Antidumping/Countervailing Duties

Today Customs and Border Protection (CBP) published an updated version of its “Guidance for Reimbursement Certificates”; see https://www.cbp.gov/document/guidance/guidance-reimbursement-certificates.

In the memorandum, CBP reminds the public that regulations by the Department of Commerce (“DOC”) require that importers must file a certificate advising whether the importer has entered into an agreement, or otherwise has received reimbursement of AD duties, prior to liquidation of the entry.

Failure to file reimbursement certificates (stating that importer was not reimbursed) may double importer’s antidumping duties upon liquidation.  CBP’s memorandum offers specifics on how to file the certificates and includes an example of a blanket reimbursement form.

The memo also outlines procedures for filing in ACE and ACS.  Although CBP will accept paper reimbursement certificates, it is encouraging importers to file electronically.

CBP addresses other guidelines for filing reimbursement certificates, including the following:
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On May 17, the ITC voted unanimously that dumped imports of cold-drawn mechanical tubing from China, Germany, India, Italy, Korea, and Switzerland are a cause of material injury to the domestic industry.  This vote follows the Commerce Department’s final determinations that imports from producers and exporters in these six countries are being dumped in the

The grain industry is reacting to the “temporary” Chinese preliminary antidumping duty of 178.6% on sorghum shipped from the United States, announced April 17, 2018. Reuters reported that Chinese importers of sorghum, a grain used to create ethanol and feed livestock, have asked the government in Beijing to waive the duties.  After the duties were announced, nearly two dozen ships carrying American sorghum changed course, opting instead for ports in Japan, Saudi Arabia, the Canary Islands, and the Philippines to mitigate losses.  China is now importing relatively large quantities of barley as livestock feed and the Chinese importers who did receive sorghum shipments are selling that grain at an extreme discount in an effort to avoid the duty deposit.

The investigation into U.S. sorghum, initiated in February, found that U.S. exports to China increased over the last several years while prices fell and harmed China’s domestic industry.  The National Sorghum Producers, an industry group in the United States, insists that the product is neither dumped nor injurious to the Chinese industry.  The National Sorghum Producers also state that they fully cooperated with the Chinese government in the course of the short investigation, at the end of which adverse facts available were applied to result in the high margin. 
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On February 14, Senators Gary Peters (D-MI) and Richard Burr (R-NC) jointly introduced the S. 2427, the Self-Initiations Trade Enforcement Act.  If enacted, the legislation would give the Department of Commerce greater leniency to self-initiate investigations of unfair trade practices that harm U.S.  producers by creating a permanent taskforce at the International Trade

On Friday, February 16, 2018, Secretary Ross released public versions of the U.S. Department of Commerce’s reports concerning the agency’s section 232 investigations into the impact on national security of steel and aluminum imports. As a result of its investigations, the Department of Commerce has determined that imports of steel and aluminum “threaten to impair the national security.”

The Secretary’s press release presents the agency’s key findings and lists the agency’s various recommended remedies.  With respect to steel imports, the Department of Commerce recommends three alternative options to the President:

  1. A global tariff of at least 24% on all steel imports from all countries, or
  2. A tariff of at least 53% on all steel imports from 12 countries (Brazil, China, Costa Rica, Egypt, India, Malaysia, Republic of Korea, Russia, South Africa, Thailand, Turkey and Vietnam) with a quota by product on steel imports from all other countries equal to 100% of their 2017 exports to the United States, or
  3. A quota on all steel products from all countries equal to 63% of each country’s 2017 exports to the United States.

With respect to aluminum imports, the Department of Commerce recommends three alternative options to the President:
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On January 12, 2018, Australia brought a historical first WTO trade dispute against Canada.  The request for consultations alleges that the Canadian Government and the Canadian provinces of British Columbia (“B.C.”), Ontario, Quebec and Nova Scotia discriminated against imported Australian wine by maintaining discriminatory trade measures governing  the sale of wine.  The alleged discriminatory measures include:  distribution areas, licensing and sales measures (i.e., product mark-ups), market access and listing policies, and duties and taxes applied at the federal and provincial level. Pursuant to WTO rules, the parties have 60 days to settle the dispute after which time Australia may request adjudication before a WTO panel.

Australian exports of bottled wine to Canada declined by nearly  half between 2007 and 2016.  Australia Trade Minister Steven Ciobo discussed the request for consultations and Australian wine
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Earlier this month, the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) denied an appeal by Capella Sales & Services Ltd., an importer of aluminum extrusions from China, in which the company challenged the countervailing duty margin applied to its entries at liquidation, arguing that a lower rate should have been applied by U.S. Customs and Border Protection.

Capella did not participate in U.S. Department of Commerce’s (“Commerce”) 2011-2012 administrative review of aluminum extrusions from China.  As a result, its entries were subject to the 374.15% “all others” rate under the countervailing duty order.  In connection with other litigation, the 374.15% “all others” rate was reduced to 7.37% in October 2015 based on challenges brought by several other importers of aluminum extrusions. 
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On January 10, 2018, Canada circulated to WTO members a request for consultations challenging several aspects of the United States antidumping and countervailing proceedings. The request for consultation is available on the WTO’s website and can be found here.

In particular, Canada challenges:

  1. the way in which the U.S. Department of Commerce refunds cash deposits after adverse WTO determinations;
  2. the United States’ suspension of liquidation of cash deposit requirements when the U.S. Department of Commerce preliminarily determines critical circumstances exist;
  3. the U.S. Department of Commerce’s treatment of certain export measures by foreign governments in the agency’s countervailing duty proceedings;
  4. the U.S. Department of Commerce’s calculation of benefits involving the provision of goods for less than adequate remuneration in the agency’s countervailing duty proceedings; and
  5. the U.S. Department of Commerce’s procedures for collecting evidence in antidumping and countervailing duty investigations.


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Late last week, the Government of China announced that it would be removing export taxes on many steel products, including wire, rods, bars, billets, and stainless steel plate, as of January 1, 2018.  The move is part of a number of tax changes.  The steel export tax has not prohibited massive volumes of Chinese steel from being shipped to other markets in the face of overwhelming overcapacity at home.  But the absence of the export tax will make it even easier for Chinese steel producers to export steel products around the world.  Notably, China typically adjusts export tax levels on an annual basis as a policy measure to encourage or discourage certain exports.  Thus, this latest decision signals not only the Government of China’s continued active intervention in the market, but its support for even greater exports of Chinese steel, which the world can hardly absorb.
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Last week, the United States filed its first legal analysis of the China non-market economy issue in a dispute at the World Trade Organization brought by China against the European Union.

As we have reported here and here, the question of whether the United States would continue to treat China as an non-market economy (“NME”) for purposes of the Department of Commerce’s antidumping duty analysis was recently decided by the Administration.  In a 200-page memorandum issued at the end of October, Commerce announced that it would continue to apply alternative dumping methodologies with respect to China given the substantial evidence that China continues to be an NME.

That has not stopped China from initiating dispute settlement proceedings at the World Trade Organization (“WTO”) against the European Union (DS516) and the United States (DS515).  In each dispute, China is challenging the WTO member’s applied antidumping duty methodology with respect to imports from China, which China believes are prohibited under a provision of its 2001 Protocol of Accession to the WTO and inconsistent with provisions of the WTO Antidumping Duty Agreement and the General Agreement on Trade and Tariffs (“GATT 1994”). 
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