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

19 C.F.R. § 351.412

Levels of trade; adjustment for difference in level of trade; constructed export price offset

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(a) Introduction. In comparing United States sales with foreign market sales, the Secretary may determine that sales in the two markets were not made at the same level of trade, and that the difference has an effect on the comparability of the prices. The Secretary is authorized to adjust normal value to account for such a difference. (See section 773(a)(7) of the Act.)

(b) Adjustment for difference in level of trade. The Secretary will adjust normal value for a difference in level of trade if:

(1) The Secretary calculates normal value at a different level of trade from the level of trade of the export price or the constructed export price (whichever is applicable); and

(2) The Secretary determines that the difference in level of trade has an effect on price comparability.

(c) Identifying levels of trade and differences in levels of trade—(1) Basis for identifying levels of trade. The Secretary will identify the level of trade based on:

(i) In the case of export price, the starting price;

(ii) In the case of constructed export price, the starting price, as adjusted under section 772(d) of the Act; and

(iii) In the case of normal value, the starting price or constructed value.

(2) Differences in levels of trade. The Secretary will determine that sales are made at different levels of trade if they are made at different marketing stages (or their equivalent). Substantial differences in selling activities are a necessary, but not sufficient, condition for determining that there is a difference in the stage of marketing. Some overlap in selling activities will not preclude a determination that two sales are at different stages of marketing.

(d) Effect on price comparability—(1) In general. The Secretary will determine that a difference in level of trade has an effect on price comparability only if it is established to the satisfaction of the Secretary that there is a pattern of consistent price differences between sales in the market in which normal value is determined:

(i) At the level of trade of the export price or constructed export price (whichever is appropriate); and

(ii) At the level of trade at which normal value is determined.

(2) Relevant sales. Where possible, the Secretary will make the determination under paragraph (d)(1) of this section on the basis of sales of the foreign like product by the producer or exporter. Where this is not possible, the Secretary may use sales of different or broader product lines, sales by other companies, or any other reasonable basis.

(e) Amount of adjustment. The Secretary normally will calculate the amount of a level of trade adjustment by:

(1) Calculating the weighted-averages of the prices of sales at the two levels of trade identified in paragraph (d), after making any other adjustments to those prices appropriate under section 773(a)(6) of the Act and this subpart;

(2) Calculating the average of the percentage differences between those weighted-average prices; and

(3) Applying the percentage difference to normal value, where it is at a different level of trade from the export price or constructed export price (whichever is applicable), after making any other adjustments to normal value appropriate under section 773(a)(6) of the Act and this subpart.

(f) Constructed export price offset—(1) In general. The Secretary will grant a constructed export price offset only where:

(i) Normal value is compared to constructed export price;

(ii) Normal value is determined at a more advanced level of trade than the level of trade of the constructed export price; and

(iii) Despite the fact that a person has cooperated to the best of its ability, the data available do not provide an appropriate basis to determine under paragraph (d) of this section whether the difference in level of trade affects price comparability.

(2) Amount of the offset. The amount of the constructed export price offset will be the amount of indirect selling expenses included in normal value, up to the amount of indirect selling expenses deducted in determining constructed export price. In making the constructed export price offset, “indirect selling expenses” means selling expenses, other than direct selling expenses or assumed selling expenses (see § 351.410), that the seller would incur regardless of whether particular sales were made, but that reasonably may be attributed, in whole or in part, to such sales.

(3) Where data permit determination of affect on price comparability. Where available data permit the Secretary to determine under paragraph (d) of this section whether the difference in level of trade affects price comparability, the Secretary will not grant a constructed export price offset. In such cases, if the Secretary determines that price comparability has been affected, the Secretary will make a level of trade adjustment. If the Secretary determines that price comparability has not been affected, the Secretary will not grant either a level of trade adjustment or a constructed export price offset.

Notes of Decisions
Cited in 47 cases (4 in the last 5 years), 1998–2025 · leading case: Pakfood Pub. Co. Ltd. v. United States, 724 F. Supp. 2d 1327 (Ct. Intl. Trade 2010).
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Pakfood Pub. Co. Ltd. v. United States, 724 F. Supp. 2d 1327 (Ct. Intl. Trade 2010). · cites it 8× “” 19 C.F.R. § 351.412 (c)(2). 22 In determining whether sales are made at different LOTs in the U.”
United States Steel Corp. v. United States, 179 F. Supp. 3d 1114 (Ct. Intl. Trade 2016). · cites it 5× “” 30 19 C.F.R. § 351.412 (e)(1)(i), (iii). Further, Commerce “will determine that sales are made at different levels of trade if they are made at different marketing stages (or their equivalent).”
Timken Co. v. United States, 240 F. Supp. 2d 1228 (Ct. Intl. Trade 2002). · cites it 4× “”); 19 C.F.R. § 351.412 (e). 10 The LOT adjustment was then calculated by applying the weighted-average percentage price difference to the *1236 normal value determined at the comparison LOT.”
Ta Chen Stainless Steel Pipe, Ltd. v. United States, 342 F. Supp. 2d 1191 (Ct. Intl. Trade 2004). · cites it 3× “4040, 4167; 19 C.F.R. § 351.412 (c)(2). A special adjustment called the “CEP offset” must be made when the agency determines that the LOT of the exporting market (ie.”
Dong-A Steel Co. v. United StatesPublic version posted 10/01/2020., 2020 CIT 139 (Ct. Intl. Trade 2020). · cites it 5× “19 C.F.R. §§ 351.412 (c)(2), 351.412(f)(1)(ii) (2020).”
Hyundai Steel Co. v. United States, 319 F. Supp. 3d 1327 (Ct. Intl. Trade 2018). · cites it 5× “§ 1677b(a)(7)(A) ; see also 19 C.F.R. § 351.412 (a)-(b) ; Micron Tech.”
Dillinger France S.A. v. United States, 2018 CIT 150 (Ct. Intl. Trade 2018). · cites it 2× “at 4-5 (citing 19 C.F.R. § 351.412 (c)(2) ; Preamble to Antidumping Duties; Countervailing Duties , 62 Fed.”
NSK Ltd. v. United States, 217 F. Supp. 2d 1291 (Ct. Intl. Trade 2002). · cites it 2× “Commerce later on reduced this principle to writing, and the pertinent regulation provides that [Commerce] will determine that a difference in level of trade has an effect on price comparability only if it is established to the satisfaction of [Commerce] that there is a 'pattern…”
Micron Tech., Inc. v. United States, 243 F.3d 1301 (Fed. Cir. 2001). · cites it 6× “See 19 C.F.R. § 351.412 (c)(2) (“The Secretary will determine that sales are made at different levels of trade if they are made at different marketing stages (or their equivalent).”
Corus Staal BV v. United States Dep't of Com., 259 F. Supp. 2d 1253 (Ct. Intl. Trade 2003). “” 19 C.F.R. § 351.412 (c)(2) (2002). The SAA provides that, in order to find that two LOTs are different, one requisite factor is “a difference between the actual functions performed by the sellers at the different levels of trade in the two markets.”
Dillinger France S.A. v. United States, 981 F.3d 1318 (Fed. Cir. 2020). “” 19 C.F.R. § 351.412 (c)(2). Commerce deter- mined that inventory maintenance alone did not make a substantial difference between the selling activities Case: 19-2395 Document: 93 Page: 16 Filed: 12/03/2020 16 DILLINGER FRANCE S.”
Torrington Co. v. United States, 146 F. Supp. 2d 845 (Ct. Intl. Trade 2001). “See 19 C.F.R. § 351.412 (c)(1) (ii) (1998). The second step is the determination of whether there are sales in the home market at the same level of trade as the adjusted CEP sales.”
Show all 47 citing cases →
— 19 C.F.R. § 351.412(c)(1) — 1 case
Micron Tech., Inc. v. United States, 243 F.3d 1301 (Fed. Cir. 2001).
— 19 C.F.R. § 351.412(c)(1)(ii) — 1 case
Micron Tech., Inc. v. United States, 243 F.3d 1301 (Fed. Cir. 2001).
— 19 C.F.R. § 351.412(c)(2) — 3 cases
Micron Tech., Inc. v. United States, 243 F.3d 1301 (Fed. Cir. 2001).
Andaman Seafood Co., Ltd. v. United States, 768 F. Supp. 2d 1315 (Ct. Intl. Trade 2011).
Compania Valenciana de Aluminio Baux, S.L.U. v. United States, 2025 CIT 127 (Ct. Intl. Trade 2025).
— 19 C.F.R. § 351.412(e) — 1 case
Jtekt Corp. v. United States, 675 F. Supp. 2d 1206 (Ct. Intl. Trade 2009).
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