within 10 percent of the actual figure, and if an individual portion of the data is voluminous, at least one percent representative of that portion is individually summarized in this manner); or

(2) A statement itemizing those portions of the proprietary information which cannot be summarized adequately and all arguments supporting that conclusion for each portion.

(3) All requests for proprietary treatment of information contained in petitions submitted under §353.12 and proposed suspension agreements submitted under §353.18(g)(1)(i) shall be accompanied by a public summary and statement described in paragraphs (b)(1) and (b)(2) of this section.

(c) Agreement to release. All requests for proprietary treatment shall include either an agreement to permit disclosure under administrative protective order, or a statement itemizing which portions of the proprietary information should not be released under administrative protective order and all arguments supporting that conclusion for each portion. The Secretary ordinarily will not provide the submitter further opportunity for argument on whether to grant a request for disclosure under administrative protective order.

(d) Return of information as a result of nonconforming request. The Secretary may return to the submitter any factual information for which the submitter requested proprietary treatment when the request does not conform to the requirements of this section and in any event will not consider the information. If the Secretary returns the information, the Secretary will provide a written explanation of the reasons why it does not conform and will not consider it unless it is resubmitted with a new request which complies with the requirements of this section not later than two business days after receipt of the Department's explanation for rejection of the information.

(e) Status during consideration of request. While considering whether to grant a request for proprietary treatment, the Secretary will not disclose or make public the information. The Secretary normally will decide not later than 14 days after the Secretary receives the request.

(f) Treatment of proprietary information. Unless the Secretary otherwise provides, the person to whom the Secretary discloses information shall not disclose the information to any other person. The Secretary may disclose factual information which the Secretary decides is proprietary only to:

(1) A representative of an interested party who requests and is granted an administrative protective order under §353.34;

(2) An employee of the Department directly involved in the proceeding for which the information is submitted;

(3) An employee of the Commission directly involved in the proceeding for which the information is submitted;

(4) An employee of the Customs Service directly involved in conducting a fraud investigation relating to an antidumping duty proceeding on the merchandise;

(5) Any person to whom the submitter specifically authorizes (in writing) disclosure; and

(6) A charged party or counsel for the charged party under part 354 of this title (19 CFR Part 354).

(g) Denial of request for proprietary treatment. If the Secretary decides that the factual information does not warrant proprietary treatment in whole or in part, the Secretary will notify the submitter. Unless the submitter agrees that the information be considered public, the Secretary will return the information to the submitter with written notice stating the reasons for return of the information and will not consider it in the proceeding.

[54 FR 12769, Mar. 28, 1989; 54 FR 13294, Mar. 31, 1989, as amended at 57 FR 30903, July 13, 1992]

§ 353.33 Information exempt from disclosure.

Privileged or classified information is exempt from disclosure to the public or to representatives of interested parties.

§353.34 Disclosure of proprietary information under administrative protective order.

(a) In general. Upon receipt of an application (before or after receipt of the information requested) which describes

in general terms the information requested and sets forth the reasons for the request, the Secretary shall require all proprietary information presented to, or obtained by it, during a segment of a proceeding (except privileged information, classified information, and specific information of a type for which there is a clear and compelling need to withhold from disclosure) to be disclosed to interested parties who are parties to the proceeding under a protective order described in this section, regardless of when the information is submitted during the segment of the proceeding.

(b) Request for disclosure. (1) A representative must file a request for disclosure under administrative protective order not later than the later of:

(i) 30 days after the date of publication in the FEDERAL REGISTER of the notice of initiation under §353.11 or §353.13, or the notice of initiation of administrative review under §353.22; or (ii) 30 days after the initiation of a scope inquiry pursuant to §353.29(a) or (b); or

(iii) 10 days after the date the representative's client or employer becomes a party to the proceeding, but in no event later than the date the case briefs, under § 353.38 are due.

(2) The representative must file the request for disclosure on the standard form provided by the Secretary (Form ITA-367). The standard form will require only such particularity in the description of the requested information as is consistent with both the criteria the Secretary uses to decide whether to disclose, and with the fact that a request may be made for factual information not yet submitted.

(3) The request shall obligate the representative:

(i) Not to disclose the proprietary information to anyone other than the submitter and other persons authorized by an administrative protective order to have access to the information;

(ii) To use the information solely for the segment of the proceeding in which it was submitted;

(iii) To ensure the security of the proprietary information at all times; and

(iv) To report promptly to the Secretary any apparent violation of the terms of the protective order.

(4) The request shall contain an acknowledgment by the representative

that:

(i) A representative determined to have violated a protective order may be subject to any or all of the sanctions listed in part 354 of this title; and

(ii) The firm of which a person determined to have violated a protective order is a partner, associate, or employee, and any partner, associate, employer, or employee of such person, may be subject to any or all of the sanctions listed in part 354 of this title.

(5) The Secretary will decide whether to disclose information under administrative protective order:

(i) Not later than 14 days after the date on which the information is submitted; or

(ii) If—

(A) The person who submitted the information raises objection to its release, or

(B) The information is usually voluminous or complex,

not later than 30 days after the date on which the information is submitted.

(6) If the Secretary decides that disclosure of information under administrative protective order is proper under paragraph (5), above:

(i) With respect to proprietary information submitted to the Secretary on or before the date of the decision to disclose, the submitting party shall, within two business days of the date of decision, serve the party which requested such disclosure, in accordance with §353.31(g); and

(ii) The submitting party shall serve all future submissions of proprietary information directly on the requesting party as required by § 353.31(g).

(c) Opportunity to withdraw proprietary information. If the Secretary decides to require disclosure of proprietary information under administrative protective order without the consent of the submitter, the Secretary will provide to the submitter written notice of the decision and the reasons therefor and will permit the submitter to withdraw the information from the official record within two business days. The Secretary will not consider

withdrawn information. Furthermore, if the submitter does not withdraw the information but fails to serve the party requesting such information, in accordance with §353.34(b)(6), the Secretary will not consider such information.

(d) Disposition of proprietary information disclosed under administrative protective order. (1) At the expiration of the time for filing for judicial review of a decision by the Secretary, if there is no filing by any party to the proceeding, or at an earlier date the Secretary decides appropriate, the representative must return or destroy all proprietary information released under this section and all other materials containing the proprietary information (such as notes or memoranda). The representative at that time must certify to the Secretary full compliance with the terms of the protective order and the return or destruction of all proprietary information.

(2) The representative of a party to the proceeding that files for judicial review or intervenes in the judicial review may retain the proprietary information, provided that the party applies for a court protective order for the information not later than 15 days after the Secretary files the administrative record with the court. If the court denies the party's application for a court protective order, the representative must return or destroy the proprietary information and all other materials containing the proprietary information not later than 48 hours after the court's decision and certify to the Secretary as provided under paragraph (d)(1) of this section.

(e) Violation of administrative protective order. The procedures for investigating any alleged violation of an administrative protective order issued under this section and for imposing sanctions for a violation of such order are set forth in part 354 of this title (19 CFR Part 354).

[53 FR 12769, Mar. 28, 1988, as amended at 55 FR 9052, Mar. 9, 1990]

§353.35 Ex parte meeting.

The Secretary will prepare for the official record a written memorandum of any ex parte meeting between any person providing factual information in connection with a proceeding and the

(ii) The final results of an expedited review under § 353.22(g);

(iii) A revocation under § 353.25;

(iv) The final results of an administrative review under §353.22 (c) or (f) if the Secretary decides that good cause for verification exists; and

(v) The final results of an administrative review under §353.22(c) if:

(A) An interested party, as defined in paragraph (k)(3), (k)(4), (k)(5), or (k)(6) of §353.2, not later than 120 days after the date of publication of the notice of initiation of review, submits a written request for verification; and

(B) The Secretary conducted no verification under this paragraph during either of the two immediately preceding administrative reviews.

(2) If the Secretary decides that, because of the large number of producers and resellers included in an investigation or administrative review, it is impractical to verify relevant factual information for each person, the Secretary may select and verify a sample. The Secretary will apply the results of the verification of the sample to all producers and resellers included in the investigation or review.

(b) Notice of verification. In publishing a notice of final determination, revocation, or final results of administrative review, the Secretary will report the methods and procedures used to verify under this section.

(c) Procedures for verification. In verifying under this section, the Secretary will notify the government of the foreign country in which verification takes place that employees of the Department will visit with producers or

resellers in order to verify the accuracy and completeness of submitted factual information. As part of the verification, employees of the Department will request access to all files, records, and personnel of the producers, resellers, importers, or unrelated purchasers which the Secretary considers relevant to factual information submitted.

§353.37 Best information available.

(a) Use of best information available. The Secretary will use the best information available whenever the Secretary:

(1) Does not receive a complete, accurate, and timely response to the Secretary's request for factual information; or

(2) Is unable to verify, within the time specified, the accuracy and completeness of the factual information submitted.

(b) What is best information available. The best information available may include the factual information submitted in support of the petition or subsequently submitted by interested parties, as defined in paragraph (k)(3), (k)(4), (k)(5), or (k)(6) of §353.2. If an interested party refuses to provide factual information requested by the Secretary or otherwise impedes the proceeding, the Secretary may take that into account in determining what is the best information available.

§ 353.38 Written argument and hearings.

(a) Written argument. The Secretary will consider in making the final determination under §353.18(i) or §353.20 or the final results under §353.22 only written arguments in case or rebuttal briefs filed within the time limits in this section. The Secretary will not consider or retain in the record of the proceeding any written argument, unless requested by the Secretary (and received within the time limit specified by the Secretary), that is submitted after the time limits specified in this section. At any time during the proceeding, the Secretary may request written argument on any issue from any interested party or United States government agency. The Secretary will return to the submitter, with written notice stating the reasons for return of

the document, any written argument submitted after the time limits specified in this section or by the Secretary.

(b) Request for hearing. Not later than 10 days after the date of publication of the Secretary's preliminary determination or preliminary results of administrative review, unless the Secretary alters this time limit, any interested party may request that the Secretary hold a public hearing on arguments to be raised in case or rebuttal briefs. To the extent practicable, a party requesting a hearing shall identify arguments to be raised at the hearing. At the hearing, an interested party may make an affirmative presentation only on arguments included in that party's case brief and may make a rebuttal presentation only on arguments included in that party's rebuttal brief.

(c) Case brief. (1) Any interested party or U.S. Government agency may submit a "case brief":

(i) Not later than 50 days after the date of publication of the Secretary's preliminary determination in an investigation, unless the Secretary alters this time limit;

(ii) Not later than 30 days after the date of publication of the preliminary results of administrative review under §353.22 (c) or (f); or

(iii) At any time specified by the Secretary in an expedited review under §353.22(g).

(2) The case brief shall separately present in full all arguments that continue in the submitter's view to be relevant to the Secretary's final determination or final results, including any arguments presented before the date of publication of the preliminary determination or preliminary results.

(d) Rebuttal brief. Not later than the time limit stated in the notice of the Secretary's preliminary determination or preliminary results (or otherwise specified by the Secretary for an expedited review under §353.22(g)), ordinarily five days in an investigation and seven days in an administrative review after the time limit for filing the case brief, any interested party or U.S. Government agency may submit a "rebuttal brief." The rebuttal brief shall separately present in full all rebuttal arguments, responding only to arguments raised in case briefs.

(e) Service of briefs. The submitter of either a case or rebuttal brief shall serve a copy of that brief on any interested party on the Department's service list and on any U.S. Government agency that has submitted in the segment of the proceeding a case or rebuttal brief. If the party has designated under §353.31(h) an agent in the United States, service shall be either by personal service on the same day the brief is filed with the Secretary or by overnight mail or courier on the next day and, if the party has designated an agent outside the United States, service shall be by first class airmail. The submitter shall attach to each brief a certificate of service listing the parties (including agents) served and, for each, the date and method of service.

(f) Hearings. If an interested party submits a request under paragraph (b) of this section, the Secretary will hold a public hearing on the date stated in the notice of the Secretary's preliminary determination or preliminary results of administrative review (or otherwise specified by the Secretary in an expedited review under §353.22(g)), unless the Secretary alters the date. Ordinarily, the hearing will be held, in an investigation, two days after the scheduled date for submission of rebuttal briefs and, in an administrative review, seven days after the scheduled date for submission of rebuttal briefs.

(1) The Secretary will place a verbatim transcript of the hearing in the public and official records of the proceeding and will announce at the hearing how interested parties may obtain copies of the transcript.

(2) One of the following employees of the Department will chair the hearing: the Assistant Secretary for Import Administration; the Deputy Assistant Secretary for Import Administration; the Deputy Assistant Secretary for Investigations; the Deputy Assistant Secretary for Compliance; or the office or division director responsible for the proceeding.

(3) The hearing is not subject to the Administrative Procedure Act. Witness testimony, if any, shall not be under oath or subject to cross-examination by another interested party or witness. During the hearing, the chair may question any interested party or wit

ness and may request interested parties to present additional written argument.

(g) Where to file; time of filing. The requirements in §353.31(d) apply to this section.

(h) Format and number of copies. The requirements in §353.31(e) apply to this section, except that in an administrative review submit 10 copies of each brief and five copies of the public version, including the public summary required under §353.32(b).

(i) Public comment on information. In any investigation or review under this part, the Secretary will specify a date on which the Secretary will cease collecting information and on which the Secretary will release to parties that have participated in the investigation or review all information on which the parties have not previously had an opportunity to comment. Any such information that is business proprietary information will be released to persons authorized to obtain such information pursuant to §353.34. Parties shall have an opportunity to file written comments on any information released to them, and the date on which such comments must be filed will be specified by the Secretary. The Secretary will disregard comments containing new factual information.

[54 FR 12769, Mar. 28, 1989, as amended at 60 FR 25136, May 11, 1995]

Subpart D-Calculation of United

States Price, Fair Value, and
Foreign Market Value

§ 353.41 Calculation of United States price.

(a) In general. United States price means the purchase price or the exporter's sales price of the merchandise, as appropriate. In calculating the United States price, the Secretary will use sales or, in the absence of sales, likely sales, as defined in § 353.2(t).

(b) Purchase price. "Purchase price" means the price at which the merchandise is sold or likely to be sold prior to the date of importation, by a producer or reseller of the merchandise for exportation to the United States. The Secretary will make appropriate adjustments for costs and expenses under