The final injury determination is the last chance to avoid imposition of the anti-dumping or countervailing duty order. Foreign companies and their lawyers therefore devote a great deal of time and effort to this stage, especially if the Commerce Department has calculated high dumping or subsidy margins.

 

Timing of the determination

 

The timing of a final injury determination is somewhat complicated. If the Commerce Department's preliminary dumping determination is affirmative, the Commission must make its final decision either 120 days after the Commerce Department's preliminary determination or 45 days after the Commerce Department's final determination, whichever is later. If the Commerce Department's preliminary determination is negative, the Commission must make its decision 75 days after the Commerce Department's final determination. Depending on whether there have been extensions of either the preliminary or the final Commerce Department determinations, this final Commission determination could take place between 280 and 420 days after the anti-dumping petition was filed, or earlier in a countervailing duty petition without any extensions.

 

Because the statutory deadlines work in complex ways, the earliest deadline determines when the Commission must do its work and make its decision. It is not uncommon for multiple cases against the same product to end up with different schedules and deadlines. The Commission sets its schedule based on the earliest deadline. Once all the work is done, the subsequent investigations use the same basic data set, and usually reach the same decision as the first case to go through the process (unless some of the countries have an argument that they should not be cumulated with the others).

 

Legal signficance

 

The date that the Commission's final injury determination is published in the Federal Register is the date on which the limited liability comes to an end. The cap on liability that becomes effective after the Commerce Department's preliminary determination, and is revised after the Commerce Department's final dumping determination, no longer applies. Beginning with imports entered on or after this date, the importer's final liability is theoretically unlimited. The importer, therefore, has no way to determine the final cost of the imported merchandise.

 

Legal standard

 

The legal standard for a final injury determination is different from that in the preliminary injury determination. Although in the preliminary injury determination the domestic industry need show only a 'reasonable indication' of injury or threat of injury, in the final injury determination this standard is raised to a requirement to show that the domestic industry is actually being materially injured or threatened with material injury. This higher standard of proof makes it more likely that a foreign company will be able to succeed in showing that there has been no injury or threat of injury to the United States industry. As noted above, approximately 3096-40% of recent final injury determinations have ended in negative determinations.

 

Procedures

 

The process of the final injury investigation is longer and somewhat more complex than that for the preliminary injury investigation. Chapter 14 will describe the final injury investigation in some detail, but a brief overview here will be helpful.

 

First, the Commission begins collecting information. After an affirmative preliminary determination, the Commission formally initiates its final injury investigation. The Commission thus begins its investigation even before it knows what the Commerce Department's final determination will be. The Commission staff collects all of the responses to the various questionnaires and any other information that it has obtained and drafts a preliminary staff report. This report is provided to all the parties for their comments and criticisms.

 

Second, the various parties submit pre-hearing briefs to the Commission, participate in a hearing, and submit post-hearing briefs. The briefs provide comments on the draft preliminary staff report, as well as present any legal arguments that the parties wish to raise in the investigation. The Commission also conducts a public hearing. Unlike the hearing in the preliminary injury determination, which is attended only by Commission staff people, this hearing is conducted by the Commissioners themselves, the individuals who actually make the determinations in the investigation. (A full Commission has six members.) The post-hearing briefs are usually limited to those issues raised in the pre-hearing briefs of the other parties, and those issues raised at the hearing itself.

 

Finally, the Commissioners vote on whether they believe there is injury or threat of injury to the domestic industry. The basis for the vote is the final staff report, summarizing the data collected in the investigation, and the briefs submitted by the various parties in the course of the investigation. This vote is usually scheduled about two weeks before the actual decision is due. One of the many curiosities of the United States law is that a tie vote of the Commissioners results in an affirmative finding of injury.

 

If during the course of this process the Commerce Department decides that there have been no sales at less than fair value or no impermissible subsidies, the Commission immediately stops its investigation. If the Commerce Department decides that there have been sales at less than fair value or impermissible subsidies, the Commission's investigation continues to a conclusion.

 

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