A Note on the Incidence and Possible Cost of “Critical Circumstances” Penalties in U.S. Antidumping Enforcement

This article examines the incidence and possible cost of “Critical Circumstances” penalties in U.S. antidumping enforcement. Critical Circumstances penalties are surprisingly common. Of the 297 foreign firms that were assessed antidumping duties greater than 25% during the period 1980–1995, 89 (or 30%) were also assessed a Critical Circumstances penalty. The volume of imports affected by these Critical Circumstances penalties was approximately $991 million over the 15 year period (or about $66 million per year). The average level of the Critical Circumstances penalties was about 79% of the value of the relevant commerce, assessed for a period of up to 90 days, or as much as $13 million per year. The economic cost to the United States from Critical Circumstances penalties comes largely from the reduction in export levels (increase in prices) that foreign firms may make in the expectation that a Critical Circumstances penalty may be assessed. The article presents evidence that foreign firms have restricted their exports to the United States to avoid or minimize Critical Circumstances penalties, and discusses a simple model that may illustrate how foreign firms react to the possibility of such penalties.