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
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. …