The deadline for the Commission to complete its final injury investigation depends upon the Commerce Department's preliminary determination. If the Commerce Department makes a negative preliminary determination, but then finds less-than-fair-value sales in its final determination, the Commission must make its final determination within 75 days of the Commerce Department's final determination. If the Commerce Department's preliminary determination is affirmative, the Commission must make its final determination by the later of: (1) 120 days after the Commerce Department's preliminary determination; or (2) 45 days after the Commerce Department's affirmative final determination.

 

The final injury determination consists of several stages. First, the Commission begins collecting information. After an affirmative preliminary less-than-fair-value determination, the Commission formally initiates its final injury investigation. If they are available, the staff members from the preliminary stage might be reassigned to the final stage. The Commission thus begins its investigation even before it knows what the Commerce Department's final less-than-fair-value determination will be. The staff prepares questionnaires to send to the various members of the domestic industry, the foreign producers exporting the merchandise, and the companies (both related and unrelated) that have been importing the merchandise under investigation. The Commission staff usually allows the lawyers for the various parties to review draft questionnaires, if the parties express an interest in doing so. As discussed below, foreign companies and their advisers should participate actively in this process.

 

Collecting information

 

Draft questionnaires

 

Unlike the preliminary stage, the final stage of the investigation allows the Commission enough time to be more deliberate in its investigation. The Commission staff prepares draft questionnaires, and then allows all the parties to the investigation to comment on those draft questionnaires. This process allows foreign respondents a chance to shape the fact-gathering process to develop certain arguments that may be helpful.

 

The staff is particularly interested in questions that help address specific issues identified by the Commissioners themselves in the preliminary determination.

 

This process is particularly important for the questionnaire that goes to customers. Again unlike the preliminary stage, the final stage allows enough time for the Commission to gather information from customers. (The Commission staff uses the information about the largest customers of each producer that was collected as part of the preliminary investigation stage.) Customers often have a critically important perspective on the market, which can differ significantly from domestic producers, foreign producers, and importers. Commenting on the customer questionnaire, and ensuring that it obtains the necessary information, can be particularly a critical part of the defence.

 

Evaluating final questionnaire

 

Once the questionnaire has been finalized, the foreign respondent must then assess the information that will be gathered and decide whether it will be sufficient. The Commission staff never accepts all of the changes requested by any party. It is quite possible that the foreign respondent will believe that some important factual issue is not going to be adequately developed by the Commission questionnaires. In that case, the foreign respondent needs to develop some alternative strategy for gathering the necessary information.

 

Responding to questionnaires

 

All the parties receive questionnaires from the Commission, including both foreign producers and importers. These questionnaire responses are important, and should be drafted carefully.

 

Parties make several mistakes in completing the questionnaire responses. First, foreign producers often misunderstand the Commission concept of 'practical capacity', and over-report their capacity. The Commission questionnaire does not ask for theoretical capacity - which foreign producers often report. Rather, the questionnaire requests practical capacity - how much can be made assuming normal down time, normal production levels, and normal product mix. In most instances, practical capacity is lower than theoretical capacity. Second, both foreign producers and importers often provide too little information in their responses. Businesspeople are busy. They look for ways to avoid answering questions, and ways to provide less information rather than more information. In fact, what parties should be doing is using the questionnaire as a chance to put evidence on the record. Information provided in questionnaire responses is considered 'factual information', and has more credibility than arguments submitted later by lawyers and consultants. Sometimes supplemental information provided in questionnaire responses is picked up by the staff and included in the staff report that is provided to the Commission.

 

Third, sometimes parties simply refuse to answer the questionnaire. Although the Commission has the legal authority to compel answers, it rarely exercises this authority. If a party does not respond, the Commission staff will usually ignore the missing questionnaire unless the party is very important to the investigation. These unanswered questionnaires, however, usually disadvantage the foreign respondents. The domestic industry seeking protection usually provides complete responses, and lots of data and answers that are unfavourable. A limited response on the other side undermines the credibility of the alternative data and answers. The more responses by importers and customers, the better. To the extent that foreign interests can urge others - particularly customers - to provide answers to questionnaires, they should do so. Sometimes this requires urging customers who may not have received questionnaires in the first instance to call up and request a questionnaire.

 

Evaluating information

Once the questionnaires have been completed, the Commission and the parties begin an intense process of evaluating that information and making arguments on various issues. This process is well defined, and quite intense. Since this process will determine to a large extent the outcome of the case - whether the Commission finds injury or not - foreign companies are well advised to focus their best efforts at this critical stage.

Pre-hearing staff report

The Commission staff collects all the questionnaire responses, and summarizes the data in the pre-hearing 'staff report'. This report reflects the quantitative data collected through the questionnaires, some standard analytic exercises conducted by the staff, and some discussion of the key issues identified by the parties.

The quality of this 'pre-hearing staff report' can vary from case to case. If the Commission has had recent experience with an industry, the staff report is usually higher quality, reflecting this prior experience. If the Commission staff members assigned to a case are particularly dedicated, the staff report will reflect the extent of their effort. Finally, if the Commission staff members are not overwhelmed with other investigations at the same time, they can produce a higher quality report. In many cases, however, these ideal situations do not occur, and the pre-hearing staff report can be disappointing and incomplete.

 

Pre-hearing briefs

 

One week after the pre-hearing staff report, the parties usually submit their pre-hearing briefs. (At the time of the formal initiation of the final investigation, the Commission publishes in the Federal Register a notice that sets forth all of the applicable deadlines for that particular investigation.)

 

These lengthy written submissions present the parties' arguments, drawing on the pre-hearing staff report, other information on the administrative record, and any public information that helps the case. Any information that has not already been submitted to the Commission can be included with or attached to the pre-hearing brief.

 

Public hearing

 

A week after the pre-hearing briefs, the Commission holds a public hearing. Unlike the staff conference held in the preliminary stage, the public hearing includes the Commissioners themselves, many of the Commissioners' private staff, and the Commission staff. Each side presents its case, and the Commissioners and staff then ask questions of the parties.

 

As part of their case, parties usually present witnesses. Industry witnesses generally have more credibility than the interested parties in the case, who make rather predictable statements. Customers - particularly those that buy from both domestic and foreign suppliers - are particularly credible as sources of information about the competitive dynamics in the marketplace.

 

Questioning by the Commissioners is the key part of the hearing. These questions try to clarify the arguments of the parties, and to test the assertions being made against the evidence on the record. It is common for Commissioners to take a point made by the lawyers in written submissions or oral statements, and then rephrase the point as a question to witnesses. By doing so, the Commissioners often find the witnesses disagreeing with their own arguments. For this reason, witnesses need to be well prepared before the hearing.

 

The hearing is much less formal than many expect, and is not like cross-examination in a courtroom. The questioning by Commissioners is relatively informal. Questioning of one side by the other side is extremely rare. The time spent answering the question is subtracted from the time allocated to the questioning side, and a poorly framed question can lead to a meandering, unhelpful answer that uses up critical time.

 

Post-hearing briefs

 

After the hearing, the parties also submit post-hearing briefs. These 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. The post-hearing briefs also provide an opportunity to respond to any specific requests for information that were made by the Commissioners or the Commission staff during the course of the hearing.

 

Final staff report

 

After the post-hearing briefs, the staff prepares the 'final staff report'. This revised report adds any information that may not have been available for the pre-hearing staff report, corrects any errors identified in the earlier information, and sometimes reacts to arguments raised by the various parties. This final staff report, along with various supplementary memoranda that the individual Commissioners may request the staff to prepare, becomes the key basis on which the Commission makes its decision. The quality of this report can vary tremendously depending on the quality of the staff assigned and the nature of the information gathered during the case.

 

There may or may not be a meaningful public version of this report. Although in principle the staff will prepare a public version, the staff will not deem aggregate information to be public unless there are enough responding companies so that the aggregate numbers do not reveal anything about the individual companies responding. In many instances, the key issues relate to the circumstances of particular firms within the domestic industry, or to foreign industries which may have only a single large exporter in a particular country. This reality often means that the most interesting data are not disclosed in the public version of the staff report.

 

Comments on data

 

After all the briefs and hearing, the Commission officially closes the record. Once this is done, usually five business days after the final staff report, no new factual information may be submitted. The parties then have one final chance to comment on any new factual information that has been collected by the staff or provided by any of the parties since their post-hearing briefs.

 

These final comments can be crucial. At this stage, the issues are well developed, and the parties generally know the key issues they need to win to persuade the Commissioners to vote in their favour. A well-written set of final comments, persuasively recapping why the factual record requires the Commission to decide in a certain way, can be very important.

 

Commission vote

 

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. The vote is usually scheduled about one week before the actual decision is due. This gives the Commissioners a chance to decide on the rationale for their decision, and gives the staff an opportunity to draft the formal decision of the Commission. The vote is always public (unlike the vote at the preliminary stage, which may be closed to the public), and sometimes the Commissioners ask questions of the staff at the public meeting at which the vote is taken.

 

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