On September 3, the Court of Appeals for the Federal Circuit issued a decision in Changzhou Trina Solar Energy v. US, regarding the calculation of anti-dumping (AD) duties in cases involving parallel anti-subsidy (or countervailing duty, CVD) determinations. (The decision may be found here.) The Court concluded that where the Department of Commerce found that an export subsidy had been conferred on an exporter by its government, Commerce must adjust the calculation of the parallel AD duty to avoid double counting the economic impact of the subsidy. Even where the export subsidy finding was based on “adverse facts available” (AFA) because of non-cooperation by the foreign government, the mandatory language of the AD statute (using the word “shall”) requires the adjustment. Commerce cannot refuse to make the statutory adjustment as punishment, in order to induce the foreign government to cooperate in future cases. The Court’s decision is significant in light of the number of cases in which there are parallel AD and export subsidy determinations involving the application of AFA. For more information, contact us at neil@neilellislaw.com.
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The U.S. Department of Commerce, International Trade Administration, recently published proposed amendments to several provisions of its regulations governing the procedures in antidumping (AD) and countervailing (anti-subsidy) (CVD) cases. The Department’s notice is found here. These proposed amendments would substantially revise its procedures and administration of new shipper reviews, scope inquiries, and anti-circumvention inquiries. If enacted, these would be the most significant amendments to the Department’s AD/CVD regulations since they were first promulgated in 1997. The Department has opened a period of public comments on the proposed amendments, which will end on September 14, 2020. For more information or assistance, please contact us at neil@neilellislaw.com.
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