Antidumping, Countervailing Duty, and Safeguard Proceedings

• Anticounterfeiting and Brand Protection
• Antidumping, Countervailing Duty, and Safeguard Proceedings
• Customs Counseling, Litigation, and Enforcement
• Section 337 Intellectual Property Litigation at the International Trade Commission

Antidumping Proceedings: Broadly speaking, a foreign company “dumps” merchandise in the United States when it sells merchandise for export to the United States at prices that are below “normal value,” i.e., prices that are lower than the prices charged by the exporter for the same merchandise in its home market.  If there are no home market sales of the merchandise or the merchandise originates in a nonmarket economy, normal value will be determined by reference to third country prices or to the cost to produce the merchandise with additions for overhead and profit.  When an American company believes that a foreign competitor is dumping merchandise in the United States, the U.S. company can file a petition with the United States Department of Commerce (“DOC”) and the U.S. International Trade Commission (“ITC”) alleging that a product is being dumped and that the dumping is causing material injury to a U.S. industry.  If the petition is supported by evidence reasonably available to the petitioner, DOC will initiate an investigation to determine the extent of the alleged dumping and the ITC will initiate a concurrent investigation to determine whether the alleged dumping is causing or threatens to cause material injury to a U.S. industry.  If DOC and the ITC make affirmative findings of dumping and injury, DOC will publish an order requiring importers to deposit estimated antidumping duties on imports of the subject merchandise in amounts equal to the size of the dumping margins, i.e., amounts equal to the difference between the United States price and the normal value.  Thereafter, DOC conducts annual administrative reviews to determine the exact amount of antidumping duties that will be assessed on subject merchandise imported during the review period.

Countervailing Duty Proceedings: An American company that believes a foreign competitor is being unfairly subsidized by a foreign government may petition DOC and the ITC for the imposition of “countervailing duties” on products exported to the United States.  If DOC determines that unfair subsidies are being provided and the ITC determines that subsidized imports are causing or threaten to cause material injury to a U.S. industry, the United States will publish a countervailing duty order and assess countervailing duties on the subsidized products in an amount equivalent to the benefit conferred by the unfair subsidies.

Sunset Reviews: Every five years, the DOC and the ITC conduct “Sunset Reviews” of antidumping and countervailing duty orders to determine whether an order can be terminated without causing injury to a U.S. industry. 

Safeguard Proceedings against Import Competition: U.S. industries that are suffering from competition because of rapidly increasing imports of competing products may obtain temporary help from the U.S. government even in those instances when the imported products are not being dumped or subsidized.  Such temporary “escape clause” or “safeguard” relief is available under Sections 201 and 406 of the Trade Act of 1974, which authorize the President to grant temporary relief to U.S. industries that are suffering serious injury as a result of increased imports of competing products.  The relief may take numerous forms, including direct financial aid or increased tariffs or quotas on imported articles.  These provisions are intended to provide temporary protection to a U.S. industry while the industry makes a positive adjustment to increased import competition.

The Blakeslee Law Firm works with clients in all stages of antidumping, countervailing duty, and safeguard proceedings, including investigations, annual reviews and sunset reviews, as well as judicial review of agency determinations in the Court of International Trade and the Court of Appeals for the Federal Circuit.  We handle both the DOC and the ITC phases of these investigations.  We also counsel foreign clients and their importers on practices that will minimize their exposure to antidumping or countervailing duty assessments in the event their products become subject to an investigation.