part thereof, be held confidential. Information covered by such a request shall be set forth on separate pages from other information; and all such pages shall be clearly marked “Confidential Treatment Requested." The Commissioner of Customs or the Secretary of the Treasury or the delegate of either will determine, pursuant to paragraph (c) of this section, whether such information, or any part thereof, shall be treated as confidential. If it is so determined, the information covered by the determination will not be made available for inspection or copying by any person other than an officer or employee of the United States Government or a person who has been specifically authorized to receive it by the person requesting confidential treatment. If it is determined that information submitted with such a request, or any part thereof, should not be treated as confidential, or that summarized or approximated presentations thereof should be made available for disclosure, the person who has requested confidential treatment thereof shall be promptly so advised and, unless he thereafter agrees that the information, or any specified part or summary or approximated presentations thereof, may be disclosed to all interested parties, the information will not be made available for disclosure, but to the extent that it is self-serving it will be disregarded for the purpose of the determination as to sales below fair value and no reliance shall be placed thereon in this connection. (c) Standards for determining whether information will be regarded as confidential. (1) Information will ordinarily be considered to be confidential only if its disclosure would be of significant competitive advantage to a competitor or would have a significantly adverse effect upon a person supplying the information or upon a person from whom he acquired the information. Further, if disclosure of information in specific terms or with identifying details would be inappropriate under this standard, the information will ordinarily be considered appropriate for disclosure in generalized, summary or approximated form, without identifying details, unless the Commissioner of Customs or the Secretary of the Treasury or the delegate of either determines that even in such generalized, summary or approximated form, such disclosure would still be of significant competitive advantage t competitor or would still have a sign cantly adverse effect upon a person s plying the information or upon a per from whom he acquired the informat As indicated in paragraph (b) of 1 section, however, the decision that formation is not entitled to protect from disclosure in its original or in other form will not lead to its disclos unless the person supplying it conse to such disclosure. (2) Information will ordinarily be garded as appropriate for disclosur it (i) Relates to price information; (ii) Relates to claimed freely availa price allowances for quantity purchas or (iii) Relates to claimed differences circumstances of sale. (3) Information will ordinarily be garded as confidential if its disclos would (i) Disclose business or trade secrets (ii) Disclose production costs; (iii) Disclose distribution costs, exc to the extent that such costs are cepted as justifying allowances for qui tity or differences in circumstances sale; (iv) Disclose the names of particu customers or the price or prices at wh particular sales were made. (Sec. 407, 42 Stat. 18; 19 U.S.C. 173) [7 56315, 29 F.R. 16321, Dec. 5, 1964] § 14.7 Fair value. 15 The definition of fair value does not any way modify or affect definitions of i eign market value given in section 205 of Antidumping Act, 1921, as amended U.S.C. 164), or of constructed value gi in section 206 (19 U.S.C. 165) or the app cation of a foreign market value (or, in absence of such value, constructed value) defined in the Antidumping Act, 1921, amended, as a basis for determining whet! or not to withhold appraisement under s tion 201(b) (19 US.C. 160(b)) or for i position of duty under section 202 U.S.C. 161). An industry in the United States whi considers that it is being injured by sales merchandise at less than fair value ordinarily have insufficient information which to submit proof either of fair value herein defined, or foreign market value constructed value as defined in said sectic 205 and 206 (19 U.S.C. 184 and 165). T industry may, however, submit, and a (Footnote 15—Continued) Isers will consider, such material as is ilable to it, including information inding the market price for similar merndise in the country of exportation and my third countries in which merchandise the producer complained of is known to sold. Information submitted by an intry and information submitted by the ign producer and others will be of value assisting the Treasury to establish the s for fair value, foreign market value, or structed value. air value is computed on the basis of sales consumption in the country of exportaor for exportation otherwise than to the ted States at or about the date of the chase or agreement to purchase of the chandise to be imported into the United tes, or the date of exportation. However, ases where it may be important to detere either the stability of the market or its id, as well as to determine whether there been a fictitious sale as described in 7(b) (6) of these regulations, it will be ful to the Secretary to have information to sales made for consumption in the ntry of exportation or for exportation erwise than to the United States over a ificant period of time immediately preIng the date of purchase or agreement to chase, or exportation. LAMPLES FOR PURPOSES OF ILLUSTRATION few examples of what would and what uld not be considered sales at less than value are given below. Unless otherwise icated, it is assumed that individual sales in the same average quantities and that y are also made under the same circumices of sale. : must be understood that these examples 1ecessity oversimplify for purposes of ilration. Each actual case of alleged s at less than fair value must be conred in the light of all relevant facts, and nay be seldom that cases will be preted for consideration which are as free complications as are the cases cited in se examples. The tentative conclusions forth below cannot, therefore, be conred as decisions which are binding upon Secretary of the Treasury. They are in ticular subject to the qualification that re may be other factors present, not here ted, or not sufficiently emphasized for the poses of an actual case, which would lead different or opposite results. s is the case in respect of other laws ninistered in whole or in part by him, the amissioner of Customs stands ready to wer specific inquiries arising under the idumping Act, 1921, as amended, which ite to contemplated transactions, to the t of his ability, notably those involving stions as to whether § 14.7(a) (1) or (2) those regulations applies, and questions to the method of computation which may 33-583-65- -25 The quantity of sales of this product in the country of exportation, amounting to 75,000 units, is sufficiently large in relation to the total of 25,000 units sold for exportation to countries other than the United States to constitute an adequate basis for comparison with sales to the United States. (See § 14.7(a) (1) and (2) of these regulations.) The price for sale to the United States is less than the price in the country of exportation. The foreign producer is therefore selling in the United States at less than fair value. re Home market sales will form the basis of comparison whether or not they are stricted. This example concerns home market prices which are either free of restrictions or accompanied by restrictions that do not affect the value of the merchandise. If there should be restrictions which affect the value of the merchandise, appropriate adjustment of the home market price will be made. Third country prices, even though unrestricted, will not be resorted to in this set of circumstances. Example 2. A foreign producer has made the following sales of a particular product: The foreign producer can show that the quantity of sales of this product in the country of exportation, amounting to 25,000 units, is so small in relation to the total of 75,000 units sold for exportation to countries other than the United States, as to be an inadequate basis for comparison with sales to the United States. Determination of fair value will therefore be based on the selling price for exportation to countries other than the United States, pursuant to § 14.7(a) (2) of these regulations. In the absence of special circumstances, it would appear that the sales for exportation to the United States were not below fair value. Third country sales will form the basis of comparison whether or not they are restricted. This example concerns third country sales which are either free of restrictions or accompanied by restrictions which do not affect the value of the merchandise. If there should be restrictions which affect the value of the merchandise, appropriate adjustment of the third country price will be made. Home market prices, (Footnote 15—Continued) even though unrestricted, will not be resorted to in this set of circumstances. Example 3. A foreign producer has sold his merchandise for consumption in the country of exportation at or about the date of the sale or exportation to the United States at the following prices: 2,000 tons @ $32.80 ton. It is conceded that the price depends upon the bargaining of the parties rather than upon quantity purchased. Sales to the United States have been made by this supplier in the same average quantities at a uniform price of $32.90 per ton during the period. The difference in price between the producer's home market sales or any average thereof and his sales to the United States is so slight that it will not be regarded as more than insignificant unless unusual market conditions in the United States or the quantities involved as compared to United States production justify a contrary conclusion. Example 4. A foreign producer makes all of his sales, other than those to the United States, for consumption in the country of exportation. The majority of the merchandise thus sold by him is sold in 50-ton lots at list prices, net. However, a discount of 5 percent is granted on sales of more than 500 tons and is freely available to those who purchase in the ordinary course of trade. During the six months preceding the date when the question of dumping was raised, the producer made sales of more than 500 tons each with respect to 15 percent of such or similar merchandise which he sold in the home market. Sales for exportation to the United States are at list prices less 5 percent and have been in quantities of over 500 tons. The 5 percent will not be allowed as a quantity discount because less than 20 percent of such or similar merchandise was sold in the home market in quantities to which such discount was applicable, unless the 5 percent discount can be justified by cost savings. Cost savings can also be used to justify a quantity discount where there were no sales in the home market in quantities sufficient to warrant the granting of the 5 percent discount, and no offers because there is no potential market for such quantities. In determining whether a discount has been given, the presence or absence of a published price list reflecting such a discount is not controlling. In certain lines of trade, price lists are not commonly published and in others although commonly published they are not commonly adhered to. The following example also relates to quantity allowances. Example 5. A foreign producer has the Although the lower price in the 1 market appears to obtain for quantitie same as those sold for exportation to United States at the same price, the qua sold for home consumption at the lower is less than 20 percent of the quantity so the home market. Accordingly, the for exportation to the United States i! Justified, unless cost savings can be st to justify the lower price. If 44,000 pc had been sold in the home market a 8.80 price, the lower price would have Justified for comparison with the pric exportation to the United States. Example 6. A foreign producer sell: consumption in the country of export at $12 a unit, regardless of quantities regardless of whether the sales are to w salers or retailers. He sells to retail chasers in the United States at $12 a and wholesale purchasers in the U States at $10 a unit, in each case regar of quantities. The circumstances in this case ind that the foreign producer will be deem have been selling to wholesalers in United States at less than fair v Should, however, his record of sales for sumption in the country of export: show that he sells, regardless of quant at $10 a unit to wholesalers and at $ unit to retailers, then, making allow for the circumstances of sale, the sale the United States will not be deemed t sales at less than fair value. Example 7. A foreign producer sells consumption in the country of exports at $105 a unit, delivered anywhere wi the country of exportation. He has f.o.b. factory price for home consump He sells to the United States f.o.b. fac for $100 a unit. Evidence indicates th costs the producer on the average $0. unit to deliver on home consumption s Giving due consideration to the circ stances of sale, the sales to United St purchasers at $100 a unit will be deeme be sales at less than fair value. Should delivery cost on home consumption : average $5 a unit instead of $0.50, the s to United States purchasers at $100 & 1 will not be deemed to be sales at less t fair value. 21, as amended (19 U.S.C. 160(a)), e fair value of imported merchane shall be determined as follows: (1) Fair value based on price in coun1of exportation-the usual test. Merandise imported into the United States il ordinarily be considered to have been d, or to be likely to be sold, at less than r value if the purchase price or exrter's sales price (as defined in sections } and 204, respectively, of the Antimping Act, 1921, as amended (19 S.C. 162, 163)), as the case may be, or is likely to be, less than the price $ defined in section 205, after adjustint as provided for in section 202 of e Antidumping Act, 1921, as amended 9 U.S.C. 164, 161)), at which such or nilar merchandise (as defined in secin 212(3) of the Antidumping Act, 21, as amended (19 U.S.C. 170a (3)) sold for consumption in the country exportation on or about the date of rchase or agreement to purchase, of e merchandise imported into the ited States if purchase price applies, on or about the date of exportation ereof if exporter's sales price applies. (2) Fair value based on sales for exrtation to countries other than the nited States. If, however, it is demonrated that during a representative peod the quantity of such or similar erchandise sold for consumption in e country of exportation is so small, relation to the quantity sold for exortation to countries other than the nited States, as to be an inadequate isis for comparison, then merchandise nported into the United States will dinarily be deemed to have been sold, ad to be likely to be sold, at less than dr value if the purchase price or the [porter's sales price (as defined in secons 203 and 204, respectively, of the ntidumping Act, 1921, as amended (19 S.C. 162, 163)), as the case may be, is, t is likely to be, less than the price (as efined in section 205, after adjustment $ provided for in section 202 of the ntidumping Act, 1921, as amended (19 [S.C. 164, 161)), at which such or milar merchandise (as defined in seclon 212(3) of the Antidumping Act, 321, as amended (19 U.S.C. 170a (3)) sold for exportation to countries other han the United States on or about the ate of purchase or agreement to purhase of the merchandise imported into he United States if purchase price aplies, or on or about the date of exporta tion thereof if exporter's sales price applies. (3) Fair value based on constructed value. If the information available is deemed by the Secretary insufficient or inadequate for a determination under subparagraph (1) or (2) of this paragraph, he will determine fair value on the basis of the constructed value as defined in section 206 of the Antidumping Act, 1921, as amended (19 U.S.C. 165). (b) Calculation of fair value. In calculating fair value under section 201(a), Antidumping Act, 1921, as amended (19 U.S.C. 160(a)), the following criteria shall be applicable: (1) Quantities. In comparing the purchase price or exporter's sales price, as the case may be, with such applicable criteria as sales or offers, on which a determination of fair value is to be based, reasonable allowances will be made for differences in quantities if it is established to the satisfaction of the Secretary that the amount of any price differential is wholly or partly due to such differences. In determining the question of allowances for differences in quantity, consideration will be given, among other things, to the practice of the industry in the country of exportation with respect to affording in the home market (or third country markets, where sales to third countries are the basis for comparison) discounts for quantity sales which are freely available to those who purchase in the ordinary course of trade. Allowances for price discounts based on sales in large quantities ordinarily will not be made unless (i) the exporter during the six months prior to the date when the question of dumping was raised or presented had been granting quantity discounts of at least the same magnitude with respect to 20 percent or more of such or similar merchandise which he sold in the home market (or in third country markets when sales to third countries are the basis for comparison) and that such discounts had been freely available to all purchasers, or (ii) the exporter can demonstrate that the discounts are warranted on the basis of savings specifically attributable to the quantities involved. (2) Circumstances of sale. (i) In comparing the purchase price or exporter's sales price, as the case may be, with the sales, or other criteria applicable, on which a determination of fair value is to be based, reasonable allowances will be made for bona fide differences in circumstances of sale if it is established to the satisfaction of the Secretary that the amount of any price differential is wholly or partly due to such differences. (ii) Differences in circumstances of sale for which such allowances will be made are limited, in general, to those circumstances which bear a reasonably direct relationship to the sales which are under consideration. Examples of differences in circumstances of sale for which reasonable allowances generally will be made are those involving differences in credit terms, guarantees, warranties, technical assistance, servicing, and assumption by a seller of a purchaser's advertising or other selling costs. Reasonable allowances will also generally be made for differences in commissions. Except in those instances where it is clearly established that the differences in circumstances of sale bear a reasonably direct relationship to the sales which are under consideration, allowances generally will not be made for differences in research and development costs, production costs, and advertising and other selling costs of a seller unless such costs are attributable to a later sale of merchandise by a purchaser; provided that reasonable allowances for selling expenses generally will be made in cases where a reasonable allowance is made for commissions in one of the markets under consideration and no commission is paid in the other market under consideration, the amount of such allowance being limited to the actual selling expense incurred in the one market or the total amount of the commission allowed in such other market, whichever is less. (iii) In determining the amount of the reasonable allowances for any differences in circumstances of sale, the Secretary will be guided primarily by the effect of such differences upon the market value of the merchandise but, where appropriate, may also consider the cost of such differences to the seller, as contributing to an estimate of market value. (3) Similar merchandise. In comparing the purchase price or exporter's sales price, as the case may be, with the selling price in the home market, or for exportation to countries other than the United States, in the case of similar merchandise described in subdivisions (C), (D), (E), or (F) of section 212(3), Anti dumping Act, 1921, as amended U.S.C. 170a (3)), due allowance shall made for differences in the merchandis In this regard the Secretary will guided primarily by the effect of su differences upon the market value of merchandise but, when appropriate, may also consider differences in cost manufacture if it is established to h satisfaction that the amount of any pris differential is wholly or partly due to su differences. (4) Offering price. In the determina tion of fair value, offers will be consi ered in the absence of sales, but an offe made in circumstances in which accept ance is not reasonably to be expected wi not be deemed to be an offer. (5) Sales agency. If such or simila merchandise is sold or, in the absend of sales, offered for sale through a sale agency or other organization related the seller in any of the respects describe in section 207 of the Antidumping A 1921, as amended (19 U.S.C. 166), th price at which such or similar mer chandise is sold or, in the absence sales, offered for sale by such sale agency or other organization may used in the determination of fair value (6) Fictitious sales. In the determi nation of fair value, no pretended sal or offer for sale, and no sale or offe for sale intended to establish a fictition market, shall be taken into account. (7) Sales at varying prices. Whet the prices in the sales which are bein examined for a determination of fa value vary (after allowances provide for in subparagraphs (1), (2), and (3 of this paragraph), determination fair value will take into account th prices of a preponderance of the mer chandise thus sold or weighted average of the prices of the merchandise thu sold. (8) Quantities involved and differ ences in price. Merchandise will not b deemed to have been sold at less that fair value unless the quantity involve in the sale or sales to the United States or the difference between the purchas price or exporter's sales price, as the case may be, and the fair value, is mor than insignificant. (9) Revision of prices or othe changed circumstances. Whenever the Secretary of the Treasury is satisfied that promptly after the commencemen of an antidumping investigation either (i) price revisions have been made which |