Editorial Note on Part 351
Editorial Note: Nomenclature changes to part 351 appear at 78 FR 62418, Oct. 22, 2013.

Editorial Note on Part 351
Editorial Note: Nomenclature changes to part 351 appear at 89 FR 20832, Mar. 25, 2024.

§ 351.404 Selection of the market to be used as the basis for normal value. ( a ) *Introduction.* Although in most circumstances sales of the foreign like product in the home market are the most appropriate basis for determining normal value, section 773 of the Act also permits use of sales to a third country or constructed value as the basis for normal value. This section clarifies the rules for determining the basis for normal value.
( b ) *Determination of viable market* — ( 1 ) *In general.* The Secretary will consider the exporting country or a third country as constituting a viable market if the Secretary is satisfied that sales of the foreign like product in that country are of sufficient quantity to form the basis of normal value.
( 2 ) *Sufficient quantity.* “Sufficient quantity” normally means that the aggregate quantity (or, if quantity is not appropriate, value) of the foreign like product sold by an exporter or producer in a country is 5 percent or more of the aggregate quantity (or value) of its sales of the subject merchandise to the United States.
( c ) *Calculation of price-based normal value in viable market* — ( 1 ) *In general.* Subject to paragraph (c)(2) of this section: ( i ) If the exporting country constitutes a viable market, the Secretary will calculate normal value on the basis of price in the exporting country (*see* section 773(a)(1)(B)(i) of the Act (price used for determining normal value)); or
( ii ) If the exporting country does not constitute a viable market, but a third country does constitute a viable market, the Secretary may calculate normal value on the basis of price to a third country (*see* section 773(a)(1)(B)(ii) of the Act (use of third country prices in determining normal value)).
( 2 ) *Exception.* The Secretary may decline to calculate normal value in a particular market under paragraph (c)(1) of this section if it is established to the satisfaction of the Secretary that: ( i ) In the case of the exporting country or a third country, a particular market situation exists that does not permit a proper comparison with the export price or constructed export price (*see* section 773(a)(1)(B)(ii)(III) or section 773(a)(1)(C)(iii) of the Act); or
( ii ) In the case of a third country, the price is not representative (*see* section 773(a)(1)(B)(ii)(I) of the Act).
( d ) *Allegations concerning market viability and the basis for determining a price-based normal value.* In an antidumping investigation or review, allegations regarding market viability or the exceptions in paragraph (c)(2) of this section, must be filed, with all supporting factual information, in accordance with § 351.301(c)(2)(i).
( e ) *Selection of third country.* For purposes of calculating normal value based on prices in a third country, where prices in more than one third country satisfy the criteria of section 773(a)(1)(B)(ii) of the Act and this section, the Secretary generally will select the third country based on the following criteria: ( 1 ) The foreign like product exported to a particular third country is more similar to the subject merchandise exported to the United States than is the foreign like product exported to other third countries;
( 2 ) The volume of sales to a particular third country is larger than the volume of sales to other third countries;
( 3 ) Such other factors as the Secretary considers appropriate.
( f ) *Third country sales and constructed value.* The Secretary normally will calculate normal value based on sales to a third country rather than on constructed value if adequate information is available and verifiable (*see* section 773(a)(4) of the Act (use of constructed value)).
[62 FR 27379, May 19, 1997, as amended at 88 FR 67080, Sept. 29, 2023]