2016-11864. Modification of Regulation Regarding Written Argument: Establishing Word Limits for Case and Rebuttal Briefs in Antidumping and Countervailing Duty Proceedings

AGENCY:

Enforcement and Compliance, International Trade Administration, Department of Commerce.

ACTION:

Proposed rule and request for comments.

SUMMARY:

The Department of Commerce (“the Department”) proposes to modify the regulation pertaining to written argument in antidumping and countervailing duty proceedings and is seeking comments from parties. This modification, if adopted, is intended to establish word limits for submission of case and rebuttal briefs. This action is necessary to streamline the process contained in the current regulation, to better align with current Department practices and to reduce the strain on resources.

DATES:

To be assured of consideration, written comments must be received no later than June 20, 2016.

ADDRESSES:

All comments must be submitted through the Federal eRulemaking Portal at http://www.regulations.gov,, Docket No. ITA-2016-0001, unless the commenter does not have access to the Internet. Commenters that do not have access to the internet may submit the original and one electronic copy of each set of comments by mail or hand delivery/courier. All comments should be addressed to Paul Piquado, Assistant Secretary for Enforcement & Compliance, Room 1870, Department of Commerce, 14th Street and Constitution Ave. NW., Washington, DC 20230. Comments submitted to the Department will be uploaded to the eRulemaking Portal at www.Regulations.gov.

The Department will consider all comments received before the close of the comment period. All comments responding to this notice will be a matter of public record and will be available on the Federal eRulemaking Portal at www.Regulations.gov. The Department will not accept comments accompanied by a request that part or all of the material be treated confidentially because of its business proprietary nature or for any other reason.

Any questions concerning file formatting, document conversion, access on the Internet, or other electronic filing issues should be addressed to Moustapha Sylla, Enforcement and Compliance Webmaster, at [phone], email address: [e-mail].

FOR FURTHER INFORMATION CONTACT:

Myrna Lobo at [phone] or Michele Lynch at [phone].

SUPPLEMENTARY INFORMATION:

Background

Section 351.309 of the Department's regulations sets forth limits for the submission of case and rebuttal briefs and provides guidance on what should be contained in these documents. However, unlike other Federal Agencies (e.g., the International Trade Commission, Department of Labor, or the Internal Revenue Service Tax Court),^[1] the Department does not currently limit the length of such briefs. As a result, submissions may contain lengthy or duplicative arguments in antidumping and countervailing duty proceedings. The review and summarization of these lengthy submissions consumes considerable resources. To reduce the strain on limited resources and streamline the process, the Department proposes amending 19 CFR 351.309 to impose word limits on case and rebuttal briefs.

The proposed revision would set forth a limit of 25,000 words in total for each party's case and rebuttal briefs. A party may decide on the number of words it chooses to allocate among its case brief and rebuttal brief, but the combined total between the two shall not exceed 25,000 words. Each case brief must contain a certification by the filing party or its representative, indicating the number of words used in the brief, and the number of unused words remaining for the rebuttal brief. Each rebuttal brief must contain a certification by the filing party or its representative indicating the number of words used and that the total combined word limit of 25,000 words has not been exceeded. The word limit will include all attachments, headings, footnotes, endnotes, and quotations used in the document; it will not include the table of contents, table of statutes, regulations and cases cited, and summary of arguments that preface the arguments in the brief, referenced in paragraphs (c)(2) and (d)(2) of the revised regulation below. In determining the word count, a party may rely on the software program used to prepare the brief. Briefs in excess of the word count shall be rejected and shall be considered untimely.

If an interested party challenges a party's word count, such a filing must be made within 48 hours of the filing of the final version of the case or reply brief in ACCESS.^[2] While parties may not be able to view another party's business proprietary case brief in ACCESS and may have to rely on being served the brief by the filing party, we note that 19 CFR 351.303(f)(3)(i) contains specific rules for service of briefs. Case briefs must be served on persons on the service list ^[3] the same day that they are filed with the Department by personal service or by overnight mail or courier the next day which we find provides adequate time for a party's challenge to be filed within the 48-hour window.^[4] The Department will evaluate challenges received and determine the proper course of action.

Where the Department finds that good cause exists, the word limit may be revised by the Department if a party makes such a request. Such requests must be received sufficiently in advance of the briefing deadlines to be considered.

The Department is issuing this proposed rule to modify the regulation at issue pursuant to Administrative Procedure Act (5 U.S.C. 553) notice and comment procedures; we invite comments from all interested parties.

Proposed Modification

The Department proposes to modify 19 CFR 351.309, to include new paragraph (e) on word limits, as indicated below and to make conforming amendments to 19 CFR 351.309(a), (b), and (c). These modifications, if adopted, are intended to establish word limits for case and rebuttal briefs, as well as the accompanying requirements for imposing word limits. This rulemaking would be effective for proceedings initiated on or after 30 days following the date of publication of the final rule. This proposed rule makes additional minor edits to § 351.309: (1) The words “or countervailing duty” are being added to § 351.309(b)(1) and (c)(1)(iii) to be consistent with § 351.214(k), and (2) the Roman numerals (i) and (ii) in current § 351.309(e), which is proposed § 351.309(f), have been amended to be Arabic numbers (1) and (2) to be consistent with the other paragraphs of the regulation.

The Department invites parties to comment on this proposed rule and the proposed effective date. Further, any party may submit comments expressing its disagreement with the Department's proposal and may propose an alternative approach.

Classifications

Executive Order 12866

It has been determined that this proposed rule is not significant for purposes of Executive Order 12866.

Paperwork Reduction Act

This proposed rule contains no new collection of information subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.

Executive Order 13132

This proposed rule does not contain policies with federalism implications as that term is defined in section 1(a) of Executive Order 13132, dated August 4, 1999 (64 FR 43255 (August 10, 1999)).

Regulatory Flexibility Act

The Chief Counsel for Regulation has certified to the Chief Counsel for Advocacy of the Small Business Administration under the provisions of the Regulatory Flexibility Act, 5 U.S.C. 605(b), that the proposed rule would not have a significant economic impact on a substantial number of small business entities. A summary of the need for, objectives of and legal basis for this rule is provided in the preamble, and is not repeated here.

The entities upon which this rulemaking could have an impact include foreign exporters and producers, some of whom are affiliated with U.S. companies, and U.S. importers. Enforcement & Compliance currently does not have information on the number of entities that would be considered small under the Small Business Administration's size standards for small businesses in the relevant industries. However, some of these entities may be considered small entities under the appropriate industry size standards. Although this proposed rule may indirectly impact small entities that are parties to individual antidumping or countervailing duty proceedings, it will not have a significant economic impact on any entities.

The proposed action is merely to streamline the process contained in the current Department regulations. If the proposed rule is implemented, no entities would be required to undertake additional compliance measures or expenditures. Rather, the regulation, in this proposed rulemaking, is to reduce the burden placed on the Department and interested parties when lengthy or duplicative arguments are made in case briefs and then must be addressed. Because the proposed rule imposes limits on the submissions of case and rebuttal briefs in an antidumping or countervailing duty proceeding, it does not place a burden on or directly impact any business entities. The proposed rule merely strengthens the current regulations to better align with current Departmental practices. Therefore, the proposed rule would not have a significant economic impact on a substantial number of small business entities. For this reason, an Initial Regulatory Flexibility Analysis is not required and one has not been prepared.

List of Subjects in 19 CFR Part 351

• Administrative practice and procedure
• Antidumping
• Business and industry
• Cheese
• Confidential business information
• Countervailing duties
• Freedom of information
• Investigations
• Reporting and recordkeeping requirements

Dated: May 12, 2016.

Paul Piquado,

Assistant Secretary for Enforcement and Compliance.

For the reasons stated, 19 CFR part 351 is proposed to be amended as follows:

PART 351—ANTIDUMPING AND COUNTERVAILING DUTIES

1. The authority citation for 19 CFR part 351 continues to read as follows:

Authority: 5 U.S.C. 301; 19 U.S.C. 1202 note; 19 U.S.C. 1303 note; 19 U.S.C. 1671 et seq.; and 19 U.S.C. 3538.

2. Section 351.309 is revised to read as follows:

§ 351.309

Written argument.

(a) Introduction. Written argument may be submitted during the course of an antidumping or countervailing duty proceeding. This section sets forth the time and word limits for submission of case and rebuttal briefs and provides guidance on what should be contained in these documents.

(b) Written argument—(1) In general. In making the final determination in a countervailing duty investigation or antidumping investigation, or the final results of an administrative review, new shipper review, expedited antidumping or countervailing duty review, section 753 review, or section 762 review, the Secretary will consider written arguments in case or rebuttal briefs filed within the time and word limits in this section.

(2) Written argument on request. Notwithstanding paragraph (b)(1) of this section, the Secretary may request written argument on any issue from any person or U.S. Government agency at any time during a proceeding.

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

(i) For a final determination in a countervailing duty investigation or antidumping investigation, or for the final results of a full sunset review, 50 days after the date of publication of the preliminary determination or results of review, as applicable, unless the Secretary alters the time limit;

(ii) For the final results of an administrative review, new shipper review, changed circumstances review, or section 762 review, 30 days after the date of publication of the preliminary results of review, unless the Secretary alters the time limit; or

(iii) For the final results of an expedited sunset review, expedited antidumping or countervailing duty review, Article 8 violation review, Article 4/Article 7 review, or section 753 review, a date specified by the Secretary.

(2) The case brief must present all arguments that continue in the submitter's view to be relevant to the Secretary's final determination or final results, including any arguments presented before the date of publication of the preliminary determination or preliminary results. As part of the case brief, parties are encouraged to provide a summary of the arguments not to exceed five pages and a table of statutes, regulations, and cases cited.

(d) Rebuttal brief. (1) Any interested party or U.S. Government agency may submit a “rebuttal brief” within five days after the time limit for filing the case brief, unless the Secretary alters this time limit.

(2) The rebuttal brief may respond only to arguments raised in case briefs and should identify the arguments to which it is responding. As part of the rebuttal brief, parties are encouraged to provide a summary of the arguments not to exceed five pages and a table of statutes, regulations, and cases cited.

(e) Word limits. (1) Except with the consent of Enforcement & Compliance for good cause, each party shall use no more than 25,000 words total between its case and rebuttal briefs. The allocation of the 25,000 words between case and rebuttal briefs is left to each party. All attachments to such briefs, headings, footnotes, endnotes, and quotations shall be included in the word limitation. The summary of arguments and the table of statutes, regulations and cases cited referenced in paragraphs (c)(2) and (d)(2) of this section shall not be included in the word limitation.

(2) The case brief, if any, shall contain a certification by the party or its representative indicating the number of words in the brief and the number of words available for the rebuttal brief. The rebuttal brief, if any, shall contain a certification by the party or its representative indicating the number of words in the brief and certifying that the total word limit of 25,000 has not been exceeded in the party's combined case and rebuttal brief word limit. The party filing the certification may rely on the word count of the software program used to prepare the brief. Briefs in excess of the word limitation shall be rejected and shall be considered untimely. Challenges to opposing party's word count must be filed with the agency within 48 hours of the filing of the case or reply brief and accompanying certifications or the challenge will not be considered. If a person has designated an agent to receive service that is located outside the United States, and served briefs by first class airmail in accordance with 19 CFR 351.303(f)(3)(i), the agency will consider on a case-by-case basis the time allowed to that person to challenge a party's word count.

(f) Comments on adequacy of response and appropriateness of expedited sunset review—(1) In general. Where the Secretary determines that respondent interested parties provided inadequate response to a notice of initiation (see § 351.218(e)(1)(ii)) and has notified the International Trade Commission as such under § 351.218(e)(1)(ii)(C), interested parties (and industrial users and consumer organizations) that submitted a complete substantive response to the notice of initiation under § 351.218(d)(3) may file comments on whether an expedited sunset review under section 751(c)(3)(B) of the Act and § 351.218(e)(1)(ii)(B) or (C) is appropriate based on the adequacy of responses to the notice of initiation. These comments may not include any new factual information or evidence (such as supplementation of a substantive response to the notice of initiation) and are limited to five pages.

(2) Time limit for filing comments. Comments on adequacy of response and appropriateness of expedited sunset review must be filed not later than 70 days after the date publication in the Federal Register of the notice of initiation.

Footnotes

1.  The United States Court of International Trade and the United States Court of Appeals for the Federal Circuit also impose word limits on briefs.

2.  Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (“ACCESS”). ACCESS is available to registered users at https://access.trade.gov.

3.  19 CFR 103(d)(2).

4.  For parties that have designated an agent to receive service that is located outside the United States, and served case briefs by first class airmail in accordance with 19 CFR 351.303(f)(3)(i), the Department will consider on a case-by-case basis the time allowed to that party to challenge another party's word count.