tariffs and trade

RESTRICTED

GENERAL AGREEMENT ON 27 March1980TARIFFS AND TRADE Special Distribution

Committee on Anti-Dumping Practices Original: English

INFORMATION ON IMPLEMENTATION AND ADMINISTRATION OF THE AGREEMENT

Legislation of the United States

The following communication,dated 20 February 1980, has been receivedfrom the Permanent Mission of the United States.

Pursuant to the provisions of Article 16:6 of the Agreement on Implementationof Article VI of the General Agreement on Tariffs and Trade, I am submittingthe attached notifications.

These are the implementing regulations concerning United States anti-dumping procedures.

A. United States International Trade Commission: Procedures for conductof investigations of whether injury to domestic industries results fromimports sold at less than fair value or from subsidized exports to theUnited States (19 CFR Parts 201 and 207). Published 26 December 1979;

B. United States Department of Commerce: Anti-dunmping duties(19 CFR Part 353), published 6 February 1980.

ADP/1/Add. 3

WednesdayDecember 26, 1979

Part III

International TradeCommissionProcedures for Conduct of Investigationsof Whether Injury to Domestic IndustriesResults From Imports Sold at Less ThanFair Value or From Subsidized Exports tothe United States

ADP/1/Add 3

INTERNATIONAL TRADECOMMISSION

19CFRParts201 and 207

Procedures for the Conduct ofInvestigations of Whether Injury toDomestic Industries Resuts FromImports Sold at Less Than Fair Valueor FromSubsidized Exports to the

Unted States

AGENCY:United States InternationalTrade Commission.

Action: Final rules.SUMMARY:m The Trade Agreements Act of1979 approves and implements tradeaerenments negotiated by the UnitedStates in the Tokyo Round ofMultilateral Trade Negotiations. It will"ring about extensive changes in the..S countervailing duty andantidumping duty laws, primarilythrough amendment of the Tariff Act of0.3 These rules amend Part ,01 repealexisting Part 207, and establish a newpart 207 of the Commission rules toprovide procedures for the conduct ofCommission antidumping andcountervailing duty investigations underthe changes required- by the Trade-Agreements Act of 1979. These rules setforth procedures for the conduct ofCommission investigations undersection330W and title VII of the Tariff Act1f t930 (19 U.S1C 303 and1671-167section 516A of the Tariff Act of 1930 (19U.S.C. 1516A8. and sections 102-107 ofthe Trade Agreements Act of 197 P9,PuL No. 96-39. 93 Stat. 144.weEFFECTIVE DATE:nuary 1983.0RFUR FURTHER INFORMATION CONEdward M. Lebow, Esq, or Edwardaston. Esq. off..e of the Ceneral

..Ornelounsel,International TradeCommission. 701 E Street. NW..Washingto D.Cn,., telephone (202) -

048or 52303879. re-spectively.SUPLEMTAY IOENTARRMATot A

analysi. of publicscomments on theproposed rules follows.

nT

On October 15. 1979. a Notice ofProposed Rulemaking was published in

the Federal Regser (44 FR 593;2)proposing to add a new Part 207 to title29, chapter ILof the Code of FederaIlRegulations and to delete the presentpart 207. Notice was given thatcomments concerning the proposedrulemaking were to be submitted on orbefore November 29. 1979. Submissionsfrom approximately 20 interestedpersons and organizations werereceived by December 3. 1979. Thesubmissions covered all of the areas

addressed in the proposed rules, withthe exception of judicial review. Manyof the ideas contained in the commentshave been accepted by the Commissionand incorporated in its final rules; othersuggestions were not adopted. The

following is a summary of the proposalsmade in the comments received by theCommission with an explanation of whycertain proposed amendments were orwere not adopted. This summary hasbeen organized in accordance with the

principal subparts of the proposed rules.

Subpart ATwo comments wer directed at the

failure of the proposed rules to explainclearly that an Injury determination willnot be required in countervailing dutycas with respect to dutiabeslemerchandise imported from a nationwhich is not a "country under theAgreement." The explanatory materialson §271 have been clarified0otomake Itexplicit that a determination of injurypursuant to title VT! of the Act is not

required with respect to dutiablemerchandise imported from a nation

which is not a "country under theAgreement."One comment noted that the

definition of 'ex parte meeting"j 2072(f1 was limited to com.2(f)ationsof factual information between partiesand Commissioners and certain sta,wheras section 777(3) of the Act covers"Interested parties or other persons."We age that the proposed rule was

narrower than the law required and

have made an appropriate change in thefinal rule. The same comment alsosuggested that 'arguments.' in additionto 'factualInformation." be madesubject to the ex part rule. This changehowever, Is not required by the stituteand has not been incorporated In thefinal rule.

Another major area of comments inthis subpart concerned protective ordersfor the release of confidentialinformation to attorneys or otherrepresentatives of interested parties in

countervailing duty and antidumpinginvestigations. Several commentssgested that the access tougconfidentialinformation by representatives otherthan attorneys will not be adequatelyadmlisterable by the Commisisionbecause strong sanctions are notavailable in the event of a breach of theprotective order by representativesother than attorneys. It was alsosuggested that in-house counsel beexcepted from the terms of theprotective order, since access by In-

house counsel to confidentialinformation would have a chilling effecton submitters of sensitive information.The rrosed rules have beepn amended

accordingly so that only independentattorneys.-nd not in-house counsel.economists, or other professionals. willhave access to confidential information

der protective order The unonlyexception to this rule is thatIndependent. nonlegal professionalswho hav gned a protective oreveder willhave access to such information if theyare working for an atrnmy who hasalso signed a protective order. Thus. theattorney will also be responsible for anybreach by the professionals working forbiuLOther comments on the protective

order provision were directed at theCommission's proposal for theautomatic release under protective orderupon application by interested partieswho are parties to the proceeding ofdomestic price and cost of productioninformation submitted by the petitioneror an interested party in support * thepetitioner. Some comments stated thatthis release was too automatic and thatthe Commission should incorporate astandard of need for the information tobe satisfied by the requesting interestedparty. On the other hand. somecomments suggested that the proposedprotective order provision was toonarrow and did not take full advantageof the statutory authorization for theCommission to release all confidentialinformation under protective order. Inresponding to these comments, theCommission has decided to add astandard of need similar to thatincorporated in rule 26 of the FederalRules of CIil Procedure. Before theSeetary releases domestic pricecrandcost of production information to aninterested party. an interested partymust demonstrate a substantial need forthe information in the prosecution of hisca and that he is unable withoseutundue hardship to obtain the substantialequivalent of the information by othermeans

In the past. the Commission has notreleased any confidential informationunder protective order in anidumpigand countervailing duty investigationsLads found this practice to andbe veryhelpful in obtaining sensitive dataquickly in order to fulfill its statutorymandate of determining within a shorttime whether there is injury to U.S.industries A. rngiy, he final rulehas been amended to permit thedisclosure to interested parties who areparties to the proceeding of confidentialinformation other than domestic priceand cost of production only when allsuch interested parties agree to suchdisclosure. This does not exercise thefull range of the Commission's authorityto release confidential information

ADP/1/Add.3

dealing with data other than dometic

price or cost of Production. It isconceivable howeverwev. t at. after the

sasonh uaccmulated

admsirniitatve experience with theseprotective order requests. mit ay modify

itslesru to allogrew e atr eaccss tuo sch

information. Ioultwd be unwise for the

Commission. in the absence sof uch

experience to reverise ts long-StandingacticeA ifnal comment on subpartA

ocntenedd that the Commission erred

language $2 07-9 whihc

requires a tie vote to be consructted asafifrmative in every edtermination undertitle IIVof the Tariff Act. This comment

alos critciseid the second sentence in

cwbih requiresaffirmativeivvote on any theory injury to beconstrued as airmative when tallyingthe votes Caomissioners. TehC ommission believeshat J$20correct rly reflects section771(11)Ac taust thus nges have been de

Subpr B

Several comets we.-ments wereconz oing thcerning the timing ofsuomissiic in pbelimionrydesmntion investermination inv

prposerale evivaedoposed rulperiod between the Ming.of a pettioand the date on w c the is

would institute a formal negation

duri wbci the Diretor Cperationsnwould conduct informal =Ve}stigativeacvities It as ore Sed tt the

Comiassion would institute a formalIrvestigation oniy after an affi:mativinpetition determination had been made

by the administing authority. Severalcomments pointed ut that the effec oithis prOPosed procedure would be to

allow for e-ceedingly shart periods

within whch pardoe would have had to

mals written submissions to the

Com issinL The Commission bad =adethis props vnith the view not

canterperannow 'Nf thlladministering authorty so that privateindustry woidnot be burdened bybreasts 'oiormation from

Couissionin cases which were

teotly to be rejected by theadinistering authority as being based

on insufficient petitions. The commentsreceived bythe however.

suggest p;rtate i is More

concerned with di .cees i preparingI

sthin exceedinsly brieperiod than with the possibility of

unnecessary woiceing -equired foruestio arms. The Commission's final

rule attempa to balance these concernsby pvidngfor a notice of investigationisuld by the omn:io ili-ngofa petition. or soon thereafter. and for the

determination smh an Investigtio In

the event that the administerI

auoity determines that the petition Is

insientThe OIrecor expected to

consult with the administering authorityconcrning the suTciny Of a etitionthus a notice of investigation may utbe issued immediately. It is anticipatedthat the Coinm n staff will liit Itrequests for informan during this frst

m-ay erod and also will notfy al

person to whoisuch requests for-informatio had been made in the event

that the terint authority msIcs a

creative petition determi=tion. Anothereffect of instituting a formal

investigating by the Commissin uincaor soon after the ling of a petition is toextend natica for the ling of writtenstatements with the Commission in

PFalminary investigatn from the

period of 4 days (wach received u

adverse coment) to a period ofapproximately L ays.

Othe c=entx wit re o

subpart 3 alt with the Commission

proposal tat the Directr of Operationscouft aonfeencein lieu ot a -'adCoaisson hearing in prelarInvesdgation&sSeveal commets

sUgested that tis procedUr- wd

deprive Iiwasted parties of an

oto aru fuly thei positiosbefore the CIt we also

SU&Iesed tha in the event a cofeenand not a full Comission hearing werehei. the Cmmissio would reiyexcessively on its staff instead ofcasigits statutorily required

Independent judgment in reachig itsdetermination These comments.however. igm= the provision theTrade Aemnta Act which very

do not require any fm of

Commission hearing or cnfec in a

C12 b allaig a cet=with the sta, has suma an appropriatebalance between the exigency of

reaching determinations of reasonableindication o inur in every

2gU n and cuteilns dut=Be (W onposed to limited

uber of Special cases in the past)against providagan opportunity tointerested parties to have a hearing in

every case. The Coamin isalsoaware that the procedure required bythe Trade Agreements Act have madeantidumping and cuntervaiLig dutyinvestigations more litigiou and .enceexpensive for all conrn ndthersore chooses. when it Is able. toavoid unecsary fonraliaion ofpresentation before the agency.Commission has. nevertheless, decidedto reserve to itself the authority in

special circmztncs to crd a fullheating in proLminary investgaA dual category of coments on

subpart B was dircted at the concept ofdelegation by the Commissiozto theDirector of Operations for the conduct oipreiminar investigations. At the outset.it should be pnaud hateventhough the Director of Operations andhis Staff are aUmd by 4prt B tocondut vestigative activities onbehaL of the Commission. and even tole recommended finding of act with

the Cin s. itstill the fimion ofthe Commiaaion itself to make thdetermination of reasonable .dicationof injury based on the =teial providedby the staX The Commission hassucZssauly followed a similarprcedure io several year in unfairtadapractice investigations andsectcn. of the Tari-Ac oiIS=Subpart CA large mberof consuts we

drvced at wiatwas perceived to be anCexcs1iVe llmitatio on the submisionby parties of information to theCommission 3usquent to the fili;g oforecearng statements. The C sni.zc=has made two signirant changes in its.ruis to respond to these comments..F:rs araet.'9bil be Pemtted at the'heerng oot only n points raised in thepreenin statent, bt also withrtpec to information not available atthdie theprerxg statement wasiled. Second. the Cmmission hasdecided to allow pothering bries of alimited length within a tim to be axeat the heirimg, In this way, parties wilIbe able to respond to now contoversiesand info:raion raised at the heiThe Cmission also received

con=-am effect that limiting aparty participmn at the hearing to a

brieff statement of its position withrespect to the Suec Matte of the,tigtn was ovely narrow. It is

the postio of the Commission that ucha standardis. on the c=niry, extremelybroad and will allow perons appearingbefore the mission to bring theirexpertise to bear on the issues at hand.A Enl comment submitted in this

area concerned the availability ofoso.examinado of witesses at the

hearing. The hung conducted by theCommission in antidumping andcuntervailing duty investigations is nota hearing governed by the adjudicativeprovisions of the Adzinistrative?Pacedure Act. It is. therefoe not theiutatio of the Ca=zission to changeits current practice set forth in

I 0.¶c). which Jimit questioning ofWitnesses to the purpose of assisting theCommission to obtain ielevant and

ADP/1/Add. 3

material facts with respect to the subjectmatter of the investigation.Other significant comment concerned

proposed $207.2 and 207.27, whichinform parties-what the statute directsthe Commission to consider in makingIts determinations of material injury.One goup of comments suggested thatbecause $207.25 sets forth whatconstitutes material injury, a completeand balanced treatment would requirethe Commission to enumerate also theelements of "threat of material injury."These standards are not In the statuteitself but are inthe legislative historyThe Commission has adopted thissuggestion and amended paragraph (d)of $207.20 to reflect the pertinentlegislative history.Other comments expressed concern

that the Commission. by enumeratingfactors which indicate the presence ofinjury, might have intended to change its

current practice of satisfying Itself thatthere existsa causal relationshipbetween subsidized or dumped importand injury to domestic industries Thesecomment also suggested that theCommission make clear that theexamination of such a causalrelationship does not mean that theCommission will expect petitioners toassume the burden of demonstratingthat their injury is not a result of factorsother than the dumped or subsidizedImports. Accordingly, the Commission

changed the language in its finalrule to show that the Commission willcontinue its practice of requiring acausal relationship without weighing the

causes

In spite of a commentto the effect thatthe failure of the Secretary of theTreasury to find 'substantial doubt" as

to the injury of a U.S. industry and to,refer an investigation to the Commissionunder section 201(c)(2) of theAntidumping Act, 1921,constitutes a

determination by the Secretary of theTreasury that thereis a reasonableindication of materialinjury to adomestic industry within the meaning ofsection 701or 731 of the Act, theCommissionunderstands section 102(b)

of the Act to require it to make an

Independent preliminarydeterminationof reasonable indication of injury incircumstance where the Secretary has

not yet made a tentative determinationunder the Antidumping Act before the

effective date of the Trade AgreementsAct.

Comments from several sources,

including the Executive Branch.suggested that 207.31 be amended toallow greater flexibility for theCommission in choosing the priority of

injury determinations with respect tooutstanding countervailing duty ordersrequiring such determinations.Accordingly, this rule was amended also

to allow consideration of the tradeinterests of the United States and thevolume of trade concerned.

Subpart EOne comment read sections 704(a)

and 734(a) of the Act and I 207.40(a) as

literally prohibiting the Comnissionfrom terminating aninvestigate until

the administering authority has issued apreliminary determination andsuggested that this could cause theCommission to wait for an event whichwill never occur. The Commission.however. interprets the Act to mean thattermination of an investigation by theadministering authority also terminatesthe Commission's investigation. Anyother reading of the statute would leavethe Commission with no statutory basisfor terminating investigations which areterminated by the administeringauthority prior to its preliminarydetermination. This clearly was not theintent of the Congress.A comment was received to the effect

that the Commission's intention to use

section 603 of the Trade Act of 1974 forfactflnding during investigations which

are suspended as a result of agreementsto eliminate injury completely isinappropriate and may cause conflictwith fo intrests who believe thesuspension process will remove fromthem obligations to supplylnformatirn to the United StatesGovernment. The Commission intendsto leave its proposed rule unchanged.Commission factfinding is directedprimarily at domestic markets andindustrieL In addition, the Commissionwill use Its dlsmdon where appropriateto avoid unnessy conflict with ourtrading parme. However. it isnecessa for the Commission to retainauthority to keep Its information up todata during the suspension of anInvest igation the event that thesuspension is ended and the

Commission must go forward to make adtetmination of injury within a briefperiod. Another comment argued thatsection 603 authority is limited tomatters encompassed completely withinthe Trade Act of 1974. The Commisi

disagrees and reads section 603 morebroadly. Section 332 of the Tariff Act of

30 also grant bad investigativepowers to the Commission.As proposed. 2a7.4 sets forth the

scope of investigations to reviewagreements to eliminate completelyinjury caused by subsidized or less.than-fak-value imports. Proposed1 207.43 provided that the Commission.

in mlkng deta!inatons in suchinvestigations, would consider alI of themerchandise subject to investigationwithout regard to the agreement.Because complete elmination ofInjurious effects suggests that alu of themarchandise subject to the investigation

must be covered by the agreement. areview "without regard to theagreement" would appear to beimpossible: . thu,s$$I1207.41 and 207.43,literally read were contradictory. TheCommission intended the two rules toprovide for a scope of review coveringll1a1 imports which were the subject of thesuspended investigation regardless ofwhether the agreement applied to lessthan all imports (as, formexaple, wheremost-but not all-of the foreignexporters accede to the agree)entl. TheCommission. therefore. hasngedWed207.43 to provide merely that the

Commission will consider all of themerchaindse subject to theinvestigation.Another commenit ndicated a

technical error in 1 X7.45(a)(2). namely,that the wor" 'not" was omitted in twoplaces which resulted in an improperstatement of the subject of theCommission's review. eh Commissionhas revised the language to read"whether changciredcumstances existwhich indicate that an industry in theUnited States would not be threatenedwith materiainjul ry or theestablishment of such an industry wouldnot be materially retarded if thecountervailing duty order orantidumping order were modifed orrevoked." emphasiss supplied heronly.)

Finally, several comments on 1207.45stated that the Commission shouldprovide explicitly for requests forreview of dumping findings issued underthe AntumpingAct1921.ihed 192. TCommission has added language to thefironal rule to pvide for review of bothdumping finding issued under theAntidu21,mping Act.19 andcounervaling duty orders issued undertehe duhty-fre mercandise provisions ofsection 303(b) of the Tariff ActA ssection-by-ection analysis of the

final rules follows.I0ca7Jl ppli barty ofpmtTh ntroductory rule makes the

procedures set forth in pat 207applicable to all investigationsconducted by the Commission undersection 303 or titlIe VI of the Tariff Actof 1930 (the Act), The inclusion ofsection 303 investigations is required bysection 103 of the Trade Agreements Actof 1979 which makes the proceduresand findings with respect tocountilivaIlng duty investigation set

ADP/1 /Add. 3

foth in tide VT of the Act applicable tomerchandise Importedfrom any cationwhich is not a country under theAgreement" definedd in section 7,0(b) oathe Ac.) and which is free oi dut7. Adetermination of ijur=y p=urs t, to title

VU of the Act is not required with

rasped to dutiable merchandiseimported frm =ntinwh is not aTo=u7 ncedr the Aeement.-Subpart .4 Provmisins

Subpart A contains rules applicae toan ComissiOn investigation under

Mo and title VEE the Act-and,

and title the Trade

Agreemnents Act.

272 Deflndcn cpp~fn=1 = Par

2QrThis rele Ca-ain tzs used

repeatedly in Part .

t=r -_he Act IS defied to

the Tariff Act im7(b) The defnition 'i "adminiatertigauhrt"is taken directly from

7771) its Act. Sectn != the

Trade Mts At- ameding

secon 3(b) of thu At= provides thatthe dwy imposed by acton =(a) is to

be adniitared in acccrdancs with titl

VT (section7m(1)).(C) Thu def"inion "county de

tim Agreement Is en

section 7M1(b) dftha Act.

(ds 1te 'Vireceis defied to

mom the8 J:i' lf= otOpmn or swure apponte to act

bm that capacity, or. if 1:r is Meither, aparssn designated by ta Ci-Jan tofWiMI the responsible tes of the DireorWith respect to Investigations =dei this

Pa(e) The defnition of 'effecdw date,

reflectc the provisions of sec8ion 17 oithe Trade Agreements Act os ISM.

(17 definition of -cx ;artst'5 is derived from section

777"a)(3) the Ac. no isio

katmds that only the Director of

Opations willm a 1-________- to theCamris

within the meaning of secti

777(a)(3)(B7 of the Act. The tmrm Otherpence used in thin rale does not

ree to Commssion staf.(1)Tb* term -Wnjur" ix defined tO

ean materiel injury or threat of

materiel int=r to an, induuir tn theUmdtad Slates oa material retardation of

thx establishnmet of an fxdos7 thenlited States The detiition is intendedto allow Shorthand4 reference throughoutpae 2a to the rtpes of har at

which ae.-Jon 3W and title V1 of theAct are directed.

(h) The defition of interestedd par'is taken directly son, 9the Ad.

kI) The term "party" is defined to

Icblde two csses c pursons: (')intrsted parties who have filad anAppearance wit.h the Comm~ission under

I 2073 and (2) any other peron woafter manifesting a proper interest in thesubject matter of the CommisSio

inestigation has Maled such anappearance A peon who is not anint sted party and who cse to

becme a party to an investigation willreceive =Pies d a do ents Meved

to I Z Z3. However, such a

pe0on wil also be required to

with the obligations a paty. Includingservice of docuents =dw 73 andSubmission of a preheerng statementunder I ==7a) Te definition of "rerd reflects

the definition of the record ior pm; sesof judlicla -revw contained in section

O1A(b)(2)(A of the Act. The

Commission is of the view +tht the tern"inormtion" in section SlISA(b)(2)(A)(i)includes only infiatio that goes tothe facts undr investing n. d ot to

Stff do= benta renting to

adminisi tativdeadlines. bavelaangernents. guidelines far CnC4g!Xrvestigtios andsmi-lar matters. The-

rmmissin intends therefore that suchdoc enut zot be made a part afrecord.

2=~'3 $.e~rv ofTis rule established rqr en

the service of doc=mts on, ;aries to

an investistio A=y pay su:mi:tng adoumet for inclusicn in the record is

required to serve a copy cf each suchdcumen an ail othersurtezs ta itsinvegtigadon. Parons riot complyin;with thee obligatons my be removedfom party status. IUS rie alsoprovides that all t eet"r sC#A plac2d on the public record

by thae Cazmsin staff umst be madeavailable to each Par to the

investigating2C.~4 Mhe rezccl

This rule establish irequrZMenta for

Comms c T rwill be dinded Into a public portion anda monpublicportion cosis-ting of

da C -ents which cotin business

nflrator. p d

author'i d by this rcleto conduct such audits as he deems

necessary. The absence cf an audit willbe presumid to indicate that theDirector decided that= audit -wmnecessary or

Matmdas ecmve ! Xhar authority will be pladan the rcrd and designated public or

nonpublic in confc t witt6the

designadon assigned to them by theadministering authority. Requests foraCcess to or rpe'ase or materialsorinating with the minigteringauthon.ty will be rsferrsd to that agencyfor its adica. Although the Secetarywill make the dual docetion as towhether the material in question will bereleased. he will give seriousconsiderationAo the advice of theadtinisterin; authority.

7.5 Ex pot Meeting&sThis role etashe requirements for

the = ntae"cs anmd c=tent of ex paretmeeting records as required by seionrd7i a)(3] of the Act. The rule providesthat a record of each such =eedng, asdefined in I ZO7Z4X shall be placed inthe recordL and that each =meedng recordshail include the identity of the personspresent t1e date. tlme ard place oc themeeting and a s1mmary Oi the =mttersdissed or subimfttd.§ 2M.6 Aeprcs ofprgrms of

Ths rmle establishes requirement forthe Co:missicn Semet=ry to inform theparte to an investigation of thepress of that !avesiado= Suchreports ae Squired -!rcm =e to tim*Uori request' by sectio ,ijta)(21 of theAct To parent an udue b = thetfc~missian Sta.. the section providesthat no progress report will be fuished(1) ess than 30 days aft=uti of anLnvestgatd aesm n the Fedw-aiRegistry. or (27 less than 30 days afterissuance of the prvnous rport oxn theproresaof the same investigation.Reports wig be liMited to a statement ofthe offirial ac"oIn. if any, taken by theCommission since the last such report. ItIn contmplated that the Sectrzt7 onhis own i tiative will isse monthlyreports upda&ig the progess of all.lavesrgations over 30 days o1i X.7 Ldtied disiour of certaintXzrfdentiinformationn Umdar aprotectt order.

Ca) Za genemL Ths subsectionestablishes proce&nes for the disclosureof domestic price and cost informationande protcive order to attorneysccaot =-house counseL oi interestedparties who an parties to theInvestigation. Mlscasure of any businsInformation under protective order isauthorized by second 777(c'(-1 of theAct. but disclose of domestic price orcost of production informationsubmitted by the pettioner or anintested prty in support of thepetitioner may be requrd uder cotrtorder Purnunt to sectionrmC c)(21 af teAct In1.act, the Commissiso rarely, iever. collects domestic coe. os

ADP/l/Add. 3

production information. and it onlycollects price information relevant to theproducts in question. The term"domestic price" as used In this ruledoes not mean the price of an importedproduct in the United States. TheSecretary will release such domesticprice and cost information under aprotective order if the inteiesied partyapplying for such informationdemonstrates to the satisfaction of theSecretary a substantial need for theinformation in the prosecution of hiscase and that he is unable withoutundue hardship to obtain the substantialequivalent of the information by othermeans. Decisions of the Secretarydenying requests for release of suchinformation will be directly appealabletc ¢ Customs Court Requests forre1.dse under protective order ofconfidential information other than suchdomestic price or cost of productiondata may be granted by the Secretary.only where all the interested partieswho are parties to the proceeding agreeto the terms of the request. Although theCommission is authorized by section777(c)(1) of the Act to release additionalconfidential information underprotective order to any party to theinvestigation. this rule limits disclosureof such additional information tointerested parties who are parties to theproceeding and only when all suchinterested parties agree to thisdisclosure. Given the Commission's lackof experience with protective orders inantidumping and countervailing dutyinvestigations and the fact that theCustoms Court will not be exercising thedirection provided in the Act forr"-ests for domestic price and cost ofr. Auction information, the Commissionis not going to exercise the fall range ofits authority to release confidentialinformation dealing with data other thandomestic prices or cost of productionuntil it has accumulated administrativeexperience with these protective orderrequests.

(b) Prtective order. This subsectionestablishes the conditions for therelease to attorneys (except In-housecounsel] of confidential informationunder a protective order.

(cJ Final disposition ofmaterialreleased underprotective order. Thissubsection establishes procedures andrequirements for the final dispositiou ofmaterial released under protectiveorder. At the completion of aninvestigation (or at such.earlier date asthe Secretary deems appropriate), allcopies of the released material and allother materials containing theconfidential information must bereturned to the Secretary. Retuned

materials must be accompanied by acertificate from the person to whom therelease was made attesting to hais goodfaith effort to ascertain that noadditional copies have been madeavailable to any person to whomdisclosure was not specificallyauthorized.

(d) Sanctious. This subsectionestablishes sanctions for breeah of aCommission protective order.Section777(c](1)(B] of the Act authorizes theCommission to establish such sanctionsfor breach of protective order as itdetermines to be appropriate. Thesanction contained in this subsectioninclude being barred from practicebefore the Conmission. referral of anybreach to the U.S. Attorney and to theethics panel of the appropriateprofessional association. and strikingfrom the record any information orbriefs submitted by the offender.

(el Sanction procedures. Thissubsection establishes the right of anyperson accued of breaching aprotective order to be heard by theCommission before a detemiatidnregarding sanctions is made.I 20%8 Questionnaires to have theforce ofsubpoenas; subpoenaenforcement,This rule provides that Commission

questionnaires have the force of a .subpoena, provided they are labeled assubpoenas and siged by aCommissioner. In the event any personrefuses or is unable to produce theInformation requested in such aquestionnaire in a timely fashion. theCommission may (1) in accordance withsection 778(b) of the Act use the bestinformation otherwise available inmaking its determInation. (2) seekjudicial enforcement of its subpoenaunder 19 U.S.C. 1333, or (3) take anyother actions it deems necessary andappropriate, including waiver of anytime limits set forth in part 207. SeeUsezy v. Whiten Afachine Works, Inc,SU F. Zd 498 (5th C:r. 197).1 207.9 Affliative deternations bydivided Commission.This rule establishes a voting rule for

investigations under part 207 to apply ininstances where the Comrm;ssionersvoting are evenly divided regardingwhether any determination should beaffirmative or negative. The rule isintended to implement and clarifysection 771(11) of the Act.The rule provides that. if the

Commissioners voting on adetermination required under section303 or title VII of the Act are evenlydivided regarding whether thedetermination should be afirmative or

negative. the Commission will bedeemed to have made an affirmativedetermination. In order to conform towhat the Commission believes to havebeen the intent of Congress. this sectionhas been drafted to cover allCommission determiations under Part207 wherein a Commissioner may voteaffirmatively in more than one way.Thus, when the issue before theCommission is to determine whetherthere is (sections 75 and 735 of the Act),whether there would be (section 104(b)of the Trade Agreements Act), orwLether there is a reasonable indicationof (sections 702 and 732 of the Act)either (1) material injury, (2) threat ofmaterial injury, or (3) materialretardation, an affirmative vote on anyof the issues will be treated as a votethat the Commssion's determinationshould be affirmative.Subpart 3-Preliminary DeterminadonsSubpart B provides a procedural

framework for preliminaryinvestigations under section 303 andtitle VII of the Tariff Act of 1930, asamended, viz, the filing of petitions, theamendment of petitions. the conduct ofpreliminary investigations by theCo-mission's Director of Operations.the submission of written comments bypersons interested in the subject matterof investigations, the conduct ofconferences among interested partiesand the staff of the Director ofOperations or hearings before theCommission, the submission of therecommendation of the Director to theCommission. the preliminarydetermination by the Commission as towhether there is a reasonable indicationof injury. and the issuance ofappropriate notification to interestedparties and to the public through theFederal Register of Commission actions.j 207.10 FMng ofpetition withCommission.

Section 207.10 implements therequirement in sections 7M(b) and724(b) of the Act for simultaneous filingsof countervailing duty and antidumpinginvestigation petitions with theadministering authority and theCommission.I 207.X1 Contents ofpetition.This rule restates the requirements for

a petition set forth in sections 702(b) and732(b) of the Act. Reference is made tothe factors relating to injury which willbe considered by the Commissionpursuant to section m(7) of the Act and20728 with the expectation that the

petitioner will include informationrelevant to these issues. The rule alsorequires a petitioner alleging critical

ADP/1/Add. 3

circumstancestoprovide reasonablyavailable information dan rant evxn to theaddnalfindingswhiii zaWndn which- thernmissian suant toe purma to

(b)seios 7W(bJ(35(b)4)(A) aofnd 7J(4)(A)dthe Acd icrithe event Citicaldromsces are found by theteringad;nstitym authot. Pestireone3 anadvised to consulpplicablekcableregnbatiom of the admringtegnnauthority for the requiond czotents of apetition..1207tice dceinvestigation ofreasonabe indication of injury.Upon receipt of a petition or of notice

that the administeringtrug orihhorhasy sinitiated avestigation based oinformation available to it the Direcotorwill consult the administeringauthority and, as soon as practicable.institute a formal investigation todetarmine whether there is reasonableindication of injuryunder section 703(a)

or 733(a) of the Act and publish a noticeto that effectin the Federal Register.

$207.13 Cooperationwithadministaringauthority preliminaryinvestigation.

This rule provides that the authorityto conduct investigations of reasonableindication of material injury is delegated.from the Commission to the Director ofOperation. Thedelegation includes theexercise ofthe Director's discration asto how bestto conduct each suchinvestigation. Information adducedthroughthe investigative activities of theDirector will be placed on the record.The decision to delegata te conduct

of suchinvestigations from theCommission to the Director is basedupon the Commission's administrativeexperience. Currently,the Commissionadministers 30-day investigations inalimited number of investigations undersection2 Z01)(c(2) of the Antumpmningc t_21.ISThe use ofq oestionnaires andubliic heaings presided over by the fulCommission in these investigations hasbeen extremely taxing on the resourcesof the agency. The agency'sresourcesare not rent enough to conduct suchproceedingsin both preliminary and

final investigations especially in view ofthe asticipated caseload ofnew andtransitional investigations.This rule also authorizes the Director

to cooperate with the administeringauthorityafter a petition is filed toassistthe administering authority With itsdetermination under section 702(c)or739(c) of the Act regarding whether apetition ailegesthe elements necessary

for the imposition of a duty undersection 701(a) or 731(a)of the Act.The

Directorwillc34ietooprwils also =cheoierat-e with tuthorityewith respect to th rfent to

proposed amendments to petitions. It isthe intentioomsof tn tCmmissio that thisrue satiy its stoaltutory abiation under0ect)rn7=232(b)ofJ2bj oi the Actconcering amendments tions.itlNo withstanding anssistanprovided by the Direeoctor theadmniisterg inauthority under this rule.all detaemintiaons undr esections -M702and7 c32(c) uldmttimly to be made byth ademintinister authoty.riI2$0744.1NeadgatipeldttiThis rufe illemeplts sections 70ZcI2

anti 7d cJ32(c)o Aeemtwhich provide thc.boseinthsecases in which the

administering authority determines thatthe petition does not allege the elementsnecessary for the Imposition of acountervailing or antidumping duty, asthe case may be. and accordingly, thepetitioned-for investigation is dismissed.the Commission shall terminate its

countervailingorantidumpingduty, as

noticewill have been provided bytheadministeringauthority. no additionalnotion of termination will be issuedbythe Commission.$ 207.15Writtenstatementsand

Section 207.15 provides thatanyperson maysubmit to the Commissionon or before a date specified intheCommission's notice ofinvestigationa

writtenstatement of informationpertinent to the subject matter of theinvestigate Joint conferencesmaybescheduled for parties if the Director

D7.=av 'i

deems them aencesriate. Confer=cwil be held otice public ncotce and ina$ 201.12(a). The Za,1=4) Thetansclpts of such cwonlferences ml beplaced on the administrative record ofthtioneinvestiga. Although it does notatoear to be feasible generaly toschedule formal hearings before theCQmmission within the available time,theiCommihoriz.s autahoiZed to hold alien of the Director's holding alding a

8.W.4 RecommenoatDirector.wctcr.This rule requires thctorretowr of

COerations to prepare aenecoronMdatio to mmheCoaissicnupoed appn the reford oitheivmetigation of reasonable indicatfonom

inury. Tommission may choose toaccept or rejec: this recmomendatior anwhole or in part.I 2D7.z7 Detaermination y Commis=sonOof reasonableindication ofin

This rtle urovides that in all casesOther thLn taose in Whicw theadganministering authoritydismisspetition.The Comtis4in shasion shall

deteminatorminationbased upontnibrmatiinformation before itat thwhathe theretisrre oble inasdicationof injury by reason of imports ofmerchandise which L thu uibjecteoi theinvestigation It is anticpatad thaipatedlarge number of Investigations .ad taeshort time available in wich to conduhichthem may ncessitate pecessitatdeterminations fequenty ts be made lyinternaIC internal iommissioPrcur rath ti tscprocpublic meegS.I Z%18 NVadc ofprlfizir7

This rule provides that tIeC5o~misaio shal otify a11Parties to itspreliminary investigator of itsdeteintion and publish a notice of itsdeta=iat, L3ne derai Rgizterincases where the Commisin,'preliminary dateiation is affrmathe.the Diretr of Cpration =aycotinuasuch zvestigative amivtai as dee-sarprpratepednmntce of anaE.att prliminary detez-rationxa Enl determinaton from theadmnstering ahority.Subpart C-FnalDeSubart C contains the prczduv%

specitclay pplcable toXandenatWCsIX.ZA*oice of i2Vetig:ctiaAlthough It is nzt required by the

statute by this -.le the Commssnintends to give to the public otices ao itcommerncment of al investiati=n toreach a Mai dateiriation undersection 705(b) orS3(b) of the Act In thsevent of a negative Eal dtermintionby the administer authoritysubsequent to an aE.rzadvepreliminary determation, theCommission's investigation shalternmst Because notice will havebeen provided by the admisteauthority, no additional noce wiJ beissud by the C SsioI07. SfreportThis rule requires the Cammission to

place on the record a staff reportcontaining preliminary ndIng of factt s intended tht pros oi the staterorcontaining czmddendal orprivileged information be placed on thea,'upubiic record and the remainder othe staff rpoxrt. including anonctddenal su=mary of thec=ndential or privilege portions beplaced a the public record. Section=O,4 Pies'r the mitenance aithe record intwo portions, toh pubicporaton c=tainig nnconfidentialmateial and dte nonpuic portioncontaining privileged and condential

ADP/1/Add. 3

material.This rule sets anticipated timelimits for mission of the staff report.In 75-day investigations it will generallybe filed on or before the 45thday afterthe date of the corresponding

notice of investigation. In120.day invetigations or extendedinvestigation under Section 735(a)(2) ofthe Act the staff report will generally beplayed on the recordon the third day

administering authority of its finaldetermination. In 180-day investigationsthe staff report will generally be placed

on the record on or before the 130th dayafter the date of the correspondingThe purpose of this procedure is to

provide to the partiesa preliminaryindication of the Commission staff'sview of the affected industry. Partieswill be able to prepare their prehearingstatements in such a way as to addressan common body of informationdescribing the allegedly injured UnitedStates industry. The intention of this isto make for a more cogent and pointedbriefing of the issues.207.22 Prehearingstatement.This rule requires each party to

submit to the Commission a prehearingstatement within 15 days after the date

of service by the Commission to theparties of the publicportion of the staffreport discussed in the preceding rule.The operation of prehearingstatements following receipt of the staffreport will allow the parties to address

the disputed issues directly and willenable the Commission to conduct aconcise and penetrating hearing. Itshould be noted that the prehearingstatements called for by this rule shouldnot be confused with the submission ofcopies of witnesses' prepared testimonyrequired by 201.12(d).207.23 Hearing.Section 774 of the Act requires the

Commission to hold a hearing at leastonce prior to making a final

determinationundersection705(b) or735(b) of the Act if any party to theinvestigation submits a timely writtenrequest. Section 207.23 sets forth the

proceduresforconducting such ahearing. The rule requires a person

desiring to appear at a hearing to notifythe Secretary of the Commision np laterthan 5 days prior to the date of thehearing. Each party appearing at thehearing must limit its arguments to anonconfidential summary of theinformation and arguments contained inits prehearing statement to anouconfidential rebuttal of theinformation and arguments contained inthe prehearing statements of other

parties and to information not availableat the time its prehearing statement wasfiled. Each other person i.e, not a party,shall limit its presentation at the hearingto a brief statement of its position withrespect to the subject matter of the

investigation.The purpose of this rule is to focus

and direct the hearing to the issuesbriefed in the prehearingstatements. Bygenerally limiting the arguments

presented at the hearing to issues raisedin the prehearing statements the rule

ensures that other parties will beadvised of all adversary position.Nevertheless, because all informationpertinent to the proceeding may be

unavailable at the time prehearingstatements are prepared, the rule alsoallows arguments at the hearing withrespect to subsequently availableinformation. Persons appearing at the

hearing who are not parties, namely,consumer or other groups with no directeconomic interest in the outcome of theproceeding, may appear and make a

statement at the hearing.It is anticipated that parties will make

copies of witnesses' formal testimonyavailable before the beginning of the

hearing in accordance with 201.12(d).and that hearing presentations will bebrief to the point, and will, to the

greatest extent possible, smmarize the

arguments set forth in the prehearingstatement and in the witnesses'prepared written testimony.A verbatim transcript will be made of

the hearing and will be subject tononsubstantive revision in accordanceWith paragraph (c)(2) of this rule. Thetranscrlpt will be placed on the publicrecord.

1207.24 Posthearing submissions.This rule supersedes 201.12(g). The

Commission may order interestedparties to submit within a specified time

posthearing statements responsive to

questions or requests of Commissioners

made at the hearing. The short time

between the hearing and the

promulgation of the Commission's

opinion in these investigations will

make it impossible for the Commission

to give careful analysis to extensive

posthearing briefs. Accordingly, the rule

limits posthearing briefs to ten double-

spaced pages. Any other posthearingsubmissions must be responsive to

Commission requests or questions.

207.25 Final determination by the

This rule restates sections 705(A)(1)and 735(A) (1) of the Act, which requirethe Commission to make a final

determination of injury. Paragraph (b) of

this rule restates the provisions of the

Act which allow the Commission 120days from the time the administeringauthority makes its affirmativepreliminary determinations to make alfinal determination and section 705 or735 of the Act. However, if theadministering authority take more than75 days to make its final destination,then the Commission is guaranteed bythe Act and by this rule at least 45 daysafter the final determination of theadministering authority to make its finaldetermination. Thus, if the administeringauthority takes more than 75 days tomake its final determination, the totalelapsed time from the administeringauthority's preliminay determination tothe Commission's final determinationwill be more than 120 days.Paragraph (c) of this rule again

tracking the Act provides that, if theadministering authority makes anaffirmative final determination followinga negative preliminary determinationthen the Commission will have 75 daysafter the date of that affirmative finaldetermination to make its finaldetermiation.Paragraph (d) of this rule sets forth the

additional findings required by the Actin special situations. If the finding of theadministering authority as to criticalcircumstances under section 705(a)(2) ofthe Act is affirmative, then theCommission must make a finding thatthere is material injury which will bedifficult to repair and that the materialinjury is byreason of massive imports ofthe subsidized merchandise over arelatively short period of time. Thecorresponding provision in theantidumping area found in section735(a)(3) of the Act requires theCommission to make a determination asto whether the material injury in criticalcircumstances is by reason of massiveimports to an extent that, in order toprevent such material injury fromrecurring. It is necessary to impose theduty provided for in section 731 of theAct retroactively on those import.The final subsection of this rule is

based on sections 705(b)(4)(B) and735(b)(4)(B) of the Act which require theCommission. When it makes a finaldetermination that there is no materialinjury, but that them is a threat ofmaterial injury, to determine whethermaterial injury by reason of import ofthe merchandise with respect to whichthe administering authority has made anaffirmative determination under section705(a) and 735(a) of the Act would havebeen found but for any suspesion ofliquidation of entries of themerchandise.

ADP/1/Add. 3

207.28 Factors considered indeterminationof material injury.This rule incorporates the factors set

forth in section 771(7) of the Act to beconsidered by the Comission inmaking its determinations of injury

under the Act.The illustrative factorswhich the Commission mayconsider inmaking its determinationof threst of

injury, derived from the report of theCommittee Ways and Means ( H.R.

Rep No. 96-317, 96th Cong. 1st Seas 47

(I979). is also Incorporated in this rule.The factors listed in this rule are not

exclusive. Commission determinationsof injury are governed ultimately by thestandards in the following rule and by

the judgment and discretion of the

Commission.

207.27 Standard for determination.This rule reitrates that the presence

or absence of any factor which theComisson is required to consideruner the precedingrule shall notnecessarilygive decisiveguidancewithrespect to the determination by theCommission of material injury. The term"materialinjury" means harm Which is

not inconsequential immaterial or

unimportant.The enumeration of thefactors which must be considerd in

making countervailing andantidumpinginjury

which for the first time are specified in

the statutory text and Consist of variousfactors, some of which singy or in

combintion have been consideredrelevant and determinative by theCommission under current law-provedno basis for changing thecausality relatdoships which must befound to exist under existing law. It hasbeen the long and uniform interpretationof existing law that an affrative injurydetermination by the Commissionrequires the existance of a causal

relationship between the subsidized ordumped U.S imports and injury to a U.Slndustry. This causation linkage

between the offending imports and

Injury is based in existing law on thelanguage in section 201(a) of the

Antidumping Act and in secton 303(b)of the Tariff Act that such injury is 'byreason of the importation is suchmerchandise." Both section 701(a) and

731 of the new provisions forautidumping and counteaiing dutiesalso require the same linkage test. viz-,that the injury is 'by reason of importsof that merchandise." The Cmmissionwill consider factors other than

subsidization or dumping whichcontribute to injury. However. the law

does not require the Commission todetermine that sports subsidized or

said at less than fair value are injuringan industry in the Undited States to adegree greater than any one or a

combination of other factors as a

condition necessary for an affirmativedetermination.

207.23 Publication nofice Ofdetermination.

This ruleincorporates the standard

of Section 703(d) and 733(d) of the Act

which require theCommission to notifythe petitioner other parties to the

investigation and the administeringauthority of the Commission'sdetermination and of the facts andconclusions of law upon which the

determination is based. Notice of Suchdetermination will be published by theCommission in the Federal Register.Subpatt D-Transition

This subpart sets forth rules

implementing for the Commissionsections 102. 103 and 104 of the TradeAgreements Act of 1979 with respect to

investigations under section 303 of theTariff Act of 1930 and the AntidumpingAct 1921 that are pending as of the

effectivedateof title VII of the TariffAct of 1930 which the Commission now

expects to be january 1. 1980. Theserules also prescibe the priorities theCommision will use in scheduling

investigation and consideration ofcertian classes of cases arising underthis subpart

207.30 Pending investigations andpreexisting countarvailing duty orders.

This rule implements sections 1O2 and

103 of the Trade Agreements Act. of 1979by setting forth principles forinstituting. and the proceduresapplicable to, investigations usndr titleVIl of the Tariff Actof 1930 as amendedby the Trade Agreements Act whichwere the subject of investigationspending before the effective date. Undersection 103 of the Trade AgreementsAct. investigations pursuant to section

303 of the Tariff Act of 1930 are subjectto the procedural rules of title VIl of thenew law except to the extent that thoserules would not be applicable to suchproceedings. These rules may not beapplicable because the productconcerned is not a product of a countryunder the agreement, is not a duty free

article, or in a duty-free article from acountry as to which the internationalobligations of the United States do notrequire an injury determination. As tosection 303 cases that are subject to titleVII. and cases that concern productsthat were the subject of pendinginvestigationsunder the AntidumpingAct, 1921 section 102 generally providesthat the investigation of the same matter

would cotinue after the effective dateof the new law so as to begin theproceeding under the new law as if thedetermination under the new law that ismost closely analogous to the latestdetermination actually made under theold lawhad beenmade on the effectivedate. Finally, 207.30implementssection 104 ofg the Trade Agreements Actconcerning countervailing duty orders ineffect pursuant to the provisions ofexisting law which require some furtheraction by the Commission.As to theseVarious classes of cases, the followingrules apply.Under pargraph (a)(1). If the

Secretaryhas not made a preliminarydetermination. including either apreliminary determinationmunder section

303(a)(4) of the TariffAct of 1930 orsection 201(b)(i) of the AntidumpingAct 1921 thentheCommission willinstitute an investigation to determinewhether there is a resanable indicationof injury in accordance with title VII ofthe Tariff Act of 1930as enacted by thenew law. Since the new law clearlyintends that the Commission have thefull 45 days that would normally beallocated to it for such a preliminarydetermination this rule interpretssection 102(a)(1) and secton 102(b)(1) asProviding the Commision with the full48 days normally available for areasonable indication determinationunder the new law, even though withrespect to pention-initiatedinvestigation. section 102 provides thatthese investigation are to begin '"as if'an affirmativedecision oninstitutionhad been made on the effective date.This interpretation is based upon thefact that under the new law, no timeperiods are calculated from the

institution decision under title VII. andtherefore the statute can only be read toallow a full 45-day periodUnder paragraph (a)(2, if the

administering authority hasmade apreliminary but not a finaldeterminaton as of the effective date.then the Commission proceeds withrespect to the same subject matter underrules applicable to Commissioninvestigations following a preliminarydetermination of the administeringauthority under the new law (seesubpart C. These rules provide that ifthe administering authority'spreliminary determination in affirmativethen the commssion institutes aninvestigation leading to a finaldeterminaton subiect to certaincounting rules provided for in the lawand if the administering authority'spreliminarydetermination is negative.then the Commission does act institute aformal investigation unless and until the

ADP/1/Add. 3

administering authority makes a finalaffirmative determination. Consistentwith 207.16 concerning negativepreliminarydeterminations by theadministering authority, I 207.30(a)(2)provides that the Director will continuehis investigative activities asapproprate pending the administeringauthority's final determinationUnder paragraph (b) of this rule, if the

Commission is conducting an injuryinvestigation under existing law as ofthe effective date of the new law, thenon the affective date it shall institute a75-day injury investigation subject tocertain rules for the treatment ofpreexisting determinations of thescretary of Treasury provided for in

section 102 of the Act.Paragraph (c) of this rule implements

section 204(a)(2) of the TradeAgreements Act, which requires theCommission to make 180-day injuryinvestigations with respect to certaincountervailing duty order, of which theadministering authority is required tonotify the Commission by January 7,1980. When this notice, together with themost current information the

administering authority has with respectto the net subsidy benefiting themerchandise subject to thecountervailing duty order is received bythe Commission, this rule would providethat these investigations begin. Theinvestigations which are subject to thisprovision concern countervailing dutyorders issued under section 303(d) of theTariff Act of 1930 by the Secretary of theTreasury with respect to products of acountry under the Agreement that wereother waived or that, waived or not,

were issued after July 28, 1979. andbefore the effective date. or fell incertain other categories set forth in the

regulation.Under paragraph (d) of this rule, other

countervailing duty orders are madesubject to the petition process providedfor in section 104(b) of the TradeAgreements Act. These requests may bemade in a simple manner, but provisionis also made for the Director to requirerequested to make their request byfiling a form he prescribes that wouldrequire information he considersnecessary to conduct the investigation.207.31 Scheduling the institution of

investigation ofcertainunwaivedinvestigations.

This rule sets forth the principles uponwhich the Commission may delayinstitution of investigations arisingunder. section 104(b) of the TradeAgreements Act relating to uwaived,preexisting countervailing duty ordersissued before the date of enactment ofthe Trade Agreements Act, which are

provided for in §207.30(d). TheCommision at present expects. basedupon the official record of outstandingcountervailing duty orders set forth at 19CFR 159.47(f) and upon otherInformation available to it at the time ofthis notice, to have before itapproximately SO investigations uponwhich action is required earlier thanaction would be required in casesarising under section 104(b). TheCommission has therefore tentativelydetermined to assign to these othercases a higher priority than it wouldassign to cases arising under section104(b). This higher priority will result ina conservation of administrativeresources and. ultimately. public funds.The delay in investigation of casesarising under section 104(b) is justifiedby the Congressional determination topermit these cases to be decided in amuch longer period of time than anyother class of cases arising under thenew law. The classes of cases which.because of the shorter time limits thatare applicable to the, have higherpriority than cases arising under section104(h) are (1) new petitions filed undertitle VIIof the Act (requiring preliminaryCommission determinations in 45 days);(2) pending investigations requiringCommission preliminary or finaldeterminations (45-day to 12D-daydeterminations); and (3) casesrequiring-rather than requiring only onrequest-.Commission investigations ofcertain countervailing duty orders undersecond 104(a) of the Trade AgreementsAct (180 days).The priorities the Commission has

established would allow commencementof section 104(b) investigations at anytime after they are filed. so long aswithin 10 days arter the filing of arequest for such an investigation. theSecretary would inform theadministering authority of the fling ofthe request. This notice has the effect ofrequiring the administering authority tospend liquidation of entries as to theaffected merchandise. This effect doesnot, however. depend oncommencement of an activeCommission investigation.Subsequently, the rule would permit theCommission to commence a section104(b) investigation at any time so longas it completes the investigation within3 years after the request is filed inaccordance with the law. If a number ofsuch petitions is filed, as are presentlyexpected, then priorities among variousinvestigations may be set pursuant tothe rule. One of the bases of thesepriorities would be consolidating casesrelating to like products. which wouldbe done pursuant to the Commission's

authority under section 603 of the TradeAct of 1974 to consolidate itsinvestigations.237.32.Proceduresforpending

investigations.The purpose of this subsection is to

make clear that the procedural rulesapplicable to investigations conductedunder subparts B and C would apply toinvestigations arising Under subpart D.Thus. the time limitations applicableunder those subperts to the Ming of staffreports, and the definitions and rulesconcerning hearings, the record ex partecontacts. and so on. would all applywith full force with respect toCommission investigations in pendinginvestigations and investigations ofoutstanding countervailing duty ordersSubpart E-Ivesitgations To ReviewNegotiated Agreements, andInvestigations To Review OutstandingDeterminationsThis subpart describes procedures

that impiement portions of title VII ofthe Act as amended by the TradeAgreements Act which provide forspecial determinations in antidmpingand countervailing duty investigationsby the Commission. Thesedeterminations are principally found insections 704.. 734. and 731 of title VIISubpart E concerns the termination ofCommission investigations, compietionand reistitaution of suspendedinvestigation and investigations toreview both the suspension agreementof the administering authority and thedeterminations of the Commission whencircumstancesappear to have changedfrom those prevailing at the time of thedetermination.§ 207.40 Terminationand suspensionofinvestigation.

Section 207.40 concerns thetermination and suspension ofCommission investigations. Paragraph(a) implements section 704(a) and 734(a)of the Act which permit the Commissionto terminate an investigation after theadminstering authority has made apreliminary determination only upon thewithdrawal of the petition by thepetitioner and after notice to all partiesto the investisation. The Act does notrequire the Commission to terminate aninvestigation where it has a reason fornot terminating notwithstanding thewithdrawal of the petition.Paragraph (b) provides that upon

receipt of a notice that the administratingauthority has suspended aninvestigation under section 704(b) or734(b) of the Act, the Secretary shallissue a notice suspending theCommission's investigation. This

"AD7TTAdd. 3

provision is set forth in sections704(f)(1(B) and 734(f)(1)(B)of the Act.The notice shall not prevent the Directorfrom conductingsuch investigativeactivities as he deem necessary. sinceInvesgative activity is authorized by

second 603 of the Trade Act of 1974 andsection 1332 of the Act.Pragraph (c) provides for the

resumptionofspdon GI suspended investigationsficationun noflcatum from thegauthorityuainntazig shkity that thepuemeonetos between the nitatinguhoiigngovernmentsofvcihtyandfore.nts ororag5exports whlch ed to theusPensiai of an inlongervestigation no t

mmesst the requieint of the Act.vestifationandfinalsgi te~ats and thetimelimitse an htm U~mts for theestigationandfinal's ivttionad 2na.4

determnti~o are established.sin207.4 Cm-o review ofoeliminatetheinjuriousmt-ale the

subsidizedimportsorimportsnn osddzzpar or =Parsr valuedl x1 fiirvalm

Commission'sX cmndCac the Cmi uionsreview of aeemn egotiated by theadininltertg authority to eiminIae thesubsidizedimportsofnn efec of shsidlzd nort or-irvalue.Ttheat .!sa than fair vzin Teo suinpts the provsin of

section)sof7h Actand 734(h a th .wh provreiuirementsfdeWsanding 4.qpuchetition for sa75eview and a rday

Umit.oomr th C.M=mfinaliss's Soadtintion.421 Investigationcontinueduponm-pia conZ"ued =anThis rul caes tie provision In

)section7374) and 4(gtforj o the Ac=the Commisson upon request, tocontinue an invefsetigation atr thePublication of the notice of suspensionof the investigation by the

2Z7.43 Cmmeteriinationinssionr i=ions to rfvxn a

rule provides that ininestmenigatin to review agre"VM andin ctinued invesdgtions. decribed in

2.4 ad 207.42. the Commnisson,sall considemr all of the -rchaqdisesubject to thenninvestigatio ot merelye coveredbythevos cored by heagreements negotiated by theadministeri authority.on2O4 Cdnssidc of

This rue provides that theCl.ocmnmolissieon shl osidat

atio under section(g),of704{s; ci thAc with investigations under section704(h) of the Act whenever suchconsolidatipkrop[on ispriate.ruleisThise

authorized by s335ecfttion the Act andby s3ectionTradeActop1974fYAOode Ac f s974.toreview27.4sInvestigatioorationsdng deRMina =

Thies rle Inpemans secftion, 731 othe Act which provides for the

toreviewadeterminvtionaCeto revnw aodatonshowingpend ante toshspeed-ao

rmiaationnnetigato o a deito a donmsticindustruyue icindusft7rulealsoe:=Mnt s Merl loProvides fsor review of outtandingorders sAntisumuined under the pmA-freect acnd the 4rvr-haniseprovisions of se)ction 302(b of the Act.In the absence of god cause aninvestigation toeterreview a dminationor suspension agreement will not be

d untilat least 24 =mothsfte darthe datfe oPublicatioon f thnotie ce ofthe erminv,iomnot or suspension.agraph(b)provides (bI provides that thetjhprocd e et for n Subpart C ofthlese ruleseeviewwvshal apply

s and that uchsanoetisutigaon shall be comlpietd within

20days. Thjs provision implementssecond 731 of the Act.

207.48 Modificationclarificationor~C! o~Tiolf ordetermination.or aefcn.

7Secto 2W.8 provides that theCommisionsswill imodificauie anyaton.cation orcvrrectionofaovoron oreaction of adetemination as may be necessary.This authority has been previouslyfiexersedof. See ClafrationdDetermination in nvestigation of SteelWir Ras om 27380lapa (38 FFR Z=(1973icillaSubewPrt FPJulevi*

isSubpajrt Fildwith udica reviewof Commimssiononsdeterinati undersection 30 anoIId titlt.e of the AciciaasReviewl.W fuW

Testablishesprocedurestohs rule ebimbesprocedures tohtw judicreview of Commission

determiadeuns min the U.S. CasonsCourt under section MA of the Ac. Therle porovides tat a cap of the record(as definined in 207.2(J) theCominmision proticieedL or a cerfedemlst orfinthe its thee= will betaittedoutto the C=r b theCommissrein's Sectcary in eacordancwruith the es of the Court TheCommission's General Counsel isappointemd tshe Comision'fs agent orsferpvoeisce o ces inricasesnasing udersIBection SA.-

7=cia2Juevd= riw ofndlemia oapcatiplions for diosusclre oerfainncfmcientialinWrmfatinoa nderprotectiveo redr.

This rule establishes procedures tofaciltatej udicial review in the U.S.Customs Courtun edr seticon 77(7)c()2 ofthe Act of Commissino determinationsact to discloseu nerd protective odrerconfidentila information oncerniogcdomestic Pirec or Cost fo productionPrfgraaph (a) fo the rule deals with

tanrsmittalo f the record and reflectsSection25 33()C of the prpooesd CustomsCortsu Act of19 79..S 1834s98 th Cognst Sess sec. 2Z33Mc) (I379)1 Para raph(a) provides that when a court order issought under section 777(c)(2) theSecrety shall within 5days afterservice of a summons and complaintupo the Commission transmit to theCourt underseal the confidential,information involved along with

part of the recrod is defined insubsection (c) to consist of (1) theapplication for Commission disclosure_together With, any documents filedinsupport thereof or in. opposition thereto;(3) any governmental memorandarelating to theCommission's's denial, and(3) the Commission's deniafl o theaplicatniouractionSb r e(d)povidas thatssitham Sion's Generall Counseiisappoind the Commissionn's aget fioservice of process in ariaingundersecassing =derSec)tion ,7Ii(2Z

Th Trade AcchangesinexistingCommissionseveralexiSting Cisrules for conducting subsidy andan n Inverstigatios.% These

alin natureandarel techical in nae and areco;lt1nfndto part = o tile 3of heulations (19CFR(edal ais(9 aR20O-.41)M.T1hamendMets arn as

There present exists a Vai=dtc=aet.ror in the second sentence of thissection. By ubstituting "thrO" for'an" in the phre "part = and M27.Inclusive. it is intended to make clearthat res Of special appLication mayappear in all o£Part ML224, 20 and= w6ch incasce of confi will takeprecedence or the rules of generalapplication set forth in Part ZOLI 20m. " e!initions.The confring aiendre.'rtu propose

these additional deanidam for terusd extnsively in Pat 207, but whichare found in other parts an well. Thenew definitions-"Trade Agreements

ADP/1/Add .3

Act "rule." and"Secretary"-and self-elf-explanatory.1 201.7 Inivestgative authority andiwtiation ofintvesigans.ai

Present rule021.7 provides theeaby which lnvettnon may be initiatedby the Com imission.Tmethodsoutlined in the ruleierain applicable=nuer the new 4wlaand an reetained in anew paragraph (b). Paragraph (a) isadded to make clear the Commission'sprerogative to take those stepsnecessary for the expeditious andecanomical conduct of its proceedings.For example. separate investigationsconducted under part 207 relating to likeproducts may be combined if therrciumasances warrant S.imilarly,adjudicative investigations conductedunder part 210 involving com paints andcountercomplaintasof ufanf trradepractices may be consolidated into asingle proceeding.I &201Methods employedIn obtainiinfrrmaoirc= on & 201.11 Phearing

In several &entenses in these rules theword "evidence" is used in descibingthe information gathered in the course ofCommission nonadjudicativeproceedings. To make clear that theinformation upon which the Commissionrests its determination in theseproceeding is not evidence in the sensethat ith been asested in an adjudicativefrm te opword "information" issubstituted for "evidence" where it nowappears-in f2019,&I &111(c,I0.12(e)&, a1.d I201.2(g&).5 .142 &201.1ct ofnonadjudcativeheaig or cnfexr

Besides the changes of the word'evidence' to infor"ationn "esc "ibedabove, the following amendments areproposed for § zoitiz.

(a) Secon201.2(a) is endetiod bythe addition of the words "orconferences" after the term "hearings"in each place such term is used,including the title of the rule. Thisamendment establishes procedures forthe conduct of conference which maybe held pursuant to subpart B of Pea 207of these rules.

(dl Submission ofprepare)statement.

Section 20112d) Is amended torequire that witnesses' preparedstatements shall be submitted not lessthan 3 business days prior to a hearing.Distibution of such statementrs for thefirst time at the hearing will no longer beallowed. The strict time requirement Isnecessary in view of the expeditedconduct of investigations set forth innew Part 20.

() HIearL ranhcnpptL

in a typographical error denotingthis subsection. The amendment willcorrectly number the paragraph as5 201.12(h).

) requestNew paragraph (Iwill allow parties

to request the Commission (or itsdelegate) to take specific action thoughtto be necessary by the requester tofnciiltate the proceeding in which ha iliinvolved. It is contemplated that suchrequests will involve the timing orconduct of specific proceedings andsimilar matte. B requiring service ofsuch requests on all parties. the ruleprovides ail opportunity for comment orobjection: however. it is not intendedthat a motions practice will evolve inCommission nonadjudicativeinvestigation. The Commission willmake an appropriate response to arequest. but that may include taking noactionJ2LI Who may auter aappearnc=.

Section 0113(a) is amended to deletethe requirement that an appearance beentered "for the purpose of appearing ata public heanng." Because parties mayenter an appearance withoutparticipating in any hearing, therequirement is unnecessarily restrictive.By order of the Commission.Issued December1n , 17

K'nneth L MasonSeaetary

Part 2Z of the Commission's Rules ofPractice and Procedure (19 CFR 207) ishereby repealed. A new Part 207 isestablished as follows:

PART 207-NESTIGATIONS OFWHETHER INJURY TO DOMESTICINDUSTRIES RESULTS FROMINPORTS SOLD AT LESS THAN FAIRVALUE OR FROM SUBSIDIEEXPORTS TO THE UNITED STATESSee201 Applicability of part.

-pr A-4sane Prov27.2 Definitions applicable in part 207.207.3 Servic,f docents.207.4 The record207. Ex parts metg.07 progreiation.

X7.7 Lmited disclosure of certainconfidentainformation uder aprotctive order.

207.8 Questionnaires to have the force ofsubponenas subpoena enfoe

209 Affirmative determinations by dividedCommission.

Subpart y Deternartons207.10 Filing of petition with Comissio.207.11 Contents of petition.207.12 Notice of investigation of reasonable

indication of injury.

207.S3 Cooperation with administeringauthority: preliminary investigation

207.14 Negative petition determination.207.5 Written statements and conferene.207.16 Recommendation of Director.207.17 Determination by Commission of

reasonable indication of injury.207.15 Notice of prelminay determination.Subpar C'."nlu Determinao20720 Notice of investigation.m727 St3H reprt207.22 Prehearing saeent.207. Hearing.20724 Posthearing submissions.207.25 Fil determination by the

Commission.m20 Fators considered in determination

of material injury.727Z' andard for determination.

20728 Publication of notice ofdetermination.

Subpart 0-Transitin27.30 Pending investigation and existng

countervailing duty Orders.20731 Scheduling the institution of

Investigation of certain unwaivedInvestigations.

2.32 Procedures forpendingInvestigations.

Subpart E-Terminatei± Suspended and -

Continued Investigations, Investigations toReview Negotiatid Agreements, andInvestigations to Review OutandingDdueUmIa207.4 Termination and suspension of

Investigation.207.42 Commission review of agreements to

eliminate the injuious effect ofsubsidized imports or imports saod at lessthan fair value.

207.42 Investigation continued upon request.207.43 Commission determination in

investigations to review agreements andin continued investigation

207.44 Consolidation of investigtions207.45 Investigation to review outstanding

determinations207.46 Modification. clarification or

correction of a determination.Suban F-dkAsi Reste207.30 judicl review.207.51 Judloial review of denial of

application for disclosure of certainconfidential information under protectiveOrder.

Andioity: Sections 3=.33. and 771-778 of the Tariff Act of 1%9 (19 U.:. 303.LI=2.5-1677sc 803Of the TradeAct of 2974(19 U5SC 2582: sea. 3.102-107,1001. and 102 of the Trade Agreements Actof1979

1207.1 Applcabd"tof pPart 2 applies to proceedings of the

Commission under section 303. section51SA and title VU f the Tariff Act of1930 (iS.SC 1303, 1S5A and 1671-1677) (the Act) and sections 102-107 ofthe Trade Agreements Act of 17 (Pub.L 96-3 95 tat. 144). Subpart A setsforth rules of general applicability.Subpart B sets forth rules dealing with

ADP /1/Add:- T3*

Preliminary investigationsundersection s un sct

303 and titl tVII of the Act Subpar Csets forth roles dealing withhmgeiialgations rlqurnmfldetertimninations under seco 33 andtitie VII of the Act. Subpart is

cononerneasd with ,anitinaI ces LAWpending ca and countervailing dutyingorders u AistM lawSubpar E

Kdresses termination of ann.skmetnsig on andtnatton Investigation. and

investigations to revienwg eotiatedrageements and deretminations in affect

Subpart F deals with jucidlireai vewf

tdrminationsmadeeay the

IioIf theAt.c

uSbarpt A-Genealr Porisivn.o

f0#.2 Dart 2"tb Pu :07poFor the purses of a part the

th e

toy o Ut

tyctdI=it ttermcountryunderthe(C) ThtitleVIIoftheActiMM e I-a 't~ayoBt United staesnSubsidiesandwhin he mliau

2(b) ofthedWe s a =the Ac

e byfi~ UdS

cc) -,- ydter enVstha

A W X d Qr

United Slates andth

whm gich- o ubiie

(Aa Tune aplies and

uie

Nl Thd unrland Tad som apply betw

Uite States ad thatoUnte y

onreq pev it

reemd an

(.. Tb is an ag e tinefc

bdemorunied bt and ds r

i

e un...,cal...x,fitvried-=t on itpreatzonwhich are

iYc tmd int the J ite S at

7u and TLan

7oesb nt au.plA etenh

dived o parent deptive or

(d) The tm D .ar m=s= Thelcbekost COmmission Director orActng Di=eor. OMC of eSin the Absence of either. a persond ed by he bairmin.(a) The ter Ofd"V dati mnme

JeuaryI.S~, orsuhotherd a

Agmedc= Ac:the fective date of

(fA tarm xpert&msew :menAnyctlm between(11ny interested psr or her

person providing factua iformal Inaction with an invespdgao an

(2) Any C=:svione orC d=saus or =nenb oQ=OimicizneZ' sfs. or the vlrctor~Operations.In which less than all pates partiinpt.nceand w-c is zota heing or cOsXPz=for whteich an opporronty to participazis - to parties.ianjinjurytotury or thret of materie anIndes.usty in the United Statirateri retardadc Of theaajbdustryshinen f an~a~ in

United Slte by reason of theM~radonintnioe Umted Sttes of aClassknor id of merchaendih" wich ist&d theofministering astorinty obe(1)subsidized.or (2) soldorlikely tobe sold at less then its fair Value

(h) The tarm interested party"means:(1)A foreignmanufacturer. producer. orexporter. or the United States importer.rr.ofchmehasndie which is the jsctofubeian nvigationunestder titlIe VI of theAct or aa trde or busies asisocotian aoritjrtf oi the mersea of whichearportersiPmpotr of suchercmardhsn:ie

o(2rmentThgve=nountryiof a cviuch marchandiseisproducedorwpcs dodiseinPsroueadon

tt A s.aeawlillepounited statestiedunionorrecognized(4)A catemcgizd

rkerswhich=1 os go: rsmworkrwhc is

the term prmesic: AnyStates of alikesw teesaed aty Uwo Sastrse an

(3) A tradc rbwite ssionaor amtherperof wio. afber slea=anuict mduorf, wholese aWm Prod= in the Unied Staes

hkmste pmt Who b ami anaPcmen8 wnyit thO COMsOn Or aU7aeieshoPer-nunder wh. aftr allcwtmro

tif3tion-U to he saasiacan f the

*" CIand m ait tw Aa=Soem - t.?491 G L AM.

Commission a propr interest in thesubject matr at an investigati hasBld uch an appearance.

( T ter cr eans: (1)inefration pesetd to orobtained bythoe Commissin duroursing te c e of aiprloczdging.ncudin copleted

ires. informationobques dosims ifossrmsai obtainedfrom thsadm=m tarng autoritypu0rsu)(2).732(d)(2)ant to sections 72(d(:. 7=5t(d(21.7M0Xj3 733(, (c) and 33 ofthe Act written comications ommedany party, r ad ings of actby the Diirector of Operatons. staffrnront, all gaanveuetl memorzrndpetaining to the case and the record ofa part. meatinp required to be kaptprsn77=(n) t)osectio7nta(of the Ac:and

(Z) A copy of allrCeosmmissionodratiann detroranscriptsos all t Ctreconis of s or hearns. andall otd publishediera the FedAL

se.7.3Service of documentswteAnyrtypay subminttig a uocomeft ,or

*nclusnio in the ordc=d ofethinvestigat sna3leL in addition tocoplyig withI§ 2 sere a coY oieash hucn ument onall al other partsto tinhe vestigation in thanne merPcriresbed &201.18in Failure toplcomyhwitthequirementsofthisrulemaye rmtoithisrmnl=ayrom statusas a party. as a D=rr.ThnhCommmissio sall ake available toal parties to the investigation a copy Contexceeac docmcriptse. except tnsopt ofcon~recelasand hearings. pa in the

recd of tohe investigatin by theCQoImis Ionecord. 2074 The momc.

ftherecord.The(a) daiatennc o the raccrd TheecordofSecmatrY shall cuintaim the reord ofeach proceeding conducted by the

CQUIlizi~npMugsunt to sction 303 or~titi II of the Act. -hrecord shall becontempodraneouslwith

cordeach allctual Miing in the zrcrd. i she.!be divided into public and nonpublicSections. The Seetry stall alomaintain a cotemporaneous inde ofafl dOcmenti.including exhibitstherto and all other mateialsincorporated in the recd All materalalMadwth the Secretarysial bplacedirin the record. Allitenl whichispieled in the recor sha be maintainedIn the public record, with the exceptionof materWal which is privileggd. or 'whichis businefssm couddential inorationsubmitted&201.8in acIodane with MLPr ileveientialand business confdaniMaterialihal bre Maintained in thenotpubfic record.(b)AadisytheI Dkmzotw The

Director may in his discrtionauditcompleted quatitonnaire or otherwise

ADP/ 1/Add. 3 -

Page 125

verfy information received In the courseof a proceeding. To the extent an auditor verification results in new or differentinformation. the Director shall placesuch information on the record.

(c) Materials provided by theadministering authority. Materialsreceived by the CammsskiorLfrom theadministering authority shall be placedon the Commission's record and shall bedesignated by the Commission as publicor nonpublic in conformity with theapplicable designation of theadminstering authority. Any requests tothe Commission either to permit accessto such materials or to release such.proterials shall be referred to the

ministering authority for its advice.

&207.5Ex parte meeytgs.There shall be included in the record

of each proceeding a record of ex partemeetings as required by section 7771a)(3)of the Act. The record of each ex partemeeting shall include the identity of thepersons present at the meeting, the date,time, and place of the meeting, and asummary of the matters discussed orsubmitted.§ 2.6 Report of progress ofInvestigationThe Secretary shall upon the request

of a party inform the parties to aninvestigation of the progress of thatinvestigation. No such progress report.however. shall be issued by theSecretary less than 30 days after thedate of publication of com cement ofan investigation by notice in the Federal

fster, nor will the Secretary be' Suited to issue a report on theprogress of any investigation less than30 days after the date of issuance of theprevious such report with respect to thesame investigation. A report shall belimited to a statement of what officialactions the Commission has taken sincethe previous such report if any.f 207.7 Llntted dscosry of certainconf Wena formaton under a protective

(a) In general. Upon request of anattorney of a party to the investigation,excepting in-house counsel, whichdescribes with particularity theinformation requested. sets forth thereasons for the request, anddemonstrates a substantial need for theinformation in the preparation of hiscase and that he is unable withoutundue hardship to obtain the substantialequivalent of the information by othermeans, the Secretary will makeavailable confidential informationconcerning the domestic price and costof production of the like productsubmitted by the petitioner or an

interested party in support or thepetitioner to such attorney under aprotective order described in paragraph(b). Upon Mling with the Secretary of anagreement among all interestrd partieswho are parties to the proceedingrequesting the release under protectiveorder of confidontil informationsubmitted by such interested parties.other than domestic price and cost ofproduction data. the Secretary maymake such confidential informationavailable to an attorney of such aninterested.party, excepting in-housecounsel under a protective orderdescribed in paragaph (b). TheSecretary may adopt, from time to time,forms for submitting requests fordisclosure pursuant to a protective orderincorporating the terms of this rule. TheSecretary shall determine whether therequirements for release of informationunder this rule have been satisfied. TheSecretary's determination shall be finalfor purposes of review by the CustomsCourt under section 777(c)(2) of the Act.

(b) Protective order. The protectiveorder under which information is madeavailable to the attorney of a party shallrequire him to submit to the Secretary ina form prescribed by the Secretary apersonal sworn statement that. inaddition to such other conditions as theSecretary may require. he will.

(1) Not dive any of the informationso obtained and not otherwise availableto him, to any person other than

(i] Personnel of the Commissionconcerned with the proceeding,

(ii) The person or agency from whomthe information was obtained,

(iii) An attorney, excepting in-houseconasel employed on behalf of the partyrequesting the disclosure, and who hasfurnished a similar statement, or

(Iv] Those persons independentlycontracted with, or employed orsupervised by, the attorney having aneed thereof in connection with theproceeding and who have furnished asimilar statement

(2) Use such information solely for thepurposes of the Commission proceedingthen in progress or for judicial orCommission review thereof;

(3) Not consult with any person notdescribed in paragraph (b)(1) (iii) or piv)concerning such confidentialinformation without first havingreceived the written consent of theSecretary and the attorney of the partyfrom whom such confidentialinformation was obtained;

(4) Not copy or otherwise reproduceany confidential material obtainedunder protective order except inaccordance with procedures to beestablished by the Secretary, and

rS) Report promptly to the Secretaryany breach of the protective order.

(c) Final disposition ofmaterialreleased underprotective order. Uponcompletion of a proceed. or at suchearlier date as the Secretary maydetermine appropriate for particulardata, the security of confidentialinformation shall be projected by thereturn of all copies of materials releasedto attorneys of parties pursuant to thissection and all other materialscontaining the confidential information.such as charts or notes based on anysuch information received underprotective order, accompanied by acertificate from the attorney to whomthe material was disclosed attesting tohis personal, good faith belief that noother copies of such materials have beenmade available to the party herepresents or any other person to whomdisclosure was not specificallyauthorized.

(d) Sanctions for breach ofprotectiveorder. The sworn statement referred toin paragraph (b) shall include anacinowledgment by the personproviding it that breach thereof may. forup to seven years following publicationof a determination that the order hasbeen breached. subject to being barredfrom practice in any capacity before theCoamission-

(1) The person submitting thestatement and

(2) Such person's partners. associates.employer, and employees.Any breach of a protective order may bereferred to the United States Attorney.In the case of an attorney. accountant.or other professional, such breach alsomay be referred to the ethics panel ofthe appropriate professional association.and the offender and the party herepresents shall be subject to such otheradministrative sanctions as theCommission determLnes to beappropriate, including striking from therecord any information or briefssubmitted by. or on behalf of. the partyrepresented by the offender.

(e) Sanction procedures. TheCommission shall determine whetherany person has violated a protectiveorder, and may impose sanctions inaccordance with paragraph (d). Anyperson against whom a sanction isproposed to be applied shall be affordeda reasonable opportunity to be heardbefore the determination is made.§ 207.8 Quesbonnalrn to how the forceof subpoena subpoena enforcementAny questionnaire issued by the

Commission in connection with anyproceeding under section 303 or title V13of the Act. may be issued as a subpoenaand subscribed by a Commission,

ADP/1/Add.3

after Which it shAll haVe the forceandeffect of a subpoa authorized by theCommission. Whenever any parry orany other person WaiU to respondadequately to suon a subpoena, orwhenever a party or sny other personrefuses or is unable to produceinformation re-quested in a tiMelymannerand in the form required. orotherwise significantlylfiandy impedas anInvesiaptionmmiss. theaCoion my (a)us the best information otherwiseavailable in maidu rminationits dete.i(diciale) secek jtoW enforemen f thesubpoena pursuant to 1:9 U.S.C (cltake such otser actions azare necessaryanincludingd apprate. ciwaiver oi anydxme limitation set forth in this part asnecessary to obtain needed infazuatio:or (d) any combiuation of the above.-

tive determinationsCl7Atftm=&vv shonam bydbtdedCotnr

If the ComisSioners voting on adetminadtion by the Cammssioz vndTitleVIIoftheActaresct=3o orTidw Aa areevenl ~vid as to whether thedeterminrmativeaton should be aff or

eatethe Commission shall bedeemed to have dade an affi;ativedetermination. For the Purpose ofapplyiang thheis paragrph. Wn the issueeio tCommiSsion is to det

whether there is.. whether +tere wouidbaor whether there is a reasonablsindication oi-

(eriala)jurMatiny itoutryan ndsinthe United States.(bjeatofmaterial injurytoselzto such

ry,&a industr(c) Material retardation of the

estbisohient a an ryiindu t; theUnited Stateby reason of imports of thhe miercandse.an aaffirmtive vote by anyCommissioner Onfany o the isssllues habee-eaad s oa vatethat thedeterination should be iraativffme.

eouirmnatisona§ 2010Filingo7.a pettion wftu

Any interested parry who aes aipedion with the administering authontypursuant to second02(7b)(1) or 732(b)(1)of the Act shall in accordance withcsetion,027(b))(2 or 7(32b2))(otthe ActleacopyMec of the petition With theSecretary ai the Commission on thesame day as the petitiofieln is d with theadiniringsitetauthority. -

207.1ontentsofpetition.1 C-w oa peton.71petiton shall alelege the elemnts

ancessar for the imposition of a dutyunder section 7Q1(a) or t731 of the Ac:andraconnrtasin ilnfomtioeaonaby

available to the peotitioner supprting theSee & 207.2 for alistofllallegati=s . i = for a list of

factors relating ttoiiju ryconsidered bythe Commision. Lf tba petition allegescitial drt 3ta. it shall alsocontain information reasonablyavailablefindto the petitioner in support oftm, r~dt equired to be made by theCo mission purunto sections70(b)(4)(A) and M(b)(4)(A) of the Ac.Penonero ae advised to reier to theadministering anthoritys regulations

Noticeofparticipationofonceinm b Contents o petidto

ms2ne-12 atim ofbIjtur.7.12Noticeofreceipt y the Commission Of a

petition undar I . or receipt ofnotice that the administering authorityhas comenced, an investigation ndersection 7,agaJ or 73Z(a) of the Act. theDirecor shadL as soon as practicableaft= consultatilon with the administeringauhry, institute a preiminarylmretiadication etermine whether there3is ressona in=da of injury underseton 7t(a) or 773(a) of the Act andsall publish a notice, to that aleict IntithFederl Reostau.207.1i Coopwahn wthad.Namsfidr MKWk iq"agaoSubsequent to institute of an

fnvsgatiM uuan theDirector shall conduct sucninvestigation as he des apopate.InioratIon addu2ed in the investigateshel be placed on the recod. TimDirector shall coaverate with theadministering authority in it:sdetermination of the suzcg=Y of apetition and in Its decision whether tope=%it any proposed amendment to a

2e7i14NegnpetoUpon receipt by the Commission Of

notice from the admintering authrttyd section 7Md) or 7=dl of the Act

that the ainistmen a rty hamade a negative petition deter-natnde section 7c)(3) or 7=c)(3) of theAc the investigation begun pursuant toI 2.=2 shall terminate. The Drec>orshall aodfy all peCn Who hareceived requests fo infomatn fomhim of the term-inatio.

Any peson =ay submt to theCommission on or before a datespecfiud in the natica of investigationissued pursuant to I 207-Z a writtenstatement of information pertinent to thesubject =attar ot the iestigation. If hede- it acnrotziate the irectr shallhoid a conference pursuant to= t.12(a). The coaerence. if any, shall

be -eld afte ntice thee is Served On

the part and published in the FedakRegiser and shall be nbedNaotithstandi:n the foregoing theCommission may demcde to hold ahearing in Heu of the Directo's oldingofaconference.

The Director sal submit to theCommission is e m tion basedOn the record cnengthe eVistanceof a reasonable indicaion of injuryude secto 7M(aJ or 7M(a) of the Act.

f 207.17 Oetm3*tutlo by Ccwiatc

1xcpt in the csa of a petitiondismised by the administeingaut*hoty undar section 7gc (3I or,32(c)(3) of the Ac. the CommIiSion.within 45 :asafter the data an which apetition is Sad under secton. ,-2xb) or7n(b) of the Act or on which it recrivasoti fr=o the administming authorityof an investgatincom undersection 7ga) or 732(a) of the Act shallmake a preizinary determination basedupon the best information available to itat that dfe of whether ther isreasonable ;idicadon of 3njur byreason of i amotsof the merciandiewhich i3 the subject of the invavszti sonby the administeing authority.1 207.18 Notic d,v&nw

The Commission shal notify thepetitioner, other ;ardas to theinvestgaton, and the adm4inisterngauthority of its preliminarydetermation nde section 7c(a) or733(a) of the Act and of the fat andconclusions of law lpon which thedetednation is bsed and it shallpublisbanotice of its deterination inthe Fedeml Register. If theCommission's preliminary determinationis native the investigation shall beteminated, If the Comis ion'spreiminary determination is afflrative.the Dietrmy continue investigativeacivnties pending Notice by theadminitering authority of itspreiminary determination =der section703(b) or 7n(b) of thct.ffecIititheadministesiing authority's preiidetemination is a6=tive. theCommiion shag institute aninvestigation in accordance Wittsubpart C. If the adz inistaogauthority's preliminary detmination isnegative, the. Dtracicr shall continueon investigative activities as he deem3

appropriate pending a Snaonldetermination by the admutistezrngauthority under secti 70S(a) or 73$a)of the Ac.

ADP/1/Add. 3

SubmanC-Final Determnataorsf 2072 Notice of Investigatlon.Upon receipt of notice from the

administering authority of an affirmativepreliminary determinaton under section703(b) or 733(b) of the Act or. If theadministering authority's preliminarydetermination is negative, of anaffirmative final deteraction undersection 705(a) or 735(a) of the Act. theCommission shall publish in the FederalRegister a notice of its investigation toreach a final determination undersection 705(b) or 735(b) of the Act. Uponreceipt by the Commission of noticefrom the administering authority of Itsnegative final determination under-ection 705(a) or 7235(a) of the Act, thecorresponding Commission fv0stigationshall, terminate.§ 207.21 Staff rpoMt

(a) The Director shall prepare andplace in the record a staff reportcontaining preliminary findings of fact.Portions of the staff report containingconfidential or privileged informationwill be placed in the nznpublic record.and the remainder of the staff report.including a nonconfidential summary ofthe confidential or privileged partions,will be placed in the public record.

(b (1) 75$day ivestigations.-Ininjury investigations that are to becmpleted in 75 days. namely,

(i) Injury investigations following anaffirmative final determination by theadministering authority after a negativepreliminary determination by theadministering authority (I 20=25(c)),

(ii) Investigation to reviewAgreements to eliminafte injurious effect(& 207.41), or

(ii) Other investigation provided forin these rules incorporating by referencetiming rules of this subpart (continuedinvestigations provided for in 207.42and investigations in transition undersubpart D).the staff report shall be placed on therecord by the Director withinapproximately 45 days of the date ofissue of the corresponding Commissi=notice of investigation.

(2) o20day or extendedinvestigtdons.-.n injury investigationthat are to be completed within 120days, namely. injury investigationsfollowing an affective preliminarydetermination by the administeringauthority under § 207.25(b) and otherinvestigations provided for in these rulesthat incorporate by reference timingrules of this subpart (continuedinvestigations provided for in I 207.42and investigations in transition providedfor in subpart D of thi8 part), or ininvestigations extended pursuant to

section 735(a)(2) of the Act. the staffreport shall normally be placed on therecord by the Director on the third dayafter the date of issue by theadministering authority of its a affirmativermatvefinal determination.

(3) 180.dayinvetnigatio--uIyn injrInvestigations cocrn waived andcertain othtt countemrailig duty ordersunde 207.30(c) of these rules, that areto be completed within 150 days. thestaff report shall be placed cm the recordby the Director within approximately130 days of the date of issue of thecorresponding Commission notice ofinvestigation.1 207.22 Prehertn stateent.Within 15 days after the date of

service by the Commiasion to the partiesof the public portion of the staff report.e party shal submit to theCommission a prehearing statement. Aprehearing statement shall, to the extentpossible, refer to the record and shallinclude:

(a) Exception if any, to thepreliminary findings of fact contained inthe staff repot

(b) Any additional or proposedalternative findings of fac&

(c) Propoped conclusions of law; and(d) Any other information and

arguments which the party believesrelevant to the subject matter of theCommission's determination undersection 705(b) or 735(b) of the Act.§ 207.2 Hebig.

(a) Ai genermL The Commission shallhold a hearing in the course of anInvestigation upon the written request ofany party to the investigation, or at Itsown instance, before making a finaldetermination under section 705(b) or735(b) of the Act Any such request mustbe received by the Commission within15 days after the date of publication inthe Federal Register of the notice ofinvestigatoE under this subpart.

(b) Procedures Any such hearingshall be conducted after noticepublished in the Federal Thehearing shall not be subject to theprovisions of Subchapter IL Chapter 5,Mtle 5. United States Code, or to section702 of that title. Any person desiring toappear at a hearing shall notify theSecretary not later than five (5) daysprior to the date of the hearing. Eachparty shall limit ttes presntation at thehearing to a nonconfidential summary ofthe information and argumentscontained in its prehearing statement. toa nonconfidential analysis of theinformation and argumen'a contained inthe prehearing statements required byI 207.22. and to infoormatin notavailable at the time its preheating

statement was filed Each other personappearing shall limit Its presentation atthe hearing to a brief statement of itsposition with respect to the subjectmatter of the investigation. Hearingsshallbe subje&201.12.ct to with theexception of paragraph (g) thereof

(c) Heang Transcipts. (1) In general.A verbatim transcraipt shll be made ofall hearings or conferences held inconnection with Comioninvestigations conducted under this part.

(2) Revision nscrioftrapt. Within 10days of the completion of a hearing, anyperson who testified at the hearing maysubmit proposed revisions to thetranscript of his testimony to theSecretary. No substantive revisions willbe permitted. If in the judgent oi theSecretary a proposed revision does notalter the substance of the testimony inquestion, he will incorporate therevision into a revised transcriptI 207.24 Po rlngubmsPosthearing briefs concerning the

Wfrmation adduced at the hearing maybe filed with the Secretary within a timespecified by the official presiding at thehearing, provided that no suchpoathearing br-ef shall exceed 10 pagesof textual material, double spaced. on8% x 11 inch stationery. In addition, thepresiding official may permit persons tofile within a specified time statementsresponsive to questions or requestsmade by the Commission at the hearing.Posthearing submissions which do notaccord wit th is rule will not beaccepted.I 207.2 FinaterminationbdthMfnatdog by Me

(a) In Geneml. At the times specifiedbelow, the Commission shall make afinal determination of whether-

(1) An industry in the United States-(i) Is materially injured. or(ii) Is threatened with material injury,

or(2) The establishment of an industry

in the United States is materiallyretarded,by reason of imports of the merchandisewith respect to which the administeringauthority has made an affirmativedetermination under section 705(a)(1) or73S(a)(1) of the Act.

(b) Period forminjury detenninationfollowing affinrative preliminarydetermination by administeringaubority. If the preliminarydetermination by the administeringauthority under section 703(b) or 733(b)of the Act Is affirmative, then theCommission shall make thedetermination required by paragraph (a)of this rule before the later of-

ADP/ 1/Add 3

(1) The 120thday after the day onwhich the administering authoritymakes its affirmative preliminarydetermiation under section 7M(b) or733(b) of the Act. or

(2) The 45th day after the day onwhich the administering authorityMakes Its affirmative finaldeterminationunder section 705(a)(1) or4735a)(l) or (21 of the Act(c) PeriodforinjurydeterminationfUi d&tdpoeeninonatyathfoM7y ie ithe prlminarydetermination by the terinauctitnhority der s3(eo 703(b) or 73b)of the Act is negative, and its dialudettermination nde section 7(a)(1) or735a)(1) or (2) of the Act is affimative.then the final determination by theCoMission =de bis section shalI bemadewidf75 d ater t date ofngthe ads1mintectig authority ativeBal determination.

a(d) Certitniln adindioaflndgs. (1) IfingthetheadministeringfEd foiauthoritriticaly as to c'tcalces5-d se)ction 0(a)(1 of te Act isissionshallincludefindings1theIOsallintSa~t-gndiaxtoZ whta-

(i lThere is materW xjuhich wilbe Fcui ora. and

injurywasCHITahmerws by reson- such aasive ports ofthe

subsidized Merchandise over arelatively short period.

findingoftheadministering(21iftheirdin of the administga)uthority Mude sction 73t(a131 f hecAmct cnce:nng ritical c::ustce isafirmative, then the Snal determinationof nthe eCom=ssion shall iMlud aEnding as to whether the material injuryis bpy reason of amvai imortsdeswied in section 73a)(3) of the Actto rdan extent that.noir to preventsCh moatrecuring.itiserial injury frm c=-.g= it isnecessary to impase the duty imposed

-by simian 7M of the Act reactdyelythose tM-s--

on of thee dial detrmnan of thereomm Sio is that ther is no materialWnjh ebut that ther is tersa of materialInuy, then its determination shall alsoInclude a Endmaterialing as to whether riallnjurx y rea impos of themerchandise wihth respect to wich theadministering authority has made anaImimaatove deerterntinan usections735703(a) or (a) of the Act.would have been found but for anyuspeion of liquidatiorn af enties of

handise.the me~icand~e.fmaterialinjury(1== an x=Wwad In(a) In mauking Its determinations ndersndn703 dM05b) 733( anti 733(b)

of the Aoct. the Commissin shallconsider, among other factors-

(1) Th volume of imports of thecmerch-d'se whih is the subjectof theainaestigtin

(2) The effect of imports of thatmerchandise on prices In the UnitedSvtates for lie products and

(3) The impact ofimports of suchon domesticproducersofdecadse = dotcpmdr of

(blForpu)(1pose of paragaph (a-1In evaluating thfe volme of imports omerschnandie,.the Comnisao shallconsider whether the volume of importsof them adbe.-or any isoe inthat volume either in absolute terms orrelative, to production or consumptinthe United State is sigat.

(2) 1evaluaing t of imporsof sesuch merchandise an pric theCommission ahl onsider whether-

(in iThere has been sigifcant priceadercutdngby the importedmerchandise as comricepared with the pOf like prodUcts of the United Statesand

(ii mhe effect of I=prts of suchmerhandlaotherwise edepresses pricsto a sifricant degee or prevents p icaInchees. wmich otherwisehweould baaocmrd. o ifia signIcrnt degee..

(3xaminingtheimpacton; nini ths imspac on theafeocted induw tCmmission shallevealuante all rlevat toeconomic facrswhich a bearig at he state of the

cluding,butnotlimitedto1::dust7. ncin g,rt but not Limited to-(ii Actl and potential decline in

output. sales, market share profitsproductivity, return an invesnentsut.1iion of capacty,

(ill ces.Facton affecdg omestic priand

(11i] Actual and potential negativeeffects on cash so. inventors,employment. wages. Poth. ability toraise capitaL and investment.

(cicultural) Spec rmle for agrturalprodu (1) The Commission shall ntdetermine that there is n material

material injurytotnuwu or threat of mtrl in* toUnited States producers of anagicnita cm yrely becauthe prevailing market price is at orsabov the icemini= a8rt pr.

(2) Inarthelturae of gicuitral productsthe Commcosion shall tnsider anylcmased brnmentincomeden on gover entincomeor price support programs

(d) For puirpoInses o is secton-todete=ning whether ther is a threat ofmaterommissionial =1=ur.the Cacmsaon shallconsider among othe factors-

e ofsubsidized(1) The rate of 1noeasoof ubsidizedor dumped exports to the U.S. market:

ry(2 Capad: in the exporting uztryto generate exuartr a

export(3) Te valabilit7 of other exot8 ' :,

The CommIssion shell aLso considersuch information as may be presented toit bythe admistering authority as tothe nate of the subsidy (particularly asto whetherte subsidy is an exportssubsidy COnsistent with theAgreement) provided by a foreigncountry and the eects likely to becausedby.Lhe subsidy.230.2? Sfanwd for detarr~netimnTh* presnc or absence of any factr

which the Commission is required toconsider under U2. shall notnecessariyve decsive sidance withrespect to the determination by theCommission of atr. The term'material injury' =e sha= which isnot inconsequential mmateriaL orounimportant ln etermining whetherinjury is oceing by reasn ofsusidized or less than fair valuei=port he Commission will look at theeects3 of such =ports on the domesticindustry as set forth in §207.5 TheCommission will also take into accountinformtrtion preented to it or that itobtains. if ay, demons=ating that thehar= attifuted by the petitioner tosubsidizrd or Iess-faair-valzeimports is attludingls to facto= otherthan nhose listed in 4 275 incsIngvolume and prices of noasubsidizedimporttions or iports sold at less thanfair valu. contracdao in demand orchanges in pattern of cnsumption.trade restictive practices of andcmetit=poentetween the foreign anddo tcproducesors. develomntcs intechaology, and the export peroanand productivity ofizedthe domesticindstry. The effects from the subsidL-ador less than fair value imports will notbe weighed against the effect3assocated with other factors which mayhbe contrbuting to overall injury to anidutry. Nor Wi the petitioner be

required to bear the burden of provingthe ngative, that is. thmateral injurynofnoticeofis nat caused bysuch other factor27.2 fticada of ,atim offt"MrONICIsiWhenever the Commissio akes a

final determination =der section 33 ortitle V7I of the Act. it sha notify thepetitioner. other parties to theinvestigation. and the administeringauthority of its detarm:inat and of thefacts and coclusions oi law upon whichthe determination is based and it shallpubiish notice ci its determination in taFederal Register.

ADP/l/Add. 3

Subpart D-Transton207.30 Pending Investigations and

existing countervaling duty orders.(a) investigations in process at the

administering authority as of theeffective date. If. as of the effective date,there is an investigation In progressunder section.303 of the Act as towhether a bounty or grant is being paidor bestowed on either duty-free importssubject to a Commission injuryinvestigation or imports from a countryunder the agreement or, under theAr. ".nmping Act. 1921, as to whetherimports from a country are being or are

likely to be sold in the United States orelsewhere at less than fair value, thenthe following rules apply: If theadministering authority as of theeffective date-

(1) Has not made a preliminarycountervailing duty or a tentativeantidumping determination. as the caremay be, then the Commission shall issuea Notice of Investigation and commencean investigation with respect to thesame matter in accordance with 207.12to determine whether there is areasonable indication of injury, asprovided for in sections 703(a) or 733(a)of the Act, which shall be completedwithin 45 days after the effective date;

(2) Has made a preliminarycountervailing duty or a tentativeantidumping determination. but not a

final determination, then theC. dssion shall proceed inaccordance with subpart C of theserules to investigate the same matter.except that In the event of a negativepreliminary or negative tentativedetermination by the administeriauthority, the Director shall continuesuch investigative activities as he deemappropriate pending a finaldetermination by the administeringauthority.

(b) Investigations in progress at theCommission as of the effective date. If.as of the effective date. the Commissionis conducting an investigation undersection 303 of the Act or section 201(a)of the Antidumping Act. 192L as towhether an industry in the United Statesis being, or is likely to be injured, or isprevented from being established, itshall terminate any such investigationand initiate an investigation concerningthe same matter under title VII of the.Act. which shall be completed within 75

days after the effective date, and itShall-

(1) Treat any final determination ofthe administering authority undersection 303 as a final determinationunder section 705(a) of the Act andconsider the net amount of the bounty orgrant estimated or determined under

section 303 as the net subsidy amountunder subtitle A of title VII of the Act;and

(21 Treat any final determination ofthe adminstering authority under theAntidumping Act. 121. as a finaldetermination under section 735(a) ofthe Act.

(c) Cammission investigations ofinjury in coses in which countervailingduties were waived ora countervailingduty order wa published afterJuly 26,:1979. Upon receipt by the Commission ofthe administering authority's mostcurrent net subsidy informationpertaining to any countervailing dutyorder in effect on the effective datewhich the administering authoritywaived under section 303(d) of the Actor which was published after July 2,1979, Mth respect to products of acountry under the agreement. or thesubject of which concerns frozen.boneless beef from the EumopeanCommunities under Treasury Decision76-109 (10 Cust. B. & Dec. 189 (19763), theCommission shall commnce aninvestigation to detmcine whethr- thereis injury within the meaning of secrdion204(a)(Z of the Trade Agreements Act.which investigation shall be completedwithin 18o days after such receipt. TheSecretary wil transmit theCommission's determination to theadministering authority and publish it inthe Federal Register.

(d) Commission investgatian ofinjuryin cases in which countervailing dutyorders werepublished before July2&1979. and were not waived Within 3years of the effective date, a request inwriting may be filed on behalf of thegovernment of a country under theAgreement or on behalf of exportersaccounting for a significant portion ofthe exports to the United States of themerchandise subject to a countervailingduty order in effect on the effective dateor issued pursuant to a court order in anaction brought under section 516(d) ofthe Act, and not subject to paragraph (c)of this rule. then the Commission shallcomence an investigation to determinewhether there would be injury by reasonof imports of the merchandise coveredby the countervailing duty order if theorder were to be revoked. The requestshall set forth, the person. persons. orgovernment making the request; theorder as to which the request is made:the relief sought' the factual basistherefore, and otherwise be generally incompliance with part 20 of these rules.In addition, the Director may prescribe aform for making such requests. whichshall be completed if available, andwhich may require information that theDirector considers necessary to conduct

the investigation The Commissiondetermination in such investigationsshall be made within 3 years of the dateof the receipt of the request that causedthe Comission to investigate. Within10 days after the filing of a requestunder this subsection the Secretaryshall notify the administering authorityof the order or orders that are thesubjects of the requesL The SecretaMrwill also transmit to the administeringauthority the Commission determinationin investigations under this section. andpublish notice thereof in the FederalRegister.207.51 Scheduling the institution of

Investigation of certain unwaivedinvestigations.Among the factors considered by the

Commission for establishing priorities ofinstitution among requests underI 207.30(d) when the work before theCommission is such as to makeimmediate investigation in such casesimpractical are:

(a) The trade interests of the UnitedStates:

(b) The length of time a countervailingduty order has been in effect (longestfirst);

(c) The volume of trade of the productin question; and

(d) The appropriateness ofconsolidation of investigations relatingto like products.207.32 Procedures for pending

investigationThe procedures set forth fn subpart B

of this part. including applicable timelimitations, shall apply to allinvestigations requiring a preliminarydetermination within 45 days. All otherinvestigations described in this SubpartD shall comply with the procedures.including applicable time limitations. setforth in subpart C of this part.Subpart E-Terminated, Suspended,and Continued Investigations,Investigations To Review NegotiatedAgreements, and Investigations ToReview Outstanding Determinations§ 207.40 Termination and suspension ofinvestigation.

(a) An investigation under title VIImay be terminated by tCe Commissionby giving notice-in the Federal Registerto all parties to the investigation, uponwithdrawal of the petition by the

petitioner. The Commission may noiterminate an investigation. however.before a preliminary determination ismade by the administerIng authorityunder section 705(b) or section 733'b) ofthe Act.

(b) Upon receipt of a notice ofsuspension of an investigation by the

ADP/1/Add. 3

administaring authority under section704 (b) or 734(b). the Secretary shallissue " a notice of suspension of theComiission investigation. Suchsuspension shallnaot prevent theT~jzwctor from conducdng such otheriavetative activities as he deemsappropriate with respect to the samemate.

Cc) Remtpelonbf spandednvestigation(1) Purpose. Ifadministering au&,ahthorittermines thatan agreement described in subsection704(b)r(c) orsubsection7 b)or(b)or)(cof the Act is being. or has been violated.or no longer meets the requrimants ofsection 704 or -o the Act (other thanthe ;qeuireemenunder subsections7%0c)(1) and M74(c)(l), of completeelimination of irnjuy) and sc notices theC.omission of it sdetaermination nadon and. inthe event that the investigationsuspended by the agreement was nowt

tedtheCommissionshalltwrizatd. the Comision alums the investigation as if this

deteminadonof the aauthoritty Wer an affirmaivePreliminary dretermination undei~~~~~~~hmbec-- ,1~ ar 7=(b ¢soi teAc

(2),Pseod/oirfty mCa i shal maie its f5nal

detin canformity with t!e,chelished in I =7 b(33P.=C=Lns- The procedures sat

forth in subpart Cappicable toinvestigations requiring omplletonwithin 20 days shall appiy to ailinvestigatizas instituted under this

.I7.4 ".View ofaqrms to dhmtaeimeuRWWux effect

ot1 ai r or up sd 3

If the administering authoritydetermines to suspend an investigationupontnce of an agreement todlmitis the Injurious effect ofsubsidized imports or imports sold atmpLos tha i value the Commissionshall. u= petiion. Initiate aninvestigation to determine whether theInjurious effect of imports of themerchadis which wa the subject ofthe suspndd investigation is.itionsmyominated completely by the agreementPedt*ons may be fliedsbey a part theinvestigation which is an intereutdparty describein subparagraph,(3), (41.or (51 of I 7..Zh) Investiatiow underthisJ 27.41 shall be completed withinion73 dcays of their nitiation.

I 20.42 Inveslqtion Continued uponrequest.Upon rceipt of advice from the

admnistering authority that it hasreceived a request for the continuationof a suspended investigation pursuant to

sectionl7'04(gJ or MWgl of the Act. theCommission shal continue theinvestigation. The procedures set forthiIn seubparts B and of this part.including apcabla time limitationshall apply to all continued

ionveestiinationgai witsrule1 datermh=1attn IngationstoreviewagreementsandinbWestgqon to review aqreem and In

*e=tlmd IrmeelgatomInuakng a Einal determatioa in.

investigations to review agemetsdescribed in' 2=.4. armi continuedInetigations described In I 207.4Z the

Commission shall consider all of themerchandise which is the subject of theInvestigation.3207.4 CoassIi-datown dThe Commission may, when

appropriate. consolicontinuedin)vestigation un'.lr~section 704(gj orsection 734(gj of the Act withinvestigation to review agreements forthe elimination. of inJury under section7,04() or section 734(h) of the Act.* 207.449 dontqzm to review

(a) Purxw&e Upon the receipt aiinformation cneinor upon arequest ',or the review ciL adetermination cocriga suspensionagreement acascepted under sction 704 or704 cf the Act or an affirmtivedetermination made under section704(h)(2, 703(b). 734(h)(2), or 735Z(b) ofthe -Act, or nder the Antiduvinpin Actor section 303(b) of the Act. whichshows chean ed circumstances sufficientto wart a re-new at suchdeterination. the Commission shaLlinstitut)ean investigaion to determnas thx case may be.(iXwhether in lightof the alleged changed dcrstnUcthe agreement contins to eliminatecompletely the injurious effect ofpartssanoef the merchandise: or (2)whether change circumstnc existwhich indicate~that anU indusry in theUnited States would not be thresatnedwith material Injury, or theestabliersment of suh an industry wouldnot be aterially rtarded. if theocouintervaiing duty orde oratidumigns. order were =died oreoked In tnhe absence ot 3ood causeshown. no invtigation uder this120.45 shalgb instituted within 24onths of the date of publication of thei

notice of the suspension ordetermination.

(bJ Procedures. The procedures setforth in subpart C applicable toinvestigations rquid ng completionwithin ofdays shall apply to alinvestigations instituted nde-r this

207.45.

20=7.44 Uotiu!thzeda dmicetano otof a etonthitsb".

Nath ingi 207.45 Shall limit thetnhern authority of the Commission toIssue an appropriate madification.clarification. or coretion of adetermination within a reasonable timeof its issuanc.

Subpart F-4udlcW Review207.0 4udkdW review.(a) LgevermL Prsn: entitd to

fudiaL rviewnder section S1BA ofthe Act ay seek review in the U..Customs Court

(b) iiofmeod In the eventa Commzision dete=rmiation is appealedto the U.S. Customs Court uder section51s a copy o the record in theprocediag beimoe the Commission, assuch reord is defined in J 2072U3, or acertified list of all items then, will betrsmitted. to the Court by theSecretr accordan with the milsof the court.

(c) Sarvice ofpmces ThCommission's general Counsel sall bethe Caomission's agent for service ofprocess in cases arsngnd section5_JAotthe Act.=0.S1 .JudeWI rreview of dentsal of

coWletarnworatin wider proteetiveorder.

(a)[irgnern Persons titled tojudcial revew under section 7M.c ofa C==isuion detemination not todisclose confintial informationconcerning domestic rice or c=at o£production may appiy to the U.S.Customs Court for an order directing theCommission to make the informationinvolved available.

(b) r'=aswiac of mcrd In th eventa court order is sought undr section777tc)(2e the Comission todiscs c enti inratconcerning domestic price or cost ofproduct the Secretary shall within Sdays afthr service of a summons andcomplaint upon the Co issiotransmit to the court unde seal, theconfldentiAlinformatio involved alongwith pertinent parts of the recrd.

(c) Prdment pare ofthe recod Thepertinent parts o the recrd shallconsist of (1) the application forCommission disclosure together withany doc!:ents aled in support threofor in opposition thereto. (2) anyGaverrment memoranda relating to theCom::imison's determination, and (3) theCommission's action on the appliaticn.

(dl ser'dc OfPrCss TherCommission's General Counsel shall bethe Commis3ion's agent for service ofprocess in cases arising uder setion7(tc)(2) of the Act.

ADP/1/Add.3

Conforming AmendmentsThe following changes are made in

Part 201 of title 19 of the Code of FederalRegulations:9201.1 (Amended)

1. Substitute the words.2= through207" for the words "202 and 207 wherethey appear in &201.120.§201.2 [Amended]2. Add new paragraphf),(g),s and h)

to § 2012 as follows-(f) 'Trade Agreements Act' means the

Trade Agreements Act of 1979. Pub. LNo. 96-39, 93 Stat 144.)(gul'e" means a section of theMission Rules of Practice and

Procedure (19 CR Chapter Ir).(h1) Secretary" means the Secretary

of the Commission.3. Revise § 201.7to ead as follows:&201.7 Investigativeauthorityandnel7tv =sauthrtad

estigations.intlafln of lrwstgatlons.(a) Investigative autbrity. In order to

expedite the performance of Itsfunctions, the Commission may engagein investigative activities preliminary toand in aid of any authorizedinvestigation consolidate proceedingsbefore it. and determine the scope andmanner of its proceedings;

(b1) zitiation of inmestigations.Investigations may be initiated by theCommission On the Commission's ownmotion. upon request of the President orthe Special Representative for TradeNegotiations, upon resolution of theCam iittee on Ways and Means of the"'Uwe of Representatives or the

.nmmittee an Finance of the Senate.upon resolution of either branch ofCongress. or upon application. petition.complaint. or request of private parties.as required or provided for in thepertinent statute. Presidentialproclamation. Executive order, or in thischapter.1 2019, 201.11 and 201.12 [Amended]

4. Substitute the word "information"for the word "evidence" where itappears in I 21.9, § 20M.11(c),i 201.12(e). and § 201.122(g)

5. Add in § 20112(a) the words 'orconferences" after the term "hearings'in each place such term is used.

6. Substitute in § 20112d) the words"not less than 3 business days prior tothe hearing" for the words "threebusiness days prior to the hearing or asclose to actual presentation at thehearing as possible."

7. Substitute "(h) Hearing transcripts."for "(f) Hearing transcripts." in § 2.1

8 Add a new paragraph (i) to § 2012as follows-.

§ 201.12 Conduct of nonasdodkaftehearings.

(i) Rquests. Any party to anonadjudicatory investigation mayrequest the Commission to takeparticular action with respect to anyaspect of an investigation. Such requestsshall be by letter addressed to theSecretary, shall be placed by him in therecordL and served on all other parties.The Comission shall take such actionor make such response as it deemsappropriate.

§201.13 [Amended]9. Delete from I 2113(a), the

language "for the purpose of appearingat a public hearing"[F Dw-np-a=4aSmuaw9Mo CC 0N-

ADP/1./Add.. 3

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WednesdayFebruary 6, 1980

part Ill

~ ~ C -'

International Trade Administration

Aridumring Oubes

ADP/l/Add. 3

DEPARTMENT OF COMMERCE

International Trade Adminitration

19 CFR Part 353

Antidumping Duties

AGENCY: international TradeAdministration, Department ofCommerce.AC'nON Final rule and requests forcomments.

SUMuARYr The International TradeAdministration is publishing finalregulations concerning antidumpingduties. These regulations replace theCustoms Service regulations relating toantidumping and adopt in part.regulations proposed by the CustomsService (44 FR 59742). These regulationeffect the changes made by the TradeAgreements Act of 1979, which repealedand superseded the Antidumping Act o

1921, and by Reorganization Plan No.3of 1979. The regulations now containedin 19 CFR Part 153 will be deleted from19 CFR by the Customs Service at a latotime.DATES These regulations are effectiveFebruary 5. 1980. Written commentswith respect to proposed Customsregulations. (§§ 153.7(b), part of153.10(e), 153.12j), 153.68(b), and 153.24published on Ottober 16, 1979 may besubmitted until March 15.1980.AOORESS Written comments (intriplicate) with respect to the provisionsmentioned above may be submitted tothe Assistant Secretary for TradeAdministration, Room 3828 Departmenof Commerce. Washington, D.C. 20230.Written comments submitted -411 beavailable for public inspection duringregular business hours atRoom 3;it;,Department of Commerce, Washngton.D.C.FOR FURTHER INFORMATION CONTAcT. CChristopher Parlin. James Lyons or AnnWhite Foley, Office of General CounselDepartment of Commerce, WashingtonD.C. 20230: (202) 377-1434.SUPPLEMENTARY INFORMATION:OWN

Backgroumd -

The Trade Agreements Act of1979was enacted into law on July 28. 1979.and Title I became effective January1,

1980. The Act transfers the authority toregulate antidumping duties from theTreasury Department and the US.Customs Service to the InternationalTrade Administration, Department ofCommerce. The Customs Servicepublished proposed regulations on

antidumping duties in the FederalRegister on October 16. 1979, 44 FR

59742. with comments due on November Since publication by the UPS. Customs30. 1979. The Department of Commerce Service of proposed rules on October 18.is hereby adopting certain sections of 197. Reorganization Plan No. 3 of 197the proposed regulations published at 44 and Executive Order 12188 haveFR 59742 by the Customs Service and effected the transfer to the Secretary ofhas determined for good cause, pursuant Commerce of all functions of theto section 553(d)(3) of TItle 5 of the Department of the Treasury pursuant toUnited States Code (5 U.S.C. 553(d)(3U), title VII (including section 771(1). whichthat further notice and public procedure defines the administering authority) ofprior to the effective date of these final the Tariff Act of 1930. except for certainregulations are impracticable. functions reserved to the Customsunnecessary and contrary to the public Service.

- interest. These regulations ar necessry In anticipation of the transfer effectedto carry out the antidumping program, by the Plan, the Departments ofand consequently they will be effective Commercetand the Treasury have jointlyimmediately on publication. The reviewed and considered all commentsDepartment. however. is deferring received on the proposed regulationspublication of final regulations on issues and have jointly prepared these finalcovered by certain sections of the regulations; although since January .,proposed Customs Regulations 1980, all preparation has been performed

5 published on October 18. 1979. As by the Commerce Department. Theindicated, additional comments with Trade Agreements Act of 1979 requires

d respect to those previously proposed the Department of Commerce to issuef provisions may be submitted until regulations necessary or appropriate to

March 15, 1980. carry out its antidumping duty -The provisions of the former Customs responsibilities by January 1. 1981.

Regulations relating to antidumping However, in order for the Department ofir duties were based on the Antidumping Commerce to conduct its antidumping

Act. 192. as amended (19 U.S.C. 180 et duty program. it is necessary for someseq.). Section 106(a) of the Trade regulations to be effective as soon asAgreements Act of 1979, Pub. L 98-39, possible after the effective date of Title Irepealed the Antidumping Act. 1921 as of the Act. January 1.1980. Theseamended, effective January 1 1980. - regulations follow. The Department

) Although Title I. Subtitles B. C, and D anticipates that as experience is gained(Antidumping Duties) of the Trade in administering its new antidumpingAgreements Act of 1979 in large duty program. the Department willmeasure retain the substantive law of continue to evaluate these regulations,

B the 1921 Act. some changes and and, when appropriate, will proposeadditions to the regulations are required amendments to them. The Departmentin order to implement the modification will consider written comments on the

t in substantive law and procedure regulations published below.effected by the Trade Agreements Acts The Department of Commerce isof 1979 and Reorganization Plan No.3 of deferring publication of final regulations1979 (44 FR 69273, December 3. 1979),. on issues covered by certain sections ofwhich took effect January 2.1980. A the proposed regulations of the Custom.-number of other regulations incorporate Service published in the Fedealexisting administrative interpretations Register on October 18, 1979.and practices which had not heretofore - specifically 153.7(b), part of,e been set forth in regulations but which if 153I0(e). 153.12(j), 153.18(b), and -are intended to be continued under the 153.24. Final regulations on these issues-new statute. are not necessary immediately for theThe principal changes in the new Law conduct of the antidumping duty

relate to shortened time limits during the program. Moreover. these issues areinvestigative phase of proceedings; complex. and the Department prefers todetailed provisions concerning gain.- inre experience with them prior tosuspension of investigations; the... publishing final regulations. In additionimposition of time limits on the -to the sections enumerated above.liquidation of entries subject to the ~-seconds 153.15 and153.19 of theassessment of antidumping duties; Customs proposed regulations are notyearly administrative review of being made final in the form theyoutstanding suspension agreements and appeared in the proposed rulemaking.Antidumping Duty Orders: and greater Several significant changes from currentpublic participation in, and greater practice were included in these sectionspublic access to information developed as proposed. Additional considerationin the course of, antidumping of the suggested changes and the --proceedings. These changes in the law . comments submitted thereon isrequire that conforming amendments be necessary. Accordingly, the subsfFtancemade to the antidumping regulations. the former Customs Regulations on

ADP/1/Add.3

...,, ,--

drmranca of sale and level of tradef19 CFR 133.0. 153.13) has been retainedin the interim, and they are publishedherein. The viepartment inites

* additional written comments onCustoms proposed regulationsI§ 153.7(b). 153.10(e). 133.12(j). 153.iS.133.18(b). 153.19 and 15324. Commentsshould be sent to the address !istedabove and must be received by March15. 19802,On November 16 1979. the President

directed Executive Departments andAgencies to ensure that federalregulations will not place unnecessaryburdens on small businesses andorganization. The President'smnemorandulm was issued afterpublication of the proposed regulationson antidumping duties and preceded theclose of the comment period by only twoweeks. To comply with the President's-.efloranldunt. the Departments ofcommercee and the Treasury have

examined the written comments forthose relating to smail businesses andhave anempted to incorporate thesecomments in the regulations publishedbeiowv.. oreover. the Gecart..ents haveintfleduced some aexibility into th.eregulationsminimider to inir.nze theburden on small businesses andorganizations. A section was addedinviring persons intending to filepetitions to seek from the Deparment oiCaome-.rce information on therequ.irerents for petiticns' prior to Eling.A provision wvas added to waive. whenunduly burdensome, the requirementthat parties serve written comments onall other parties. In at least one case, acomment was rejected because of theburden to petitioners, particularly smallbusinesses. This comment suggestedreqmnng the petitioner to give notu ofits Ming to all parties named in the

However. because the commentperiod was well underway at the time ofthe President's directive to minimizeunnecessary regulatory burdens onsmall businesses. the Departmrent ofCommerce now invites writtencomrents specifically on the effect onsmall busigenises and or;aizations ofthe regulations published below as weflas the sections enumerated above uponwhich final action is being deferred.Wrinen comments should be sent to theaddress listed above and must bereceived by March 15. 1980. TheDepartment of Commerce will analyzethese comments and. if appropriate.publish proposed or final amendmentsreflecting them.

In Foeregulationsrmulating th -'a onspubished below, the Departments ofCommerce and Treasury have

considered all written commentsreceived as well as the testimony whichwas presen5ted at the November . 11979.conference relating to the proposedantidumping duty regulations. Somecomments went beyond the scope of thisrulemaking or urged changesinconsistent with the Trade AgreementsAct of 1979. These suggestions have notbeen incorporated. Some commentsaddressed-atters more appropriatelyaddressed by the U.s InternationalTrade Commission; these were refereedto the Commission. Some commentsurged a degree of specificity consideredinappropriate for regulations and wererejected for this reason.A number of comments stated that the

deadlines are too short for submissionsby parties. for example. the deadlinesfor resubmiiang corsidential requests.for arcumlleging; critical cistances. andfor presenting written views prior to afinal determination. While sympatheticto these views, the Oepartent has not

gestedchanges"co.ar~ed 1-ha su;Seted changes.because any additional time granted toparties would Lpair the ability of theDepartment of Commerce to meet thedeadlines imposed by the Act.A section-by-section analysis of the

comments folloWs:1. Section 353.0 Scae. T.is section

delineates the scone oi Pan, 3Z2. Theprovision, waich appeared in theproposed rulnmaking. remainsunchanged. This section also providesthat determinaticsby the Secretaryunder the Tosf Act of 1930 shall not beconstered major federal actionssitifcantly affecting the environmentwithin the meaning of the NationalEnvironmental Pliqcyf 1969. asamended, or relevant Executive Orders.

Z Section 353.1 Relationship of FairValue to Foign Market Value. N1ocomments were received with respect tothis section. and it remains unaltered.

:L Section 353.2 Definition of ForeignMarket Value. This provision referencesthe manner in which foreign marketvalue shall be determined. It remains aspublished in the proposed rulemaking.

4. Secton 3533 Foreign Market ValueBased on Prce in the Country ofExportation. No comments werereceived pertaining to this provisionand it remains unchanged.

5. Section 353.4 foreign Mfarket Value;here Sales in the Country ofExportation 'L-e Inadequate. Thecomments received suggested that thepreference for third country sales overconstructed value should be morestrongly stated. Further guidance wasalso requested with respect to thosesituations in which home markett saleswould be considered inadequate andconstructed value would be determined

.o be the most appropriate means ofcalculating foreign market value. Thepreference for use of third country salesset !orth in paragraph (b) of the sectioncannot be stated more strongly withouteliminating thle discretion which the Actconfers on the Secretary and which theSecretary will require in thosecircumstances where the use of thirdcountry sales is inappropriate. Withregard to the second comment, othersections of the regulations. specificallyI 3537 (cost of production) and i 353.8(state-controUed-*zonomy country).already indicate two instances whereconstructed value ordinarily will beused. The request that the regulationsmore clearly stipulate when homemarket sales will be adequate has beenadopted: a general 5 percent rule.administratively applied for some time.has now been incorporated in paragraph(a) of this section.

- & Section 35315 Foreign .V)'a-ket ValueBased on Sales to a Third Country.Comments were received whichquestioned whether it would be moreappropriate to base the selection of asurmogate third country urst onconsiderations of volume rathe_ thansimilarity of merchandise. The suchs ortion wh" de.:ini:on wvich appears inSecticn7:7116) of the Tarif Act of 1930.as amended by the T:adeAd:s-e:sAct of 19;-9. however. requires thats.m.ilaritly be the paramountconsideration so long as an adequatevolume of sales exsts. Other commentsopinedi that the provision in paragraph(d) for aggregation of countries shouldbe used in only exceptionalcircumstances. It is likely that theaggregation principle will be used onlyrarely. However. the :e;paz-ent wishesto gain experience in administering theprogram before determining whether alimitation to 'exceptional'circumstances" is warranted. One othercomment recommended substituting'.U.S. market" for "home market" in thelast line )f paragraph (cJ Thissuggestion was adopted to ensure noambiguity in the provision. which isintended to refer to the U.S. market.

7. Section 353.5 Formign Mlar-ket ValueDetermined by Constracted Value. Onecomment recommended that in thecalculation of constructed value. useshould be made of generally acceptedaccounting principles as deffined in§ 153.1.Zj) of the proposed regulations.However. the publication of § 13.12{j]in final form is being deferred to permitfarther analysis of the conceptsembodied therein. ConsecuentIv, itwould be premature to consider suchprinciples as they relate to thecalculation of constructed value. The

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ADP/1/Add. 3Page -25

other comments received pertain tosubsection (b); specifically, the meaningof "any element of value" and whetherthe transaction prices would be requiredto include the statutory minimum of 10%for general expenses and 8% for profit.The elements of value to be consideredare those mentioned in § 353.6 (a)(1) and(a)(2), and a cross-reference to them hasbeen included. The inclusion of thestatutorily mandated minimum amountsfor general expenses and profit will notbe required in determining the arms-length nature of the sale betweenrelated parties; normal considerations ofprofit and expenses in the market willbe adequate.

8 Section 353.7 Foreign Market ValueWhere Sales Are Made at Less than theCost of Production. Commentssubmitted with respect to paragraph (a)expressed a concern that the reliance tobe placed on "the best availableinformation" was over-emphasized andthat an opportunity would not bepermitted for the submission ofsupplemental data necessary to rectify adeficiency in the information supplied.As the proposed regulations provided.resort to the "best availableinformation" will be made whenever theinformation supplied is inadequate.What will, in fact, constitute the best -available information will dependlargely on the particular circumstances:at times it may be the informationsupplied by the respondents subject tothe investigation. at other times. theinformation supplied by the petitioner:and. of course. it may also constitute acombination of those and other sources.Any party will be permitted tosupplement otherwise deficient data aslong as the additional submissions aremade within sufficient time to permitanalysis and verification of theadditional data.The remaining comments relevant to

this section pertained to paragraph (b)which defined "cost of production". Anumber of the concepts which wereformally described for the first time inproposed regulations were criticized. Inlight of the need for additional analysisof those comments, the publication ofparagraph (b) in final form is beingdeferred although the earlier proposalshould be considered as continuing as aproposal. Any additional submissionswith respect to the issues developed -therein are invited,

9. Section 353.8 Foreign MarketValue of Merchandise from State-Controlled-Economy Countries. Thecomments focused on theappropriateness of the comparability ofeconomy standard. This concept wasincorporated in the Customs Regulations

on August 19. 1978 (43 FR 35285). andmany of the same issues wereconsidered then. Although the currentregulations are republished for this finalrule-making, continued consideration isbeing given to the possibility ofamending the regulation to reflect theconcerns expressed in the comments,particularly those relating to othermethods of determining economic andcommercial comparability. One changehas been made in paragraph (a) tocodify a previously unstated preferencefor comparisons based on prices.

10. Section 353.9 Foreign MarketValue Based on Sales in a ThirdCountry by a Related Company. Thisprovision remains unchanged. Althougha few comments suggested that thesection be expanded to provideadditional guidance with respect to itsuse, the absence of any experienceunder the provision makes suchelaboration inappropriate at this time.

11. Section 353.10 Definition ofUnited States Price. The final regulationremains unchanged. except thatsubsection (e) is being deferred. Thedefinition of purchase price is consistentwith present practice under which salesfrom the foreign producer to middlemenand any sales between middlemenbefore sale to the first unrelated U.S.purchaser are examined to determinewhether any of those sales are madebelow cost. Several commentsexpressed concern that the language inthe preamble which accompanied theproposed regulations indicated "that ifthe manufacturer or producer knew orhad reason to know that the goods werefor sale to an unrelated U.S. buyer andthe terms of sale were fixed ordeterminable from events beyond thecontrol of the parties as of the date ofimportation, the manufacturer's orproducer's sales price to an unrelatedmiddleman will be used as 'purchaseprice.' "The comments suggested thatpurchase price would not always be themost appropriate United States pric. touse in.such circumstances.The comment has merit Accordingly.

In the situation described. purchaseprice may not always be the mostappropriate United States price: incertain circumstances, the preferablecomparison will be to exporter's salesprice.Other comments criticized the "80

percent nrle" contained in paragraph (e}as arbitrary and contrary to commercialconsiderations governing profits. Thisprovision was not contained in theformer Customs Regulations. In light ofthe significant change which wouldresult and the number of commentsreceived. it was determined to defer thisprovision to permit further study. The I

proposal reflected. in part. past practiceand should be considered as continuinga: a proposaL

12. Section 35X7.11 Definitions ofAntidumping Duty "Proceeding. ""Investigation. " "Determination " and"Order. "This provision remainsunchanged except for technicalamendments.

13. Section 353.12 Other Definitions.Several comments noted the omission ofUnited States importers as parties to theproceeding. This omission wascorrected. all interested parties asdefined by the Act can be parties to theproceeding. Several commentssuggested that there be a deadline forfiling requests to become a party to theproceeding. provided that laterintervention would be allowed for goodcause. The essence of these commentswas adopted. The publication ofproposed Customs Regulation § 153.12(j)in final form is being deferred to permitfurther analysis of the concepts relatingto, and the definiton of. the phrase"generally accepted accountingprinciples."

14. Section 353.13 Determination of -

Foreign Market Value. Severalcomments objected to inclusion oi theburden of proof requirement. It wasconcluded that while burden of proofwas not the appropriate standard. some - -standard should be required of theperson claiming entitlement to anadjustment. Accordingly..the regulationhas been revised to indicate that theparty claiming an adjustment mustestablish entitlement thereto to thesatisfaction of the Secretary. .

15. Section 353.14 Differences inQuantities. One comment questionedthe consideration of industry practice indetermining allowance for quantitydiscounts. This provision of paragraph(a) has been maintained. becauseknowledge of the industry-wide practiceassists in the analysis of practices by aspecific firm.Two comments suggested that

adjustments for differences in pricesarising from sales of different quantitiesbe allowed without the need to satisfythe six-month rule or cost justificationrule of paragraph (b). This suggestionwas not adopted. The paragraph (b)criteria are necessary and appropriate toensure adequate substantiation andvaluation of claims for such an.--adjustment.One comment suggested that the time

period in paragraph (b)(1) should be theperiod of investigation rather than sixmonths prior to the date the issue ofdumping was raised. This suggestionwas adopted. The investigatory periodordinarily covers the period from fivemonths before to one month after receipt

1 1/, ....

at an accenable petiticn (see I 353.33).Thus. this change will simplify theconduct of investigations withoutcausing a radical change from curtpractice.One comment suggested that

paragraph (b)(t) be changed fromrequiring that quantity discountsactually be rantedtto permit:ing thediscount wherever it was "actuallyoffered." This comment also objected tothe eaquirement that the discount bewanted with respect to at least 2Dpercent of such or similar Merchandise.Neither suggestipn was adoated. Bothconcepts were taken without changefrom the former Customs Regulatioas,they are necessary and appropriate toensure adequate substantiation ofentitlement to this adjustment.

Several comments objected to theincluraion in pan2)graph (b)( of'sccunts based on savings attributable.o delivery (as Opposed to production) ofthe different quantities involved. Severalother comments urged that savingsattributabia to all disz'i'ution costs andto lower overhead coss be permitted. Itwas determinedd that only savingsattributable to production of differentquantities should Ce permitted. Othersactons of ihese regulations. such as thecircumstancep of sale orovision(§ 353p.15, enompass an allowance forsavings attributabie to different deliverycosts. Expansion ot the differences inquantity provision to encompassovernead costs would be a radical1evarture from current 3ractce. Such adepartlre was dete-mined ;o beinapopriate at this time.

I8 Sec:.;on 353.A3S .Qi.erences inC.- stances of Sale. Severalcomments; objoc2al : ±s expansion ofthe adjustments permitted und"section of the proposed regulationsSeveral others regarded the expansiond. too limited. Because of the numberand range of comments. the proposedregulation has not been made flial. Thesubstance of the provision from theformer Customs Regulations (19 CR153.101 has been republished: possiblerevision has been deferred, although theearlier proposal should be considered ascontinuing as a proposal. (Theregulation as published herein isintended to reflect no change in thesubstance of the Customs Reguationsunder the Antidumping'Act. 19ZL in --effect on December 3T 197.)

17. Section 3D53.e168 e iffrencs inPhysici arc2Jrrisec Severalcomments suggested that the adjustmentaot be limited to differences in physiccicharacteristics. This Limitation was inthe former Customs Regulations. It wasnot considered appropriate to change itat this time. One comment suggested

that the phrase 'cost of manufacture' bechanged. to "cost of production' to beconsistent with the wording used inother sections. This suggestion wasadopted. One comment questioned thesentence dealing with merchandise nottending itself to comparison for purposesof this section. This sentence is intendedto make clear that where an adjustmentfor dufferences in physicalcharacteristics is appropriate but theusula methods for valuing the differenceare not. the Secretary may select anyother method resonas , _ ',reflect the impact of any ziierencs inphysical characteristics A new lastsentence has been added to indicateexplicitly that dIfferences in costs ofproducing merchandise with identicalphysical characteristics will not beconsidered appropriate adjustments.Numerous comments objected to

proposed subsection (b). which providedthat where differences in physical.characteristics account for more than 13percent oi the value of the merchandise.an appropriate allocation of any profitrealized on the sales underconsideration also would be made tomaterial or labor used or servicesperiormed in a'eating such differences.This provision was not contained in theformer Customs Reulations. In light ofthe radical change from current 2racticeand the significant number Of comment3received, this provision will be 4eferredto permit further study. (The easierproposal should be considered ascontinuing as a proposaL)

13. Sec3tio1ns 33.7 and 3.113. MOffering Price and Fictious Sales. Noromments were submitted regardingthese sections Accordingly. they remainas in the proposed rale-mtaing.

19. SecVon 3=19 L~avel of Trade.Several comments objected to thechange in this provision from that in theformer Customs Regulations. -theproposed regulation has not been madefinal. Possible revision of this sectionhas been deferred: the ear ier proposalshould be considered as continuing as aproposal. The provision fr n the formerCustoms Reguiation.r. :.has been republished. (The regulationpublished herein is intended to reflectno change in the substance of theCustoms Regulations under theAntidumping Act. 192 in effect onDecember 31. 1979.)

20 Section 353.20 Sales atVf gPrces. Several comments suggested thatparagraph (a) be caziied to makeexplicit that there can be two fairvalues -one calculated in accordancewith i 3=344(b)(3) or 353.19: another forremaining sales. While tMo fair valuespossibly could exist in a situationinvolving a level of trade adjustment

(§ 353.'9. the making of adjustments fordifferences in quantities (§ 353.14(b)) orthe making of any other adjustmentscould not produce more than one fairvalue for such or similar merchandiseproduced by the same person and soldat or about the same time as themerchandise in question sold to the U.S.Accordingly. reference to § 353.14(b)(3)has been deleted. In addition, paragraph(a) has been redrated for purposes osclarity.Some comments objected to

paragraphs (b) and (c); they suggestedthat weighted averages always shouldbe used. This suggestion was notadopted. When the vast majority ofsales are at one price, use of thatdominant price clearly is appropriate.Likewise appropriate is paragraph (d),which permits selection of "any othermethod for determining fair vaiue" whenneither paragraph (a) nor (b) isappiicable. Because of the loserelationship between "fair value" and"foreign market value." it was deemedappropriate to substitute "foreignmarket value' for "fair value' in thissection to reflect the intent that. to the

maIMu extent possible. calculationswill be performed on the same basis forboth fair value and f-oreign market valuepurposes. .

2tio2. S5e.21ons 33 and2333.2Shipomenmts fro lararmdointriesate Cuz5esand 'wnactias between RelawdPersons. No comments were submittedregarding thes sectons. They remain aspubLished in the proposed rale-making.= Section 353.23 Oisrgarding

InsianificcntAdjustwments Onetomment proposed that insignificantadjustments be disregarded only whento do so would not materially affect theresults oi the calculation This concernis already reflected in the last sentenceof subsection (a); no further clarificationis necessary. Another comment assertedthat the authonty in paragraph (b) to usesampling or averaging techniques shouldbe explicitly circumscribed. Thissuggestion was not adopted because the

l._- ; a-iin.eauthority bestowed by the statute. Onecomment urged that a new paragraph beadded Indicating that dumping marginsof 1.5 percent or less be held to bed.07minims This suggestion was not -

adopted. While, under current practice.margins as high as 0.3 percent have beenconsidered de minimis. no conclusionshave yet been reached on whether afixed standard for de minimis marginsin antidumping investigations isappropriate and, if so. wnat that levelshould be. If and when such adetermination is made. appropriatechanges is the regulation will be

ADP/1/Add..3

proposed. la any event, there is no legaljustification for treating 1.5 percent perse as de minimis.

23. Section 353.24 Fair Value PriceComparisons in markets ReflectingParallel Pricing. Numerous commentsasserted that this regulation, which doesnot appear in the former CustomsRegulations. contained excessivelyvague terms and reflected a markeddeparture from traditional dumpingmethodology. This regulation has notbeen made final at this time: it is beingdefended to permit further study. Theearlier proposal should be considered ascontinuing as a proposal.

24. Section 353.25 InformationGenerally Available. One commentsuggested that the first sentence ofsubsection (a) be amended so that thereference to material submitted orcollected be limited to "by anyinterested party." Since the statutoryprovision on the record for judicialreview deals with "all informationpresented to or obtained by theSecretary" (section 515A(b](2)(A)(il,Tariff Act of 1930. as amended bysection 100(a). Trade Agteements Actof 1979, 93 Stat. 302 (19 U.S.C. 1SlOa), itwas not considered appropriate to makethis change. Two technical -aes havebeen made in paragraph (aj. i; ;wsdetermined that instead of merely citingthe statutory provision on contents ofthe record for review, the statutorycriteria should be spelled out. It wasalso determined that the last sentence inparagraph (a) should be part ofparagraph (b).

25 Section 353.25 Ex Parte Meetings.Several comments suggested that the -

record of ex parte meetings shouldcontain, in addition to the i"""tlty of thepersons present. the date, time andplace of the meeting. This suggestionhas been adopted. It was also suggestedthat the regulation identify the partyresponsible for preparing the - .

memorandum of the meeting. Thissuggestion also has been adopted, Theregulation now indicates that normallythe memorandum for the record will beprepared by one of the Governmentparticipants. Of course, in light of§ 353.46(a) ("submission of informationand written views") private parties whoparticipate in such meetings may submittheir own summaries. Another commentobjected to the materiality requirementin the first sentence. Section 777ta)(3) ofthe Tariff Act of 1930. as amended (93Stat. 187, 19 U.S.C. 177f(a)(3)) refers topersons providing factual information"In connection with an investigation." Inlight of the statutory language theregulation has been changed to refer to"factual information relating to a

determination." (Section 353.15 of theCountervailing Duties Regulations. 19CTIR 355.18, published in the FederalRegister on January 22. 1980 (45 FR 49324929), also will be amended to conformto this change).

28. Section 353.27 ConfidentialityMaintained. In response to a commentthat this section of the proposedregulations was more appropriatelysituated in another section. the materialhas been deleted and so transferred.Several comments objected toparagraph (b) of the proposedregulation. They pointed out that unlikeall other situations involvinginformation submitted under a requestfor confidential treatment, this sectioncontained no provision for notifying. thesubmitter of the intent to disclose suchinformation and providing anopportunity to withdraw it rather thanhave it disclosed. The revised provision(in j 353.23(e)] clearly indicates thatnotification will be given and anopportunity to withdraw the materialprovided in all instances where arequest for confidential treatment is notgranted. The transferred material hasbeen replaced with language dealingwith the maintenance of confidentialityof information designated asconfidential by the person submitting it.

27. Section 353.2 Requests forConfidential Treatment of Information.One commenter objected to theprovision of a 10% band forapproximated presentation ofconfidential information. stating it wasnot large enough where the numbersinvolved are small. While such aproblem may exist in a small number ofcases, it has been determined that. onbalance, use of a wider band wouldhave the effect much more often ofexcessively distorting thenonconfidential summary. Accordingly,the comment has not been adopted.Another comment stated that paragraph(a)(3) could result in less informationbeing made available than under theformer Customs Regulations since only abrief nonconfidential summary isrequired to accompany an agreement topermit disclosure under anadministrative protective order. Wheresuch an order is granted. parties otherthan those whose attorneys or otherrepresentatives are granted access will.have only the less detailed non-confidential summary. This is aninevitable result of the protective ordermechanism: it was determined to beinappropriate to require a more detailsummary in such cases. However. thecomment was adopted with respect tosituations where the request for an orderin denied. Accordingly, the regulation

has been amended to indicate thatwhere the request for a protective orderis denied. a nonconfidential summaryconforming to the requirements ofparagraph (a)(1) or a statement underparagraph (a)(2) shall be required.except where. in unusual circumstances.a less detailed summary is permitted.Two comments objected to the

provision in paragraph (b) that.nonconforming requests be returned tothe submitted; they expressed the viewthat this paragraph should contain thesame provision for notification to thesubmitter and opportunity to correct asis contained in new paragraph (a). Thissuggestion has not been adopted.Paragraph (b) is concerned withprocedurally deficient requests forconfidential treatment (includinginadequate nonconfidentialsummarization). while new paragraph(e) deals with the substantive questionof the effect of a determination thatinformation does not warrantconfidential treatment Thus. ;Zemechanics for each situation areappropriate-rejection of anonconforming request under paragraph(b) and notification and opportunity towithdraw under (e). Of course. a requestrejected under paragraph (b) mayalways be resubmitted. as long as theresubmission is timely. Severalcomments objected to this provision andrequested that a 10-day period alwaysbe permitted for resubmission. Thissuggestion has not been adopted. Underthe short time limits of the new Act itwould be exceedingly burdensomeautomatically to permit a 10-dayresubmission period. Thus. it has beendetermined that the language belatedtdsubmissions may be rejected" should bemaintained: of course. since the word"may' is used. where feasible andappropriate, extensions for resubmission*will be within the discretion of theSecretary.

Several comments stated thatparagraph (c) should be amended toprovide that unless a request forconfidential treatment is denied within10 days, the request should be deemedaccepted. This suggestion has not beenadopted. The rights of other interestedparties to review information not trulywarranting confidential treatmentshould not be defeated by the automaticgrant of such treatment for any reasonnot relevant to the content of suchinformation. The regulation has beenamended. however, to provide thatnormally a determination on whether togrant a request for confidentialtreatment will be made within 10working days. - - -

ADP//1/Add.3Page28. .. _

P graph (d) has been divided intotwo paragraph for purposes of clarity.one dealing with the grant of a requestfor confidantal treatment. the otherdling with the denial of such arequest. In new paragraph (e), whichcovers tho situation whers requests aredenied, the material onginaly inparagraph (b) of 353.27 of the proposedregulations has been relocated.

ti& Sec~on W.29 Sinndods forDetmining Confidaeneicky of

rmation.* 0rmatfoa One comment objected toinclusion of "ordinarily" in paragraph(a. The moment was not accepted..because it was determined thatircumstancespardtlar drcstances (eg., publicdisclosure of the same iniafrationaisewhere) might make it inappropriateto grant confidential treatment. Severalcomments asserted that informationfom domestic interested partiesgarding the operations of foreign

MtSrested parties should aot beaccorded cnfdenl teatment. Thiscmmnt has been accepted in parPraph (b) is being amended toprovide that such information will notbe accorded confidential treatmentexcpt to the extent that it migtdisclos the identity of cnFIdentialsource used by the domestic interestedparties. This revision is being madebecause it is recogniZed that knowledgesof alegapn y domestiec Interesutparties isla vtital eemen inpthe attamtby foreign interested parties to establishthat they aagre not enged in thecompnfanries of uaitices.rade practOne camment stated that the identity owuces should never be mubliciydisThclosed. is commit was aotaccnderepataed. U prgraph (cc(61, theidentity of sources can be protectedwheor requested and approved. Nochange from this standarrard is wanted.

2on9. Secti i . LMted DiscIosof Ceartin Confidendal InfomadonUnder = dminative PratectivOsde. Numerou comments suggestedtthrnat only atoeys should be eligible fordislosure -under an administra.tvproterective ord: several of thecommnts uned farther limitation-tooutside counsel NeAther suggestion hasbeen adopted. In the Statement ofAdministrative Action accompanyingthe T-ade .Agements Act of 1979. theAdministration stated that genlerry.-disclosure under administrativeprotective order would be made only toattorney. (House Doc. No. go-i3n PartIL 98th Cong. 1at Sees. 437 IJuly 19.W791.) Use oi "generally" precludesabsolute limitation to attomeys. Ofcourse. business confidential

in-tozation from foreign rms:cncerning prices of actual transactions,

production and distribution costs, andnames oi particular customers andsuppliers is vital in antidumping dutyproceedings. Such information isconsidered highly confidential and willbe provided only if those submitting itbelieve that it is. and it is in fact.exceedingly unlikely that suchinformation will be disclosed to personswho should not have access (primarilycompetitors). Accordingly, theDepartent will grant administrativeprotective orders only where it isconvinced that the requesting personwill be subject to effective sanctions inthe event of a breach: normally this willbe limited to attorns wo arn subjectto disbarment.Numros comments aLso suggested

an addition to the relations ildicatingthat an administrative protective orderwill be wanted only up a showing ofgood caus.. This ugstion has beenadopted. The applicant for an ordermust demonstrate good cause forrelease. Further. in determining whetherto grant the order. the Snd of the partyrequestfirnag the inomtion. will bewgnted agnainst the eed of the partysubmitting it for continued confidentialtreatment Ths balaning test is takenfrom language in the Senate Reportdealing with judicial erection orders(S. Rep. No. 96-24U. Nth Cang. 13t Sass.I)CO (1979. It was consideredappropate to use it with respect toadministrative protective order as weL

Several comments objected to theabsence of provisions focer noti of arequest for an order and opportunity tocomment and for the rigt to withdrawEinormation rather than have it sodisclosed. These suggestions wereadocceoadin these rights are availablewith regard to information that theDepartment does not believe to warrantconfidential treatmetSome Comments expressed the

concern that paragraph (b)(1)(D) asdrafted could permit disclosure -der"protectve order to employees ofdomestic competitor Thesection usethe phrase - persons employed byor supervised by the attorney orrepresentative *'P. Cay,employees of tidormestic competosother than counsel should never havesuch access. Th relation has beenamended to so indicate explicit.

.31Information3Q Sectin W.- InfrmativfonExemptFrom DQifsu One ommentsuggested that information receivedfrom a foreign government should not be'classified' and ttrefore exemptedrefrom disclosure wh a foreigngovenmenit is merely transmtting datareceived from and prepared n behalf ofprivate sources. This suggestion ba notbeen adopted. Under the terms oi

L'cecutive Order 1205 the DepartentIs not permitted to disregard a foreigngovernment's submission of informationin confidence. Further. it is oftendifficult to determine whetherinformation is, in fact. relyy beingtasmitted by a foreign government onbehalf of private sources or whether ithas been supplied in. prt at least. bythe foreign government itself. Inpractice, foreign governments will bediscouraged from claimin confidentialtreatment for information they aremerely transmitting an behalf of private

31. SdfuoenM Procedwrs forSif-Wfation Two comments suggestedthat lengthy consultations with asignatory to the Agreement onantidumpzg prior to initating aninvestigation under this section mightunduly delay initiation. To make clearthat this is not contemplated. thisregulation hasgebeen chaned to requirethat a signatory be given an opportunityfor consultation prior to self-initiato

n 353.38.a33cu Proedres foraidci -by Pedtei Some commentsurged reduction ormprin the iationrequired to be in a petition. Thiscomment was not followed. becauseinformation is required only to the.extent it is reasonably available to thepetitioner. To assist dtitionezs. aprosion was aded inviting petitionsto obtain additional informationcondemning requirements for pedttio bycontactfiing the Ofce of the AsistantSecretary for Trade Adminstration.This provision also responds to acomment which suggested that personsintending to Me petitions be allowed tosubmit their petitions for -'3ceening'iling.prior to f.One comment suggested that a

petitioner be required to supplydocumentation on which it relish inmaking its petition if reasonablyavailable. This comment was adopted.Oib comment suggested that

petitioners be required to state theposition of other industry ers oanthe petitio This comment was reected-on the groud that each idustrrmember best knows its own positionand should be the source of thatnfomation.

* One comment suggested that - -paragraph (a)(9) implied that theSeaetary might deviate from the -standard of section 773(b) of the Act. Tomake clear that no deviation from theAct is intended, paragraph (a)(9) wasrevised to conform to the statutorylanguage.Some comments suggested that the

petitioner be required to provide noticeof its M1ing to parties named in thepetition or. alternatively. that the

ADP/1/Add.3

Secretary publish notice of receipt of apetition. The service requirement wasrejected as unduly burdensome topetitioners, particularly smallbusinesses. The suggestion that theDepartment publish notice of its receiptof a petition was rejected asimpracticable within the 20 daysallowed the Act for the sufficiencydetermination.One comment suggested that the

regulation make clear that only the non-confidential copy of the petition will beprovided to the representative of theforeign country. This change was made.One comment suggested that an

opportunity should be provided forsubmission of comments on thesufficiency of a petition prior to adetermination whether to commence aninvestigation. Solicitation of commentsprior to initiation was rejected asimpracticable within the 20 daysallowed by the Act for the sufficiencydetermination.

33. Section 35337 Deterination ofSufficiency ofPetition. One commenturged that amendment of the productdescription, as appropriate. be allowedbased on materials and informationreceived during the investigation. Nochange was made to this section sincesuch an amendment is not precluded bythe language of the regulation.One comment suggested that the

regulation make clear that the petition isdeemed to be filed at the time it isreceived by the Secretary. This commentwas adopted.

34. Section 353.38 Full-scaleInvestigation. Paragraph (b) was addedso that exporters representing asufficient dollar volume of exports for asuspension agreement may requestinclusion in the investigation.

35. Section 353.39 PreliminaryDeterminations. Several amendmentshave been made in this section to reflectcomments received in response to theproposed mle-making. Paragraph (b) hasbeen changed to require that apetitioner. when requesting an extentionof the period prior to a preliminarydetermination. set forth the reasons forthe request. Without such informationthe Department would be unable to ruleon the requests satisfactorily. Severalcomments indicated displeasure withparagraph (d) which limited disclosure.to domestic interested partiespreliminary to a waiver of verification.Neither the Senate or House Reports northe Statement of Administrative Actionare explicit on whether disclosure wasintended to be to all interested parties.In the interest of fairness, the regulation

disclosure to all parties. Paragraph (e)has been revised to indicate that the

posting of a bond or other securityshould ordinarily be consideredadequate to protect the revenue.Whether special bonds ultimately willbe required for merchandise subject to asuspension of liquidation in anantidumping duty investigation is aquestion which must await furtherreview at the administrative level.

36. Section 353.40 CriticalCircumstance Determinations. Nocomments were received with respect tothis section. and it remains unchanged.

37. Section 353.41 Termination ofInvestigation. One comment suggestedthat this regulation should provide fortermination of an investigation upon anegative preliminary determination oninjury by the International TradeCommission. This comment wasadopted.One comment suggested that the

regulations provide that prior totermination the petitioner be required todescribe any agreements made and tocertify that it is not aware of any others.This suggestion was not incorporated inthe regulation. The Secretary hasimplicit authority to seek thisinformation from the parties as part ofhis consideration of whether the publicinterest is served by termination.

38. Section 353.42 Suspension ofInvestigation. Certain aspects of thissection have been further clarified.Paragraph (g) has been amended toindicate the principal criterion whichwill govern in selecting the mostrepresentative period for purposes ofestablishing a ceiling on the level ofimports during the interim periodpreceding the date on which the sales atless than fair value are to be eliminatedor exports discontinued. A number ofcomments recommended that therepresentative period not include anytime during which sales at less than fairvalue had been made with respect to thesubject merchandise. Thisrecommendation was not adopted.because where sales at less than fairvalue have existed for a substantialperiod, the adoption of therecommendation could compel theSecretary to utilize a time period whichis truly unrepresentative. Moreover, theregulations preserve sufficient flexibilityso that the Secretary can use a periodother than the six-month periodordinarily to be used wherecircumstances so require.

Several other comments questionedwhether any authority exists to exclucdfrom entry merchandise imported inexcess of the ceiling establishedpursuant to paragraph (g). The exclusion

:n-cluded in

the proposed rule-making and has nowbeen deleted. Where the volume of

entered merchandise is in excess of thatimported during the designatedrepresentative period. the suspensionagreement may be deemed violated.Other comments suggested that such

terms as "extraordinary circumstances"and "public benefit" be defined in theregulations. The definition of theseterms, which are newly added by theTrade Agreements Act of 1979, will bedeferred until the Department gainssufficient experience in theirapplication.Paragraph (h) relating to a petitioner's

role in the suspension procedures hasbeen amended to reflect explicitly thelegislative intent that the petitioner begiven a meaningful role during theperiod prior to acceptance of theagreement.

39. Section 353.43 Violations ofAgreements. This section pertaining tothe violation of agreements which formthe basis for the suspension of aninvestigation remains unchanged exceptfor a clarifying amendment in paragraph(b). The language of that paragraph hasbeen modified so as to make it clear thatnotice of a possible breach will be givento parties only where that breach isinadvertent and other than one which isconsidered to be intentional as definedin paragraph (c) of the section.

40. Section 353.44 FinalDeterination. A number of commentsstated that the deadline is too short forpresenting written views prior to a finaldetermination. While sympathetic tothese views. the Department ofCommerce has not been able toincorporate the suggested changesbecause any additional time granted tothe parties would impair the ability ofthe Department to meet the deadlinesimposed by the Tariff Act of 1930. asamended. However. a provision wasadded allowing for an extension of timefor good cause. .

41. Section 353.45 Exclusion ofParticularFiLrms. Conflicting commentswere received pertaining to this section:some recommend that exclusion beautomatic; others that it bediscretionary. Practical administrativeconsiderations dictate that a firm which.although potentially subject to an Order.has not itself been investigated. shouldbear the burden of making applicationfor exclusion and supplying thenecessary information. firTshose mhich are investigated will

automatically be excluded if exclusionis appropriate. Where firms areexcluded. however, the regulationsprovide for publication of the names ofthe firms -ed.i

. .. ,.; 'ission ofInformation and Written Views. Acomment suggested that the requirement

ADP/1/Add. 3

that each party serve its writtencomments on me other parties bedeleted because or the burden imposed.an small businesses. In response to thiscomment, a provision was addedallowing the Secrtary to waive therequirement when unduly burdensome.

43. Section 330on 33.47iHear7ngs. Onecomment suggested that notice of the-earig be ;iven in the notice of thepreliminary determination. Thiscomment was rejected because, at thetime of thlimpreLminary determination.the :hearillnw.' ot necissarfly havebeen scheduled.

e4.iSactron 35tidumpydurping DutyOrder. This section has been amendedto specify that where an investigation iscontinued pursuant to section 734(g) ofthe Tariff Act of 1930. as amended, andwere the final determinadotns by theDeoartent and the Commission are

=rmative. the ueparuent shall 3otsS:ue an teidumpingj Outy Order sotong ath'-e suspension agreementmm=ains in corce and, continues to meetthe statuto yequreuments. and theparties to the suspension agreementcarry out their obligations thereuer..

45. Section 35349 Secranty in Lieu ofEstimtaedDutuySpending EarieDeeerminationof :uty. Some comments

objected to the requirement thatinformation be submitted within sevendays of publication of the Order. Whileit is recognized that this deadline isshort, any longer period isadministrative infeasible. Further.affected foreign firms can gaper andprocess the requisite data prior to

nissance of the Order. thus alleviatingmuch of the time pressrue. Cnecomment asserted that paragraph (a)(Z2was unclear. It has been redrafted toeliminate any lack of clarity.

48 Section 350 Differences inaDeterminedandEstimatedrined =d Etiaated Dumping

Duties This section provides foradjustenu to be made where theestimated antidumping duty depositeddiffers fom that finally determined tobe due. No written comments werreceived on this section. and it remainsunchanged fom the proposedregulations.

47. Section 53.32 Verdfliction ofaforation.w Use ofBest Izformation

Available. The section ha beenamended to refilet several commentswhich suggested that a party be notifiedat and afforded an opportunity tocorrect a defect in its submission. Theresubmission of information to permitthe correction of a deficiency will beallowed so long as the resubmission is

adequate analysis ann*verification ofthe information so submitted. Asubstantial extension of the original

time period in most instances wouldPreclude the Secretary from fulfilling hisrespcasibilides under tha Tariff Act of1930. as amended, in the statutorilymandated time limits and. consequently.oiLl not be aUalwed.Several other comments criticized the

reqglrement for Enziish translations setforth in paragraph (d). This paragraphremains unchanged. because theregulations already provide for a waiverof the requirement where necessary. TheDepartment will not initially possess anextensive foreign language capabilityand. consequently, it wiil not be able tousde untranslated submissions in mostcircumstances.

48 Section 353.5Z Inierest on CertahnOverpay7enrs and Uadarpayrsents.This section sets forth the rate ofinterest to be paid on certainoverpayments and underpayments. Nowritten comments were received an thissection. and it remains unchanged fromthe proposed rgulation.

49. Section 353.53 AdministrativeReview of Detrmations. Paragraph(a) has been redrafted to provide moreclearly for an annual review ofantidumping duty F"ndings and Ordersand suspended investigarins.Paragraph (c) has been amended toreflect the view exurssed in somecomments that the time Limits set forthin paragraph (c) were excessively short.The day on which a response must bereceived has been extended so as tocontinue the present practice ofpermitting thirty days in which to reply.Because the questionnaire riates to anannual review of wbicn the respondentis aware, the thirty-day period should beadequate in all situations.A new paragraph (e) has been added

to indicate the procedures to beapplicable with respect to the review ofdisconinances which resulted in theconclusion of an investigation prior to.anuary -.- .

50 Section 353.54 Revocation orAtidumpwg Duty Fwnding or Order andTermination ofSuspension Thisprovision has been changedsubstantially so as to incorporate anumber of procedus and principleswhich have become a matter of practiceIn the antidumping area.Some of the changes in the section are

designed to reflect concerns expressedin the comments receivedRepresentatives of foreign and importinginterests thought that the 3-year periodrequired before revocation ortermination was too long. They alsostated a preference that the Secretaryhave no dic:_,:a !.. dztarminingwhether to grant a revocation ortermination in those instances whereeither there were no sales at less than

fair value of the imported merchandiseor exports had ceased for the requisiteperiod. Contrasting views werepresented by members of domesticindustry who pointed to the possibilitythat renewed sales at less than fairvalue or exports immzediataiy after theissuance of a revocation or terminationcould result in a flagrant vioiatdon of thepurpose of the revocation or :ermninadonand undermine the administration of thelaw.The section as now published

addresses these concerns and adoptsprocedures which should moreeffectively implement the intent of theTrade Agreements Act of 1979. Thissection provides for a revocation ortermination both upon application by aninterested party and an the Secratary'sown initiative. Where the revocation ortermination is issued on the basis of anapplication made by an interested party,a minimum of two years must haveelapsed in which the importedmerchandise had not been sald at Lessthan fair value. The two-year period willran from either the date of the issuanceof the Antidumping Duty Finding orOrder or the date of the preliminarydetermination (In the case of atermination only the latter is relevant),depending upon whether the partyseeking revocation or termination candemonstrate that the importedmerchanise has not been sold at lessthan fair value during the period of animmediately preceding the antidumpingduty investigation. Pursuant toparagraph (d), a revocation ortermination ill not be issued unless theparty making application agrees inwriting to an immediate suspension ofliquidation and reinstatement of theFinding or Order or continuation of theinvestigation, as appropriate. if*rcumstancas develop which indicatethat the merchandise thereafterimported is sold at less than fair value.Where three years have elapsed and

the Secretary has determined that thereis no likelihood of a resumption ofimports of the merchandise subject tothe Finding or Order or suspension orthe sales at less than fair value havebeen eliminated paragraph (b)authorizes the Secretary to issue a _ .revocation or termination an his owninitiative.The remaining provisions of

paragraphs (d) and (e) establish theprocedures which have been adopted forrevocation of Findings and Orders andtermination of suspended investigations.A tentative notice will be issued. and anopportunity for presentation of viewswill be afforded. Where the Secretary's.fnal decision, is to grant a revocation or

ADP/1/Add. 3.

termination, a notice to that effect willbe issued.

51. Section 353.55 Action by theDistrict Director; Suspension ofLiquidation. This section of theproposed regulations has been deleted.The substance of the provision is moreappropriate for inclusion in regulationsissued under the authority of theCustoms Service.

52. Section 353.55 Reimbursement ofDumping Duties. Several commentsobjected to this provision. Someasserted it was without statutory basis;other said it was unfair to importers.The provision is taken from the formerCustoms Regulations. The only changesare the addition of the last sentence ofparagraph (a) (which sets down thecurrent practice of deducting any suchreimbursement only once) and ofparagraph (c), the presumption ofreimbursement when the requiredcertificate is not filed. This provisionhas attracted comment.since itsinception. The current comments raisepolicy issues which warrant furtherattention. However, since the regulationwas in the Customs Regulations. it willbe implemented at this time as draftedin the proposed rulemaking.

53. Section 353.56 Conversion ofCurrencies. This provision adopts in itsentirety the regulation which was

heretofore in effect. Some commentscriticized the impact which. the currentmethod of currency conversion mayhave on the determination of whethersales at less than fair value exist.Although consideration of thesecomments is continuing, effectiveadministration of the law requires thatthe preexisting practice continue until adetermination can be made as towhether a change in the practice isappropriate.

54. Section 353.57 Entered Value Not.Controlling. No comments werereceived on this section and it remainsas drafted in the proposed rulemaking.Drafting InformationThe principal authors of this --

document were C. Christopher Parlin.James Lyons and Jan White Foley,Office of the General CounselDepartment of Commerce. However,other personnel in the Department ofCommerce. Department of the Treasuryand the U.S. Customs Service assisted inits development.Regulatory AnalysisThe Department of the Treasury

concluded that a regulatory analysis isnot necessary for the regulationspublished below because the economicconsequences involved flow directly

from the Act. The Department ofCommerce concurs in this conclusion.Final Regulations

Accordingly, Title 19 of the Code ofFederal Regulations is amended asfollows:

Dated. January 1980Stanley J. Marcus,DeputyAssistant Secretaryfor Trade

1. A new Part 353. AntidumpingDuties. is added as set out below:

PART 353-ANTIDUMPING DUTIESsec353.0 Scope.Subpart A-Oeffnlons353.1 Relationship of fair value to foreign

market value.353.2 Definition of foreign market value.3533 Foreign market value based on price

in the country of exportation.353.4 Foreign market value where sales in

the country of exportation areinadequate.

353.5 Foreign market value based on salesto a third country.

353.8 Foreign market value determined byconstructed value.

353.7 Foreign market value where sales aremade at less than the cost of production.

353.8 Foreign market value of merchandisefrom state-controlled-economy countries.

353.9 Foreign market value based on salesin a third country by a related company.

353.10 Definition of United States price.353.11 Definitions of antidumping duty

"proceeding." "Investigation.""determination" and "order".

353.12 Other definitions.353.13 Determination of foreign market

value.353.14 Differences in quantities.353.15 Differences in circumstances of sale.353.1a Differences in physical

characteristics.353.17 Offering price.353.18 Fictitious sales.35319 Level of trade.35320 Sales at varying prices. '353.1 Shipments from intermediate

countries.353.22 Transactions between related

persons.35323 Disregarding insignificant

adjustments use of averaging andsampling techniques

35324 (ResenwedLSubpart S-Access to Informaion353.5 Informition generally available.353.2 Ex part meetings.353Z Confidentiality maintained353.28 Requests for confidential treatment

of information.353.29 Standards for determining

confidentiality of information.353.30 Limited disclosure of certain

confidential information under anadministrative protective order.

353.31 Information exempt from disclosure.

Subpart C-Antidumping Procedures aNdDeterminations

353.33 Procedures for self-initiation.353.38 Procedures for initiation by petition.353.37 Determination of sufficiency of

petition.353.38 Full-scale investigation.353.39 Preliminary determinations.353.40 Critical circumstances

determinations.353.41 Termination of investigation.353.42 Suspension of investigation.353.43 Violations of agreements.353.44 Final determinations.353.45 Exclusion of particular firms.353.48 Submission of information and

written views.353.47 Hearings.353.48 Antidumiping duty order.353.49 Security in lieu of estimated duty

pending early determination of duty.353.50 Differences In determined and

estimated antidumping duties.353.51 Verification of information; use of

best information available.353.52 Interest on certain overpayments and

underpayments.353.53 Administratdve review of

determinations.353.5 Revocation of antidumping duty

orders and termination of suspendedinvestigations.

353.55 Reimbursement of antidumpigduties.

353d.5 Conversion of currencies.3535? Entered value not controlling.Annex I-Antidumping duty findings or

orders currently in effect.Authority: Tha authority for the final

regulations published below is 5 U.S.C. 301ard the Trad agreements Act of 1979. datedJuly 28. 1979. Pub. L 98-39. section 3(b). 93Stat. 148.

§ 3534 Scope.This part sets forth procedures and

rules applicable to proceedings underTitle VI of the Tariff Act of 1930 asamended (19 U.S.C. 1673 et seq.)(hereinafter referred to as "the Act"),relating to the imposition of antidumpingduties. Determinations by the Secretaryunder the Act shall not be consideredmajor federal actions significantlyaffecting the environment within themeaning of the National EnvironmentalPolicy Act of 1989, as amended (42U.S.C. 4321 et seq.) and Executive Order11514. March 5. 1970. as amended byExecutive Order 11991. May 24. 1977:and Executive Order 12114. January 9.1979. - -- -. ;

Subpart A-Definitions§ 353.1 Relationship of fair value toforeign market value.

Fair value. used during theinvestigative phase of a proceeding, isintended to be an estimate of foreignmarket value. Except where specificallynoted. all references in this subpart to"foreign market value" should be

ADP/1/Add. 3

considered to apply to 'fair value" aswell; on the other hand. specificreferences to 'fair value" in this subpartshould not be considered to refer toforeign market value."$ 353.3 Denition of foreign market value.mFor purposes of the Act. the foreign

-rket value of imzorted merchandiseshall be determined in accordance with& 332.3 through 3539 of this part.

I 3.53 Forign market value based onpics in thecounry et exportation

(a) In general. (1) The foreign marketvalue of merchandise imported into theUnited States shall ordinarily bedetermined by the price. at the time ofexportation of such merchandise to theUnited States. at which such or similarmerchandise is sold or. in the absence csales. offered for sale in the principal..markets of the country from which2xported. in the usual wholesalequanrities and in the ordinary course oitrade for home consumotion. olu whernot included in such price. the cost of alcontainers and coverings and ail othercosts. charges. and expenses indent tcplacing the merchandise in editionpacked ready for sh~ipmet to the UnitetStates except that in the case ofmerchandise purchased or agreed to bepurchased by the person by whom or f.;owhose account thes merchandise isimpormed. prior to the time ofimportation. the foreign marixet valueshall be ascertained as of the date ofsuch purchase or agreeent to purchase(nL determining the ordinary course

of trade. condia4ons and oracoces whichfor a reasonable time prior to theexportation of the merchandise which isthe subject of an investigation, havebeen normal in the trade underconsiderationwith reject tomerchandise oi the same class or kindshail be applicable.

(bM Resticrad sales. When homemarket sales form the basis ofcomparison to the United States price.they may be used for this purposewhether or not they are restricted.provided however. that appriateadjustment.for the home market pricewill be made for such restrictions thataffect the value of the merchandise tothe purchaser. .....

53. t wIn the county of exportatUioninadequatiL

(a) In general If it is established. in asituation other than that provided for in4 33..9. that during the representativeperiod chosen for investigation thequantity of such or similar merchandise30id for consumption in the country ofexportation is so small in relation to the

quantity sold for exportation tocountries other than the United States

rt (normally. less than five percent of theamount sold to third countries) as to bean inadequate basis for determining theforeign market value of the merchandiseimported into the United States, theforeign market value of the importedmerchandise shall be determined eitherby reference to the price at which suchor similar merchandise is sold or offeredfor sale for exportation to countriesother than the United States or byreference to its constructed value.

(b) Preference for third country sales.Foreign market value based on sales toa third country generally will bepreferred to foreign market value basedon constructed value if adequateinformation is available and can beverifed within the time required.

1 353.S Fireign market value bas" onsWes to a third coum".

(a) rn general Where basedon salest to a third country. foreign market valueshall be determined by dhe price. at thetime of exportation of the merchandiseunder investigation, at which such orsimilarmerchandise is sold or offeredfor sale to countries ocher than theUnited States, plus. when not includedin such price. the cost of all containersand coverings and all other costscharges. and expenses incident toplacing the merchandise in conditionpackedxadya.for shipment to tke UnitedStates. recent that in the case ofmerchandise purchased or agreed to bepurchased by the person by whom or forwhose account Lhe merchandise isimported. prior to the time ofimportation. the foreign market valueshall be ascertained as of the date ofsuch purchase or aqmement to purchase.

(b) Restricted scies. When thirdcountry sales form the basis ofcomparison to United States price. theymay be used for this purpose whether ornot they are restricted. providedhowever. that appropriate adjustment ofthe third country price will be made forsuch restrictions that affect the value oithe merchandise to the purchaser.

c) The third country selected For sucpurpose will generally be that singlecountry meeting, in order of preerenc.

_ the following criteria: (1) the productexported to such country has a greater

- degeof similarity to the productexported to the United States than doesthe product exported to other countries.provided the volume of sales to suchcountry ts deemed adequate: (2) thevolume of sales to such country is thelargest sales volume to any countryoutside the home market or the UnitedStates: and (3) the market in suchcountry is. in terms of organization and

development, most lUke the UnitedStates market.

(d) If sales to a single country selectedunder paragraph (c) of this section donot provide an adequate sample. salesto additional countries selected usingsuch criteria may be aggregated.§ 3.53 Foreign market vatue determinedby coznsuctad value

(a) Method of determining constructedvalue. Where based on constructedvalue. foreign market value shall bedetermined. from the best availableinformation, by adding-

(1) The cost of materials (exclusive orany internal tax applicable in thecountry of exportation directly to suchmaterials or their disposition. butremitted or refunded upon theexportation of the article in theproduction oi which such materials areused) and of fabrication or otherprocessing of any kind employed inproducing such or similar merchandise.at a time preceding the date ofexportation of the merchandise underconsideration. which would ordinarilypermit the production of that particularmerchandise in the ordinary course ofbusiness:

(Z) An. amount for general expensesand profit equal to that usually reflectedin sales. of merchandise of the samegeneral class or kind as tho merchandiseunder consideration which are made byproducers in the country of exportation.in the usual wholesale quantities and inthe ordinary course of trade. except thatthe amount for general expenses shallnot be less than 10 percent of the cost asdefined in paragraph (a)(1) of thissection and the amount for profit shallnot be less than 8 percent of the sum ofsuch general expenses and cost and

(3) The cost of all containers andcoverings of whatever nature. and allother exenses incidental to placing themerchandise under consideration incondition packed ready for shipment tothe United States.

(b) Transacctions with relatedparties.Direct or indirect transactions betweenrelated parties (as defined in section773(e)(3) of the Act) may be disregarded.if in the case of any element of valuerequired to be considered pursuant toparagraphs (a)(1). (a)(Z). and (a)(3) ofthis section. the amount representingthat element does not famrly reflect -theamount usually reflected in sales in themarket under consideration of themerchandise subject of theinvestigation. Lf a transaction isdisregarded under the precedingsentence and there are no othertransactions available for consideration.the determination of the amount -

required to be considered shall be based

ADP/1/Add. 3

on the best evidence available as towhat the amount would have been if thetransaction had occurred between non-related parties.§ 353.7 Foreign market value where salesare made at less than the cost ofproduction.

(a) Method for determining whethersales are at less than cost. Wheneverthe Secretary has reasonable grounds tobelieve or suspect that the price atwhich such or similar merchandise issold for consumption in the country ofexportation as determined under § 353.3.or as appropriate, the price at whichsuch or similar merchandise is sold forexportation to countries other than theUnited States as determined under§ 353.5. or the price at which such orsimilar merchandise is sold by facilitiesoutside the country of exportation by arelated company as determined under§ 353.9. represents a price which is. lessthan the cost of producing themerchandise. the Secretary shalldisregard such sales in thedetermination or foreign mark-et value ifsuch sales:

(1) Have been made over an extendedperiod and in substantial quantities, and

(2) Are not at prices which permitrecovery of all costs within a reasonableperiod in the normal course of trade

(b) Use of constructed value whereabove cost soles are inadequateWhenever sales are disregarded byvirtue of having been made at less thanthe cost of production. and theremaining sales in the home market or.as appropriate. to third countries or byfacilities outside the country ofexportation by a related company, madeat not less than the cost of production.are determined to be inadequate as a.basis for the determination-of foreignmarket value. the Secretary shalldetermine foreign market value on thebasis of the constructed value asdetermined under 533.8. The cost ofproduction will be computed on thebasis of the best available informationof costs of materials. labor and generalexpenses, excluding profit. incurred inproducing such or sima merchandise.§ 353.8 Foreign market value ofmerchandise from state-controllod.economy countries -

. . ..._ .

(a) In general. If, on the basis of theinformation available. it is determinedthat the economy of the country fromwhich the merchandise is exported isstate-controlled to an extent that salesor offers of sales of such or similarmerchandise in that country or tocountries other than the United Statesdo not permit a determination of foreignmarket value under §353.3, 353.5, or

333.9. foreign market value shall bedetermined on the basis of the normalcosts. expenses, and profits as reflectedin order of preference by either:

(1) The, prices. determined inaccordance with § 353.3 or 353.5. atwhich similar merchandise produced ina non-state-controlled-economy countryor countries is sold either: (i) forconsumption in the home market of thatcountry or countries. or (ii) to othercountries, including the United States; or

(2) The constructed value of such orsimilar merchandise in a non-state-controlled-economy country, determinedin accordance with § 353.8.

(b) Comparqbility of economies. (1)The prices as determined underparagraph (a)(1), or the constructedvalue as determined under paragraph(a)(2), shall be determined. to the extentpossible. from the prices or costs in anon-state-controlled-economy countryor countries at a stage of economicdevelopment comparable to the state-.controlled-economy country from whichthe merchandise is exported.Comparability of economic developmentshall be determined from generallyrecognized criteria, including per capitagross national product andinfrastructure development (particularlyin the industry producing such or similarmerchandise).

(2) If no non-state-controlled-economycountry of comparable economicdevelopment can be identified, then theprices or constructed value asdetermined from another non-state-controlled-economy country or countriesother than the United States shall beused, suitably adjusted for knowndifferences in the costs of material andlabor.

(3) If neither paragraph (b)(1) nor(b)(2) provides an adequate basis fordetermining the price or constructedvalue of such or similar merchandise.then the prices or constructed value, asdetermined from the sales or productionof such or similar merchandise in theUnited States. shall be used.

(c) Use of construced value. If such orsimilar merchandise is not produced En anon-state-controlled-economy countrywhich is concluded to be comparable interms of economic development to thestate-controlled-economy country fromwhich the merchandise is exported, theconstructed value of such or similarmerchandise maz be determined fromthe costs of specific objectivecomponents or factors of productionincurred in producing the merchandiseIn question., including, but not limited to.hours of labor required. quantities ofraw materials employed. and amountsof energy consumed. if such informationis obtained from the producer of the

merchandise in the state-controlled-economy country under investigation.and verification of such information inthe state-controlled-economy country isconcluded to the satisfaction of theSecretary. Such components or factorsshall be valued and such values verifiedin a non-state-controlled-economycountry determined to be reasonablycomparable in economic development tothe state-controlled-economy countryunder investigation. To the values thusobtained. there shall be added anamount for general expenses and profit.as required by section 773(e)(1)(B) of theAct, and the cost of ad containers andcoverings and other expenses. asrequired by section 773(e)(1)(C) of theAct-§ 3539 Foreign market value based onsales in a third country by a relatedcampany.The determination of foreign market

value of merchandise sold by thosemultinational corporations described insection 773(d) of the Act shall be madein accordance with provisions of thatsection.§ 353.10 Oefnitlon of "United Statesprim."

(a) In general. For purposes of thispart. the term "United States price"means the purchase price or theexporter's sales price of themerchandise under investigation, asappropriate.

(b) Purchase price. "Purchase price"means the price at which themerchandise under investigation ispurchased or agreed to be purchased,prior to the date oi importation, from themanufacturer or producer of themerchandise for exportation to theUnited States. Appropriate adjustmentsfor costs and expenses under paragraph(d) of this section shall be made if theyare not reflected in the price paid by theperson by whom. or for whose account,the merchandise is imported .Whenever purchase price is used andthere is reason to believe that the priceto the person by whom or for whoseaccount the merchandise is importeddoes not reflect the costs and expensesincident to bringing the merchandisefrom the country of exportation. thenappropriate adjustments for such costsand expenses shall be made under -paragraph (d) of this section.

(c} Exporter's sales price. "Exporter'ssales price" means the price at whichmerchandise under investigation is soldor agreed to be sold in the United States.before or after-the time of importation.by or for the account of the exporter. asadjusted under paragraphs (d) and (e) ofthis section. .

ADP/1/Add. 3

(d) Adjustrments to purchase price andeIporter s sales price. Purchase priceand exporter's sales price shall beadjusted by being-

(1) Increased by-(i) When not included in such price.

the cost of all containers and coveringsand all other costs. charges, andexpenses incident to placing themarcnandise in condition packed readyfor shipment to the United States:

Cii) The amount of any import dutiesimposed by the county of exportationwhich have been rebated, or which havenot been collected, by reason of theexportation of the merchandise to theUnited States:

(iii) The amount of any taxes imposedin the count-y of exportation directly'upon the exported merchandise orcompoents.thereaf. which have beenrebated, or which have not beencollected. bv reason of the exportationof the merchandise to the United Statembut only to the extent that such taxesare added to or included in the ornce ofsuch or similar merchandise when soldi.e country of exportation: and(iv) The amount ot any counter-tailing

duty imposed on the merchandise tooffset an export subsidy: and

(2) Reduced by-(i) Except as provided in pararaoh

(d)(1)(iv)this sectionthe am=ur.if any.included in such price. attributable toany additional costs. charges. andexpenses. and United States importduties. incident to bninisg themerchandise 8rom the place of shipmentin the country of exportation to theplace of delivery in the United States:and

(ii) The amournt. if included in suchprice. of any export tax. duty. or othercharge imposed by the-country ofexportation on the exportation of themerchandise to the United States otherthan an export tax, duty. or other chargedescribed in section 77t(6)':Cl of the Act.

(e) Additional adjustments toe-yportfrs sales pric& For purposes ofthis section. the exporter's sales priceshall also be adjusted by being reducedby the amount. if any. of-

(1) Commissions for sailing in theUnited States the particularmerchandise under consideration.

(2) Expenses generally incurred by orfor the account of the exporter in theUnited States in selling identical orsubstantially identical merchandise, andattributable under generally acceptedaccounting principles to the particularmerchandise under consideration: and

(3) Any increased value resulting froma process of manufacture or assemblyperformed on the imported merchandiseafter the importation of the merchandiseand before its sale to a person who is

-ot the exporter of the merchandise.which value generally will bedetermined from the costs of materiallabor and other expenses incurred insuch manufacture or assembly.& 353.11Defnitions of antidumping duty' Proceedng,"'Investigation,'"Determination and "Order."

(a) A "proceeding" refers to that timefrom the fillngof a petition (orpublication of a notice of self-indiationunder section 732(a) of the Act) until thepublication of the earliest of (1) a noticeof termination. (2) a negativedetermination that has the effect ofterminating the administrativeproceedings: or (31 a notice of revocationof an Order.

(b) An "investigation" refers to thattime between the publication of a noticeof initiation and the publication of theearliest of (1) a notice of termination, (2)a negative determination that has theeffect of terminating the administrativeproceedings: or (3) an Order.

(c) A "determination" is an oficadecision in the co-ure ni a proceeding,

(d) An "Order' is a rnotice issuedfollowing rinal determinations of salesat less than fair value and injury, whichprovides for the imposition ofaatidcumping duties.§ 353.12 0t. definite

(a) Country Country means aforeign country. a political subdivision,dependent territory, or possession of aforeign country.

(b) Lndustr4. "Industry" means thedomestic producers as a whole of a likeproduct. or those produce whosecollective output of the like productconstitutes a major proportion of thetotal domestic production of thatproduct as provided in section 7771(4) ofthe Act An "industry" may also includedomestic producers in a particularmarket in the United States where such.producers sell all or almost all of theirproduction of the like product inquestion in that market and where thedemand for tte like product in thatmarket is nat supplied to any substantialdegree by producers of the productlocated elsewhere in ths United States.

(c) interested party. 'Interseted party.means-

(1) A foreign manufacturer. producer,or exporter. or the United Statesimporter. of merchandise which is thesubject of an investigation under thispart or a trade or business association amajority of the members of which areimporters of such merchandise

(2) The government of a country inwhich such merchandise is produced ormanuiactured:

(3) A manufacturer. producer. orwholesaler in the United States oi a likeproduct:

(4) A certified union or recognizedunion or group of worker which isrepresentative of an industry engaged inthe Manufacture, production, orwholesale in the United States of a likeproduct: or

(5) A trade or business association, amajority oi whose membersmanufacture. produce. or wholesale alike product in the United States.

(d) Person "Person" includes all'Interested parties" as well as otherindividuals. enterprises or entities, asappropriate to the context

(e) Secretary. "Secretary" means theSecretary of Commerce or his designee.

(f) Cammission. "Commission' meansthe U.S. International TradeCommiSsion.

(3) Customs Service. "CastomsService" means the United StatesCustoms Service of the TreasuryDepartment.

(h) Deparment. "Department" meansthe Department of Commerce.

(i) Party to the proceeding. "Party tothe proceeding" means (1) the petitioner:(2) the government of the county inwhich the merchandise subject to theinvestigation is manufacnraed orproduced or from which it is e.xcrted:(:) foreign manuiacrers, producers ande.morte-'s of the merchandise subject tothe investigation: and (4) any otherinterested party. within the meaning ofparagraph (cJ of this section whoinforms the Secretary in writing of hisintent to become a party to theproceeding within Z0 days after thepreliminary determination or whodemonstrates to the satisfactioon of theSecretary good cause for intervention

(jJ Act "Act" mens the Tariff Act of193 as amended.f 13 Determination ot foreign marketvalue.

En dateiring foreign market value.the criteria in § 353L4 through 3S3-2shall apply. The person who allegesentitlement to any adjustment pursuantto && 353.14 through 3534;9 mustestablish entitlement thereto to the ...

satisfaction oi the Seetary.9 314 Differances in quantincs In quantties.

(a) In general. In comparing theUnited States rice with such applicablecriteria as sales or offers on which adetermination of foreign market value Lsto be based, comparisons normally willbe made on sales of comparablequantities of the merchandise underconsideration. Further. reasonableallowances will be made for differencesin quantities, to the extent that it is

ADP/1/Add. 3

established to the satisfaction of theSecretary that the amount of any pricedifferential is wholly or partly due tosuch differences in the quantities sold.In determining allowances fordifferences in quantity, considerationwill be given, among other things. to thepractice of the industry in the country ofexportation with respect to affording inthe home market (or third countrymarkets where sales to third countriesare the basis for comparison) discount-3for quantity sales which are available tothose who purchase in the ordinarycourse of trade.

(b) Criteia for allowancesAllowances for price discounts based onquantitative differences in salesordinarily will not be made unless:

(1) Six month rule. The exporterduring the period covered by theantidumping investigation asestablished under § 353.38 (or duringsuch other period as investigation showsis more representative) had beengranting quantity discounts of at leastthe same magnitude with respect to 20percent or more of such or similarmerchandise sold in the home market(or in third country markets when salesto third countries are the basis forcomparison) in the ordinary course oftrade: or

(2) Cost justification. The exporter candemonstrate that the discounts arewarranted on the basis of savings whichare specifically attributable to theproduction of the different quantitiesinvolved.

(3) Use in determining foreign marketvalue. If the exporter satisfies theconditions in paragraph (b) of thissection the price of such or similarmerchandise sold at a discount in thehome market (or in third countrymarkets when third countries are thebasis for comparison) will ordinarily bewed as the basis for determining theforeign market value of merchandise forcomparison with comparable quantitiessold in the United States. If the exporterdoes not satisfy the conditions inparagraph (b) of this section. any salesof sudh or similar merchandise in thehome market (or in third countrymarkets when third countries are thebasis for comparison) which are made ata discount will be used in calculating aweighted average in accordance with§ 353.20.

(c) Price lists. In determining whethera discount has been given. the existenceof a published price list reflecting such adiscount will not be controlling. A pricelist ordinarily will be accepted only if. inthe line of trade and market underconsideration, the exporterdemonstrates that it has adhered to itsprice list.

§ 353.15 Dffernces In circumstances of

(a) In general. In comparing theUnited States price with the sales, orother criteria applicable, on which adetermination of foreign market value isto be based, reasonable allowances willbe made for bona fide differences in thecircumstances of the sales compared tothe extent that it is established to thesatisfaction of the Secretary that theamount of any price differential iswholly or partly due to such differences.Differences in circumstances of sale forwhich such allowances will be made arelimited, in general, to thosecircumstances which bear a directrelationship to the sales which are underconsideration.

(b) Examples. Examples of differencesin circumstances of sale for whichreasonable allowances generally will bemade are those involving differences incredit terms guarantees. warranties.technical assistance, servicing. andassumption by a seller of a purchaser'sadvertising or other selling costs.Reasonable allowances also generallywill be made for differences incommissions. Allowances generally willnot be made for differences inadvertising and other selling costs of aseller, unless such costs are attributableto a later sale of the merchandise by apurchaser.

(c) Special rule. Notwithstanding thecriteria for adjustments for differencesin circumstances of sale set forth inparagraphs (a) and (b) of this section.reasonable allowances for other sellingexpenses generally will be made incases where a reasonable allowance ismade for commissions in one of themarkets under consideration and nocommission is paid in the other marketunder consideration, the amount of suchallowance being limited to the actualother selling expenses incurred in theone market, or the total amount of thecommission allowed in such othermarket, whichever is less. In makingcomparisons using exporter's salesprice, reasonable allowance will bemade for all actual selling expensesincurred in the home market up to theamount of the selling expenses incurredin the United States market.

(d) Determination of allowances. Indetermining the amount of thereasonable allowances for anydifferences in circumstances of sale. theSecretary will be guided primarily bythe cost of such differences to the seller.but, where appropriate, he may alsoconsider the effect of such differencesupon the market value of themerchandise.

§ 353. 16 Dltference In physicalcharacterstics,

In comparing the United States pricewith the selling price in the homemarket, or for exportation to countriesother than the United States in the caseof similar merchandise. due allowanceshall be made for differences in thephysical characteristics of themerchandise in the markets beingcompared. In this regard. the Secretarywill be guided primarily by thedifferences in cost of production. to theextent that it is established to hissatisfaction that the amount of any pricedifferential is wholly or partly due tosuch differences. but, when appropriate.the effect of such differences upon themarket value of the merchandise mayalso be considered. In the case ofmerchandise which does not lend itselfto comparison with other merchandisefor the purpose of this section. anymethod reasonably calculated to reflectthe impact on cost or value of anydifferences in the merchandise underconsideration may be used. Differencesin costs of producing merchandise withidentical physical characteristics as endproducts will not be consideredappropriate adjustments.§35317 Offeringprice-

In determining foreign market value,offers generally will be considered onlyin the absence of sales. An offer the*acceptance of which is not reasonablyexpected shall not be deemed an offer.§ 353.18 Fictitious sales.In determining foreign market value.

no pretended sale or offer for sale, andno sale or offer for sale intended toestablish a fictitious market will betaken into account.§ 3 19 Level of trade.The comparison of the United States

price with the applicable price in themarket of the country of exportation (or,as the case may be. the price to or inthird country markets) generally will bemade at the same commercial level oftrade. However. if it is found that thesales of the merchandise to the UnitedStates or in the applicable foreignmarket at the same commercial level oftrade are insufficient in number topermit an adequate comparison, thecomparison will be made at the nearestcomparable commercial level of tradeand appropriate adjustments will bemade for differences affecting pricecomparability.§ 3S3.20 Sales at varying prices

(a) Where the prices of the saleswhich are being examined for adetermination of foreign market value

ADP/1/Add. 3

.vary (after allowances provided for in&& 35134. 3.15. 353.1a, and 353.19). thedetermination of foreign market valuenormally will be based upon theweighted average of the sales prices ofall merchandise used to determineforeign market value: provided thatwhere sales are made at different levelsof trade, the calculation of foreignmarket value, in accordance with& 35319. will be on the basis of sales

made at the same or nearest comparablelevel of trade as those at which the salesin question to the United States aremade.

(b) If not less than so percent of ailsales in the home market (or to thirdcuntries if appropriate) during theperiod of investigation were made at thesame price, weighted averages of allsales will not be used and foreignmarket value will be based upon the

sales at that rnce.(c) If the provisions of paragraph (bl

of this section do not apply andweighted averages of the prices aredetermined to be inappropriate. theSecretary will use any other method fordetermining value which he deemsappropriate.

(d) No sales regarded pursuant to1 3537 shall be used for purposes of thissection.3531 Shipmentsfromintermediatet trem itm

If the merchandise which is thesubject of the investigation is notimported directly from the country oforin but is merely transshippedthrough the country of shipment. theprice at which such or similarmerchandise is sold in the country oforigin will be used in the determinationof foreign market value.! ctions Tretaeensaulatee bw reftwdPMM

(a) Sales agencies. I such or similarrchansedim s sold or. in the absence of

sales. offered for sale through a salesagency or other organization related tothe seller in any of the respectsdescribed in section 771(13) of the Act.the price at which such or similarmerchandise is sold or. L the absence ofsals offered for sale by such salesagency or other organization may beused in the determination of foreignmarket value.

(b) Sales to related persons If such orsimilar merchandise is sold, or in theabsence of sales, offered for sale in thehome maricat or. as appropriate. to third

* countries, to a person related to theseller of the merchandise in any of therespect. described in section M('13) ofthe Act. the price at which such orsimilar merchandise is sold or. in the

absence of sales. offered for sale to suchperson ordinarily will aot be used La thedetermination of forein market valueunless such sales are demonstrated tothe satisfaction of the Secretary to be atprices comparable to those at whichsuch or similar merchandise is sold topersons unrelated to the seller.* 353 Olargaring InignMtnsadsusunonts; us. at averaging or samlipingthecniquse.,

(a) Insignifcant adjustments. Indetermining the adjustments to be madeto foreign market value pursuant to§§ 353.14 to 353.22. adjustments whichare insignificant in relation to the priceor value of the affected tra actionsmay be disregarded. Ordinarily.individual adjustments having an advaorem effect of less than 0.33 percentor any group of adjustments having anad valorem effect of less than 1.0percent will be disregarded. Forpurposes of this section. the groups ofadjustments consist of differences inthe quantities sold, dferencas incircumstances of sale. differences in thephysical characteristics of themerchandise. and differences in thelevels of trade in the markets beingcompared. However. even when anyadjustment or group o adjustments maybe disregarded uder this section. suchadjustment or group of adjustments slhalnot be disregarded if it is determinedthat such disregarding wouldsignificantly affect the results of thecalculation

(b) A verrsling or salmpingecthniques.The Secretary may use averaging orgenerally recognized samplingtechniques in determining foreignmarket value in any proceeding in whicheither a significant volume of sales isinvolved or a significant number ofadjustments to prices is required.*35314[ Eesrvee]d)Subpart B-Access to Inrfomiaton

1353.2iformation generally available.(farmutlon genray avsdatie.(a) Duty to maintain material in

record The Department shall maintainoceedings.the official record of all pjceedingsThe ec-: : . . . ;; c a copy of alinformation presented to or obtained bythe Secretary during the course of theproceeding, including all governmentalmemoranda pertaining to theprocae&meoranda of ax portemeetings all determinations and noticesthereof published in the FederalRegister. and all transcripts or recordsof conferences or hearings. (See section51BA(b)(2) of the Act.) The record willcontain three types of materals;

(1) Materials protected fromdisclosure:

(2) Non-confidential materialsubmitted by any person other than anemployee or officer of the United StatesGovernment and

(3) Non-confidential and non-privileged material submitted ordeveloped by an employee or officer ofthe United States Government.

(b) Examination and copying ofinformation. In general, all informationin 3bparagraphs (2) and (3) of therecord described in paragraph (a) willbe available for inspection or copying atthe Department by any peron duringbusiness hour With respect todocuments prepared by an officer oremployee of the United StatesGovernment. factual matters. asdistinguished from advice.recommendations. opinions andevaluations. contained in any suchdocuments will be made available bysummary or otherwise on the samebasis as information contained in -documents submitted by other persons.The fees charged for providing copies ofdocuments shall be the same as forproviding copies of documents pursuantto requests made under the Freedom ofinformation Act (5 U.S.C. 532. (See 15C=R 4.9.)

(cI Reports ofprogress ofinvestigation. The Department hall.from time to time upon request informany party to the proceeding of theprogress of an Davestigation. Ordinarily.no such report shall be provided until d0days after the petition is fled. Suchprogress reports shall not containprivileged or confidential informationand. if in written form. shall be includedin the. official record.

(d) Protection of the ecord Unlessotherwise ordered in a particular caseby the Secretary, the record shall not beremoved from the Department. Acertified copy of such record shall bemade available to any court beforewhich any aspect of a proceeding isunder review, with appropriatesafeguards to prevent disclosure ofconfidential or privileged x-formationthat may be included therein.§ 25 Ex part. meetinA written memorandum will be

prepared of any ex part meetingbetween (a) any interested party orother person providing factualinformation relating to a determinationin the proceeding and (b) the person towhom the authority to makedeterminations under the Act has beendelegated (the Assistant Secretary forTrade Administration) or the personmaking a final recommendation for _decision to-such person (the DeputyAssistant Secretary for ImportAdministration). Such memorandum

ADP/1/Add. 3. Page 3.7

shall be prepared as expeditiously aspossible. It shall be included in theofficial record. The memorandum ofsuch ex part meeting shall include thedate. time and place of the meeting, theidentity of all persons present. and anon-confidential summary of the mattersdiscussed or then submitted. Normallythis memorandum shall be prepared byone of the Government participants atthe meeting. If the Assistant Secretaryor Deputy Assistant Secretary directsthat the memorandum be prepared by anon-government participant. theAssistant Secretary or Deputy AssistantSecretary (whichever directspreparation by a non-governmentparticipant) shall act expeditiously toapprove and include in the record suchmemorandum.§ 353.27 Confidentislity mantainedExcept as provided in I 3S3.30

information submitted to theDepartment which is designated asconfidential by the person submitting itshall not be disclosed to any person(other than an officer er employee of theUnited States Government who isdirectly concerned with carrying out theinvestigation in connection with whichthe information is submitted) withoutthe consent of the person submitting it(§ 353.28(e) sets forth the proceduresfollowed where a request forconfidential treatment is denied. in

whole or in part.)353,2 Requests for confident

tatment of Inlormation.(a) Submission and contents of

requests. Any person who submitsinformation in connection with aproceeding may request that fnichinformation, or any specified partthereof be treated as confidential Anyinformation submitted which is notdesignated as confidential by the personsubmitting it normally shall. not betreated a: confidential. informationwhich is subject to a request forconfidential treatment shall be set forthon separate pages and each such pageshall be clearly marked "ConfidentialTreatment Requested." Each separaterequest for confidential treatment ofinformation, other than informationsubmitted in confidence by a foreign

- government which is restricted from.disclosure pursuant to statute orExcutive Order. shall be accompaniedby a full statement of the reason orreasons why the submitting partybelieVe3ithat each piece of informationsubject to such request is entitled toconfidential treatment within the

guidelines set forth in § 35329. Allrequests for confidential treatment shallbe accompanied by one oi the following:

(1) A summary or approximatedpresentation of all information whichmay be disclosed to the public andwhich is sufficiently full and descriptiveoi the confidential information(generally, data in numerical formrelating to prices and costs of individualfirms shall be considered adequatelysummarized-and not incapable ofsummary-if presented-or capable ofbeing presented-in terms of indices orin figures within 10 percent of the actualfigure);

(2) A statement by the personsubmitting the information that theinformation is not susceptible to such asummary or presentation, accompaniedby a full.statement of the reasonssupp-rting this conclusion: or

(3) An agreement to permit disclosureunder protective order. accompanied bya brief non-confidential statementdescribing the confidential datasubmitted, which need not be asdetailed as the summary provided underparagraph (a)(1) of this section. Shouldthe information concerned not bereleased under an administrativeprotective order, the person submittingthe information must, unless he requeststhat the information be returned and notconsidered in the proceeding, submiteither a summary or approximatedpresentation conforming to paragraph(a)(1) of this section or a statementunder paragraph (a)(Z) of this sectionwithin the time period specified In thedenial of the request for anadministrative protective order. Therequirements of the preceding sentencedo not apply where the Secretary,because of unusual circumstances.determines that a less detailednonconfidential summary is appropriate.In such unusual circumstances such lessdetailed summary as deemedappropriate by the Secretary must besubmitted.

(b) Retun of information as a resultofnon-conforming requests. Anyinformation for which confidentialtreatment is requested which does notconfornm to the requirements ofparagraph (a) of this section (includingthe requirement that any summary orapproximated presentation besufficiently full and descriptive) may. bereturned to the submitting person.together with an explanation of thereasons it is non-conforming. and willnot be considered in connection with theproceeding. Information so returned maybe resubmitted with a new request forconfidential treatment which complieswith the requirements of this section.and will be dealt with in the samemanner as an original submission ofinformation accompanied by a request.

in acceptable form. if received withinthe time for the original submission.Belated submissions may be rejected.

(c) Consideration of requests. While adetermination as to whether to grant arequest for confidential treatment ispending. the information for whichconfidential treatment is requested shallbe treated as confidential by theDepartment. A determination normallyshall be made within 10 business daysafter the receipt of informationaccompanied by a conforming requestfor confidential Lreatment, whether, and.if so. to what extent. the request forconfidential treatment shall be grantedand whether claims submitted underparagraph (a)(2) of this section arejustified.

(d) Treatment of information whererequest for confidential treatment isgranted (1) If a request for confidentialtreatment of information is granted. theinformation covered thereby will not bemade available, except pursuant to§ 353.30. for inspection or copying:

(i] By any person other than an officeror employee of the United States .

Government directly involved withcarrying out the investigation inconnection with which the informationis submitted. or

(ii) By a person who has beenspecifically authorized to receive suchinformation by the person who requeststhe confidential treatment

(2) Information for which confidentialtreatment is granted shall be made -available to officers and employees ofthe Commission only upon confirmationthat the confidentiality of suchinformation will be maintained and thatit will not be disclosed, either publiclyor under an administrative protectiveorder. without the express writtenconsent of the Secretary.

(3) Information submitted inconfidence by a foreign governmentshall be made available only to theextent, and under the procedures.provided in Executive Order 12085 ofJune 21.978 (43 FR 2849), or anysuperseding or amending Order.

(e) Treatment ofinformation whererequest for confidential treatment isdenied Should it be determined that anypart of the material for whichconfidential treatment has beenrequested (1) does not warrantconfidential treatment in whole or in,part. (2) is in a form which cannotreasonably be associated with, orotherwise used to identify, theoperations of a particular person andthus should not be treated asconfidential, or (3) that information -

claimed not susceptible to a non-confidential summary is in fact capableof such treatment. the Department shall

A.DP/1/Add. 3Page 30

notify the person who submitted theinformation. Unless the personsubmitting the information thereafteragrees that the information (includingany summarized or approximatedpresentation thereon may be treated asnon-confidential information, orprovides a summary of matters found tobe capable of such treatment. suchinformation (including any summarizedor approximated presentation thereofshall be reed to the submittingperson and not considered in theproceeding.& 3529 Standards for determiningltdandattyat Inlontaon.(a) In general. Information ordinarily

wiLl be considered to be privileged orconfidential only if it.s disclosure wouldbe Ulkeiy:

(1S To cause substantial harm to thecompetitive position of the personsubmitting the information:

(2) To have a substantial adverseeffect upon the person supplying theinformation or upon the person fromwhom the information was obtained: or

(3) To impair the ability of the UnitedStates Government to obtain in thefuture necessary informatio. notrequired by law to be provided. from thesame person or others similarly situated.

(b Irormwtion ardminry regarded as* 'wpr-ora for dclosure Except an

prophvided in paragran (c) of this sectioninformation ordinarily will be regardedas appropriate for disclosure if it relatesto:

(1) Pnca market condition terms ofsale or similar information that iupublished or otherwise available to thepublic

(21 Laws. regulations Executive* Ordes or other official documents

ed inthecountrybywhich are pubfishA in the country bywhich adopted. as well as traiationsthereot r

(3) Information submitted by thepetitioner or other domestic interestedparty concerning the operations of aforeign interested parry. except to theextent that it might disclose the identityof confidential Source

(c) Informadon ordinarily regarded csAdvileged or confidendL Informationordinarily will be regarded as privilegedor confidential if it would disclose:

(1) Business or tade secrets;(21 Production costs

- (3) Distribution costs:(4) Pricas of actual transactions or

offers(5) The names of particular customers

or suppliers: or(a) The names of particular persons

!rom whom confidential informationwas obtained. if nondisclosure of the

names has been requested andapproved by the Secretary.nf 3.0 wtn dhscw f cortaerancoMfdent Intlnimon under anadministrative protective ader.

(a) LageneraL (1) Any confidentialinformation (other than informationsubmitted in confidence by a foreigngovernment which is restri:ted fromdisclosure pursuant to statute orExecutive Order), including someor allof the information described inI 353-2S(c)l may be made available to anattorney or other representative undsr aprotective order as described inparagraph (b) of this section. Forms forsubmitting requests for disclosurepursuant toa a protective orderincorporating the terms of thisregulation will be made available. Theapplication for disclosure pursuant toprotective order filed by an attorney orother representative of a parry to theproceeding must:

(i) Describe with particularity theinformation requested and set forth thereasons for the request

(Ui) Indicate the procedures to befollowed to avoid unauthorizeddisclosure of the information requested:and

(ii) Demonstrate good c cause forrelease oi such information.

(2) Upon receipt oi an application fordisclosure of condental informationunder a protective order. the Secretarywill inform the person from whom theinformation was oobained of the requestand provide an opportunity for suchperson to comment theron.

(3) La determining whether to releaseinformation under a protective order. theSecretary shall weigh whether the needof the person requesting the informationoutweighs the need of the personsubmitting it for continued confidentialtreatment.cunt also shail be takenof the probable effectiveness of the -

sanctions described under paragraph (e)of this section. or other sanctions asmay be prescribed for breach of theorder. Generally. disclosure under aprotective order will be made only toattovey who are subject-to disbarment-from practice in the event of a violationof the order.

(4) Should it be determined to releaseinformation under a protective order, theperson submitting the information willbe so notified If the person submittingthe information does not agree to therelease of the information underprotective order. such information shallbe returned to the Submitting person andnot considered in the proceeding.

(b) Protective order. The protectiveorder under which information is madeavailable to the attorney or other

representative of a party to theproceeding shall require that attorney or.representative to submit a personalsworn statement that he will

(14 Not divulge any of the informationso obtained and not otherwise availableto him to any other person other than

(il Personnel of agencies of the UnitedStates Government directly responsiblefor conducting the proceeding inquestion who are involved in suchproceeding;

(ii) The person from, whom theinformation was obtained:

(iii An attorney in good standingemployed on behalf of the partyrequesting the disclosure who has

sro-4.rc .siwrate3statement or

(iv) Those persos other thanattorneys employed by or supervised bythe attorney or representative (but in nocase including officers. partners.associates and employees of the partyrepresented or any other domesticcompetitor of the foreign firm whoseinformation is involved) having a needtherefore in annection with preparingoral or written statements in theproceeding. who shall have furnished asimilar statement

(2) Use such information solely for thepurposes of the proceeding then !nprogrscsu with an perso

(31 Not hula th any pers ocerthan a person described in paragraph(b)(1)(i) or (Ui of this s3ecton concerningsuch confidential information withoutobtaining the approval of theDepartment and the party (or theattorney for the party) from whom suchconfdential information was obtained:

(41 Take adequate precautions toensure the security of the confidentialmaterials and the information containedtherein subject to the protective order:and

(a) Promptly report any breach of suchagreement to the Secretary.

(c) AcAnowledgement ofsancdins forbreach ofproecwv order. The swornstatement referred to in paragraph (bl ofthis section shall include anacknowledgement by the personproviding it that breach threat

(14 May subject the following personsto disbarment frame practice before anyconstituent agency of the Departmentfor up to seven yeas followingpublication of a determination that theorder has been breached:

(i) The person submitting thestatement:

(ii) Any firm of wbch'sch person is apartner. associate, or employee: and

(iii) Such person's partners.associates. employer and employees:

(2) ShalL in the case of an attorney,lead to referral of such breach to the

ADP/1/Add. 3

ethics panel of the appropriate barassociations; and

(3) Shall subject the offender and theparty he represents to such otheradministrative sanctions determined tobe appropriate. including striking fromthe record any information or briefssubmitted by, or on behalf of, the partyrepresented by the offender. terminatingany investigation then in progress. orrevoking any Order then in effect.

(d) Final disposition ofmaterialsreleased under protective order. Uponcompletion of a proceeding, or a, suchearlier date as may be determinedappropriate for particular data. thesecurity of confidential information shallbe protected by requiring each attorneyor other representative to return allcopies of materials released to thempursuant to this section and all othermaterials containing-the confidentialinformation (such as notes or chartsbased on any such information receivedunder protective order). accompanied b3a certificate from the attorney orrepresentative to whom the materialwas delivered or disclosed and eachperson specified in paragraph (b)(1)(iil)or (iv) of this section, attesting to hispersonal. good faith effort to determinethat no other copies of such materialshave been made available to or retainedby the party he represents or any other-person to whom disclosure was notspecifically authorized.

(e) Sanctions for breach ofprotectiveorder. (1) The Secretary shall determinewhether any person has violated aprotective order. and. as a sanction.may:

(i) Bar any such person and any firmof which such person is a partner.associate, or employee. or any partner.associate. employer. or empl.oyee ofsuch person, from representing anyother person's interest before anyconstituent agency of the Department inany capacity for a period of up to sevenyears from the date of publication in theFederal Register of a notice that theexistence of a breach has beendetermined to exist:

(ii) In the case of a violation of thissection by an attorney, refer suchbreach to the ethics panel of theappropriate bar associations; and

(iii) Subject the offender and the partyhe represents to such otheradministrative sanctions as aredetermined by the Secretary to beappropriate, including striking from therecord any information or briefssubmitted by, or on behalf of. the partyrepresented by the offender. terminatingany investigation then in progress, orrevoking any Order then in effect.

(2) Any person to whom suchsanctions are proposed to be applied

shall be afforded a reasonableopportunity to be heard before thedetermination is made.§ 353.31 Informarion exempt fromdisclosure.Information which might otherwise be

available under this subpart shall beI exempt from disclosure if it relates toany matter which is required to be keptconfidential pursuant to privilege.statute or Executive Order. Thisincludes information that has beenprovided to the United States inconfidence by a foreign government orinternational organization ofgovernments. Such information currentlyis restricted from disclosure pursuant toExecutive Order No. 12085 of June 28,1978 (43 FR 28949).Subpart C-Antldumping Proceduresand Determinations§ 353.35 Procedure for salf-4nitlatian,

(a) In generaL Whenever theSecretary determines. from informationavailable to him, that an antidumpinginvestigation is warranted into thequestion of whether the antidumpingduty imposed by section 731 of the Actshould be imposed with respect to aparticular class or kind of merchandiseimported-into the United States, heshall. after providing an opportunity forconsultation to the signatory orsignatories to the Agreement onAntidumping which may be affected byany affirmative determination, publishin the Federal Register a "Notice ofInitiation of Antidumping Investigation."The Notice is to include:

(1) A description of the merchandiseinvolved:

(2) The name of the country ofexportation to the United States and. ifthe merchandise is produced in acountry other than that from which it isexported, the name of the country inwhich the merchandise is produced:

(3) A summary of the informationreceived that would, if found to beaccurate, require the imposition ofantidumping duties pursuant to section731 of the Act: and

(4) A statement that the investigationwill be terminated without further noticeupon publication of a notice of apreliminary or final negative injury

-7 determination by the Commission.(b) Information provided to the

Commission. Upon initiation of theinvestigation. the Commission wil benotified promptly and will be providedwith such information as is availablerelating to the matter underinvestigation, including any availableinformation on the amount by which theforeign market value exceeds United

States price and the volume of trade.Information for which confidentialtreatment has been granted by theSecretary shall be made available to theCommission only upon confirmation thatthe confidentiality of such informationwill be maintained and that it will notbe disclosed. either publicly or under anadministrative protective order, withoutthe express written consent of theSecretary.

1 353.36 Procedures for initiation bypetition.

(a) Contents ofpetition. Anyinterested party. as defined insubparagraph (C), (D), or (E) of section/71(9) of the Act, who has reason tobelieve that merchandise imported intothe United States is being, or is likely tobe. sold at less than fair value. byreason of which an industry in theUnited States is being or is likely to bematerially injured or its establishment isbeing materially retarded, may file apetition on behalf of an industrypursuant to section 731 of the Act withthN Secretary, Attention: AssistantSecretary for Trade Administration.Room 38, Department of Commerce.Washington. D.C. 20230, requesting theimposition of additional duties in anamount equal to the amount by whichthe foreign market value exceeds theUnited States price. The petition shallcontain, or be accompanied by,information. to the extent reasonablyavailable to the petitioner, insubstantially the following form:

(1) The name and address of thepetitioner and any other person, firm orassociation the petitioner represents, ifappropriate:

(2) The industry on whose behalf thepetition is filed, including the names ofother enterprises included in suchindustry

(3) A statement indicating whether theapplicant has filed or is filing, forimport relief pursuant to section 21 ofthe Trade Act of 1974 (19 U.S.C. 2251), orhas initiated proceedings pursuant tosection 337 or 702 of the Act (19 U.S.C.1337, 1671a), section 232 of the TradeExpansion Act of 196Z (19 U.S.C. 1862),or section 301 of the Trade Act of 1974(19 U.S.C. 2411) with respect to themerchandise which is the subject of theproceeding:

(4) A detailed description of theimported merchandise in question,including its technical characteristicsand uses, and. where appropriate. itstariff classification under the TariffSchedules of the United States:

(5) The name of the country orcountries from which the merchandise isbeing, or is likely to be, exported to theUnited States and, if the merchandise is

ADP/1/.4dd. 3page 40

produced in a country other than thatfrom which it is exported. the name ofthe country in which it is produced:

(61 The names and addresses of allknown foreign enterprises believed to bgmanufacturing. producing or exportingthe merchandise in question:

(71 All pertinent fact. as to the price alwhich the foreign merchandise is sold oroffered for sale in the United States andin the home market in which producedor from which exported. includinginformation concerning transportationand insurance charges. and ifappropriate. information regarding saLeS3in third countries or the cost ofproducing the merchandise. Petitionersunable to rish information on foreignsales or costs May present informationconcexnin; U.S. domestic producers'costs adjusted for differences in theforeign country in question frominformation publicly available:

(8) If the merchandise is beingexported from a country which isconsidered to be a state-controlled-economy-country, any informationpertaining to the price or prices at whichsuch or similar merchandise of a non-state-controlled-economy-country orcountries, considered to be comparablein terms of economic development to thestate-controiled-economy-counrry, issold for consumption in the homemarket of that country or counties or toother countries (including the UnitedSlatles or the constructed vajue of suchor similar merchandise in a Mon-dtate-controlled-eccnomy country, determinedin accordancewith & 353.8:

(9) Evidence. if any, that sales in thehome market ar being made at a pricewhich represents less than the cost ofproduction of the merchandis. and thecircumstances under which such. :are made

(10) The volume and value of importsof the merchandise fom the country inquestion in the most recent two-yearperiod. and also other periods if hepetitioner believes such other periods tobe more representative. or. if themerchandise is not presently importedinto the United States or is not importedin significant quantities. information asto the likelihood of its importation:

(11) The namesand address ofenterprises believed to be importing themarchise: -

(12) The names and addresses of otherenterprises in the United States engagedin the production. manufacture or sale cilike merchandise. If numerousinformation need not be provided withrespect to any enterprises thataccounted for less than 2 percent ofdomestic production. manufacture orsale of such merchandise during themost recent 12-month period:

(13) Wformation as to the materialinjury or threat thereof to. or thematerial retardation of thee bLishment of a United StatesI industry by reason of the importedmerchandise alleged to be sold at lessthan fair value. as dascribed in 1s CFR207.11 and 2072.8

(14) If "critical circumstances arealleged, information should bepresented-(A) as to a history ofdumping or (B) that the importer knewor should have known the exporter wasselling at los than fair value. and (C)that injury which is difficult to repair iscaused by reason of massive import ina relatively short period: and

(15) Any documentation on whichpetitioner relies in making its petition.Forms for the submission of petitions

may be adopted from time to time. Mheuse of such forms shall not bemandatory, provided the informationrequired thereby and reasonablyavailable to the petitioner is otherwiseincluded in the petition.

(b) TranslationstoEnglish.Unlessnslaeions to agdisi. Unlesssuch requirement is waived in individualcases, any Winormation submitted in thepetition or in support thereof. which is ina foreign language. must beaccompanied by an English translation.

(c) simultaneous filing withC.mmionTohe Petitibner shall file acopy of'the petition with theCom--sn on the same day as thepetition is filed with the Secretary andshall so certify in submitting the petitionto the Secretary.

(dl Cformation.pr,atopm/onfidentiaityof inorati;on.Any petition which contains informationfor which confidential treatment hasbeen requested and which is essential tosupport the petition will not beconsidered to have been received inacceptable form unless the requirementof section 3328(a) are met.

(e) Amendment ofpedtion. Upontimely receipt of additional informationthe Secretary shall allow amendment oithe petition. Any such amendments mustbe filed with the Commision on thesame day as they are dled with theSectpxy.

(f) Frm and lumber of copies. Thepetition and, to the extent feasible, allsupporting information shall besubmitted on letter-size paper. doublespaced. typewritten or printed. in atleast 10 copies

(gJ NVodficaton of affected countersreprsentative. Upon receipt of apetition. a aon-confidential copy with anon-confidential summary ofconfidential data contained in thepetition shall promptly be delivered to arepresentative in Washington. D.C. ofthe affected country or countries inwhich merchandise subject to the

investigation is manufactured orproduced.

(h) Additinal formation 'Concerningrequirements for petitons. Additionalinformation concerning requirements forpetitions may be obtained by contactingthe office of the Assistant Secretary forTrade Administraon. Room 3850.Department of Commerce. Washington.D.C. 2230. (202) 377-2867.§ 35337 OetVrnsltao of suffleency of

(a) Deteminadon Of sufficencyr.Within 20 days after a petition is filedunder I 353.38a a determination shall bemade by the Secretary on the sufficiencyof the petition. A petition is consideredto be filed at the time it is received bythe Secretary.

(b) Notice. If a petition properlyalleges the basis on which antidumpingduties may be imposed under section731 of the Act, contains informationreasonably available to the petitionersupporting the allegations. and is Iedby an interested parry described insubsection (Cl. (C) or (E] of section77'1(9) of the Act an investigation shallbe initiated and a notice of "Initiation ofAntidumping investigation" shall bepublished in the Federal Register. Unlessotherwise stated in the aotice, theinvestigation will relate to all.merchandise of the cass or kind inquestion fcrm the exporting country. The.notice shall contain a description of themerchandise subject to theinvestigation, basedan consultationbetween the Secretary and theCommissioL

(cc LZaswficency ofpetidon. 1I it sdetermined that a petition does notproperty allege the basis on whichantidu=ing dties may be imposedunder section 731 of the Act, does notcontain information deemed reasonablyavailable to the petitioner supporting theallegadtn or is not filed by aninterested party descibed in subsection(C), (DI or (E] of section 771(9) of theAc, the petition shall be dismissed andthe proceeding terminated. Thepetitioner shall be noifed in writing ofthe reason for dimissal, and a notice

.of Dismissal of Antidumping Petition"shall be published in the FederalRegister. which shall summarize the ----reasons for dismissal of the petition.

(d) Noice to Commission. A copy ofany determination hereunder shall befumished promptly to the Commission.*f the investigation is initiated. suchinformation as has been receivedrelating to the matter underinvestigation shall be made available tothe Commission. Informa clan for whichconfidential.treatment has been grantedby the Secretary shall be made

ADP/1/Add. 3

available to the Commission only uponconfirmation that the confidentiality ofsuch information will be maintained andthat it will not be disclosed. eitherpublicly or under an administrativeprotective order. without the expresswritten consent of the Secretary.

1 353.38 Full-scaleinvestigatlon.(a) Upon publication of the notice of

"Initiation of Anti-dumpingInvestigation," the Secretary shallproceed promptly to obtain suchinformation as may be necessary forpreliminary and final determinations ofsales at less than fair value. TheSecretary normally will examine at least60 percent of the dollar volume ofexports to the United States from anycountry subject to an antidumpinginvestigation. Ordinarily the Secretarywill require a foreign manufacturer.producer. or exporter subject to theinvestigation to submit pricinginformation covering a period of at least150 days prior to. and 30 days after. thefirst day of the month during which thepetition was received in acceptableform. The Secretary may, however.require the submission of pricinginformation for such other period as hedeems necessary and he may alsorequire the submission of pricinginformation on a current basis duringthe course of an investigation. Whereapp:oy.ate. cost information also willbe required,

(b) When the Secretary examines lessthan 85 percent by dollar volume of theexports to the United States of themerchandise subject to theinvestigation, the Secretary will informinterested exporters of suchmerchandise of which exporters andwhat percentage of total exports to theUnited States are being examined.

I 35339 Pregamenay dstwrminadons.(a) In general. Within 160 days after

the date on which a petition is filedunder section 732(b) of the Act. or aninvestigation is commenced undersection 732(a) of the Act. but not beforean affirmative preliminarydetermination by the Commission undersection 733(a) of the Act.

(1) A preliminary determination shallbe made, based upon the best .. . _information available at the time of thedetermination, as to whether there is areasonable basis to believe or suspectthat foreign merchandise which is thesubject of the investigation is being soldor is likely to be sold at less than fairvalue: and

(2) If the determination is affirmative.the amount by which the foreign marketvalue exceeds the United States price

. shall be estimated and stated.

Notice of the determination. theparties affected, and the estimatedamount by which the foreign marketvalue exceeds the United States priceshall be published in the FederalRegister. The determination shall bemailed or otherwise delivered to allparties to the proceeding and theCommission.

(b) Request for extension bypetitioner. If a request for an extension.stating the reasons for the request, isreceived from the petitioner no laterthan 25 days before the preliminarydetermination would otherwise berequired under section 733(b) of the Act.the preliminary determination may bepostponed until not later than the 210thday after the date on which the petitionis filed. Upon acting on such a request. anotice of "Postponement of PreliminaryDetermination" shall be published in theFederal Register. stating that it has beenmade at the petitioner's request.

(cJ Extraordinarily complicated cases.(1) If a case is determined to beextraordinarily complicated, thepreliminary determination shall be madeno later than the 210th day after thepetition is filed under section 732(b) ofthe Act or an investigation iscommenced under section 732(a) of theAct.

(2) Any determination that a case is"extraordinarily complicated" shall bebased on expess findings that

(i) The importing and exportingparties are cooperating with theinvestigation: I

(Ii) The case is extraordinarilycomplicated by reason of (A) thenumber and complexity of thetransactions under investigation or theadjustments to be considered, (B) thenovelty of the issues presented, or (C1the number of firms whose activitiesmust be investigated and

(iii) Additional time is needed to makethe preliminary determination.*(3) AlU parties to the proceeding shallbe notified in writing of anydetermination to treat the case as"extraordinarily complicated" not laterthan o0 days before the date on whichthe preliminary determination wouldotherwise be required under section733(b) of the Act. Upon making such adetermination, a notice of"Postponement of PreliminaryDetermination" shall be published in theFederal Register, which notice shallsummarize the reasons for thepostponement.

(d) Waiver of verification. Within 75days after the initiation of aninvestigation. an official designated forsuch purpose by the Secretary shallreview the information received duringthe first 60 days of the investigation, If

this official (who shall not be the officialresponsible for making the preliminarydetermination] concludes that thereappears to be sufficient informationavailable upon which the preliminarydetermination can reasonably be based.all nonconfidential information and allother information available undersection 777 of the Act shall be disclosedto the petitioner and any other party tothe proceeding that requests suchdisclosure. Within 3 working days aftersuch disclosure. the petitioner and eachdomestic party to whom such disclosurewas made may furnish an irrevocablewritten waiver of verification of theinformation received by the Secretaryand an agreement that it is willing tohave a preliminary determination madeon the basis of the record then availableto the Secretary. If a timely waiver andagreement have been received from thepetitioner and each domestic party towhom the disclosure was made. and theSecretary finds that sufficientinformation is then available uponwhich the preliminary determinationcan reasonably be based. a preliminarydetermination shall be made within 90days after the commencement of theinvestigation on the basis of the recordestablished during the first 60 days afterthe investigation was commenced.

(e) Contents ofpreiininaiydetermination. The preliimnarydetermination shall include conclusionswith regard to all facts and issues of lawconsidered material to thedetermination, the name of thepetitioner and of the industry on whosebehalf the petition was filed, adescription of the merchandise involved.the name of the country of exportationand, if practicable, the names of theforeign manufacturers, producers, orexporters. If affirmative. thedetermination shall:

(1) Order the suspension of liquidationof all entries of merchandise subject to

- the determination which is-entered, orwithdrawn from warehouse, forconsumption on or after the date ofpublication of the notice of thedetermination in the Federal Register:and

(2) Impose provisional measures byrequiring a cash deposit. or the postingof a bond or other security for eachentry of the merchandise concernedequal to the estimated amount by whichthe foreign market value exceeds theUnited States price. The posting of abond or other security will be deemedadequate unless the revenue will not besufficiently protected.

(f) Commission access to information.All information upon which thedetermination was based and which theCommission may consider relevant to its

ADP/1/Add..3Page4242-

Ijury determination shall be madeavailable to theoCmmissn.io

Ufomrttion for which confidentialreaetment has been granted oy theSecetary shall be made available to theCommission only upon confrmatino thatthe confidentaility of sUch informationwill be maintained and that it will notbe disclosed, either pubLitcy or under an

adminitsrative protective order, withoutthe express written consent of theSecretary.

I 13.40 MC¢

(a) Determinadon. I. not less than.30days before the date on which a final

determination is due. a petitioner allegescritiicaul crcmestancs, then at the timethe preliminary determination is made

or. if such determination is due Within 20days or has already been made. thenwithin I month after the allegation. isreceived. a determination shall be made,on the basis of the best informationavailable at the time, whether there is areasonable basis to believe or suspectthat

(1,(1) There is a history of dumping inthe United States or elsewhere of theclass or .1tid af merchandise which >ithe subject of the investigation: or

(C) person by whom, or for whoseaccount thehandisewasimportedmercandize was importedknew or should have know that theporhandiseter Wa selling. the mercandis

wnch is the Subject of the. investigationat less than fair value: and

(2 Ther have been massive impo'rtof the cass or kind of merchandise

woichL is the subject of the investigationover a relatveiy Shrt period.

IL not more than 30 but not less than20 days before the date on wich finaldetermination is due, a petitioner ':ectical circumstances. then nopreliminary determination as to citicalcirtmstancs shall be made. A findinas to critical circumstance shall beincluded puuant to I 3S344(c) in the -

Afrmatve Final Determination,Mking such determination accountAll be taken of departs in the ratio

of import penetration of the subjectmerchandise and historic patterns of

importation.(bM iNoafiction of Commission. The

Commission sall be notified promptlyof any determinnaton under this section.

(c)SofBiquidaton Upon an

affirative preliminary determination ofcrtical aircumstan any sup

of lUquidation orderd under sect

73t(d1(1) of the Act shall apply, or if

notice of suspension of liquidation hasready ben published, such

suspension shall be amended to apply,to unliquidated entries of merchandiseentered, or withdrawn fro warehouse.

for consumption on or uer the datewhich is go days bafor the date onwhich Suspension of liquidation wasfiat ordered.

(d) Publcadan notice Upon anaffirative preliminary determination ofditfcal crumstancs, notice theofshall be published in the FederalRegister. either as part of the notice ofpreliminary determination. or, if thepreliminary determination already has.been publihed, as a separate otice ofPreliminary Determination of CiticaL

15.1 T'r luln krs~qti(al Termination upon withdrwal of

petition. An antidumping investigationmay be terminated at any time uponwithdrawal by the petitioner of thepetition on which the investigation wasinitiated after notice to all other partiesto the proceeding and onsultatin withthe Commission. No iuvestgation shallbe terminated unls it is determined

such termination is in the public interest.Notice of any termination Shall bepublished in the Federal Regi:tertogether. where apprriate, with a copyof any crrespandence exchanged withthe petitioner on the basis of which the

petitioner withdrew the petition and theinvestigation was terminated.

(bJ Teatian upon negativedetermination. An investigation shall be.deemed terminated. without furthercomment or action, upon publication ofny negative final determination or a

negative pr iminr or finaldetermination by the Commission an theissue of injury.

15342 Susponion of bietigadam(a) Agreements to eliminate

completely sales at ass than fair vaue,or to ce excrts. An investigationmay be suspended at any time before afinal determination if ths exporters of

the merchandise which is the subject of-the investigation who account r

substantially all of the imports of themercandise which is the subject of theinvestigation agree

(1) To ceas exports the

merchandise to the United States withinmonths after the date on which the

Investigation is suspnded or(2) To revise their prices promptly to

eUlimiate completely any amount bywhich the foreign market value of the -

merchandise which is the subject of the.agreement exceeds the Unites States

of that merchandise.b Agreements eliminating inftdowus

effecO (1) Gnerally. An investigationmay be suspended at any time before afinal deternation upon acceptance ofan agreement to revise prices fromexporters accounting for substantially

ail or the imports oi the mernse.which is the subject oi the invsgatidoif it is determined:

Ci) EXtordinary drcuntancas arepresent and

(il The agreement will el-minatecompletely the injurious effect oi theexports to the United Stateo of themerchandise which Li the subject of theuvnestigation.

(2) Additianal rqurements Noagreement under this subsection may beaccepted unless

(i) The suppression or undecuitting ofprice levels of like domestic products byimports of the merchandise will beprevented: and

C(iI For ech entry of each exporter theamount by which the estimated foreignmarket value exceeds the United Statesprice will not exceed 15 percent of theweighted average amount by which te - -estimated foreign market valueexceeded th United States price fr all.:-les-thnfhair-valu entries of theexporter examined during the curse ofthe investigation.

Cc).0efiddin of 'szbstanidaZy ai"For purposes of section 734 (b) and (c) ofthe Act. exporters who account for'substantially aW' of the imports inquestion shall me axnxortr who haveaccounted for n less than 85 pe=rnt byvolume of the subject merchandiseimported into the United States durugthe period of investigation, or such otherrecant. representative period determinedappropriate. The number and identity ofadected exports shall be csideredno less frequendy than once-annually inconnection with the determination :

required under section 3 of the Act.and. if appropriate. additional ordifferent exporters may be required tofurnish assurances to ensure continuedapplicability of the assurance to therequisite percentage of the affontdtrade, ,. _ ,

(dl Definvi=n of "XC&=rdm7--cUsfances.'wFr purposes of section734c) of the Act, 'extrordinaryc=utances" shall menicmstances in which (1) suspension

of the investigation will be morebeneficial to the domestic indust: than,conrtiation of the investigation aid (2)the investigation is complex. Forpurposes. Of thissecon..comple'lshaf .mean there ar a.arge snber of ;transacdow to be investigated r- -adjustments to be considered, the issuesraised are noveL or the number of firmsInvolved is 1,&rge.

reements.Ce) Moniforing ofagsentL Noagreement unde section 734 of the Actshall be accepted unless effecivemonitoring osf the agreement is ipracticable. in accpting assurances andin monitoring compianca therewith; the

ADP/1/Add. 3

Secretary shall not be obliged toascertain on a continuing basis the levelof domestic prices of merchandise likethat covered by the agreement.

(Q) Public interest, No agreementunder section 734 of the Act shall beaccepted unless the agreement isdetermined to Jbe in the public interest.

(g) Exports not to increase duringinterim period No agreement to ceaseexports to the United States undersection 734(b)(1) of the Act shall beaccepted unless that agreement providesan adequate means of ensuring that thequantity of the merchandise covered bythat agreement and exported to theUnited States during the period providedfor cessation of exports does not exceedthe quantity of such merchandiseexported to the United States during themost recent representative perioddetermined to be appropriate to thecase. In ordinary circumstances. therepresentative period shall refer eitherto the six months preceding the month inwhich the petition was filed or thecomparable six month period of a yearearlier, whichever more accuratelyreflects the historical level ofimportation absent import surges. If thelevel of exports to the United Statese.cceeds the volume exported during theperiod determined most representative.then the agreement may be deemedviolated and the provisions of § 353.43will be applicable.

(h) Procedures for suspension ofinvestigations. Prior to accepting anyagreement under section 734:

(1)'The petitioner shall be notified andconsulted with concerning theSecretary's intention to suspend theinvestigation. A copy of the proposedagreement shall be furnished to thepetitioner no less than 30 day" .:ior tothe proposed suspension of theinvestigation. Any such agreement shallcontain the procedures to be followed tomonitor compliance. and a statement ofthe compatibility of the agreement with

* the requirements of subsections (b) and(d) or (cl and(d) of section 734 of theAct;

(2) All parties to the proceeding shallbe notified of the proposed suspensionnot less than 30 days prior thereto: and

(3) All parties to the proceeding andother government agencies which mayhave an interest in the effects of theagreement shall be afforded an -

opportunity to submit written commentsand information for the record withrespect to the proposed suspension.

(i)Issuance of an affirmativepreliminary determination. Uponacceptance of an agreement to suspendan investigation. a "Notice ofSuspension of AntidumpingInvestigation" shall be published in the

Federal Register, including a summary refunded and all appropriate bonds orof the principal provisions of the other security shall be released.agreement on the basis of which the (1) Continuation of investigation. Byinvestigation was suspended. Unless an filing a request with both the SecretaryAffirmative Preliminary Determination and the Commission on the same date.has already been issued. an exporters accounting for a significant'Affirmative Preliminary proportion of exports to the UnitedDetermination" shall be published States of the merchandise which is thetogether with the notice suspending the subject of the investigation, or theproceeding. petitioner or any other domestic

(') Suspension of liquidation. (1) interested party (within the meaning ofCessation of exports. complete subparagraph (C), (D) or (E) of sectionelimination of dumping margin. If an 771(9) of the Act). which is a party to theagreement is accepted which providies proceeding, may, during the 20-dayfor the cessation of exports or complete period following the date of publicationelimination of a dumping margin of of the notice of suspension. request amerchandise exported to the United continuation of the investigation. UponStates, pursuant to section 734(b) of the receiving such a request the SecretaryAct then, notwithstanding the issuance and Commission shall continue theof an Affirmative Preliminary investigation. If. as a result of suchDetermination, the liquidation of entries continued investigation, a Finalof merchandise covered by the Negative Determination is made or theagreement shall not be suspended. If Commission makes a negative injuryliquidation has previously been determination. the investigation shall besuspended in the investigation. such terminated. without further comment orsuspension shall. without further action. and notice thereof published incomment or action, terminate on the the Federal Register. If an Affrmativedate the notice is published and Final Deteruiination is made and theestimated antidumping dutiesshallbe eab Commission makes an affirmative injuryrefunded. or appropriate bonds or other determination. the suspension shallsecunety shall be released. remain in effect in accordance with itssecurthershalsepeensionasreed. ntterms. The provisions of paragraph (j) of(2) Other suspension agreements. this section regarding the suspension ofAgreements to suspend an investigation liquidation of entries of merchandiseother than those described in paragraph covered by the agreement are(j1(1) of this section shall not affect the unaffected by this subsectionssuspension of liquidation of entries ofmerchandise (except that the security § 353.43 Vilcations of agremonts.required may be adjusted to reflect the (a) In generaL If it is determined thateffect of the agreement) until the an agreement on the basis of which anCommission has completed its review of investigation was suspended is being. orthe suspension agreement. if such has been violated. or no longer meetsreview is requested. If no request for the requirements of subsections (b) andreview of suspension is received by the (d) or (c) and (d) of section 734 of theCommission within 20 days after the Act:"Notice of Suspension of Antidumping (1) Liquidation of the unliquidatedInvestigation" is published, the .. entries of merchandise shall besuspension of liquidation shall, without suspended effective as of the later of thefurther comment or action. terminate on date which is 90 days before the date ofthe 21st day after such publication. - publication of the notice of suspension

(k) Commission review. Where the of liquidation, or the date on which theCommission, having undertaken a merchandise, the sale or export to thereview of an agreement to suspend an United States of which was in violationinvestigation other than one described of the agreement. was first entered. orin paragraphU](1) of this section. makes withdrawn from warehouse. fora negative determination. the Secretary consumption-shall resume his investigation on the (2) If the investigation was not.-_date of publication of such completed. the investigation shall be -determination asif the affirmative -- resumed as if the Affirmativepreliminary determination under - Preliminary Determination was made on-

353.39 had been made on that date. the dayon which the investigation isWhere the Commission makes an resumed, *:.. I

affirmative determination in such a (3) If the investigation was completed.case, the Secretary shall continue the an Antidumping Duty Order shall besuspension of the investigation and issued effective with respect to entriesterminate any suspension of liquidation the liquidation of which was suspendedwhich may then be in effect and all upon the determination that theestimated antidumping duties shall be' agreement had been violated. and

ADP/1/Add.3Page -44-

(4) The peitioner. interested partieswho are or were party to the proceedingand the Commission shall be notifiedand notice of the determination shall bepublished in the Federal Registar.including a summary oi the reasonstherefor.

(b) Notice of possible breach. If thereis reason to believe that an agreementno longer meets. the requirements of theAct or that an agreement is beingbreached and the breach involves aviolation of the agreement other thanthat described in paragraph (c) of thissection. each party to the agreementshall be notified at the earliest moment.so that alternative or amendedagreements may be considered beforethe agreement is deemed violated.

(c) !ntentional violations Theintentional violation o any agreemententered into nder this section shallsubject any person who is party to theagreement and is determined to haveitantionaily violated it to the samepenalties as for a fraudulent violation ofsection 92 of the Ac: (19 U.S.C. 192).The procedural requirements section,592 shail be applicable to any action tocollect penalties.

I 3534 FhaW detamiisom(a) Zn generaL WIthin,75 days alter

the date of a preliminary determination.a inal determination shall be madewhether mer=andise which is thesubject of the investigation is being, or islikely to be, sold in the United States atless than fair value.

(b) Zxtension ofperiod The analdetermination may be postponed untilrot later than 133 days after the date ofa preliminary determination where awritten request for such a postponementis received, prior to thb time the faldetermination otherwise would be duefrm either the exporters who accountf= a significant proportion of themehrchndise which is the subject Of theinvestigation (in proceedings in which,the preliminary determination wasaffirmative) or the petitioner (inproceedings in which the preliminarydetrination was negative).

(c) Cddti cixusncsm If miticaldx=mstanc have been alleged and anaifizative final determintion reached.then it shall include a findiao.wheth..-

(1)(1) There is a bisior of up inthe United Slates or elsewhere of theclass or kind of mercandise which isthe subject of the investigation, or

i The person by whom. or for whoseaccount, the merchandise was imported*.ew or should have Imown that theexporter was selling the Merchandisewhich is the subject oi the investigationat less than its fair value, and

(2; There have been massive impartsof the merchandise which is the subjectof theuinvestigation over a relativelyshort period.

(dl Disclosure of information.Promptly after making the preliminarydetermination. there shall be discsaed.to each interested party then a party tothe proceedings who requests suchdisclosure, ail non-coandentialinformation and, if made availableunder § 333.30, confidential information.on the basis of which the preliminarydetermination was made.

(e) Oppormity ofparie to presentviews. Prior to the final determination.an opportunity shall be provided for allparties to be heard oaly in person orby counsel before a designated officialpursuant to § 353.47. Written views willw received from any person at anytime. Provided that. unless the Secretaryor the officer presiding at the hearingotherwise provides for good cause.consideration of written views may bedecided if received more than 10 daysafter ths transcript of any hearing isavailable to the publcor less than 30days before the final determination isdue. whicheveris earlier.

(F) Yotidc of determination. Notice aithe inal determination. the partiesaffected and the estimated margn aodumping, if any, shall be oubiished inthe Federal Register. Copies of thedetermination shall be mailed orotherwise delivered to all parties to theproceeding and the Commission.

(S) Contents offinai deenninations.The dnal determination shall includecnclusions with regard to all facts andissues of law =cnidered material to thedetermination. If the determination isaffirmative, the amount of the dumpingnrsdn shall be estimated and stated.(h) Effet ofnegadvefinal

-demzntiae. If the final determinationis negative. the proceeding shall beterminated including any suspension ofliquidation which may then be in efect.and all estimated antidumping dutiesshl be refunded and all appropriatebonds or other security shall bereleased. il

(iJ Effect ofnegative Idetermination oy Commission. If theIna! determination by the Commissionunder section 735(b) of the. Act isnegative, th proceeding shall beterminated including any suspension ofliquidation which may then be in effectand all estimated antidumping dutiesshall be refunded and all appropriatebonds or other secity shall bereleased.§ 3834.5 Exd~usian of particular flrms,The Secretary may exclude one or

more foreign manufacturers producers

or exporters from an amativepreliminary, or an affirmative final.determination if he finds that allexamined exports of the merchandise inquestion to the United States by themanufacturer. producer. or exporter inquestion during the period underconsideration were made at prices-notless than the fair value of themerchandise concerned. Usually.Information on 100 percent of theexports' in question will bc, required tobe submitted to support a request forexclusion In exceptional cases, theSecretary may determine thatexamination of a lesser percentage(never less than 75 percent) is adequate.

* A manufacturer. producer. or exporterrequesting exclusion. must submit allrelevant sales information to permitconsideration of the request andverification of the data on which therequest is based, whether or notinformdoin concerning such sales hasbeen requested by the Secretary. TheSecretary also may exclude a foreignmanufacturer. producer or exporter. notexlcuded from an Affirative FinalDetermination. from anAntidumpingDuty Order. provided the. informationnecessary to support such exclusion isreceived verified. and analyzed by theDevaranent in tine to be considered bythe Commission in makirn its finalinjury determination. The came of anysuch company which isdetermined tohave satisfied the requirements forexclusion will be published in theFederal Register. Companies notexcluded under this section will becomesubject to an Anidumping Duty Order,should one be issued. and mustthereafter petition for exclusionpursuant to the procedures of § 3533.54 inorder to be excluded from such Order.§ 3.4 Submhsdon of armatimn andWvtten vt6WO6

(a) Submission of informadon and.written views. Except in situationswhere it would be manifestly unjust. any _information or wrtten views submittedin connection with a proceeding shall beconsidered only if revived within thetime established by these regulations orby specific institutions applicable toany request for information: andinformation or witt views received . .after such time shall not be consideredin the proceeding. Any written viewsintended to be considered ED connectionwith a proceeding shall be submitted anletter-size paper, double spaced. in atIeast 10 copies. to the Secretary,Attention: Assistant Seaetary for TradeAdministration. Room 3a2 Departentof Commerce. Washington. 0.C. 2030.Except when the Secretary determines itwill be unduly burdensome to the party

ADP/ I/Acid. 3Page L5`

to the proceeding. in which case theSecretary shall effect the service. a coplshall also be served at the same time. b:mail or personal service, on counsel foreach partV' to the proceeding as of thedate of such filing. or if not representedby counsel, then the person designatedfor such purpose by the party. Acertificate of such service shallaccompany any such filing.

(b) Designation of agent. Every partyto the proceeding shall designate aperson to receive service of all papersfiled in a proceeding. A list of suchdesignated agents shall be madeavailable by the Secretary.§ 3S3.47 Hearings.

During the course of an investigation,normally within 30 days after thePreliminary Determination is published,a hearing shall be held, upon the requestof any party to the proceeding, toprovide interested persons anopportunity to present views orally.Such hearing shall be conducted beforea designated official. A verbatim recordshall be transcribed and copies of thetranscript made available to the public,The hearing shall not be subject to theAdministrative Procedure Act, and shallnot involve the examination or crossexamination of witnesses under oath. Althe discretion of the officer conductingthe hearing. persons not party to theproceeding, including officials of otheragencies or departments of the UnitedStates Government, may presentviews.if not included in the notice of thepreliminary determination. notice ofsuch a hearing shall be published in theFederal Register. All requests forhearings shall be accompanied by astatement outlining the issues which theperson wishes to discuss. Reasonablenotice of the hearing will be given to allparties to the proceeding. One weekprior to such a hearing. pre-hearingbriefs shall be submitted to theSecretary and exchanged among partiesto the proceeding. Persons will berestricted in their oral presentations. toissues raised in this pre-hearing brief.Any person not submitting such a briefordinarily will be restricted to rebuttalof points made by other persons.Ordinarily, the presiding officer at ahearing will provide an opportunity forthe submission of post-hearing briefs,within the time limits prescribed at thehearing. The Secretary may at any timeinvite any person to supply him withinformation or argument.§ 353.48 Antidumping duty order.

(a) Lngeneral. Within seven days ofnotification that the Commission has.made an affirmative determination onthe issue of material injury, an

Antidumping Duty Order shall bepublished that

(1) Directs customs officers to assessan antidumping duty on themerchandise found to be sold at lessthan fair value, equal to the amount bywhich the foreign market value of themerchandise exceeds the United Statesprice of the merchandise, suchassessment to be made within a monthsafter the date on which the Secretaryhas received satisfactory informationupon which such assessment may bebased. but in no event later than 12months after the end of the exporter'sannual accounting period within whichthe merchandise is entered. orwithdrawn from warehouse. forconsumption. or in the case ofmerchandise not sold prior to itsimportation. 12 months after the end ofthe annual accounting period of themanufacturer or exporter within whichit is sold in the United States to a personwho is not the exporter of thatmerchandise:

(2) Includes a description of the classor kind of merchandise to which itapplies, in such detail as is deemednecessary: and

(3) Pending liquidation of entries ofthe merchandise, requires the deposit ofestimated antidumping duties at thesame time as estimated normal customsduties on that merchandise aredeposited.

(b) Calculation of the amount of theestimated duty to be deposited Thedeposit of estimated antidumping dutiesfor each manufacturer, producer orexporter shall be equal to the amount bywhich the foreign market value of themerchandise exceeds the United Statesprice of the merchandise. as determinedin the affirmative final determination ofthe Secretary or the latestadministrative review of suchdetermination under § 353.53, or. if --appropriate. under § 353.49.§ 353.49 Security In lieu of estimated dutypending early determination of duty.

(a) Conditions for use. The Secretarymay allow, for no more than 90 daysafter the date of publication of anAntidumping Duty Order under § 353.48,the posting of a bond or other security inlieu of the deposit of estimatedantidumping duties required under§ 353.48(c) if. on the basis of informationpresented to it by any manufacturer.producer. or exporter within seven daysafter publication of the AntidumpingDuty Order, the Secretary is satisfiedthat within 90 days after the date ofpublication of an Order under § 333.48, adetermination can be made concerningthe foreign market value and the UnitedStates price for all merchandise of such

manufacturer, producer, or exporterdescribed in that Order which wasentered, or withdrawn from warehouse.for consumption on or after the date ofpublication of-

(1) An affirmative preliminarydetermination as to sales at less thanfair value: or

. (2) If the determination underparagraph (a)(1) of this section wasnegative, an aifirmative finaldetermination as to sales at less thanfair value: and before the date ofpublication of the affirmative fuialdetermination by the Commission.

(b) Notice and hearing. The Secretaryshall publish notice of anydetermination to allow the posting ofsecurity in lieu of the deposit ofestimated antidumping duties, and shallupon the request of any party to theproceeding, hold a hearing beforedetermining the United States price andforeign market value of the merchandiseof the foreign manufacturer. producer orexporter.

(c) Determination used as basis ofduty. The Secretary shall publish noticeof the results of the determination ofUnited States price and foreign marketvalue. and that determination shall bethe basis for the assessment ofantidumping duties on entries ofmerchandise to which the notice underthis section applies and shall also be thebasis for the deposit of estimatedantidumping duties on future entries ofmerchandise of manufacturers,producers or exporters described inparagraph (a) of this section to whichthe Order issued under § 353.48 applies.§ 353.50 Differences In determined andestimated antidumping duties,

If the amount of the estimatedantidumping duty deposited pursuant tothe Preliminary AffirmativeDetermination is different from theamount of the antidumping duty to beassessed pursuant to an AntidumpingDuty Order, the difference with respect _to merchandise entered, or withdrawnfrom warehouse. for consumption beforepublication of notice of theCommission's affirmative FinalDetermination shall be: - I.

(a) Disregarded. to the extent that theestimated duty is less than the dutydetermined to be assessable under theOrder. or . -

(b) Refunded. to the extent thatestimated duties collected were morethan the duty determined to beassessable under the Order.§ 3S351 Verification of Inforrnadon useof best Information available, -

(a) Information upon which a funaldetermination is based shall be verified.

A ?/!/AddcL3?ae :,o

The methods and procedures used toverify information in a partivular caseshall be published La the FederalRegister in the "Notice of AffirmativeFInal Anudumpin8 Determination" or'Nauce os Negative Final AntiduspingDeterminatdon." as appropriate.

(b) Whenever information cannot besatisfactorily verified, or is notsubmitted in a timely fashion or in theform required, the submitter of theinformation will be notified and theaffected determination will be made onthe basis of the best information thenotherwise available which may includethe information submitted in support ofthe petition. An opportunity to correctinadequate submissions will beprovided if the corrected submission isreceived in time to permit properanalysis and verifcation o} theinformation concerned. otherwise nocorrectedd submission will be taken intoaccount. WVhere a party to theproceeding refuses toprovide requestedinformation that fact may be taken intoaccount in determining what is the bestavailable information.

(c) In verifying information u=der thisWctio. access to dles. records andpersonnel may be requested byappropriate offices of the Secretary aspart ao the verifcaion process.Faiureto permit such access may preventsatisf&ctor7 verification and require theapplication oi paragraph (b1 of thisstion.

(d) All responses to requests forinformation must be in English and inthe form requested unless suchrequirement is waived. Failure to supplyinformation in the form requested mayrequire the application of paragraph (b)of this section.

(e) Responses to all questionnairedirected to foreign parties shall beforwarded by air mail or faster meanssimultaneously to the Secretary and tothe UJS. Embassy in the country inquestion and shall be deemed timelyreceived if received at either offkcwithin the time required by any speicrequest, order or regulation.* 353I2 Interest an cm tain overiwift3nd~ w9enwInterest shal be payable. at the rate in

effect under section 82s of the InternalRevenue Code of 1954 on the date onwnich the rate or amount of duty isfinally payable. or 8 percent. whicheveris higher, on overpayments andunderpayments of amounts deposited onmerchandise entered. or withdrawnfrom warehouse, for consumption on orafter the date on which notice of anaffirmative determination by theCommission with respect to thatMerchandise is published.

§ 35343 Acinniatrbwve review atdetermistatkons

(a) In general. At least once duringeach 12-month period beginning on theanniversary of the date an AntidumpingDuty Order or notice of suspemion of aninvestigation is published. the Secretaryshall determine:

(1) The foreign market value andUnited States price of each entry ofmerchandise subject to the AntidumpingDuty Order and included within thatdetermination. and the amount. if any,by which the foreign market value ofeach such entry exceeds the UaitedStates price of the entry, or

(2) The status of. and compliancewirth any agreement by reason of whichan investigation was suspended.

(b) Changed cimstcnces. (1)Whenever the Secretary receivesinformation concerning. or a request forthe review of. an Antidumping DutyOrder or Finding or an agreement on thebasis of which an investigation wassuspended which shows changedcircmstances suaficent to warrantreview Of such Order. Finding oragreement. he shall, before conductingsuch review, publish a "Notice ofIntention to Review Antidumping DutyOrder" or 'Notice of intention to ReviewSuspension Agreement" in the FecermlRaqiste. Such Notice shall indicate ihemerchandise concerned, and anychanged circumstances or othersignificant issues then known which willbe considered during the review.

(2) In the absence of good causeshown. no review based on allegationsof changed circumstances shall beconducted within 24 mcnths after thedate of an Affirmative FinalDetermination or a determination tosuspend an investigation.

(c) Procadures Written views onproposed revisions of an AntidumpingDuty Order. including new facts forexamination. will be accepted at anytime. but unless changed circumstancesare alleged. normally will not beprocessed sooner than 90 days beforesuch redtermination is due forpublication. Questionnaires requestnWiuTent relevant data nortnally will besent 85 days before such date.requesting reply within 30 dayi ofreceipt.

(d) Disclosue and hearings. A* disclosure may be made, generallyabout 30 days prior to the date theredetermination is due for publication.on request by interested parties thenparty to the proceeding, to such partiesof all nonconfidential information and.where appropriate. pursuant to aprotective order. confidentialinformation, an the basis of which theredetermination will be made. Written

views may be presented. and anopportunity to present Oral views maybe requested. by any party to whomdisclosure was made. After providing anopportunity for comment by interestedparties on the proposed determination, arevised Antidurnoing Duty Order.including any revised bases for theassessment of duties on themerchandise. shall be publised in theFederal Register.

(a) Lnvestigations which werediscontinuedprior toJanuary 1. 1960With respect to each investigationwhich was concluded with adiscontinuance prior to January L 1980.the discontinuance will be reviewedaccording to the procedures of section7'1 of the Act and continued. modified,or terminated. as appropriate. Untilmodified or terminated eachdiscontinuance will remain in effect,§ 3S3.54 Revocation of antidumping dutyoaer and temnuanan o suspendedinvestigation

(a) bn gewrrzl. Whenever theSecetary determines that sales ofmerchandise subject to an-AntidumpingFinding or Order or a suspendedinvestigation are no longer being madiaat less than fair value within themeaning of section /M of the Act and issatisfied that there is no likelihood ofresumption'of sales at less tha fairvalue, he may act to revoke orterminate. in whole or in part. suchOrder or Finding or suspendedinvestigation. Ordinarily. consideranticnof such revocation or termination will bemade only subsequent to a review asdescribed in § 3.533 of this part.

(b) Application to revoke orterminate. An application for therevocation of any Finding or Order orthe termination of a suspendedinvestigation premised upon theabsence of sales at less than fair value.may be submitted in writing by a parryto the proceeding to the Secretarytogether with detailed informationdemonstrating that the importedmerchandise isno longer being sold atless than fair value. Ordinarily, such anapplication will be considered only ifther have been no sales at less thanfair value for at least a two-year enrodfollowing the date of publication in theFederal Regiter of an AntidumpingDuty Finding or Order or notice af --suspension of investigation: provided,however. that where a finrn candemonstrate that it has not sold themerchandise at less than fair valueduring the period of or immediately priorto the investigation (but the nr did riotfle a timely application for exclusionunder § 353.45). the two-year periodshall beginan the date of the

ADP/1/Add.3

preliminary determination regardlesswhether that determination wasaffirmative or negative.

(c) Revocation or termination by theSec.-eaary. The Secretary may on hisown initiative revoke a Finding or Orcor terminate a suspended investigationafter three years if he is satisfied thatthere is no likelihood of resumption ofimports of the merchandise to theUnited States the sale of which has bemade at less than fair value. or (2) thesales at less than fair value have beeneliminated. or (3) other changedcircumstances warrant a revocation olthe Finding or Order or the terminationof a suspended investigation.

(d) Revocation or termination baseupon iniurlz reconsiderction. (Reservei

(e) Not.:ce orevccc.ion ortermination. If it appears to theSecretary from his review under sectic. 31 of the Act and on application filedpursuant to paragraph (a) of this sectic(or from his own determination underparagraph (bi of this section) that arevocation or termination may beappropriate, he will publish a "NoticeTentative Determination to Revoke orTerminate." Before the Secretary maytentatively revoke a Finding or an Ordor terminate a suspended investigationpursuant to paragraph (a) of this sectic,he parties who are subject to therevocation or the termination mustagrin writing to an immediate suspensionliquidation and reinstatement of theFinding or Order or continuation of thtinvestigation. as appropriate. ifcircumstances develop which indicatethat the merchandise thereafterimported into the United States is beinsold at less than fair value. Opportunitfor interested parties to present viewswith respect to the tentative revocationwill be provided.

(F Final determination. As soon aspossible after publication of a "NoticeTentative Determination to Revoke orTerminate" the Secretary will determixwhether final revocation or terminationis warranted. in cases where anapplication for a revocation ortermination is based on the absence olsales at less than fair value with respeto the imported merchandise and thedispositive date for establishing a two.year period of no sales at less than faibvalue is the date of publication of theFinding or Order. the Secretary maydetermine that a final revocation ortermination is warranted only if the nr

of involved provides information showingno sales at less than fair value withrespect to the subject merchandise up to

e the date of publication of the "Notice ofTentative Determination to Revoke or

ter Terminate." Ordinarily, a revocation or1 termination will be effective with(1) respect to all merchandise which is the

subject of the revocation or termination.entered. or withdrawn from warehouse.

en for consumption on or after the date onwhich the "Notice of TentativeDetermination to Revoke or Terminate"is published in the Federal Register. Theliquidation of all merchandise which is

3 the subject of a tentative revocation ortermination and which is entered. orwithdrawn from warehouse, for

do consumption on or after the date ofpublication of the "Notice of TentativeDetermination to Revoke or Termninate."

)n will be ordered suspended pending thefinal determination on revocation or

on termination.§ 353.55 Reimbursement of artdumpingduties.

of (a) GCneral. In calculating the UnitedStates price there shall be deducted theamount of any antidumping duties

er which are, or will be. paid by theI manufacturer. producer. seller. or,n. exporter. or which are. or will be.

refunded to the importer by theree manufacturer. producer, seller. orof exporter. either directly or indirectly.

but a warranty of nonapplicability ofI antidumping duties entered into before

the initiation of the investigation. willnot be regarded as affecting UnitedStates price if it was granted to an

g importer with respect to merchandisety which was:

(1) Purchased, or agreed to be1 purchased. before publication of a

notice in which liquidation wassuspended with respect to such

of merchandise: and -.. -(2) Exported before a final

ie determination of sales at less than fairn value is made.

Ordinarily, the deduction forreimbursement of antidumpirig dutiesshall be made only once in the

ct calculation of the United States price ofany entry of merchandise subject to an

- Antidumpting Duty Order.'(b Certificate. A certificate in theform set forth below shall be filed byany importer of merchJ:-...dise subject to

- an Antidumpning Du.w' Order with them district director - "'lastoms in the

district in vwh.." 3uch merchandise is, oris intended to be. imoorted within 30days after the earlier of (1) publication

of the Order or any administrativereview thereof pursuant to 1 353.53. or. ifappropriate, § 353.49. or (2) importationof the merchandise in a district in whichnot previously imported;

I hereby certify that I ravev) (have not)entered into any agreement or understandingfor the payment or for the refunding to me. bythe manufacturer. producer. seiaer or exporterof all or any part of the 3ntidumping dutiesassessed upon the following importations oi

- com modity) from(country): (Ust entry numbers) which havebeen purchased on or after - (date ofpublication of notice suspending liquidationin Federal Relistar) or purchased before- (same date) but exported on or after

- (date of final determination of sales atless than fair value).

(c) Presumption. The failure to file thecertificate required in paragraph (b) mnayresult in a presumption ofreimbursement.

1 153.56 Canversion of currencies.(a) Rule for conversion. In

determining the existence and amount ofany difference between the UnitedStates price and the fair value or foreignmarket value for the purposes of thispart or of the Act, any necessaryconversion of a foreign currency into itsequivalent in United States currencyshall be made in accordance with theprovisions of section i of the TanrffAct of 1930. as.amended (31 U.S.C. 3721:

(1) As of the date of purchase oragreement to purchase. if the purchaseprice is an element of the comparsion: or

(2) As oi the date of exportation. if theexporter's sales price is an element ofthe comparsion.

(b) Special rules for/air valueinvestigations. For purposes of fairvalue investigations. manufacturers.exporters. and imoorters concerned willbe expected to act within a reasonableperiod of time to take into account pricedifferences resulting from sustainedchanges in prevailing exchange rates.Where prices under consideration areaffected by temporary exchange ratefluctuations, no differences between theprices being compared resulting solelyfrom such exchange rate fluctuationswill be taken into account in fair valueinvestigations.§ 353.57 Entered value not controllingThe fact that the importer has

indicated, on entry. the differencebetween the United States price and theforeign market value and the districtdirector of Customs has approved theresulting entered value shall not preventthe assessment of the antidumoLng duty.

A.DP/l/Add..3Page 4.3

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