Antidumping and Counterveiling
Duty Law
Broadly speaking, a foreign company “dumps” its
merchandise in the United States if it sells merchandise for
export to the United States at prices that are lower than the
prices charged by the company for the same merchandise in its
home market. 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 the U.S. industry.
If DOC and the ITC make affirmative findings of dumping and
injury, DOC will publish an order imposing 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. 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.
deKieffer & Horgan works with clients in all stages of antidumping
and countervailing duty cases, including investigations, administrative
and sunset reviews, and appeals to the Court of International
Trade and the Court of Appeals for the Federal Circuit. We represent
both petitioners and respondents and handle both the DOC and
the ITC phases of these cases. In addition, we counsel foreign
clients and their importers on practices that will keep them
from becoming the target of an antidumping or countervailing
duty investigation, and we assist them in structuring their U.S.
sales to permit the foreign suppliers to reenter the U.S. market
if they have been forced out in the wake of such an investigation.
Finally, so-called sunset reviews are reviews of antidumping
and countervailing duty orders that are conducted every five
years by the DOC and the ITC to determine whether the order could
be terminated without injury to the U.S. industry by reason of
continued dumping or subsidization of the foreign industry subject
to the order.
Protection of U.S. Trademarks,
Patents, and Copyrights from Infringing Imports
Section 337 of the Tariff Act of 1930 makes it unlawful to import
articles into the United States that infringe a valid and enforceable
U.S. patent, trademark, or copyright or that are imported pursuant
to “unfair methods of competition and unfair acts.” Subsection
(a)(1)(A) can be used as the legal vehicle for other intellectual
property-based causes of action (e.g., trademark dilution, misappropriation
of trade dress, misappropriation of trade secrets), as well as
for tort-based causes of action targeting the types of illegitimate
conduct that sometimes accompany unfairly traded imports (e.g.,
breach of contract, tortious interference with a contract or
license, fraudulent inducement to breach (or to enter into) a
contract or license, and fraud). In certain circumstances, Section
337 can provide a particularly cost-effective means for a U.S.
trademark holder to combat gray market imports.
Section 337 investigations are conducted by the International
Trade Commission. If the Commission finds a violation of the
intellectual property right or an unfair trade practice, it may
issue an exclusion order barring future imports of the infringing
or unfairly traded product and/or a cease and desist order prohibiting
sales of such merchandise that has already been imported into
the United States. Enforcement of the Commission’s orders
is the joint responsibility of the U.S. Customs and Border Protection
Department and the Commission.
deKieffer & Horgan’s experience in Section 337 investigations
stretches back more than twenty-five years. In that time, deKieffer & Horgan’s
attorneys have represented both complainants and respondents
in Section 337 investigations. The experience that deKieffer & Horgan
brings to Section 337 investigations is enriched by Don deKieffer’s
service as General Counsel of the Office of the U.S. Trade Representative
from 1981 through 1983; for the Office of the USTR, acting on
behalf of the President, reviews all affirmative final determinations
in Section 337 investigations to ensure that the remedy recommended
by the Commission is consistent with U.S. trade policy goals.
deKieffer & Horgan stands ready to assist clients wishing
to bring a Section 337 investigation to protect their intellectual
property or other trade-related rights, as well as clients named
as respondents in such investigations.
Assistance to U.S. Companies
Competing in Foreign Markets
Section 301 of the Trade Act of 1974 authorizes the United States
Trade Representative (“USTR”) to provide assistance
to U.S. companies that are hindered from doing business in foreign
markets by reason of the unfair acts or practices of a foreign
government. If USTR cannot negotiate removal of the alleged foreign
trade barrier, USTR is authorized to take retaliatory action
against the offending country. The forms of retaliatory action
contemplated by section 301 include withdrawing benefits of trade
agreements from the offending country, imposing duties or other
import restrictions on the goods of such country, or entering
into agreements with the foreign country for the purpose of eliminating
the offending action or providing the United States with certain
compensatory trade benefits.
Safeguard Relief from Import Competition
U.S. industries that are suffering from competition with 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.
deKieffer & Horgan has extensive experience in representing
companies in such safeguard actions, including the safeguard
action imposed by the U.S. government on imported steel products
in 2000. |
