19 C.F.R. § 351.404

Selection of the market to be used as the basis for normal value

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(a) Introduction. Although in most circumstances sales of the foreign like product in the home market are the most appropriate basis for determining normal value, section 773 of the Act also permits use of sales to a third country or constructed value as the basis for normal value. This section clarifies the rules for determining the basis for normal value.

(b) Determination of viable market—(1) In general. The Secretary will consider the exporting country or a third country as constituting a viable market if the Secretary is satisfied that sales of the foreign like product in that country are of sufficient quantity to form the basis of normal value.

(2) Sufficient quantity. “Sufficient quantity” normally means that the aggregate quantity (or, if quantity is not appropriate, value) of the foreign like product sold by an exporter or producer in a country is 5 percent or more of the aggregate quantity (or value) of its sales of the subject merchandise to the United States.

(c) Calculation of price-based normal value in viable market—(1) In general. Subject to paragraph (c)(2) of this section:

(i) If the exporting country constitutes a viable market, the Secretary will calculate normal value on the basis of price in the exporting country (see section 773(a)(1)(B)(i) of the Act (price used for determining normal value)); or

(ii) If the exporting country does not constitute a viable market, but a third country does constitute a viable market, the Secretary may calculate normal value on the basis of price to a third country (see section 773(a)(1)(B)(ii) of the Act (use of third country prices in determining normal value)).

(2) Exception. The Secretary may decline to calculate normal value in a particular market under paragraph (c)(1) of this section if it is established to the satisfaction of the Secretary that:

(i) In the case of the exporting country or a third country, a particular market situation exists that does not permit a proper comparison with the export price or constructed export price (see section 773(a)(1)(B)(ii)(III) or section 773(a)(1)(C)(iii) of the Act); or

(ii) In the case of a third country, the price is not representative (see section 773(a)(1)(B)(ii)(I) of the Act).

(d) Allegations concerning market viability and the basis for determining a price-based normal value. In an antidumping investigation or review, allegations regarding market viability or the exceptions in paragraph (c)(2) of this section, must be filed, with all supporting factual information, in accordance with § 351.301(c)(2)(i).

(e) Selection of third country. For purposes of calculating normal value based on prices in a third country, where prices in more than one third country satisfy the criteria of section 773(a)(1)(B)(ii) of the Act and this section, the Secretary generally will select the third country based on the following criteria:

(1) The foreign like product exported to a particular third country is more similar to the subject merchandise exported to the United States than is the foreign like product exported to other third countries;

(2) The volume of sales to a particular third country is larger than the volume of sales to other third countries;

(3) Such other factors as the Secretary considers appropriate.

(f) Third country sales and constructed value. The Secretary normally will calculate normal value based on sales to a third country rather than on constructed value if adequate information is available and verifiable (see section 773(a)(4) of the Act (use of constructed value)).

(g) Special rule for certain multinational corporations. In the course of an antidumping investigation, if the Secretary determines that the factors listed in section 773(d) of the Act are present, the Secretary will apply the special rule for certain multinational corporations and determine the normal value of the subject merchandise by reference to the normal value at which the foreign like product is sold in substantial quantities from one or more facilities outside the exporting country. In making a determination under this provision, the following will apply:

(1) Interested parties alleging that the Secretary should apply the special rule for certain multinational corporations must submit the allegation in accordance with the filing requirements set forth in § 351.301(c)(2)(i).

(2) If the Secretary determines that the non-exporting country at issue is a nonmarket economy country and, in accordance with § 351.408, normal value would be determined using a factors of production methodology if the special rule for certain multinational corporations was applied, the Secretary will not apply the special rule for certain multinational corporations.

[62 FR 27379, May 19, 1997, as amended at 88 FR 67080, Sept. 29, 2023; 89 FR 101764, Dec. 16, 2024]

Notes of Decisions

Cited in 29 cases (5 in the last 5 years), 2001–2026 · leading case: Alloy Piping Prods., Inc. v. United States, 201 F. Supp. 2d 1267 (Ct. Intl. Trade 2002).

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Alloy Piping Prods., Inc. v. United States, 201 F. Supp. 2d 1267 (Ct. Intl. Trade 2002). · cites it 6× “§ 1677b(a)(l)(B) and 19 C.F.R. § 351.404 (a).) In this case, adherence to the five percent test subverts the purpose of the law.”

Viraj Forgings, Ltd. v. United States, 283 F. Supp. 2d 1335 (Ct. Intl. Trade 2003). · cites it 9× “§ 1677b(a)(l)(B)(ii) (1999) and 19 C.F.R. § 351.404 (e) (1999). Second, Plaintiff argues that Commerce impermissibly compared non-comparable merchandise and ignored its past precedent and regulations when it treated United States ASTM standard forgings and German Deutsches…”

Atar, S.R.L. v. United States, 637 F. Supp. 2d 1068 (Ct. Intl. Trade 2009). · cites it 4× “§ 1677b(a)(l)(B)(ii)(III) and (a)(l)(C)(iii); 19 C.F.R. § 351.404 (c)(2)® (2006); Uruguay Round Agreements Act Statement of Administrative Action (“SAA”), H.”

Viraj Forgings, Ltd. v. United States, 350 F. Supp. 2d 1316 (Ct. Intl. Trade 2004). · cites it 9× “In support of its argument, Defendant sets out 19 C.F.R. § 351.404 (e) (2000) which states that: .”

Husteel Co., Ltd. v. United States, 491 F. Supp. 2d 1283 (Ct. Intl. Trade 2007). · cites it 4× “19 C.F.R. § 351.404 (e). Defendants-Intervenor contend that Canada would still be the proper comparison market if SeAH’s sales to China were not excluded because the merchandise SeAH sold to Canada was more similar to the U.”

Dong-A Steel Co. v. United StatesPublic version posted 10/01/2020., 2020 CIT 139 (Ct. Intl. Trade 2020). · cites it 2× “In its Preliminary Results, Commerce also calculated DOSCO’s AD 9 As noted by Commerce, the agency’s “viability regulation is found at 19 C.F.R. § 351.404 .” IDM at 29. Subsection (b) of the regulation in particular states: (1) The Secretary will consider the exporting country…”

Pakfood Pub. Co. Ltd. v. United States, 724 F. Supp. 2d 1327 (Ct. Intl. Trade 2010). “In this case, because the Rubicon Group’s aggregate volume of home market sales of the foreign like products of the subject merchandise was insufficient to permit a proper comparison with the U.S. CEP sales, the Department used the Rubicon Group’s sales to Canada, its largest…”

Maverick Tube Corp. v. United States, 2015 CIT 107 (Ct. Intl. Trade 2015). · cites it 2× “§ 1677b(a)(l)(B); 19 C.F.R. § 351.404 (b)(1). In response to petitioners’ ordinary course of trade arguments, the government and Borusan argue that Commerce verified the home market sales and determined that they were legitimate, arm’s-length sales of prime merchandise.”

Seah Steel Corp. v. United States, 704 F. Supp. 2d 1353 (Ct. Intl. Trade 2010). “See 19 C.F.R. § 351.404 (a). Sales made in the home country for less than the cost of production, however, may be disregarded in the calculation of normal value.”

Geum Poong Corp. v. United States, 163 F. Supp. 2d 669 (Ct. Intl. Trade 2001). “§ 1677b(e)(2)(A), “foreign country” means the country in which the merchandise is produced or a third country selected by the Secretary under 19 C.F.R. § 351.404 (e), as appropriate. 19 C.”

Husteel Co., Ltd. v. United States, 558 F. Supp. 2d 1357 (Ct. Intl. Trade 2008). · cites it 2× “§ 1677b(a)(l)(B)(ii)(I) (2000); and it is further *1366 ORDERED that if Commerce cannot present persuasive evidence that Respondents’ sales are not representative, Commerce will determine that the sales are representative; and it is further ORDERED that if Commerce determines…”

Apex Exports v. United States, 777 F.3d 1373 (Fed. Cir. 2015). “§ 1677b(a)(l)(C); 19 C.F.R. § 351.404 ). Commerce made adjustments to the prices charged in those comparator countries to calculate NV, so that it could compare NV and EP at the same level of trade.”

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— 19 C.F.R. § 351.404(b)(2) — 1 case

Stupp Corp. v. United States, 2019 CIT 134 (Ct. Intl. Trade 2019).

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