B. Nonfibrous materials: Plastics; leather; paper; cellophane; photographic sensitizers, desensitizers, light filters and tinting film; foodstuffs; biological materials; solutions, analytical; oils, fats, and waxes; soap; gasoline; paints, lacquers, stains, and inks; smoke (signals); aluminum; earthenware; other.

13. Chemical classification: Acridine; aminoketone; anthraquinone; azine; axo, mono-; azo, dis-; azo, tris-; azo, tetrakis-; azo, poly-; azo, metal complex; azo, pigment; azoic; color acid; color base; color lake; cyanine; esters of leuco indigoid; esters of leuco thioindigoid; esters of leuco anthraquinone; fluorescent; hydroxyketone; indamine; indigoid; indoaniline; indophenol; indoxyl; indoxyl compound; ketol; ketonimine; lactone; leuco compound; methane, diphenylnaphthyl-; methane, triphenyl-; methane, aza-; methine, poly-; nitro; nitroso; oxazine; phthalocyanine; quinoline; quinonoid, sulfur or sulfide; thiazine; thiazole, thionindigoid; xanthene; other.

A. Describe the class or classes and subclass to which the product belongs.

Example (1): Monoazo, Gamma-acid coupling.

Example (2): Xanthen-Basic, oxy-carboxy rhodamines.

B. Give any other information which you consider may be helpful in classifying the products.

Example (1): Insoluble azo dye on the fiber. Mixtures of stabilized diazo amino compounds and coupling components for preparation of the dye on the fiber.

Example (2): Anthraquinone-Dispersion type amino-oxy-anthraquinones.

14. If the product consists of a mixture of two or more active ingredients, the information required by the preceding numbered paragraphs shall be given for each active ingredient in the mixture, together with the proportion of each active ingredient in the mixture.

15. In addition to the above specifications, there shall be furnished a color pattern or card showing typical small specimens of the material to which the product has been applied with an indication of the strength and the method of application. However, in those cases where a suitable color card has been filed previously with the New York Customs Laboratory, or where a color card is not used commercially and it is not practical to submit one, it will be considered satisfactory to furnish a statement setting forth the date the previous pattern or card was filed and its identification number, or the reason why one is not submitted.

§ 152.43 Testing of imported benzenoid colors, dyes, stains, and related products.

Any sample of an imported benzenoid color, dye, stain, or related product sent to the Customs laboratory to determine its comparability with a domestic product shall be accompanied by the Schedule A specifications required by § 141.89 of this chapter. The chief chemist shall search the file of domestic samples and specifications referred to in § 152.42(a) and make any necessary tests. If no comparable domestic product is found, the chief chemist shall prepare and submit his laboratory report accordingly.

153.2 Fair value based on price in the country of exportation; the usual test. 153.3 Fair value based on sales for exportation to countries other than the United States.

153.4 Fair value based on sales in a third country by a related company.

153.5 Fair value when sales are made at less than the cost of production. 153.6 Fair value based on constructed value.

153.7 Merchandise from state-controlledeconomy country.

153.8 Calculation of fair value.

153.9 Fair value; differences in quantities. 153.10 Fair value; circumstances of sale. 153.11 Fair value; similar merchandise. 153.12 Fair value; offering price. 153.13 Fair value; transactions between related persons.

153.14 Fair value; fictitious sales. 153.15 Fair value; level of trade. 153.16 Fair value; sales at varying prices. 153.17 Fair value; shipments from intermediate country.

153.18 Merchandise resold in a changed

condition.

Subpart B-Availability of Information

153.21 Information generally available. 153.22 Requests for confidential treatment of information.

153.23 Standards for determining whether information will be regarded as privileged or confidential.

160-173). Other authorities are cited to text in parentheses.

SOURCE: T.D. 76-176, 41 FR 26204, June 25, 1976, unless otherwise noted.

§ 153.0 Scope.

This part sets forth procedures and rules applicable to proceedings under the Antidumping Act, 1921, as amended, 19 U.S.C. 160, et seq. (hereafter referred to in this part as "the Act"), the assessment of the special dumping duty, and protests relating to matters under the Act.

Subpart A-Fair Value

§ 153.1 Fair value; definition.

For the purposes of section 201(a) of the Act (19 U.S.C. 160(a)), the fair value of the imported merchandise shall be determined in accordance with §§ 153.2 through 153.7.

§ 153.2 Fair value based on price in the 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 Act (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 Act (19 U.S.C. 164, 161)), at which such or similar merchandise (as defined in section 212(3) of the Act (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 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 may 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.

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

(a) General. If it is demonstrated, in a situation other than that provided for in § 153.4, that during a representative period the quantity of such or similar merchandise sold for consumption in the country of exportation is nonexistent or 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 ordinarily will 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 Act (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 Act (19 U.S.C. 164, 161)), at which such or similar merchandise (as defined in section 212(3) of the Act (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) Restricted sales. When third country sales form the appropriate basis of comparison, they may 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.

(1) During a representative period, the quantity of such or similar merchandise sold for consumption in the country of exportation by a particular company as determined under § 153.2 is nonexistent or is so small as to be inadequate as a basis for comparison with sales of merchandise by that company to the United States;

(2) The merchandise exported to the United States is being produced in facilities which are owned or controlled, directly or indirectly, by a person, firm, or corporation which owns or controls, directly or indirectly, other facilities for production of such or similar merchandise which are located in another country or countries; and

(3) The fair value of such or similar merchandise produced in one or more of the facilities outside the country of exportation, after adjustments as provided for in paragraph (b) of this section, is clearly higher than the fair value of such or similar merchandise produced in the facilities located in the country of exportation, then merchandise imported into the United States will 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 Act (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, of the Act (19 U.S.C. 164(d))), after adjustment as provided for therein, at which such or similar merchandise (as defined in section 212(3) of the Act (19 U.S.C. 170a(3))), is sold in substantial quantities by one or more facilities outside the country of exportation on or about the date of exportation of such merchandise to the United States.

(b) Price calculations and adjustments. In computing the price at which such or similar merchandise is sold by facilities outside the country of exportation, the Secretary ordinarily shall use the price at which the merchandise is sold for consumption in the country of manufacture. If such or similar merchandise is not sold in sufficient quantities in the country of manufacture to permit a price computation, the Secretary shall make his

computation on the basis of the price at which such or similar merchandise is sold for export to other countries. In making price comparisons under paragraph (a)(3) of this section, adjustment will be made for any difference in the costs of production of such or similar merchandise produced in facilities outside the country of exportation to the United States and costs of production of such or similar merchandise produced in facilities in the country of exportation to the United States. Cost of production differences for which adjustment will be made include differences in tax, labor, material, and overhead costs. Additionally, adjustments will be made for appropriately established differences between the two markets in quantities sold and circumstances of sale (§§ 153.9 and 153.10).

(c) Ownership or control. A facility in a country outside the country of exportation ordinarily will be considered to be owned or controlled by a person, firm, or corporation whenever that person, firm, or corporation exercises any kind of substantial control, direct or indirect, whether or not legally enforceable, and however exercisable or exercised. Such indicia as stock ownership are meaningful, but it is the reality of control which is decisive.

§ 153.5 Fair value when sales are made at less than cost of production. Whenever the Secretary has reasonable grounds to believe or suspect that the price at which such or similar merchandise is sold for consumption in the country of exportation as determined under § 153.2, or as appropriate, the price at which such or similar merchandise is sold for exportation to countries other than the United States as determined under § 153.3, or the price at which such or similar merchandise is sold by facilities outside the country of exportation by a related company as determined under § 153.4, represents a price which is less than the cost of producing the merchandise, the Secretary shall disregard such sales in the determination of fair value if such sales:

(a) Have been made over an extended period of time and in substantial quantities, and

(b) Are not at prices which permit recovery of all costs within a reasonable period of time in the normal course of trade.

Whenever sales are disregarded by virtue of having been made at less than the cost of production, and the remaining sales in the home market or, as appropriate, to third countries or by facilities outside the country of exportation by a related company, made at not less than the cost of production are determined to be inadequate as a basis for the determination of fair value, the Secretary shall determine fair value on the basis of the constructed value as defined in section 206 of the Act (19 U.S.C. 165). The cost of production ordinarily will be computed on the basis of the actual costs of materials, labor and general expenses, excluding profit, or, if necessary, on the basis of the best evidence available.

§ 153.6 Fair value based on constructed value.

If the information available is deemed by the Secretary to be insufficient or inadequate for a determination under §§ 153.2, 153.3, 153.4, or 153.5, he will determine fair value on the basis of the constructed value as defined in section 206 of the Act (19 U.S.C. 165).

§ 153.7 Merchandise from state-controlledeconomy country.

If the information available indicates to the Secretary that the economy of the country from which the merchandise is exported is state-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 §§ 153.2, 153.3, or 153.4, the Secretary shall determine fair value on the basis of the normal costs, expenses, and profits as reflected by either:

(a) The prices, determined in accordance with section 205(a) and section 202 of the Act (19 U.S.C. 164(a), 161), at which such or similar merchandise

of a

non-state-controlled-economy

country or countries, including the United States, is sold either (1) for consumption in the home market of that country or countries, or (2) to other countries, including the United States; or

(b) The constructed value of such or similar merchandise in a non-statecontrolled-economy country or countries, including the United States, as determined under section 206 of the Act (19 U.S.C. 165).

The prices or the constructed value of the United States produced merchandise generally will be utilized where sales or offers for sale of such or similar merchandise in any other nonstate-controlled-economy country do not provide an adequate basis for comparison.

§ 153.8 Calculation of fair value.

In calculating fair value under section 201(a) of the Act (19 U.S.C. 160(a)), the criteria in §§ 153.8 through 153.18 shall apply.

§ 153.9 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, comparisons normally will be made on sales of comparable quantities of the merchandise under consideration. Further, reasonable allowances will be made for differences in quantities, including such differences in individual sales, 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 the affording in the home market (or third country markets, where sales to third countries are the basis for comparison) of 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 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 which are specifically attributable to the quantities involved, such as savings with regard to production costs which result from the quantities produced.

(3) Use in determining fair value. If the exporter is able to meet the criteria set forth in paragraph (b)(1) of this section, the price of such or similar merchandise sold at a discount in the home market (or in third country markets when third countries are the basis for comparison) will ordinarily be used as the basis for determining the fair value of the merchandise. If the exporter is unable to meet the criteria in paragraph (b)(1) of this section, any sales of such or similar merchandise in the home market (or in third country markets, when third countries are the basis for comparison) which are made at a discount, together with sales not made at a discount, will be used for purposes of § 153.16 in determining the fair value of the merchandise.

(c) Price lists. In determining whether a discount has been given, the existence of a published price list reflecting such a discount will not be controlling. A price list ordinarily will be disregarded where, in the line of trade under consideration, price lists are not commonly published, or, although commonly published, are not commonly adhered to.