ing the termination of the investigation. The notice shall also state that 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 terminating the investigation. The tentative acceptance of price assurances 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.

[T.D. 70-134, 35 F.R. 9271, June 13, 1970, as amended by T.D. 70-127, 35 F.R. 12062, May 27, 1970]

§ 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.

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) Requests 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 signifi

cantly 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 subparagraph (3) of this paragraph, 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. (5 U.S.C. 552)

[T.D. 70-134, 35 F.R. 9271, June 13, 1970, as amended by T.D. 70-150, 35 F.R. 10586, June 30, 1970]

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, than 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 accom

66-038-72- -34

panied by a statement of substantially the same information as is required in § 153.27, if the district director has such information or if it is readily available to him.

§ 153.26

Suspected dumping; information from persons outside Customs Service.

Any person outside the Customs Service who has information that merchandise is being, or is likely to be, imported into the United States under such circumstances as to bring it within the purview of the Antidumping Act, 1921, as amended, may, on behalf of an industry in the United States, communicate such information in writing to the Commissioner of Customs.

153.27 Suspected dumping; nature of information to be made available. Communications to the Commissioner pursuant to § 153.26, regarding suspected dumping should, to the extent feasible, contain or be accompanied by the following:

(a) A detailed description or sample of the merchandise; if no sample is furnished, the Bureau of Customs may call upon the person who furnished the information to furnish samples of the imported and competitive domestic articles, or either;

(b) The name of the country from which it is being, or is likely to be, imported;

(c) The name of the exporter or exporters and producer or producers, if known;

(d) The ports or probable ports of importation into the United States;

(e) Information indicating that an industry in the United States is being injured, or is likely to be injured, or prevented from being established;

(f) Such detailed data as are available with respect to values and prices indicating that such merchandise is being, or is likely to be, sold in the United States at less than its fair value, within the meaning of the Antidumping Act, 1921, as amended, including information as to any differences between the foreign market value or constructed value and the purchase price or exporter's sales price which may be accounted for by any difference in taxes, discounts, incidental costs such as those for packing or freight, or other items.

(g) Such material as is available indicating the market price for similar mer

chandise in the country of exportation and in any third countries in which merchandise of the producer complained of is known to be sold.

(h) Such information as is available as to sales made for consumption in the country of exportation or for exportation otherwise than to the United States over a significant period of time prior to the date upon which the information is furnished.

(i) Such suggestions as the person furnishing the information may have as to specific avenues of investigation to be pursued or questions to be asked in seeking pertinent information.

§ 153.28 Adequacy of information.

If any information filed pursuant to § 153.26 in the opinion of the Commissioner does not conform substantially with the requirements of § 153.27, the Commissioner shall return the communication to the person who submitted it with detailed written advice as to the respects in which it does not conform. § 153.29 Initiation of antidumping proceeding; summary investigation. Upon receipt of information pursuant to 153.25 or § 153.26 in a form acceptable to the Commissioner, the Commissioner shall conduct a summary investigation. If he determines that the information is patently in error, or that merchandise of the class or kind is not being and is not likely to be imported in more than insignificant quantities, or for other reasons determines that further investigation is not warranted, he shall so advise the person who submitted the information and the case shall be closed. 153.30

Antidumping Proceeding Notice.

If the case has not been closed under section 153.29, the Commissioner, with the approval of the Secretary, shall publish a notice in the FEDERAL REGISTER that information in an acceptable form has been received pursuant to § 153.25 or § 153.26. This notice, which may be referred to as the "Antidumping Proceeding Notice," will specify

(a) Whether the information relates to all shipments of the merchandise in question from an exporting country, or only to shipments by certain persons or firms; in the latter case, the names of such persons and firms will be specified.

(b) The date on which information in an acceptable form was received and

that date shall be the date on which the question of dumping was raised or presented for purposes of § 201(b) and § 202(a) of the Antidumping Act, 1921, as amended (19 U.S.C. 160(b) and 161 (a)).

(c) The fact that there is some evidence on record concerning injury to or likelihood of injury to or prevention of establishment of an industry in the United States.

(d) A summary of the information received. If a person outside the Customs Service raised or presented the question of dumping, his name may be included in the notice unless a determination under § 153.23 requires that his name not be disclosed.

[T.D. 70-134, 35 F.R. 9271, June 13, 1970, as amended by T.D. 71-266, 36 F.R. 20220, Oct. 19, 1971]

§ 153.31

Full scale investigation.

(a) Initiation of investigation. Upon publication of an Antidumping Proceeding Notice the Commissioner shall proceed, by a full-scale investigation, or otherwise, to obtain such additional information, if any, as may be necessary to enable the Secretary to reach a determination as provided by § 153.32. In order to verify the information presented, or to obtain further details, investigations will, where appropriate, be conducted by Customs Representatives in foreign countries, unless the country concerned objects to the investigation. If an adequate investigation is not permitted, or if any necessary information is withheld, the Secretary will reach a determination on the basis of such facts as are available to him.

(b) Termination of investigation. If at anytime during an investigation the Commissioner determines that further investigation is not warranted by the facts of the case, he may recommend to the Secretary that the case be closed by a determination of no sales at less than fair value.

§ 153.32 Determination as to fact or likelihood of sales at less than fair value.

(a) Fair value determination. Upon receipt from the Commissioner of Customs of the information referred to in § 153.31, the Secretary of the Treasury will proceed as promptly as possible to determine whether or not the merchandise in question is in fact being, or is

likely to be, sold in the United States or elsewhere at less than its fair value.

(b) Submission of views. During the course of an antidumping proceeding interested persons may make such written submissions as they desire. Appropriate consideration will be given to any new or additional information submitted. The Secretary or his delegate also may at any time invite any person or persons to supply him orally with information or argument.

§ 153.33 Negative determination.

(a) Notice of Tentative Negative Determination. If it appears to the Secretary that on the basis of information before him a determination of sales at not less than fair value may be required, he will publish in the FEDERAL REGISTER a "Notice of Tentative Negative Determination," which will include a statement of the reasons upon which the tentative determination is based.

(b) Opportunity to present views(1) Written. Interested persons may make such written submissions as they desire, within a period which will be specified in the notice, with respect to the contemplated action. Appropriate consideration will be given to any new or additional information or argument submitted.

(2) Oral. If any person believes that any information obtained by the Bureau of Customs in the course of the antidumping proceeding is inaccurate or that for any other reason the tentative determination is in error, he may request in writing that the Secretary of the Treasury afford him an opportunity to present his views in this regard. Upon receipt of such a request, the Secretary will notify the person who supplied any information, the accuracy of which is questioned and such other person or persons, if any, as he in his discretion may deem to be appropriate. If the Secretary is satisfied that the circumstances so warrant, an opportunity will be afforded by the Secretary or his delegate for all such persons to appear, through their counsel or in person, accompanied by counsel if they so desire, to make known their respective points of view and to supply such further information or argument as may be of assistance in leading to a conclusion as to the accuracy of the information in question. The Secretary or his delegate may at any time invite any

person or persons to supply him orally with information or argument.

(c) Final determination. As soon as possible thereafter, the Secretary will make a final determination and publish his determination in the FEDERAL REGISTER.

(d) Negative determination after issuance of a withholding of appraisement notice. The procedure specified in paragraphs (a), (b), and (c) of this section will not apply if the decision to issue a negative determination is made by the Secretary after a withholding of appraisement notice has been issued and thereafter he has afforded interested parties an opportuinty to be heard pursuant to the provisions of § 153.37. In lieu thereof a final negative determination will be published setting forth the statement of reasons.

§ 153.34

Withholding of appraisement.

(a) Three-month period. If the Commissioner determines during the course of his investigations that there are reasonable grounds to believe or suspect that any merchandise is being, or is likely to be, sold at less than its foreign market value (or, in the absence of such value, then its constructed value) under the Antidumping Act, and if there is evidence on record concerning injury or likelihood of injury to or prevention of establishment of an industry of the United States, he shall, with the approval of the Secretary, publish notice of these facts in the FEDERAL REGISTER in a "Withholding of Appraisement Notice," indicating:

(1) That the belief or suspicion relates only to certain shippers or producers, if this is the case and that the investigation is limited to the transactions of such shippers or producers.

(2) The expiration date of the notice (which shall be no more than 3 months from the date of publication of the notice in the FEDERAL RERISTER, unless a longer period of withholding of appraisement has been requested by the importer and the exporter pursuant to paragraph (b) of this section and has been approved by the Commissioner).

This withholding of appraisement notice will be issued concurrently with the Secretary's determination pursuant to § 153.35, unless appraisement is being withheld pursuant to paragraph (b) of this section.

(b) Six-month period. At any time prior to the issuance of the withholding of appraisement notice referred to in paragraph (a) of this section, importers and exporters concerned may request that the period of withholding of appraisement extend for a period longer than 3 months, but in no case longer than 6 months. Upon receipt of such a request from importers and exporters concerned the Commissioner will decide whether appraisement should be withheld for a period longer than 3 months. If the Commissioner decides that a period of withholding of appraisement longer than 3 months is justified, he will, with the approval of the Secretary, publish a withholding or appraisement notice upon the same basis and containing information of the same type as is required by paragraph (a) of this section, except that the expiration data of the notice may be 6 months form the date of publication of the notice in the FEDERAL REGISTER.

(c) Advice to District Directors of Customs. The Commissioner shall advise all district directors of Customs of his action. Upon receipt of such advice the district director of Customs shall proceed to withhold appraisement in accordance with the pertinent provisions of § 153.48.

(d) Notice issued before July 1, 1968. The time limitations of this section do not apply to withholding of appraisement notices issued before July 1, 1968. [T.D. 70-134, 35 F.R. 9271, June 13, 1970, as amended by T.D. 70-219, 35 F.R. 15911, Oct. 9, 1970]

If it appears to the Secretary on the basis of the information before him that a determination of sales at less than fair value is required, unless the withholding of appraisement notice was issued pursuant to § 153.34 (b), he will publish in the FEDERAL REGISTER his Determination of Sales at Less Than Fair Value. This determination will include:

(a) An adequate description of the merchandise;

(b) The name of each country of exportation;

(c) The name of the supplier or suppliers, if practicable;

(d) The date of the receipt of the information in an acceptable form;

(e) Whether the appropriate basis of

comparison is purchase price or exporter's sales price; and

(f) A statement of reasons upon which the determination is based.

§ 153.36 Affirmative determination; appraisement withheld pursuant to § 153.34(b).

If it appears to the Secretary on the basis of the information before him that a determination of sales at less than fair value is required, and if a withholding of appraisement notice has been issued pursuant to § 153.34(b), he will publish in the FEDERAL REGISTER his Determination of Sales at Less Than Fair Value within 3 months from the date of publication of such withholding of appraisement notice. This determination will contain information of the same type as required in § 153.35 (a) through (f). § 153.37 Affirmative determination; opportunity to present views.

As soon as possible after the publication of the withholding of appraisement notice if any person believes that for any reason the withholding action is in error, he may request that the Secretary of the Treasury afford him an opportunity to present his views in this regard. Upon receipt of such a request the Secretary will notify each person who supplied any information, relied upon in connection with the withholding action, and such other person or persons, if any, as he may deem to be appropriate. If the Secretary is satisfied that the circumstances so warrant, an opportunity will be afforded by the Secretary or his delegate for all interested persons to appear, through their counsel or in person, accompanied by counsel if they so desire, to make known their respective points of view and to supply such further information or argument as may be of assistance in a consideration of the matter. Unless for unusual reasons it is clearly impracticable, such meeting will be held within 3 weeks of the date of the publication of the notice of withholding, unless such notice was issued pursuant to § 153.34(b), when it shall be held within 5 weeks of such publication. Reasonable notice of the meeting will be given.

§ 153.38 Referral to U.S. Tariff Commission.

Whenever the Secretary makes a determination of sales at less than fair value he shall so advise the U.S. Tariff Commission.