QUÁCH YẾN NHI-CLC38B-RE-SUBMIT ANTI-DUMPING LAW'S EXERCISE

MINISTRY OF EDUCATION AND TRAINING UNIVERSITY LAW HO CHI MINH CITY CLASS:CLC38B FULL NAME QUÁCH YẾN NHI STUDENT’S CODE 1353801014146 QUESTION: AD IVESTIGATION PROCESS IN THE US REGULATIONS: IMPLICATION TO VIETNAM To have a general view about the AD investigation process in the US regulations, first, we have to understand about the length of time to investigate a dumping circumstance This is the time when the competent authorities of the country which has the imports suspected dumping deploy all the procedures to collect evidences, examine information provided by parties Therefore, this period is started when the competent authorities of the country which has the imports suspected dumping make a decision to handle the dumping case after (i) the point of time receiving appropriate petitions or when the competent authorities decide to sue themselves, (ii) until the authorities initiate one of two decisions which is decision about ending investigation or decision about applying anti-dumping ordinance Under Art 5.10 ADA, the length of time of investigation commonly lasts about 12 months, but in special circumstances, the parties are able to extend the time no longer than 18 months Second, about the phase of the investigation, this is the period of time taking place all the activities about importing goods from the foreign industries It is started when the petitions about proposing dumping investigation were submitted Under US legislation, there are two phase of the investigation First, the phase of investigation about dumping commonly lasts 12 months backward from the point of time petitions were submitted If the goods were exported from NME countries, this phase will be reduced, so this phase for NME countries is 06 months Second, the phase of investigation about injuries is 03 years backward from the point of time petitions were submitted The process of AD investigation in US regulations is The petitions were submitted Initiating investigation DOC’s decision of preliminary investigation ITC’s decision of preliminary investigation DOC’s decision of final investigation ITC’s decision of final investigation The time of six steps to investigation dumping: The phase The petitions were submitted Initiating investigation ITC’s decision of preliminary investigation DOC’s decision of preliminary investigation DOC’s decision of final investigation ITC’s decision of final investigation The time (*) 20 days from (*) (be able to extend in the special cases) 45 days from (*) 140 days from the day initiating investigation (be able to extend in the special cases) 75 days from the day when the preliminary investigation is began (be able to extend in the special cases) (**) 45 days from (**) • Initiating investigation Within 20 days (can be extended), DOC will undertake a review of the initial issue of the petitions to decide whether to accept the complaint and initiated anti-dumping investigations or not The review "pre - proceedings" of the DOC against the claim in this period mainly focused on two basic issues: - The adequacy (compared with the technical requirements prescribed by law) of the claim (this is mandatory factors to consider) 1; - Status of the plaintiff's lawsuit (only considered when there is a complaint about the issue of the defendant) under § 212 Uruguay Agreement round Act Plaintiff is considered eligible to sue when2: - The petition must receive the support of domestic producers accounting for the minimum 50% of the total output produced by SPTT total manufacturers have expressed is (approval or objection) on the investigation; 1Chamber of Commerce and Industry of Vietnam and The Advisory Council on the trade defense measures , Handbook appeal and anti-dumping in the United States, p 30 2Lê Thị Ánh Nguyệt, US Anti-dumping Law and affection to Vietnam, Pub National University, p 171-172 - The producers endorsed the investigation accounted for at least 25% of total output like products in the domestic industry made • Preliminary investigation The table of summary about preliminary investigation3 Element Preliminary Preliminary investigation investigation of injuries of dumping The investigation agency ITC DOC The purpose of investigation Preliminary Preliminary determination determination on whether on whether the sale with the US industry has dumping price occurred or damages or not not Result of investigation Affirmative/Negative Affirmative/Negative Consequences of If the ITC concludes that it has damages, the investigation investigation will continue even if the DOC had conclusion before that If ITC concludes negative result about the damages, the investigation will end no matter how DOC concluded before Conclusions of both the DOC and the ITC could lead to the application of temporary measures • ITC’s preliminary investigation period Within 45 days from the date the petitions were submitted, the International Trade Commission (ITC) will have preliminary conclusions about the damage that manufacturing liked products in the United States suffering This 45-day time limit is no extension If the ITC confirms that it has preliminary damages, the investigation will be continuing Conversely, if ITC’s preliminary decision is negative, the investigations terminated immediately in both DOC and ITC Preliminary investigation procedures on the ITC's injury is relatively simple: 3Id 1, p 36 - After about 01 week of receiving petitions (sometimes only 01-02 days), ITC will announce the schedule of preliminary investigation of the damage on the Federal Register; - A hearing between ITC’s staff (rather than the ITC commissioners who voting decisions) with the parties (both plaintiff and defendant in the lawsuit) will be performed In the course of the hearing, the parties may submit arguments and information to convince members of the ITC; - ITC sent the questionnaire to the members of the domestic manufacturing industry of the United States, to the importers and foreign exporters to collect information necessary for the decision of the ITC Activity 1: ITC sent questionnaires4 To find information, ITC will send questionnaires to survey parties However, different from the questionnaires of the DOC, the ITC’s questionnaires focused on the understanding of the situation of domestic manufacturing industry of the United States in investigation period So all questionnaires mainly concentrate on the USA domestic manufacturing industries (plaintiff) and US importers Activity 2: Find information from other sources5 Besides gathering information through questionnaires, ITC also uses other forms of investigation to gather information The most common form is calling ITC staff will try to make as much as possible the calls to the customers to determine whether they make decisions to buy products which were imported/exported or domestic products like products However, ITC will collect relevant information from different sources Id 1, p 39 Id 1, p 40 Activity 3: The meeting with investigators (Staff Conference)6 Meeting with investigators is a mandatory procedure in the process of preliminary investigation of the ITC At the meeting, the parties may present their views, arguments for ITC staff in charge The goal is to understand the content / subject matter of the investigation Typically, each party (plaintiff and defendant) will have one hour to present his arguments The parties may also bring witnesses to present (but not be confronted with witness of the other parties) After or during the presentation of each party, ITC staff can ask both parties to clarify the various issues related to the investigation Activity 4: The presentations submitted after meeting officials7 After the meeting, the parties may submit the post-conference submission to supplement the arguments and relevant information The time limit for the parties to submit this presentation is about 01 week after the meeting This argument is an opportunity for the defendant can: - To attract the attention of the ITC staff on the basic of their argument against another; - Presentation of evidence as a basis of their argument So this is a good opportunity for defendant to convince ITC Activity 5: Informal consultations with ITC staff8 After submission of the official argument, the parties still have a chance to consultations with the investigating officers They may ask about different issues and help them clarify any unclear issues 6Id 1, p 41 Id 1, p 42 Activity 6: ITC staff report ITC staff conducted a review of the arguments, gather all relevant information and prepare a preliminary report sent ITC Commissioners This report has content focused on the preliminary determining the fundamental problem of the investigation, including: - Definition of the product under investigation; - The trend in imports on the domestic market and the United States; - The states of the domestic industry in US This report will be submitted to the Commissioner of the ITC and is the basis for the Commissioner of the preliminary decision about the injuries Activity 7: ITC preliminary decision9 ITC's preliminary decision is issued within 07 days from the date of receiving the report or 07 days before the expiry of the preliminary survey of injuries Specifically, the ITC Commissioners will vote on whether or not there is significant damages If the votes are equal (eg: votes in favor, votes against), the ITC considered decision confirmed damage Based on the results of this vote, the ITC staff will prepare the decisions Finally, the ITC's preliminary conclusions will be published in the Federal Register • DOC’s preliminary investigation period Within 160 days from the date the petitions were received, the DOC will conduct a preliminary investigation to determine whether the imports dumping or not In especially complex case or if the plaintiff has the request, the deadline may be extended to 210 days (for anti-dumping investigations) This extension, if any, the DOC must notify to all the parties prior to the expiration prescribed DOC's investigation procedures in this process include: Id - DOC sent detailed questionnaires investigation (usually a short time after DOC initiated an investigation notice) to the manufacturer, the foreign exporters; - Manufacturers, exporters answered questionnaire survey in 30 days (45 days if it is extended, and often is not extended unless the manufacturer, foreign exporters are given good reason to renew) (eg: response time of questionnaires period coincides with the end of the fiscal year, or stay under specified) after receiving the questionnaire survey; - Based on the questionnaire has been answered, the DOC will proceed the additional questions, if any - DOC may conduct field verification to determine verifiable information declared in the questionnaires After performing the preliminary investigation procedure, the DOC will review and make a preliminary conclusion on whether having dumping behavior or not (through calculations determining the dumping margin) Specifically, if the DOC calculated the dumping margin is equal to or above 2%, the conclusions would be "confirmed" dumping (affirmative determination) If the calculated dumping margin is less than 2%, then the conclusions will be "negative" - no dumping The consequence of the state decision of the DOC is that the importers must pay bonds/deposits by cash for their goods depend on expected average dumping margin and ITC must invest the final injuries If the DOC concludes that this is the critical circumstances, the DOC may apply import suspension • DOC’s final investigation decision The DOC has to determine final investigation decision about the price of the imports below the equal price within 235 days after the date the petitions submitted This period can extend if it has the appropriate requests The investigation will end when the DOC has the negative conclusion about dumping Therefore, all the suspension measures will be stopped In contrast, if the DOC’s conclusion is affirmative, DOC will release the cessation decision of importing and apply the deposit, or other measures and waiting for the notice of the ITC about decision of injuries • ITC’s final investigation decision Within 280 days after the petitions were submitted, ITC has to conclude about the final injuries If the ITC’s conclusion is affirmative, the DOC will apply anti-dumping ordinance • Implication to Vietnam: First, about the investigation dumping case, there are investigation about dumping and investigation about injuries Vietnam Competition Authority (VCA) is in charge to invest both of dumping and injuries This may lead to the overload situation for VCA if it has a complex case Therefore, the resolution for this issue is that the Government could divide VCA into two separately branches which one is concentrating on investigating dumping and which one is concentrate on injuries just like DOC and ITC Second, Vietnam’s legislation has not defined mechanism for resolving conflicts between conclusions investigation and decision of the Council of treatment We could resolve this issue by applying experience of US Anti-dumping Law If the ITC concludes that it has damages, the investigation will continue even if the DOC had conclusion before that If ITC concludes negative result about the damages, the investigation will end no matter how DOC concluded before Conclusions of both the DOC and the ITC could lead to the application of temporary measures Finally, it is the issue of time of the last decision of the Minister The time limit for final decision of Minister since the final conclusions or decisions of the Council handling is not specified In other countries, as well as the number of procedures for agencies involved in the investigation and the conclusion of the case is not as complicated as Vietnam deadline decision should be provided specific and often long Under US law, the period of 07 days from the date DOC received ITC's conclusions about the existence of damage, or threats of damage The law set a time period provisions for the Minister to issue a decision on the matter is necessary to help resolve the controversy quickly accepted, prevent soaking cases is always controversial topic in the dispute settlement procedures and resolving the complaints of the people  ... Advisory Council on the trade defense measures , Handbook appeal and anti-dumping in the United States, p 30 2Lê Thị Ánh Nguyệt, US Anti-dumping Law and affection to Vietnam, Pub National University,... review of the initial issue of the petitions to decide whether to accept the complaint and initiated anti-dumping investigations or not The review "pre - proceedings" of the DOC against the claim in... initiate one of two decisions which is decision about ending investigation or decision about applying anti-dumping ordinance Under Art 5.10 ADA, the length of time of investigation commonly lasts about