Under U.S. law, dumping exists when imports of a product are sold in the United States at “less-than-normal value” and such sales are causing or threaten to cause “material injury” to a competing U.S. industry.
The U.S. Department of Commerce (“DOC”) determines the less-than-normal value issue in such disputes, and the U.S. International Trade Commission (“ITC”) determines the injury issue. ECS has unparalleled experience in proceedings at both agencies.
ECS also has extensive experience in both “less than normal value” and “material injury” proceedings in non-U.S. jurisdictions, which are governed by local-country regulations developed in keeping with the agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (more commonly known as the World Trade Organization ("WTO") Antidumping Agreement or 1994 Antidumping Agreement),
“LESS-THAN-NORMAL VALUE” ANALYSIS
Generally, the DOC determines that an import is being sold at less-than-normal value if its U.S. price is below the price of a comparable product sold in the exporter’s home market, or if its U.S. price is below its cost of production plus normal profit. ECS can assist petitioner or respondent clients in all phases of a less-than-normal value proceeding. Typical cases involve a comparison of the appropriately adjusted export price to the United States with the adjusted home market selling price (the product’s "normal value").
Working on behalf of domestic producers, ECS gathers the data and perform the analysis needed to support a less-than-normal value allegation. ECS’ network of correspondent firms in more than 50 countries can assist with fact gathering and provide private local advisory services. As a case proceeds, ECS reviews and critiques respondent submissions for compliance with DOC regulations, accuracy, and appropriate financial analysis.
Acting on behalf of respondent firms, ECS assists in all aspects of the defense against an antidumping allegation, including the preparation of extensive sales and cost data responses that the DOC may require. ECS identifies and executes the optimal strategy for gathering the large amounts and diverse types of company data that are needed. Working on site, ECS facilitates the collection and integration of information commonly required from a company and its subsidiaries’ sales, financial, and other databases. ECS has performed these functions in many countries with diverse accounting and record-keeping systems. Using its advanced computer systems, ECS compiles a respondent’s data in the appropriate format for formal submission to the DOC. Preparing such data frequently requires judgments about complex cost allocation issues. ECS has the detailed knowledge of U.S. law, DOC regulations, and accounting required to address these allocation issues and to work with counsel to identify the best solutions.
ECS is the leading economic consulting firm assisting companies and industries in the prosecution or defense of "injury" cases before the ITC. Using its economic and financial expertise, ECS helps clients and their legal counsel design and execute case strategy. Recognizing the particular perspectives of the ITC, ECS also helps clients gather and prepare the data they need to respond to producer, importer, or foreign producer questionnaires. Success in an injury case before the ITC also hinges on the effectiveness of several types of specialized economic and financial analysis, which determine the presence of material injury and whether the injury is caused by the imports under investigation. ECS has developed effective and creative ways to present these analyses to the ITC. ECS frequently provides expert testimony before the ITC and responds to Commissioners’ questions about the complex economic and financial issues that typically arise.
MANAGEMENT AND CONTROL OF ANTIDUMPING DUTY LIABILITY
ECS helps foreign producers develop strategies to maximize their access to the U.S. market after an antidumping case is filed, in the event the filing of a case is anticipated, or after an antidumping order has been imposed. Working closely with the client, ECS uses its in-depth knowledge of U.S. antidumping regulations and DOC margin-calculation methodologies to construct a computer model that provides dumping margins and potential duty liabilities for both current and anticipated sales under various scenarios. ECS also provides clients with detailed pricing guidelines for export and domestic sales that, when implemented, will minimize or eliminate antidumping duty liabilities. In addition, ECS analyzes a client’s sales and cost information to identify key factors driving the client’s overall antidumping duty liability. Collectively, ECS’ margin management and control programs can significantly reduce a foreign producer’s vulnerability to antidumping duty liabilities and restore the producer’s competitive position in the U.S. market.
Preliminary Trade Action Analysis
ECS prepares customized Preliminary Trade Action Analysis reports on behalf of its clients. For non-U.S. producers, exporters, and U.S. importers, these reports provide an assessment of the likelihood of a trade action by a particular U.S. industry. In making this assessment, ECS evaluates each of the economic indicators that are routinely considered by the U.S. ITC. These reports look at U.S. industry characteristics, trends in the U.S. market, financial condition of the U.S. industry, product differentiation of the merchandise in question, likely target countries, and timing (including potential “trigger events”), as well as identifying next steps for the client to take. In preparing our assessment, ECS weighs the indicators that point both affirmatively and negatively to the filing of a case. Phase I reports generally use publicly available information to assess the likelihood of a case. Phase II reports incorporate proprietary client information to refine the analysis and provide more specific indications about preparing to respond to such a case, should it be filed. Preliminary Trade Action Analysis reports are also prepared on behalf of domestic industries who are considering filing a trade case; this exercise can be the part of the preliminary effort in preparing an antidumping petition.
ECS advises and assists countries that are conforming their international trade regulations to World Trade Organization (WTO) standards. In this capacity, ECS has used its technical expertise to help foreign governments apply their antidumping regulations in a manner consistent with the 1979 General Agreement on Trade in Goods and Services and the 1994 Antidumping Agreement. ECS has advised and assisted foreign governments in the following areas: a restatement of antidumping policies from those embodied in the 1979 Agreement to those of the 1994 Antidumping Agreement; procedures for gathering information to be used in antidumping proceedings; auditing and verification practice and procedures; and technical advice in the interpretation of the 1994 Antidumping Agreement.