(a) Benefit—(1) In general. In the case where goods or services are provided, a benefit exists to the extent that such goods or services are provided for less than adequate remuneration. See section 771(5)(E)(iv) of the Act.
(2) “Adequate Remuneration” defined—(i) In general. The Secretary will normally seek to measure the adequacy of remuneration by comparing the government price to a market-determined price for the good or service resulting from actual transactions in the country in question. Such a price could include prices stemming from actual transactions between private parties or actual imports. In choosing such transactions or sales, the Secretary will consider product similarity; quantities sold or imported; and other factors affecting comparability.
(ii) Actual market-determined price unavailable. If there is no useable market-determined price with which to make the comparison under paragraph (a)(2)(i) of this section, the Secretary will seek to measure the adequacy of remuneration by comparing the government price to a world market price where it is reasonable to conclude that such price would be available to purchasers in the country in question. Where there is more than one commercially available world market price, the Secretary will average such prices to the extent practicable, making due allowance for factors affecting comparability.
(iii) World market price unavailable. If there is no world market price available to purchasers in the country in question, the Secretary will normally measure the adequacy of remuneration by assessing whether the government price is consistent with market principles. In making an assessment of whether a government price is consistent with market principles under this provision, the Secretary may assess such factors as costs (including rates of return sufficient to ensure future operations), the government's price setting methodology, possible price discrimination, or a government price derived from actual sales from competitively run government auctions if the government auction:
(A) Uses competitive bid procedures that are open without restriction on the use of the good or service;
(B) Is open without restriction to all bidders, including foreign enterprises, and protects the confidentiality of the bidders;
(C) Accounts for the substantial majority of the actual government provision of the good or service in the jurisdiction in question; and
(D) Determines the winner based solely on price.
(iv) Use of delivered prices. In measuring adequate remuneration under paragraph (a)(2)(i) or (a)(2)(ii) of this section, the Secretary will adjust the comparison price to reflect the price that a firm actually paid or would pay if it imported the product. This adjustment will include delivery charges and import duties.
(v) Exclusion of certain prices. In measuring the adequacy of remuneration under this section, the Secretary may exclude certain prices from its analysis if interested parties have demonstrated, with sufficient information, that those prices are derived from countries with weak, ineffective, or nonexistent property (including intellectual property), human rights, labor, or environmental protections, and that the lack of such protections would likely impact such prices.
(b) Time of receipt of benefit. In the case of the provision of a good or service, the Secretary normally will consider a benefit as having been received as of the date on which the firm pays or, in the absence of payment, was due to pay for the government-provided good or service.
(c) Allocation of benefit to a particular time period. In the case of the provision of a good or service, the Secretary will normally allocate (expense) the benefit to the year in which the benefit is considered to have been received under paragraph (b) of this section. In the case of the provision of infrastructure, the Secretary will normally treat the benefit as non-recurring and will allocate the benefit to a particular year in accordance with § 351.524(d).
(d) Exception for general infrastructure. A financial contribution does not exist in the case of the government provision of general infrastructure. General infrastructure is defined as infrastructure that is created for the broad societal welfare of a country, region, state or municipality.
[63 FR 65407, Nov. 25, 1998, as amended at 89 FR 20841, Mar. 25, 2024; 89 FR 101766, Dec. 16, 2024]
Notes of Decisions
Changzhou Trina Solar Energy Co. v. United States, 2018 CIT 166 (Ct. Intl. Trade 2018).
· cites it 20× “" 19 C.F.R. § 351.511 (a)(2)(ii). 17 In this instance, Commerce combined two datasets, IHS Technology and UN Comtrade, the latter of which uses broad HTS categories.”
Nucor Corp. v. United States, 286 F. Supp. 3d 1364 (Ct. Intl. Trade 2018).
· cites it 27× “Decision Memo at 19-20; see also 19 C.F.R § 351.511 (a)(2)(i)-(iii) (providing how Commerce will measure the adequacy of remuneration).”
Beijing Tianhai Indus. Co. v. United States, 2015 CIT 14 (Ct. Intl. Trade 2015).
· cites it 30× “§ 1677 (5)(E)(iv) and 19 C.F.R. § 351.511 . 5 BTIC answered the questionnaires for itself and Tianjin Tianhai, describing their supply chain and indicating that one producer whose steel tube is at issue 6 was a non-cross-owned affiliate of BTIC (the “Affiliated Producer”).”
Nucor Corp. v. United States, 927 F.3d 1243 (Fed. Cir. 2019).
· cites it 16× “In determining whether KEPCO sold electricity to the Korean CORE producers for “less than adequate remuner- ation,” Commerce applied a regulation, 19 C.F.R. § 351.511 , that it had adopted in 1998 to guide application of that statutory standard.”
Maverick Tube Corp. v. United States, 2017 CIT 146 (Ct. Intl. Trade 2017).
· cites it 14× “See 19 C.F.R, § 351.511 (1999). To conform to the URAA, and its preference for market-based benchmark prices, Commerce adopted a' three-tiered, hierarchical .”
Guizhou Tyre Co. v. United States, 348 F. Supp. 3d 1261 (Ct. Intl. Trade 2018).
· cites it 10× “See 19 C.F.R. § 351.511 . First, by use of a "Tier 1" benchmark, Commerce typically compares the price the government sold the goods or service to the respondent with a market-determined price in the country in question.”
Borusan Mannesmann Boru Sanayi ve Ticaret A.S. v. United States, 2015 CIT 36 (Ct. Intl. Trade 2015).
· cites it 20× “§ 1677 (5)(E) and 19 C.F.R. § 351.511 (a)(2)(ii). Finally, because Borusan twice elected not to provide requested HRS purchase information, both times claiming it would be burdensome to do so, Commerce preliminary determined that it was necessary to apply facts available with an…”
Essar Steel Ltd. v. United States, 678 F.3d 1268 (Fed. Cir. 2012).
· cites it 6× “19 C.F.R. § 351.511 . Essar argues that Commerce erred in choosing benchmark prices for the sale of iron ore lumps and fines.”
Changzhou Trina Solar Energy Co. v. United States, 2016 CIT 121 (Ct. Intl. Trade 2016).
· cites it 8× “Benchmark Prices for Polysilicon and Solar Glass SolarWorld challenges Commerce’s -use of 1 percent and 12 percent import duty rates in its 19 C.F.R. § 351.511 (a)(2)(h) calculations of benchmark prices for polys-ilicon and solar glass, respectively, as unreasonable and…”
POSCO v. United States, 2018 CIT 169 (Ct. Intl. Trade 2018).
· cites it 10× “19 C.F.R. § 351.511 . Commerce "will normally seek to measure the adequacy of remuneration by comparing the government price to a market-determined price for the good or service resulting from actual transactions in the country in question.”
— 19 C.F.R. § 351.511(a)(2) — 4 cases
Changzhou Trina Solar Energy Co. v. United States, 2016 CIT 121 (Ct. Intl. Trade 2016).
“Benchmark Prices for Polysilicon and Solar Glass SolarWorld challenges Commerce’s -use of 1 percent and 12 percent import duty rates in its 19 C.F.R. § 351.511 (a)(2)(h) calculations of benchmark prices for polys-ilicon and solar glass, respectively, as unreasonable and…”
— 19 C.F.R. § 351.511(a)(2)(i) — 3 cases
Changzhou Trina Solar Energy Co. v. United States, 2018 CIT 166 (Ct. Intl. Trade 2018).
“" 19 C.F.R. § 351.511 (a)(2)(ii). 17 In this instance, Commerce combined two datasets, IHS Technology and UN Comtrade, the latter of which uses broad HTS categories.”
— 19 C.F.R. § 351.511(a)(2)(ii) — 5 cases
Changzhou Trina Solar Energy Co. v. United States, 2018 CIT 166 (Ct. Intl. Trade 2018).
“" 19 C.F.R. § 351.511 (a)(2)(ii). 17 In this instance, Commerce combined two datasets, IHS Technology and UN Comtrade, the latter of which uses broad HTS categories.”
— 19 C.F.R. § 351.511(a)(2)(iii) — 1 case
— 19 C.F.R. § 351.511(a)(2)(iv) — 1 case
— 19 C.F.R. § 351.511(a)(iv) — 1 case
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