[Federal Register Volume 62, Number 205 (Thursday, October 23, 1997)]
[Proposed Rules]
[Pages 55185-55196]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-28257]
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INTERNATIONAL TRADE COMMISSION
19 CFR Parts 201 and 207
Notice of Proposed Amendments to Rules of Practice and Procedure
AGENCY: United States International Trade Commission.
ACTION: Notice of Proposed rulemaking.
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SUMMARY: The United States International Trade Commission (the
Commission) proposes to amend its Rules of Practice and Procedure
concerning antidumping and countervailing duty investigations and
reviews in 19 CFR parts 201 and 207. The proposed amendments will
establish procedures for five-year reviews of antidumping and
countervailing duty orders and suspension agreements that the
Commission will begin to conduct in 1998 pursuant to the provisions of
section 751(c) of the Tariff Act of 1930, as amended (the Act).
DATES: To be assured of consideration, written comments must be
received not later than December 22, 1997. Rebuttal comments must be
received not later than January 21, 1998.
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,
e-mail: mbernstein@usitc.gov), or Vera A. Libeau, Office of
Investigations, U.S. International Trade Commission (telephone 202-205-
3176, e-mail: vlibeau@usitc.gov). 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 Agreements Act (URAA) fundamentally revised the
Act by requiring that antidumping and countervailing duty orders and
suspension agreements be revoked after five years unless revocation
would be likely to lead to a continuation or recurrence of (1) dumping
or a countervailable subsidy, and (2) material injury to the domestic
industry. The URAA assigns to the Commission the responsibility of
determining whether revocation of an antidumping or countervailing duty
order, or termination of a suspension agreement, is likely to lead to
the continuation or recurrence of material injury. The URAA requires
that the Department of Commerce (Commerce) begin initiating five-year
reviews in July 1998, that all five-year reviews of ``transition
orders''--those antidumping and countervailing duty orders and
suspension agreements in effect on January 1, 1995, when the United
States acceded to the Uruguay Round Agreements--be initiated by
December 31, 1999, and that all reviews of transition orders be
completed by June 30, 2001. The URAA further requires that Commerce
initiate a five-year review of each order or agreement that is not a
``transition order'' no later than 30 days before the fifth anniversary
of publication of the order or agreement in the Federal Register.
This notice proposes new procedures for five-year reviews. As
described below, some of the proposed procedures will be reflected in
changes to the Commission's Rules of Practice and Procedure. Other
proposed procedures, such as scheduling, relate to internal agency
practices and do not require regulations. Nevertheless, this notice
describes several of these proposals and invites public comment on all
proposed regulations and procedures.
The Commission has determined that these proposed regulations do
not meet the criteria described in section 3(f) of the Executive Order
12866 (58 FR 51735, Oct. 4, 1993) (EO) and thus do not constitute a
significant regulatory
[[Page 55186]]
action for purposes of the EO. The Regulatory Flexibility Act (5 U.S.C.
601 note) is inapplicable to this rulemaking, because it is not one for
which a Notice of Proposed Rulemaking (NOPR) is required under 5 U.S.C.
553(b) or any other statute. Although the Commission has chosen to
publish an NOPR, these proposed regulations are ``agency rules of
procedure and practice,'' and thus are exempt from the notice
requirement imposed by 5 U.S.C. 553(b).
The draft notice of institution reproduced at Annex A to this
Notice constitutes an information collection request subject to the
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. After
consultation with the Office of Management and Budget (OMB), the
Commission believes that the contemplated collection of information
pursuant to the draft notice of institution is encompassed within a
clearance OMB has given the Commission under the Paperwork Reduction
Act to collect information for antidumping and countervailing duty
investigations and reviews, including those undertaken pursuant to
section 751 of the Act. This clearance has been assigned OMB Control
Number 3117-0016.
Request for Comment
The Commission solicits comments pertaining to its proposals
concerning five-year reviews. The Commission will conduct a two-step
comment process. Initial comments should be received by the Commission
Secretary not later than December 22, 1997. Rebuttals to the initial
comments may also be filed. Any rebuttal comments should be received by
the Commission Secretary not later than January 21, 1998. All comments
will be available for public inspection in the Commission's Public
Docket Room between the hours of 8:45 am and 5:15 pm, Monday through
Friday (except Federal Holidays).
Commenters are invited to address several distinct matters in their
comments and rebuttal comments. The Commission requests that, to
facilitate its review, commenters organize their comments as follows:
Section I of the comments should address the proposed amendments to
the part 201 and 207 regulations presented in this notice.
Section II of the comments should address proposed procedures for
five-year reviews that the Commission has discussed in this notice, but
has not incorporated into the proposed amendments to the part 201 and
part 207 regulations. These would include, for example, comments on the
format or specific questions of the sample notice of institution
appearing as Annex A to this notice, or comments on the proposed
schedule appearing as Annex B to this notice.
Section III of the comments should address any other issues
commenters may desire to raise pertaining to five-year reviews. The
regulations proposed below solely concern the procedures that the
Commission intends to use in conducting five-year reviews. The proposed
regulations do not address what methodology the Commission, or
individual Commissioners, may use to determine whether revocation of an
order, or termination of a suspended investigation, would be likely to
lead to continuation or recurrence of material injury within a
reasonably foreseeable time. Nor do the proposed regulations address
how the Commission, or individual Commissioners, will analyze the
various factors specified in section 752(a) of the Act in making
determinations in five-year reviews.
Although the Commission does not intend to issue regulations
pertaining to methodological or analytical issues in five-year reviews,
many private practitioners may desire the opportunity to address the
Commission about such issues before the reviews begin. The Commission
therefore invites persons to file comments on such issues in
conjunction with their comments on the procedural matters discussed in
this NOPR.
Hearing
The Commission also intends to hold a public hearing at which
interested persons will be invited to present their views regarding the
procedural matters discussed in this NOPR as well as methodological and
analytical issues relating to five-year reviews. The Commission will
issue a notice in advance of the hearing setting forth the date of the
hearing and the procedures that will be followed at the hearing. The
hearing will be held after the submission of the rebuttal comments.
Overview of the Proposed Regulations
The Commission is proposing to promulgate a series of new
regulations, to be codified in Subpart F of Part 207, establishing
procedures for five-year reviews. Several of the proposed regulations
closely resemble current regulations in Subpart C of Part 207
concerning final phase antidumping and countervailing duty
investigations. Others establish new procedures that address unique
aspects of the five-year review mechanism created by the URAA.
The statute requires Commerce to initiate all five-year reviews
automatically. As part of the initiation, Commerce and the Commission
are authorized to request that interested parties submit certain
information needed to conduct the review. Accordingly, one of the
proposed regulations describes the information that the Commission will
request from interested parties upon initiation of the review. Each
interested party will be requested to state its willingness to
participate in the review, and describe the likely effects of
revocation of the order or termination of the suspended investigation
under review. In addition, the Commission will request that each
interested party provide other information or industry data, including
a statement concerning conditions of competition in the pertinent
domestic industry, a listing of U.S. producers of the domestic like
product and importers and foreign producers of the subject merchandise,
and certain quantitative data concerning its operations. All interested
parties will be requested to furnish this information to the Commission
within 30 days. (Interested parties that desire to participate as
parties in the Commission review must also file entries of appearance
with the Commission within 21 days.) These provisions will aid the
Commission in ascertaining whether interested parties have sufficient
willingness to participate in a five-year review. They will also
provide the Commission with record information for use in an expedited
determination, if appropriate.
Section 751(c)(3)(B) of the Act authorizes the Commission to make
an expedited determination without further investigation when
interested party responses to the notice of initiation are inadequate.
Interested parties that have entered appearances in the review and have
responded to the notice of institution and other parties that have
entered appearances in the review will be permitted to file a brief
submission concerning whether an expedited determination is appropriate
based on the adequacy of interested party responses to the notice of
institution.
The Commission will consider these comments and the responses to
the notice of institution and determine whether the review should be
expedited approximately 95 days after publication of the notice of
institution. Should the Commission determine to expedite the review,
interested parties that have entered appearances in the review and have
responded adequately to the notice of institution and other parties
that have entered appearances in the review will be provided the
opportunity to submit comments concerning the merits of the review
before the Commission's
[[Page 55187]]
determination on the merits. The record evidence in the expedited
review will be limited to that already available to the Commission.
Should the Commission determine not to expedite the review, the
review will proceed in a manner closely resembling a final phase
antidumping or countervailing duty investigation. Several of the
proposed regulations apply existing procedures to five-year reviews.
For example, parties that have entered appearances in the review will
have the opportunity to submit written comments on draft
questionnaires. They will receive prehearing and final reports from the
Commission staff, and will have the opportunity to present testimony at
a hearing before the Commission and to file prehearing and posthearing
briefs and final comments.
Section-by-Section Analysis of the Proposed Regulations
Section 201.11
Section 201.11 concerns the filing of entries of appearance in
Commission investigations and reviews. The Commission is proposing to
add new paragraphs (b)(4) and (b)(5) to this section to govern the
filing of entries of appearance in five-year reviews. Under proposed
section 201.11(b)(4), a party will have 21 days from publication of the
Commission's notice of institution of five-year review to file an entry
of appearance.
If the Commission determines not to expedite the review, it will
issue a notice of scheduling approximately 95 days after institution of
the review. (See proposed section 207.62.) Under proposed section
201.11(b)(5), a party will have an additional 45 days after publication
of this notice to file an entry of appearance.
Section 207.3
Section 207.3(b) requires parties to provide hand or overnight
service of, inter alia, prehearing briefs, hearing testimony, and
posthearing briefs filed in antidumping and countervailing duty
investigations. The proposed amendment adds cross-references to several
of the new provisions in Subpart F to existing requirements regarding
service.
Section 207.45
Section 207.45 concerns changed circumstances reviews pursuant to
section 751(b) of the Act. The proposed amendment changes the statutory
cross-reference in section 207.45(a) so it specifically cites section
751(b). No substantive change is intended.
Section 207.46
Section 207.46 is an interim regulation that establishes procedures
for investigations under section 753 of the Act, which concerns
countervailing duty orders issued under former section 303 of the Act
without an injury determination by the Commission.1 The
proposed regulation contains three changes from the interim regulation.
First, in the caption for subsection 207.46(g) and in the first
sentence of section 207.46(g)(1), the word ``expedited'' has been
deleted to avoid any confusion between simultaneous reviews conducted
pursuant to section 753(e) of the Act and five-year reviews that are
expedited pursuant to section 751(c)(3)(B) of the Act. Second, the
second sentence of section 207.46(g)(1) has been deleted as
unnecessary. This sentence requires that requests for simultaneous
five-year reviews under section 753(e) of the Act contain a statement
why revocation of the order to be reviewed would lead to continuation
or recurrence of material injury. Should a simultaneous five-year
review be conducted, a similar statement will be requested in the
notice of institution. Third, the final sentence in section
207.46(g)(2) has been amended to refer to the new Subpart F governing
five-year reviews.
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\1\Section 207.46 became effective on January 1, 1995, together
with several other interim regulations that were designed to conform
the Commission's Rules of Practice and Procedure to the URAA pending
adoption of final regulations. See 60 Fed. Reg. 18 (Jan. 3, 1995).
When the Commission proposed adopting its other interim regulations
as final regulations, it did not do so with respect to section
207.46, because it perceived section 207.46 to relate to the general
question of five-year reviews and stated that ``the Commission is
not prepared to address the question of ``sunset'' reviews at this
time.'' 60 Fed. Reg. 51748, 51753 (Oct. 3, 1995). Now that the
Commission is establishing procedures for five-year reviews, it
believes that proposing to adopt section 207.46 as a final
regulation is appropriate. (The Commission contemplates that it will
be conducting investigations under section 753, pursuant to pending
requests, during 1997-98. Additionally, there is a theoretical
possibility that future requests for section 753 investigations may
be filed if additional countries become Subsidies Agreement
countries.)
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Section 207.60
Proposed section 207.60 defines certain terms used in Subpart F of
Part 207 concerning five-year reviews. The first three definitions,
``five-year review,'' ``expedited determination,'' and ``notice of
institution,'' are proposed to promote economy of wording. ``Five-year
review'' is a five-year review investigation conducted under section
751(c) of the Act. ``Expedited determination'' is a determination made
under section 751(c)(3)(B) of the Act. ``Notice of institution'' is the
notice of institution of five-year review that the Commission will
publish in the Federal Register upon initiation of a review. The
remaining three terms, ``domestic like product,'' ``domestic
industry,'' and ``subject merchandise,'' are terms commonly used in
antidumping and countervailing duty proceedings, and are based on
sections 771(10), 771(4)(A), and 771(25) of the Act, respectively.
Section 207.61
When Commerce initiates a five-year review, the Commission will
publish a notice of institution of five-year review in the Federal
Register informing interested parties and other persons of their
opportunity to provide information to the Commission. Proposed section
207.61 describes what interested parties will be requested to submit to
the Commission in response to the notice of institution.
Each interested party (as that term is defined in section 771(9) of
the Act) may respond to the notice of institution whether or not it
entered an appearance in the Commission review proceedings. If
interested parties do not file adequate responses, however, the
Commission may determine not to conduct a full review investigation,
but instead may issue an expedited determination based on the facts
available pursuant to section 751(c)(3)(B) of the Act. The Commission's
evaluation of adequacy is described below in the discussion of proposed
section 207.62.
Proposed Sec. 207.61(a) states that responses to the notice of
institution must be submitted to the Commission no later than 30 days
after publication of the notice in the Federal Register. The Commission
believes that 30 days will be ample time for interested parties to
submit the requested information, particularly since the Commission
will provide public notice (through this rulemaking and other actions)
of the type of information that will be requested in five-year reviews
well in advance of the actual institution of any five-year reviews.
Moreover, the Commission intends that it will jointly prepare with
Commerce a final schedule of all transition reviews, which will be
published in the Federal Register before the initiation of the first
review. This notice will provide interested parties with sufficient
advance notice of scheduling of all transition reviews to enable them
to know approximately when such information will be due before
publication of the actual notice of institution. This notice will also
be mailed to the embassy in Washington, D.C. of each country that will
be a
[[Page 55188]]
subject country in any five-year review. Persons who are not interested
parties will also be provided an opportunity to respond under proposed
Sec. 207.61(e), as discussed below.
Proposed paragraphs (b) and (c) describe what interested parties
will be requested to submit to the Commission in response to the notice
of institution. Sections 751(c)(2)(A), (B), and (C) of the Act
expressly direct the Commission and Commerce to request interested
parties to submit: (1) A statement expressing their willingness to
participate in the review by providing information requested by the
agencies, (2) a statement regarding the likely effects of revocation of
the order or termination of the suspension agreement under review, and
(3) such other information or industry data as the agencies may
specify. The URAA's legislative history specifically contemplates that
the Commission may seek detailed quantitative data from interested
parties upon initiation of a five-year review, such as ``certain key
data regarding sales, prices, imports, and market conditions.''
2
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\2\ URAA Statement of Administrative Action (SAA), H.R. Rep.
316, 103d Cong., 2d Sess., vol. 1 at 879 (1994).
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The Commission has two reasons for requesting the submission of
certain information and quantitative data from interested parties upon
initiation of a five-year review. First, the Commission must determine
whether there is sufficient willingness among interested parties to
participate in the review and adequate indication that parties will
submit requested information throughout the proceeding. The Commission
could not effectively ascertain whether such willingness exists--and
whether any future investigative efforts are likely to be fruitful--if
interested parties were permitted merely to submit pro forma statements
of intent to participate. When such willingness does not exist or is
limited, an expedited review will be more efficient for both the
parties and the Commission than conducting a full review.
Second, the responses to the notice of institution will provide the
Commission with information for the record it can use in making a
determination, particularly an expedited determination pursuant to
section 751(c)(3)(B) of the Act. Section 752(a) of the Act requires the
Commission to consider a number of factors when it makes its
determination, including an expedited determination, in a five-year
review. Additionally, the Commission's expedited determinations are
subject to review by U.S. courts, NAFTA Chapter 19 panels, and/or the
WTO Dispute Settlement Body.
As a practical matter, the Commission's sole opportunity in
expedited reviews to obtain information that will enhance its ability
to reach a defensible determination--beyond what is available from the
original record--is to request such information in the notice of
institution. Thus, because of the possibility of an expedited
determination in any five-year review, there is a certain amount of
information gathering at the initiation stage that is simply
unavoidable and any resulting burden on interested parties is inherent
in the statutory scheme. Moreover, the information to be submitted is
the same type of information that the Commission necessarily would seek
at some point in the review. At most, therefore, the proposed
regulations request interested parties to submit information earlier in
the review process. The Commission nevertheless solicits comments
addressing what amount and type of information should be requested in
the notice of institution that will enable the Commission to assess the
willingness of interested parties to participate in a full five-year
review and to make an expedited determination when such a determination
is appropriate, while minimizing burdens on interested parties.
Interested party responses to the notice of institution will be in
two parts. One part will be filed with the Secretary. The other will be
submitted to the Office of Investigations. The Commission believes that
such a bifurcated filing process will reduce the burdens to interested
parties in submitting business proprietary information (BPI), because,
as explained below, the parties need not justify proprietary treatment
for information they will submit to the Office of Investigations or
prepare and file a public version of this submission. The evaluation of
whether the response of an individual interested party is adequate will
be based on that party's response to both parts of the notice.
The first part of the response, which proposed section 207.61(b)
addresses, will be filed with the Secretary pursuant to the
requirements of Commission rules 201.8 and 207.3. This submission will
include the material specified in section 751(c)(2)(A) and (B) of the
Act: a statement that the submitter is willing to participate in the
review by providing requested information and a statement regarding the
likely effects of revocation of the order or termination of the
suspended investigation. These requirements are set forth in proposed
sections 207.61(b)(1) and (b)(2). The submission will also provide
identifying information: the submitter's name, address, telephone
number, facsimile number, electronic mail address and (if applicable)
World Wide Web site address, and a statement indicating whether it is a
producer of the domestic like product, a U.S. importer of subject
merchandise, a foreign producer or exporter of subject merchandise, or
another type of interested party.
Interested parties will also be asked to list all known and
currently operating U.S. producers of the domestic like product, all
known and currently operating U.S. importers of subject merchandise,
and all known and currently operating producers of the subject
merchandise in each subject country that currently export or have
exported subject merchandise to the United States or to any other
country during the period specified in the notice of institution. This
material will aid the Commission in determining the adequacy of
interested party responses to the notice of institution. Interested
parties will be required only to furnish information in their
possession to compile these lists. If this information is not in the
interested party's possession, however, it must expressly so indicate
in its response to the Commission pursuant to proposed section
207.61(d).
Additionally, each interested party will be provided the option of
stating whether it agrees with the definitions of the domestic like
product and domestic industry that the Commission adopted in its
original investigation(s). Interested parties that respond that they
disagree with an original definition will be requested to explain why
and to provide an alternative definition. This information will assist
the Commission to ascertain the like product and domestic industry
issues that may arise in each review, and the extent and nature of any
future investigative activity it may conduct.
The second part of the response to the notice of institution, which
proposed section 207.61(c) addresses, will be a submission to the
Commission's Office of Investigations. Domestic producers, foreign
producers of subject merchandise, and U.S. importers of subject
merchandise will be requested to furnish certain quantitative data to
the Office of Investigations concerning their operations. Each domestic
producer will be asked to provide information about the domestic like
product(s) defined by the Commission in the original investigation(s)
giving rise to the review, including information on capacity,
production, commercial shipments, inventories, employment, financial
performance, and prices. Each
[[Page 55189]]
importer of subject merchandise will be asked to provide information
about its import volumes, commercial shipments, inventories, and prices
for the subject merchandise. Each foreign producer of subject
merchandise will be asked to provide information about its capacity,
production, home market shipments, export shipments, and inventories of
the subject merchandise. The Commission will request each party to
submit actual data for the most recently completed calendar year, and
projections for the succeeding calendar year (which will generally be
the calendar year in which the notice of institution is published) in
accordance with generally accepted accounting principles. The notice of
institution for each review will specify the particular data that
interested parties are to furnish.
Each interested party will also be requested to provide certain
narrative information to the Office of Investigations. First, each
interested party will be requested to identify significant changes in
the supply of and demand for the domestic like product that have
occurred since the order(s) or agreement(s) under review became
effective. This will provide the Commission with information concerning
conditions of competition that it can use in making a determination.
Additionally, interested parties in grouped reviews involving multiple
subject countries will be asked to explain the extent to which the
domestic like product competes or is likely to compete with subject
merchandise from each subject country, and the degree to which
merchandise from each subject country competes or is likely to compete
with merchandise from each other subject country. This will provide the
Commission with information pertinent to its determination on
cumulation.
Finally, under proposed section 207.61(c)(2), interested parties
will be free to furnish any other information or data relevant to the
Commission's determination. For example, interested parties may desire
to provide information not specifically requested in the notice of
institution pertinent to one or more of the factors that the Commission
is to consider under section 752(a) of the Act in rendering a
determination in a five-year review. Interested parties may also desire
to indicate which domestic producers are related parties under section
771(4)(B) of the Act.
Any submission that interested parties make pursuant to section
207.61(c) will be submitted to the Office of Investigations and will
not be subject to the filing requirements of section 201.8. Instead,
only a single copy of the submission need be filed with the Office of
Investigations. The Commission contemplates that substantially all of
the information contained in this submission will be business
proprietary. Consequently, the Commission will automatically accord
such submissions proprietary treatment, except to the extent the
information is otherwise publicly available. A submitter need not
submit the justification for proprietary treatment or public versions
of the submissions that would otherwise be required by Commission rules
201.6 or 201.8. This procedure will accord the same treatment to these
submissions that has long been accorded to questionnaires submitted to
the Office of Investigations in Commission investigations. Pursuant to
Commission rule 207.3(b), interested parties that entered appearances
in the review must serve the public version of the submission described
in section 207.61(b) on all other parties to the review and the
proprietary versions of both parts of their response to the notice of
institution (i.e., the submissions described in both sections 207.61(b)
and 207.61(c)) on all representatives on the Administrative Protective
Order (APO) service list.
A sample notice of institution appears at Annex A to this notice.
The Commission contemplates that interested parties will be able to
obtain forms, whose use will be optional, to respond to the notice of
institution in a specific review from the Office of Investigations or
the Commission's World Wide Web site.
Proposed section 207.61(d) addresses situations in which an
interested party cannot furnish the information requested in the notice
of institution in the form or manner requested. In such instances, the
interested party should explain in its response why it is unable to
comply and indicate alternative forms in which it can provide such
information. This section is intended to apply the provisions of
section 782(c)(1) of the Act in the context of responses to notices of
institution.
Pursuant to section 782(b) of the Act and Commission rule 207.3(a),
any person that submits information in response to the notice of
institution or that makes a submission pursuant to section 207.61(e)
must certify that the information is accurate and complete to the best
of its knowledge. The Commission contemplates that the standard forms
it will make available for responses to the notice of institution will
contain specific language, such as that currently used in
questionnaires in antidumping and countervailing duty investigations,
for the required certification. Interested parties must certify both
parts of their responses (i.e., the submissions described in section
207.61(b) and section 207.61(c)).
Each individual interested party response to the notice of
institution will be reviewed for completeness by Commission staff
immediately upon its receipt. Commission staff will attempt to notify
each interested party of any deficiencies in its response, will state
the nature of the deficiency and will, to the extent practicable,
provide it with a brief period of time (approximately 5-10 days) in
which to remedy or explain the deficiency. The Commission will not
collect or accept any additional information or conduct other
investigative activity thereafter unless it decides to proceed to a
full review. This notification procedure is intended to apply the
provisions of section 782(d) of the Act in the context of responses to
notices of institution.
The Act provides the Commission with several potential courses of
action when interested parties fail to provide responses to the notice
of institution or provide responses that are deficient. Under section
782(d) of the Act, when a person fails to respond in a satisfactory or
timely manner to a request to remedy or explain a deficiency in a
submission, the Commission may disregard all or part of the submission.
Under section 776(b) of the Act, when an interested party fails to
cooperate by not acting to the best of its ability to comply with a
Commission request for information, the Commission may take an adverse
inference against the party in reaching a determination. Consequently,
when an interested party neither provides the information requested in
the notice of institution nor provides an acceptable explanation of its
inability to provide such information, the Commission may take an
adverse inference against that party in reaching any determination in a
five-year review, including an expedited determination.
Proposed section 207.61(e) provides an opportunity for those
persons that are not interested parties as defined by the Act (such as
industrial users, and, if merchandise under investigation is sold at
the retail level, representative consumer groups) to submit information
they consider relevant to the Commission's five-year review. Such
information must be filed with the Commission Secretary in accordance
with the provisions of section 201.8 within the 30-day period
applicable to interested party responses to the notice of institution.
[[Page 55190]]
Section 207.62
Section 751(c)(3)(B) of the Act permits the Commission to make
expedited determinations in five-year reviews when ``interested parties
provide inadequate responses to a notice of initiation.'' Proposed
section 207.62 describes the procedures for issuing expedited
determinations under section 751(c)(3)(B).
Proposed section 207.62(a) authorizes certain parties to file brief
comments to the Commission within a time specified in the notice of
institution, which will generally be no later than 60 days after
publication of the notice. Parties authorized to file comments are: (1)
Interested parties that have entered appearances in the review and have
responded to the notice of institution; and (2) all parties that have
entered appearances in the review that are not interested parties. The
sole issue these comments may address is whether an expedited
determination under section 751(c)(3)(B) of the Act is appropriate.
These comments may not include any new factual information (such as
supplementation of the response to the notice of institution) and will
be limited to five pages.
Representatives of interested parties that have entered into a
Commission APO will have access to other parties' proprietary responses
to the notice of institution well before these comments are due. Under
section 207.3(b), responses to the notice of institution submitted by
parties that have entered appearances in the investigation must be
served on all other parties on the service list. The Commission will
release under APO responses to the notice of institution filed by
interested parties that have not entered appearances in the
investigation approximately two weeks before the section 207.62(a)
comments are due. At approximately the same time, the Commission
intends to release confidential versions of the Commission's opinion(s)
in the original investigation and staff reports and non-privileged
memoranda prepared in connection with that investigation (where
available) to representatives under the APO. Public versions of these
documents (where available) will also be released. The Commission will
also release official import statistics and estimates of domestic and
foreign industry production compiled by Commission staff, where such
information is available.
After all comments are received, the Commission will determine
whether interested party responses are adequate. The SAA provides that
the purpose of the expedited review mechanism is to promote
administrative efficiency by eliminating needless reviews. The SAA also
states that the determination of adequacy is committed to the
Commission's (and, separately, Commerce's) discretion. 3
---------------------------------------------------------------------------
\3\ SAA at 880.
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Responses will be evaluated for adequacy on both an individual and
an aggregate basis. In assessing the adequacy of responses in the
aggregate, the Commission will consider only those responses that
individually are considered adequate. The Commission will separately
determine the adequacy of response (in the aggregate) of: (1)
Interested parties described in sections 771(9)(C), (D), (E), (F), and
(G) of the Act (a group that consists of, inter alia, U.S. producers of
the domestic like product and labor unions or groups of workers which
are representative of an industry producing the domestic like product;
this group will be referred to as ``domestic producers/unions''), and
(2) interested parties described in sections 771(9)(A) and (B) of the
Act (a group that consists of, inter alia, U.S. importers and foreign
exporters or producers of subject merchandise and subject country
governments; this group will be referred to as ``foreign producers/
importers'').
The Commission will make the determination of adequacy on a case-
by-case basis taking several factors into account. One factor that the
Commission will consider in determining adequacy is the responding
parties' likely share of domestic production (for domestic producers/
unions) or of subject imports or production of the subject merchandise
(for foreign producers/importers). The Commission does not intend to
apply strict numerical tests to determine adequacy of interested party
responses. Nevertheless, to provide some guidance to interested
parties, the Commission can tentatively identify certain circumstances
in which it will consider that response rates are sufficiently high or
low to provide a strong indication that interested party responses are
either adequate or inadequate. Specifically, responses from parties
accounting for more than 50 percent of domestic production will
normally be considered to be a strong indication of an adequate
response from domestic producers/unions. Responses from parties
accounting for more than 50 percent of subject imports or production of
subject merchandise will normally be considered to be a strong
indication of an adequate response from foreign producers/importers.
Consequently, a sufficient response by either U.S. importers or foreign
producers of the subject merchandise may constitute an adequate
response from foreign producers/importers. By contrast, responses
accounting for less than 25 percent of domestic production, on the one
hand, or subject imports or production of subject merchandise, on the
other, will normally be considered to be a strong indication of
inadequate responses by domestic producers/unions and foreign
producers/importers, respectively.
The Commission will not rely solely on numerical tests and will
take other factors into account in determining whether interested party
responses are adequate. For example, a response rate that may seem to
be inadequate for a highly concentrated industry may be adequate for a
highly fragmented industry.
Additional factors that the Commission intends to consider include
the structure of the pertinent domestic industry and industry producing
the subject merchandise, the potential of particular foreign producers
to export to the United States, the extent to which subject imports are
effectively excluded from the U.S. market by the order or suspension
agreement under review, and, for domestic producers/unions, the
prevalence of related party producers. The Commission invites parties
to comment on the appropriateness of relying on these factors to
determine whether interested party responses are adequate, and whether
there are additional or different factors that the Commission should
consider in making such a determination. The Commission also invites
parties to comment on the appropriateness of making expedited
determinations in grouped reviews involving subject merchandise from
several countries, if responses from the foreign producers/importers
are adequate with respect to some of the subject countries within the
group but inadequate with respect to others.
Pursuant to proposed section 207.62(b), if the Commission
determines that interested party responses are adequate, it will
conduct a full five-year review. In such cases, the Commission will
publish its schedule of the remaining procedures in the Federal
Register. (A sample schedule appears as Annex B to this notice.) Under
proposed section 201.11(b)(5), parties will have 45 days after
publication of this Federal Register notice to file additional entries
of appearance and APO applications.
By contrast, proposed section 207.62(c) describes procedures that
apply when the Commission concludes that interested party responses are
[[Page 55191]]
inadequate and an expedited determination is appropriate. In such
circumstances, the Secretary will notify all parties that submitted
timely entries of appearance in the Commission review that the
Commission has decided to make an expedited determination. The notice
will invite interested parties that responded adequately to the notice
of institution and all parties that are not interested parties to
submit comments on the merits of the review by a specific deadline
(which will generally be approximately 30-35 days from issuance of the
notice). Other persons who are not interested parties will have the
opportunity to submit a brief written statement on the merits of the
review by the same deadline.
The comments to be filed under proposed section 207.62(c), which
will satisfy the requirements of section 782(g) of the Act, give
parties their sole opportunity to submit comments to the Commission on
the merits of an expedited determination. These comments may not
contain new factual information and may not exceed 25 pages. Consistent
with Commission practice under section 207.30(b), comments containing
new factual information will be accepted into the record, but new
factual information and arguments based on that new factual information
will be disregarded. Any compilations by the Commission of information
collected and not previously released to representatives under APO will
be released under APO approximately 20 days before these comments are
due. The information released will include a staff report that will
compile information obtained in response to the notice of institution
as well as official import statistics, and, where available, estimates
of domestic and foreign industry production compiled by the Commission
staff. A public version of the staff report will also be released.
Proposed section 207.62(d) allows the Commission to delegate to a
senior member of the staff, such as the Director of Operations or the
Director of Investigations, authority to make decisions concerning
whether interested party responses to the notice of institution are
adequate or inadequate. Initially, the Commission will itself make all
such decisions. Should the Commission decide to delegate decisionmaking
authority concerning whether interested party responses are inadequate,
it will retain sole authority to issue the expedited determination in
any particular review.
Section 207.63
Proposed section 207.63 concerns circulation of draft
questionnaires in five-year reviews. As stated in proposed section
207.63(a), when the Commission does not issue an expedited
determination in a five-year review, it will circulate draft
questionnaires to the parties that have entered appearances in the
review. The Commission anticipates sending questionnaires to U.S.
producers of the domestic like product, foreign producers of subject
merchandise, U.S. importers of subject merchandise, and U.S.
purchasers. Questionnaires will commonly seek data in more detail
(particularly with respect to financial performance and pricing), for
additional periods of time, and, when warranted, for additional
products than will the notice of institution. The Commission
anticipates that draft questionnaires will be circulated to the parties
to the review approximately 150 days after initiation. The Commission
invites comment on the content and format of questionnaires in five-
year reviews.
Parties that desire to comment on the draft questionnaires may
submit written comments to the Commission, as indicated by proposed
section 207.63(b). The Commission anticipates that such comments will
be due approximately 30 days after circulation of the draft
questionnaires.
Proposed section 207.63(b) requires each party to present all data
collection requests in its questionnaire comments. The Commission will
disregard any subsequent arguments that are premised on the collection
of new data if the data collection request was not asserted in the
questionnaire comments. Thus, if the draft questionnaires in a review
propose collecting data for only one product, and a party believes that
data should be collected for two products, it must request data
collection for two products, and provide a legal basis for its request,
in its comments on the questionnaire. It may not request collection of
such data for the first time, for example, in its prehearing brief or
at the hearing.
The Commission believes this procedure is necessary to focus its
data collection efforts. In original antidumping and countervailing
duty investigations, the Commission has found issuing supplemental
questionnaires in the late stages of an investigation to be impractical
because of time and staffing constraints. These problems will be
exacerbated in five-year reviews. Therefore, any data collected in a
five-year review must be collected pursuant to the notice of
institution and in the questionnaires. It is imperative that the
Commission be apprised of all data collection issues before
questionnaires are issued. The Commission believes that this procedure
will impose no hardship on representatives of interested parties who
have entered an APO, who will have the benefit of pertinent portions of
the record of the original investigation, as well as access under APO
to all information collected in response to the notice of institution,
before they are to file comments on the questionnaires. This material
should allow interested party representatives ample time to determine
what information they believe the Commission should seek and consider.
Likewise, parties to the review that are not interested parties will
have ample notification and access to the public record to provide an
informed basis for comment.
Section 207.64
Proposed section 207.64 concerns staff reports in five-year
reviews. It tracks current section 207.22 concerning staff reports in
final phase antidumping and countervailing duty investigations.
Section 207.65
Proposed section 207.65 concerns prehearing briefs. It is adapted
from current section 207.23. In a five-year review, every party to the
review is to submit a prehearing brief on the date specified in the
scheduling notice.
Section 207.66
Proposed section 207.66 concerns hearings in five-year reviews. The
Commission will conduct a hearing in each five-year review in which it
does not render an expedited determination. Hearing procedures will
conform to those established in current section 207.24 concerning final
phase antidumping and countervailing duty investigations.
Section 207.67
Proposed section 207.67 concerns posthearing briefs and statements.
It is based on current sections 207.25 and 207.26.
Section 207.68
Proposed section 207.68 concerns final comments on information in
five-year reviews. It is based on the final comment procedure in
section 207.30 currently used in final phase antidumping and
countervailing duty investigations.
The procedures in section 207.68 will be used in five-year reviews
where the determination is not expedited. In five-year reviews where
the determination is
[[Page 55192]]
expedited, the final comment procedure is specified in proposed section
207.62(c).
Section 207.69
Proposed section 207.69 requires the Commission to publish and
serve its determinations in five-year reviews. It tracks current
section 207.29.
List of Subjects
19 CFR Part 201
Administrative practice and procedure, Investigations, Imports.
19 CFR Part 207
Administrative practice and procedure, Antidumping, Countervailing
duties, Investigations.
For the reasons stated in the preamble, 19 CFR parts 201 and 207
are proposed to be amended as set forth below:
PART 201--[AMENDED]
1. The authority citation for part 201 continues to read as
follows:
Authority: Section 335 of the Tariff Act of 1930 (19 U.S.C.
1335) and Sec. 603 of the Trade Act of 1974 (19 U.S.C. 2482), unless
otherwise noted.
2. New paragraphs (b)(4) and (b)(5) are added to Sec. 201.11 to
read as follows:
Sec. 201.11 Appearance in an investigation as a party.
* * * * *
(b) Time for filing. * * *
(4) In the case of reviews conducted under subpart F of part 207 of
this chapter, each entry of appearance shall be filed with the
Secretary not later than twenty-one (21) days after publication in the
Federal Register of the notice of institution described in
Sec. 207.60(c).
(5) Notwithstanding paragraph (b)(4) of this section, a party may
file an entry of appearance in a review conducted under subpart F of
part 207 of this chapter for a period of 45 days after publication in
the Federal Register of the notice specified under Sec. 207.62(b).
* * * * *
PART 207--[AMENDED]
3. The authority citation for part 207 continues to read as
follows:
Authority: 19 U.S.C. 1336, 1671-1677n, 2482, 3513.
4. Paragraph (b) of Sec. 207.3 is revised to read as follows:
Sec. 207.3 Service, filing, and certification of documents
* * * * *
(b) Service. Any party submitting a document for inclusion in the
record of the investigation shall, in addition to complying with
Sec. 201.8 of this chapter, serve a copy of each such document on all
other parties to the investigation in the manner prescribed in
Sec. 201.16 of this chapter. 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. 207.7, 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 pursuant to Secs. 207.10,
207.15, 207.23, 207.24, 207.25, 207.65, 207.66, and 207.67 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 to all parties to the investigation a
copy of each document, except transcripts of conferences and hearings,
business proprietary information, privileged information, and
information required to be served under this section, placed in the
record of the investigation by the Commission.
* * * * *
5. Paragraph (a) of Sec. 207.45 is revised to read as follows:
Sec. 207.45 Investigation to review outstanding determination
(a) Request for review. Any person may file with the Commission a
request for the institution of a review investigation under section
751(b) of the Act. The person making the request shall also promptly
serve copies of the request on the parties to the original
investigation upon which the review is to be based. All requests shall
set forth a description of changed circumstances sufficient to warrant
the institution of a review investigation by the Commission.
* * * * *
6. Paragraph (g) of Sec. 207.46 is revised to read as follows:
Sec. 207.46 Investigations concerning certain countervailing duty
orders.
* * * * *
(g) Request for simultaneous 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 a review
under section 751(c) of the Act of a countervailing or antidumping duty
order involving the same or comparable subject merchandise.
(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. Any such consolidated review shall be conducted
under the applicable procedures set forth in subparts A and F of this
part.
(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.
7. A new subpart F is added to read as follows:
Subpart F--Five-Year Reviews
207.60 Definitions.
207.61 Responses to notice of institution.
207.62 Adequacy of responses to notice of institution.
207.63 Circulation of draft questionnaires.
207.64 Staff reports.
207.65 Prehearing briefs.
207.66 Hearing.
207.67 Posthearing briefs and statements.
207.68 Final comments on information.
207.69 Publication of determinations.
Sec. 207.60 Definitions.
For purposes of this subpart:
(a) The term five-year review means a five-year review
investigation conducted pursuant to section 751(c) of the Act.
(b) The term expedited determination means a determination issued
by the Commission pursuant to section 751(c)(3)(B) of the Act.
(c) The term notice of institution shall refer to the notice of
institution of five-year review that the Commission shall publish in
the Federal Register requesting that interested parties provide
information to the Commission upon initiation of a five-year review.
(d) The term domestic like product means a product produced in the
United States which is like, or in the absence of like, most similar in
characteristics and uses with, the articles subject to a five-year
review.
(e) The term domestic industry means the producers as a whole of a
domestic like product, or those producers whose collective output of a
domestic like product constitutes a major proportion of the total
domestic production of the product.
(f) The term subject merchandise means the class or kind of
merchandise
[[Page 55193]]
that is within the scope of the five-year review.
Sec. 207.61 Responses to notice of institution.
(a) When information must be filed. Responses to the notice of
institution shall be submitted to the Commission no later than 30 days
after its publication in the Federal Register.
(b) Information to be filed with the Secretary. The notice of
institution shall direct each interested party to make a filing
pursuant to Secs. 201.8 and 207.3 of this chapter containing the
following:
(1) A statement expressing its willingness to participate in the
review by providing information requested by the Commission;
(2) A statement regarding the likely effects of revocation of the
order(s) or termination of the suspended investigation(s) under review;
(3) Other information requested in the notice of institution.
(c) Information to be submitted to the Office of Investigations.
The notice of institution shall further direct each interested party to
submit the following material to the Commission's Office of
Investigations:
(1) Such information or industry data as the Commission may specify
in the notice of institution;
(2) Any other information or data the party considers relevant to
the Commission's determination.
(d) When requested information cannot be supplied. Any interested
party that cannot furnish the information requested by the notice of
institution shall explain in its response(s) why it is unable to
provide the information and indicate alternative forms in which it can
provide equivalent information.
(e) Submissions by persons other than interested parties. Any
person who is not an interested party may submit to the Commission, in
a filing satisfying the requirements of Sec. 201.8 of this title,
information relevant to the Commission's review no later than 30 days
after publication of the notice of institution in the Federal Register.
Sec. 207.62 Adequacy of responses to notice of institution.
(a) Comments to the Commission. (1) Comments to the Commission
concerning whether the Commission should make an expedited
determination in that review may be submitted by:
(i) Any interested party that is a party to the investigation and
that has responded to the notice of institution; and
(ii) Any party, other than an interested party, that is a party to
the investigation.
(2) Comments shall be submitted within the time specified in the
notice of institution. Comments shall not exceed five (5) pages of
textual material, double-spaced and single-sided, on stationery
measuring 8\1/2\ x 11 inches. Comments containing new factual
information shall be disregarded.
(b) Determination that responses are adequate. If the Commission
concludes that interested parties' responses to the notice of
institution are adequate, investigative activities pertaining to that
review will continue. The Commission will publish in the Federal
Register a notice of scheduling pertaining to subsequent procedures in
the review.
(c) Determination that responses are inadequate. (1) If the
Commission concludes that interested parties' responses to the notice
of institution are inadequate, it may decide to issue an expedited
determination. In that event, the Commission shall direct the Secretary
to issue a notice stating that the Commission has decided to make an
expedited determination and inviting those parties to the review
described in paragraph (c)(2) of this section to file written comments
with the Secretary on what determination the Commission should reach in
the review. The date on which such comments must be filed will be
specified in the notice to be issued by the Secretary. Comments shall
not exceed twenty-five (25) pages of textual material, double-spaced
and single-sided, on stationery measuring 8\1/2\ x 11 inches.
Comments containing new factual information shall be disregarded.
(2) The following parties may file the comments described in
paragraph (c)(1) of this section:
(i) Any interested party that is a party to the investigation and
that has filed an adequate response to the notice of institution; and
(ii) Any party, other than an interested party, that is a party to
the investigation.
(3) Any person who is neither a party to the investigation nor an
interested party may submit a brief written statement (which shall not
contain any new factual information) pertinent to the review within the
time specified for the filing of written comments.
(d) Delegation of responsibilities. Notwithstanding any other
provision of this part, the Commission may delegate its
responsibilities pursuant to this section to a member of the Commission
staff.
Sec. 207.63 Circulation of draft questionnaires.
(a) In each five-year review in which the Commission has not issued
an expedited determination, the Director shall circulate draft
questionnaires to the parties for comment.
(b) Any party desiring to comment on the draft questionnaires shall
submit such comments in writing to the Commission within a time
specified by the Director. All requests for collecting new data must be
presented at this time. The Commission will disregard subsequent
arguments that are premised on requests for collection of new data if
such requests were not included in the comments on the draft
questionnaires.
Sec. 207.64 Staff reports.
(a) Prehearing staff report. The Director shall prepare and place
in the record, prior to the hearing, a prehearing staff report
containing information concerning the subject matter of the five-year
review. A version of the staff report containing business proprietary
information shall be placed in the nonpublic record and made available
to persons authorized to receive business proprietary information under
Sec. 207.7, and a nonbusiness proprietary version of the staff report
shall be placed in the public record.
(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 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
Sec. 207.7.
Sec. 207.65 Prehearing briefs.
Each party to a five-year review may submit a prehearing brief to
the Commission on the date specified in the scheduling notice. A
prehearing brief shall be signed and shall include a table of contents.
The prehearing brief should present a party's case concisely and shall,
to the extent possible, refer to the record and include information and
arguments which the party believes relevant to the subject matter of
the Commission's determination.
Sec. 207.66 Hearing.
(a) In general. The Commission shall hold a hearing in each five-
year review in which it does not make an expedited determination. The
date of the hearing
[[Page 55194]]
shall be specified in the scheduling notice.
(b) Procedures. Hearing procedures in five-year reviews will
conform to those for final phase antidumping and countervailing duty
investigations set forth in Sec. 207.24.
Sec. 207.67 Posthearing briefs and statements.
(a) Briefs from parties. Any party to a five-year review may file
with the Secretary a posthearing brief concerning the information
adduced at or after the hearing within a time specified in the
scheduling notice or by the presiding official at the hearing. No such
posthearing brief shall exceed fifteen (15) pages of textual material,
double spaced and single sided, on stationery measuring 8\1/2\ x 11
inches. In addition, the presiding official may permit persons to file
answers to questions or requests made by the Commission at the hearing
within a specified time. The Secretary shall not accept for filing
posthearing briefs or answers which do not comply with this section.
(b) Statements from nonparties. Any person other than a party may
submit a brief written statement of information pertinent to the review
within the time specified for the filing of posthearing briefs.
Sec. 207.68 Final comments on information.
(a) The Commission shall specify a date after the filing of
posthearing briefs on which it will disclose to all parties to the
five-year review 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 Sec. 207.7.
(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 Sec. 207.67. Comments shall only concern such
information, and shall not exceed 15 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 shall
be disregarded. The date on which such comments must be filed will be
specified by the Commission when it specifies the time that 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
changes in bracketing of business proprietary information in the
comments permitted by Sec. 207.3(c).
Sec. 207.69 Publication of determinations.
Whenever the Commission makes a determination concluding a five-
year review, the Secretary shall serve copies of the determination and,
when applicable, the nonbusiness proprietary version of the final staff
report on all parties to the review, and on the administering
authority. The Secretary shall publish notice of such determination in
the Federal Register.
By order of the Commission.
Issued: October 20, 1997.
Donna R. Koehnke,
Secretary.
Note: The following annexes would not appear in the Code of
Federal Regulations.
Annex A--Notice of Institution of Five-Year Review
Definitions
(1) Subject Merchandise is the class or kind of merchandise that
is within the scope of the five-year review. In this review, the
Department of Commerce has defined the Subject Merchandise as
DEFINE.
(2) The Subject Country in this review is COUNTRY.
(3) The Domestic Like Product is the domestically produced
product or products which are like, or in the absence of like, most
similar in characteristics or uses with, the Subject Merchandise. In
its original determination, the Commission defined the Domestic Like
Product as DEFINE. One Commissioner/certain Commissioners defined
the Domestic Like Product differently.
(4) The Domestic Industry is the producers as a whole of a
Domestic Like Product, or those producers whose collective output of
a Domestic Like Product constitutes a major proportion of the total
domestic production of the product. In its original determination,
the Commission defined the Domestic Industry as producers of DEFINE.
(5) The Order Date is the date that the countervailing duty
order/antidumping duty order/suspension agreement under review
became effective. In this review, the Order Date is DATE.
(6) An Importer is any person or firm engaged, either directly
or through a parent company or subsidiary, in importing the Subject
Merchandise into the United States from a foreign manufacturer or
through its selling agent.
Certification
In accordance with Commission rule 207.3, any person submitting
information to the Commission in connection with this investigation
must certify that the information is accurate and complete to the
best of the submitter's knowledge. This certification must be
included in both the information to be submitted to the Commission's
Secretary and the information to be submitted to the Commission's
Office of Investigations specified below. In making the
certification, the submitter will be deemed to consent, unless
otherwise specified, for the Commission, its employees, and contract
personnel to use the information provided in any other
investigations of the same or comparable products which the
Commission conducts under Title VII of the Act, or in internal
audits and investigations relating to the programs and operations of
the Commission pursuant to 5 U.S.C. Appendix 3.
Information to be Submitted to the Secretary
Responses filed with the Secretary must conform with the
provisions of section 201.8 of the Commission's rules. If business
proprietary treatment is desired for portions of a response,
submitters must follow the requirements set forth in sections 201.6,
207.3, and 207.7 of the Commission's rules. Also, in accordance with
sections 201.16(c) and 207.3 of the Commission's rules, each
document filed by a party to the investigation must be served on all
other parties to the investigation (as identified by either the
public or BPI service list as appropriate), and a certificate of
service must accompany the document (if you are not a party to the
investigation you do not need to serve your response). Any
interested party that cannot furnish the information requested
should explain why it is unable to do so and indicate alternative
forms in which it can provide equivalent information. (Added if more
than one country is involved) If you are a domestic producer,
import/export Subject Merchandise from more than one Subject
Country, or produce Subject Merchandise in more than one Subject
Country, you may file a single response. If you do so, please ensure
that your response to each question includes the information
requested for each pertinent Subject Country.
The response to the Secretary should include:
(1) The name and address of your firm (including World Wide Web
address if available) and name, telephone number,
[[Page 55195]]
fax number, and E-mail address of the certifying official.
(2) A statement indicating whether your firm is a U.S. producer
of the Domestic Like Product, a U.S. importer of the Subject
Merchandise, a foreign producer/exporter of the Subject Merchandise,
or another interested party (including an explanation).
(3) A statement indicating whether your firm is willing to
participate in this review by providing information requested by the
Commission.
(4) A statement of the likely effects of the revocation of the
countervailing duty order/antidumping duty order/termination of the
suspension agreement on the Domestic Industry in general and/or your
firm specifically.
(5) A list of all known and currently operating U.S. producers of
the Domestic Like Product.
(6) A list of all known and currently operating U.S. importers
of the Subject Merchandise and producers of the Subject Merchandise
in COUNTRY that currently export or have exported Subject
Merchandise to the United States or other countries since (YEAR OF
PETITION).
(7) (OPTIONAL) A statement of whether you agree with the above
definitions of the Domestic Like Product and Domestic Industry; if
you disagree with either or both of these definitions, please
explain why and provide alternative definitions.
Information To Be Submitted to the Office of Investigations
Responses filed with the Office of Investigations will be
treated as business proprietary unless the information is otherwise
publicly available and should be submitted to INVESTIGATOR, Office
of Investigations, U.S. International Trade Commission, Room 615,
500 E Street, SW, Washington, DC 20436. Only one copy of the
response needs to be submitted to the Office of Investigations, but
each document filed by a party to the investigation must be served
on all other parties to the investigation (as identified by the BPI
service list), and a certificate of service must accompany the
document (if you are not a party to the investigation you do not
need to serve your response). Any interested party that cannot
furnish the information requested should explain why it is unable to
do so and indicate alternative forms in which it can provide
equivalent information. (Added if more than one country is involved)
If you are a domestic producer, import/export Subject Merchandise
from more than one Subject Country, or produce Subject Merchandise
in more than one Subject Country, you may file a single response. If
you do so, please ensure that your response to each question
includes the information requested for each pertinent Subject
Country.
The response to the Office of Investigations should include:
(1) The name and address of your firm (including World Wide Web
address if available) and name, telephone number, fax number, and E-
mail address of the certifying official.
(2) If your firm is a U.S. producer of PRODUCT, provide the
following information on your firm's operations on that product
during calendar year PRECEDING YEAR and your projections, in
accordance with Generally Accepted Accounting Principles (GAAP), for
calendar year CURRENT YEAR (report quantity data in UNITS and value
data in thousands of dollars):
(a) Annual production capacity (quantity) (report the practical
capacity of your plant(s) using the machinery and equipment in place
at the end of the year and specify that the capacity reported is
based on operating ____ hours per week, ____ weeks per year);
(b) end-of-year inventories (quantity);
(c) production (quantity) (including, if known, an estimate of
the percentage of total U.S. production of PRODUCT accounted for by
your firm's production in PRECEDING YEAR);
(d) the quantity and value of U.S. commercial shipments of
product produced in your U.S. plant(s);
(e) the quantity of product produced in your U.S. plant(s) that
you consumed internally or transferred within your company;
(f) the quantity and value of exports of product produced in
your U.S. plant(s);
(g) the average number of production workers;
(h) your firm's net sales and operating income or (loss); and
(i) average prices for SPECIFIC PRODUCT.
(3) If your firm is a U.S. importer of the Subject Merchandise,
provide the following information on your firm's operations on that
product FOR EACH COUNTRY SUBJECT TO THIS REVIEW INVESTIGATION during
calendar year PRECEDING YEAR and your projections, in accordance
with GAAP, for calendar year CURRENT YEAR (report quantity data in
UNITS and value data in thousands of dollars):
(a) The quantity and value of U.S. imports (including, if known,
an estimate of the percentage of total U.S. imports of PRODUCT from
COUNTRY accounted for by your firm's imports in PRECEDING YEAR);
(b) end-of-year inventories (quantity);
(c) the quantity and value of U.S. commercial shipments of
imported product; and
(d) average prices for SPECIFIC PRODUCT.
(4) If your firm is a producer of the Subject Merchandise in
COUNTRY, provide the following information on your firm's operations
on that product during calendar year PRECEDING YEAR and your
projections, in accordance with GAAP, for calendar year CURRENT YEAR
(report quantity data in UNITS and value data in thousands of
dollars):
(a) Annual production capacity (quantity) (report the practical
capacity of your plant(s) using the machinery and equipment in place
at the end of the year and specify that the capacity reported is
based on operating ____ hours per week, ____ weeks per year);
(b) end-of-year inventories (quantity);
(c) production (quantity) (including, if known, an estimate of
the percentage of total production of PRODUCT in COUNTRY accounted
for by your firm's production in PRECEDING YEAR);
(d) the quantity and value of home market shipments of product
produced in your plant(s) (including any internal consumption and
company transfers);
(e) the quantity and value of your firm's exports to the United
States of product produced in your plant(s) (including, if known, an
estimate of the percentage of total exports to the United States of
PRODUCT from COUNTRY accounted for by your firm's exports in
PRECEDING YEAR); and
(f) the quantity and value of your firm's exports to all other
countries of product produced in your plant(s).
(5) Identify any significant changes in the supply of and demand
for the Domestic Like Product that have occurred in the United
States since the Order Date. Address changes in factors such as
technology; production methods; the availability and price of major
production inputs; consumption patterns; new alternative products
that compete for sales; availability of imports from nonsubject
countries; the degree of interchangeability between the Domestic
Like Product, Subject Merchandise, and nonsubject imports; and
demand for U.S. products in export markets.
(6) (Asked in reviews involving multiple subject countries)
Explain (a) whether the Domestic Like Product and Subject
Merchandise from each Subject Country compete or are likely to
compete with each other in the United States and (b) whether Subject
Merchandise from each individual Subject Country competes or is
likely to
[[Page 55196]]
compete in the United States with Subject Merchandise from each
other Subject Country. In determining whether (likely) competition
exists between two products, you may consider such factors as (i)
the degree of (likely) fungibility between the products, (ii)
whether the products are (likely to be) sold in the same geographic
markets in the United States, (iii) whether the products are (likely
to be) sold in common channels of distribution, and (iv) whether the
products are (likely to be) sold in the U.S. market simultaneously.
(7) (OPTIONAL) Provide any other information or data that you
consider relevant to the Commission's determination.
Annex B--Proposed Schedule for Sunset Reviews\1\
------------------------------------------------------------------------
Action/Event Day
------------------------------------------------------------------------
Notice of Institution (Published in the Federal Register)...... 0
Entries of Appearance/APO Applications Due..................... 21
Responses to Notice of Institution Due......................... 30
Comments on Appropriateness of Expedited Review Due............ 60
Notice of Inadequacy/Expedited Review or Adequacy/Full Review.. 95
------------------------------------------------------------------------
\1\ The Commission may extend its deadline by up to 90 days in all
transition reviews and other extraordinarily complicated cases.
Inadequate Responses/Expedited Review
------------------------------------------------------------------------
Action/Event Day
------------------------------------------------------------------------
Staff Report/Data Compilation to Commission and Parties........ 110
Commerce Expedited Determination (If Issued)................... 120
Written Submission on Merits (``Final Comments'') by Parties
Due........................................................... 130
Commission Vote................................................ 140
Commission Determination and Views to Commerce................. 150
------------------------------------------------------------------------
Adequate Responses/Full Review
------------------------------------------------------------------------
Action/Event Day
------------------------------------------------------------------------
New Entries of Appearance/APO Applications Due................. 140
Draft Questionnaires to Parties for Comment.................... 150
Written Comments on Draft Questionnaires Due (Final Opportunity
for Parties to Raise Issues Affecting Data Collection)........ 180
Questionnaire Mail Date........................................ 225
Commerce Subsidy/Dumping Determination......................... 240
Questionnaire Return Date...................................... 265
Prehearing Report to Commission and Parties.................... 299
Prehearing Briefs Due.......................................... 305
Hearing........................................................ 313
Posthearing Briefs Due......................................... 320
Staff Report to Commission and Parties......................... 330
Final Comments Due............................................. 340
Commission Vote................................................ 348
Commission Determination and Views to Commerce................. 360
------------------------------------------------------------------------
[FR Doc. 97-28257 Filed 10-22-97; 8:45 am]
BILLING CODE 7020-02-P
