Trade Remedy Litigation In The Paper and Paperboard Sector RISI Thirty First Annual North American Conference October 6, 2016 Bonnie B. Byers
AGENDA What Are The Trade Remedy Laws? Trade Cases In The United States Trade Cases In Other Countries Will There Be More Cases In The U.S.? Key Issues For The Future? 2
Overview Of The Trade Remedy Laws 3
WHAT ARE THE TRADE LAWS AND WHY ARE THEY USED? Intended to address cheap and often subsidized imports that are causing harm to competing producers Some countries also use for other objectives: Retaliation Carve out market share because of overcapacity Create a protected market for less-efficient domestic producers 4
WTO TRADE REMEDY AGREEMENTS Antidumping Agreement Allows a Member to impose AD measures Agreement On Subsidies And Countervailing Measures Allows a Member to impose CVD measures and to challenge subsidies at the WTO Safeguards Agreement Allows a Member to impose temporary tariffs or quotas to address a surge in fairly traded imports 5
U.S. AD AND CVD PETITIONS AD law provides a tariff remedy against injurious imports sold at unfairly low prices CVD law provides a tariff remedy against injurious imports that are subsidized by a foreign government The U.S. Department of Commerce (DOC) decides whether to initiate the investigation and the existence and magnitude of dumping and subsidization The U.S. International Trade Commission (ITC) decides whether a domestic industry is materially injured or threatened with material injury by reason of dumped and subsidized imports 6
WHEN CAN DUTIES BE IMPOSED? When DOC finds that imports from a country are being dumped or subsidized When the ITC finds that The domestic industry is suffering material injury or threat of material injury; and There is a causal link between the injury to the domestic industry and the dumped or subsidized imports 7
DUTIES IMPOSED TO OFFSET DUMPING AND SUBSIDIZATION If DOC finds dumping and/or countervailable subsidies and ITC finds injury, DOC must instruct U.S. Customs to collect duties equal to the dumping margin and the subsidy rate AD and CVD duties are cumulative The President cannot veto or modify ITC or DOC decisions in AD and CVD cases duty imposition is automatic 8
MARKET ECONOMY DUMPING For Market Economy Countries, dumping is selling in the U.S. at ex-factory prices that are lower than those charged in the home market or lower than the fullyabsorbed cost of production The dumping margin is the difference between the exfactory prices charged in the home market and to U.S. customers 9
NON-MARKET ECONOMY DUMPING For Non-Market Economy Countries like China, dumping exists if the ex-factory prices charged to U.S. customers are less than the constructed value in a surrogate country The surrogate country must be a market economy at a level of economic development comparable to China (e.g., India) and be a significant producer of the product in question Constructed Value = Cost Of Production + SGA Expenses + Reasonable Profit 10
COUNTERVAILABLE SUBSIDIES Subsidies are countervailable if there is: A financial contribution from a government or public body that provides a benefit to the recipient The subsidy is specific to certain enterprises or groups of enterprises Export subsidies benefit production and sales for export Domestic subsidies benefit production and sales for both the home market and for export Countervailing duties are imposed to offset the subsidies received 11
HOW DO YOU DEMONSTRATE MATERIAL INJURY? Increasing volume of subject imports, either on an absolute or market share basis Adverse price effects Subject imports undersell domestic products Subject imports depress or suppress U.S. prices Adverse impact on the domestic industry Subject imports cause a decline in sales, output, market share, profits, and return on investment Subject imports have negative effects on jobs, wages, growth, and ability to raise capital 12
HOW DO YOU DEMONSTRATE THREAT OF MATERIAL INJURY? The volume or market share of subject imports is increasing rapidly Exporters have substantial excess production capacity Subject imports are being sold at prices that are likely to depress or suppress domestic prices Adverse trends indicate that injury is imminent Domestic producers are vulnerable to competition from subject imports 13
IMPOSITION OF PROVISIONAL DUTIES When preliminary AD/CVD determinations are issued, DOC orders payment of cash deposits on future imports The cash deposits are returned if either DOC or ITC makes a negative final determination 14
FINAL DUTIES: AD AND CVD ORDERS If DOC and the ITC reach affirmative final determinations, then DOC publishes antidumping and countervailing duty orders The orders instruct U.S. Customs to collect cash deposits on all imports equal to the AD and CVD rates Duties can be recalculated annually in the context of administrative reviews 15
BENEFITS OF AD & CVD ORDERS Orders last at least 5 years They may be extended for an additional 5 years Both remedies generally result in higher import prices, reduced imports, and reduced investment in foreign production capacity Domestic producers benefit from increased sales, market share, prices, and profits 16
U.S. Cases Against Imports Of Paper Products 17
AD/CVD ORDERS IMPOSED (1) Folding Gift Boxes From China (2002) AD margins: 9% - 165% Certain Crepe Paper Products From China (2005) PRC-wide AD margin: 267% Certain Tissue Paper Products From China (2005) PRC-wide AD margin: 113% 18
AD/CVD ORDERS IMPOSED (2) Certain Lined Paper Products From China and India (2006) China AD margins: 77% - 258% India AD Margins 4% - 23% India CVD margins: 7% - 10% Certain Lightweight Thermal Paper From China And Germany (2008) China AD margins: 20% - 115% China CVD margins: up to 139% Germany AD margin: order was revoked in 2014 19
AD/CVD ORDERS IMPOSED (3) Certain Coated Paper Suitable For High-quality Print Graphics Using Sheet-fed Presses From China & Indonesia (2010) China AD margins: 7% - 136% China CVD margins: 18% - 178% Indonesia AD margin: 20% Indonesia CVD margin: 18% 20
AD/CVD ORDERS IMPOSED (4) Supercalendered Paper From Canada (2015) CVD Case Only, No AD Port Hawkesbury : 20 % Resolute: 18% Catalyst and J.D. Irving: 19% Expedited Review On-Going For Catalyst and Irving NAFTA and WTO Appeals 21
AD/CVD ORDERS IMPOSED (5) Certain Uncoated Paper From Australia, Brazil, China, Indonesia, and Portugal Australia AD margin: 223% Brazil AD margins: 22% - 41% China AD margins: 84% - 149% China CVD margins: 7% - 177% Indonesia AD margins: 2% - 17% Indonesia CVD margins: 21% - 109% Portugal AD margin: 8% 22
Foreign Cases On Paper Products 23
ARGENTINA Coated Paper And Paperboard In Rolls And Sheets From Austria, China, Finland, And United States (2012)
AUSTRALIA Toilet Paper From China And Indonesia (imposed in 2009, revoked in 2010) Copy Paper From China (initiated 2013, terminated in 2014) Newsprint From France and Korea (2015) 25
BRAZIL Glassine (Supercalendered) Paper From The United States And Finland (2008) Glassine (Supercalendered) Paper From France, Italy, And Hungary (2011) Lightweight Coated Paper From Belgium, Canada, Finland, Germany, Sweden, And The United States (2012) 26
CHINA Coated Art Paper From Japan And Korea (2003) Paper For Electrolytic Capacitors From Japan (2007) Photographic Paper And Paper Board From Japan, EU, And United States (2012) Coated Bleached Folding Paper And Paper Board From United States (withdrawn in 2013) Cellulose Pulp From Brazil, Canada, And United States (2014) Unbleached Sack Paper From the EU, Japan, and the United States (2016) 27
EUROPEAN UNION Coated Fine Paper from China (2011) 28
KOREA Kraft Paper From Canada, China, Indonesia, Russia, And United States (2008)
MALAYSIA Newsprint From Canada, Indonesia, Korea, Philippines, And United States (2003) Newsprint From Belgium, Germany, Sweden, And United Kingdom (initiated and then terminated in 2013, based on public interest)
SOUTH AFRICA Coated Paper From China And Korea (initiated in 2013, terminated in 2014) 31
SAFEGUARD ACTIONS ON PAPER The Safeguard or Escape Clause cases have become the remedy of choice for many developing countries The Safeguard provision permits countries to impose duties and/or quotas on all imports No showing of unfair trade required only have to demonstrate significant material injury from increased imports There have been 13 Safeguard measures imposed in 9 countries with respect to paper products since 1995 32
SAFEGUARD ACTIONS ON PAPER Dominican Republic Ecuador India Indonesia Jordan Morocco Philippines Turkey Venezuela 33
What Does The Future Hold?
WILL THERE BE MORE CASES IN THE UNITED STATES? Fill in countries could give rise to new cases Shift in the form of imports (e.g. sheets to rolls) could give rise to new cases Slow growth in developing countries results in increased exports to the United States Strong dollar gives an incentive to increase exports to the United States Potential for cases outside the printing and writing category? 35
KEY ISSUES FOR THE FUTURE Impact Of Election Rhetoric Regarding Benefits Of Trade Proceedings Becoming Increasingly Political/Retaliatory Excess Capacity In China And Other Markets Implementation (Or Not) Of China Market Economy Treatment Potential Remedy For Currency Manipulation? Globalization Of Industries And Supply Chains Greater Focus On Preventing Evasion/Circumvention 36
THANK YOU Bonnie B. Byers 202 626-5507 bbyers@kslaw.com 37