(b) Sales with quantity discount in calculating foreign market value. The Secretary will calculate foreign market value based on sales with quantity discounts if: (1) During the period examined or during a more representative period, the producer or reseller granted quantity discounts of at least the same magnitude on 20 percent or more of sales of such or similar merchandise for the relevant country; or (2) The producer demonstrates to the Secretary's satisfaction that the discounts reflect savings specifically attributable to the production of the different quantities. (c) Sales with quantity discounts in calculating weighted-average foreign market value. If the producer or reseller does not satisfy the conditions in paragraph (b), the Secretary will calculate foreign market value based on a weighted-average price or prices that include sales at a discount. (d) In determining whether a discount has been given, the existence of a published price list reflecting such a discount will not be controlling. A price list ordinarily will be accepted only if, in the line of trade and market under consideration, the producer or reseller demonstrates that it has adhered to its price list. § 353.56 Differences in circumstances of sale. (a) In general. (1) In calculating foreign market value, the Secretary will make a reasonable allowance for a bona fide difference in the circumstances of the sales compared if the Secretary is satisfied that the amount of any price differential is wholly or partly due to such difference. In general, the Secretary will limit allowances to those circumstances which bear a direct relationship to the sales compared. (2) Differences in circumstances of sale for which the Secretary will make reasonable allowances normally are those involving differences in commissions, credit terms, guarantees, warranties, technical assistance, and servicing. The Secretary also will make reasonable allowances for differences in selling costs (such as advertising) incurred by the producer or reseller but normally only to the extent that such costs are assumed by the producer or reseller on behalf of the purchaser from that producer or reseller. (b) Special rule. (1) Notwithstanding paragraph (a), the Secretary normally will make a reasonable allowance for other selling expenses if the Secretary makes a reasonable allowance for commissions in one of the markets under consideration and no commission is paid in the other market under consideration, but the Secretary will limit the amount of such allowance to the amount of the other selling expenses incurred in the one market or the commissions allowed in the other market, whichever is less. (2) In comparisons with exporter's sales price, the Secretary will make a reasonable deduction from foreign market value for all expenses, other than those described in paragraph (a)(1) or (a)(2), incurred in selling such or similar merchandise up to the amount of the expenses, other that those described in paragraph (a)(1) or (a)(2), incurred in selling the merchandise. (c) Reasonable allowance. In deciding what is a reasonable allowance for any difference in circumstances of sale, the Secretary normally will consider the cost of such difference to the producer or reseller but, if appropriate, may also consider the effect of such difference on the market value of the merchandise. § 353.57 Differences in physical char acteristics. (a) In general. In calculating foreign market value, the Secretary will make a reasonable allowance for differences in the physical characteristics of merchandise compared to the extent that the Secretary is satisfied that the amount of any price differential is wholly or partly due to such difference. (b) Reasonable allowance. In deciding what is a reasonable allowance for any difference in physical characteristics, the Secretary normally will consider differences in the cost of production but, where appropriate, may also consider differences in the market value. The Secretary will not consider differences in cost of production when compared merchandise has identical physical characteristics. §353.58 Level of trade. The Secretary normally will calculate foreign market value and United States price based on sales at the same commercial level of trade. If sales at the same commercial level of trade are insufficient in number to permit an adequate comparison, the Secretary will calculate foreign market value based on sales of such or similar merchandise at the most comparable commercial level of trade as sales of the merchandise and make appropriate adjustments for differences affecting price comparability. $353.59 Disregarding insignificant adjustments; use of averaging and sampling. (a) Insignificant adjustments. The Secretary may disregard adjustments to foreign market value which are insignificant. Ordinarily, the Secretary will disregard individual adjustments having an ad valorem effect of less than 0.33 percent, or any group of adjustments having an ad valorem effect of less than 1.0 percent, of the foreign market value. Groups of adjustments are differences in circumstances of sale, differences in the physical characteristics of the merchandise, and differences in the levels of trade. (b) Averaging or sampling. (1) In calculating United States price or foreign market value, the Secretary may use averaging or generally recognized sampling techniques whenever a significant volume of sales or number of adjustments are involved. (2) The Secretary will select the appropriate representative samples. §353.60 Conversion of currency. (a) Rule for conversion. The Secretary will convert, under section 522 of the Act (31 U.S.C. 5151(c)), a foreign currency into the equivalent amount of United States currency at the rates in effect on the dates described in §353.46, §353.49, or §353.50, as appropriate. (b) Special rules for investigations. For purposes of investigations, producers, resellers, and importers will be expected to act within a reasonable period of time to take into account price differences resulting from sustained changes in prevailing exchange rates. When the price of the merchandise is affected by temporary exchange rate fluctuations, the Secretary will not take into account in fair value comparisons any difference between United States price and foreign market value resulting solely from such exchange rate fluctuation. Subpart E-Effective Dates §353.71 Effective dates of amendments to the Tariff Act of 1930 made by the Omnibus Trade and Competitiveness Act of 1988. In accordance with section 1337 of the Omnibus Trade and Competitiveness Act of 1988 (Pub. L. No. 100-418) ("the 1988 Act"), the amendments to the Tariff Act of 1930 made by the 1988 Act are deemed effective as follows: (a) Except as provided in paragraphs (b), (c), (d), (e), and (f) of this section, all amendments made by Title I, Subtitle C, Part II of the 1988 Act which affect authorities administered by the Secretary are deemed effective as of August 23, 1988. (b) Amendments made by sections 1312, 1315, 1316, 1318, 1325, 1326, 1327, 1331, and 1332 of the 1988 Act which affect authorities administered by the Secretary are deemed to take effect immediately with respect to all investigations, section 736(c) reviews, or section 751 reviews initiated after August 23, 1988. (c) The amendment made by section 1324 of the 1988 Act which affects authorities administered by the Secretary is deemed to apply only to investigations initiated after August 23, 1988. (d) The amendments made by sections 1321(a) and 1334 of the 1988 Act which affect authorities administered by the Secretary are deemed to be effective with respect to articles entered, or withdrawn from warehouse for consumption, on or after August 23, 1988. (e) The amendments made by sections 1321(b) and 1335 of the 1988 Act which affect authorities administered by the Secretary are deemed to be effective with respect to entries, and withdrawals from warehouse for consumption, that are liquidated on or after August 23, 1988. (f) The amendment made by section 1319 is deemed effective with respect to all section 736(c) and section 751 reviews initiated on or after August 23, 1988, as well as to all section 736(c) and section 751 reviews for which there is a request for revocation pending on August 23, 1988. (g) Notwithstanding the provisions of paragraphs (a) through (f) of this section, the Secretary may implement the amendments of the 1988 Act at a date later than August 23, 1988, if the Secretary determines that implementation in accordance with paragraphs (a) through (f) of this section would prevent the Department from complying with other requirements of law. [55 FR 9052, Mar. 9, 1990] ANNEX I-TIME LIMITS FOR SUBMISSIONS SPECIFIED IN THIS PART 354.11 Prehearing conference. 354.12 Hearing. 354.13 Proceeding without a hearing. AUTHORITY: 5 U.S.C. 301, and sec. 777 of the Tariff Act of 1930, as amended by sec. 619 of The Trade and Tariff Act of 1984, Pub. L. 93573, 98 Stat. 2948, 3038, and sec. 1886(a)(13) of the Tax Reform Act of 1986, Pub. L. 99-514, 100 Stat. 2085. SOURCE: 53 FR 47920, Nov. 28, 1988, unless otherwise noted. §354.1 Scope. This part sets forth the procedures for imposing sanctions for violation of an administrative protective order issued under 19 CFR 353.30 or 355.20, or successor regulations, as authorized by 19 U.S.C. 1677f(c). §354.2 Definitions. For purposes of this part: (a) Affected party means a party against whom sanctions have been proposed but who is not a charged party; (b) APO Sanctions Board means the Administrative Protective Order Sanctions Board; (c) Charged party means a person who is charged by the Deputy Under Secretary with violating a protective order; (d) Chief Counsel means Chief Counsel for Import Administration, or designee; (e) Date of service means the day a document is deposited in the mail or delivered in person; (f) Days means calendar days, except that a deadline which falls on a weekend or holiday shall be extended to the next working day; (g) Department means Department of Commerce; (h) Deputy Under Secretary means Deputy Under Secretary for International Trade, or designee; (i) Director means an Office Director under the Deputy Assistant Secretary for Investigations, International Trade Administration, or designee, who shall be responsible for conducting an investigation of an alleged violation of an administrative protective order if the incident is discovered during an administrative review, or an Office Director under the Deputy Assistant Secretary for Compliance, International Trade Administration, or designee, if the incident is discovered during any other time; (j) Lesser included sanction means a sanction of the same type but of more limited scope than the proposed sanction; thus a one-year bar on representations before the International Trade Administration is a lesser included sanction of a proposed seven-year bar; (k) Parties means the Department and the charged party or affected party in an action under this part; (1) Person means an individual, partnership, corporation, association, organization, or other entity; (m) Presiding official means the person authorized to conduct hearings in administrative proceedings or to rule on any motion or make any determination under this part, who may be an Administrative Law Judge, a Hearing Commissioner, or such other person who is not under the supervision or control of the Assistant Secretary for Import Administration, the Deputy Under Secretary for International Trade, the Chief Counsel for Import Administration, or a member of the APO Sanctions Board; (n) Proprietary information means information the disclosure of which the Secretary has decided is limited under 19 CFR 353.29 or 355.19, including business or trade secrets; production costs; distribution costs; terms of sale; prices of individual sales, likely sales, or offers; names of customers, distributors, or suppliers; exact amounts of the gross net subsidies received and used by a person; names of particular persons from whom proprietary information was obtained; and any other business information the release of which to the public would cause substantial harm to the competitive position of the submitter; (0) Protective order means an administrative protective order issued by the Secretary under 19 CFR 353.30 or 355.20; and (p) Under Secretary means Under Secretary for International Trade, or designee. §354.3 Sanctions. (a) A person determined under this part to have violated a protective order may be subjected to any or all of the following sanctions: (1) Barring such person from appearing before the International Trade Administration to represent another for a designated time period from the date of publication in the FEDERAL REGISTER of a notice that a violation has been determined to exist; (2) Denying the person access to proprietary information for a designated time period from the date of publication in the FEDERAL REGISTER of a notice that a violation has been determined to exist; (3) Other appropriate administrative sanctions, including striking from the record any information or argument submitted by, or on behalf of, the violating party or the party represented by the violating party; terminating any proceeding then in progress; or revoking any order then in effect; and (4) Requiring the person to return material previously provided by the Department and all other materials containing the proprietary information, such as briefs, notes, or charts based on any such information received under an administrative protective order. (b) (1) The firm of which a person determined to have violated a protective order is a partner, associate or employee; any partner, associate, employer, or employee of such person; and any person represented by such person may be barred from appearing before the International Trade Administration for a designated time period from the date of publication in the FEDERAL REGISTER of notice that a violation has been determined to exist or may be subjected to the sanctions set forth in paragraph (a) of this section, as appropriate. (2) Each person against whom sanctions are proposed under paragraph (b)(1) of this section is entitled to all the administrative rights set forth in this part separately and apart from rights provided to a person subject to sanctions under paragraph (a) of this section, including the right to a charging letter, right to representation, and right to a hearing, but subject to joinder or consolidation by a presiding official under §354.12(b). §354.4 Suspension of rules. Upon request by the Deputy Under Secretary, a charged or affected party, or the APO Sanctions Board, a presiding official may modify or waive any rule in the part upon determining that no party will be unduly prejudiced and the ends of justice will thereby be served and upon notice to all parties. $354.5 Report of violation and investigation. (a) An employee of the Department of Commerce who has information indicating that the terms of an administrative protective order have been violated will provide the information to the appropriate Director or the Chief Counsel. (b) Upon receiving information which indicates that a person may have violated the terms of an administrative protective order, from an employee of the Department of Commerce or any other person, the appropriate Director will conduct an investigation concerning whether there was a violation of a protective order, and who was responsible for the violation, if any. For purposes of this part, the Director will be supervised by the Deputy Under Secretary for International Trade with guidance from the Chief Counsel. The Director will conduct an investigation only if the information is received within 30 days after the alleged violation occurred or, as determined by the Director, could have been discovered through the exercise of reasonable and ordinary care. (c) The appropriate Director will provide a report of the investigation to the Deputy Under Secretary, after review by the Chief Counsel, no later than 180 days after receiving information concerning a violation. Upon the appropriate Director's request, and if extraordinary circumstances exist, the Deputy Under Secretary may grant the appropriate Director up to an additional 180 days to conduct the investigation and submit the report. (d) The following examples of actions that constitute violations of an administrative protective order shall serve as guidelines to each person subject to a protective order. These examples do not represent an exhaustive list. Evidence that one of the acts described in |