53.8

Fair value; differences in quantities. Fair value; circumstances of sale.

Chapter I-Bureau of Customs

[T.D. 68-148]

ANTIDUMPING REGULATIONS

Notice of a proposal to amend the Customs Regulations providing procedures under the Antidumping Act, 1921, was published in the FEDERAL REGISTER for October 28, 1967 (32 F.R. 14955). Interested persons were given an opportunity to submit relevant data, views, or arguments in writing regarding the proposed amendments.

Due consideration has been given to all comments, views, and other data received. In response to those comments or for editorial purposes, changes have been made in §§ 53.15, 53.23, 53.26, 53.29, 53.30, 53.31, 53.33, 53.34, 53.35, 53.36, 53.38 (renumbered § 53.37), 53.48, and 53.52.

Accordingly, the Customs Regulations are amended, to add a new Part 53, Antidumping, and to delete §§ 14.6 through 14.13, 16.21, 16.22, and 17.9 of the regulations as follows:

PART 14-APPRAISEMENT

from persons outside Customs Service.

53.27 Suspected dumping; nature of information to be made available.

Initiation of antidumping proceed

ing; summary investigation.

Antidumping Proceeding Notice."

Full scale investigation.

Determination as to fact or likelihood

ment withheld pursuant to § 53.34 (b).

53.28 53.29

Adequacy of information.

53.30

(Sec. 407, 42 Stat. 18; 5 U.S.C. 301, 19 U.S.C. 173)

53.31

53.32

53.33

of sales at less than fair value. Negative determination.

PART 16-LIQUIDATION OF DUTIES

53.34

Withholding of appraisement.

53.35

Affirmative determination; general.

Affirmative determination; Appraise

Subpart D-Action by District Director of Customs

53.48 Action by the District Director of

53.49

53.50

53.51

Customs.

Certificate of importer.

Appraisement of merchandise covered by Form 4.

Appraisement when required certifi

cate not filed.

§ 53.2

Subpart A-Fair Value

Fair value; definition.

For the purposes of section 201(a) of the Antidumping Act, 1921, as amended (19 U.S.C. 160 (a)), the fair value of the imported merchandise shall be determined in accordance with §§ 53.3 to 53.5. § 53.3 Fair value based on price in country of exportation; the usual test. (a) General. Merchandise imported into the United States will ordinarily be considered to have been sold, or to be likely to be sold, at less than fair value if 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, is, or is likely to be, less than the price (as defined in section 205, after adjustment as provided for in section 202 of the Antidumping Act, 1921, as amended (19 U.S.C. 164, 161)), at which such or similar merchandise (as defined in section 212(3) of the Antidumping Act, 1921, as amended (19 U.S.C. 170a (3))) is sold for consumption in the country of exportation on or about the date of purchase or agreement to purchase of the merchandise imported into the United States if purchase price applies, or on or about the date of exportation thereof if exporter's sales price applies.

(b) Restricted sales. When home market sales form the appropriate basis of comparison, they will be used for this purpose whether or not they are restricted. If there should be restrictions which affect the value of the merchandise, appropriate adjustment of the home market price will be made.

§ 53.4 Fair value based on sales for exportation to countries other than the United States.

(a) General. If it is demonstrated that during a representative period the quantity of such or similar merchandise sold for consumption in the country of exportation is so small, in relation to the quantity sold for exportation to countries other than the United States, as to be an inadequate basis for comparison, then merchandise imported into the United States will ordinarily be deemed to have been sold, or to be likely to be sold, at less than fair value if the purchase price or the 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, is, or is likely to be, less than the price (as defined in section 205, after adjustment as provided for in section 202 of the Antidumping Act, 1921, as amended (19 U.S.C. 164, 161)), at which such or similar merchandise (as defined in section 212(3) of the Antidumping Act, 1921, as amended (19 U.S.C. 170a (3))) is sold for exportation to countries other than the United States on or about the date of purchase or of agreement to purchase the merchandise imported into the United States if purchase price applies, or on or about the date of exportation thereof if exporter's sales price applies.

(b) Twenty-five percent rule. Generally, the quantity of such or similar merchandise sold for consumption in the country of exportation will be considered to be an inadequate basis for comparison if it is less than 25 percent of the quantity sold other than for exportation to the United States.

(c) Restricted sales. When third country sales form the appropriate basis of comparison, they will be used for this purpose whether or not they are restricted. If there should be restrictions which affect the value of the merchandise, appropriate adjustment of the third country price will be made.

§ 53.5 Fair value based on constructed value.

(a) General. If the information available is deemed by the Secretary insufficient or inadequate for a determination under § 53.3 or § 53.4, he will determine fair value on the basis of the constructed value as defined in section 206 of the Antidumping Act, 1921, as amended (19 U.S.C. 165).

(b) Merchandise from controlled economy country. Ordinarily, if the information available indicates that the economy of the country from which the merchandise is exported is controlled to an extent that sales or offers of sales of such or similar merchandise in that

country or to countries other than the United States do not permit a determination of fair value under § 53.3 or § 53.4, the Secretary will determine fair value on the basis of the constructed value of the merchandise determined on the normal costs, expenses, and profits as reflected by the prices at which such or similar merchandise is sold by a nonstate-controlled-economy country either (1) for consumption in its own market; or (2) to other countries, including the United States.

§ 53.6 Calculation of fair value.

as

In calculating fair value under section 201(a), Antidumping Act, 1921, amended (19 U.S.C. 160 (a)), the criteria in §§ 53.7 through 53.16 shall apply. § 53.7 Fair value; differences in quantities.

(a) General. In comparing the purchase price or exporter's sales price, as the case may be, with such applicable criteria as sales or offers, on which a determination of fair value is to be based, reasonable allowances will be made for differences in quantities 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. In determining the 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 re

flecting 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.

§ 53.8 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 reasonably 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 reasonably 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 tỏ 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. § 53.9

Fair value; similar merchandise. In comparing the purchase price or