Antidumping and Countervailing Duties

Title VII of the Tariff Act of 1930, as amended, authorizes import duties to be imposed on foreign merchandise that is being, or is likely to be, (1) sold in the United States at less than its fair value, which is calculated in accordance with a methodology set out in Commerce Department regulations; or  the manufacture, production or export of which is being subsidized by a government.  In both types of cases, known respectively as antidumping and countervailing duty (AD/CVD) laws, there must also be a finding  that a US industry is being materially injured or is threatened with material injury, or the establishment of a US industry is being materially impaired for duties to be imposed.

Process

Any interested party representing a US industry may file petitions simultaneously with the US Commerce Department (DOC), which will examine the amount of dumping and/or subsidization, and the US International Trade Commission (ITC), which will examine the extent of the injury to the US domestic industry.  If the requirements are met, investigations are generally initiated within 20 days.  Petitions and investigations are product and country specific, which allows the remedy to be laser focused.  

The ITC will issue a preliminary determination within 45 days from initiation.  If the ITC determination is affirmative, the investigation will continue and the DOC will issue its preliminary determination within 65 (for subsidy investigations) to 140 (for dumping investigations) days and its final determination within 140 (for subsidy investigations) to 215 (for dumping investigations) days, both from initiation.  If the DOC final determination is affirmative, the investigation will continue and the ITC will issue its final determination within 45 days of the DOC final determination.  If affirmative, an order will be issued within 7 days from the date of the final ITC determination.  All of these deadlines can be extended under certain circumstances.  

Once an order is issued, it is eligible for review and adjustment annually by the DOC in a separate process with more extended deadlines.  DOC can also consider “changed circumstances” about an order’s continued application in a separate process.  Finally, under WTO rules and US law, both DOC and  the ITC must review the order every five years to determine whether dumping or subsidies and injury would likely resume or continue if the order is revoked. 

Remedy

The DOC is authorized to impose duties in  the amount of the “dumping” – i.e., the amount by which the price in the home market exceeds the price in the United States – or the amount of the subsidy.  This can be determined on an average or transaction basis, depending on the circumstances.  The complex methodology is spelled out in detailed regulations.

In addition to the imposition of duties, the DOC is also authorized to suspend an antidumping or countervailing duty investigation by accepting a “suspension agreement,” under which the exporters and producers or the foreign government agree to modify their behavior so as to eliminate dumping or subsidization or the injury caused thereby.  If accepted, the DOC will continually monitor compliance with the agreement.

WTO Rules on Antidumping, Subsidies and Countervailing Duties

All WTO members are signatories to WTO agreements that set forth the rules members must follow in applying AD/CVD determinations. Members must adjust their laws and implementation of those laws so that they are compliant with WTO rules. The WTO Antidumping Agreement, formally called The Agreement on Implementation of Article VI of GATT 1994,  sets forth very detailed rules for determining whether dumping has occurred and whether dumped imports have resulted in material injury or threat thereof to a domestic industry.  The WTO Agreement on Subsidies and Countervailing Measures governs which kinds of subsidies are prohibited under the WTO and must  be terminated or be subject to trade retaliation from the country harmed by the subsidy. It also delineates rules in countervailing duty cases for determining whether imports have been subsidized and whether they have resulted in material injury or threat thereof to a domestic industry.  US law was changed to comply with these agreements by the Uruguay Round Agreements Act, which went into effect on January 1, 1995. Among the more substantive WTO rule changes implemented under the URAA was a process calling for a “sunset review” of antidumping and countervailing duty orders every five years. Under the sunset review process, DOC determines whether dumping or countervailable subsidies would be likely to continue or resume if an order were revoked , and the ITC determines whether injury would be likely to continue or resume in the absence of an order. 

Example

AD/CVD rules are the first line of defense against what are determined to be unfair imports. As noted above, these measures are undertaken on a product- and country-specific basis so they can be narrowly focused on exactly which imports are injuring the US industry. They can also be paired with other orders to achieve broader coverage.

For example, there are currently 314 AD/CVD orders in force on iron and steel mill products, accounting for 46 percent of existing AD/CVD orders on all products. Product coverage includes basic steel mill flat products such as hot-rolled, cold-rolled and corrosion-resistant carbon steel, in coils or in sheets, strip or cut plates, as well as a broad range of stainless steel products. It also includes long products, such as bar, beams, rebar, wire rod and rails, both carbon and stainless. It also includes products manufactured from steel, such as pipe and tube, flanges, sinks and nails. In terms of country, China has the largest number of steel and related product coverage, currently 72 product-specific orders. China is followed by India with 36, South Korea at 31, Taiwan at 20, and Vietnam and Mexico, each at 10.

In another example, there are currently 13 AD/CVD orders in force on solar products. Product coverage includes crystalline silicon photovoltaic cells, whether or not assembled into modules, as well as other crystalline silicon photovoltaic products. Orders are in place on Cambodia, China, Malaysia, Taiwan, Thailand and Vietnam.

Antidumping and countervailing duty measures can be taken in concert with other trade actions to broaden the remedy. As discussed elsewhere in this article, quotas and tariffs have been imposed on steel products under a Section 232 action and on solar products under a Section 201 action.

What You Need To Know

  • AD/CVD Duties Are Assessed Retroactively.  This generally means that, if an order is in place, you will import your merchandise, post a cash deposit at a published duty rate and not know for up to several years if an additional or lesser amount will be required.  Reviews can be conducted annually to determine the assessment rate for the material that entered over the preceding year and to adjust the level of the cash deposit going forward.  If no review is requested, at a certain point the material will liquidate at the rate posted on entry.  Many importers unfamiliar with this process have been surprised by Customs bills for millions of dollars.  Because everything is made available to the public and importers are obligated to be informed before entering merchandise, there is no recourse at this point.  It is, therefore, critical to know what to expect before you import.

  • Duties and Tariffs Cumulate.  In most cases, duties and tariffs are imposed on an ad valorem basis and calculated based on the declared entered value of the merchandise on Customs import documentation.  Antidumping and countervailing duties, safeguard tariffs and other tariffs imposed pursuant to Section 232 or Section 301 all cumulate in addition to any normal duties that apply.

  • The Impact of Additional Import Duties Can Be Severe.  For foreign producers, AD/CVD duties can reduce or  cut off access to the US market, and opportunities to terminate an order at the ITC come only every five years.  For importers of record, an order can lead to a  very high bill. For end users, high dumping margins can raise prices and impact competitiveness.  High duties can also disrupt supply chains for end users.   Termination of an antidumping investigation is generally more likely in the injury phase of the investigation than at the DOC.  

  • US Exporters May Also Be Subject to Foreign Antidumping and Countervailing Duty Cases. While the United States was an early and frequent user of AD/CVD laws, the rest of the world has over time put in place their own such laws and procedures. The DOC cites existing orders against US exporters in 25  jurisdictions, with the most cases being brought against US exporters by China.  In all, DOC reports 37 jurisdictions with some combination of AD, CVD and safeguards laws.

  • Policy Priorities Sometimes Collide.  Sometimes the imposition of  import duties has an adverse impact on other trade priorities.  Such was the case with DOC findings of circumvention of AD/CVD orders on solar cells and modules from China.  

    DOC has the authority to extend AD/CVD duties imposed on imports from one country to imports from third countries when it finds that exporters are “circumventing” the original antidumping order through the third country.  DOC may find circumvention when merchandise subject to an existing AD/CVD order undergoes what is termed “minor alterations” in a third country and is then exported to the United States. 

    DOC determined in August 2023 that US imports of certain solar cells and modules that had been completed in Cambodia, Malaysia, Thailand or Vietnam, using certain parts and components from China and then subsequently exported from those countries to the United States, were circumventing the existing antidumping order on Chinese solar cells and modules.  DOC would normally have required importers of Southeast Asia-completed solar cells and modules to begin making cash deposits with US Customs immediately. 

    In this case, however, US solar energy providers were temporarily relieved of paying cash deposits and duties  due to an unusual intercession by the Biden Administration, which has made clean energy production a policy priority.  US-based solar energy producers complained that a circumvention order against the Southeast Asia-completed solar cells would leave them without an adequate supply of the solar panels and modules they needed for their solar-power generating facilities. In June 2022, two months following the initiation of the DOC’s circumvention inquiry, President Biden issued a proclamation declaring an emergency with respect to the availability of sufficient electricity generation capacity in the United States, pointing to an “acute shortage” of solar modules and module components that was putting near-term US solar capacity additions at risk.

    Noting that a high percentage of solar modules installed in the United States in recent years were imported from Southeast Asia, the proclamation ordered the Secretary of Commerce to consider permitting importation of solar cells and modules from the four countries free of the collection of cash deposits and duties for two years. DOC implemented the proclamation through a regulation providing that the duty waiver would apply only to imports that had been entered into the United States, or withdrawn from warehouse, for consumption before the date the proclamation would terminate, which was scheduled for June 6, 2024.  In addition, any imports subject to this waiver had to be used or installed in the United States within 180 days of termination.

    The proclamation met with a mixed reaction in Congress, depending in part on whether constituents were US solar panel manufacturers or US solar energy providers. In 2023, the US Congress passed a joint resolution disapproving the DOC regulation implementing the Presidential Proclamation, declaring that  “such rule shall have no force or effect.” The resolution was vetoed by President Biden and the Congress failed to override that veto. The proclamation was terminated on June 6 2024, at which time US Customs was to start collecting cash deposits on imports. based on the company-specific rate for the company in China that exported the wafers to the producer/exporter in Cambodia, Malaysia, Thailand, or Vietnam to be incorporated in the solar cells or solar modules and ultimately imported into the United States.

  • Participating in the Antidumping or Countervailing Duty Process.  Under US trade law, an “interested party” in an AD/CVD proceeding includes foreign producers and exporters, US importers,  US producers, US wholesalers and trade associations representing those groups, as well as the governments of foreign producers and exporters and US unions representing workers making the product.

  • At the DOC: It is critical that foreign companies  and their US importers chosen as mandatory respondents by the DOC take part in AD/CVD investigations and reviews, as the DOC will otherwise rely on “facts available” to determine the level of dumping, which almost always results in prohibitively high AD/CVD duties. The process is extraordinarily complex so it is prudent for those caught up in an investigation to seek professional representation.

  • At the ITC: Likewise, all interested parties – whether US producers, foreign producers, importers or purchasers – should take part in the ITC phase of AD/CVD proceedings, in which the ITC determines whether the imports subject to the investigation have caused or threaten to cause material injury to the domestic industry. 

    The ITC issues questionnaires to domestic producers, importers, purchasers and foreign producers of the covered product as part of its investigative process to gather data on which it will base its decision. Participation by US firms engaged in the production, importation or distribution of products subject to the investigation is mandatory,  and the ITC has subpoena power to enforce this requirement.  Moreover, it is particularly important for foreign exporters and US importers and purchasers to participate fully in the ITC process, including by testifying before the commissioners at the ITC’s public hearing.