I 

117TH CONGRESS 

1ST SESSION H. R. 6330 

To amend the Tariff Act of 1930 to provide for consideration of the effect 

of excess production capacity in nonmarket economy countries to determine threat of material injury to United States industry in countervailing 

duty and antidumping duty investigations under title VII of that Act. 

IN THE HOUSE OF REPRESENTATIVES 

DECEMBER 20, 2021 

Mr. HIGGINS of New York introduced the following bill; which was referred 

to the Committee on Ways and Means 

A BILL 

To amend the Tariff Act of 1930 to provide for consideration 

of the effect of excess production capacity in nonmarket 

economy countries to determine threat of material injury 

to United States industry in countervailing duty and 

antidumping duty investigations under title VII of that 

Act. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Nonmarket Economy 

5 Overcapacity Reform Act’’. 


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1 SEC. 2. EFFECT OF EXCESS PRODUCTION CAPACITY IN 

2 NONMARKET ECONOMY COUNTRIES TO DE3 TERMINE THREAT OF MATERIAL INJURY TO 

4 UNITED STATES INDUSTRY. 

5 (a) IN GENERAL.—Section 771(7)(F) of the Tariff 

6 Act of 1930 (19 U.S.C. 1677(7)(F)) is amended by adding 

7 at the end the following: 

8 ‘‘(iv) EFFECT OF EXCESS PRODUC9 TION CAPACITY IN NONMARKET ECONOMY

10 COUNTRIES.— 

11 ‘‘(I) IN GENERAL.—In addition 

12 to consideration of the relevant eco13 nomic factors set forth in clauses (i), 

14 (ii), and (iii), in making a determina15 tion of whether an industry in the 

16 United States is threatened with ma17 terial injury by reason of imports (or 

18 sales for importation) of subject mer19 chandise from a nonmarket economy 

20 country due to excess production ca21 pacity, the Commission shall con22 sider— 

23 ‘‘(aa) the actual or potential 

24 market effects of the excess pro25 duction capacity and the excess 


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1 production capacity in the coun2 try; and 

3 ‘‘(bb) whether the excess 

4 production capacity— 

5 ‘‘(AA) is currently 

6 causing or is likely in the 

7 foreseeable future to con8 tribute to adverse price ef9 fects in the United States 

10 market; 

11 ‘‘(BB) is likely in the 

12 foreseeable future to con13 tribute to rapid and signifi14 cant increases in the volume 

15 of imports of the subject 

16 merchandise in the United 

17 States market at prices at 

18 which the normal value of 

19 the subject merchandise ex20 ceeds the export price or 

21 that are subsidized; or 

22 ‘‘(CC) otherwise threat23 ens to cause material injury 

24 to the United States domes25 tic industry. 


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1 ‘‘(II) ADDITIONAL FACTORS.—As 

2 part of its consideration of the factors 

3 set forth in items (aa) and (bb) of 

4 subclause (I), the Commission shall 

5 consider the following: 

6 ‘‘(aa) Whether the excess 

7 production capacity is related to 

8 a lack of effective market dis9 ciplines that have contributed to 

10 increases in such capacity. 

11 ‘‘(bb) Whether the excess 

12 production capacity exceeds or, 

13 upon completion of projects 

14 under construction to expand 

15 such capacity, is projected to im16 minently exceed 25 percent of the 

17 excess production capacity of the 

18 subject merchandise. 

19 ‘‘(cc) Whether producers in 

20 the country have demonstrated 

21 an ability to increase exports of 

22 the subject merchandise, as evi23 denced by— 

24 ‘‘(AA) an increase in 

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1 chandise or related products 

2 to third country markets; 

3 ‘‘(BB) an annual in4 crease in the volume of ex5 ports of the subject mer6 chandise or related products 

7 that is greater than 10 per8 cent of the volume of ex9 ports of the subject mer10 chandise or related products 

11 in the preceding calendar 

12 year; or 

13 ‘‘(CC) other factors 

14 demonstrating an ability of 

15 the country to increase ex16 ports of the subject mer17 chandise or related products 

18 globally, including to the 

19 United States. 

20 ‘‘(dd) Whether the excess 

21 production capacity currently or 

22 in the future would likely con23 tribute to— 

24 ‘‘(AA) a significant in25 crease in exports of the subVerDate Sep 11 2014 23:40 Dec 23, 2021 Jkt 029200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H6330.IH H6330

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1 ject merchandise or related 

2 products globally, including 

3 to the United States; 

4 ‘‘(BB) depression or 

5 suppression of prices of the 

6 subject merchandise sold 

7 globally, including in the 

8 United States; 

9 ‘‘(CC) reductions in 

10 United States investment or 

11 research and development in 

12 products of the same class 

13 or kind as the subject mer14 chandise; or 

15 ‘‘(DD) a significant in16 crease in the United States 

17 market share of the subject 

18 merchandise as compared to 

19 the average share held by 

20 producers of the subject 

21 merchandise in the country 

22 during the 3-year period 

23 preceding the date of the de24 termination under clause (i). 


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1 ‘‘(ee) Whether any or all of 

2 the factors described in items 

3 (aa), (bb), (cc), or (dd) are likely 

4 in the imminent future, given the 

5 size and extent of the current or 

6 projected excess production ca7 pacity and taking into account 

8 current and future levels of de9 mand globally, including in the 

10 United States. 

11 ‘‘(ff) The standards of 

12 threat of material injury applied 

13 by the administering authorities 

14 of the country to imports of 

15 United States products. 

16 ‘‘(III) ADDITIONAL FACTORS

17 WITH RESPECT TO EXCESS PRODUC18 TION CAPACITY.—As part of its con19 sideration of the factors set forth in 

20 items (aa) and (bb) of subclause (I) 

21 with respect to whether the excess 

22 production capacity is real and immi23 nent, the Commission shall consider 

24 the following: 


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1 ‘‘(aa) Whether current or 

2 projected excess production ca3 pacity of the subject merchandise 

4 significantly exceeds global de5 mand, particularly if the excess 

6 production capacity results in 

7 whole or in part from increases 

8 in the excess production capacity 

9 in the country and thus creates 

10 an increased risk the subject 

11 merchandise will be imported into 

12 the United States market. 

13 ‘‘(bb) The likelihood that the 

14 excess production capacity, in15 cluding excess production capac16 ity under construction in the 

17 country, would be halted, tempo18 rarily shut down, or permanently 

19 closed in accordance with market 

20 conditions in order to prevent the 

21 negative effects described in sub22 clauses (I) and (II), or whether 

23 such actions would be impractical 

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1 ment costs, or government poli2 cies involved. 

3 ‘‘(cc) Whether the excess 

4 production capacity in the coun5 try is planned as part of a gov6 ernment industrial plan, policy, 

7 or directive, or benefits from sig8 nificant government subsidies, 

9 and therefore is not subject to 

10 market disciplines that would re11 strain production or exports. 

12 ‘‘(dd) Whether— 

13 ‘‘(AA) related products 

14 are subject to a counter15 vailing duty investigation or 

16 order under subtitle A or an 

17 antidumping duty investiga18 tion or order under subtitle 

19 B; or 

20 ‘‘(BB) related products 

21 are subject to a counter22 vailing duty investigation or 

23 order or an antidumping 

24 duty investigation or order 

25 in third countries that could 


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1 lead to the imposition of du2 ties on such products and 

3 result in diversion of in4 creased exports of such 

5 products to the United 

6 States or other countries. 

7 ‘‘(ee) Whether, taking into 

8 account the type of product, tech9 nology, United States production 

10 facilities, levels of United States 

11 investment, research and develop12 ment costs, product life cycle, 

13 and price sensitivities, the United 

14 States domestic industry is espe15 cially vulnerable to increased im16 ports of the subject merchandise 

17 so that injury caused by prices of 

18 the dumped or subsidized imports 

19 of the subject merchandise likely 

20 would occur imminently upon 

21 entry into the United States. 

22 ‘‘(IV) DEFINITIONS.—In this 

23 clause: 

24 ‘‘(aa) EXCESS PRODUCTION

25 CAPACITY.—The term ‘excess 


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1 production capacity’, with respect 

2 to subject merchandise, means 

3 production capacity of the subject 

4 merchandise on a global basis 

5 that exceeds estimated domestic 

6 demand of the subject merchan7 dise by 25 percent or more or is 

8 imminently likely to do so, in9 cluding through planned in10 creases in capacity under any 

11 government industrial policies, 

12 subsidy programs, production 

13 targets, indigenous innovation 

14 policies, or plans or directives re15 garding the development or con16 struction of such capacity. 

17 ‘‘(bb) RELATED PRODUCT.— 

18 The term ‘related product’, with 

19 respect to subject merchandise, 

20 means— 

21 ‘‘(AA) any like or di22 rectly related product within 

23 the scope of an investigation 

24 relating to the subject mer25 chandise under this title; 


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1 ‘‘(BB) any upstream 

2 product used in the produc3 tion of the subject merchan4 dise and that could be used 

5 for purposes of exports of 

6 any like or directly related 

7 product; or 

8 ‘‘(CC) any downstream 

9 product manufactured used 

10 in the production of the sub11 ject merchandise that could 

12 lead to excess production ca13 pacity and used for purposes 

14 of exports of any like or di15 rectly related product.’’. 

16 (b) EFFECTIVE DATE.—The amendments made by 

17 subsection (a) take effect on the date of the enactment 

18 of this Act and apply with respect to investigations initi19 ated under title VII of the Tariff Act of 1930 on or after 

20 such date of enactment. 

Æ 


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