On October 26, 2017, the Department of Commerce  announced the results of an investigation concluding that China is a non-market economy (“NME”) country for purposes of Commerce’s antidumping analysis.  Commerce’s decision continues the long-standing practice of the agency with respect to the antidumping methodology it applies to cases involving China.

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 11th 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.