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.

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.

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. 

deKieffer & Horgan, PLLC attorneys work with clients in all stages of antidumping and countervailing duty 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 have represented both petitioners and respondents and 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.

deKieffer & Horgan, PLLC’s experience in antidumping investigations stretches back more than thirty years.  Its antidumping group is composed of attorneys who have clerked at the Court of International Trade, served in the agencies responsible for administering the antidumping laws, produced scholarly and practical publications on antidumping, and, most important, successfully represented hundreds of companies in antidumping investigations.

RELEVANT PUBLICATIONS AND PRESENTATIONS BY D&H ATTORNEYS

John J. Kenkel, U.S. Antidumping Law, seminar given to Vietnam Chamber of Commerce (2008).

John J. Kenkel, How the U.S. Antidumping Law is Implemented Against Chinese Exports, seminar given to Law Society of Hong Kong (2007).

John J. Kenkel, Nuts and Bolts of A U.S. Antidumping Investigation, seminar given to Chinese exporters of wooden bedroom furniture on the U.S. antidumping investigation of their exports (2004).

John J. Kenkel, Application of the U.S. Antidumping Law, seminars given to the Government of Taiwan (2002-2003).

John J. Kenkel, How to Participate in an Antidumping Investigation, given to Chinese exporters of ball bearings (2002)

J. Kevin Horgan, Antidumping Duties, U.S.  Taxation of International Operations (Boston: Warren, Gorham & Lamont, 1996) (chapter in treatise).

J. Kevin Horgan, Subsidies and Countervailing Duties, U.S.  Taxation of International Operations (Boston: Warren, Gorham & Lamont, 1996) (chapter in treatise).

J. Kevin Horgan, Dumping and Government Subsidies: The Remedies Available under Domestic and International Trade Law, Washington Legal Foundation, Contemporary Legal Notes, Series No. 14 (March 1995).

Gregory S. Menegaz, Amendments to Anti-Dumping Law are Debated, National Law Journal (Nov. 14, 1994) (with Lawrence Walders).

J. Kevin Horgan, U.S. Rules of Origin:  An Introduction to the High Stakes and Peculiar Rules for Determining the Origin of Imported Merchandise, Corporate Counsel’s International Adviser, Issue No. 94 (March 1993).

J. Kevin Horgan, The Impact of Interlocutory Judicial Decisions Upon Anti-Dumping and Countervailing Duty Proceedings, 3 Florida International Law Journal No. 2 (Spring 1988).

Donald E. deKieffer, When, Why and How to Bring A Countervailing Duty Proceeding:  A Complainant's Perspective, 6 North Carolina Journal of International Law and Commercial Regulations (Summer 1981).

Donald E. deKieffer, Antidumping, Countervailing Duty Laws and Section 337 - A Private View, Fifth Annual Fordham Corporate Law Institute:  International Antitrust; Law & Business Inc. (Harcourt Brace Jovanovich, 1979).

Donald E. deKieffer, How to Prepare an Antidumping Complaint, Law Notes (Spring 1973).

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