§ 351.412Levels of trade; adjustment for difference in level of trade; constructed export price offset.
(a)Introduction. In comparing United States sales with foreign market sales, the Secretary may determine that sales in the two markets were not made at the same level of trade, and that the difference has an effect on the comparability of the prices. The Secretary is authorized to adjust normal value to account for such a difference. (Seesection 773(a)(7) of the Act.)
(b)Adjustment for difference in level of trade. The Secretary will adjust normal value for a difference in level of trade if:
(1) The Secretary calculates normal value at a different level of trade from the level of trade of the export price or the constructed export price (whichever is applicable); and
(2) The Secretary determines that the difference in level of trade has an effect on price comparability.
(c)Identifying levels of trade and differences in levels of trade—
(1)Basis for identifying levels of trade. The Secretary will identify the level of trade based on:
(i) In the case of export price, the starting price;
(ii) In the case of constructed export price, the starting price, as adjusted under section 772(d) of the Act; and
(iii) In the case of normal value, the starting price or constructed value.
(2)Differences in levels of trade. The Secretary will determine that sales are made at different levels of trade if they are made at different marketing stages (or their equivalent). Substantial differences in selling activities are a necessary, but not sufficient, condition for determining that there is a difference in the stage of marketing. Some overlap in selling activities will not preclude a determination that two sales are at different stages of marketing.
(d)Effect on price comparability—
(1)In general. The Secretary will determine that a difference in level of trade has an effect on price comparability only if it is established to the satisfaction of the Secretary that there is a pattern of consistent price differences between sales in the market in which normal value is determined:
(i) At the level of trade of the export price or constructed export price (whichever is appropriate); and
(ii) At the level of trade at which normal value is determined.
(2)Relevant sales. Where possible, the Secretary will make the determination under paragraph (d)(1) of this section on the basis of sales of the foreign like product by the producer or exporter. Where this is not possible, the Secretary may use sales of different or broader product lines, sales by other companies, or any other reasonable basis.
(e)Amount of adjustment. The Secretary normally will calculate the amount of a level of trade adjustment by:
(1) Calculating the weighted-averages of the prices of sales at the two levels of trade identified in paragraph (d), after making any other adjustments to those prices appropriate under section 773(a)(6) of the Act and this subpart;
(2) Calculating the average of the percentage differences between those weighted-average prices; and
(3) Applying the percentage difference to normal value, where it is at a different level of trade from the export price or constructed export price (whichever is applicable), after making any other adjustments to normal value appropriate under section 773(a)(6) of the Act and this subpart.
(f)Constructed export price offset—
(1)In general. The Secretary will grant a constructed export price offset only where:
(i) Normal value is compared to constructed export price;
(ii) Normal value is determined at a more advanced level of trade than the level of trade of the constructed export price; and
(iii) Despite the fact that a person has cooperated to the best of its ability, the data available do not provide an appropriate basis to determine under paragraph (d) of this section whether the difference in level of trade affects price comparability.
(2)Amount of the offset. The amount of the constructed export price offset will be the amount of indirect selling expenses included in normal value, up to the amount of indirect selling expenses deducted in determining constructed export price. In making the constructed export price offset, “indirect selling expenses” means selling expenses, other than direct selling expenses or assumed selling expenses (see§ 351.410), that the seller would incur regardless of whether particular sales were made, but that reasonably may be attributed, in whole or in part, to such sales.
(3)Where data permit determination of affect on price comparability. Where available data permit the Secretary to determine under paragraph (d) of this section whether the difference in level of trade affects price comparability, the Secretary will not grant a constructed export price offset. In such cases, if the Secretary determines that price comparability has been affected, the Secretary will make a level of trade adjustment. If the Secretary determines that price comparability has not been affected, the Secretary will not grant either a level of trade adjustment or a constructed export price offset.
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