question of allowances for differences in quantity, consideration will be given, among other things, to the practice of the industry in the country of exportation with respect to affording in the home market (or third country markets, where sales to third countries are the basis for comparison) discounts for quantity sales which are freely available to those who purchase in the ordinary course of trade.

(b) Criteria for allowances. Allowances for price discounts based on sales in large quantities ordinarily will not be made unless:

(1) Six-month rule. The exporter during the 6 months prior to the date when the question of dumping was raised or presented (or during such other period as investigation shows is more representative) had been granting quantity discounts of at least the same magnitude with respect to 20 percent or more of such or similar merchandise which he sold in the home market (or in third country markets when sales to third countries are the basis for comparison) and that such discounts had been freely available to all purchasers, or

(2) Cost justification. The exporter can demonstrate that the discounts are warranted on the basis of savings specifically attributable to the quantities involved.

(c) Price lists. In determining whether a discount has been given, the presence or absence of a published price list reflecting such a discount is not controlling. In certain lines of trade, price lists are not commonly published and in others although commonly published they are not commonly adhered to.

§ 153.8 Fair value; circumstances of sale.

(a) General. In comparing the purchase price or exporter's sales price, as the case may be, with the sales, or other criteria applicable, on which a determination of fair value is to be based, reasonable allowances will be made for bona fide differences in circumstances of sale if it is established to the satisfaction of the Secretary that the amount of any price differential is wholly or partly due to such differences. Differences in circumstances of sale for which such allowances will be made are limited, in general, to those circumstances which bear a direct relationship to the sales which are under consideration.

(b) Examples. Examples of differences in circumstances of sale for which reasonable allowances generally will be made are those involving differences in credit terms, guarantees, warranties, technical assistance, servicing, and assumption by a seller of a purchaser's advertising or other selling costs. Reasonable allowances will also generally be made for differences in commissions. Except in those instances where it is clearly established that the differences in circumstances of sale bear a direct relationship to the sales which are under consideration, allowances generally will not be made for differences in research and development costs, production costs, and advertising and other selling costs of a seller unless such costs are attributable to a later sale of merchandise by a purchaser; provided that reasonable allowances for selling expenses generally will be made in cases where a reasonable allowance is made for commissions in one of the markets under consideration and no commission is paid in the other market under consideration, the amount of such allowance being limited to the actual selling expense incurred in the one market or the total amount of the commission allowed in such other market, whichever is less.

(c) Relation to market value. In determining the amount of the reasonable allowances for any differences in circumstances of sale, the Secretary will be guided primarily by the effect of such differences upon the market value of the merchandise but, where appropriate, may also consider the cost of such differences to the seller, as contributing to an estimate of market value.

§ 153.9 Fair value; similar merchandise.

In comparing the purchase price or exporter's sales price, as the case may be, with the selling price in the home market, or for exportation to countries other than the United States, in the case of similar merchandise described in subdivisions (C), (D), (E), or (F) of section 212(3), Antidumping Act, 1921, as amended (19 U.S.C. 170a (3)), due allowance shall be made for differences in the merchandise. In this regard the Secretary will be guided primarily by the effect of such differences upon the market value of the merchandise but, when appropriate, he may also consider differences in cost of manufacture if it is established to his satisfaction that the

amount of any price differential is wholly or partly due to such differences.

§ 153.10 Fair value; offering price.

In the determination of fair value, offers will be considered in the absence of sales, but an offer made in circumstances in which acceptance is not reasonably to be expected will not be deemed to be an offer.

§ 153.11

Fair value; sales agency.

If such or similar merchandise is sold or, in the absence of sales, offered for sale through a sales agency or other organization related to the seller in any of the respects described in section 207 of the Antidumping Act, 1921 (19 U.S.C. 166), the price at which such or similar merchandise is sold or, in the absence of sales, offered for sale by such sales agency or other organization may be used in the determination of fair value. § 153.12

Fair value; fictitious sales.

In the determination of fair value, no pretended sale or offer for sale, and no sale or offer for sale intended to establish a fictitious market, shall be taken into account.

§ 153.13 Fair value; sales at varying prices.

Where the prices in the sales which are being examined for a determination of fair value vary (after allowances provided for in §§ 153.7, 153.8, and 153.9), determination of fair value will take into account either the prices of a preponderance of the merchandise, or the weighted averages of the prices of the merchandise thus sold. Unless there is a clear preponderance of merchandise sold at the same price, weighted averages of the prices of the merchandise sold will normally be used. If there is not a clear preponderance of the merchandise sold at the same price and weighted averages of the prices of the merchandise sold are determined by the Secretary to be inappropriate, the Secretary may use any method for determining fair value which he deems appropriate.

§ 153.14 Fair value; quantities involved and differences in price.

Merchandise will not be deemed to have been sold at less than fair value unless the quantity involved in the sale or sales to the United States, or the difference between the purchase price or ex

porter's sales price, as the case may be, and the fair value, is more than insignificant.

§ 153.15 Discontinuance of antidumping investigation.

(a) Price assurances, termination of sales or other circumstances. Whenever the Secretary of the Treasury is satisfied during the course of an antidumping investigation that either:

(1) Price revisions have been made which eliminate the likelihood of sales at less than fair value and that there is no likelihood of resumption of the prices which prevailed before such revision, and assurances have been received to this effect; or

(2) Sales to the United States of the merchandise have terminated and will not be resumed and assurances have been received to this effect;

or whenever the Secretary concludes that there are other circumstances on the basis of which it may no longer be appropriate to continue an antidumping investigation, the Secretary may publish a "Notice of Tentative Discontinuance of Antidumping Investigation" in the FEDERAL REGISTER.

(b) Notice of tentative discontinuance of antidumping investigation. The notice will set forth a description of the merchandise involved and state the facts relied upon by the Secretary in publishing the notice and that those facts are considered to be evidence warranting the discontinuance of the investigation. In the case of investigations tentatively discontinued pursuant to paragraph (a) (2) of this section, the notice will identify the manufacturers, producers, or exporters who have furnished appropriate assurances. The notice will also state that interested persons shall be given the opportunity to present their views under the procedure set forth in § 153.37, and unless persuasive evidence or argument to the contrary is presented within such period as is specified in the notice the Secretary will publish a final notice discontinuing the investigation. The tentative acceptance of price assurances or assurances of termination of sales to the United States, and price revisions or the termination of sales to the United States will not prevent the Secretary from making a determination of sales at less than fair value in any case where he considers such action appropriate.

(name of foreign manufacturer, producer or exporter)

for exportation to the United States shall be made at prices which are not less than fair value within the meaning of the Antidumping Act, 1921, as amended (19 U.S.C. sec. 160 et seq.) and that

(name of manufacturer, producer or exporter shall make a report to the Commissioner of Customs which shall contain or be accompanied by the information required by § 153.15(f) of the Customs Regulations (19 CFR 153.15(f)) for such period of time and at such intervals as the Secretary may deem appropriate and shall cooperate in allowing whatever verification of such information is deemed necessary by the Secretary; or 2. All sales of

by

(commodity) (name of

foreign manufacturer, producer or exporter) for exportation to the United States have terminated and shall not be resumed.

(Officer or attorney-in-fact)

(d) Final discontinuance. As soon as possible after the publication of a "Notice of Tentative Discontinuance of Antidumping Investigation" the Secretary will determine whether final discontinuance is warranted and, if he so determines, publish a "Discontinuance of Antidumping Investigation" notice in the FEDERAL REGISTER.

(e) Final discontinuance after issuance of a "Withholding of Appraisement Notice" or a "Notice of Tentative Negative Determination." The procedures specified in paragraphs (b) and (d) of this section will not apply if the decision to issue a "Discontinuance of Antidumping Investigation" notice is made by the Secretary after a "Withholding of Appraisement Notice" or "Notice of Tentative Negative Determina

tion" has been issued and thereafter he has afforded interested parties an opportunity to be heard pursuant to the provisions of § 153.37. In lieu thereof a "Discontinuance of Antidumping Investigation" notice will be published in the FEDERAL REGISTER Setting forth the statement of reasons therefor.

(f) Periodic reports by foreign exporters. Whenever an investigation has been discontinued by the Secretary on the basis of price assurances, the foreign manufacturer, producer, or exporter of the merchandise which was the subject of the discontinued investigation shall thereafter make a report to the Commissioner of Customs for such period of time and at such intervals as the Secretary may deem appropriate. The periodic reports to the Commissioner of Customs generally shall, as determined by the Secretary, contain or be accompanied by the following:

(1) Prices at, and the terms and conditions on which, the merchandise is being sold for export to the United States and in the applicable foreign market (or information regarding constructed value as set forth in section 206 of the Antidumping Act, 1921, as amended (19 U.S.C. 165));

(2) Published price lists, if any;

(3) Information regarding discounts, quantities involved on a per sale basis, shipping charges, packing costs, and other circumstances of sales in the two markets under consideration;

(4) Information regarding differences in cost of manufacture where similar merchandise is compared pursuant to § 153.9; and

(5) Such other information which the Secretary deems appropriate.

(g) Reopening of discontinued investigation. In the event that the Secretary determines, subsequent to the discontinuance of an investigation pursuant to paragraph (d) of this section, that there are reasonable grounds to believe or suspect that there are or are likely to be sales to the United States at less than fair value, he will reopen the investigation by publishing forthwith in the FEDERAL REGISTER a "Withholding of Appraisement Notice" with respect to the merchandise. If, prior to the discontinuance of the investigation, importers and exporters concerned had requested a 6-month withholding of appraisement pursuant to § 153.34 (b), when the investigation is reopened the Secretary may withhold appraisement for 6

months. If no such requests have been received, the Secretary may withhold appraisement pursuant to § 153.34(a). The withholding of appraisement may be made effective with respect to merchandise entered, or withdrawn from warehouse, for consumption not more than 90 days before the date of publication. Whenever an investigation is reopened, interested persons will be given the opportunity to present their views pursuant to § 153.37.

(h) Termination of discontinued investigations. (1) Whenever the Secretary is satisfied that termination of a discontinued investigation is appropriate, he will publish a "Notice of Tentative Termination of Antidumping Investigation" in the FEDERAL REGISTER. The notice will set forth a description of the merchandise involved and state the facts relied upon by the Secretary in publishing the notice and that those facts are considered to be evidence warranting the termination of the investigation. The notice will also state that interested persons shall be given the opportunity to present their views under the procedure set forth in § 153.37, and unless persuasive evidence or argument to the contrary is presented within the period specified in the notice the Secretary will publish a final notice terminating the investigation.

(2) As soon as possible thereafter the Secretary will determine whether final termination is warranted and, if he so determines, publish a "Notice of Termination of Antidumping Investigation" in the FEDERAL REGISTER.

[T.D. 72-336, 37 F.R. 26299, Dec. 9, 1972; T.D. 72-336, 38 F.R. 2756, Jan. 30, 1973]

§ 153.16 Fair value; shipments from intermediate country.

If the merchandise is not imported directly from the country of origin, but is shipped to the United States from another country, the price at which such or similar merchandise is sold in the country of origin will be used in the determination of fair value if the merchandise was merely transshipped through the country of shipment.

§ 153.17 Fair value; merchandise resold in a changed condition.

If exporter's sales price (as defined in section 204 of the Antidumping Act, 1921 (19 U.S.C. 163)), is applicable and the imported merchandise is resold to an unrelated U.S. purchaser in a condition

different from that in which it was imported, the Secretary may use such reasonable basis as he deems appropriate to determine exporter's sales price. § 153.18 Fair value; level of trade.

The comparison of the purchase price or exporter's sales price (as defined in sections 203 and 204, respectively, of the Antidumping Act, 1921, as amended (19 U.S.C. 162, 163)), as the case may be, with the applicable price in the home market of the country of exportation (or, as the case may be, price to third country markets) will generally be made at the same level of trade. However, if the Secretary finds that the sales of the merchandise to the United States or in the applicable foreign market are insufficient in number to permit an adequate comparison, the comparison will be made at the nearest comparable level of trade and appropriate adjustments shall be made for differences affecting price comparability.

Subpart B-Availability of
Information

NOTE: For Bureau of Customs general provisions relating to availability of information see Part 103 of this chapter.

§ 153.23

Availability of information in antidumping proceedings.

(a) Information generally available. In general, all information but not necessarily all documents obtained by the Treasury Department, including the Bureau of Customs, in connection with any antidumping proceeding will be available for inspection or copying by any person. With respect to documents prepared by an officer or employee of the United States, factual material, as distinguished from recommendations and evaluations, contained in any such document will be made available by summary or otherwise on the same basis as information contained in other documents. Attention is directed to § 24.12 of this chapter relating to fees charged for providing copies of documents.

(b) Request for confidential treatment of information. Any person who submits information in connection with an antidumping proceeding may request that such information, or any specified part thereof, be held confidential. Information covered by such a request shall be set forth on separate pages from other information; and all such pages shall be clearly marked "Confidential Treatment

Requested." The Commissioner of Customs or the Secretary of the Treasury or the delegate of either will determine, pursuant to paragraph (c) of this section, whether such information, or any part thereof, shall be treated as confidential. If it is so determined, the information covered by the determination will not be made available for inspection or copying by any person other than an officer or employee of the U.S. Government or a person who has been specifically authorized to receive it by the person requesting confidential treatment. If it is determined that information submitted with such a request, or any part thereof, should not be treated as confidential, or that summarized or approximated presentations thereof should be made available for disclosure, the person who has requested confidential treatment thereof shall be promptly so advised and, unless he thereafter agrees that the information, or any specified part or summary or approximated presentations thereof, may be disclosed to all interested parties, the information will not be made available for disclosure, but to the extent that it is self-serving it will be disregarded for the purpose of the determination as to sales at less than fair value and no reliance shall be placed thereon in this connection, unless it can be demonstrated from other sources that the information is correct.

(c) Standards for determining whether information will be regarded as confidential (1) General. Information will ordinarily be considered to be confidential only if its disclosure would be of significant competitive advantage to a competitor or would have a significantly adverse effect upon a person supplying the information or upon a person from whom he acquired the information. Further, if disclosure of information in specific terms or with identifying details would be inappropriate under this standard, the information will ordinarily be considered appropriate for disclosure in generalized, summary or approximated form, without identifying details, unless the Commissioner of Customs or the Secretary of the Treasury or the delegate of either determines that even in such generalized, summary or approximated form, such disclosure would still be of significant competitive advantage to a competitor or would still have a significantly adverse effect upon a person supplying the information or upon a person from whom he acquired the information.

As indicated in paragraph (b) of this section, however, the decision that information is not entitled to protection from disclosure in its original or in another form will not lead to its disclosure unless the person supplying it consents to such disclosure.

(2) Information ordinarily regarded as appropriate for disclosure. Except as provided in § 153.23 (c) (3), information will ordinarily be regarded as appropriate for disclosure if it:

(i) Relates to price information; (ii) Relates to claimed freely available price allowances for quantity purchases;

or

(iii) Relates to claimed differences in circumstances of sale.

(3) Information ordinarily regarded as confidential. Information will ordinarily be regarded as confidential if its disclosure would:

(i) Disclose business or trade secrets; (ii) Disclose production costs;

(iii) Disclose distribution costs, except to the extent that such costs are accepted as justifying allowances for quantity or differences in circumstances of sale;

(iv) Disclose the names of particular customers or the price or prices at which particular sales were made; or

(v) Disclose the names of particular persons from whom confidential information was obtained, if nondisclosure of the names has been requested (5 U.S.C. 552).

Subpart C-Procedure Under
Antidumping Act, 1921

§ 153.25 Suspected dumping; information from Customs officers.

If any district director of Customs has knowledge of any grounds for a reason to believe or suspect that any merchandise is being, or is likely to be, imported into the United States at a purchase price or exporter's sales price less than the foreign market value (or, in the absence of such value, then the constructed value), as contemplated by section 201(b) Antidumping Act, 1921, as amended (19 U.S.C. 160(b)), or at less than its "fair value" as that term is defined in § 153.2, he shall communicate his belief or suspicion promptly to the Commissioner of Customs. Every such communication shall contain or be accompanied by a statement of substantially the same information as is required in § 153.27, if the district director has such