An anti-dumping investigation is usually commenced by a United States producer (or several producers) filing a petition simultaneously with the Commerce Department and the International Trade Commission. Under the law, the Commerce Department has the responsibility for formally initiating the United States Government's anti-dumping investigation.

 

Once the petition has been filed, the Commerce Department has 20 days to assess the accuracy and adequacy of information contained in the petition and to determine whether the petition 'alleges the elements necessary' to justify initiating an anti-dumping investigation. The Commerce Department must make this determination, however, only on the basis of 'sources readily available' to it; it may not solicit or accept information from parties other than the domestic industry or domestic unions concerning the adequacy of the petition.

 

In addition to determining whether the petition sets forth the requisite elements of an anti-dumping case, the Commerce Department must determine whether the petition has been filed 'by or on behalf of a domestic industry producing a like product. This requirement — often referred to as the 'standing' issue —was not specifically defined in United States law until 1995, when it was incorporated as a result of the anti-dumping agreements in the Uruguay Round.

 

 Under United States law, the issue of standing has now been clarified to involve two separate questions: (1) whether the petitioners represent at least 25% of total domestic production of the like product in the United States; and (2) whether the petitioners represent a majority of those producers who express an opinion in support of or opposition to the petition. Both questions must be answered in the affirmative for the Commerce Department to rule that the petition has been filed 'on behalf of' an affected industry.

 

Foreign exporters are not expected to participate in the Commerce Department's process of initiating the anti-dumping investigation and examining the petitioners' standing. This does not mean, however, that foreign exporters should ignore this early part of the case. The foreign exporter should be aware of those situations in which it is unclear whether the petitioners have met the standing requirements under the law. This is often evident from the public version of the petition. (Anyone can obtain a copy of the public version of the petition the day after it is filed with the agencies.)

 

If the petition states unequivocally that petitioners account for more than 50% of United States production of the product at issue, then there is usually no dispute that petitioners have standing. However, if the petition does not make this claim, and therefore it is unclear what portion of total United States production is represented by petitioners, then the foreign exporter may want to examine this issue. If the foreign exporter has credible information that either (1) petitioners account for less than 25% of total United States production or (2) other United States producers actually oppose the anti-dumping petition, then the foreign exporter should submit this information to the Commerce Department and request that the Commerce Department conduct a formal poll of all United States producers.

 

Although there usually is only a small chance that such efforts will cause the Commerce Department to dismiss the case for lack of standing, such efforts could cause the Commerce Department to delay its initiation by 20 days. Such delay can be beneficial to respondent exporters.

 

Source: Business Guide to Trade Remedies in the United States: Anti-dumping, countervailing and safeguards legislation practices and procedures