Making Antidumping and Subsidy Orders More Effective: Lessons from Recent Appellate Court Decisions
July 18, 2019 by Geert De Prest

Attorneys drafting a petition's product scope face a trade-off. Broadly-worded scope descriptions are helpful to preserve an effective remedy that is resistant to circumvention efforts. Such broad descriptions, however, may also complicate obtaining affirmative injury determinations and may continue to generate product scope issues the outcome of which may be difficult to predict.  

President Trump Declares a National Emergency Regarding Threats Against Information and Communications Technology and Services in the United States; Commerce’s Bureau of Industry and Security (BIS) Adds Huawei to its Entity List
May 17, 2019 by Terence P. Stewart

On May 15, 2019, President Trump signed an Executive Order entitled “Securing the Information and Communications Technology and Services Supply Chain.” The Executive Order is numbered 13873, and was published in the Federal Register on May 17, 2019. 84 FR 22,689-22,692.

USTR Proposes to Impose Additional Duties of 25% on $300 Billion of Chinese Products, Seeks Public Comments, and Will Hold a Hearing
May 15, 2019 by

On May 13, 2019, the Office of the U.S. Trade Representative (USTR) posted a notice of a proposed modification to the actions it has previously taken in the Section 301 investigation of the acts, policies, and practices of the Government of China related to technology transfer, intellectual property, and innovation.

The WTO Panel Report on Article XXI and its Impact on Section 232 Actions

On Friday, April 5, 2019, a World Trade Organization (“WTO”) panel issued its report interpreting Article XXI of the 1994 General Agreement on Tariffs and Trade (“GATT 1994”) —the so-called “essential security exception”—in a dispute between Russia and Ukraine.

2019 - A High Stakes Year for U.S. Trade Policy and the Future of U.S. Trade Relations
February 19, 2019 by Terence P. Stewart

When President Trump became President in 2017, one of his first acts was to withdraw from the Trans-Pacific Partnership Agreement (TPP) that had been negotiated and signed by the Obama Administration.

China Update: Four Big Issues Impacting U.S. China Relations and China’s Economic Future
January 25, 2019 by Rui Fan

This trade flow provides updates on four critically important issues for U.S.-China economic relations and the Chinese economy: the U.S.-China trade dispute, China’s industrial excess capacity, the “Made in China 2025” initiative, and the Belt and Road Initiative.

Statutory Changes Enable the Commerce Department to Determine More Accurate Foreign Producer Costs in Antidumping Investigations
January 9, 2019 by Shahrzad Noorbaloochi and William A. Fennell

The Trade Preferences Extension Act of 2015 has granted the Department of Commerce (“Commerce”) increased authority to make adjustments to a foreign producer’s reported home market sales prices or production costs as “outside the ordinary course of trade” in determining whether the producer has been dumping such exports in the United States.

Determining a Product’s Country of Origin after Further Manufacture or Assembly in a Third Country for Purposes of Section 301 Tariffs
November 5, 2018 by Shahrzad Noorbaloochi and Jennifer M. Smith

In a recent ruling, United States Customs and Border Protection has determined that Chinese-origin goods that are assembled in and exported from a third country remain subject to Section 301 tariffs unless they have been “substantially transformed” in the third country.

Imports and National Security - An Update
October 24, 2018 by Terence P. Stewart and Shahrzad Noorbaloochi

Governments have many tools that they use to protect a nation’s security. In the United States, one can think of the traditional military action, diplomacy, export controls, sanctions, immigration controls, and border controls as among the tools that can be used to protect the homeland from various types of threats.

Will 2018 Go Down as the Year that Key WTO Members Abandoned Basic Commitments to WTO Obligations?
June 29, 2018 by Terence P. Stewart

The World Trade Organization (WTO) is in crisis in 2018, due to Member country discord. The various agreements that make up the WTO are mostly 25 years old and reform is needed. The negotiating function at the WTO, which requires consensus on major issues by 164 Member countries for progress, has proven incapable of addressing most of the issues confronting the system.

China, 301, and the Search for Reciprocity
April 25, 2018 by Terence P. Stewart

On April 25, 2018, the Global Business Dialogue held an event at the National Press Club titled, “Searching for Reciprocity: Section 301 and the Future of U.S.-China Trade”. In a paper prepared for the event, the author reviews the serious and longstanding U.S. concerns in areas such as forced technology transfer, discriminatory licensing restrictions on U.S. companies, outbound investments in strategic industries and cyberattacks, theft of intellectual property, and the Trump Administration’s investigation under section 301 of the Trade Act of 1974, as amended, of these practices and its conclusions on the same.

Findings by Commerce Secretary Ross That Imports of Steel and Aluminum Threaten National Security and Recommendations to the President to Address
February 20, 2018 by Terence P. Stewart

In a trade flow in April of last year, I reviewed the structure and process under Section 232 of the Trade Expansion Act of 1962, as amended, based on the Commerce Department’s initiation on April 19, 2017 of an investigation into imports of steel into the U.S. and their effect on national security. See A second 232 investigation was initiated one week later on April 26, 2017, on imports of aluminum into the U.S.

Safeguard Relief – An Integral Part of the Global Trading System
January 29, 2018 by Terence P. Stewart

At the beginning of the week, the President issued two Proclamations providing safeguard relief to the domestic solar cell industry and to the large residential washing machine industry. These Proclamations followed investigations by the U.S. International Trade Commission pursuant to section 201 of the Trade Act of 1974, as amended (19 U.S.C. 2251 et seq.), and subsequent interagency review of potential remedies and other issues.

Updated USTR NAFTA 2.0 Negotiating Objectives Released November 17, 2017 -- What’s New?
November 21, 2017 by Terence P. Stewart

The United States is conducting trade negotiations with Canada and Mexico to update and modify the North American Free Trade Agreement under trade promotion authority authorized pursuant to the Bipartisan Congressional Trade Priorities and Accountability Act of 2015.

Safeguard Petition from Solar Cell and Module Producers Comes Up for a Vote at the U.S. International Trade Commission on September 22
September 14, 2017 by Terence P. Stewart

The Section 201 safeguard provision of U.S. trade remedy law has been rarely used over the last decades. After roughly fifteen years, new matters are before the U.S. International Trade Commission. A case on Crystalline Silicon Photovoltaic Cells and Panels is up first, with a vote on injury on September 22. Global excess production capacity of these solar products has led to a collapse in global prices and the elimination of a large part of the U.S. industry In a new Trade Flow article, Managing Partner Terence Stewart discusses safeguards, this case and possible remedies that may result from an affirmative determination.

USTR’s 301 Investigation on China’s Acts, Policies and Practices Related to Technology Transfer, Intellectual Property, and Innovation – An Important Opportunity to Address Long-Standing Distortions in our Bilateral Relationship
August 21, 2017 by Terence P. Stewart

President Trump signed a Presidential Memorandum to the U.S. Trade Representative on August 14, 2017 directing the USTR to determine “whether to investigate any of China’s laws, policies, practices or actions that may be unreasonable or discriminatory and that may be harming American intellectual property rights, innovation, or technology developments.” 82 FR 39,007 (August 17, 2017).

Terence P. Stewart files comments to USTR responding to the Executive Order regarding trade agreements violations and abuses
July 28, 2017 by Terence P. Stewart

President Trump has issued a series of Executive Orders in the trade area, some of which require studies to facilitate a consideration of issues to be addressed in U.S. trade policy in his Administration.

Imports of Steel into the United States and their Effect on National Security (Updated)
April 20, 2017 by Terence P. Stewart

The U.S. steel industry has been hard pressed by dumped and subsidized imports for many decades causing the closure of many plants and the loss of thousands of good paying jobs.

Issues for Businesses to Consider Should the Incoming Administration Choose to Address the Trade Deficit in Part Through Trade or Tax Actions
December 29, 2016 by Terence P. Stewart

During the campaign, now President-elect Trump identified a variety of actions that might be taken if he were President to address the nation’s trade deficit and hence restore manufacturing jobs at home. These include various actions (renegotiation, withdrawal) with regard to existing or negotiated but not yet implemented trade agreements, additional duties on imports from certain countries, increased pursuit of disputes with trading partners who are not fulfilling existing obligations, addressing currency manipulation, and strong enforcement of existing laws providing individual industries and their workers remedies for unfair trade practices.

U.S. Customs and Border Protection’s New EAPA Investigations into Evasion of U.S. Antidumping and Countervailing Duty Orders
October 6, 2016 by Nicholas J. Birch

Domestic producers and importers in the United States have had concerns for many years that some importers have gained an unfair advantage in the market by illegally evading U.S. antidumping and countervailing duty orders on certain imported products.

Lessons from the Antidumping and Countervailing Duty Investigations on Passenger Vehicle and Light Truck Tires from China
July 16, 2015 by Terence P. Stewart

The United Steelworkers (“USW”) recently petitioned for relief under U.S. antidumping and countervailing duty laws on imports of passenger vehicle and light truck tires from China. It was the first antidumping and countervailing duty case that had been brought in a very long time by workers without co-petitioner support by one or more of the managements of the domestic producers.

Will Congress Address Antidumping and Countervailing Duty Evasion Problems as Part of Any Trade Promotion Authority Legislative Package?
November 25, 2014 by Terence P. Stewart

During 2014, much of the business community sought, and continues to seek, enactment of Trade Promotion Authority (“TPA”) to permit the Administration to obtain the best market opening commitments from trade partners in the ongoing Trans-Pacific Partnership (“TPP”) talks with eleven trading partners (Australia, New Zealand, Brunei Darussalam, Malaysia, Vietnam, Japan, Singapore, Peru, Chile, Canada, Mexico) and with the European Union in the ongoing Transatlantic Trade and Investment Partnership talks.

Surging Steel Imports Put Jobs at Risk
May 13, 2014 by Terence P. Stewart and Elizabeth J. Drake

In a new report released today, Stewart and Stewart and the Economic Policy Institute reveal how a growing glut of worldwide steel production is plunging the U.S. steel industry into crisis.

How Trade Rules Can Help Level the Export Financing Playing Field: New Developments and a Path Forward for 2013
November 16, 2012 by Elizabeth J. Drake

At the end of this month, two key events in the continuing effort to discipline subsidized export financing by the Government of China will occur. First, the U.S. will, for the first time, impose countervailing duties on imports from China to offset export credit subsidies provided by the China Export-Import Bank (“China Ex-Im”). The export credit program will account for the majority of countervailing duties imposed on imports of solar panels from China, due to the Chinese government’s refusal to share China Ex-Im data with the U.S. during its investigation. Second, also at the end of this month, the Treasury Department will report to Congress on progress in negotiations with China and other countries to limit export credit subsidies. This will be the first such report since the U.S. and China announced new negotiations on export financing earlier this year, with the goal of reaching an agreement by 2014.

Trade Law Improvements under the President’s National Export Initiative: An Update on Our April 20, 2012 Status Report
August 10, 2012 by William A. Fennell

As part of the President’s National Export Initiative, the Commerce Department announced its intention of strengthening U.S. Trade Laws on August 26, 2010. It identified fourteen different changes that it intended to make in its administrative practices.

Trade Law Improvements under the President’s National Export Initiative: A Status Report
April 20, 2012 by Terence P. Stewart, Patrick J. McDonough and William A. Fennell

As part of the President’s National Export Initiative, the Commerce Department announced its intention of strengthening U.S. Trade Laws on August 26, 2010. It identified fourteen different changes that it intended to make in its administrative practices. These are meant to improve the accuracy and efficacy of its administration of the trade laws.

Trade-Related Elements of Job Losses in America Presentation at 2nd Annual Conference on the Renaissance of American Manufacturing
March 27, 2012 by Terence P. Stewart

The United States has lost millions of manufacturing jobs in recent years. While these job losses flow in part from the most severe recession since the Great Depression, a host of trade-related problems, both internal to the U.S. and external in terms of trade actions by our trading partners, have contributed significantly to the weakening of our manufacturing base.

New Law Preserves Vital U.S. Countervailing Duty Laws Against China and Vietnam
March 13, 2012 by Terence P. Stewart

On March 13, 2012, the President signed H.R. 4105, authorizing the United States to continue to impose countervailing duties on subsidies from non-market economies (“NMEs”) The law was passed by both the House of Representatives and the Senate the prior week (in the House by a vote of 390 – 37; in the Senate by unanimous consent).

A Road Forward for Domestic Industries and Their Workers after New Rule Weakens U.S. Dumping Law
February 21, 2012 by Terence P. Stewart and Patrick J. McDonough

The Obama Administration’s announcement that it has reached agreement with the European Union (EU) and Japan to end the use of “zeroing” in antidumping reviews, coupled with actions implementing the agreements (publication of the February 14, 2012 Commerce Department change in practice) and the work that will be undertaken on specific orders for specific companies to revise cash deposit rates based on the change, will result in the significant weakening of a major U.S. trade remedy for many domestic industries and their workers suffering from injurious international price discrimination.

WTO Appellate Body Upholds U.S. Safeguard against Imported Passenger Car and Light Truck Tires from China – Confirming the Importance of Self-Help for Injured Industries and Workers
September 8, 2011 by Terence P. Stewart, Amy S. Dwyer and Elizabeth J. Drake

The September 5th World Trade Organization Appellate Body report in US – Tyres (China), WT/DS399, affirmed the right of the United States faced with market disruption from surging imports from China to make use of a special transitional safeguard China accepted as part of its accession protocol to the WTO in 2001. For the industries and their workers who have sought relief under the U.S. law implementing this right (Section 421 of the Trade Act of 1974, as amended (19 U.S.C. § 2451)), it was a vindication of the correctness of their cause.

Preventing the Next Solyndra How to Create a Level Playing Field for America’s Solar Industry
September 2, 2011 by Terence P. Stewart and Elizabeth J. Drake

On August 31, 2011, Solyndra, Inc., a U.S. solar company that had received hundreds of millions in government-backed loan guarantees and employed more than a thousand American workers, announced it was entering bankruptcy and closing its doors. Solyndra was the third solar company to declare bankruptcy last month, following close on the heels of Evergreen Solar, Inc. and SpectraWatt Inc. While some news reports and commentators suggest the bankruptcies call into question the wisdom of U.S. government support for the solar industry, others rightly note that competition with more aggressively subsidized Chinese manufacturers has played a major role in the industry’s plight.

U.S. Faces Important Choices after WTO Appellate Body Ruling on Trade Remedies for Dumping and Subsidization by China
March 15, 2011 by Elizabeth J. Drake

On March 11, 2011, the Appellate Body of the World Trade Organization (“WTO”) issued its decision in a challenge brought by the Government of China to several antidumping (“AD”) and countervailing duty (“CVD”) investigations conducted by the United States. The decision reversed a couple key aspects of an earlier WTO panel decision that had largely upheld the manner in which U.S. trade remedy laws had been applied to China. The United States now has several options before it in light of the Appellate Body’s ruling.

Impacts of IP Violations in China on U.S. Companies and Competitiveness Explored in New ITC Report
December 15, 2010 by Terence P. Stewart and Elizabeth A. Argenti

In 2009, China accounted for 79% of all Customs seizures of IPR-infringing goods in the U.S. - creating deep concerns within our companies about lost sales, depressed prices and profitability, and new competitors selling these illegal items

Vigorous Enforcement of U.S. Trade Laws: The Need Has Never Been Greater
April 27, 2010 by Terence P. Stewart

With extraordinarily high levels of unemployment and pressing challenges to the stability of our economy, Congress and the Obama Administration need to stay focused on these major trade challenges both at home and abroad.

The Section 421 Tire Case: A Win for the Rules-Based Trading System
September 18, 2009 by Eric P. Salonen

On September 11, 2009, President Obama granted relief under the China-specific safeguard created in 2000 as part of China’s accession to the World Trade Organization. Though seven cases have been pursued under Section 421, and the independent, bipartisan International Trade Commission (“ITC”) recommended that import relief be imposed in five of those cases, the tires case is the first in which the President has agreed to apply a remedy.

Withdrawal of Tolling Regulations in Antidumping Proceedings
June 17, 2008 by Nazak Nikakhtar

The Commerce Department is revoking an eleven-year-old regulation that was supposed to clarify analysis in dumping cases in which manufactured products were subcontracted to another company. Commerce determined that the regulation ended up impeding its discretion and making it harder for domestic industries to get relief when goods are “sold at less than fair market value” (or “dumped”) in the U.S. market.

U.S. Customs and Border Protection Elevates AD/CVD Enforcement to a Priority Trade Issue
April 4, 2008 by William A. Fennell

The U.S. Customs and Border Protection (CBP) announced on Thursday, April 2, that it was elevating the collection of antidumping (“AD”) and countervailing (“CVD”) duties to a “priority trade issue.” Antidumping duties are imposed on imports that have been sold in the U.S. at less than fair value, i.e., for less than they are sold in their country of production or at prices below cost. Countervailing duties are imposed on imports that have been subsidized by the government in their country of production.

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