TARGETED DUMPING. Library Briefing Glenn Johnston

Transcription

1 TARGETED DUMPING Library Briefing Glenn Johnston By

2 FOREWORD This guide has been prepared to familiarize court staff with the concept of targeted dumping and the applicable methodologies utilized by the Department of Commerce in dealing with alleged targeted dumping. 1

3 TABLE OF AUTHORITIES Cases and Rulings Ad Hoc Shrimp Trade Action Committee v. U.S., 925 F.Supp.2d 1367 Ct.Intl.Trade,2013 American Silicon Technologies v. U.S., 261 F.3d 1371 C.A.Fed.,2001 Antidumping Duties; Countervailing Duties; Final rule, 62 FR 27296, (May 19, 1997) Antidumping Proceedings: Calculation of the Weighted-Average Dumping Margin During an Antidumping Investigation; Final Modification, 71 FR (December 27, 2006) Atar, S.r.l. v. U.S., 637 F.Supp.2d 1068 Ct.Intl.Trade,2009 Baroque Timber Industries (Zhongshan) Co., Ltd., v. U.S. F.Supp.2d., 2014 WL , CIT 2014 (03/31/2014) Borden, Inc. v. U.S., 22 C.I.T. 233, F.Supp.2d (CIT, March 26, 1998) Brass Sheet and Strip From Canada: Final Results of Antidumping Duty Administrative Review and Notice of Intent Not To Revoke Order in Part, 64 FR (August 25, 1999) Certain Cold-Rolled and Corrosion-Resistant Carbon Steel Flat Products From Korea: Final Results of Antidumping Duty Administrative Reviews, 62 FR (April 15, 1997) Certain Corrosion-Resistant Carbon Steel Flat Products from the Republic of Korea: Notice of Final Results of the Fourteenth Administrative Review and Partial Rescission, 74 FR (March 16, 2009) Certain Frozen Warmwater Shrimp From Thailand: Final Results and Partial Rescission of Antidumping Duty Administrative Review, 74 FR (September 16, 2009) 2

4 Certain Steel Concrete Reinforcing Bars From Turkey; Final Results of Antidumping Duty Administrative Review and Determination To Revoke in Part, 73 FR (November 7, 2008) Chang Chun Petrochemical Co. Ltd. v. U.S. 906 F.Supp.2d 1369 CIT,2013. Corus Staal BV v. U.S., 502 F.3d (Fed. Cir., 2007) Crawfish Processors Alliance v. U.S., 343 F.Supp.2d 1242 Ct.Intl.Trade,2004 Dorbest Ltd. v. U.S., 755 F.Supp.2d 1291 Ct.Intl.Trade,2011 Far Eastern New Century Corp. v. U.S., 34 ITRD 1985 Ct.Intl.Trade,2012 Final Determination of Sales at Less Than Fair Value: Canned Pineapple Fruit From Thailand, 60 FR (June 5, 1995) Final Determination of Sales at Less Than Fair Value: Certain Activated Carbon from the People s Republic of China, 72 FR 9508 (March 2, 2007) Gold East Paper (Jiangsu) Co., Ltd., v. U.S., CIT 2013, 918 F.Supp.2d 1317 Grain-Oriented Electrical Steel From Italy: Final Results of Antidumping Administrative Review, 66 FR (March 14, 2001) Gray Portland Cement and Clinker From Mexico; Final Results of Antidumping Duty Administrative Review, 69 FR (December 29, 2004) (Cement from Mexico) Grobest & I-Mei Indus. (Vietnam) Co., Ltd. v. U.S., 815 F.Supp.2d 1342 Ct.Intl.Trade,2012 Home Meridian Intern., Inc. v. U.S., 922 F.Supp.2d 1366 Ct.Intl.Trade,2013 Honey from Argentina: Final Results, Partial Rescission of Antidumping Duty Administrative Review and Determination Not to Revoke in Part, 71 FR (May 4, 2006) (Honey) Jinan Yipin Corp., Ltd. v. U.S., 2014 WL Ct.Intl.Trade,2014 3

5 Matter of Sales at Less Than Fair Value of Certain Softwood Lumber from Canada, Remand Redetermination, Secretariat File No. USA-CDA (July 11, 2005) Mid Continent Nail Corp. v. U.S., CIT 2010, 712 F. Supp.2d 1370 Mittal Steel Point Lisas Ltd. v. U.S., 548 F.3d 1375 C.A.Fed.,2008 Murata Mfg. Co., Ltd v. United States, 820 F. Supp. at 606, Nachi-Fujikoshi Corp., v. U.S., 798 F. Supp. 716 (CIT 1992) NMB Singapore, Ltd., v. U.S., 31 C.I.T. 1943, 533 F.Supp.2d (CIT, November 30, 2007) Notice of Final Determination of Sales at Less Than Fair Value: Brake Drums and Brake Rotors From the People s Republic of China, 62 FR 9160, 9168 (February 28, 1997) Notice of Final Determination of Sales at Less Than Fair Value: Certain Cut-to-Length Carbon Steel Plate From South Africa, 62 FR (November 19, 1997) Notice of Final Determination of Sales at Less Than Fair Value: Coated Free Sheet Paper from the Republic of Korea, 72 FR (October 25, 2007) Notice of Final Determination of Sales at Less Than Fair Value: Stainless Steel Round Wire from Canada, 64 FR (April 9, 1999) (Wire from Canada) Notice of Final Determination of Sales at Less Than Fair Value and Affirmative Final Determination of Critical Circumstances: Certain Orange Juice from Brazil, 71 FR 2183 (January 13, 2006) NSK, Ltd., v. U.S., 416 F. Supp.2d 1334 (CIT 2006) Nucor Corp. v. U.S., 612 F.Supp.2d 1264 Ct.Intl.Trade,2009 Polyethylene Retail Carrier Bags from Taiwan: Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination, 74 FR (October 27, 2009) (Preliminary Determination) Rajinder Pipes Ltd. v. U.S., 70 F.Supp.2d 1350 Ct.Intl.Trade,1999 4

6 Searing Industries, v. U.S., 33 C.I.T. 1681, 662 F.Supp.2d (CIT, November 6, 2009) Shenyang Yuanda Aluminum Industry Engineering Co., Ltd. V. U.S., 961 F.Supp.2d 1291 (CIT, 1/30/2014) Stanley Works (Langfang) Fastening Systems Co., Ltd. v. U.S., 35 ITRD 2435 Ct.Intl.Trade,2013 Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From Japan, and Tapered Roller Bearings, Four Inches or Less in Outside Diameter, and Components Thereof, From Japan; Final Results of Antidumping Duty Administrative Reviews and Revocation in Part, 65 FR (March 6, 2000) Timken Co. v. U.S., 166 F.Supp.2d 608 Ct.Intl.Trade,2001 Timken Co. v. U.S. F.Supp.2d, 2014 WL (CIT, 2/27/2014) ThyssenKrupp Acciai Speciali, Terni S.P.A. v. U.S. 33 C.I.T. 200, 602 F.Supp.2d (CIT March 23, 2009) Torrington Co. v. U.S., 146 F.Supp.2d 845 Ct.Intl.Trade,2001 Union Steel v. U.S., 713 F.3d 1101, 35 ITRD 1161, (C.A. Fed., April 16, 2013) U.S. Steel Corp. v. U.S., CIT 2009, 637 F.Supp.2d 1199 (aff d 621 F.3d 1351, rehearing en banc denied, certiorari denied, 132 S.Ct. 106, 181 L.Ed.2d 33) Wire from Canada, 64 FR at 17324, Statutes & Regulations 19 CFR (b)(35). 19 CFR (g)(2) 19 CFR (f) 19 CFR (f) 19 U.S.C. 1673c(b)(2) 5

7 19 U.S.C. 1673c(c) 19 U.S.C. 1677f-1(d)(1)(A)(ii) 19 U.S.C. 1677f-1(d)(1)(B) 19 U.S.C. 1677f-1(d) Other Authorities URAA, H.R. Doc , Vol. 1 (1994) (SAA) WTO Article of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade (1994) (Antidumping Agreement). 6

8 TABLE OF CONTENTS CONTENTS Foreword...1 Table of Authorities...2 Table of Contents...7 Targeted Dumping...8 Legislative History of Targeted Dumping...8 Average-to-Average Methodology The European Commission s Challenge to Average-to-Average Transaction-To-Transaction Methodology Average-To-Transaction methodology The Nails Test CONNUMs Masked Dumping Bibliography

9 TARGETED DUMPING Targeted dumping may be determined by Commerce in situations where comparable merchandise, differ[s] significantly among purchasers, regions, or periods of time. (19 U.S.C. 1677f-1(d)(1)(B)). The methodology applied by Commerce to targeted dumping scenarios is largely average-to-individual transaction, which is different than the statutorily favored average import price-to-average home price methodology commonly used in dumping determinations, which is statutorily preferred, and has been in effect since the Uruguay Round in The specific requirements of 19 U.S.C. 1677f-1(d)(1)(B) are that: The administering authority may determine whether the subject merchandise is being sold in the United States at less than fair value by comparing the weighted average of the normal values to the export prices (or constructed export prices) of individual transactions for comparable merchandise, if (i) there is a pattern of export prices (or constructed export prices) for comparable merchandise that differ significantly among purchasers, regions, or periods of time, and (ii) the administering authority explains why such differences cannot be taken into account using [the A A methodology or the T T methodology]. LEGISLATIVE HISTORY OF TARGETED DUMPING Outside of Department of Commerce Notices, Rules or Proposed Rules, the term, targeted dumping, has only appeared in 3 documents. 218 P.L Administrative Action Statement, from House Report number , H.R. Rep (December 8, 1994) states the following: In part, the reluctance to use an average-to-average methodology has been based on a concern that such a methodology could conceal targeted dumping. In such situations, an exporter may sell at a dumped price to particular customers or regions, while selling at higher prices to other customers or regions. Consistent with the Agreement, new section 777A(d)(1)(A)(i) provides that in an investigation. Commerce normally will establish and measure dumping margins on the basis of a comparison of a weighted-average of normal values with a weightedaverage of export prices or constructed export prices. To ensure that these averages are meaningful. Commerce will calculate averages for comparable sales of subject merchandise to the U.S. and sales of foreign like products. In determining the 8

10 comparability of sales for purposes of inclusion in a particular average. Commerce will consider factors it deems appropriate, such as the physical characteristics of the merchandise, the region of the country in which the merchandise is sold, the time period, and the class of customer involved. For example, in the case of 13 and 21 televisions, average normal values would be calculated for each size of television, not a single average for sales of both sizes of televisions. In addition to the use of averages, section 777A(d)(1)(A)(ii) also permits the calculation of dumping margins on a transaction-by-transaction basis. Such a methodology would be appropriate in situations where there are very few sales and the merchandise sold in each market is identical or very similar or is custom-made. However, given past experience with this methodology and the difficulty in selecting appropriate comparison transactions, the Administration expects that Commerce will use this methodology far less frequently than the average-to-average methodology. New section 777A(d)(1)(B) provides for a comparison of average normal values to individual export prices or constructed export prices in situations where an average-to-average or transaction-to-transaction methodology cannot account for a pattern of prices that differ significantly among purchasers, regions, or time periods, i.e., where targeted dumping may be occurring. Before relying on this methodology, however, Commerce must establish and provide an explanation why it cannot account for such differences through the use of an average-to-average or transaction-to-transaction comparison. In addition, the Administration intends that in determining whether a pattern of significant price differences exist. Commerce will proceed on a case-by-case basis, because small differences may be significant for one industry or one type of product, but not for another. In this regard, so that the exceptions are properly applied, the Administration intends that Commerce will continue to require that foreign companies report sales on a transaction-specific basis, and that Commerce will request information on sales to particular customers and regions. Transaction-specific information must be made available so Commerce may determine: (1) the appropriate product and/or transaction categories for which averages should be calculated; and (2) whether the exception for targeted dumping is applicable. The information submitted by interested parties for this purpose will be subject to disclosure to representatives of domestic interested parties under Administrative Protective Orders, except for the limited exceptions set out in existing section 777(c). The Agreement reflects the express intent of the negotiators that the preference for the use of an average-to-average or transaction-to-transaction comparison be limited to the investigation phase of an antidumping proceeding. Therefore, as permitted by Article 2.4.2, the preferred methodology in reviews will be to compare average to individual export prices. New section 777A(d)(2) provides that, when comparing prices of individual export transactions to weighted-average foreign prices, Commerce will limit its averaging of prices to a period not exceeding the calendar month that corresponds most closely to the calendar month of the individual export sale. When constructed value is used for normal value, it is normally based on yearly data. However, when costs are rapidly changing, it may be appropriate to use shorter periods, such as quarters or months, which may allow a more appropriate association of costs with sales prices. However, where costs are incurred seasonally, such as in most agricultural products, costs are currently annualized, and the Administration intends that Commerce continue this practice. 9

11 219 P.L , Uruguay Round Agreements Act, S. REP , S. Rep. No. 412, 103RD Cong., 2ND Sess. 1994, 1994 WL (Leg.Hist.) states: The exceptions are intended to permit Commerce to examine and take into account whether targeted dumping is occurring, which might otherwise be masked by the use of weighted average export prices (or constructed export prices). The Committee expects that Commerce will collect and make available to interested parties that are parties to the proceeding the data necessary to establish whether any of the conditions have been met that would warrant determining the dumping margin by comparing weighted average normal values and transaction-specific export prices. With respect to the determination of dumping margins in administrative reviews, the Committee understands that, consistent with the Agreement, Commerce intends to continue its current methodology, in which it normally compares weighted average normal values to individual export prices. With respect to the determination of margins in reviews, Section 229(a) adds new section 777A(d)(2) to require Commerce to limit its averaging of prices to a period not exceeding the calendar month that corresponds most closely to the calendar month of the individual export sale. Finally, 220 P.L , Uruguay Round Agreements Act, H.R. REP (I), H.R. REP , H.R. Rep. No. 826(I), 103RD Cong., 2ND Sess. 1994, 1994 U.S.C.C.A.N. 3773, 1994 WL (Leg.Hist.) states, in pertinent part, that: Although current U.S. law permits the use of averages on both sides of the dumping equation, Commerce's preferred practice has been to compare an average normal value to individual export prices in investigations and reviews. In part, the reluctance to use an average-to-average methodology has been based on a concern that such a methodology could conceal targeted dumping. In such situations, an exporter may sell at a dumped price to particular customers or regions, while selling at higher prices to other customers or regions. It goes on to state that: New section 777A(d)(1)(B) provides for a comparison of average normal values to individual export prices or constructed export prices in situations where an average-to-average or transaction-to-transaction methodology cannot account for a pattern of prices that differ significantly among purchasers, regions, or time periods, i.e., where targeted dumping may be occurring. Before relying on this methodology, however, Commerce must establish and provide an explanation why it cannot account for such differences through the use of an average-to-average or transaction-to-transaction comparison. In this regard, so that the exceptions are properly applied, the Committee intends that Commerce will continue to require that foreign companies report sales on a transaction-specific basis, and that Commerce will request information on sales to particular customers and regions. Other than that, targeted dumping is only mentioned in 207 Notices, Rules and Proposed Rules from the Department of Commerce. Similarly, the term, average-to-transaction methodology, appears a total of 44 times, only one of which is in Rules and Regulations of the 10

12 Department of Commerce, International Trade Administration, under 62 FR , 1997 WL (F.R.), which states, The Department has considered the scope of application of the average-to-transaction methodology raised in the comments on this issue. Based upon our examination, the Department is adopting the proposed regulation without modification. In the Department's view, section 777A(d)(1) of the Act establishes a preference for average-toaverage price comparisons in investigations. The statute contemplates a divergence from the normal average-to-average (or transaction-totransaction) price comparison out of concern that such a methodology could conceal targeted dumping. SAA at 842. Accordingly, the Department will apply the average-to-transaction approach solely to address the practice of targeted dumping. Nevertheless, the Department contemplates that in some instances it may be necessary to apply the average-to-transaction method to all sales to the targeted area, such as a region or a customer, or even all sales of a particular respondent. For example, where the targeted dumping practice is so widespread it may be administratively impractical to segregate targeted dumping pricing from the normal pricing behavior of a company. Moreover, the Department recognizes that where a firm engages extensively in the practice of targeted dumping, the only adequate yardstick available to measure such pricing behavior may be the average-to-transaction methodology. With respect to the contention that limiting the application of the transaction-to-average method solely to *27376 targeted sales would require an extensive allegation, as opposed to a representative one, we disagree. The proposed regulation speaks to limited application of the transaction-to-average method once targeted dumping is found to exist. It does not address the scope of the targeted dumping examination itself. Interested parties may make representative targeted dumping allegations based upon prices to purchasers, regions, or periods of time, provided they explain how the evidence examined in the allegations is relevant to prices of other products or models, or other companies. Section The remaining discussions comprise two Federal Cases, and 41 notices of the Department of Commerce. Home Market Price Transaction Price Export Price 11

13 AVERAGE-TO-AVERAGE METHODOLOGY Average-to-Average methodology is simply a short term for the division of export transactions into groups by model and level of trade, followed by the comparison of an average of the export prices or constructed export prices of the transactions within one averaging group to the weighted average of normal values of such sales (See 19 C.F.R (d)(1)). Specifically, it is the comparison of weighted average normal values to weighted average export prices of comparable merchandise. Normal value is defined in 19 U.S.C. 1677b(a)(1)(B) as, the price at which the foreign like product is first sold (or, in the absence of a sale, offered for sale) for consumption in the exporting country, in the usual commercial quantities and in the ordinary course of trade and, to the extent practicable, at the same level of trade as the export price or constructed export price. Calculation of weighted average dumping margin in an Antidumping Duty investigation THE EUROPEAN COMMISSION S CHALLENGE TO AVERAGE-TO- AVERAGE When aggregating results of comparisons of averaging groups to determine the weighted average dumping margin, Commerce did not allow any results of averaging groups that led to an export price that exceeded normal value to offset the results of averaging groups for export prices that were less-than-normal value. The EC challenged this as inconsistent with WTO Agreements on Implementation of Article VI of GATT in 1994 before a dispute settlement panel. The WTO found that the denial of offsets in this scenario was in violation of Article of the Antidumping Agreement in Article VI of GATT. As a result, the Department of Commerce Proposed in 2005 to no longer make average-to-average comparisons without providing offsets for non-dumped comparisons. This denial of offsets is referred to as zeroing. Commerce committed itself not to use zeroing in pending and future antidumping investigations when calculating dumping margins using the average-to-average methodology, and announced this change in a Section 123 Determination. This Section 123 Determination applies Zeroing is the practice of assigning the value of zero to negative margin transactions in the calculation of the weighted average margin. See, e.g., Corus Staal BV v. United States, 502 F.3d 1370, 1375 n. 2 (Fed.Cir.2007) 12

14 to antidumping investigations that were open on or after 2/22/2007. (See Section 123 Determination, 72 Fed. Reg. at 77, 725) TRANSACTION-TO-TRANSACTION METHODOLOGY Normally, antidumping margins are determined with a comparison of normal value and export prices on a transaction-to-transaction bases. This methodology will be preferred to Average-to-Transaction, along with Average-to-Average unless both Average-to-Average, and Transaction to Transaction, cannot account for a pattern of prices that differ significantly among purchasers, regions, or time periods, i.e., where targeted dumping may be occurring. Normal value, as stated in other sections, is the concept defined in 19 USC 1677b, as follows: (1) Determination of normal value (A) In general The normal value of the subject merchandise shall be the price described in subparagraph (B), at a time reasonably corresponding to the time of the sale used to determine the export price or constructed export price under section 1677a(a) or (b) of this title. (B) Price The price referred to in subparagraph (A) is-- (i) the price at which the foreign like product is first sold (or, in the absence of a sale, offered for sale) for consumption in the exporting country, in the usual commercial quantities and in the ordinary course of trade and, to the extent practicable, at the same level of trade as the export price or constructed export price, or (ii) in a case to which subparagraph (C) applies, the price at which the foreign like product is so sold (or offered for sale) for consumption in a country other than the exporting country or the United States, if-- (I) such price is representative, 13

15 (C) Third country sales (II) the aggregate quantity (or, if quantity is not appropriate, value) of the foreign like product sold by the exporter or producer in such other country is 5 percent or more of the aggregate quantity (or value) of the subject merchandise sold in the United States or for export to the United States, and (III) the administering authority does not determine that the particular market situation in such other country prevents a proper comparison with the export price or constructed export price. This subparagraph applies when-- (i) the foreign like product is not sold (or offered for sale) for consumption in the exporting country as described in subparagraph (B)(i), (ii) the administering authority determines that the aggregate quantity (or, if quantity is not appropriate, value) of the foreign like product sold in the exporting country is insufficient to permit a proper comparison with the sales of the subject merchandise to the United States, or (iii) the particular market situation in the exporting country does not permit a proper comparison with the export price or constructed export price. For purposes of clause (ii), the aggregate quantity (or value) of the foreign like product sold in the exporting country shall normally be considered to be insufficient if such quantity (or value) is less than 5 percent of the aggregate quantity (or value) of sales of the subject merchandise to the United States. Export price is NOT equal to normal value. Export price and constructed export price are defined by 19 USC 1677a. Export price is defined as, the price at which the subject merchandise is first sold (or agreed to be sold) before the date of importation by the producer or exporter of the 14

16 subject merchandise outside of the United States to an unaffiliated purchaser in the United States or to an unaffiliated purchaser for exportation to the United States, as adjusted under subsection (c) of this section. AVERAGE-TO-TRANSACTION METHODOLOGY Prior to March 2010, Commerce only applied average-to-transaction methodology to targeted sales. However, in March 2010, Commerce expanded the application of average-to-transaction methodology to all U.S. sales, whenever it found targeted dumping. Specifically, Commerce found that application of average-to-transaction methodology was a reasonable interpretation of statute, and is more consistent with Commerce s approach to selection of the appropriate comparison method under 19 USC 1677f-1(d)(1)(B). The specific calculation of average-to-transaction methodology involves the application of weighted average normal values to the export price of individual transactions. This is problematic, because in 2008, when targeted dumping regulations were withdrawn, Commerce was left with three options on how and when to apply average-to-transaction methodology in antidumping determinations: 1. Apply the average-to-transaction methodology to just sales found to be targeted as the withdrawn regulation directed and, consistent with its average-to-transaction practice, do not offset any margins found on these transactions; 2. Apply the average-to-transaction methodology to all sales to the customer or time period found to be targeted, not just those specific sales found to be targeted, and consistent with its averageto-transaction practice, do not offset any margins found on these transactions; or 3. Apply the average-to-transaction methodology to all sales, consistent with average-to-transaction practice, do not offset any margins found on these transactions. Whether and which method Commerce applies is still the subject of some speculation in light of the withdrawn targeted dumping regulations. 15

17 THE NAILS TEST The Nails test comes from a test first used in Certain Steel Nails from the People's Republic of China: Final Determination of Sales at Less than Fair Value and Partial Affirmative Determination of Critical Circumstances, 73 Fed.Reg. 33,977 (Dep't Commerce June 16, 2008); Certain Steel Nails from the United Arab Emirates: Notice of Final Determination of Sales at Not Less than Fair Value, 73 Fed.Reg. 33,985 (Dep't Commerce June 16, 2008). The first step of the test is known as standard deviation. In this step, Commerce determines the volume of the targeted group s sales of subject merchandise that are at prices more than one standard deviation below the weighted-average price of all sales under review. This includes both targeted sales and non-targeted sales. A standard deviation is calculated based on a product-specific basis by control numbers. If more than 33% of the targeted sales are at least one standard deviation below the average price of all reviewed sales in a given control number, then the test proceeds to the second step. The second step of the test is known as the gap test. Commerce looks at the sales of control numbers that passed the standard deviation test in step one. First, commerce looks at the weighted average price of the targeted sales, and the next-higher weighted average price of sales to a nontargeted group. This is known as the targeted gap. Then they calculate the average difference, weighted by sales volume, between prices to the nontargeted groups. This is known as the non-target gap. Finally, Commerce compares the target gap to the non-target gap, and if the target gap exceeds the non-target gap for more than 5% of the exporter s sales to the target by volume, then Commerce will find that targeted dumping has occurred. Commerce then uses A-T methodology to calculate the margins (unless Commerce can account for observed price differences). CONNUMS Control Numbers, also known as CONNUMs, are the numbers used by Commerce to define specific goods for the purposes of importation and exportation. MASKED DUMPING In Koyo Seiko Co., Ltd. V. U.S., 20 F.3d 1156, 1159 (Fed. Cir. 1994), the Court of Appeals for the Federal Circuit explained that, 16

18 the purpose of the antidumping statute is to protect domestic manufacturing against foreign manufacturers who sell at less than fair market value. Averaging U.S. prices defeats this purpose by allowing foreign manufacturers to offset sales made at less-than-fair value with higher priced sales. Commerce refers to this practice as masked dumping. By using individual U.S. prices in calculating dumping margins, Commerce is able to identify a merchant who dumps the product intermittently sometimes selling below the foreign market value and sometimes selling above it. We cannot say that this is an unfair or unreasonable result. (internal citations omitted) Masked dumping, therefore, is the term applied to intermittent dumping which is concealed using selective pricing schemes that will offset a sale at less-than-fair-market-value with higher-priced sales. BIBLIOGRAPHY 1 Antidumping & Countervailing Duty Laws 5:31, Part I. U.S. Law, Chapter 5. Less Than Normal Value Determinations, June Antidumping & Countervailing Duty Laws 5:36, Part I. U.S. Law, Chapter 5. Targeted Dumping, June WL Georgetown University Law Center Continuing Legal Education, International Trade Update, ZEROING AND TARGETED DUMPING: HAS THE ABILITY TO COUNTERACT INJURIOUS DUMPING BEEN ELIMINATED, March 5, Tul. J. Int l & Comp. L. 485, Tulane Journal of International and Comparative Law, TARGETED DUMPING: THE NEXT FRONTIER IN TRADE REMEDY LITIGATION, Spring Int l Law. 79, International Lawyer, INTERNATIONAL LEGAL DEVELOPMENT YEAR IN REVIEW: 2010, BUSINESS REGULATION, Spring, International Trade Practice 15:4, Part III Antidumping, Chapter 15. An Introduction to the U.S. Antidumping Law (September, 2013) International Trade Practice 18:6, Part III Antidumping, Chapter 18. Substantive Issues in Antidumping Investigations Calculation of Export Price. 17

19 18 Withdrawal of the Regulatory Provisions Governing Targeted Dumping in Antidumping Duty Investigations, 73 Fed. Reg. 74,930, 74,931 (Dec. 10, 2008).