Wooden Bedroom Furniture –
Trade Remedy Issues
Presentation To The Vietnam Furniture
Industry In Ho Chi Minh City
July 2, 2008*
Dr. Peter Koenig Dr. Sui-Yu Wu
Miller & Chevalier, Washington, DC, USA Wu & Partners, Taipei, Taiwan
www.milchev.com/traderemedies www.wuplaw.com
pkoenig@milchev.com sywu@wuplaw.com
tel 202 626 5917 tel 886 2 2546 2050 ext. 5101
*Update based on the discussion and questions at the June 27, 2008 actual presentation.
WHAT ARE THE PROSPECTS OF AN
ANTIDUMPING CASE AGAINST VIETNAM WBF?
The conditions exist that often motivate the filing of new U.S. trade remedy actions:
• Increasing Vietnam exports of wooden bedroom furniture (“WBF”) to the USA (see
Slides 3-10 below)
• Financial difficulties experienced by domestic (U.S.) industry
• Sunset review as to China WBF beginning December 2009, meaning that U.S. industry
must collect injury data anyway and needs to avoid defense claims then that other fairly traded
imports determine U.S. market price anyway so sunset (end) antidumping duties on Chinese
WBF
• Shift of China WBF capacity to Vietnam
• U.S. industry money from China WBF settlements (per their public financials) that could pay for
new trade remedy case
• Historic tendency for one successful antidumping case to motivate new ones
• Note: This time the U.S. industry might be quiet before file new trade remedy case because now
it is organized (unlike the situation as to China WBF case)
Rumors of a draft WBF petition already sent to DOC/ITC for review; if so, normal
process is for DOC (mainly) but also ITC (much less extent) to suggest many
revisions before the petition is acceptable for formal filing, which sometimes can
be many months later
Earlier now apparently dead rumors of other furniture antidumping cases indicate
perhaps some risk of other trade actions
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IMPORT TRENDS SUMMARIZED
● Vietnam and other major WBF exporting countries supplying the USA (notably, Malaysia, Indonesia
and Brazil) are increasing and/or significant. Between them and China, they account for the vast bulk
of WBF imports into the USA, with these potentially newly accused supplying countries an increasing
portion hereof. See Slides 4-10 below.
● Petitioners often cumulate imports from several countries to say that the cumulated imports as a group
are injurious (so below we present the top 4 supplying countries to the USA other than China).
● Petitioners could even file a new trade remedy case against China (as to alleged unfair subsidies) and
cumulate those imports with other newly accused imports, dumped or subsidized, to argue that the
newly accused cumulated imports as a group are injurious, warranting remedial U.S. import duties.
● Unit import values are declining (e.g., as to Vietnam) or somewhat stable (recognizing that unit values
might not be too informative as product mix may be changing)
● Import trends in the following charts (Slides 4-10), summarized above, are done separately for the two
main HSUS #s covered in the prior China WBF antidumping case (though sometimes a petitioner
changes the scope of accused product from case-to-case for strategic reasons)
3
IMPORT TRENDS
HTS - 9403.50.9040: WOODEN BEDS OF A KIND USED IN THE BEDROOM
Top Five Supplying Countries to USA, 2005-2008 YTD (YVD = Jan-April)
4,500,000
4,000,000
3,500,000
Quantity (number)
3,000,000
2,500,000
2,000,000
1,500,000
1,000,000
500,000
0
China Vietnam Malaysia Indonesia Brazil
2005 3,516,084 1,476,722 1,006,741 586,895 687,128
2006 3,841,124 1,961,666 1,016,825 591,372 613,009
2007 3,630,694 2,605,941 969,092 556,002 515,551
2007 YTD 678,956 415,133 170,162 94,055 83,978
2008 YTD 1,147,466 760,077 328,814 195,662 171,271
Country
4
IMPORT TRENDS, cont’d
HTS - 9403509080: WOODEN FURNITURE OF A KIND USED IN THE
BEDROOM, Not Elsewhere Specified
Top Five Countries Supplying USA
2005-2008YTD (YTD = Jan-April)
(Note: only value - not quantity - figures available)
$1,200,000,000
$1,000,000,000
(in actual dollars)
Customs Value
$800,000,000
$600,000,000
$400,000,000
$200,000,000
$0
China Vietnam Canada Malaysia Indonesia
2005 $947,954,167 $223,260,370 $261,022,291 $130,379,088 $122,198,318
2006 $1,022,089,029 $298,157,851 $198,958,686 $136,046,984 $136,928,625
2007 $875,660,839 $417,966,082 $153,574,631 $135,489,672 $129,450,302
2007 YTD $270,525,043 $121,089,484 $55,660,834 $43,902,599 $45,479,718
2008 YTD $200,649,616 $143,769,158 $41,212,654 $41,980,983 $41,041,029
Year
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IMPORTS TREND, cont’d
HSUS 9403.50.9040: WOODEN BEDS OF A KIND USED IN THE BEDROOM
Top 4 Supplying Cuntries To USA Excluding China
5,000,000
4,646,586
4,500,000
4,182,872
4,000,000
3,757,486
3,500,000
3,000,000
Quantity (number)
2,500,000
2,000,000
1,455,824
1,500,000
1,000,000
763,328
500,000
0
2005 2006 2007 2007 YTD 2008 YTD
Year
6
IMPORT TRENDS, cont’d
HTS - 9403509080: WOODEN FURNITURE OF A KIND USED IN THE BEDROOM,
Not Elsewhere Specified
Top 4 Supplying Countries to USA Excluding China
$900,000,000
$836,480,687
$736,860,067 $770,092,146
$800,000,000
$700,000,000
(in actual dollars)
$600,000,000
Customs Value
$500,000,000
$400,000,000
$266,132,635 $268,003,824
$300,000,000
$200,000,000
$100,000,000
$0
2005 2006 2007 2007 YTD 2008 YTD
Period
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IMPORT TRENDS, cont’d
HSUS 9403.50.9040: WOODEN BEDS OF A KIND USED IN THE BEDROOM
Percentage of Total U.S. Imports
China and Other Top 4 Supplier Countries, Respectively
60.00%
51.19%
47.84%
50.00%
42.73%
39.70% 40.34%
37.15% 39.24% 37.38%
40.00%
Percentage
30.00% o
25.06%
22.29%
20.00%
10.00%
0.00%
2,005 2,006 2007 2007 YTD 2008 YTD
Period
China Top 4 Importing Countries Combined
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IMPORT TRENDS
HTS - 9403509080: WOODEN FURNITURE OF A KIND USED IN THE BEDROOM, Not Elsewhere Specified
Percentage of Total U.S. Imports
China And Other Top 4 Country Suppliers, Respectively
60.00%
49.20%
50.00% 47.60%
44.74% 44.07%
42.10% 42.84% 42.15%
40.00% 36.84%
35.86%
34.78%
Percentage
30.00%
20.00%
10.00%
0.00%
2005 2006 2007 2007 YTD 2008 YTD
Period
China Top 5 Importing Countries Combined Excluding China
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IMPORT TRENDS, cont’d
HTS - 9403509040: WOODEN BEDS OF A KIND USED IN THE BEDROOM
Average Import Unit Value (US$/unit)
# Country 2005 2006 2007 2007 YTD 2008 YTD
1 China 126 127 128 122 126
2 Vietnam 98 88 92 90 90
3 Malaysia 77 78 88 81 83
4 Indonesia 131 129 131 133 137
5 Brazil 74 71 76 70 71
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Anti-Dumping:
Substantive Requirements
Antidumping import duties are imposed if:
• an anti-dumping petition is filed on behalf of a domestic
(U.S.) industry; and,
• import sales are found at prices that are at below deemed
fair value (i.e., dumped) that
• injure a domestic industry (or threaten such injury).
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U.S. Anti-Dumping:
Decision-Makers
• The U.S. Department of Commerce
(“DOC”) decides the amount of
dumping.
• The U.S. International Trade
Commission (“ITC”) decides if a
domestic (U.S.) industry is thereby
injured and that any antidumping
import duties found by DOC are
imposed.
• The U.S. courts decide appeals of
the above decisions.
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Defining The Covered
Product and Industry
• The Petitioners define the product subject to a trade remedy
case to maximize the chance of success and benefit.
Any amount of domestic production is enough to file petition. But:
• In addition, there are standing requirements to file a petition:
25% of domestic production must support the petition (whether
producers or employees/unions); and,
50% of domestic production expressing a view must support
petition.
But may ignore views of U.S. producers who import or have
foreign production.
• Standing was a big issue in the original China case, as arguably
U.S. petitioners narrowly met the standing requirement then.
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Defining The Covered
Product and Industry
• To win, petitioners must show that the dumped (or
subsidized) imports injure the domestic industry as a
whole producing the subject product (or threaten such
injury).
But ITC may exclude from the scope of the domestic
industry:
US producers who are importers; and,
US producers affiliated with foreign exporters.
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Basics of the Anti-Dumping
Import Duty Margin Calculation
• U.S. price is reduced to the equivalent of ex-factory
price.
• This means many deductions to gross unit price (e.g.,
for movement costs, selling expenses, discounts,
rebates, etc. paid by the exporter) to get the net, ex-
factory price.
• Dumping import duty margin calculation is:
Normal Value – Net U.S. Price
Net U.S. Price
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Separate Rules for Non-Market Economies
(NME’s)
• Non-market economy (“NME”) is viewed as one where
the state controls prices and factors of production.
• NME home prices and costs are believed not market
based and thus not reliable to determine normal value,
so special rules apply to determine normal value.
• China and Vietnam are considered NMEs.
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NMEs: Dumping Margin Calculation
• For NME’s, DOC constructs a normal value based on the inputs used in
production in the NME, valued at prices in a surrogate market economy.
• This NME constructed value includes factory overhead, general &
administrative (“G&A”) and profit of producers of similar product in the
surrogate country.
• DOC selects a surrogate market economy country deemed to be:
at a level of economic development comparable to that of the NME country
(for Vietnam, DOC says India, Indonesia, Bangladesh, Sri Lanka, etc. can
be surrogates; for China, India is generally the surrogate but Philippines just
used); and,
a significant producer of comparable merchandise.
• Dumping import duty margin =
NME Constructed Value - Net, Ex-Factory U.S. Price
Net, Ex-Factory U.S. Price
• NME methodology generally viewed as leading to higher dumping duty margins
and more arbitrary compared to dumping margin methodology applied to
market economies.
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Practical Aspects
of U.S. Anti-Dumping Law
• Incredible burden on investigated foreign exporters in antidumping cases:
Volume of data required -- all U.S. sales transactions and production data
for 6 months for NMEs.
Must follow DOC reporting requirements exactly.
Must obtain data from affiliates (customers or suppliers).
Everything must be verified to financial system (audited financial).
• DOC uses above data to calculate the dumping margin.
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Practical Aspects
of U.S. Anti-Dumping Law
• If exporter does not fully cooperate, then
DOC imposes high penalty dumping rate,
generally as alleged in petition (often
100%+). Exporter is probably then locked
out of the U.S. market.
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ITC Injury Decision
• Imports must be “a cause” of “material injury” to the domestic industry, or threat
thereof, for antidumping import duties to be imposed.
“A cause” means does not even have to be the most important cause.
“Material injury” means injury that is not “insignificant” or “de minimis”.
Domestic industries suffering injury from other factors are deemed more
vulnerable to injury from dumping.
• Factors considered as to whether imports are injurious:
Are imports increasing or significant? (either absolutely or in market share)?
Generally the accused imports must take at least 5% of the U.S. market
(consumption) to be found injurious.
Do import prices undersell or suppress U.S. producer prices?
Do non-accused imports determine U.S. market price anyway?
Do imports adversely affect domestic industry financial performance?
Generally U.S. industry profits must be low or negative to find injury.
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STRATEGIES TO BEST AVOID OR MINIMIZE
ANTIDUMPING RISK
• Effective Advance Planning
• DOC reviews sales/production for 2 quarters preceding the filing of
the petition to determine the dumping margin.
• Can often adjust sales/production in advance of petition filing to best
defeat it (see next slide, Slide 22, for examples of what to do)
• In the U.S. Shrimp Antidumping Case, of 6 accused countries, only Ecuador
prepared in advance. Only Ecuador got a no dumping finding and out of
the case (ultimately)
• Once Case Is Filed
• Then argue for best surrogate country/values to minimize or eliminate
antidumping margin found.
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STRATEGIES TO BEST AVOID OR MINIMIZE
ANTIDUMPING RISK, cont’d
Examples of Effective Advance Planning:
• Sales Strategy
• Sell WBF as sets (to avoid dumping margin from low priced components)
• Sell through U.S. affiliate (higher prices possible)
• Seek similar prices to U.S. customers, U.S. geographic regions and over time
(to extent possible)
• Then avoid a DOC targeted dumping finding with zeroing of non-dumped
sales where don’t get credit for higher prices thereof
• Production Strategy
• If exporter buys inputs from market economy country paying market economy
currency, then that purchase price, not surrogate value, can be used to “value”
the input (if such import purchases are over 33% of the amount bought of input)
• Can significantly reduce dumping margins
• Also results more predictable and controllable
• Integrate upstream to use more basic inputs with lower surrogate values
• Use subcontractors where surrogate values are determined for the more basic
inputs used by the subcontractors, meaning lower surrogate values
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