[Federal Register Volume 60, Number 1 (Tuesday, January 3, 1995)]
[Rules and Regulations]
[Pages 6-18]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-32126]
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INTERNATIONAL TRADE COMMISSION
19 CFR Part 206
Implementing Rules for the Uruguay Round Agreements Act
AGENCY: United States International Trade Commission.
ACTION: Interim rules with request for comment.
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SUMMARY: The Commission is amending its Rules of Practice and Procedure
to conform with amendments made to sections 201-204 of the Trade Act of
1974 by the Uruguay Round Agreements Act. The amendments, among other
things, conform U.S. law with the Uruguay Round Agreement on Safeguards
and provide for limited disclosure of confidential business information
under administrative protective order.
DATES: The interim amendment to section 206.17 is effective January 3,
1995. All other amendments are effective on January 1, 1995, the date
on which the World Trade Organization (WTO) Agreement enters into force
with respect to the United States, unless the United States Trade
Representative announces prior to that date that the WTO Agreement will
not enter into force on that date. Should the effective date of such
other amendments not be January 1, 1995, the Commission will publish
notice to such effect in the Federal Register.
To be assured of consideration, written comments must be received
not later than April 3, 1995.
ADDRESSES: A signed original and 14 copies of each set of comments,
along with a cover letter addressed to Donna R. Koehnke, Secretary,
should be sent to the Commission, 500 E Street SW., room 112,
Washington, D.C. 20436.
FOR FURTHER INFORMATION CONTACT: William Gearhart, Office of General
Counsel, U.S. International Trade Commission [202-205-3091]. Hearing
impaired individuals are advised that information on this matter can be
obtained by contacting the Commission's TDD terminal on 202-205-1810.
SUPPLEMENTARY INFORMATION:
Background
The Uruguay Round Agreement on Safeguards sets out specific
conditions and rules for taking safeguard actions under the GATT 1947
safeguards provision, article XIX. Article XIX permits a country to
impose import restrictions when increased imports are found to cause or
threaten to cause [[Page 7]] serious injury to a domestic industry, but
otherwise provides few rules with respect to the circumstances under
which such restrictions may be imposed and for how long. The new
Agreement on Safeguards provides additional guidance on how and when
safeguard measures may be applied. Among other things, it requires that
contracting parties follow procedures to ensure transparency (including
a public investigation and published report); limits measures to an 8-
year maximum duration; requires progressive liberalization of safeguard
measures; and provides for expedited procedures that may be applied in
``critical circumstances,'' including special provisions for
proceedings concerning imports of perishable products. It also provides
that for the first 3 years of any safeguard measure put in place to
counter an absolute increase in imports, the exporting countries may
not impose trade retaliation.
Sections 201-204 of the Trade Act of 1974 (Trade Act) implement
article XIX in the United States. U.S. law was already largely
consistent with the Agreement on Safeguards, and therefore only minor
statutory changes were necessary to bring U.S. law into conformity with
the Agreement. U.S. law and practice, in fact, served as a model for
the drafters of the Agreement.
Subtitle A of title III of the Uruguay Round Agreements Act (URAA)
amends sections 201-204 of the Trade Act to bring them into conformity
with the Agreement on Safeguards. Section 301 of the URAA implements
provisions of the Agreement that relate to investigations and
determinations by the United States International Trade Commission
(Commission) under section 202 of the Trade Act. Section 301 also
amends section 202 to require the Commission to promulgate regulations
to provide for limited disclosure of confidential business information
under an administrative protective order in the course of
investigations under section 202 of the Trade Act. Section 302 of the
URAA implements provisions of the Agreement that relate to (1) actions
by the President under section 203 of the Trade Act after he receives
an affirmative Commission determination; and (2) Commission monitoring
reports and investigations and determinations under section 204 of the
Trade Act concerning extension of relief.
The amendments to these rules bring Commission procedures into
conformity with the amendments to sections 202 and 204 of the Trade
Act. The amendments to the rules--
(1) provide for the submission by parties of nonconfidential
summaries of confidential business information and state the
circumstances under which the Commission may disregard the submission
if such summary is not provided;
(2) require petitioners to include within their petition
information with regard to productivity;
(3) incorporate the new limitations in section 202(h) of the Trade
Act concerning investigations with respect to articles the subject of a
prior relief action or articles subject to the Textiles Agreement;
(4) provide for limited disclosure of confidential business
information under administrative protective order;
(5) revise the time for making determinations and reports when
critical circumstances are alleged;
(6) adjust the time for Commission monitoring reports; and (7)
provide procedures for investigations and determinations concerning
extension of relief actions.
Implementation of Interim Rules
Section 335 of the Tariff Act of 1930 (19 U.S.C. Sec. 1335)
authorizes the Commission to adopt such reasonable procedures and rules
and regulations as it deems necessary to carry out its functions and
duties. Additionally, section 103(a) of the URAA specifies that
appropriate officers of the United States Government may issue such
regulations as may be necessary to ensure that any provision of that
act, or amendment made by the act, is appropriately implemented on the
effective date of that act, and section 103(b) of the URAA directs that
any interim regulations necessary or appropriate to carry out any
action proposed in the Statement of Administrative Action approved
under section 101(a) of the URAA to implement an agreement described in
section 101(d)(7), (12), or (13) of the URAA be issued not later than 1
year after the date on which the agreement enteres into force with
respect to the United States. Section 301(b) directs the Commission to
promulgate regulations providing for the limited disclosure of
confidential business information under administrative protective order
in investigations under section 202 of the Trade Act, and the Statement
of Administrative Action directs that the Commission promulgate interim
regulations providing for such disclosure as soon as practicable.
Commission rules to implement new legislation ordinarily are
promulgated in accordance with the rulemaking provisions of section 553
of the Administrative Procedure Act (APA) (5 U.S.C. Sec. 551 et seq.),
which entails the following steps: (1) publication of a notice of
proposed rulemaking; (2) solicitation of public comment on the proposed
rules; (3) Commission review of such comments prior to developing final
rules; and (4) publication of the final rules thirty days prior to
their effective date. See 5 U.S.C. Sec. 553. That procedure could not
be utilized in this instance because the new legislation was enacted on
December 8, 1994, and became effective, with respect to the amendment
to section 202 of the Trade Act providing for limited disclosure of
confidential business information under administrative protective
order, on the date of enactment, and in other respects was expected to
become effective on January 1, 1995. Consequently, it was not possible
to complete the section 553 rulemaking procedure prior to the effective
date of the new legislation.
The Commission thus has determined to adopt interim rules that will
go into effect when the provisions of the URAA amending sections 201-
204 of the Trade Act become effective. These rules will remain in
effect until the Commission can adopt final rules promulgated in
accordance with the usual notice and advance publication procedure for
issuing such rules, taking into account any comments received in
response to this notice.
The Commission's authority to adopt interim rules without following
all steps listed in section 553 of the APA is derived from three
sources: (1) section 335 of the Act (19 U.S.C. Sec. 1335); (2) sections
103 and 301(b) of the URAA, and the Statement of Administrative Action
approved by the URAA; and (3) provisions of section 553 of the APA
which allow an agency to dispense with various steps in the prescribed
rulemaking procedure under certain circumstances. Because these interim
rules comprehensively implement the rules changes required by the URAA,
no additional notice of proposed rulemaking is necessary or
contemplated at this time. However, as stated above, the public is
invited to submit written comments to the Commission for the
Commission's consideration in preparing final rules. To be assured of
consideration, such comments should be received by the Commission not
later than 90 days after publication of this notice in the Federal
Register.
The Commission has determined that the need for interim rules is
clear in this instance. The Commission notes that the new legislation
alters practice and procedure in proceedings under sections 201-204 of
the Trade Act, and [[Page 8]] that the existing Commission rules do not
encompass certain procedures required by the new legislation. The
Commission finds that rulemaking is essential for the orderly
administration of sections 201-204 of the Trade Act as amended by the
new legislation. Furthermore, since the legislation becomes effective
very shortly after enactment, the Commission has concluded that interim
implementing rules should be in place as soon as practicable following
the effective date of the new statute.
The Commission notes that an agency may dispense with publication
of a notice of proposed rulemaking when the following circumstances
exist: (1) the proposed rules are interpretive rules, general
statements of policy, or rules of agency organization, procedure or
practice; or (2) the agency for good cause finds that notice and public
comment thereon are impracticable, unnecessary, or contrary to the
public interest, and that finding (and the reasons therefor) are
incorporated into the rules adopted by the agency. 5 U.S.C.
Sec. 553(b). An agency may also dispense with the publication of a
notice of final rules thirty days prior to their effective date if (1)
the rules are interpretive rules of statements of policy or (2) the
agency finds that ``good cause'' exists for not meeting the advance
publication requirement and that finding is published along with the
rule. 5 U.S.C. Sec. 553(d)(3).
In this instance, the Commission has determined that the requisite
circumstances existed for dispensing with the notice, comment, and
advance publication procedure that ordinarily precedes the adoption of
Commission rules. For purposes of invoking the section 553(b) exemption
from publishing a notice of proposed rulemaking which solicits public
comment, the Commission finds that (1) the interim rules are ``agency
rules of procedure or practice''; and (2) because the new legislation
becomes effective on the date of enactment in the case of the
administrative protective order provision, and is projected to become
effective within 1 month in the case of the other provisions, it
clearly would be ``impracticable'' for the Commission to comply with
the usual notice, comment, and advance publication procedure. For the
purpose of invoking the section 553(d)(3) exemption from publishing
advance notice of the interim rules thirty days prior to their
effective date, the Commission finds that the fact that the new
legislation either becomes effective on the date of enactment or is
expected to become effective within 1 month after enactment makes such
advance publication impossible and constitutes ``good cause'' for the
Commission not to comply with that requirement.
The Commission recognizes that interim regulations should not
respond to anything more than the exigencies created by the new
legislation. Having been promulgated in response to exigencies created
by the new legislation, each interim rule accordingly comes under one
or more of the following categories:
(1) revision of a pre-existing rule that conflicted with the new
legislation;
(2) a technical amendment to make a pre-existing rule conform to
the language of the new legislation;
(3) rewording of a pre-existing rule to avoid confusion about how
the rule is to be applied in light of the new legislation; or
(4) a new rule covering a matter provided for in the new
legislation but not covered by a pre-existing rule.
Because the interim regulations merely respond to exigencies
created by the new legislation, the Commission has further determined
that they do not meet the criteria described in section 3(f) of
Executive Order (EO) 12866 (58 FR 51735, Oct. 4, 1993) and do not
constitute a significant regulatory action for purposes of the EO.
In accordance with the Regulatory Flexibility Act (5 U.S.C.
Sec. 601 note), the Commission hereby certifies pursuant to 5 U.S.C.
Sec. 605(b) that the rules set forth in this notice are not likely to
have a significant impact on a substantial number of small business
entities. In any event, the Regulatory Flexibility Act is inapplicable
to this rulemaking because it is not one in which a notice of proposed
rulemaking is required under 5 U.S.C. Sec. 553(b).
Explanation of Proposed Amendments
Section 206.2, which provides for the identification of type of
petition or request, is amended to include a reference to petitions for
extension of relief actions filed under section 204(c) of the Trade Act
and Subpart F of Part 206 of the Commission's rules. Section 302(d) of
the URAA amends section 204 to provide for the filing of such
petitions.
Section 206.3, concerning institution of investigations,
publication of notice, and availability of petitions for public
inspection, is revised to add subheadings and to indicate that there
are exceptions to the general rule that the Commission will institute
an investigation after receipt of a petition--namely, as set out in
section 206.15(b).
Section 206.5, concerning public hearings, is amended by adding a
new paragraph (c) to state that the Commission will hold a public
hearing in connection with each investigation under Subpart F of Part
206 of the Commission's rules concerning whether an action taken by the
President under section 203 of the Trade Act should be extended.
Section 204(c) of the Trade Act, as amended by section 302(d) of the
URAA, requires that the Commission hold a public hearing in connection
with each such investigation. Current paragraph (c) of rule section
206.5 is redesignated as paragraph (d). Two minor editorial changes are
made in paragraphs (a) and (d).
Section 206.6, concerning Commission reports to the President, is
amended by adding new subheadings and redesignating paragraphs, and by
adding language to clarify what information will be included in all
Commission reports to the President under Part 206, and what additional
findings and information will be included in reports containing
determinations under section 202(b) of the Trade Act and section 302(b)
of the North American Free Trade Agreement Implementation Act.
Section 206.7, concerning confidential business information, is
retitled and subdivided into two paragraphs. Paragraph (a) largely
tracks the current rule and states that the Commission will not release
confidential business information except under the circumstances
indicated. Language is added to provide notice that the Commission,
when appropriate, will include confidential business information in
reports furnished to the President; this language reflects longstanding
Commission practice, and Commission questionnaires issued in connection
with investigations under section 202 of the Trade Act routinely
provide notice of this possibility. Paragraph (b) is new. It requires,
except as the Commission may otherwise provide, that parties submitting
confidential business information must also submit nonconfidential
summaries of such information. It further states the circumstances
under which the Commission may disregard the information when the party
does not provide a summary. Section 301(a) of the URAA amended section
202(a)(8) of the Trade Act to provide that the Commission may request
that parties furnish such summaries and to authorize the Commission to
disregard a confidential submission when it finds that a request for
confidentiality is not warranted and the party concerned is either
unwilling to make the information public or to authorize its
[[Page 9]] disclosure in generalized or summarized form.
Section 206.8 is new, and has been added to provide a general
service, filing, and certification requirement to supplement the more
specific service and filing requirements in new Sec. 206.17 of these
rules relating to documents subject to disclosure under administrative
protective order. New Sec. 206.8 parallels Sec. 207.3 of current
Commission rules, which performs a similar function in conjunction with
Sec. 207.7 of the rules. The Commission traditionally has provided for
service of documents in investigations covered by this Part 206 in its
notices of investigation published in the Federal Register. However,
the Commission believes that the inclusion of specific requirements in
Sec. 206.17 for documents subject to an administrative protective order
without including requirements of general application may give rise to
confusion on the part of submitters of documents as to applicable
Commission requirements. In general, new Sec. 206.8 reflects current
Commission practice in investigations under Part 206, and would be made
applicable to all investigations conducted under this part.
Section 206.12, concerning definitions applicable to Subpart B of
Part 206 of the Commission's rules, is amended to delete paragraphs (c)
and (d), which provide cross references to the statutory provisions
where the terms ``critical circumstances'' and ``perishable
agricultural product'' are defined. Because of amendments made by
section 301(d) of the URAA to the critical circumstances provision in
section 202, the cross reference in paragraph (c) is no longer
accurate. However, the inclusion of cross references was viewed as
unnecessary.
Section 206.13, concerning who may file a petition, has been
divided. As amended, it contains the text of what was formerly
paragraph (a). The text formerly in paragraphs (b) and (c) of that
section, which described two circumstances under which the Commission
would not institute an investigation after receipt of a petition, was
moved to new section 206.15, relating to institution of investigations,
where it was combined with two additional circumstances.
Section 206.14, concerning contents of petitions, is amended in
three respects. First, in the introductory paragraph, wording is added
that directs petitioners, in stating whether provisional relief is
sought, to state whether they are asserting that critical circumstances
exist. Second, paragraph (e)(2)(i) is amended to include
``productivity'' in the list of economic factors relating to threat of
injury for which a petitioner is directed to provide data in its
petition. Section 301(e)(1) of the URAA added ``productivity'' to the
list of economic factors in section 202(c)(1)(B)(i) of the Trade Act
that the Commission is to take into account in determining whether an
industry is threatened with serious injury. Third, paragraph (j), which
describes the information to be provided in a petition when critical
circumstances are alleged, is amended to reflect the new statutory
standard relating to the critical circumstances in amended section
202(d)(2) of the Trade Act.
Section 206.15, concerning institution of an investigation, is a
new rule. Paragraph (a) sets forth the general rule that the Commission
will institute an investigation after receiving a petition, otherwise
properly filed, under Subpart B of Part 206 of the rules. Paragraph (b)
sets out four circumstances in which the Commission will not institute
an investigation. These follow the limitations on Commission
investigations set forth in section 202(h) of the Trade Act. Section
301(f) of the URAA amended section 202(h) to, among other things,
clarify when a product subject to the WTO Agreement on Textiles and
Clothing will become eligible for a Commission safeguard investigation.
Current rule section 206.15, which concerns industry adjustment
plans and commitments, is redesignated as section 206.16, and current
rule sections 206.16 and 206.17 are redesignated as sections 206.18 and
206.19, respectively.
Section 206.17, which sets forth rules for providing limited
disclosure of confidential business information under administrative
protective order, is new. Section 301(b) of the URAA amended section
202 of the Trade Act to add a new subsection (i) that requires the
Commission to promulgate regulations to provide for disclosure of
confidential business information, under an administrative protective
order, to authorized representatives of interested parties who are
parties to an investigation under section 202. The Statement of
Administrative Action approved by the URAA states that it is expected
that the Commission regulations will generally parallel the appropriate
provisions of section 777 of the Tariff Act of 1930 (19 U.S.C. 1677f)
and the regulations issued under that section. New section 206.17 is
modeled after Commission rule section 207.7, which sets forth rules
providing for limited disclosure of confidential business information
under administrative protective order in Commission investigations
under the antidumping and countervailing duty laws in the Tariff Act of
1930. Section 206.17 includes wording that parallels amendments to
section 207.7 of the rules scheduled to become effective on or about
January 27, 1995. The term ``confidential business information'' is
substituted for the term ``business proprietary information,'' and
certain other changes are made to reflect the differences between the
two statutes. The definition of ``interested parties'' in paragraph
(a)(3)(iii) is based on that found in section 771(9) of the Tariff Act
of 1930 (19 U.S.C. 1677(9)).
Section 206.18 (formerly designated as section 206.16), which sets
forth the times for Commission determinations and reports under Subpart
B, is amended to reflect the new statutory times for determinations and
reports when critical circumstances are alleged. As provided under
section 202(d)(2) of the Trade Act, as amended by section 301(d) of the
URAA, the Commission is required to make a critical circumstances
determination within 60 days of the filing of a petition alleging such
circumstances. When critical circumstances are alleged, the Commission
will commence the regular 120-day injury phase of its investigation
only after it completes the 60-day critical circumstances phase, and
the Commission will submit its report on its investigation to the
President not later than 240 days after the petition was filed, the
request or resolution received, or the motion adopted.
Section 206.34, which sets forth the requirements concerning the
contents of a petition filed under Subpart D of Part 206 with regard to
imports from a NAFTA country, is amended in three respects. First, in
the introductory paragraph, language is added that directs petitioners,
in stating whether provisional relief is sought, to state whether they
are asserting that critical circumstances exist. Second, paragraph
(e)(2)(i) is amended to include ``productivity'' in the list of
economic factors for which a petitioner is directed to provide data in
its petition. Third, paragraph (i), which describes the information to
be provided in a petition when critical circumstances are alleged, is
amended to reflect the new statutory standard relating to the critical
circumstances. These changes parallel changes made in section 206.14 of
these rules with respect to petitions filed under Subpart B of Part
206. Section 302(c) of the NAFTA Implementation Act (19 U.S.C. 3352(c))
makes applicable to investigations conducted by the Commission under
section 302(b) of the NAFTA Implementation Act the [[Page 10]] factors
applied in making determinations set forth in section 202(c) of the
Trade Act and the provisional relief provisions in section 202(d) of
the Trade Act.
Section 206.35, which sets forth the times for Commission
determinations and reports under Subpart D with respect to imports from
a NAFTA country, is amended at paragraph (c) to reflect the change in
time for making and reporting determinations concerning whether
critical circumstances exist.
Section 206.52, concerning monitoring, is amended to reflect the
change in timing of Commission monitoring reports under section 204(a)
of the Trade Act. Section 204(a), as amended by section 302(c)(1) of
the URAA, requires the Commission to submit reports on monitoring at
the mid-point of the initial period of relief or any extension thereof,
provided that the initial period of relief or the extension exceeds 3
years in duration.
Section 206.53, concerning investigations to provide certain
probable economic effect advice to the President, is amended to delete
reference to the term ``extension,'' to reflect deletion of this term
from section 204(b) of the Trade Act by section 302(c)(2) of the URAA.
Section 206.54 is new and provides for Commission investigations
and determinations with respect to extension of relief actions in
response to a request or petition under amended section 204(c) of the
Trade Act. Section 204(c) of the Trade Act, as amended by section
302(d)(2) of the URAA, provides that the Commission, upon the request
of the President or upon petition by the concerned industry, is to
investigate to determine whether action under section 203 of the Trade
Act continues to be necessary to prevent or remedy serious injury and
whether there is evidence that the industry is making a positive
adjustment to import competition. Industry petitions must be filed not
earlier than 9 months or later than 6 months before action under
section 203 is to terminate. The Commission is required to hold a
public hearing in the course of its investigation and to transmit its
report to the President not later than 60 days before the action under
section 203 is due to terminate, unless the President specifies a
different date. The rule provides for the institution of
investigations, states who may file a petition and when, describes the
information to be included in a petition, states when the Commission
will make its report to the President, and states that the Commission
will make its report available to the public (with the exception of
confidential business information). Section 206.5(c) of these rules
states that the Commission will hold a public hearing in connection
with each investigation under section 204(c) of the Trade Act.
Section 206.54 also provides for the limited disclosure under
administrative protective order of confidential business information in
the same manner as provided under section 206.17 of these rules.
Former section 206.54, which concerns investigations to evaluate
the effectiveness of relief, has been redesignated as section 206.55.
List of Subjects in 19 CFR Part 206
Administrative practice and procedure, Investigations, Imports.
PART 206--[AMENDED]
19 CFR Part 206 is amended as follows:
1. The authority citation for Part 206 is revised to read as
follows:
Authority: 19 U.S.C. 1335, 2251-2254, 3351-3382; secs. 103, 301-
302, Pub. L. 103-465, 108 Stat. 4809.
2. Subpart A is revised to read as follows:
Subpart A--General
206.2 Identification of type of petition or request.
206.3 Institution of investigations; publication of notice;
availability of petition for public inspection.
206.4 Notification of other agencies.
206.5 Public hearing.
206.6 Report to the President.
206.7 Confidential business information; furnishing of
nonconfidential summaries thereof.
206.8 Service, filing, and certification of documents.
Subpart A--General
Sec. 206.2 Identification of type of petition or request.
An investigation under this Part 206 may be commenced on the basis
of a petition, request, resolution, or motion described in section
202(a)(1), 204(c)(1), or 406(a)(1) of the Trade Act of 1974 or section
302(a)(1) or 312(c)(1) of the North American Free Trade Agreement
Implementation Act. Each petition or request, as the case may be, filed
by an entity representative of a domestic industry under this Part 206
shall state clearly on the first page thereof ``This is a [petition or
request] under section [202, 204(c), or 406 of the Trade Act of 1974,
or section 302 or 312(c) of the North American Free Trade Agreement
Implementation Act] and Subpart [B, C, D, E, or F] of Part 206 of the
rules of practice and procedure of the United States International
Trade Commission''.
Sec. 206.3 Institution of investigations; publication of notice;
availability of petition for public inspection.
(a) Institution of investigation and publication of notice. Except
as provided in Sec. 206.15(b), the Commission, after receipt of a
petition or request under Part 206, properly filed, will promptly
institute an appropriate investigation and publish notice thereof in
the Federal Register.
(b) Contents of notice. The notice will identify the petitioner or
other requestor, the imported article that is the subject of the
investigation and its tariff subheading, the nature and timing of the
determination to be made, the time and place of any public hearing,
dates of deadlines for filing briefs, statements, and other documents,
the place at which the petition or request and any other documents
filed in the course of the investigation may be inspected, and the
name, address, and telephone number of the office that may be contacted
for more information.
(c) Availability for public inspection. The Commission will
promptly make such petition or request available for public inspection
(with the exception of confidential business information).
Sec. 206.4 Notification of other agencies.
The Commission will promptly transmit copies of petitions or
requests filed and notification of investigations instituted to the
Office of the United States Trade Representative (hereinafter USTR),
the Secretary of Commerce, the Secretary of Labor, and other Federal
agencies directly concerned.
Sec. 206.5 Public hearing.
(a) Investigations under subpart B of this part. A public hearing
on the question of injury and a second public hearing on remedy (if
necessary) will be held in connection with each investigation
instituted under Subpart B of this Part after reasonable notice thereof
has been caused to be published in the Federal Register. A hearing on
remedy is not necessary if the Commission has made a negative
determination on the question of injury.
(b) Investigations under subparts C, D, and E of this part. A
public hearing on the subject of injury and remedy will be held in
connection with each investigation instituted under subparts C, D, and
E of this part after reasonable notice thereof has been published in
the Federal Register.
(c) Investigations under subpart F of this part. A public hearing
on the subject of whether an action taken [[Page 11]] under section 203
of the Trade Act of 1974 should be extended will be held in connection
with each investigation instituted under subpart F of this part after
reasonable notice thereof has been published in the Federal Register.
(d) Opportunity to appear and to cross-question. All interested
parties and consumers, including any association representing the
interests of consumers, will be afforded an opportunity to be present,
to present evidence, to comment on the adjustment plan, if any,
submitted in the case of an investigation under section 202(b) of the
Trade Act of 1974, and to be heard at such hearings. All interested
parties and consumers, including any association representing the
interests of consumers, will be afforded an opportunity to cross-
question interested parties making presentations at the hearing.
Sec. 206.6 Report to the President.
(a) In general. The Commission will include in its report to the
President the following:
(1) The determination made and an explanation of the basis for the
determination;
(2) If the determination is affirmative, to the extent appropriate,
the recommendations for action and an explanation of the basis for each
recommendation;
(3) Any dissenting or separate views by members of the Commission
regarding the determination and any recommendations;
(b) Additional findings and information.
(1) In the case of a determination made under section 202(b) of the
Trade Act, the Commission will also include in its report the
following:
(i) The findings with respect to the results of an examination of
the factors other than imports which may be a cause of serious injury
or threat thereof to the domestic industry;
(ii) A copy of the adjustment plan, if any, submitted by the
petitioner;
(iii) Commitments submitted and information obtained by the
Commission regarding steps that firms and workers in the domestic
industry are taking, or plan to take, to facilitate positive adjustment
to import competition;
(iv) A description of the short- and long-term effects that
implementation of the action recommended is likely to have on the
petitioning domestic industry, other domestic industries, and
consumers; and
(v) A description of the short- and long-term effects of not taking
the recommended action on the petitioning domestic industry, its
workers and communities where production facilities of such industry
are located, and other domestic industries.
(2) In the case of a determination made under section 302(b) of the
NAFTA Implementation Act, the Commission will also include in its
report the findings with respect to the results of an examination of
the factors other than imports which may be a cause of serious injury
or threat thereof to the domestic industry.
Sec. 206.7 Confidential business information; furnishing of
nonconfidential summaries thereof.
(a) Nonrelease of information. Except as provided for in
Sec. 206.17, in the case of an investigation under Subpart B, C, D, or
F of this Part, the Commission will not release information which the
Commission considers to be confidential business information within the
meaning of Sec. 201.6 unless the party submitting the confidential
business information had notice, at the time of submission, that such
information would be released by the Commission, or such party
subsequently consents to the release of the information. When
appropriate, the Commission will include confidential business
information in reports transmitted to the President and the Trade
Representative; such reports will be marked as containing confidential
business information, and a nonconfidential version of such report will
be made available to the public.
(b) Nonconfidential summaries. Except as the Commission may
otherwise provide, a party submitting confidential business information
shall also submit to the Commission, at the time it submits such
information, a nonconfidential summary of the information. If a party
indicates that the confidential business information cannot be
summarized, it shall state in writing the reasons why a summary cannot
be provided. If the Commission finds that a request for confidentiality
is not warranted and if the party concerned is either unwilling to make
the information public or to authorize its disclosure in generalized or
summarized form, the Commission may disregard the submission.
Sec. 206.8 Service, filing, and certification of documents.
(a) Certification. Any person submitting factual information on
behalf of the petitioner or any other interested party for the
consideration of the Commission in the course of an investigation to
which this part pertains, and any person submitting a response to a
Commission questionnaire issued in connection with an investigation to
which this part pertains, must certify that such information is
accurate and complete to the best of the submitter's knowledge.
(b) Service. Any party submitting a document for the consideration
of the Commission in the course of an investigation to which this part
pertains shall, in addition to complying with Sec. 201.8 of this
chapter, serve a copy of the public version of such document on all
other parties to the investigation in the manner prescribed in
Sec. 201.16 of this chapter, and, when appropriate, serve a copy of the
confidential version of such document in the manner provided for in
Sec. 206.17(f). If a document is filed before the Secretary's issuance
of the service list provided for in Sec. 201.11 of this chapter or the
administrative protective order list provided for in Sec. 206.17, the
document need not be accompanied by a certificate of service, but the
document shall be served on all appropriate parties within two (2) days
of the issuance of the service list or the administrative protective
order list and a certificate of service shall then be filed.
Notwithstanding Sec. 201.16 of this chapter, petitions, briefs, and
testimony filed by parties shall be served by hand or, if served by
mail, by overnight mail or its equivalent. Failure to comply with the
requirements of this rule may result in removal from status as a party
to the investigation. The Commission shall make available, upon
request, to all parties to the investigation a copy of each document,
except transcripts of hearings, confidential business information,
privileged information, and information required to be served under
this section, placed in the docket file of the investigation by the
Commission.
(c) Filing. Documents to be filed with the Commission must comply
with applicable rules, including Sec. 201.8 of this chapter. If the
Commission establishes a deadline for the filing of a document, and the
submitter includes confidential business information in the document,
the submitter is to file and, if the submitter is a party, serve the
confidential version of the document on the deadline and may file and
serve the nonconfidential version of the document no later than one
business day after the deadline for filing the document. The
confidential version shall enclose all confidential business
information in brackets and have the following warning marked on every
page: ``Bracketing of CBI not final for one business day after date of
filing.'' The bracketing becomes final one business day after the date
of filing of the document, i.e., at the same time as [[Page 12]] the
nonconfidential version of the document is due to be filed. Until the
bracketing becomes final, recipients of the document may not divulge
any part of the contents of the document to anyone not subject to the
administrative protective order issued in the investigation. If the
submitter discovers it has failed to bracket correctly, the submitter
may file a corrected version or portion of the confidential document at
the same time as the nonconfidential version is filed. No changes to
the document other than bracketing and deletion of confidential
business information are permitted after the deadline. Failure to
comply with this paragraph may result in the striking of all or a
portion of a submitter's document.
3. Subpart B is revised to read as follows:
Subpart B--Investigations Relating to Global Safeguard Actions
206.11 Applicability of Subpart.
206.12 Definitions applicable to Subpart B of this part.
206.13 Who may file a petition.
206.14 Contents of petition.
206.15 Institution of investigation.
206.16 Industry adjustment plan and commitments.
206.17 Limited disclosure of certain confidential business
information under administrative protective order.
206.18 Time for determinations, reporting.
206.19 Public report.
Subpart B--Investigations Relating to Global Safeguard Actions
Sec. 206.11 Applicability of subpart.
This subpart B applies specifically to investigations under section
202(b) of the Trade Act. For other applicable rules, see subpart A of
this part and part 201 of this chapter.
Sec. 206.12 Definitions applicable to subpart B of this part.
For the purposes of this Subpart, the following terms have the
meanings hereby assigned to them:
(a) Adjustment plan means a plan to facilitate positive adjustment
to import competition submitted by a petitioner to the Commission and
USTR either with the petition or at any time within 120 days after the
date of filing of the petition.
(b) Commitment means commitments that a firm in the domestic
industry, a certified or recognized union or group of workers in the
domestic industry, a local community, a trade association representing
the domestic industry, or any other person or group of persons submits
to the Commission regarding actions such persons and entities intend to
take to facilitate positive adjustment to import competition.
Sec. 206.13 Who may file a petition.
A petition under this Subpart B may be filed by an entity,
including a trade association, firm, certified or recognized union, or
group of workers, that is representative of a domestic industry
producing an article like or directly competitive with a foreign
article that is allegedly being imported into the United States in such
increased quantities as to be a substantial cause of serious injury, or
the threat thereof, to such domestic industry.
Sec. 206.14 Contents of petition.
A petition under this Subpart B shall include specific information
in support of the claim that an article is being imported into the
United States in such increased quantities as to be a substantial cause
of serious injury, or the threat thereof, to the domestic industry
producing an article like or directly competitive with the imported
article. Such petition shall state whether provisional relief is sought
because critical circumstances exist or because the imported article is
a perishable agricultural product. In addition, such petition shall
include the following information, to the extent that such information
is available from governmental or other sources, or best estimates and
the basis therefor if such information is not available:
(a) Product description. The name and description of the imported
article concerned, specifying the United States tariff provision under
which such article is classified and the current tariff treatment
thereof, and the name and description of the like or directly
competitive domestic article concerned;
(b) Representativeness. (1) The names and addresses of the firms
represented in the petition and/or the firms employing or previously
employing the workers represented in the petition and the locations of
their establishments in which the domestic article is produced;
(2) The percentage of domestic production of the like or directly
competitive domestic article that such represented firms and/or workers
account for and the basis for claiming that such firms and/or workers
are representative of an industry; and
(3) The names and locations of all other producers of the domestic
article known to the petitioner;
(c) Import data. Import data for at least each of the most recent 5
full years which form the basis of the claim that the article concerned
is being imported in increased quantities, either actual or relative to
domestic production;
(d) Domestic production data. Data on total U.S. production of the
domestic article for each full year for which data are provided
pursuant to paragraph (c) of this section;
(e) Data showing injury. Quantitative data indicating the nature
and extent of injury to the domestic industry concerned:
(1) With respect to serious injury, data indicating:
(i) A significant idling of production facilities in the industry,
including data indicating plant closings or the underutilization of
production capacity;
(ii) The inability of a significant number of firms to carry out
domestic production operations at a reasonable level of profit; and
(iii) Significant unemployment or underemployment within the
industry; and/or
(2) With respect to the threat of serious injury, data relating to:
(i) A decline in sales or market share, a higher and growing
inventory (whether maintained by domestic producers, importers,
wholesalers, or retailers), and a downward trend in production,
profits, wages, productivity, or employment (or increasing
underemployment);
(ii) The extent to which firms in the industry are unable to
generate adequate capital to finance the modernization of their
domestic plants and equipment, or are unable to maintain existing
levels of expenditures for research and development;
(iii) The extent to which the U.S. market is the focal point for
the diversion of exports of the article concerned by reason of
restraints on exports of such article to, or on imports of such article
into, third country markets; and
(3) Changes in the level of prices, production, and productivity.
(f) Cause of injury. An enumeration and description of the causes
believed to be resulting in the injury, or threat thereof, described
under paragraph (e) of this section, and a statement regarding the
extent to which increased imports, either actual or relative to
domestic production, of the imported article are believed to be such a
cause, supported by pertinent data;
(g) Relief sought and purpose thereof. A statement describing the
import relief sought, including the type, amount, and duration, and the
specific purposes therefor, which may include facilitating the orderly
transfer of resources to more productive pursuits, enhancing
competitiveness, or other means of adjustment to new conditions of
competition;
[[Page 13]]
(h) Efforts to compete. A statement on the efforts being taken, or
planned to be taken, or both, by firms and workers in the industry to
make a positive adjustment to import competition.
(i) Imports from NAFTA countries. Quantitative data indicating the
share of imports accounted for by imports from each NAFTA country
(Canada and Mexico), and petitioner's view on the extent to which
imports from such NAFTA country or countries are contributing
importantly to the serious injury, or threat thereof, caused by total
imports of such article.
(j) Critical circumstances. If the petition alleges the existence
of critical circumstances, a statement setting forth the basis for the
belief that there is clear evidence that increased imports (either
actual or relative to domestic production) of the article are a
substantial cause of serious injury, or the threat thereof, to the
domestic industry, and that delay in taking action would cause damage
to that industry that would be difficult to repair, and a statement
concerning the provisional relief requested and the basis therefor.
Sec. 206.15 Institution of investigation.
(a) In general. Except as provided in paragraph (b) of this
section, the Commission, after receipt of a petition under this Subpart
B, properly filed, will promptly institute an appropriate investigation
and will cause a notice thereof to be published in the Federal
Register.
(b) Exceptions.
(1) Reinvestigation within one (1) year. Except for good cause
determined by the Commission to exist, no new investigation will be
made under section 202 of the Trade Act with respect to the same
subject matter as a previous investigation under section 202 unless one
(1) year has elapsed since the Commission made its report to the
President of the results of such previous investigation.
(2) Articles subject to prior action. No new investigation will be
made under section 202 of the Trade Act with respect to an article that
is or has been the subject of an action under section 203(a) (3)(A),
(B), (C), or (E) of the Trade Act if the last day on which the
President could take action under section 203 of the Trade Act in the
new investigation is a date earlier than that permitted under section
203(e)(7) of the Trade Act.
(3) Articles subject to the Textiles Agreement. No investigation
will be made under section 202 of the Trade Act with respect to an
article that is the subject of the WTO Agreement on Textiles and
Clothing unless the United States has integrated the article into GATT
1994 and the Secretary of Commerce has published notice to such effect
in the Federal Register.
(4) Perishable agricultural product. An entity of the type
described in Sec. 206.13 that represents a domestic industry producing
a perishable agricultural product may petition for provisional relief
with respect to such product only if such product has been subject to
monitoring by the Commission for not less than 90 days as of the date
the allegation of injury is included in the petition.
Sec. 206.16 Industry adjustment plan and commitments.
(a) Adjustment plan. A petitioner may submit to the Commission,
either with the petition or at any time within 120 days after the date
of filing of the petition, a plan to facilitate positive adjustment to
import competition.
(b) Commitments. If the Commission makes an affirmative injury
determination, any firm in the domestic industry, certified or
recognized union or group of workers in the domestic industry, local
community, trade association representing the domestic industry, or any
other person or group of persons may, individually, submit to the
Commission commitments regarding actions such persons and entities
intend to take to facilitate positive adjustment to import competition.
Sec. 206.17 Limited disclosure of certain confidential business
information under administrative protective order.
(a)(1) Disclosure. Upon receipt of a timely application filed by an
authorized applicant, as defined in paragraph (a)(3) of this section,
which describes in general terms the information requested, and sets
forth the reasons for the request (e.g., all confidential business
information properly disclosed pursuant to this section for the purpose
of representing an interested party in investigations pending before
the Commission), the Secretary shall make available all confidential
business information contained in Commission memoranda and reports and
in written submissions filed with the Commission at any time during the
investigation (except privileged information, classified information,
and specific information of a type which there is a clear and
compelling need to withhold from disclosure, e.g., trade secrets) to
the authorized applicant under an administrative protective order
described in paragraph (b) of this section. The term ``confidential
business information'' is defined in Sec. 201.6 of this chapter.
(2) Application. An application under paragraph (a)(1) of this
section must be made by an authorized applicant on a form adopted by
the Secretary or a photocopy thereof. An application on behalf of an
authorized applicant must be made no later than the time that entries
of appearance are due pursuant to Sec. 201.11 of this chapter. In the
event that two or more authorized applicants represent one interested
party who is a party to the investigation, the authorized applicants
must select one of their number to be lead authorized applicant. The
lead authorized applicant's application must be filed no later than the
time that entries of appearance are due. Provided that the application
is accepted, the lead authorized applicant shall be served with
confidential business information pursuant to paragraph (f) of this
section. The other authorized applicants representing the same party
may file their applications after the deadline for entries of
appearance but at least five (5) days before the deadline for filing
posthearing briefs in the investigation, and shall not be served with
confidential business information.
(3) Authorized applicant. (i) Only an authorized applicant may file
an application under this subsection. An authorized applicant is:
(A) An attorney for an interested party which is a party to the
investigation;
(B) A consultant or expert under the direction and control of a
person under paragraph (a)(3)(i)(A) of this section;
(C) A consultant or expert who appears regularly before the
Commission and who represents an interested party which is a party to
the investigation; or
(D) A representative of an interested party which is a party to the
investigation, if such interested party is not represented by counsel.
(ii) In addition, an authorized applicant must not be involved in
competitive decisionmaking for an interested party which is a party to
the investigation. Involvement in ``competitive decisionmaking''
includes past, present, or likely future activities, associations, and
relationships with an interested party which is a party to the
investigation that involve the prospective authorized applicant's
advice or participation in any of such party's decisions made in light
of similar or corresponding information about a competitor (pricing,
product design, etc.).
(iii) For purposes of this Sec. 206.17, the term ``interested
party'' means: [[Page 14]]
(A) A foreign manufacturer, producer, or exporter, or the United
States importer, of an article which is the subject of an investigation
under this section or a trade or business association a majority of the
members of which are producers, exporters, or importers of such
article;
(B) The government of a country in which such article is produced
or manufactured;
(C) A manufacturer, producer, or wholesaler in the United States of
a like or directly competitive article;
(D) A certified union or recognized union or group of workers which
is representative of an industry engaged in the manufacture,
production, or wholesale of a like or directly competitive article in
the United States;
(E) A trade or business association a majority of whose members
manufacture, produce, or wholesale a like or directly competitive
article in the United States; and
(F) An association, a majority of whose members is composed of
interested parties described in paragraphs (a)(3)(iii) (C), (D), or (E)
of this section with respect to a like or directly competitive article.
(4) Forms and determinations. (i) The Secretary may adopt, from
time to time, forms for submitting requests for disclosure pursuant to
an administrative protective order incorporating the terms of this
rule. The Secretary shall determine whether the requirements for
release of information under this rule have been satisfied. This
determination shall be made concerning specific confidential business
information as expeditiously as possible but in no event later than
fourteen (14) days from the filing of the information, except if the
submitter of the information objects to its release or the information
is unusually voluminous or complex, in which case the determination
shall be made within thirty (30) days from the filing of the
information. The Secretary shall establish a list of parties whose
applications have been granted. The Secretary's determination shall be
final.
(ii) Should the Secretary determine pursuant to this section that
materials sought to be protected from public disclosure by a person do
not constitute confidential business information or were not required
to be served under paragraph (f) of this section, then the Secretary
shall, upon request, issue an order on behalf of the Commission
requiring the return of all copies of such materials served in
accordance with paragraph (f) of this section.
(iii) The Secretary shall release confidential business information
only to an authorized applicant whose application has been accepted and
who presents the application along with adequate personal
identification; or a person described in paragraph (b)(1)(iv) of this
section who presents a copy of the statement referred to in that
paragraph along with adequate personal identification.
(b) Administrative protective order. The administrative protective
order under which information is made available to the authorized
applicant shall require him to submit to the Secretary a personal sworn
statement that, in addition to such other conditions as the Secretary
may require, he shall:
(1) Not divulge any of the confidential business information
obtained under the administrative protective order and not otherwise
available to him, to any person other than
(i) Personnel of the Commission concerned with the investigation,
(ii) The person or agency from whom the confidential business
information was obtained,
(iii) A person whose application for access to confidential
business information under the administrative protective order has been
granted by the Secretary, and
(iv) Other persons, such as paralegals and clerical staff, who are
employed or supervised by an authorized applicant; who have a need
thereof in connection with the investigation; who are not involved in
competitive decisionmaking on behalf of an interested party which is a
party to the investigation; and who have submitted to the Secretary a
signed statement in a form approved by the Secretary that they agree to
be bound by the administrative protective order (the authorized
applicant shall be deemed responsible for such persons' compliance with
the administrative protective order);
(2) Use such confidential business information solely for the
purposes of the Commission investigation then in progress;
(3) Not consult with any person not described in paragraph (b)(1)
of this section concerning such confidential business information
without first having received the written consent of the Secretary and
the party or the attorney of the party from whom such confidential
business information was obtained;
(4) Whenever materials (e.g., documents, computer disks, etc.)
containing such confidential business information are not being used,
store such material in a locked file cabinet, vault, safe, or other
suitable container;
(5) Serve all materials containing confidential business
information as directed by the Secretary and pursuant to paragraph (f)
of this section;
(6) Transmit all materials containing confidential business
information with a cover sheet identifying the materials as containing
confidential business information;
(7) Comply with the provisions of this section;
(8) Make true and accurate representations in the authorized
applicant's application and promptly notify the Secretary of any
changes that occur after the submission of the application and that
affect the representations made in the application (e.g., change in
personnel assigned to the investigation);
(9) Report promptly and confirm in writing to the Secretary any
breach of the administrative protective order; and
(10) Acknowledge that breach of the administrative protective order
may subject the authorized applicant to such sanctions or other actions
as the Commission deems appropriate.
(c) Final disposition of material released under administrative
protective order. At such date as the Secretary may determine
appropriate for particular data, each authorized applicant shall return
or destroy all copies of materials released to authorized applicants
pursuant to this section and all other materials containing
confidential business information, such as charts or notes based on any
such information received under administrative protective order, and
file with the Secretary a certificate attesting to his personal, good
faith belief that all copies of such material have been returned or
destroyed and no copies of such material have been made available to
any person to whom disclosure was not specifically authorized.
(d) Commission responses to a breach of administrative protective
order. A breach of an administrative protective order may subject an
offender to:
(1) Disbarment from practice in any capacity before the Commission
along with such person's partners, associates, employer, and employees,
for up to seven years following publication of a determination that the
order has been breached;
(2) Referral to the United States Attorney;
(3) In the case of an attorney, accountant, or other professional,
referral to the ethics panel of the appropriate professional
association;
(4) Such other administrative sanctions as the Commission
determines to be appropriate, including public release of or striking
from the record any information or briefs submitted by, or on behalf
of, the offender or the party [[Page 15]] represented by the offender,
denial of further access to confidential business information in the
current or any future investigations before the Commission, and
issuance of a public or private letter of reprimand; and
(5) Such other actions, including but not limited to, a warning
letter, as the Commission determines to be appropriate.
(e) Breach investigation procedure. (1) The Commission shall
determine whether any person has violated an administrative protective
order, and may impose sanctions or other actions in accordance with
paragraph (d) of this section. At any time within sixty (60) days of
the later of
(i) the date on which the alleged violation occurred or, as
determined by the Commission, could have been discovered through the
exercise of reasonable and ordinary care; or
(ii) the completion of an investigation conducted under this
subpart, the Commission may commence an investigation of any breach of
an administrative protective order alleged to have occurred at any time
during the pendency of the investigation, including all appeals,
remands, and subsequent appeals. Whenever the Commission has reason to
believe that a person may have breached an administrative protective
order issued pursuant to this section, the Secretary shall issue a
letter informing such person that the Commission has reason to believe
a breach has occurred and that the person has a reasonable opportunity
to present his views on whether a breach has occurred. If subsequently
the Commission determines that a breach has occurred and that further
investigation is warranted, then the Secretary shall issue a letter
informing such person of that determination and that the person has a
reasonable opportunity to present his views on whether mitigating
circumstances exist and on the appropriate sanction to be imposed, but
no longer on whether a breach has occurred. Once such person has been
afforded a reasonable opportunity to present his views, the Commission
shall determine what sanction if any to impose.
(2) Where the sanction imposed is a private letter of reprimand,
the Secretary shall expunge the sanction from the recipient's record
two (2) years from the date of issuance of the sanction, provided that
(i) the recipient has not received another unexpunged sanction
pursuant to this section at any time prior to the end of the two year
period, and
(ii) the recipient is not the subject of an investigation for
possible breach of administrative protective order under this section
at the end of the two year period.
Upon the completion of such a pending breach investigation without
the issuance of a sanction, the original sanction shall be expunged.
The Secretary shall notify a sanction recipient in the event that the
sanction is expunged.
(f) Service. (1) Any party filing written submissions which include
confidential business information to the Commission during an
investigation shall at the same time serve complete copies of such
submissions upon all authorized applicants specified on the list
established by the Secretary pursuant to paragraph (a)(4) of this
section, and, except as provided in Sec. 206.8(c), a nonconfidential
version on all other parties. All such submissions must be accompanied
by a certificate attesting that complete copies of the submission have
been properly served. In the event that a submission is filed before
the Secretary's list is established, the document need not be
accompanied by a certificate of service, but the submission shall be
served within two (2) days of the establishment of the list and a
certificate of service shall then be filed.
(2) A party may seek an exemption from the service requirement of
paragraph (f)(1) of this section for particular confidential business
information by filing a request for exemption from disclosure in
accordance with paragraph (g) of this section. The Secretary shall
promptly respond to the request. If a request is granted, the Secretary
shall accept the information. The party shall file three versions of
the submission containing the information in accordance with paragraph
(g) of this section, and serve the submission in accordance with the
requirements of Sec. 206.8(b) and paragraph (f)(1) of this section,
with the specific information as to which exemption from disclosure
under administrative protective order has been granted redacted from
the copies served. If a request is denied, the copy of the information
lodged with the Secretary shall promptly be returned to the requester.
(3) The Secretary shall not accept for filing into the record of an
investigation submissions filed without a proper certificate of
service. Failure to comply with paragraph (f) of this section may
result in denial of party status and such sanctions as the Commission
deems appropriate. Confidential business information in submissions
must be clearly marked as such when submitted, and must be segregated
from other material being submitted.
(g) Exemption from disclosure.
(1) In general. Any person may request exemption from the
disclosure of confidential business information under administrative
protective order, whether the person desires to include such
information in a petition filed under this Subpart B, or any other
submission to the Commission during the course of an investigation.
Such a request shall only be granted if the Secretary finds that such
information is privileged information, classified information, or
specific information of a type which there is a clear and compelling
need to withhold from disclosure.
(2) Request for exemption. A request for exemption from disclosure
must be filed with the Secretary in writing with the reasons therefor.
At the same time as the request is filed, one copy of the confidential
business information in question must be lodged with the Secretary
solely for the purpose of obtaining a determination as to the request.
The confidential business information for which exemption from
disclosure is sought shall remain the property of the requester, and
shall not become or be incorporated into any agency record until such
time as the request is granted. A request should, when possible, be
filed two business days prior to the deadline, if any, for filing the
document in which the information for which exemption from disclosure
is sought is proposed to be included. The Secretary shall promptly
notify the requester as to whether the request has been approved or
denied.
(3) Procedure if request is approved. If the request is approved,
the person shall file three versions of the submission containing the
confidential business information in question. One version shall
contain all confidential business information, bracketed in accordance
with Sec. 206.8(c), with the specific information as to which exemption
from disclosure was granted enclosed in double brackets. This version
shall have the following warning marked on every page: ``CBI exempted
from disclosure under APO enclosed in double brackets.'' The other two
versions shall conform to and be filed in accordance with the
requirements of Sec. 206.8, except that the specific information as to
which exemption from disclosure was granted shall be redacted from
those versions of the submission.
(4) Procedure if request is denied. If the request is denied, the
copy of the information lodged with the Secretary [[Page 16]] shall
promptly be returned to the requester.
Sec. 206.18 Time for determinations, reporting.
(a) In general. The Commission will make its determination with
respect to injury within 120 days after the date on which the petition
is filed, the request or resolution is received, or the motion is
adopted, as the case may be, except that--
(1) if the Commission determines before the 100th day that the
investigation is extraordinarily complicated, the Commission will make
its determination within 150 days; or
(2) if critical circumstances are alleged, the Commission will make
its determination within 120 days after completion of its investigation
with respect to critical circumstances.
The Commission will make its report to the President at the
earliest practicable time, but not later than 180 days (240 days if
critical circumstances are alleged) after the date on which the
petition is filed, the request or resolution is received, or the motion
is adopted, as the case may be.
(b) Perishable agricultural product. In the case of a request in a
petition for provisional relief with respect to a perishable
agricultural product that has been the subject of monitoring by the
Commission, the Commission will report its determination and any
finding to the President not later than 21 days after the date on which
the request for provisional relief is received.
(c) Critical circumstances. If petitioner alleges the existence of
critical circumstances in the petition, the Commission will report its
determination regarding such allegation and any finding on or before
the 60th day after such filing date.
Sec. 206.19 Public report.
Upon making a report to the President of the results of an
investigation to which this Subpart B relates, the Commission will make
such report public (with the exception of information which the
Commission determines to be confidential) and cause a summary thereof
to be published in the Federal Register.
Subpart D--Investigations Relating to Bilateral Safeguard Actions
4. Section 206.34 is revised to read as follows:
Sec. 206.34 Contents of petition.
A petition under this Subpart D shall include specific information
in support of the claim that, as a result of the reduction or
elimination of a duty provided for under the North American Free Trade
Agreement, a Canadian or Mexican article, as the case may be, is being
imported into the United States in such increased quantities (in
absolute terms) and under such conditions so that imports of the
article, alone, constitute a substantial cause of serious injury, or
(except in the case of a Canadian article) a threat of serious injury,
to the domestic industry producing an article that is like or directly
competitive with the imported article. Such petition shall state
whether provisional relief is sought because critical circumstances
exist or because the imported article is a perishable agricultural
product. In addition, such petition shall include the following
information, to the extent that such information is publicly available
from governmental or other sources, or best estimates and the basis
therefor if such information is not available:
(a) Product description. The name and description of the imported
article concerned, specifying the United States tariff provision under
which such article is classified and the current tariff treatment
thereof, and the name and description of the like or directly
competitive domestic article concerned;
(b) Representativeness.
(1) The names and addresses of the firms represented in the
petition and/or the firms employing or previously employing the workers
represented in the petition and the locations of their establishments
in which the domestic article is produced;
(2) The percentage of domestic production of the like or directly
competitive domestic article that such represented firms and/or workers
account for and the basis for claiming that such firms and/or workers
are representative of an industry; and
(3) The names and locations of all other producers of the domestic
article known to the petitioner;
(c) Import data. Import data for at least each of the most recent 5
full years that form the basis of the claim that the Canadian or
Mexican article concerned is being imported in increased quantities in
absolute terms;
(d) Domestic production data. Data on total U.S. production of the
domestic article for each full year for which data are provided
pursuant to paragraph (c) of this section;
(e) Data showing injury. Quantitative data indicating the nature
and extent of injury to the domestic industry concerned:
(1) With respect to serious injury, data indicating:
(i) A significant idling of production facilities in the industry,
including data indicating plant closings or the underutilization of
production capacity;
(ii) The inability of a significant number of firms to carry out
domestic production operations at a reasonable level of profit; and
(iii) Significant unemployment or underemployment within the
industry; and/or
(2) With respect to the threat of serious injury, data relating to:
(i) A decline in sales or market share, a higher and growing
inventory (whether maintained by domestic producers, importers,
wholesalers, or retailers), and a downward trend in production,
profits, wages, productivity, or employment (or increasing
underemployment);
(ii) The extent to which firms in the industry are unable to
generate adequate capital to finance the modernization of their
domestic plants and equipment, or are unable to maintain existing
levels of expenditures for research and development;
(iii) The extent to which the U.S. market is the focal point for
the diversion of exports of the article concerned by reason of
restraints on exports of such article to, or on imports of such article
into, third country markets; and
(3) Changes in the level of prices, production, and productivity.
(f) Cause of injury. An enumeration and description of the causes
believed to be resulting in the injury, or threat thereof, described
under paragraph (e) of this section, and a statement regarding the
extent to which increased imports of the Canadian or Mexican article
are believed to be such a cause, supported by pertinent data;
(g) Relief sought and purpose thereof. A statement describing the
import relief sought, including the type, amount, and duration, and the
specific purposes therefor, which may include facilitating the orderly
transfer of resources to more productive pursuits, enhancing
competitiveness, or other means of adjustment to new conditions of
competition;
(h) Efforts to compete. A statement on the efforts being taken, or
planned to be taken, or both, by firms and workers in the industry to
make a positive adjustment to import competition.
(i) Critical circumstances. If the petition alleges the existence
of critical circumstances, a statement setting forth the basis for the
belief that there is clear evidence that increased imports (either
actual or relative to domestic production) of the article are a
substantial cause of serious injury, or the threat thereof, to the
domestic industry, and that delay in taking action [[Page 17]] would
cause damage to that industry that would be difficult to repair, and a
statement concerning the provisional relief requested and the basis
therefor.
5. Section 206.35 is revised to read as follows:
Sec. 206.35 Time for determinations, reporting.
(a) In general. The Commission will make its determination with
respect to injury within 120 days after the date on which the
investigation is initiated. The Commission will make its report to the
President no later than 30 days after the date on which its
determination is made.
(b) Perishable agricultural product. In the case of a request in a
petition for provisional relief with respect to a perishable
agricultural product that has been the subject of monitoring by the
Commission, the Commission will report its determination and any
finding to the President not later than 21 days after the date on which
the request for provisional relief is received.
(c) Critical circumstances. If petitioner alleges the existence of
critical circumstances in the petition, the Commission will report its
determination regarding such allegation and any finding on or before
the 60th day after such filing date.
6. Subpart F is revised to read as follows:
Subpart F--Monitoring; Advice as to Effect of Extension, Reduction,
Modification, or Termination of Relief Action
206.51 Applicability of Subpart.
206.52 Monitoring.
206.53 Investigations to advise the President as to the probable
economic effect of reduction, modification, or termination of
action.
206.54 Investigations with respect to extension of action.
206.55 Investigations to evaluate the effectiveness of relief.
Subpart F--Monitoring; Advice As to Effect of Extension, Reduction,
Modification, or Termination of Relief Action
Sec. 206.51 Applicability of subpart
This subpart F applies specifically to investigations under section
204 of the Trade Act. For other applicable rules, see subpart A of this
part and part 201 of this chapter.
Sec. 206.52 Monitoring.
(a) In general. As long as any import relief imposed by the
President pursuant to section 203 of the Trade Act remains in effect,
the Commission will monitor developments with respect to the domestic
industry, including the progress and specific efforts made by workers
and firms in the industry to make a positive adjustment to import
competition.
(b) Reports. Whenever the initial period of import relief, or any
extension thereof, exceeds three (3) years, the Commission will submit
a report on the results of such monitoring to the President and the
Congress. Such report will be submitted not later than the date which
is the mid-point of the initial period of import relief, or any
extension thereof. In the course of preparing each such report, the
Commission will hold a hearing at which interested persons will be
given a reasonable opportunity to be present, to produce evidence, and
to be heard.
Sec. 206.53 Investigations to advise the President as to the probable
economic effect of reduction, modification, or termination of action.
Upon the request of the President, the Commission will conduct an
investigation for the purpose of gathering information in order that it
might advise the President of its judgment as to the probable economic
effect on the industry concerned of any reduction, modification, or
termination of the action taken under section 203 of the Trade Act
which is under consideration.
Sec. 206.54 Investigations with respect to extension of action.
(a) Institution of investigations. Upon the request of the
President, or upon petition on behalf of the industry concerned, the
Commission will investigate to determine whether an action taken under
section 203 of the Trade Act continues to be necessary to prevent or
remedy serious injury and whether there is evidence that the industry
is making a positive adjustment to import competition.
(b) Who may file a petition. A petition under this Sec. 206.54 may
be filed by an entity, including a trade association, firm, certified
or recognized union, or group of workers, which is representative of
the industry producing the domestic article concerned in the
investigation of the Commission which resulted in the imposition by the
President of the import relief action.
(c) Time for filing. Any petition filed on behalf of an industry
for a determination under this Sec. 206.54 must be filed with the
Commission not earlier than the date which is 9 months, and not later
than the date which is 6 months, before the date any action taken under
section 203 of the Trade Act is to terminate.
(d) Contents of petition. A petition under this Sec. 206.54 shall
include the following information, to the extent that such information
is publicly available from governmental or other sources, or best
estimates and the basis therefor if such information is not available:
(1) Identification of relief action. An identification of the
action under section 203, or portion of such action, for which a
determination under this Sec. 206.54 is sought;
(2) Representativeness. (i) The names and addresses of the firms
represented in the petition and/or the firms employing or previously
employing the workers represented in the petition and the locations of
their establishments in which the domestic article is produced;
(ii) The percentage of domestic production of the like or directly
competitive domestic article that such represented firms and/or workers
account for and the basis for claiming that such firms and/or workers
are representative of an industry; and
(iii) The names and locations of all other producers of the
domestic article known to the petitioner;
(3) Import data. Import data on the foreign article concerned for
each full year since action was taken under section 203 of the Trade
Act, starting with the year in which action was taken;
(4) Domestic production data. Data on total U.S. production of the
domestic article concerned for each year for which data are provided
pursuant to paragraph (d)(3) of this section;
(5) Efforts to adjust. Specific information in support of the claim
that action under section 203 of the Trade Act continues to be
necessary to prevent or remedy serious injury and that there is
evidence that the industry is making a positive adjustment to import
competition.
(e) Limited disclosure of certain confidential business information
under administrative protective order. Upon receipt of a timely
application filed by an authorized applicant, the Secretary shall make
available to an authorized applicant under administrative protective
order all confidential business information contained in Commission
memoranda and reports and in written submissions filed with the
Commission at any time during an investigation under this section with
respect to an article that was the subject of an affirmative Commission
determination under section 202 of the Trade Act (except privileged
information, classified information, and specific information of a type
which there is a clear and compelling need to withhold from
disclosure). Such disclosure shall be made in the manner provided for
and in accordance with the procedures set forth in Sec. 206.17. The
[[Page 18]] provisions in paragraphs (d) and (e) of Sec. 206.17
relating to Commission responses to a breach of an administrative
protective order and breach procedure shall apply with respect to
orders issued under this paragraph.
(f) Time for reporting. The Commission will make its report to the
President at the earliest practical time, but not later than 60 days
before the action under section 203 of the Trade Act is to terminate,
unless the President specifies a different date.
(g) Public report. Upon making a report to the President of the
results of an investigation to which this Sec. 206.54 relates, the
Commission will make such report public (with the exception of
information which the Commission determines to be confidential) and
cause a summary thereof to be published in the Federal Register.
Sec. 206.55 Investigations to evaluate the effectiveness of relief.
(a) Investigation. After any action taken under section 203 has
terminated, the Commission will conduct an investigation for the
purpose of evaluating the effectiveness of the relief action in
facilitating positive adjustment by the domestic industry to import
competition, consistent with the reasons set out by the President in
the report submitted to the Congress under section 203(b) of the Trade
Act.
(b) Hearing. In the course of such investigation, the Commission
will hold a hearing at which interested persons will be given an
opportunity to be present, to produce evidence, and to be heard.
(c) Time for reporting. The Commission will submit its report to
the President and to the Congress by no later than the 180th day after
the day on which the action terminated.
By order of the Commission.
Issued: December 23, 1994.
Donna R. Koehnke,
Secretary.
[FR Doc. 94-32126 Filed 12-30-94; 8:45 am]
BILLING CODE 7020-02-P
