PUTTING THE SPECTER OF DOUBLE COUNTING TO REST: HOW PUBLIC LAW 112-99 RESOLVES THE ISSUE OF DOUBLE COUNTING IN CONCURRENT COUNTERVAILING AND NON-MARKET ECONOMY ANTIDUMPING INVESTIGATIONS

I. INTRODUCTION The U.S. Department of Commerce (the DOC) has faced considerable criticism for the way it implements trade remedies. 1 Although U.S. trade laws 2 are almost identical to the texts of the most important international agreements, 3 the DOC's implementation of the laws differs from most countries. The DOC's implementation processes that lead to so-called "double counting," are some of the most controversial. 4 Double counting arises in the market economy (ME) context when countervailing duties (CVDs) and antidumping duties (ADs) are concurrently applied to remedy an export subsidy. 5 The concurrent application of these two duties causes double counting because the calculation of the dumping margin in the AD investigation also incorporates the impact of an export subsidy. 6 This process assumes that the subsidy is passed through the recipient manufacturer to reduce export prices, rendering at least part of the concurrent AD duties double counted. 7 In the ME context, double counting is only problematic if the subsidy is an export subsidy. This is because a domestic subsidy affects export and domestic pricing equally. 8 As a result, the subsidy should not give rise to a difference between export prices and domestic prices. 9 The phenomenon of double counting in the ME context, where there are concurrent AD and CVD investigations involving export subsidies has long been recognized, is addressed in Article VI:5 of the GATT 1994. This Article prohibits the concurrent application of ADs and CVDs that compensate ...