[Federal Register Volume 60, Number 1 (Tuesday, January 3, 1995)]
[Rules and Regulations]
[Pages 18-23]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-32127]
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INTERNATIONAL TRADE COMMISSION
19 CFR Part 207
Notice of Interim Amendment to Rules of Practice and Procedure
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
on an interim basis to conform with the Uruguay Round Agreements Act,
(URAA). These rules govern investigations of whether domestic
industries are injured by reason of imports sold at less than fair
value or from subsidized imports to the United States.
The amendments provide, in particular, for new rules concerning
comments on information obtained in investigations and for
investigations concerning certain countervailing duty orders entered
under section 303 of the Tariff Act of 1930 (the Act). Additionally,
several rules are amended to conform their language with the provisions
to the Act added or amended by the URAA.
DATES: The interim amendments become 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 (USTR) announces prior to that date that the WTO
Agreement will not enter into force on that date. Should the effective
date be other than 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, should be submitted to the Secretary, U.S.
International Trade Commission, 500 E Street SW, Washington, D.C.
20436.
FOR FURTHER INFORMATION CONTACT: Marc A. Bernstein, Office of General
Counsel, U.S. International Trade Commission, telephone 202-205-3087.
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: The URAA was enacted on December 8, 1994.
This legislation contains provisions which, inter alia, amend Title VII
of the Act (19 U.S.C. 1671 et seq.), concerning antidumping and
countervailing duty investigations and review. The Commission's rules
concerning Title VII practice and procedure need to be amended to
conform to the new legislation.
Section 335 of the Act (19 U.S.C. 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 enters into force with respect to the United
States.
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. 551 et seq.), which
entails the following steps: (1) publication of a notice of proposed
rulemaking; (2) solicitation of public comments 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. 553. That procedure could not be utilized
in this instance because the new legislation was enacted on December 8,
1994, and will become effective when the WTO enters into force with
respect to the United States, which will be January 1, 1995, unless
USTR announces otherwise prior to that date. Consequently, it was not
possible to complete the section 553 rulemaking procedure prior to the
effective date of the new legislation.
The Commission thus determined to adopt interim rules that will go
into effect when the provisions of the URAA amending Title VII become
effective and will remain in effect until the Commission adopts final
rules promulgated in accordance with the usual notice, comment, and
advance publication procedure.
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. 1335), the pertinent
portion of which was discussed above; (2) section 103 of the URAA and
the Statement of Administrative Action approved by the URAA, the
pertinent portions of which were also discussed above; 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.
[[Page 19]]
The Commission determined that the need for interim rules is clear
in this instance. The Commission noted that the new legislation alters
Title VII practice and procedure and that the existing Commission rules
do not encompass certain procedures required by the new legislation.
The Commission found that rulemaking was essential for the orderly
administration of Title VII as amended by the new legislation.
Furthermore, since the legislation is to become effective very shortly
after enactment, the Commission concluded that it would be imperative
that implementing rules be in place on the effective date of the new
statute.
The Commission noted 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
procedure 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 or 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. 553(d)(3).
In this instance, the Commission 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 found that (1) the interim rules are ``agency
rules of procedure or practice''; and (2) since the new legislation is
projected to become effective very shortly after enactment, and the
time or fact of enactment could not be predicted in advance, 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 found that the fact that the new legislation is expected to
become effective very shortly after enactment made such advance
publication impossible and constituted ``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 and expects that the more comprehensive final rules to
follow will emerge as a result of the Congressionally-mandated policy
of affording public participation in the rulemaking process.1
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\See American Federation of Government Employees, AFL-CIO v.
Block, 655 F.2d 1153, 1157-1158 (D.C. Cir. 1981) (``AFGE''). See
also United States v. Garner, 767 F.2d 104, 120 (5th Cir. 1985)
(quoting AFGE).
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(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. More comprehensive
final rules will be issued at a later date in accordance with the usual
notice, public comment, and advance publication procedure.
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 12866 (58 FR 51735, Oct. 4, 1993) (EO) and thus 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 the Interim Amendments to 19 CFR Part 207
The amendments set forth below are intended to reflect changes in
the law effected by the URAA.
Section 207.1 is amended to state that the Part 207 regulations are
not applicable to investigations conducted pursuant to section 783 of
the Act, which concerns antidumping petitions filed by third countries.
Section 783 was added to the Act by section 232 of the URAA. Section
783(c) states that Commission determinations in investigations arising
from antidumping petitions by third countries shall be made according
to procedural requirements specified by the Office of the United States
Trade Representative (USTR). Because the Commission is not the agency
that has been accorded statutory authority to specify procedures with
respect to section 783 investigations, section 207.1 must be amended to
exclude section 783 investigations from its scope. Additionally, the
U.S. Code citations in section 207.1 have been amended to reflect the
new U.S. Code provisions added to Title VII of the Act by the URAA.
Section 207.2(e) is amended to change the reference to ``a class or
kind of merchandise'' to ``subject merchandise.'' This reflects a
change in statutory terminology pursuant to, inter alia, section 233(5)
of the URAA.
Section 207.8 is amended to conform its terminology to changes made
in the Act pursuant to section 231 of the URAA. The reference under
clause (a) to ``best information otherwise available'' has been changed
to ``the facts otherwise available,'' consistent with new section
776(a) of the Act. The language under clause (c) referencing adverse
inferences has been amended to conform to that used in new section
776(b) of the Act.
Sections 207.10(a), 207.10(c)(2), and 207.11 are amended, and
former section 207.10(d) is repealed, to eliminate references to
petitions filed under section 303. Section 261 of the URAA repeals
section 303 on its effective date, so no new section 303 petitions will
be filed after the effective date of these regulations. Other
references to section 303 have been retained in the regulations,
inasmuch as section 261(b)(2) of the URAA states that the repeal does
not affect pending proceedings under section 303, and the Commission
may have section 303 investigations pending as of the effective date of
these regulations.
A new section 207.29 is added concerning comments on information.
This new section implements the provisions of section 782(g) of the
Act, as amended by section 231(a) of the URAA. These new provisions
require the Commission, before making a final determination in
countervailing or antidumping duty investigations or review
proceedings, to cease collecting information and provide parties to the
proceeding with a final opportunity to [[Page 20]] comment upon all
information on which they previously had not had an opportunity to
comment.
For purposes of these interim regulations, the Commission has
proposed to implement section 782(g) by adopting relatively minor
changes to the procedures it currently follows in final antidumping and
countervailing duty investigations. The Commission is interested in
receiving comments, however, concerning whether more extensive changes
to its antidumping and countervailing investigation procedures are
necessary or desirable to implement section 782(g). More extensive
changes could entail one or several of the following: instituting final
investigations at an earlier time; releasing the final confidential
staff report prior to the parties' final opportunity to comment under
section 782(g); implementing a multiple-stage comment procedure to
permit the Commission and Commission staff to submit final questions to
the parties and/or to allow the parties to submit rebuttal comments.
The Commission is additionally interested in receiving comment
concerning the scheduling of procedures it is adopting to implement
section 782(g), i.e., concerning how long before the public vote the
final disclosure of information should take place, and the amount of
time after disclosure parties should be provided to file their
comments. This could include submission of suggested model work
schedules, particularly if the proposed dates for issuing
questionnaires or scheduling a hearing need to be changed (e.g., if
questionnaires are issued before Commerce's preliminary determination)
as a result.
Section 207.29(a) concerns the Commission's first obligation under
new section 782(g): to disclose information to parties to an
investigation or review. Consequently, section 207.29(a) requires the
Commission to specify in a final antidumping or countervailing duty
investigation a date on which it will disclose to the parties to the
investigation all information on which they have not previously had an
opportunity to comment. This includes business proprietary information,
which will be released pursuant to administrative protective order. It
is anticipated that the disclosure date will be specified as soon as
practicable after institution of the final investigation. Additionally,
to ensure that all transcript corrections are received by the
Commission prior to the disclosure date, section 207.23(c)(2) is
amended to state that all proposed revisions to the hearing transcript
be submitted to the Secretary at least one day prior to the information
disclosure date.
Section 207.29(b) concerns the Commission's second obligation under
new section 782(g): to provide the parties an opportunity to comment on
the information disclosed. This section indicates that the Commission
will specify a date on which the parties will have an opportunity to
file comments on information disclosed to them pursuant to subsection
(a). The comments can only concern the information disclosed pursuant
to subsection (a) and shall not exceed 10 pages of textual material,
double spaced and single-sided, on stationery measuring 8\1/2\ x 11
inches. To implement the requirement of section 782(g) that the
Commission disregard comments containing any new factual information,
the regulation requires that comments addressing the accuracy,
reliability, or probative value of information disclosed by reference
to information elsewhere in the record shall identify where in the
record such information is found. Section 207.29(b) also states that
the record shall close on the date the comments are due, except as
provided in section 771(7)(G)(iii) with respect to staggered
investigations.
Pursuant to section 207.29(c), the provisions of section 207.29
will be applicable to final countervailing duty and antidumping
investigations under sections 705 and 735 to which the amendments made
to Title VII of the Act by the URAA are applicable. Additionally, by
virtue of section 207.45(d) and new section 207.46(d), the provisions
of section 207.29 are also pertinent to changed circumstances
investigations under section 751(b) and reviews of certain outstanding
section 303 orders under new section 753.
In furtherance of new section 207.29, the Commission may adopt a
practice of releasing staff reports on or before the disclosure date
established pursuant to that section in the event that one or more
parties to an investigation or review do not have access to business
proprietary information subject to administrative protective order.
Section 207.21(b) is therefore amended to delete the clause stating
that the public version of the Commission's final staff report will be
released ``after the Commission's final determination.'' The Commission
does not take the position, however, that such a practice is required
by section 207.29. Nor does the Commission anticipate that it will
necessarily release public copies of staff reports on or before the
disclosure date as a general matter.
There are two technical amendments to section 207.40. First,
section 207.40(a) is amended by addition of the language ``upon
withdrawal of the petition by the petitioner'' so it will conform more
closely with sections 704(a)(3) and 734(a)(3), whose requirements it
implements. This change is also needed because the URAA has amended the
Act to specify that a Commission preliminary determination of
negligible imports pursuant to new section 771(24) will have the effect
of terminating an investigation. Second, section 207.40(b) is amended
to reflect that the Department of Commerce may suspend antidumping
investigations pursuant to section 734(l), as well as sections 734 (b)
and (c).
A new section 207.46 is added to establish procedures for
investigations under section 753 of the Act. Section 753, which was
added to the Act by section 271 of the URAA, concerns countervailing
duty orders that were issued under former section 303 of the Act
without an injury determination being made by the Commission.
Section 207.46(a) contains definitions for terms used in that
section. The first term, ``requesting party,'' merely references the
type of parties eligible under section 753(a)(1) to request an
investigation pursuant to that section. The second term, ``order,'' is
taken directly from section 753(a)(2). The third term, ``WTO
agreement,'' is taken directly from section 2(9) of the URAA.
Section 207.46(b) establishes requirements for requests for reviews
under section 753. Such requests must be made by a ``requesting
party''--that is, a party eligible to file a request under section
753(a)(1), and must be made within the time period established under
section 753(a)(3). Paragraphs (1) through (4) specify additional
material that should be included within the request to enable the
Commission to facilitate and organize its investigation under section
753 and to formulate questionnaires. These encompass:
(1) A description of the relevant domestic like product and
domestic industry on which the requesting party believes the Commission
should focus in conducting its section 753 investigation, and
identification of the individual members of that domestic industry.
(2) Information concerning the names and addresses of all known
enterprises believed to be manufacturing, producing, exporting, or
importing the subject merchandise.
(3) Information reasonably available to the requesting party
documenting how that domestic industry is likely to be materially
injured by reason of subject imports if the section 303 order
[[Page 21]] at issue is revoked. The provision specifies certain types
of information concerning both the domestic industry and entities that
produce or export the subject imports that should be included within
the request, to the extent possible, to facilitate the Commission's
determination.
(4) Information concerning any scope and anticircumvention rulings
issued by the Department of Commerce with respect to the section 303
order at issue.
When the Commission receives a timely request for a section 753
investigation satisfying these requirements, section 207.46(c)(1)
provides that it will publish a notice of initiation of the
investigation in the Federal Register. Such notice is required by
section 753(d). Section 207.46(c)(2) implements the policy of section
753(b)(1)(B) that the Commission should issue determinations in section
753 investigations within one year of initiation to the extent
possible. The statute, however, provides an exception to the one-year
policy in section 753(b)(1)(C) for investigations initiated within one
year after the date on which the WTO Agreement enters into force with
respect to the United States. This exception is reflected at section
207.46(c)(3) of the new regulations, which pursuant to the statute,
states that all investigations must be completed within four years of
the date the WTO Agreement enters into force and that the Commission
shall confer with the Department of Commerce in determining whether to
extend a completion date. Section 207.46(c)(3) also provides a
description of grounds that may justify the Commission extending a
completion date; the grounds specified are not intended to be
exclusive.
Section 207.46(d) specifies that the procedures set forth
pertaining to final antidumping and countervailing duty investigations
shall also be applicable to section 753 investigations. This is
consistent with section 753(b)(1)(A) of the Act.
Section 207.46(e) reflects the requirements of section 753(b)(4)
with respect to section 303 orders for which no request for review is
filed. Similarly, section 207.46(f) reflects the requirements of
section 753(c) for section 303 investigations without an injury test
that are pending or have been suspended when a country has become a
signatory to the WTO's Agreement on Subsidies and Countervailing
Measures.
Section 207.46(g) concerns review requests made under section
753(e). That section permits a requesting party to file, simultaneously
with its request for review under section 753, a request for an
expedited ``sunset'' review under section 751(c) of countervailing or
antidumping duty orders involving the same or comparable subject
merchandise. Sections 753(e)(1)(A) and 753(e)(3) indicate that if the
Department of Commerce, after consultation with the Commission, should
determine to initiate a review pursuant to the request, the Commission
shall conduct a consolidated review pursuant to the procedures
applicable to section 751(c) reviews.
The Commission has determined not to issue detailed regulations for
section 751(c) investigations as part of these interim rules. Instead,
the Commission anticipates that it will promulgate such regulations
pursuant to notice-and-comment rulemaking procedures promptly after the
URAA's amendments to the Act become effective. Nevertheless, section
207.46(g) contains a brief specification of how any section 751(c)
reviews initiated by Department of Commerce pursuant to requests made
under section 753(e) will be conducted. Section 207.46(g)(1) authorizes
requests for expedited review, and states that the request for review
under section 751(c) should set forth evidence to establish why
revocation of the order to be reviewed under section 751(c) would be
likely to lead to continuation or recurrence of material injury. Again,
the Commission intends to promulgate more detailed regulations
concerning the content of requests for review under section 751(c) as
part of subsequent notice-and-comment rulemaking.
Section 207.46(g)(2) states that if the Department of Commerce
should determine to initiate a section 751(c) review, the Commission
shall conduct a consolidated review under sections 751(c) and 753 under
the procedures set forth in Subparts A and C of Part 207. This
implements the requirements of section 753(e)(3) pending the
promulgation of more detailed procedural rules pertaining to section
751(c) investigations. Section 207.46(g)(3) states that if Commerce
should determine not to initiate a section 751(c) review, the
Commission will proceed with the section 753 review request pursuant to
the procedures stated elsewhere in section 207.46.
List of Subjects in 19 CFR Part 207
Administrative practice and procedure, Antidumping, Countervailing
duties, Investigations.
PART 207--[AMENDED]
Part 207 is amended as set forth below:
1. The authority citation for Part 207 is revised to read as
follows:
Authority: 19 U.S.C. 1303, 1336, 1671-1677n, 2482; sec. 103,
Pub. L. 103-465, 108 Stat. 4809.
1a. Section 207.1 is revised to read as follows:
Sec. 207.1 Applicability of part.
Part 207 applies to proceedings of the Commission under section
303, section 516A and title VII of the Tariff Act of 1930 (19 U.S.C.
1303, 1516A and 1671-1677n) (the Act), other than investigations under
section 783 (19 U.S.C. 1677n), which will be conducted pursuant to
procedures specified by the Office of the United States Trade
Representative.
2. Paragraph (e) of section 207.2 is revised to read as follows:
Sec. 207.2 Definitions applicable to part 207.
* * * * *
(e) The term injury means: Material injury or threat of material
injury to an industry in the United States, or material retardation of
the establishment of an industry in the United States, by reason of
imports into the United States of subject merchandise which is found by
the administering authority to be subsidized, or sold, or likely to be
sold, at less than its fair value.
* * * * *
3. Section 207.8 is revised to read as follows:
Sec. 207.8 Questionnaires to have the force of subpoenas; subpoena
enforcement.
Any questionnaire issued by the Commission in connection with any
investigation under section 303 or title VII of the Act, may be issued
as a subpoena and subscribed by a Commissioner, after which it shall
have the force and effect of a subpoena authorized by the Commission.
Whenever any party or any other person fails to respond adequately to
such a subpoena or whenever a party or any other person refuses or is
unable to produce information requested in a timely manner and in the
form required, or otherwise significantly impedes an investigation, the
Commission may:
(a) Use the facts otherwise available in making its determination;
(b) Seek judicial enforcement of the subpoena pursuant to 19 U.S.C.
1333;
(c) Make inferences adverse to such person's position, if such
person is an interested party that has failed to cooperate by not
acting to the best of its ability to comply with a request for
information; and [[Page 22]]
(d) Take such other actions as necessary to obtain needed
information.
4. Paragraphs (a) and (c)(2) of Section 207.10 are revised to read
as follows:
Sec. 207.10 Filing of petition with the Commission.
(a) Filing of the petition. Any interested party who files a
petition with the administering authority pursuant to section 702(b) or
732(b) of the Act shall file copies of the petition, pursuant to
section 201.8 of this chapter, with the Secretary on the same day the
petition is filed with the administering authority. If the petition
complies with the provisions of section 207.11, it shall be deemed to
be properly filed on the date on which the requisite number of copies
of the petition is received by the Secretary. The Secretary shall
notify the administering authority of that date. Notwithstanding
section 201.11 of this chapter, a petitioner need not file an entry of
appearance in the preliminary investigation instituted upon the filing
of its petition, which shall be deemed an entry of appearance, although
the petitioner must file an entry of appearance in any final
investigation corresponding to that preliminary investigation.
* * * * *
(c) * * *
(2) When not made in the petition, any allegations of critical
circumstances under section 703 or 733 of the Act shall be made in an
amendment to the petition and shall be filed as early as possible.
Critical circumstances allegations, whether made in the petition or in
an amendment thereto, shall contain information reasonably available to
petitioner concerning the factors enumerated in sections 705(b)(4)(A)
and 735(b)(4)(A) of the Act.
Sec. 207.10 [Amended]
5. Paragraph (d) of section 207.10 is removed.
6. Section 207.11 is revised to read as follows:
Sec. 207.11 Contents of petition.
The petition shall be signed by the petitioner or his duly
authorized officer, attorney, or agent, and shall set forth the name,
address, and telephone number of the petitioner and any such officer,
attorney, or agent, and the names of all representatives of petitioner
who will appear in the investigation. The petition shall allege the
elements necessary for the imposition of a duty under section 701(a) or
731(a) of the Act and contain information reasonably available to the
petitioner supporting the allegations. Petitioners are advised to refer
to the administering authority's regulations concerning the contents of
petitions.
7. Paragraph (b) of section 207.21 is revised to read as follows:
Sec. 207.21 Prehearing and final staff reports.
* * * * *
(b) Final staff report. After the hearing, the Director shall
revise the prehearing staff report and submit to the Commission, prior
to the Commission's final determination, a final version of the staff
report. The final staff report is intended to supplement and correct
the information contained in the prehearing staff report. A public
version of the final staff report shall be made available to the public
and a business proprietary version shall also be made available to
persons authorized to receive business proprietary information under
section 207.7.
8. Paragraph (c)(2) of section 207.23 is revised to read as
follows:
Sec. 207.23 Hearing.
* * * * *
(c) * * *
(2) Revision of transcripts. Within ten (10) days of the completion
of a hearing, but in any event at least one (1) day prior to the date
for disclosure of information set pursuant to section 207.29(a), any
person who testified at the hearing may submit proposed revisions to
the transcript of his testimony to the Secretary. No substantive
revisions shall be permitted. If in the judgment of the Secretary a
proposed revision does not alter the substance of the testimony in
question, he shall incorporate the revision into a revised transcript.
9. A new section 207.29 is added to read as follows:
Sec. 207.29 Comment on information.
(a) In any final investigation under section 705 or 735 of the Act,
the Commission shall specify a date on which it will disclose to all
parties to the investigation all information it has obtained on which
the parties have not previously had an opportunity to comment. Any such
information that is business proprietary information will be released
to persons authorized to obtain such information pursuant to section
207.7. The date on which disclosure is made will occur after the filing
of posthearing briefs pursuant to section 207.24.
(b) The parties shall have an opportunity to file comments on any
information disclosed to them after they have filed their posthearing
brief pursuant to section 207.24. Comments shall only concern such
information, and shall not exceed 10 pages of textual material, double
spaced and single-sided, on stationery measuring 8 \1/2\ x 11 inches. A
comment may address the accuracy, reliability, or probative value of
such information by reference to information elsewhere in the record,
in which case the comment shall identify where in the record such
information is found. Comments containing new factual information or
comments on information disclosed prior to the filing of the
posthearing brief shall be disregarded. The date on which such comments
must be filed will be specified by the Commission when it specifies the
time information will be disclosed pursuant to paragraph (a) of this
section. The record shall close on the date such comments are due,
except with respect to investigations subject to the provisions of
section 771(7)(G)(iii) of the Act.
(c) This section shall be applicable only to proceedings that have
been self-initiated by the administering authority after, or initiated
pursuant to petitions or requests filed after, the date on which the
Agreement Establishing the World Trade Organization enters into force
with respect to the United States.
10. Paragraphs (a) and (b) of section 207.40 are revised to read as
follows:
Sec. 207.40 Termination and suspension of investigation.
(a) An investigation under title VII may be terminated by the
Commission by giving notice in the Federal Register to all parties to
the investigation, upon withdrawal of the petition by the petitioner,
or upon issuance of a final negative determination or termination of
its investigation by the administering authority under section 303, 705
or 735 of the Act. The Commission may not terminate an investigation
upon withdrawal of the petition by the petitioner, however, before a
determination is made by the administering authority under section
702(c), 703(b), 732(c) or 733(b) of the Act.
(b) Upon receipt of notice of suspension of an investigation by the
administering authority under section 704 (b) or (c) or 734(b), (c), or
(1), of the Act, the Secretary shall issue a notice of suspension of
the Commission investigation. Such suspension shall not prevent the
Director from conducting such other investigative activities as he
deems appropriate with respect to the subject matter of the suspended
investigation.
* * * * *
11. A new section 207.46 is added to read as follows: [[Page 23]]
Sec. 207.46 Investigations concerning certain countervailing duty
orders.
(a) Definitions. For purposes of this section:
(1) Requesting party means an interested party described in section
771(9) (C), (D), (E), (F), or (G) of the Act.
(2) Order means a countervailing duty order issued under section
303 of the Act as to which the requirement of an affirmative
determination of material injury under section 303(a)(2) of the Act was
not applicable at the time such order was issued.
(3) WTO Agreement means the Agreement Establishing the World Trade
Organization entered into on April 15, 1994.
(b) Request for review. A requesting party may file with the
Commission a request for an investigation under section 753 of the Act
within the time period established by section 753(a)(3) of the Act. The
request should contain the following information:
(1) A description and identification of the relevant domestic like
product, the industry in the United States producing that product that
is likely to be materially injured by reason of imports of the subject
merchandise if the Order is revoked, and each individual member of that
industry.
(2) Information reasonably available to the requesting party
concerning the names and addresses of all known enterprises believed to
be manufacturing, producing, exporting, or importing the subject
merchandise;
(3) Information reasonably available to the requesting party
documenting that the industry described in paragraph (b)(1) of this
section is likely to be materially injured by reason of subject imports
if the Order is revoked, including:
(i) Information concerning the capacity, production, sales, market
share, inventories, employment, wages, productivity, profits, ability
to raise capital, and development and production efforts of the
industry described in paragraph (b)(1) of this section.
(ii) Information concerning current and projected production
capacity in the exporting country of the subject merchandise,
inventories of the subject merchandise, and the existence of barriers
to the importation of such merchandise into countries other than the
United States.
(4) Information concerning any scope and anticircumvention rulings
issued by the administering authority with respect to the Order.
(c) Initiation of Investigation. (1) Upon the receipt of a timely
filed request for a section 753 investigation satisfying the
requirements of paragraph (b) of this section, the Secretary shall
publish a notice of initiation of such investigation in the Federal
Register.
(2) Subject to paragraph (c)(3) of this section, a section 753
investigation shall be completed within one year of the date of
publication of the notice of initiation of such investigation in the
Federal Register.
(3) The Commission may take more than one year to complete section
753 investigations for which requests for investigations are received
within one year after the date on which the WTO Agreement enters into
force with respect to the United States. All such investigations must
be completed within four years of that date, however. In determining
whether to extend the completion date for a section 753 investigation,
the Commission shall consult with the administering authority. Grounds
for extending completion include, but are not limited to, the desire to
conduct investigations involving the same or similar domestic
industries and domestic like products on a simultaneous basis, and the
desire to efficiently manage the Commission's caseload.
(d) Conduct of Investigations. The procedures set forth in subparts
A and C of this part shall apply to all investigations initiated under
this section.
(e) When No Request for Review Is Filed. When there has been no
properly filed and sufficient request for a section 753 investigation
of an Order, the Commission shall notify the administering authority
that a negative determination has been made under section 753(a) of the
Act with respect to that Order.
(f) Pending and Suspended Section 303 Investigations. If, on the
data on which a country becomes a signatory to the Agreement on
Subsidies and Countervailing Measures referred to in section 101(d)(12)
of the Uruguay Round Agreements Act, there is a section 303
countervailing duty investigation in progress or suspended with respect
to that country's merchandise for which the requirement of a material
injury determination under section 303(a)(2) of the Act was not
applicable at the time the investigation was initiated, the Commission
shall commence an investigation pursuant to the provisions of section
753(c) of the Act with respect to pending investigations and suspended
investigations to which section 704(i)(1)(B) of the Act applies.
(g) Request for Simultaneous Expedited Section 751(c) Review. (1) A
requesting party who requests a section 753 review may at the same time
request from the Commission and the administering authority an
expedited review under section 751(c) of the Act of a countervailing or
antidumping duty order involving the same or comparable subject
merchandise. The request for review under section 751(c) of the Act
should set forth evidence to establish why revocation of the order to
be reviewed under section 751(c) of the Act would be likely to lead to
continuation or recurrence of material injury and should additionally
contain any information required by the regulations of the
administering authority.
(2) Should the administering authority, after consulting with the
Commission, determine to initiate a section 751(c) review, the
Commission shall conduct a consolidated review under sections 751(c)
and 753 of the Act of the orders involving the same or comparable
subject merchandise. The procedures set forth in subparts A and C of
this part shall apply to any such consolidated review.
(3) Should the administering authority, after consulting with the
Commission, determine not to initiate a section 751(c) review, the
Commission will consider the request for a section 753 review pursuant
to the procedures established in this section.
By order of the Commission:
Issued: December 24, 1994.
Donna R. Koehnke,
Secretary.
[FR Doc. 94-32127 Filed 12-30-94; 8:45 am]
BILLING CODE 7020-02-P
