2. Solar Energy Industries Association v. United States
In October 2023, the CAFC reversed the CIT and found that the U.S. lawfully modified safeguard duties assessed on solar products pursuant to Section 201 of the Trade Expansion Act of 1962. The President, in January 2018, adopted safeguard measures, including duties on solar panels imported into the U.S. that (1.) began at 30 percent and decreased by five percent each year for its four-year duration and (2.) initially did not apply to “bifacial” solar panels. In October 2020, the President modified this action by (1.) increasing the fourth-year duty from fifteen percent to eighteen percent and (2.) withdrawing the exclusion for bifacial solar panels. Importers of bifacial solar panels appealed, and the CIT invalidated both actions in November 2021. The CIT found that, because the statute “permits only trade-liberalizing modifications to existing safeguard measures, the . . . withdrawal of the exclusion of bifacial solar panels and increase of the safeguard duties . . . constituted both a clear misconstruction [of] the statute and action outside the President’s delegated authority.”
The CAFC reversed the CIT after finding the modification of Section 201 duties to have been lawful. Emphasizing “that the safeguard statute has a broad remedial purpose” and that “the President’s modification power is far from unbounded,” the CAFC “conclude[d] it was not a clear misconstruction for the President to interpret his authority . . . as permitting him to adopt trade-restrictive modifications, as well as trade-liberalizing modifications.” The CAFC further found “that the President is not required to reweigh costs and benefits when modifying a safeguard measure.” The plaintiff’s relied-upon statutory “provisions expressly apply to the initial adoption of a safeguard measure and make no reference to modification of such measures.” Thus, the CAFC reversed the CIT “[b]ecause the President’s interpretation . . . is not a clear misconstruction, and because the President did not violate the procedural requirements of the statute.”
3. Royal Brush Manufacturing, Inc. v. United States
The CAFC in July 2023 reversed the CIT and ruled that CBP must implement a system to provide confidential information to importers targeted for AD/CVD evasion in Enforce and Protect Act (EAPA) investigations. In May 2019, Royal Brush Manufacturing Inc. (Royal Brush) was found to have evaded duties in CBP’s EAPA investigation of the AD order on pencils from China due to “transshipping pencils from China through the Philippines.” Royal Brush appealed, arguing that its due process rights were violated because confidential information used by CBP during the investigation had not been provided. In 2020, the CIT initially ordered remand, holding that CBP failed to provide Royal Brush with meaningful public summaries. After those public summaries were provided to Royal Brush, the CIT in 2021 found that CBP satisfied due process requirements.
The CAFC reversed the CIT, explaining that “CBP relied on factual information that was not provided to Royal Brush to determine that Royal Brush had evaded duties. This, in and of itself, is a clear violation of due process.” The CAFC rejected the government position that “unless a protective order is authorized by law, disclosure is not authorized by law. . . . The right to due process does not depend on whether statutes and regulations provide what is required by the constitution.” The CAFC further found that, “because CBP has the inherent authority to issue protective orders, confidential business information released to Royal Brush can be protected from public disclosure.” Finally, despite the government’s claiming that Royal Brush was not prejudiced, the CAFC clarified that “when a due process violation has occurred because of a denial of access to new and material information upon which an agency relied, no additional showing of prejudice is required.” This ruling is expected to have a far-reaching impact, with CBP having to develop and implement a protective order system for EAPA investigations.
4. Borusan Mannesmann v. United States
The CAFC upheld Commerce’s practice of deducting duties applied by the President under Section 232 of the Trade Expansion Act of 1962 as part of the agency’s AD calculations. In the 2017-2018 administrative review of the AD order on Circular Welded Carbon Steel Pipes and Tubes from Turkey, Commerce treated the Section 232 duties put in place by a March 2018 presidential proclamation (i.e., Proclamation 9705) as normal U.S. import duties and thus deducted them from U.S. price in the agency’s AD calculations. This treatment resulted in a higher AD margin for the mandatory respondent, Borusan Mannesmann Boru Sanayi ve Ticaret A.S. and Borusan Mannesmann Pipe U.S. Inc. (collectively Borusan). Borusan appealed Commerce’s treatment of Section 232 duties to the CIT, which affirmed Commerce’s deduction of these duties from U.S. price. Borusan then appealed to the CAFC.
The CAFC sustained the CIT’s decision. The court chose not to “make a statute-wide categorical determination regarding all duties imposed on imports by presidential action” under Section 232, focusing instead on the specific language of Proclamation 9705 that applied additional duties to imports of circular welded carbon steel pipes and tubes from Turkey. The court found that Proclamation 9705 clarifies that these duties should be imposed in addition to, and not to partly or wholly offset, the antidumping duties that would be due without the new duties. The court concluded that “the only fair reading of Proclamation 9705 is that, when applied to an article covered by antidumping duties, the Proclamation 9705 and antidumping duties must together result in a full imposition of both duties.”
5. Committee Overseeing Action for Lumber v. United States
The CAFC in April 2023 overturned the CIT and found that Commerce does have the authority to conduct expedited CVD administrative reviews pursuant to the applicable regulation, 19 C.F.R. § 351.214(k). Commerce, in July 2019, concluded its first expedited 2015 administrative review of the CVD order on softwood lumber products from Canada, assigning individually determined CVD rates for eight exporters, four of which obtained de minimis rates such that they would be excluded from the CVD order going forward. The domestic lumber industry appealed, and the CIT in August 2021 invalidated both Commerce’s regulation and the expedited review. Earlier in November 2020, the CIT found that “the statutory text, structure, and legislative history compel the court to conclude that Commerce exceeded its authority” by conducting expedited CVD reviews.
The CAFC reversed the CIT, finding that “statutory authority for the expedited-review process is properly found in . . . [19 U.S.C.] § 1677f-1(e) to favor individual company determinations and the . . . grant of regulatory-implementation power to Commerce in [19 U.S.C.] § 3513(a).” 19 U.S.C. § 1677f-1(e), the CAFC held, allows Commerce to depart from the general rule that it should calculate individual CVD rates if the number of respondents is so large that doing so is impractical. To give effect to the “primary policy of providing individual-company rate determinate,” 19 C.F.R. § 351.214(k) sets out expedited review procedures. The CAFC found this regulation within Commerce’s statutory authority and consistent with the Agreement on Subsidies and Countervailing Measures, which entitles respondents not individually examined in CVD investigations to an expedited review to calculate an individual rate. In response to the CAFC overruling the CIT and finding that Commerce has statutory authority to conduct expedited CVD reviews, the four de minimis companies petitioned the CIT to reinstate their exclusion from the CVD order. The CIT granted this request and Commerce reinstated their exclusions in December 2023, effective August 28, 2021.
6. China Custom Manufacturing Inc. v. United States
The CAFC upheld Commerce’s scope determination that solar panel mounts are subject to the AD/CVD orders on aluminum extrusions from China. Specifically, Commerce determined that the products did not meet the “finished merchandise” exclusion requirements in the scope language. China Custom Manufacturing, Inc. and Greentec Engineering, LLC (collectively, CCM), product importers, appealed to the CIT. The CIT sustained Commerce’s determination, finding that the mounts are not finished merchandise because they are a “part or subassembly” of the finished merchandise, i.e., the solar panel mounting system. CCM then appealed to the CAFC.
The CAFC upheld the CIT’s decision, finding that “CCM’s solar panel mounts are parts or subassemblies and thus cannot be a finished product and cannot qualify for the finished merchandise exclusion.” In doing so, the CAFC relied on “a straightforward reading of the plain language” and rejected arguments that Shenyang Yuanda Aluminum Indus. Eng’g Co. v. United States was not precedential or should be overturned. In the scope determination underlying Shenyang, Commerce found curtain wall units to be covered by the scope of these orders because they are parts and subassemblies of a complete curtain wall made up of multiple units. The CAFC explained that it found that a part or subassembly cannot be a finished product (the legal conclusion) and applied it to the facts (a curtain wall unit). Finding that CCM’s appeal was “governed squarely” by Shenyang, the CAFC found the solar panel mounts comparative to curtain wall units because they were “undeniably components that are fastened together to form a complete [] system.”
7. Zhejiang Machinery Import & Export Corp. v. United States
In April 2023, the CAFC affirmed the CIT and found that Commerce properly denied separate rate status for Zhejiang Machinery Import & Export Corp. (ZMC) in the 2016-17 administrative review of the AD order on tapered roller bearings from China. In AD proceedings involving non-market economy (NME) countries, the CAFC has long recognized the presumption of state control such that unless an exporter can “meet its burden in demonstrating the absence of government control, Commerce can decline to issue a separate company-specific rate and instead apply to that exporter the country-wide [AD] rate.” Commerce denied ZMC’s separate rate and assigned it the 92.84 percent China-wide AD rate because ZMC was wholly owned by Zhejiang Sunny I/E Corporation (Sunny), because its labor union and majority shareholder was ultimately controlled by the All-China Federation of Trade Unions, an extension of the Chinese Communist Party; and the minority shareholder was wholly owned by the Zhejiang State-Owned Assets Supervision and Administration Commission of the State Council.
The CAFC affirmed the CIT and DOC finding that ZMC had not rebutted the presumption of de facto state control, despite ZMC “characteriz[ing] Sunny’s labor union as the nominal “owner”… because the ultimate owners were the members of Sunny’s employee stock ownership committee.” The CAFC found “that the labor union is a majority shareholder of and has influence over Sunny,” and the minority shareholder had “at least the potential to control ZMC—if not actual control.” The CAFC affirmed the separate rate denial because ZMC’s “shareholders, including the labor union, have the power to select managers and keep profit distribution—factors that Commerce has considered in establishing the presumption of state control.”
B. U.S. Court of International Trade
1. Sweet Harvest Foods v. United States
In November 2023, the CIT upheld the ITC’s June 2022 finding that “critical circumstances” exist concerning Vietnam in the investigation into raw honey from Argentina, Brazil, India, and Vietnam. Because the ITC, after considering import volumes before and after petition filing, found that “the remedial effect of the [AD] order with respect to subject imports from Vietnam will likely be seriously undermined,” Commerce was lawfully able to extend AD liability 90 days before the preliminary determinations. Although Commerce often makes affirmative critical circumstances determinations, it is much rarer for the ITC to do so, and this occurrence can result in extraordinary AD/CVD liability. The CIT dismissed arguments that the ITC focused on the wrong time period, did not give the most recent data sufficient weight, and unreasonably declined to examine inventory data after the suspension of liquidation (November 25, 2021) since the order’s remedial effect began in November 2021. The CIT further disagreed that the ITC should have considered whether “the exact entries of raw honey from Vietnam that entered during the ninety-day critical circumstances period are in a position to undermine seriously the remedial effect of the order.”
The CIT clarified that the issue was not whether the order’s remedial effect would be seriously undermined without the “90-day retroactive application of duties” but whether the imports that entered during the period after petition filing but before the suspension of liquidation were likely to undermine the duties’ remedial effect seriously. The CIT next found that the ITC did not misinterpret 19 U.S.C. § 1673d(b)(4)(A)(ii)(II) by not evaluating both historical import level and contemporaneous inventory level data; legislative history supported the ITC’s interpretation of the statue, and its interpretation was sensical given the statute requires Commerce to focus critical circumstance reviews on the “post-petition period prior to suspension of liquidation.” Finally, the CIT rejected claims that the ITC’s determination was not supported by substantial evidence because the record did not contain certain information; instead, the ITC acted reasonably because it was never asked to collect this data. Thus, the CIT dismissed the claim and affirmed the ITC’s critical circumstances determination.
2. Stupp Corporation v. United States
The CIT sustained Commerce’s application of its differential pricing analysis in a respondent’s challenge of the agency’s third remand resulting in an appeal of the final determination in the AD investigation of Welded Line Pipe from the Republic of Korea. The respondent has appealed the case to the CAFC. The agency uses the differential pricing analysis to determine whether Commerce should apply an alternate method to compare normal value to export (and constructed export) prices due to concerns of targeted dumping. The CAFC had remanded the case for Commerce to explain its application of the Cohen’s test as part of its differential pricing analysis even if certain statistical assumptions are not met. The CIT found that Commerce adequately explained the reasonableness of its methodology and sustained the remand results.
3. HiSteel Co., Ltd. v. United States
In an appeal of Commerce’s final results in the 2019–20 administrative review of the AD order on Heavy Walled Rectangular Welded Carbon Steel Pipes and Tubes from the Republic of Korea, the plaintiff, Korean pipe producer HiSteel Co., Ltd. (HiSteel), challenged three aspects of the agency’s AD calculations. The defendant-intervenor, domestic pipe producer Nucor Tubular Products Inc. (Nucor Tubular), moved to dismiss two of the three claims for lack of subject matter jurisdiction. The CIT granted Nucor Tubular’s motion to dismiss those two claims and stayed the remaining claims pending other court litigation. The CIT found the dismissed claims “nonjusticiable,” as even if HiSteel prevailed on those issues, “a correction of Commerce’s alleged calculation errors would not result in a changed published dumping margin.” The CIT further reasoned that HiSteel does not have standing to bring these claims because “the alleged harm of potentially miscalculated adjustments to normal value amounts to a “bare procedural violation” and does not “entail a degree of risk sufficient to meet the concreteness requirement.’”
4. Risen Energy Co., Ltd. v. United States
2023 was another year featuring CIT litigation over the Government of China’s Export-Import Bank’s Export Buyer’s Credit program (EBCP). The CIT in November 2023 remanded Commerce’s determination for a third time in Risen. Plaintiff Risen had challenged the final results of the 2017 administrative review of the CVD order on crystalline silicon photovoltaic cells, whether or not assembled into modules (solar cells), from China. In its second remand redetermination, Commerce continued to apply adverse facts available (AFA) to Risen’s unaffiliated U.S. customers’ EBCP usage. In the second remand, the CIT had instructed Commerce to attempt verification of Risen’s U.S. customer who had submitted certifications of non-use of the program. On remand, Commerce instructed Risen to ask its customers whether they would submit to verification. All but one responded in the affirmative, and because the singular customer did not, Commerce determined that the AFA remained appropriate because the non-use information provided was “unverifiable.”
The CIT disagreed, finding that Commerce required an “onerous unnecessary level of verification.” More specifically, the CIT pointed to the fact that the verification requests were coming six years after the Period of Review and required unaffiliated companies to provide unlimited amounts of sensitive business information while hosting government officials for several days. Since there was “no evidence to the court that these companies are lying about their financials,” “no evidence to indicate that the companies do not know what they are talking about,” and “[e]very piece of evidence presented to Commerce and to the court supports the conclusion that Risen’s sales were not aided by the EBCP,” the CIT directed Commerce to “not include a subsidy amount for EBCP” in Risen’s CVD rate. In issuing this directed determination, the CIT cited its own decision from a month earlier involving the same parties in a subsequent review where it noted: “Throughout the long history of EBCP litigation in the court[,] there has been an absolute dearth of evidence that any U.S. customer has ever used the program. No party has ever demonstrated that a U.S. customer has received financing through the EBCP.”
5. Kaptan Demir Celik Endustrisi A.S. (Kaptan II) v. United States
The CIT sustained Commerce’s remand redetermination in a challenge of the final results of the 2018 administrative review of the CVD order on Steel Concrete Reinforcing Bar from the Republic of Turkey. Plaintiff Kaptan Demir Celik Endustrisi ve Ticaret A.S. (Kaptan) initially challenged Commerce’s determination that subsidies received by Nur Gemicilik ve Ticaret A.S. (Nur), a shipbuilding company affiliated with Kaptan, were properly attributed to Kaptan based on a cross-owned input supplier relationship as defined by 19 C.F.R. § 351.525(b)(6)(iv). In its April 2023 ruling, Kaptan Demir Celik Endustrisi ve Ticaret A.S. (Kaptan I) v. United States, the CIT remanded for further explanation and review finding that “Commerce had failed to properly explain how Nur’s production of steel scrap, which Kaptan bought and melted down to produce rebar, constituted “production of the input product [that] is primarily dedicated to production of the downstream product.” On remand, Commerce reversed course, focusing on the fact that unprocessed steel scrap is a “common input in a variety of products” and that Nur’s primary business activity is shipbuilding, not steel scrap production. Thus, Commerce concluded that Nur’s business activity is not “dedicated almost exclusively to the production of a higher value-added product in the manner suggested by the Preamble” and found that it was not appropriate to attribute Nur’s subsidies to Kaptan, reducing Kaptan’s CVD rate for the review to de minimis.
In sustaining Commerce’s remand in November 2023, the CIT noted the clear set of criteria Commerce newly established to determine whether the facts on the record trigger the primarily dedicated language in 19 C.F.R. § 351.525(b)(6)(iv). The CIT sustained Commerce’s analysis that considered both the nature of the scrap provided and the supplier’s general business activities in determining whether suppliers’ production is “primarily dedicated” under the regulations. The CIT specifically rejected claims from Defendant-Intervenors that the suppliers’ business activities were irrelevant to the inquiry. Instead, the CIT sustained the finding that “the production processes involved in [Nur’s] shipbuilding [were] far removed from Kaptan Demir’s downstream production processes, especially given the extremely limited transactions between the two companies.”
6. Separate Rate Denials
In 2023, the CIT resolved multiple appeals of Commerce’s denial of separate rates, most of which involved minority-state ownership of respondents that exported tires from China. In March 2023, the CIT affirmed the separate rate denial for 36.9 percent state-owned Pirelli Tyre Co., Ltd. (Pirelli) in the 2017-18 administrative review of the AD order on passenger vehicles and light truck tires. In May 2023, the CIT affirmed Commerce’s denial of separate rates for the 25.2 percent state-owned respondent Guizhou Tyre Co., Ltd. (GTC) in the 2014-15 administrative review of the AD order on off-the-road tires (OTR) from China; and the AD investigation of truck and bus tires from China. For a majority state-owned respondent, the CIT, also in May 2023, affirmed Commerce’s denial of the separate rate for 65.66% state-owned Double Coin Holdings Ltd. (Double Coin) in the 2015-16 administrative review of the AD order on OTR from China. Although the CAFC in 2021 ruled that Commerce correctly applied the presumption of state control to Double Coin in that same OTR review, the CIT subsequently considered and rejected an “as-applied” challenge to Commerce’s separate rate denial. Pirelli, GTC, and Double Coin have each appealed to the CAFC, arguing that they, in fact, rebutted the presumption of state control based on specific facts they presented to Commerce.
In a separate rate case, the government appealed to the CAFC after the CIT’s February 2023 contrasting ruling, which invalidated Commerce’s denial of a separate rate for Jilin Forest Industry Jinqiao Flooring Group Co., Ltd. in the 2015–16 administrative review of the AD order on multi-layered wood flooring from China. The CIT invalidated the entire premise of Commerce’s presumption of state control: “Although Commerce has used the NME presumption for years, it has never identified the source in law authorizing the presumption or even given a real reason for the NME presumption’s use . . . . Commerce’s unexplained NME presumption was entitled to no deference.” The CAFC’s resolution of the various separate rate appeals filed in 2023 is expected to clarify the circumstances in which Commerce can treat cooperating respondents as part of the NME-wide entity.
II. Significant Commerce Developments
A. Circumvention Inquiries
Pursuant to a new regulation effective in late 2021, circumvention inquiries continued to make up a large and growing part of Commerce’s AD/CVD docket in 2022 and 2023. Petitioners were dealt a setback in their effort to have Commerce make expansive circumvention findings in the March 2023 negative determination for Welded Carbon Steel Standard Pipes and Tubes (standard pipe) from India. Exporters of standard pipe from the United Arab Emirates (UAE) and Oman—despite being already subject to AD orders on standard pipe from the UAE and Oman—were allegedly circumventing the AD order on standard pipe from India because they imported the hot-rolled steel (HRS) input from India, among other countries. Petitioners’ effort toward an expansive circumvention finding by Commerce resulted in a setback because of the March 2023 negative determination for the Petitioner in the matter.
Commerce’s 2023 circumvention inquiries typically involved products allegedly circumventing AD/CVD orders on China and frequently resulted in affirmative determinations. For example, on July 27, 2023, Commerce found that aluminum sheets from China using 4071 aluminum alloy circumvented the AD/CVD orders on Common Alloy Aluminum Sheet (CAAS) from China. Commerce found that aluminum sheets produced by using 4071 aluminum constitute a minor alteration in form or appearance and should also be within the scope of the orders. For its determination, Commerce relied on adverse facts available on a country-wide basis. As a result, any 4071 aluminum sheet from China entered or withdrawn for consumption is subject to suspension of liquidation effective August 26, 2022.
On November 2, 2023, Commerce found circumvention of certain AD/CVD orders by light-walled rectangular pipe and tube (LWRPT), light-walled rectangular carbon steel tubing (LWRA), and certain welded carbon steel pipe and tube products (CWP) from Vietnam. Specifically, Commerce determined that LWRPT from Vietnam produced with hot-rolled steel from China or Korea and LWR from Vietnam produced with hot-rolled steel from Taiwan are circumventing the respective LWRPT and LWR orders and are thus subject to AD/CVD duties. Similarly, Commerce determined that CWP from Vietnam produced with hot-rolled steel from China, India, and Korea circumvented the respective CWP orders and is subject to duties. As of November 9, 2023, to avoid paying AD/CVD duties, qualifying importers and exporters of LWRPT, LWR, and CWP from Vietnam must certify that products are not manufactured using hot-rolled steel from any of the respective countries where Commerce found circumvention. However, hot-rolled steel from any country where Commerce found circumvention that requires further processing in Vietnam before being made into LWR, LWRPT, or CWP is not subject to AD/CVD.
B. New Commerce Investigations of Previously Investigated Products
On May 19, 2023, Commerce published its final affirmative CVD determination in its investigation of freight rail couplers from China, and on May 30, 2023, Commerce published its final affirmative determination in AD investigation. Commerce calculated a subsidy rate of 265.99 percent for the mandatory respondents, the non-responsive companies, and all other companies, and an estimated average dumping margin of 169.90 percent for the China-wide entity, which applies to all exporters. The Government of China failed to respond in the CVD investigation, and six companies failed to respond to Commerce’s questionnaires in the AD investigation. Commerce responded by applying adverse facts available. The investigations follow a similar case on freight rail couplers from China that ended in a negative injury determination by the ITC.
Freight rail couplers were not the only product investigated by Commerce in 2023 that it had previously investigated. In August 2023, Commerce initiated AD investigations of mattresses from a slew of countries, including those rarely targeted in trade remedy actions: Bosnia and Herzegovina, Bulgaria, Burma, India, Italy, Kosovo, Mexico, the Philippines, Poland, Slovenia, Spain, and Taiwan. At that time, Commerce also initiated a CVD investigation of mattresses from Indonesia; an AD order on mattresses from Indonesia was issued in May 2021 alongside AD orders on mattresses from Cambodia, Malaysia, Serbia, Thailand, Turkey, and Vietnam. In May 2021, Commerce also issued a CVD order on mattresses from China, with the AD order having been issued in 2019. Similar to the explosion in countries targeted for mattress investigations, in October 2023, Commerce initiated AD/CVD investigations of aluminum extrusions from myriad countries, seeking to include additional products as compared to those covered by the scope of the AD/CVD orders on aluminum extrusions from China issued in 2011, as well as seeking for the first time AD/CVD on aluminum extrusions from Indonesia, Mexico, Turkey, as well as AD on aluminum extrusions from Colombia, the Dominican Republic, Ecuador, India, Italy, Korea, Malaysia, Taiwan, Thailand, the UAE, and Vietnam.
C. New and Proposed Commerce Regulatory and Administrative Requirements
In September 2023, Commerce published a Final Rule to govern procedures related to Administrative Protective Orders (APO) and service of documents in AD/CVD proceedings. To promote efficiency, Commerce adopted changes to its service procedures by allowing parties to utilize electronic services made on a temporary basis due to COVID-19. Service of a public document, public version of a business proprietary document, and a business proprietary document are now effectuated on parties on the public and APO service lists through ACCESS. Commerce in May 2023 published notice of a significant Proposed Rule to modify its regulations governing AD/CVD proceedings. Written comments were due in July 2023, but Commerce has yet to publish a Final Rule. The most significant proposed changes address foreign government inaction that benefits foreign producers, transnational subsidies, and particular market situations (PMS). If adopted, these changes would strengthen Commerce’s authority to enforce AD/CVD laws and could significantly affect future AD/CVD proceedings.
Under the Proposed Rule, Commerce could consider evidence of government inaction and failure to enforce property (including intellectual property), human rights, labor, and environmental protections. Because evidence of government inaction on these issues could distort prices, Commerce could reject certain benchmark data in CVD proceedings and surrogate value data in AD proceedings involving non-market economy countries. For example, Commerce’s recent practice disregards Malaysian manufacturing labor costs as surrogate values due to allegations of the widespread use of forced labor throughout the Malaysian electrical and electronics sector. In addition, Commerce proposes to eliminate its current transnational subsidies regulation that limits its ability to countervail subsidies provided by a foreign government “other than the country in which the recipient firm is located.” Commerce stated that it has observed far more instances in which a government provides a subsidy that benefits foreign production. Thus, the Proposed Rule would enable Commerce to target transnational subsidy programs such as China’s Belt and Road Initiative in CVD proceedings. Finally, Commerce proposes to standardize the information requirements for PMS findings and provides an illustrative list of PMS scenarios, such as overcapacity or oversupply of a significant input in the global marketplace that distorts the cost of production.
Dharmendra N. Choudhary, Jordan C. Kahn, and Andrew T. Schutz thank legal interns Mia S. Howard and Max Y. Park for their contributions to this article.
