C.F.R.
»
Title 19
» CHAPTER III—INTERNATIONAL TRADE ADMINISTRATION, DEPARTMENT OF COMMERCE › PART 351—ANTIDUMPING AND COUNTERVAILING DUTIES › Subpart D—Calculation of Export Price, Constructed Export Price, Fair Value, and Normal Value
(a) Introduction. This section clarifies when the Secretary may use offers for sale in determining normal value. Additionally, this section clarifies the authority of the Secretary to use sales to or through an affiliated party as a basis for normal value. (See section 773(a)(5) of the Act (indirect sales or offers for sale).)
(b) Sales and offers for sale. In calculating normal value, the Secretary normally will consider offers for sale only in the absence of sales and only if the Secretary concludes that acceptance of the offer can be reasonably expected.
(c) Sales to an affiliated party. If an exporter or producer sold the foreign like product to an affiliated party, the Secretary may calculate normal value based on that sale only if satisfied that the price is comparable to the price at which the exporter or producer sold the foreign like product to a person who is not affiliated with the seller.
(d) Sales through an affiliated party. If an exporter or producer sold the foreign like product through an affiliated party, the Secretary may calculate normal value based on the sale by such affiliated party. However, the Secretary normally will not calculate normal value based on the sale by an affiliated party if sales of the foreign like product by an exporter or producer to affiliated parties account for less than five percent of the total value (or quantity) of the exporter's or producer's sales of the foreign like product in the market in question or if sales to the affiliated party are comparable, as defined in paragraph (c) of this section.
Notes of Decisions
Torrington Co. v. United States, 146 F. Supp. 2d 845 (Ct. Intl. Trade 2001).
· cites it 6× “Background Commerce’s regulation 19 C.F.R. § 351.403 (c) (1998) provided the following: [i]f an exporter or producer sold the foreign like product to an affiliated party, [Commerce] may calculate normal value based on that sale only if satisfied that the price is comparable to…”
Ntn Corp. v. United States, 306 F. Supp. 2d 1319 (Ct. Intl. Trade 2004).
· cites it 7× “See 19 C.F.R. § 351.403 (1999). For sales to an affiliated party by an exporter or producer, the regulations state that Commerce “may calculate normal value based on that sale only if satisfied that the price is comparable to the price at which the exporter or producer sold the…”
China Steel Corp. v. United States, 264 F. Supp. 2d 1339 (Ct. Intl. Trade 2003).
· cites it 6× “Plaintiff first argues that Commerce erred because its total home market sales to affiliates do not meet the five percent threshold required in 19 C.F.R. § 351.403 (d), and thus, the missing affiliate reseller data would not be used in calculating the dumping margin.”
Timken Co. v. United States, 240 F. Supp. 2d 1228 (Ct. Intl. Trade 2002).
· cites it 3× “Commerce has consistently applied 19 C.F.R. § 351.403 (c) through a “99.5 percent arm’s-length test.”
China Steel Corp. v. United States, 306 F. Supp. 2d 1291 (Ct. Intl. Trade 2004).
· cites it 3× “19 C.F.R. § 351.403 (d). Specifically, that subsection states that: [i]f an exporter or producer sold the foreign like product through an affiliated party, the [Department] may calculate normal value based on the sale by such affiliated party.”
SNR Roulements v. United States, 341 F. Supp. 2d 1334 (Ct. Intl. Trade 2004).
· cites it 4× “Commerce excludes from the calculation of normal value any sale to an affiliated party that is not comparable to sales to non-affiliated parties pursuant to 19 C.F.R. § 351.403 (c). To ensure that sales to affiliates are comparable to sales to non-affiliates (i.”
Mid Continent Nail Corp. v. United States, 2010 CIT 47 (Ct. Intl. Trade 2010).
“(using five percent test to determine third-country market viability); 19 C.F.R. § 351.403 (d) (1998) (using five percent test to determine whether to “calculate normal value based on the sale by an affiliated party”).”
NTN Bearing Corp. of Am. v. United States, 248 F. Supp. 2d 1256 (Ct. Intl. Trade 2003).
· cites it 2× “§ 1677b(a)(5) (1994) and 19 C.F.R. § 351.403 (c) (1998), disregarded those NTN sales made to affiliated customers in its computation of NV which were not at arm’s length.”
Nsk Ltd. v. United States, 358 F. Supp. 2d 1276 (Ct. Intl. Trade 2005).
“5 percent test itself, as Defendant states, was not codified but is instead explained in the preamble to the regulation, 19 C.F.R. § 351.403 , and went through notice and comment procedures.”
Boomerang Tube LLC v. United States, 2015 CIT 140 (Ct. Intl. Trade 2015).
“See 19 C.F.R. § 351.403 (c). U.S. Steel cites record evidence showing common ownership between JESCO and the Colombian distributor and the similarity of the Colombia transactions to U.”
Mid Continent Nail Corp. v. United States, 712 F. Supp. 2d 1370 (Ct. Intl. Trade 2010).
“§ 1677b(a)(l)(B)(ii)(II) (1994) (using five percent test to determine third-country market viability); 19 C.F.R. § 351.403 (d) (1998) (using five percent test to determine whether to “calculate normal value based on the sale by an affiliated party”).”
Tung Mung Dev. Co. v. United States, 2001 CIT 83 (Ct. Intl. Trade 2001).
· cites it 2× “YUSCO also contends that the Department was required to apply the arm’s length test, under 19 C.F.R. § 351.403 (c), to determine whether the Yieh Mau sales should be treated as home market sales.”
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