• United States – Countervailing Measures on Certain Hot-Rolled Carbon Steel Flat Products from India (DS436);
• India – Certain Measures Relating to Solar Cells and Solar Modules (DS456);
• United States – Certain Measures Relating to the Renewable Energy Sector (DS510);
• India – Export Related Measures (DS541);
• United States – Certain Measures on Steel and Aluminium Products (DS547); and
• India – Additional Duties on Certain Products from the United States (DS585).

While the United States made no additional concessions, India also agreed to remove retaliatory tariffs that it previously imposed on chickpeas, lentils, almonds, walnuts, apples, boric acid, and diagnostic reagents in response to former President Trump’s Section 232 duties on steel and aluminum.

In a release announcing the agreement, the Office of the U.S. Trade Representative stated that yesterday’s resolution “maintains the integrity of the U.S. Section 232 measures” and will “restore and expand market opportunities for U.S. agricultural producers and manufacturers.”

The Office of Foreign Assets Control (OFAC) published new guidance today warning that gold transactions involving Russia could trigger U.S. sanctions penalties and separately issued new and amended Russia-related general licenses.

New Sanctions Measures

OFAC also added the following persons to the SDN List:

• Herman Oskarovich Gref, the CEO of Sberbank;
• Persons affiliated with Gennady Timchenko;
• The State Duma of the Federal Assembly of the Russian Federation, and 328 of its members; and
• 17 board members of Sovcombank.

Anti-Evasion Initiative

Gold Guidance

General Licenses

The investigation on electrical transformer components will cover laminations for stacked cores for incorporation into transformers, stacked and wound cores for incorporation into transformers, electrical transformers, and transformer regulators. Transformers are an essential part of the U.S. energy infrastructure. The Department’s press release notes that “[a]n assured domestic supply of these products enables the United States to respond to large power disruptions affecting civilian populations, critical infrastructure, and U.S. defense industrial production capabilities.” Several members of Congress had previously urged the Administration to initiate proceedings.

The investigation on mobile cranes follows a petition filed by domestic producer The Manitowoc Company, Inc. (“Manitowoc”), according to the Department’s press release. That petition, filed in December, alleges that “increased imports of low-priced mobile cranes, particularly from Germany, Austria, and Japan, and intellectual property (IP) infringement by foreign competition, have harmed the domestic mobile crane manufacturing industry.” Mobile cranes are considered a critical industry due to their extensive use in national defense and critical infrastructure applications. Manitowoc also alleges that low-priced imports and IP infringement of mobile cranes caused the closure of one of its two U.S. production facilities, eliminating hundreds of skilled U.S. manufacturing jobs.

The Department now has 270 days to provide a report to President Trump determining whether these imports threaten to impair U.S. national security, along with a recommendation for action. President Trump will then have 90 days to determine whether or not to impose restrictions so that imports no longer threaten national security.

In May 2016, China returned to the WTO to request consultations with the United States under Article 21.5 of the Dispute Settlement Understanding (DSU), which establishes procedures for when parties disagree about whether the losing party has implemented the DSB’s recommendations and rulings. Failed consultations led to the establishment of a compliance panel, which issued a decision in March 2018. Both China and the United States appealed to the WTO Appellate Body. In July 2019, the Appellate Body upheld the compliance panel’s determination that China failed to demonstrate the United States’ public bodies analysis was inconsistent with the DSB’s 2015 rulings and recommendations. The Appellate Body affirmed that “Article 1.1(a)(1) {of the WTO Subsidies and Countervailing Measures Agreement} does not prescribe a connection of a particular degree or nature that must necessarily be established between an identified government function and the particular financial contribution at issue” in order to consider the enterprise a public body. The Appellate Body also upheld the compliance panel’s finding that Commerce’s “public body determinations at issue were not based on an improper legal standard.” The Appellate Body, however, found against the United States on two issues. First, with respect to the benchmark issue, the Appellate Body upheld the compliance panel’s conclusion that the United States “failed to explain . . . how government intervention in the market resulted in domestic prices for the inputs at issue deviating from a market-determined price,” and that Commerce also “failed to consider price data on the record.” Second, with respect to certain de facto specificity findings, the Appellate Body upheld the compliance panel’s finding that Commerce’s revised specificity determinations did not comply with the Subsidies and Countervailing Measures Agreement’s requirement to “take account of the length of time during which the subsidy programme has been in operation.”

The Appellate Body’s compliance findings were adopted by the DSB at the latter’s August 15, 2019 meeting. In a statement at that meeting, the United States reiterated its substantive concerns with and objections to the case results and asserted that “China is using the WTO dispute settlement system to seek to evade the disciplines on subsidies that all WTO Members agreed to in the Subsidies Agreement. While the United States has been the responding Member in several disputes China has brought, China has been – and continues to be – the serial offender.”

Seizing on the compliance rulings in its favor, China now seeks compensation under Article 22 of the DSU, which allows a WTO member prevailing in a dispute to seek the temporary remedy of suspending concessions to the losing member in the event DSB recommendations and rulings are not implemented. To suspend concessions means to be relieved of the obligation to provide trade benefits under WTO rules to the other member. China’s specific request is to suspend concessions with respect to trade in goods, valued at $2.4 billion, on an annual basis.

Procedurally, the DSB will take up China’s request at its next meeting on October 28, 2019. Authorization is virtually automatic. The United States, however, may challenge the level of the remedy proposed by China, in which case an arbitration proceeding will determine “whether the level of such suspension is equivalent to the level of” China’s trade benefits nullified or impaired by the United States’ non-compliance. China’s move comes at the same time as the two governments separately reached a “Phase One” agreement intended to reduce trade tensions related to President Trump’s tariff actions under Section 301 of the Trade Act of 1974.

CBP’s Trade and Travel Report for Fiscal Year 2018 relates a significant uptick in the agency’s investigative work stemming from EAPA allegations. In particular, CBP received nearly double the allegations in fiscal year 2018 that it received in fiscal year 2017. The agency also issued final determinations in 12 investigations, up from only 1 the year before. Despite the uptick in work, CBP touts having “met every statutory deadline for all EAPA investigations,” even rendering decisions ahead of statutory deadlines in some cases, and proclaims that this process has “proven to be a success{}.” CBP’s bullish outlook should encourage even more stakeholders to come forward with allegations and to participate in the process.

There are, however, a few considerations that potential allegers should consider before filing an allegation. CBP’s regulations define the “date of receipt” of an allegation, as the date “on which CBP provides an acknowledgement of receipt of an allegation.” As a practical matter, by defining the date of receipt as the date that CBP acknowledges receipt, CBP has built in a period of time where it can work with allegers to ensure that the agency understands the allegation and identify any potential holes in the allegation that the agency sees at this early stage.

After notifying the alleger that its allegation has been received, the statutory clock on initiation and imposition of interim measures starts ticking. Although the statutory deadline for initiating an investigation is 15 days from CBP’s receipt of an allegation, CBP does not notify the public of its determination to initiate until CBP determines whether it is appropriate to impose interim measures, or not more than 95 days from the date of receipt.

During this 95-day window, CBP seeks to determine whether there is “a reasonable suspicion” that evasion is occurring. If the record does not support such a determination, CBP provides the alleger with an opportunity to withdraw its allegation so that the allegation will not become a matter of public record. This preserves the alleger’s ability to undertake additional research and/or gather additional information, without alerting the alleged evading parties to the allegation.

If CBP determines “a reasonable suspicion” of evasion does exist, or the alleger does not withdraw its allegation, CBPpublishes a notice on its portal. All of CBP’s notices of action can be found here.

Given this interactive approach, it is likely that CBP has devoted significant resources to ensuring evasion of antidumping and countervailing duties is not occurring. Further, as additional stakeholders become aware of this process, it is likely that EAPA investigations will become more commonplace.

The first night’s debate lacked any questions on trade by the moderators, but a few of the candidates mentioned “China” when asked about the largest geopolitical threat facing the United States. Congressman Tim Ryan (OH) was the most explicit in his remarks singling out China as an economic threat. He and several other candidates talked about manufacturing jobs, but there was little in the way of connecting trade and jobs.

On the second night, moderator Lester Holt of NBC asked a question about trade, but only three candidates had a chance to answer before the debate was halted for a break.

Senator Bennet of Colorado said that China is a big problem, but argued that the best way to deal with China was to unite with our allies. Andrew Yang focused on China’s intellectual property theft, but said that imposing tariffs to address the Chinese behavior is a mistake. Mayor Pete Buttigieg stated that the Chinese government is using technology in the pursuit of authoritarianism. He mentioned as well that the Chinese are trying to dominate certain technologies. That said, he criticized the use of tariffs, which he referred to as a tax, and he said the tariffs have hurt farmers.

Missing from the first two nights were comments by the candidates leading in the polls. At some point in the campaign, perhaps in the next debate, former Vice President Biden and the other candidates will engage in a discussion of the trade policies of the Obama Administration, which proved to be somewhat sensitive for former Secretary of State Hilary Clinton when she was campaigning against candidate Trump. By way of background, in the 2008 Democratic primary campaigns, then-candidate Obama built up a lead with wins in the early primary states. When the campaign moved to the Midwest industrial states, then-candidate Clinton staked out a more hard-line trade policy that contrasted with the more free-trade policies of Sen. Obama. In doing so, she, her approach was also a contrast with President Clinton's free trade actions, including NAFTA. Ultimately, Mr. Obama moved a little closer to former Sen. Clinton's positions and went on to win the presidency. Notably, trade was not a particularly contentious issue in the campaign, as former Senator McCain, the Republican nominee was more free trade oriented than Sen. Obama. By the time of the 2016 campaign, however, trade was front and center. The Republican nominee, Mr. Trump, hammered former Secretary Clinton for referring to the Transpacific Partnership Agreement as the "Gold Standard" for trade agreements and being weak on trade generally. While Secretary Clinton tried to back away from that early support for the TPP, it was an issue that Mr. Trump emphasized, particularly in the Midwest industrial states, and proved costly there. If former Vice-President Biden is the Democratic nominee, President Trump will surely be raising the TPP issue as well as the other policies of the Obama Administration. As mentioned, it is likely that the debate over those policies will begin among the Democrats first. It will be a delicate issue as Democrats do not want to be seen as criticizing the Obama Administration, but do not want to give President Trump any openings.

The trade debate is unlikely to be boring--or largely absent, as it was for the first debates.

The deal does not impose quotas – which the United States had sought – but does requires the parties to develop and implement surge-monitoring procedures. In the case of a surge “beyond historic volumes of trade over a period of time,” the exporting country faces the risk of reimposed tariffs. In monitoring surges, however, steel that is “melted and poured in North America” may be separately counted.

The deal also requires Canada and Mexico to adopt anti-circumvention enforcement measures to avoid transshipment of non-Canadian and non-Mexican steel and aluminum across their borders.

Eliminating the Section 232 tariffs for Canada and Mexico removes a major hurdle to Congressional approval of the U.S.-Mexico-Canada Agreement (USMCA). Senator Grassley (R-IA), chairman of the Senate Finance Committee (with jurisdiction over international trade issues), has repeatedly tied ratification of USMCA to lifting the tariffs for Canada and Mexico.

On November 26, 2018, a bipartisan group of U.S. Senators sent a letter to the GAO requesting the agency to conduct a formal review of Commerce’s exclusion request process. Specifically, they noted that “Members of Congress and U.S. businesses have repeatedly raised concerns about the pace, transparency, and fairness of the section 232 steel and aluminum exclusion process.” The letter, which was signed by Senators Tom Carper (D-Del.), Doug Jones (D-Ala.), and Pat Toomey (R-Pa.), urged the GAO to examine several questions, including how Commerce has incorporated feedback from petitioners, members of Congress, and other stakeholders to develop and improve the process; what criteria is used to approve or deny an exclusion request; what steps have been taken to timely process exclusion requests; how it trains staff to evaluate exclusion requests; the average amount of time Commerce takes to issue a decision on a request; whether it ensures transparency and adequate communication with petitioners; and what degree of technical support is provided to assist petitioners, especially small businesses. A copy of the letter is available here. The GAO is set to begin its review of the exclusion process by March 2019.

On another note, the President’s authority to impose tariffs under Section 232 is currently on appeal before the U.S. Court of International Trade. The case, which is led by the American Institute for International Steel (“AIIS”), claims that Section 232 of the Trade Expansion Act of 1962 violates the U.S. Constitution because it wrongly transfers authority over trade policy from Congress to the executive branch. Oral argument was held earlier this week and at least one judge of the three-judge panel appeared to be sympathetic to the AIIS’s claims. As published by Law360, Judge Claire Kelly was quoted as stating “{m}y concern is that at some point, is there any limit on what kind of power you can give away?” “Without judicial review, it seems Congress has given away a whole lot, and maybe you shouldn’t be allowed to do that?”

As it did during its recent 232 investigations concerning U.S. imports of steel and aluminum, the Commerce Department is seeking participation from the public in the form of written comments and public testimony. The following are the key dates for interested parties who would like to participate in the investigation:

• June 22, 2018 – Deadline to submit affirmative comments, request to appear at the public hearing, and submit a summary of expected testimony
• July 6, 2018 – Deadline to submit rebuttal comments
• July 19-20, 2018 – Public hearings held at 8:30 a.m. to 5:00 p.m. ET

Korea also challenges specific Commerce Department’s findings in multiple AD/CVD investigations, including on large power transformers, cold-rolled steel flat products, hot-rolled steel flat products, and corrosion-resistant steel products (“CORE”). WTO rules provide 60 days for the United States and Korea to discuss settlement of the dispute before Korea may file a more formal complaint to continue the dispute.

Senator Peters is hopeful that an increased focus on smaller business will allow regional farmers, such as cherry farmers in Michigan, to obtain long-sought relief from potentially dumped competitive products. Both Senators voiced concern that smaller businesses may not be aware of trade violations, or lack adequate resources to investigate suspected violations, which can be both time-consuming and costly. The President has indicated support for the bill.

The Secretary’s press release presents the agency’s key findings and lists the agency’s various recommended remedies. With respect to steel imports, the Department of Commerce recommends three alternative options to the President:

1. A global tariff of at least 24% on all steel imports from all countries, or
2. A tariff of at least 53% on all steel imports from 12 countries (Brazil, China, Costa Rica, Egypt, India, Malaysia, Republic of Korea, Russia, South Africa, Thailand, Turkey and Vietnam) with a quota by product on steel imports from all other countries equal to 100% of their 2017 exports to the United States, or
3. A quota on all steel products from all countries equal to 63% of each country’s 2017 exports to the United States.

1. A tariff of at least 7.7% on all aluminum exports from all countries, or
2. A tariff of 23.6% on all products from China, Hong Kong, Russia, Venezuela and Vietnam. All the other countries would be subject to quotas equal to 100% of their 2017 exports to the United States, or
3. A quota on all imports from all countries equal to a maximum of 86.7% of their 2017 exports to the United States.

The Commerce Department’s reports also recommend that a process be set up to allow Secretary Ross to grant requests by U.S. companies to exclude certain products from whatever remedy President Trump ultimately imposes.

The Kelley Drye International Trade team is closely reviewing these reports and monitoring any further developments.

Capella did not participate in U.S. Department of Commerce’s (“Commerce”) 2011-2012 administrative review of aluminum extrusions from China. As a result, its entries were subject to the 374.15% “all others” rate under the countervailing duty order. In connection with other litigation, the 374.15% “all others” rate was reduced to 7.37% in October 2015 based on challenges brought by several other importers of aluminum extrusions.

Capella, however, challenged the countervailing duty margin applied to its entries and filed two complaints at the U.S. Court of International Trade (“CIT”) challenging Commerce’s liquidation instructions that incorporated that rate. In its complaints, Capella asserted that Commerce could not lawfully apply the 374.15% rate to Cappella’s entries because the disparity between that rate and the litigated 7.37% rate was too great. The CIT dismissed Capella’s complaints for failure to state a claim. In its decisions, the CIT found that the statute contemplates that the CVD rate Commerce established in its final determination is the rate that applies to pre-Timken notice entries when liquidation is not 1) enjoined by a court decision, or 2) the subject of administrative review. Further, because Capella’s imports were entered before publication of the Timken notice, the company did not request administrative review of its entries, and it did not participate in the rate-lowering litigation – it could not claim the benefit of the lower all-others rate.

In its decision, the Federal Circuit upheld the CIT’s two decisions dismissing Capella’s complaints. The Federal Circuit found that, based on the facts of the case, the statute and legislative history supported the CIT’s findings. Specifically, like the CIT, the CAFC determined that because Capella did not participate in the litigation challenging the 374.15% all others rate, and because Capella’s pre-Timken notice entries were not enjoined by a court order, its entries were properly liquidated “as entered” at the “all others” rate of 374.15% identified in the final determination

In the solar panel case, the President announced increased tariffs for four years, starting at 30 percent and declining five percent per year over the relief period. These tariffs are lower than those sought by the two domestic petitioners in the case, Solar World and Suniva. The sting of the tariffs is softened further by the exemption from additional duties for the first 2.5 gigawatts of solar panels that are imported each year.

In addition to announcing duties on solar panels and cells, the President’s announcement addressed a long-running dispute involving polysilicon imports into the U.S. and China. Both countries have antidumping and countervailing duties on imports from one another—and the Chinese imposition of tariffs was clearly unjustified retaliation for the U.S. case. The U.S. producers of polysilicon have sought negotiations to eliminate the restraints in both markets, so the inclusion of the commitment by the Administration to seek a solution to this problem was warmly received by the domestic producers.

The washing machine tariffs had a similar structure as the solar tariffs, but relief will only extend for three years. The first 1.2 million imports of finished washers will face 20 percent duties, declining to 16 percent over three years. Imports over 1.2 million units will face 50 percent duties, as will parts. The exemption for parts starts at 50,000 units and increases to 90,000 over three years.

While it appears that the import relief for Whirlpool, the main U.S. company behind the washing machine case, appears more effective than the relief for the solar panel producers, imports and retailers of both products have expressed concern about the prospect of rising prices for their products.

Neither the White House nor the Commerce Department has announced the contents of the report and whether the Commerce Department concluded that steel imports (or a particular subset of steel imports) pose a threat to national security. The Commerce Department issued a press release stating that the Secretary reported the Department's findings to the President. After the President has announced a decision, the Department intends to publish the public findings of the investigation.

As we have reported here and here, the question of whether the United States would continue to treat China as an non-market economy (“NME”) for purposes of the Department of Commerce’s antidumping duty analysis was recently decided by the Administration. In a 200-page memorandum issued at the end of October, Commerce announced that it would continue to apply alternative dumping methodologies with respect to China given the substantial evidence that China continues to be an NME.

That has not stopped China from initiating dispute settlement proceedings at the World Trade Organization (“WTO”) against the European Union (DS516) and the United States (DS515). In each dispute, China is challenging the WTO member’s applied antidumping duty methodology with respect to imports from China, which China believes are prohibited under a provision of its 2001 Protocol of Accession to the WTO and inconsistent with provisions of the WTO Antidumping Duty Agreement and the General Agreement on Trade and Tariffs (“GATT 1994”).

In the United States dispute, China requested additional consultations with the United States in early November in light of the October memo announcing the United States’ ongoing treatment of China as an NME.

In the EU dispute, a dispute settlement panel was composed in July 2017, and the parties have been filing legal briefs. The United States, as a third party to the EU proceeding, filed its brief last week that presents the United States first legal analysis of this issue with respect to WTO law.

The United States’ argument rests on the interpretation of the GATT 1994 and WTO Antidumping Duty Agreement as recognizing that NME prices are distorted and unreliable, and, thus, unsuitable for the price comparability determination required in an antidumping price comparison. According to the United States, this basic principle – and the authority to reject and replace NME prices for purposes of antidumping comparisons – predates and is not extinguished by China’s Protocol of Accession. In support of this argument, the United States cites to the WTO accession documents of Poland, Romania, and Hungary (NMEs at the time of their accession in the 1960s and 1970s) that affirmed WTO members’ ability to adopt alternative antidumping methodologies unless market economy conditions prevail.

This briefing and argument phase, prior to the dispute settlement panel’s final report to the parties, will take at least six months, and likely longer. The panel’s findings will be subject to appeal, and, if appealed, the entire dispute process may take 18 months to two years. In addition to the United States, Australia, Bahrain, Brazil, Canada, Colombia, Ecuador, India, Indonesia, Japan, Kazakhstan, South Korea, Mexico, Norway, Russia, Taiwan, Turkey, and the United Arab Emirates have joined as third parties in the EU dispute.

The Department’s use of self-initiation authority has been judicious and rare. In an agency-issued press release Secretary Wilbur Ross stated, “{w}e are self-initiating the first trade case in over a quarter century, showing once again that we stand in constant vigilance in support of free, fair, and reciprocal trade.” The Department further noted that it last self-initiated a countervailing duty investigation in 1991 on softwood lumber from Canada, and last self-initiated an antidumping duty investigation in 1985 on semiconductors from Japan.

Use of U.S. AD/CVD laws have increased by 65 percent under the Trump Administration, according to the press release, and appear to be a key instrument of choice to combat unfairly traded exports and protect injured and vulnerable domestic industries. The agency notes, apart from the self-initiated cases, that it has initiated 77 combined AD and CVD cases in response to domestic industry petitions in 2017 – in contrast to 48 combined AD/CVD cases initiated in 2016. In addition to these self-initiated dumping and subsidy cases focusing on aluminum from China, the Commerce Department has also initiated a broader Section 232 investigation to determine whether aluminum imports overall threaten to impair the national security. If the Commerce Department issues an affirmative finding, the President has broad power to impose trade remedies – including tariffs and quotas – to “adjust” the imports so that they will not threaten to impair the national security. The Commerce Department’s Section 232 aluminum determination is due in January 2018.

In terms of next steps for the aluminum sheet AD and CVD cases, International Trade Commission preliminary determinations are due on or before January 16, 2018. If the ITC issues an affirmative preliminarily determination that there is injury or threat of injury, then the Commerce Department investigations will continue with deadlines of February 2018 to issue a preliminary CVD determination, and April 2018 to issues a preliminary AD determination. Affirmative preliminary Commerce determinations would allow Customs and Border Protection to begin collecting cash deposits from all U.S. companies importing the subject aluminum sheet from China. If the investigations proceed without any extensions in the preliminary phase, the Commerce Department’s final determinations would be due in April 2018 and July 2018 for the CVD and AD investigations, respectively.

Commerce was spurred to review its position on China’s NME status, last addressed in 2006, following the December 11, 2016 change in China’s Protocol of Accession to the World Trade Organization (“WTO”). By way of background, the WTO Antidumping Agreement permits WTO member countries to impose duties on dumped imports. Those duties are calculated as either the difference between the imported product’s export price and the comparable home market price, or the difference between the export price and a constructed value based on the product’s cost of production. Sometimes, however, those home market prices or costs of production do not reflect market forces, particularly in NME countries. Accordingly, the WTO Antidumping Agreement allows members to apply alternative dumping methodologies, including, for example, values other than home market prices or costs as comparisons to calculating dumping margins.

When China acceded to the WTO in 2001, a provision in its Protocol of Accession dealt with this very situation, permitting China to be treated as an NME for antidumping purposes. Aspects of that provision expired on December 11, 2016. China claims that as of December 12, 2016, the Protocol requires that China be considered an NME for purposes of the antidumping law. The United States has disagreed with China and maintained that the Protocol simply requires that other countries no longer presume that China was still a nonmarket economy; the issue of China’s NME status needed to be reexamined. While the EU has proposed changes in its rules concerning China, neither the EU nor the U.S. has found China to be a market economy. China has requested dispute settlement consultations with the United States and the EU at the WTO.

In the United States, on April 3, 2017, Commerce announced it was seeking public comment on China’s NME status in the context of its antidumping investigation on aluminum foil from China, the agency’s first antidumping duty investigation since the December 11^th change. Commerce accepted submissions until May 10, 2017, by which time it had received an overwhelming majority of comments from industry associations and coalitions, labor unions, individual companies across a variety of sectors, the legal community, and members of Congress in support of continuing China’s NME status.

In reaching its conclusion, Commerce examined the six factors set forth in the Tariff Act of 1930 for determining whether a country is an NME: (1) the extent to which the currency of the foreign country is convertible into the currency of other countries; (2) the extent to which wage rates in the foreign country are determined by free bargaining between labor and management; (3) the extent to which joint ventures or other investments by firms of other foreign countries are permitted in the foreign country; (4) the extent of government ownership or control of the means of production; (5) the extent of government control over the allocation of resources and over the price and output decisions of enterprises; and (6) any other appropriate considerations. Commerce determined, based on the information provided by the public, that China continues to be a non-market economy:

At its core, the framework of China’s economy is set by the Chinese government and the Chinese Communist Party (CCP), which exercise control directly and indirectly over the allocation of resources through instruments such as government ownership and control of key economic actors and government directives. The stated fundamental objective of the government and the CCP is to uphold the “socialist market economy” in which the Chinese government and the CCP direct and channel economic actors to meet the targets of state planning. The Chinese government does not seek economic outcomes that reflect predominantly market forces outside of a larger institutional framework of government and CCP control. In China’s economic framework, state planning through industrial policies conveys instructions regarding sector-specific economic objectives, particularly for those sectors deemed strategic and fundamental. . . .

This ability to affect these market forces is apparent in crucial facets of the economy, from the formation of exchange rates and input prices to the movement of labor, the use of land, the allocation of domestic and foreign investment, and market entry and exit. Because of the significant distortions arising from China’s institutional structure and the control the government and the CCP exercise through that structure, the Department finds that China remains a NME country for purposes of the U.S. antidumping law.

Commerce’s full 200 page memo, supported by extensive outside legal, economic, and financial research can be found here. The agency’s decision has been widely praised by domestic manufacturers seeking strong enforcement of the U.S. trade remedy laws.

The Department previously made a preliminary affirmative determination that Chinese exporters and producers of aluminum foil were receiving countervailable subsidies at rates ranging from 16.56 to 80.97 percent.

As a result of the Department’s affirmative preliminary finding of dumping, the agency will instruct U.S. Customs and Border Protection to begin collecting cash deposits at the applicable rates with certain adjustments based on the preliminary calculated subsidy rates.

The Department’s final determinations in the on-going countervailing duty and antidumping investigations are scheduled to be announced on February 22, 2018.

As part of its investigation into the alleged dumping of aluminum foil from China, the Department initiated an inquiry into whether China should continue to be treated as a non-market economy (“NME”) for purposes of the U.S. antidumping law. In connection with its preliminary affirmative determination that aluminum foil from China is being sold at unfairly low prices in the United States, the Department of Commerce also announced its decision to continue to treat China as an NME. Because the Department already solicited comments and information from the public concerning this issue, it will not reconsider its decision or solicit additional comments or information.

The petitioner is the Aluminum Enforcement Working Group and is represented by John M. Herrmann, Paul C. Rosenthal, Kathleen W. Cannon, Grace W. Kim and Joshua R. Morey of Kelley Drye & Warren LLP.

Mr. Devaney and Mr. Stayin were nominated to fill the Commissioner positions of Commissioners Kieff and Pinkert, who left the ITC earlier this year. President Trump’s two nominations were made with the ITC operating with only four out of six Commissioners and experiencing a historically high Section 337 caseload.

Mr. Devaney has concentrated his legal practice on advising clients on international trade issues and labor and employment disputes arising in litigation, regulatory, and legislative matters. He has acted as trial counsel in arbitration hearings, represented clients in matters arising under the National Labor Relations Act, and represented employers in defense of discrimination claims and in collective bargaining agreement negotiation and administration. His litigation experience includes representing clients before the National Labor Relations Board, the Equal Employment Opportunity Commission, and in state and federal courts. Mr. Devaney is a former Commissioner of the U.S. International Trade Commission, Board Member of the National Labor Relations Board (NLRB), and General Counsel for the Federal Labor Relations Authority.

Mr. Stayin’s legal practice has focused on international trade policy and trade regulation, but also includes non-profit trade association, federal legislative, and federal regulatory law representation. Throughout his years of practicing international trade law, he has litigated antidumping and countervailing duty investigations, sunset reviews, trademark infringement, 301 unfair trade practices, 201 safeguards, 232 national security, generalized system of preferences, export regulation, trade sanctions, anti-boycott, and U.S. Customs and Border Control enforcement issues. He has represented clients before the International Trade Commission, the U.S. Department of Commerce, the Office of the U.S. Trade Representative, the Court of International Trade, the Court of Appeals for the Federal Circuit, NAFTA dispute panels, and NAFTA and Uruguay Round/WTO negotiations. In addition to practicing trade law, Mr. Stayin served as chief of staff to Senator Robert Taft, Jr. and trade advisor to the Senator for the negation of the Trade Act of 1974.