     J. Intermediate Input Valuation
     K. Country of Origin and Substantial Transformation
III. CIT PROCEDURAL ISSUES
     A. Exhaustion of Administrative Remedies
     B. Intervention and "Party To The Proceeding" Status
     C. Motions for Consolidation or Stay
IV.  RESPONDENT SELECTION
V.   SCOPE
     A. Scope Exclusions
     B. Inclusion in the Scope of a Product Imported with
        Nonsubject Products
VI. SEPARATE RATES
     A. What Constitutes Government Control?
     B. Certification of Separate Rate Applications and Responses
VII. SURROGATE VALUES
     A. Domestic Prices Versus Import Prices in Determining
        Surrogate Value for Raw Material Inputs
     B. Surrogate Wage Rates
     C. Corroboration of Surrogate Value Information
     D. Inclusion of Imports from North Korea in the Surrogate
        Value
     E. Exclusion of Aberrational Imports from Surrogate Value
     F. Surrogate Financial Ratios
        1. Producers of Comparable Products
        2. Completeness of Financial Statements
        3.  Cost of Land as Overhead or as a Separate Input
     G. Energy Inputs
     H. Movement Expenses
     I. By-product Offsets
VIII. ADVERSE FACTS AVAILABLE
     A. The Requirement of Corroborated, Non-Punitive, and
        Reasonable AFA Rates
     B. Separate AFA Rates for Non-Cooperative Respondents Who
        Are Not Government Controlled
     C. Inclusion of an AFA Rate in the Average Rate Assigned to
        Non-Reviewed Respondents
     D. Attribution of Supplier's Non-Cooperation to the Respondent
     E. Non-Adverse Facts Available, EP Versus CEP Sales
        Classification
IX. CONCLUSION

I. INTRODUCTION

Antidumping (AD) law imposes an extra duty on imports found to be sold in the United States at prices below what is called "normal value." (1) In most instances, normal value is computed with reference to the foreign producer's or exporter's sales in other countries, and to the extent U.S. sales are made at prices lower than other-country (non-U.S.) sales, those sales are considered to be dumped. (2) In the case of exports from so-called "non-market economy" (NME) countries, normal value is instead estimated with reference to the actual reported manufacturing inputs of the producer (materials, labor, and over, head)--called "factors of production"--which are then assigned a "surrogate value" by reference to the prices for those same factors in a market economy country with similar economic development (the "surrogate country"). (3) The universe of NME countries was once much broader, but now includes only China and Vietnam. (4) Nevertheless, because of the large volume of trade with these countries (particularly China), numerous NME AD cases are undertaken every year by the U.S. Department of Commerce (Commerce), the agency charged with determining the existence of and extent of dumping. Consequently, the U.S. Court of International Trade, which has exclusive jurisdiction to review such cases, encounters a significant number of cases involving AD issues arising from NME countries.

II. COMMERCE DEPARTMENT PROCEDURAL ISSUES (5)

During 2011, the Court encountered various procedural issues arising from such cases, as well as substantive issues related to the selection of the companies to be examined in a proceeding, the scope of the order underlying the proceedings, the independence of a NME respondent from its presumptively controlling government, the proper surrogate value to apply to price the factors of production, and, finally, the appropriate response to a respondent's failure to cooperate with Commerce to the best of its ability. …

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