US Says It's Not Double-Counting to Factor the Same Subsidy Into Both CVD and AD

The Commerce Department may include the same government subsidy in calculations for both antidumping and countervailing duty rates because the court has held those are two completely different things, DOJ said in a brief replying to a German exporter's comments on a remand redetermination (Ellwood City Forge Co. v. U.S., CIT # 21-00077).

The exporter, BGH, which is both a plaintiff and defendant-intervenor in the case, had once again contested Commerce’s decision to assign particular market situation status to Germany’s electricity and ferrochrome markets -- but a "large majority" of its brief raised arguments it had used as a consolidated plaintiff, petitioner Ellwood Forge had argued. It asked Judge Stephen Vaden in a motion to allow sur-replies to the exporter, which the judge granted that same day.

DOJ discussed BGH's argument in its comments that application of particular market situation status to the German electricity market was essentially a double remedy, as countervailing subsidy duties had also been calculated for it based on its government’s interventions. Including the subsidy in antidumping duty calculations as well meant it was being counted twice, BGH said.

DOJ disagreed. It said the courts have held CVD and AD calculations are two different things, and that the inclusion of the German government’s subsidy in those calculations occurred in different ways. The fact the subsidy appears in BGH’s CVD doesn’t mean it won’t also affect AD margins, the government said.

BGH also argued that it had evidence that showed Germany's electricity market was not under government control. That evidence was not timely added to the record and can’t be considered by Commerce, nor the judge, DOJ said.

An abundance of evidence also supports Commerce’s stance, DOJ said. The German government sets price floors on its electricity sales, and the lowest floors are for industries such as BGH, it said. And just because German electricity prices were on average higher than other countries’ also doesn't mean those prices are competitive, it added.

DOJ said BGH also raised two new arguments regarding Commerce's finding that a particular market situation existed in Germany's ferrochrome market: It claimed Commerce couldn’t show why price distortions in that market prevent the department from making an accurate comparison for BGH’s export price, and it said that these price distortions have existed for a “reasonable time” and date back to before BGH exported its merchandise, making them standard in the trade.

BGH cannot raise these new arguments because it didn't exhaust its administrative remedies for them, DOJ said.