[Federal Register Volume 59, Number 23 (Thursday, February 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-2341]
[[Page Unknown]]
[Federal Register: February 3, 1994]
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INTERNATIONAL TRADE COMMISSION
19 CFR Parts 206 and 207
Implementing Rules for the North American Free Trade Agreement
AGENCY: United States International Trade Commission.
ACTION: Interim rules with request for comments.
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SUMMARY: The Commission is amending its rules of practice and procedure
to conform with the North American Free Trade Agreement Implementation
Act, Pub. L. 103-182, 107 Stat. 2057 (December 8, 1993) (``NAFTA
Implementation Act''). In particular, these interim regulations
implement title III of the NAFTA Implementation Act, which provides for
special safeguard investigations and determinations with respect to
Canadian and Mexican articles during the transition period for tariff
elimination under the North American Free Trade Agreement (``NAFTA''),
provide for certain findings with respect to Canadian and Mexican
articles in the course of an investigation under section 202 of the
Trade Act of 1974 (19 U.S.C. 2252), make certain conforming changes to
section 202 of the Trade Act of 1974 with respect to treatment of
confidential business information, and direct the Commission to ``adopt
such procedures and rules and regulations as are necessary to bring its
procedures into conformity with chapter 8 of the Agreement.'' These
interim regulations also implement title IV of the NAFTA Implementation
Act, which provides for issuance of administrative protective orders
for information required to be released in review by a binational panel
of United States antidumping and countervailing duty final
determinations involving products from Canada or Mexico.
DATES: These amended interim rules take effect as of January 1, 1994,
the date on which the NAFTA became effective. Written comments must be
received not later than April 4, 1994.
ADDRESSES: A signed original and 14 copies of each set of comments,
along with a cover letter addressed to Donna R. Koehnke, Secretary,
should be sent to the U.S. International Trade Commission, 500 E Street
SW., room 112, Washington, DC 20436.
FOR FURTHER INFORMATION CONTACT: Concerning part 206: William Gearhart
(202-205-3091); Concerning subpart G of part 207: Kathryn A. Gilchrist
(202-205-3092) or Andrea C. Casson (202-205-3105), Office of the
General Counsel, U.S. International Trade Commission. 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
A. Part 206
Chapter 8 of the NAFTA sets out the procedures and remedies
available to domestic industries that have sustained, or are threatened
by, serious economic injury due to increased imports. Chapter 8 covers
two different situations--actions that can be taken against increased
imports from a single NAFTA country due to injury caused by the phase-
out of tariffs under the NAFTA (``bilateral'' actions) and those that
can be taken against imports from all sources (``global'' actions). In
general, such bilateral actions may be taken during specified
``transition periods'' during which duties on NAFTA-origin goods are
being phased out. When taking global actions, NAFTA countries are
called upon to exclude goods originating in other NAFTA countries from
the action when they are not a significant cause of the problem.
However, NAFTA imports initially excluded may be subsequently included
if a surge in such imports is found to undermine the effectiveness of
the relief action. In several respects, the chapter tracks the
emergency action provisions in Chapter 11 of the United States-Canada
Free Trade Agreement (``CFTA'') for both bilateral and global actions,
while adding Mexico to, and making certain changes in, the CFTA rules.
Chapter 8 of the NAFTA goes beyond Chapter 11 of the CFTA in
several respects. The chapter establishes procedural rules similar to
those in current U.S. law and practice that each government will be
required to follow in conducting investigations leading to bilateral
and global safeguard actions against goods from other NAFTA countries.
These rules require, among other things, the publication of notice of
an investigation and its scope, the holding of a public hearing,
protection of confidential information, and publication of findings and
the basis for those findings.
Title III of the NAFTA Implementation Act (1) provides for special
safeguard investigations and determinations by the Commission with
respect to Canadian and Mexican articles during the transition period
of the Agreement; (2) provides for Commission findings in the context
of a global action safeguard investigation under section 202 of the
Trade Act of 1974 (19 U.S.C. 2252) to assist the President in
determining whether imports from Canada or Mexico should be excluded
from the relief action; and (3), if imports from Canada and/or Mexico
are excluded from the action, provides for Commission investigations
and findings with respect to whether there has been a surge in such
excluded imports which undermines the effectiveness of the relief
action. Title III also makes certain conforming changes to section 202
of the Trade Act of 1974 (19 U.S.C. 2252) with respect to treatment of
confidential business information. Section 317 of the NAFTA
Implementation Act directs the Commission to ``adopt such procedures
and rules and regulations as are necessary to bring its procedures into
conformity with chapter 8 of the Agreement.''
Since August 29, 1988, the Commission has had in effect interim
rules governing the Commission's administrative responsibilities under
sections 201-204 and 406 of the Trade Act of 1974, as amended (19
U.S.C. 2251-2254, 2436). See 53 FR 33036, Aug. 29, 1988. The amendments
to these rules provide procedures for Commission investigations and
determinations with respect to imports from Canada or Mexico during the
transition period of the Agreement; for Commission findings in the
context of a global action safeguard investigation under sections 201-
202 of the Trade Act of 1974 to assist the President in determining
whether imports from Canada or Mexico should be excluded from the
relief action; and, if imports from Canada and/or Mexico are excluded
from the action, for Commission investigations and findings with
respect to whether there has been a surge in such excluded imports
which undermines the effectiveness of the relief action. The amendments
also set out Commission procedures regarding the protection of
confidential business information, and make certain technical changes
to bring the rules into conformity with chapter 8 of NAFTA. No changes
except with respect to numbering were made to rules specifically
relating to the Commission's administrative responsibilities under
sections 204 and 406 of the Trade Act. These amended interim rules are
intended to replace the existing rules as of January 1, 1994.
B. Subpart G of Part 207
Chapter 19 of the NAFTA establishes a mechanism for resolving
disputes between any two of the NAFTA countries with respect to
antidumping and countervailing duty cases. The central feature of the
mechanism is the replacement of domestic judicial review of
determinations in antidumping and countervailing duty cases involving
imports from another NAFTA country with review by binational panels.
The NAFTA countries will continue to apply their own national
antidumping and countervailing duty laws to goods imported from the
other country. In such cases, binational panels, consisting of five
panelists chosen by the countries involved in the dispute, will
expeditiously review final determinations under these laws to decide
whether they are consistent with the antidumping or countervailing duty
law of the country that made the determination.
The NAFTA also provides for review of a panel decision by an
extraordinary challenge committee (``Committee'') when the government
of one of the NAFTA countries alleges that a panelist materially
violated the rules of conduct, or that the panel seriously departed
from a fundamental procedural rule or exceeded its powers, authority or
jurisdiction. The NAFTA requires that the NAFTA countries protect
sensitive business information against unlawful disclosure in both the
panel review and extraordinary challenge processes.
Title IV of the NAFTA Implementation Act amends U.S. law to
implement chapter 19 of the NAFTA by limiting judicial review in cases
involving Canadian or Mexican merchandise, establishing procedures
whereby private parties may appeal for binational panel review,
providing organizational structure for administering U.S.
responsibilities under chapter 19 and making other conforming
amendments to U.S. law. More specifically, section 402(g) of the NAFTA
Implementation Act authorizes the Commission to issue regulations to
implement chapter 19 of the NAFTA, including extraordinary challenge
committee proceedings.
These regulations are intended to implement certain administrative
procedures required by chapter 19 of the Agreement involving
administrative responsibilities of the Commission that continue during
and after panel review. The regulations address release of business
proprietary and privileged information under administrative protective
order during a panel review, and sanctions for violations of the
provisions of such protective orders.
Since January 1, 1989, the Commission has had in effect either
interim or final rules governing the Commission's administrative
responsibilities under the U.S.-Canada Free-Trade Implementation Act of
1988, Pub. L. 100-449 (September 28, 1988) (``CFTA Implementation
Act''). See 53 FR 53248, Dec. 30, 1988 (interim); 54 FR 36295, Sept. 1,
1989 (interim); and 57 FR 34825, Aug. 6, 1992 (final). The amended
interim rules issued herein, which govern the Commission's
administrative responsibilities under the NAFTA Implementation Act, for
the most part track the existing rules applicable under the CFTA
Implementation Act. Unless otherwise noted, these rules are technical
in nature, for example, replacing references to Canada with references
to the NAFTA country or references to the CFTA Agreement with
references to the NAFTA agreement. These amended interim rules are
intended to replace the existing rules as of January 1, 1994.
C. Implementation of Interim Rules Under Part 206 and Subpart G of Part
207
Commission rules to implement new legislation ordinarily are
promulgated in accordance with the rule making provisions of section
553 of the Administrative Procedure Act (5 U.S.C. 551 et seq.),
(``APA''), which entails the following steps: (1) Publication of a
notice of proposed rule making; (2) solicitation of public comment on
the proposed rules; (3) Commission review of such comments prior to
developing final rules; and (4) publication of the final rules thirty
days prior to their effective date. See 5 U.S.C. 553. That procedure
could not be utilized in this instance because the new legislation was
enacted on December 8, 1993, and became effective on January 1, 1994.
Thus, it was not possible to complete the standard procedure prior to
that date. The Commission thus determined to adopt interim rules that
go into effect as of January 1, 1994 and will remain in effect until
the Commission can adopt final rules promulgated in accordance with the
usual notice, comment, and advance publication procedure.
In addition to the requirement in the NAFTA Implementation Act that
Commission rules be amended by the effective date of the legislation,
the Commission's authority to adopt interim rules without following all
steps listed in section 553 of the APA is derived from two sources: (1)
Section 335 of the Tariff Act of 1930 (19 U.S.C. 1335) and (2)
provisions of section 553 of the APA which allow an agency to dispense
with various steps in the prescribed rule making procedures under
certain circumstances. The Commission has determined that the statutory
requirement to have rules in place by the effective date of the NAFTA
constitutes appropriate circumstances to forego the steps listed in
section 553 of the APA. Specifically, the Commission has determined
that the requirement that amended rules take effect as of January 1,
1994 makes the notice, comment and advance publication procedure
impracticable in this instance and that the amended interim rules
constitute agency rules of procedure and practice for which notice of
proposed rule making is not required. Further, the Commission has
determined that the requirement that amended rules be in place by the
enactment date of the legislation constitutes good cause to publish
interim rules without providing thirty days notice prior to their
effective date.
The Commission has also determined that these rules do not
constitute major rules for the purposes of Executive Order 12291 (46 FR
13193, Feb. 17, 1981), because they do not meet the criteria described
in section 1(b) of the EO. Finally, the amendments, as interim rules,
are not subject to the filing requirement of section 3(c)(3) of the EO.
The Regulatory Flexibility Act does not apply to these rules
because they do not affect a large number of small entities, and
because the rules were not required by section 553 of the
Administrative Procedure Act or by any other law to be promulgated as a
proposed rule before issuance as a final rule.
Explanation of Proposed Amendments
Amendments to Part 206
The title of part 206 is changed to refer to, among other things,
``global and bilateral safeguard actions,'' reflecting the use of the
term ``safeguards'' in the NAFTA Implementation Act and to distinguish
between actions with respect to imports from all countries (proceedings
under section 201 of the Trade Act of 1974) and actions with respect to
imports from a NAFTA country (proceedings under section 302(b) of the
NAFTA Implementation Act). The current title of this part refers to,
among other things, ``investigations relating to import injury to
industries.'' The current title, which historically has been used to
refer to section 201-type proceedings, can be confusing to those not
familiar with Commission trade law terminology and has been
misconstrued as describing proceedings under other statutory provisions
that the Commission administers.
Section 206.1 is amended to state that part 206 applies to
functions and duties of the Commission under sections 301-318 of the
NAFTA Implementation Act and to state that subparts C and D of the
rules apply to requests/petitions and investigations under sections
312(c) and 302 of that Act, respectively. Former subparts C and D
(relating to market disruption investigations under section 406 of the
Trade Act of 1974 (19 U.S.C. 2436) and monitoring and advice under
section 204 of the Trade Act of 1974 (19 U.S.C. 2254), respectively)
are redesignated as subparts E and F.
Section 206.2, which provides for the identification of petitions,
is amended to include references to sections 312(c) and 302 of the
NAFTA Implementation Act in the list of statutory provisions under
which petitions under this part may be filed.
Section 206.3 is divided into three subsections and amended to
describe the information that the Commission is to include in a notice
when it institutes an investigation, and to state that the Commission
will promptly make the petition or request available for public
inspection (with the exception of confidential business information).
This latter amendment conforms the Commission rules to paragraphs 4 and
5 of NAFTA Annex 803.3.
Section 206.4 is amended to state that the Commission will also
transmit copies of requests (relating to a surge in imports from a
NAFTA country) to the USTR and certain other agencies.
Section 206.5, concerning public hearings, is divided into three
subsections and amended to distinguish between investigations under
subpart B, in which the Commission is required to hold separate
hearings on injury and remedy, and investigations under subparts C, D,
and E, in which the Commission holds only one hearing on both issues,
to the extent appropriate. Additional language states that interested
parties and consumers, including any association representing the
interests of consumer, may appear and may cross-question interested
parties making presentations at a hearing; this latter amendment
conforms the rule to section 7(b) of NAFTA Annex 803.3.
Section 206.6, concerning the Commission's report to the President,
simplifies the existing description and also states that the Commission
will include, in the case of a report containing a determination under
section 302(b) of the NAFTA Implementation Act, certain findings with
respect to factors other than imports that may be a cause of serious
injury or threat thereof.
Section 206.7, states that the Commission, in the case of an
investigation under subparts B, C, or D of this part, will not release
information considered to be confidential business information unless
the party submitting the information had notice, at the time of
submission, that such information would be released by the Commission,
or such party subsequently consents to the release of the information.
This rule reflects an amendment made by section 317(b) of the NAFTA
Implementation Act to section 202(a) of the Trade Act. Paragraph 8 of
NAFTA Annex 803.3 requires that the investigating authority in a NAFTA
country adopt or maintain procedures for the treatment of confidential
information.
Subpart B, which relates to investigations filed under section 201
of the Trade Act, is retitled ``Investigations Relating to Global
Safeguard Actions'', reflecting in part the change in the title of part
206.
In Sec. 206.12, the definition of perishable agricultural product
is simplified to take into account the fact that certain monitoring is
required by statute (section 316 of the NAFTA Implementation Act).
Also, reference is made to citrus products to reflect the amendment
made by section 315 of the NAFTA Implementation Act to section 202(d)
of the Trade Act.
Section 206.14, concerning the contents of petitions, is amended in
several minor respects. The introductory paragraph is amended at the
end to provide that the petition is to include certain information ``to
the extent that such information is publicly available from
governmental or other sources, or best estimates and the basis therefor
if such information is not available''. This amendment conforms
Sec. 206.14 with paragraph 3 of NAFTA Annex 803.3. A new paragraph (3)
is added to subsection (e) to state that the petition is to contain
data relating to changes in the level of prices, production, and
productivity, also conforming Sec. 206.14 with paragraph 3(e) of NAFTA
Annex 803.3 regarding the contents of petitions. Also, a new subsection
(i) is added to state that petitions are to include data indicating the
share of imports accounted for by imports from each NAFTA country, and
petitioner's view concerning the extent to which such imports are
contributing importantly to the serious injury or threat thereof. This
conforms Sec. 206.14 with paragraph 3(g) of NAFTA Annex 803.3. Finally,
a new subsection (j) is added to set out the dates by which any
allegations of critical circumstances must be included within the
petition.
Subpart C is new, and the title states that it pertains to
investigations relating to a surge in imports from a NAFTA country.
Section 206.21 states that subpart C applies to investigations
under section 312(c) of the NAFTA Implementation Act, which provides
for Commission investigations and determinations when there has been a
surge in imports of an article from Canada or Mexico that has been
excluded from a U.S. global safeguard action with respect to such
article.
Section 206.22 defines the term ``surge'' to mean a significant
increase in imports over the trend for a recent representative base
period. This definition tracks the definition in section 312(c)(3) of
the NAFTA Implementation Act and Article 805 of the NAFTA.
Section 206.23 states that a request for an investigation under
this Subpart may be filed by any entity that is representative of the
industry for which the global action is being taken.
Section 206.24 describes the information that a request for an
investigation is to contain, including the identity of the requestor,
the article and its tariff provision, the name of the country or
countries from which the surge is coming, information with respect to
representativeness, and data and information supporting the allegation
that a surge in imports has occurred and that such surge undermines the
effectiveness of the relief action.
Section 206.25 states that the Commission will submit its findings
to the President no later than 30 days after receiving the request for
an investigation, as required by section 312(c)(2) of the NAFTA
Implementation Act.
Section 206.26 states that the Commission will make its report to
the President available to the public (with the exception of
confidential business information) and cause a summary thereof to be
published in the Federal Register.
Subpart D is new, and the title states that it pertains to
investigations relating to bilateral safeguard actions.
Section 206.31 states that subpart D applies to investigations
under section 302(b) of the NAFTA Implementation Act.
Section 206.32 defines the terms ``critical circumstances'' and
``perishable agricultural product'' in the same manner as in
Sec. 206.12 of the rules.
Section 206.33 states who may file a petition. Subsection (a)
states that a request for an investigation under this Subpart may be
filed by any entity that is representative of a domestic industry
producing an article like or directly competitive with a Canadian or
Mexican article that is allegedly, as a result of the reduction or
elimination of a duty provided for under the NAFTA, being imported in
such increased quantities and under such conditions so that imports of
the article alone constitute a substantial cause of serious injury or
threat thereof to such industry. Subsection (b) states who may file a
petition with respect to imports from Canada or Mexico of a perishable
agricultural product. Subsection (c) makes reference to the fact that
the President is authorized to take a bilateral action with respect to
an article from Canada or Mexico during the appropriate period provided
for in section 305(a) of the NAFTA Implementation Act, or thereafter
but only if the Government of Canada or Mexico, as the case may be,
consents to such provision (see section 305(b) of the NAFTA
Implementation Act). The periods set out in section 305(a) are the
transition periods for tariff elimination in the U.S. schedules in the
CFTA and NAFTA.
Section 206.34 describes the information that is to be included in
a petition for an investigation. This section generally tracks
Sec. 206.14 of these rules concerning contents of petitions, except
that the introductory paragraph tracks the wording of the standard
applicable in a bilateral safeguard investigation involving a NAFTA
country, the import data section requires data concerning Canadian or
Mexican imports as appropriate, and the statement called for in
Sec. 206.14(i) concerning imports from NAFTA countries is not included.
Section 206.35 implements the time requirements for Commission
determinations and reports in section 303(a) and (c) of the NAFTA
Implementation Act, and states that the Commission will make its injury
determination within 120 days of the initiation of an investigation,
and submit its report to the President no later than 30 days
thereafter. Time requirements for determinations in investigations
involving imports of perishable agricultural products or allegations of
critical circumstances are also specified.
Section 206.36 states that the Commission will make its report to
the President available to the public (with the exception of
confidential business information) and cause a summary thereof to be
published in the Federal Register.
Subparts E and F, relating to investigations for relief from market
disruption, and monitoring and advice as to effect of extension,
reduction, modification, or termination of relief, respectively, are
unchanged from previous subparts C and D. However, the various rule
sections have been renumbered to reflect the revised order in part 206.
Amendments to Subpart G to Part 207
Section 207.90 currently indicates that subpart G implements
Article 1904 of the CFTA Implementation Act. The amendment to this
section expands the scope of subpart G to cover procedures and
regulations for implementation of Article 1904 of the NAFTA.
Section 207.91 provides definitions of terms used in subpart G. The
definitions of ``Agreement'', ``Article 1904 Rules'' and ``FTA'' have
been amended to reflect the change from the CFTA to the NAFTA. The
amended definitions also reflect that, in the event that the United
States or Canada withdraws from the NAFTA, the CFTA would still apply
to the United States and Canada, and that these rules would apply to
binational panel reviews between those two countries.
A definition has been added for ``ECC Rules'', and references to
these rules have been added to the definition of ``counsel'' and to the
general provision incorporating definitions set forth in the Article
1904 and ECC Rules. Definitions have been added for ``Free Trade Area
Country,'' ``Mexican Secretary,'' and ``Relevant FTA Secretary,''
reflecting the provisions of the NAFTA and the implementing
legislation. Specific cross-references to 1904 Panel and ECC Rules have
been deleted from the definition of ``Notice of Appearance'' to avoid
confusion that may result from subsequent renumbering of the 1904 Panel
and ECC Rules. Finally, the definition of the term ``Persons'' has been
changed to ``Person'' for reasons of clarity.
Section 207.93 covers the protection of proprietary information
during panel and committee proceedings. Subsections (b)(4), (b)(6),
(c)(2)(ii)(E), (c)(3), and (c)(4)(v) have been amended to include
references to the Mexican Government, government officials or Secretary
where appropriate. Subsection (c)(4)(B) has been amended to reference
the ECC Rules as well as the Article 1904 Rules. Specific cross-
references have been deleted, however, to avoid confusion that might
result from subsequent renumbering of these rules. Subsections (c)(4),
(c)(5), (f)(1) and (f)(2) have been amended to change the number of
copies of documents filed with the Commission Secretary from six (or
seven in the case of subsection (c)(5)(ii)(B)) to three. Subsection (d)
has been corrected to indicate that only panel members in reviews
conducted under the CFTA should send a countersigned copy of their
administrative protective orders to the United States Secretary to
notify the Secretary that he or she may transmit documents containing
proprietary information. Annex 1901.2(7)(a) of the NAFTA requires that
panelists sign an application for a protective order, but unlike Annex
1901.2(7)(a) of the CFTA, does not require panelists to sign a copy of
the protective order itself. Subsection (d)(2)(ii) has been amended to
make explicit that the Secretary may deny an application for a
protective order by informing the applicant of the reasons for such
denial within fourteen days of the Secretary's receipt of an
application therefor. Subsection (f)(5) has also been revised to
indicate that the Commission Secretary is required to provide the
United States Secretary with a copy of any amendment, modification, or
revocation of a protective order issued during panel proceedings.
Section 207.94 addresses the protection of privileged information
during Panel and Committee proceedings. The text has been corrected to
specifically reference Committees as well as Panels. The term
``Secretary'' has been modified to ``Commission Secretary'' for clarity
purposes.
Section 207.100 covers sanctions for prohibited acts under these
regulations. The Tariff Act, as amended by section 403(c) of the CFTA
Implementation Act, authorized the Commission to impose sanctions
against any person who is found by the Commission to have violated, or
induced violation of, the terms of a protective order issued by the
Commission for CFTA purposes. 19 U.S.C. 1677f(f)(4). Section 412(b)(8)
of the NAFTA Implementation Act amends this provision to exclude from
its coverage judges sitting on courts created under article III of the
United States Constitution who are appointed to NAFTA binational panels
or committees.
The rules contained in Secs. 207.100-207.120 address the
Commission's procedures for imposing sanctions under the statutory
provision added by the CFTA Implementation Act. The same procedures
will apply with respect to the imposition of sanctions for violations
of the terms of protective orders issued by the Commission for NAFTA
purposes. Subsection 207.100(a) has been amended, however, to reflect
the statutory exclusion of federal judges from the persons who may be
subject to sanctions under the Commission's regulations.
Subsection 207.102(b) addresses Commission determinations on
recommendations made by the Office of Unfair Import Investigations on
the initiation of sanction proceedings. A reference to ``OUII'' in this
subsection has been changed to the ``Office of Unfair Import
Investigations'' because ``OUII'' is not a defined term in these rules.
Subsection 207.102(d) currently addresses, among other matters, the
situations in which it may be appropriate to request the authorized
agency of Canada to initiate proceedings under Canadian law on the
basis of an alleged violation of the protective order. By changing the
references to ``Canada'' to ``another Free Trade Agreement country,''
this provision now will provide for the referral of an investigation to
Mexico or to Canada, as may be appropriate in the circumstances.
Section 207.120, which provides for public notice of sanctions has been
amended to provide for notice to appropriate Mexican, as well as United
States and Canadian, agencies.
List of Subjects in 19 CFR Parts 206 and 207
Administrative practice and procedure, Antidumping, Canada, Mexico,
Countervailing duty, Imports, Trade agreements.
For the reasons set forth in the preamble, 19 CFR Parts 206 and
207, subpart G are revised to read as set forth below.
Interim amended rules
By order of the Commission.
Donna R. Koehnke
Secretary
Issued: January 26, 1994.
1. Part 206 is revised to read as follows:
PART 206--INVESTIGATIONS RELATING TO GLOBAL AND BILATERAL SAFEGUARD
ACTIONS, MARKET DISRUPTION, AND REVIEW OF RELIEF ACTIONS
Sec.
206.1 Applicability of part.
Subpart A--General
206.2 Identification of type of petition or request.
206.3 Institution of investigations; publication of notice;
availability of petition for public inspection.
206.4 Notification of other agencies.
206.5 Public hearing.
206.6 Report to the President.
206.7 Confidential business information.
Subpart B--Investigations Relating to Global Safeguard Actions
206.11 Applicability of subpart.
206.12 Definitions applicable to sub part B.
206.13 Who may file a petition.
206.14 Contents of petition.
206.15 Industry adjustment plan and commitments.
206.16 Time for determinations, reporting.
206.17 Public report.
Subpart C--Investigations Relating to a Surge in Imports From a NAFTA
Country
206.21 Applicability of subpart.
206.22 Definition applicable to subpart C.
206.23 Who may file a request.
206.24 Contents of request.
206.25 Time for reporting.
206.26 Public report.
Subpart D--Investigations Relating to Bilateral Safeguard Actions
206.31 Applicability of subpart.
206.32 Definitions applicable to subpart D.
206.33 Who may file a petition.
206.34 Contents of petition.
206.35 Time for determinations, reporting.
206.36 Public report.
Subpart E--Investigations for Relief From Market Disruption
206.41 Applicability of Subpart.
206.42 Who may file a petition.
206.43 Contents of petition.
206.44 Time for reporting.
206.45 Public report.
Subpart F--Monitoring; Advice as to Effect of Extension, Reduction,
Modification, or Termination of Relief Action
206.51 Applicability of Subpart.
206.52 Monitoring.
206.53 Investigations to advise the President as to the probable
economic effect of extension, reduction, modification, or
termination of action.
206.54 Investigations to evaluate the effectiveness of relief.
Authority: Secs. 201-202 of the Trade Act of 1974 (19 U.S.C.
2251-2252): Secs. 302-317 of the North American Free Trade Agreement
Implementation Act (107 Stat. 2057, Pub. L. 103-182, Dec. 8, 1993).
Sec. 206.1 Applicability of part.
This part 206 applies specifically to functions and duties of the
Commission under sections 201-202, 204, and 406 of the Trade Act of
1974, as amended (19 U.S.C. 2251, 2252, 2254, 2436) (hereinafter Trade
Act), and sections 301-318 of the North American Free Trade Agreement
Implementation Act (19 U.S.C. 3351 et seq.) (hereinafter NAFTA
Implementation Act). Subpart A of this part sets forth rules generally
applicable to investigations conducted under these provisions; for
other rules of general application, see part 201 of this chapter.
Subpart B of this part sets forth rules specifically applicable to
petitions and investigations under section 202 of the Trade Act;
subpart C sets forth rules specifically applicable to requests and
investigations under section 312(c) of the NAFTA Implementation Act;
subpart D sets forth rules specifically applicable to petitions and
investigations under section 302 of the NAFTA Implementation Act; and
subpart E sets forth rules specifically applicable to petitions and
investigations under section 406 of the Trade Act. Subpart F of this
part sets forth rules applicable to functions and duties under section
204 of the Trade Act.
Subpart A--General
Sec. 206.2 Identification of type of petition or request.
Each petition or request, as the case may be, under this part 206
shall state clearly on the first page thereof ``This is a [petition or
request] under section [202 or 406 of the Trade Act of 1974, or section
302 or 312(c) of the North American Free Trade Agreement Implementation
Act] and subpart [B, C, D, and/or E] of part 206 of the rules of
practice and procedure of the United States International Trade
Commission''.
Sec. 206.3 Institution of investigations; publication of notice;
availability of petition for public inspection.
(a) Promptly after the receipt of a petition or request under this
part 206, properly filed, the Commission will institute an appropriate
investigation and will cause a notice thereof to be published in the
Federal Register.
(b) The notice will identify the petitioner or other requestor, the
imported article that is the subject of the investigation and its
tariff subheading, the nature and timing of the determination to be
made, the time and place of any public hearing, dates of deadlines for
filing briefs, statements, and other documents, the place at which the
petition or request and any other documents filed in the course of the
investigation may be inspected, and the name, address, and telephone
number of the office that may be contacted for more information.
(c) The Commission will promptly make such petition or request
available for public inspection (with the exception of confidential
business information).
Sec. 206.4 Notification of other agencies.
The Commission will promptly transmit copies of petitions or
requests filed and notification of investigations instituted to the
Office of the United States Trade Representative (hereinafter USTR),
the Secretary of Commerce, the Secretary of Labor, and other Federal
agencies directly concerned.
Sec. 206.5 Public hearings.
(a) Investigations under subpart B. A public hearing on the
question of injury and a second public hearing on remedy (if necessary)
will be held in connection with each investigation instituted under
subpart B of this part after reasonable notice thereof has been caused
to be published in the Federal Register. A hearing on remedy will not
be held if the Commission has made a negative determination on the
question of injury.
(b) Investigations under subparts C, D, and E. A public hearing on
the subject of injury and remedy will be held in connection with each
investigation instituted under subparts C, D, and E of this part after
reasonable notice thereof has been caused to be published in the
Federal Register.
(c) Opportunity to appear and to cross-question. All interested
parties and consumers, including any association representing the
interests of consumers, will be afforded an opportunity to be present,
to present evidence, to comment on the adjustment plan, if any,
submitted in the case of an investigation under section 202(b), and to
be heard at such hearings. All interested parties and consumers,
including any association representing the interests of consumers, will
be afforded an opportunity to cross-question interested parties making
presentations at the hearing.
Sec. 206.6 Report to the President.
The Commission will include in its report to the President the
following:
(a) The determination made and an explanation of the basis for the
determination;
(b) If the determination is affirmative, the recommendations for
action and an explanation of the basis for each recommendation;
(c) Any dissenting or separate views by members of the Commission
regarding the determination and any recommendations;
(d) In the case of a determination made under section 202(b) of the
Trade Act:
(1) The findings with respect to the results of an examination of
the factors other than imports which may be a cause of serious injury
or threat thereof to the domestic industry;
(2) A copy of the adjustment plan, if any, submitted by the
petitioner;
(3) Commitments submitted and information obtained by the
Commission regarding steps that firms and workers in the domestic
industry are taking, or plan to take, to facilitate positive adjustment
to import competition;
(4) A description of the short- and long-term effects that
implementation of the action recommended is likely to have on the
petitioning domestic industry, other domestic industries, and
consumers; and
(5) A description of the short- and long-term effects of not taking
the recommended action on the petitioning domestic industry, its
workers and communities where production facilities of such industry
are located, and other domestic industries.
(e) In the case of a determination made under section 302(b) of the
NAFTA Implementation Act, the findings with respect to the results of
an examination of the factors other than imports which may be a cause
of serious injury or threat thereof to the domestic industry.
Sec. 206.7 Confidential business information.
In the case of an investigation under subpart B, C, or D of this
part, the Commission will not release information which the Commission
considers to be confidential business information within the meaning of
Sec. 201.6 of these rules of practice and procedure unless the party
submitting the confidential business information had notice, at the
time of submission, that such information would be released by the
Commission, or such party subsequently consents to the release of the
information.
Subpart B--Investigations Relating to Global Safeguard Actions
Sec. 206.11 Applicability of subpart.
This subpart B applies specifically to investigations under section
202(b) of the Trade Act. For other applicable rules, see subpart A of
this part and part 201 of this chapter.
Sec. 206.12 Definitions applicable to sub- part B.
For the purposes of this subpart, the following terms have the
meanings hereby assigned to them:
(a) Adjustment plan means a plan to facilitate positive adjustment
to import competition submitted by a petitioner to the Commission and
USTR either with the petition or at any time within 120 days after the
date of filing of the petition.
(b) Commitment means commitments that a firm in the domestic
industry, a certified or recognized union or group of workers in the
domestic industry, a local community, a trade association representing
the domestic industry, or any other person or group of persons submits
to the Commission regarding actions such persons and entities intend to
take to facilitate positive adjustment to import competition;
(c) Critical circumstances mean such circumstances as are described
in section 202(b)(3)(B) of the Trade Act;
(d) Perishable agricultural product means any agricultural article
or citrus product, including livestock, which is the subject of
monitoring pursuant to section 202(d) of the Trade Act.
Sec. 206.13 Who may file a petition.
(a) In general. A petition under this subpart B may be filed by an
entity, including a trade association, firm, certified or recognized
union, or group of workers, that is representative of a domestic
industry producing an article like or directly competitive with a
foreign article that is allegedly being imported into the United States
in such increased quantities as to be a substantial cause of serious
injury, or the threat thereof, to such domestic industry.
(b) Reinvestigation within 1 year. Except for good cause determined
by the Commission to exist, no investigation for the purposes of
section 202 of the Trade Act shall be made with respect to the same
subject matter as a previous investigation under this section unless 1
year has elapsed since the Commission made its report to the President
of the results of such previous investigation.
(c) Perishable agricultural product. An entity of the type
described in paragraph (a) of this section that represents a domestic
industry producing a perishable agricultural product may petition for
provisional relief with respect to such product only if such product
has been subject to monitoring by the Commission for not less than 90
days as of the date the allegation of injury is included in the
petition.
Sec. 206.14 Contents of petition.
A petition under this subpart B shall include specific information
in support of the claim that an article is being imported into the
United States in such increased quantities as to be a substantial cause
of serious injury, or the threat thereof, to the domestic industry
producing an article like or directly competitive with the imported
article. Such petition shall state whether provisional relief is sought
because the imported article is a perishable agricultural product. In
addition, such petition shall include the following information, to the
extent that such information is publicly available from governmental or
other sources, or best estimates and the basis therefor if such
information is not available:
(a) Product description. The name and description of the imported
article concerned, specifying the United States tariff provision under
which such article is classified and the current tariff treatment
thereof, and the name and description of the like or directly
competitive domestic article concerned;
(b) Representativeness. (1) The names and addresses of the firms
represented in the petition and/or the firms employing or previously
employing the workers represented in the petition and the locations of
their establishments in which the domestic article is produced; (2) the
percentage of domestic production of the like or directly competitive
domestic article that such represented firms and/or workers account for
and the basis for claiming that such firms and/or workers are
representative of an industry; and (3) the names and locations of all
other producers of the domestic article known to the petitioner;
(c) Import data. Import data for at least each of the most recent 5
full years which form the basis of the claim that the article concerned
is being imported in increased quantities, either actual or relative to
domestic production;
(d) Domestic production data. Data on total U.S. production of the
domestic article for each full year for which data are provided
pursuant to paragraph (c) of this section;
(e) Data showing injury. Quantitative data indicating the nature
and extent of injury to the domestic industry concerned:
(1) With respect to serious injury, data indicating:
(i) A significant idling of production facilities in the industry,
including data indicating plant closings or the underutilization of
production capacity;
(ii) The inability of a significant number of firms to carry out
domestic production operations at a reasonable level of profit; and
(iii) Significant unemployment or underemployment within the
industry; and/or
(2) With respect to the threat of serious injury, data relating to:
(i) A decline in sales or market share, a higher and growing
inventory (whether maintained by domestic producers, importers,
wholesalers, or retailers), and a downward trend in production,
profits, wages, or employment (or increasing underemployment);
(ii) The extent to which firms in the industry are unable to
generate adequate capital to finance the modernization of their
domestic plants and equipment, or are unable to maintain existing
levels of expenditures for research and development;
(iii) The extent to which the U.S. market is the focal point for
the diversion of exports of the article concerned by reason of
restraints on exports of such article to, or on imports of such article
into, third country markets; and
(3) Changes in the level of prices, production, and productivity.
(f) Cause of injury. An enumeration and description of the causes
believed to be resulting in the injury, or threat thereof, described
under paragraph (e) of this section, and a statement regarding the
extent to which increased imports, either actual or relative to
domestic production, of the imported article are believed to be such a
cause, supported by pertinent data;
(g) Relief sought and purpose thereof. A statement describing the
import relief sought, including the type, amount, and duration, and the
specific purposes therefor, which may include facilitating the orderly
transfer of resources to more productive pursuits, enhancing
competitiveness, or other means of adjustment to new conditions of
competition;
(h) Efforts to compete. A statement on the efforts being taken, or
planned to be taken, or both, by firms and workers in the industry to
make a positive adjustment to import competition.
(i) Imports from NAFTA countries. Quantitative data indicating the
share of imports accounted for by imports from each NAFTA country
(Canada and Mexico), and petitioner's view on the extent to which
imports from such NAFTA country or countries are contributing
importantly to the serious injury, or threat thereof, caused by total
imports of such article.
(j) Critical circumstances. An allegation that critical
circumstances exist must be included in the petition or made on or
before the 90th day after the date on which the petition is filed if
the Commission is to make a determination with regard to such
allegation on or before the 120th day after the day on which the
petition is filed; or included in the petition after the 90th day and
on or before the 150th day after such filing if the Commission is to
make a determination with regard to such allegation on or before the
date the Commission's report is submitted to the President.
Sec. 206.15 Industry adjustment plan and commitments.
(a) Adjustment plan. A petitioner may submit to the Commission,
either with the petition or at any time within 120 days after the date
of filing of the petition, a plan to facilitate positive adjustment to
import competition.
(b) Commitments. If the Commission makes an affirmative injury
determination, any firm in the domestic industry, certified or
recognized union or group of workers in the domestic industry, local
community, trade association representing the domestic industry, or any
other person or group of persons may, individually, submit to the
Commission commitments regarding actions such persons and entities
intend to take to facilitate positive adjustment to import competition.
Sec. 206.16 Time for determinations, reporting.
(a) In general. The Commission will make its determination with
respect to injury within 120 days after the date on which the petition
is filed, the request or resolution is received, or the motion is
adopted, as the case may be, except that if the Commission determines
before the 100th day that the investigation is extraordinarily
complicated, the Commission will make its determination within 150
days. The Commission will make its report to the President at the
earliest practicable time, but not later than 180 days after the date
on which the petition is filed, the request or resolution is received,
or the motion is adopted, as the case may be.
(b) Perishable agricultural product. In the case of a request in a
petition for provisional relief with respect to a perishable
agricultural product that has been the subject of monitoring by the
Commission, the Commission will report its determination and any
finding to the President not later than 21 days after the date on which
the request for provisional relief is received.
(c) Critical circumstances. If petitioner alleges the existence of
critical circumstances in the petition or on or before the 90th day
after the day on which the petition was filed, the Commission will
report its determination regarding such allegation and any finding on
or before the 120th day after such filing date. In the event petitioner
alleges such circumstances after the 90th day and on or before the
150th day after such filing date, the Commission will report its
determination regarding such allegation and any finding on or before
the date its report is submitted to the President.
Sec. 206.17 Public report.
Upon making a report to the President of the results of an
investigation to which the subpart B relates, the Commission will make
such report public (with the exception of information which the
Commission determines to be confidential) and cause a summary thereof
to be published in the Federal Register.
Subpart C--Investigations Relating to a Surge in Imports From a
NAFTA Country
Sec. 206.21 Applicability of subpart.
This subpart C applies specifically to investigations under section
312(c) of the NAFTA Implementation Act. For other applicable rules, see
subpart A of this part and part 201 of this chapter.
Sec. 206.22 Definition applicable to subpart C.
For the purposes of this subpart, the term surge means a
significant increase in imports over the trend for a recent
representative base period.
Sec. 206.23 Who may file a request.
If the President, under section 312(b) of the NAFTA Implementation
Act, has excluded imports from a NAFTA country or countries from an
action under chapter 1 of title II of the Trade Act of 1974, any entity
that is representative of an industry for which such action is being
taken may request the Commission to conduct an investigation to
determine whether a surge in such imports undermines the effectiveness
of the action.
Sec. 206.24 Contents of request.
The request for an investigation shall include the following
information:
(a) The identity of the entity submitting the request; a
description of the relief action the effectiveness of which is
allegedly being undermined; and a description of the imported article,
identifying the United States tariff provision under which it is
classified, and the name of the country or countries from which the
surge in imports is alleged to be coming;
(b) The information required in Sec. 206.14(b) of this subpart
concerning representativeness of the entity filing the request;
(c) Data concerning imports from the NAFTA country or countries
that form the basis of requestor's claim that a surge in imports has
occurred;
(d) Information supporting the claim that such surge in imports
undermines the effectiveness of the relief action.
Sec. 206.25 Time for reporting.
The Commission will submit the findings of its investigation to the
President no later than 30 days after the request is received.
Sec. 206.26 Public report.
Upon making a report to the President of the results of an
investigation to which this subpart C relates, the Commission will make
such report public (with the exception of any confidential business
information) and cause a summary thereof to be published in the Federal
Register.
Subpart D--Investigations Relating to Bilateral Safeguard Actions
Sec. 206.31 Applicability of subpart.
This subpart D applies specifically to investigations under section
302(b) of the NAFTA Implementation Act. For other applicable rules, see
subpart A of this part and part 201 of this chapter.
Sec. 206.32 Definitions applicable to subpart D.
For the purposes of this subpart, the following terms have the
meanings hereby assigned to them:
(a) Critical circumstances mean such circumstances as are described
in section 202(b)(3)(B) of the Trade Act;
(b) Perishable agricultural product means any agricultural article
or citrus product, including livestock, which is the subject of
monitoring pursuant to section 202(d) of the Trade Act.
Sec. 206.33 Who may file a petition.
(a) In general. A petition under this subpart D may be filed by an
entity, including a trade association, firm, certified or recognized
union, or group of workers, that is representative of a domestic
industry producing an article that is like or directly competitive with
a Canadian or Mexican article that is allegedly, as a result of the
reduction or elimination of a duty provided for under the North
American Free Trade Agreement, being imported into the United States in
such increased quantities (in absolute terms) and under such conditions
so that imports of the article alone constitute a substantial cause of
serious injury, or (except in the case of a Canadian article) a threat
of serious injury, to such domestic industry.
(b) Perishable agricultural product. An entity of the type
described in paragraph (a) of this section that represents a domestic
industry producing a perishable agricultural product may petition for
provisional relief with respect to imports of such product from Canada
or Mexico only if such product has been subject to monitoring by the
Commission for not less than 90 days as of the date the allegation of
injury is included in the petition.
(c) The President is authorized to provide import relief with
respect to an article from Canada or Mexico during the period provided
for in section 305(a) of the NAFTA Implementation Act; the President
may provide relief after the expiration of this period, but only if the
Government of Canada or Mexico, as the case may be, consents to such
provision (see section 305(b) of the NAFTA Implementation Act).
Sec. 206.34 Contents of petition.
A petition under this subpart D shall include specific information
in support of the claim that, as a result of the reduction or
elimination of a duty provided for under the North American Free Trade
Agreement, a Canadian or Mexican article, as the case may be, is being
imported into the United States in such increased quantities (in
absolute terms) and under such conditions so that imports of the
article, alone, constitute a substantial cause of serious injury, or
(except in the case of a Canadian article) a threat of serious injury,
to the domestic industry producing an article that is like or directly
competitive with the imported article. Such petition shall state
whether provisional relief is sought because the imported article is a
perishable agricultural product. In addition, such petition shall
include the following information, to the extent that such information
is publicly available from governmental or other sources, or best
estimates and the basis therefor if such information is not available:
(a) Product description. The name and description of the imported
article concerned, specifying the United States tariff provision under
which such article is classified and the current tariff treatment
thereof, and the name and description of the like or directly
competitive domestic article concerned;
(b) Representativeness. (1) The names and addresses of the firms
represented in the petition and/or the firms employing or previously
employing the workers represented in the petition and the locations of
their establishments in which the domestic article is produced; (2) the
percentage of domestic production of the like or directly competitive
domestic article that such represented firms and/or workers account for
and the basis for claiming that such firms and/or workers are
representative of an industry; and (3) the names and locations of all
other producers of the domestic article known to the petitioner;
(c) Import data. Import data for at least each of the most recent 5
full years that form the basis of the claim that the Canadian or
Mexican article concerned is being imported in increased quantities in
absolute terms;
(d) Domestic production data. Data on total U.S. production of the
domestic article for each full year for which data are provided
pursuant to paragraph (c) of this section;
(e) Data showing injury. Quantitative data indicating the nature
and extent of injury to the domestic industry concerned:
(1) With respect to serious injury, data indicating:
(i) A significant idling of production facilities in the industry,
including data indicating plant closings or the underutilization of
production capacity;
(ii) The inability of a significant number of firms to carry out
domestic production operations at a reasonable level of profit; and
(iii) Significant unemployment or underemployment within the
industry; and/or
(2) With respect to the threat of serious injury, data relating to:
(i) A decline in sales or market share, a higher and growing
inventory (whether maintained by domestic producers, importers,
wholesalers, or retailers), and a downward trend in production,
profits, wages, or employment (or increasing underemployment);
(ii) The extent to which firms in the industry are unable to
generate adequate capital to finance the modernization of their
domestic plants and equipment, or are unable to maintain existing
levels of expenditures for research and development;
(iii) The extent to which the U.S. market is the focal point for
the diversion of exports of the article concerned by reason of
restraints on exports of such article to, or on imports of such article
into, third country markets; and
(3) Changes in the level of prices, production, and productivity.
(f) Cause of injury. An enumeration and description of the causes
believed to be resulting in the injury, or threat thereof, described
under paragraph (e) of this section, and a statement regarding the
extent to which increased imports of the Canadian or Mexican article
are believed to be such a cause, supported by pertinent data;
(g) Relief sought and purpose thereof. A statement describing the
import relief sought, including the type, amount, and duration, and the
specific purposes therefor, which may include facilitating the orderly
transfer of resources to more productive pursuits, enhancing
competitiveness, or other means of adjustment to new conditions of
competition;
(h) Efforts to compete. A statement on the efforts being taken, or
planned to be taken, or both, by firms and workers in the industry to
make a positive adjustment to import competition.
(i) Critical circumstances. An allegation that critical
circumstances exist must be included in the petition or made on or
before the 90th day after the date on which the investigation is
initiated.
Sec. 206.35 Time for determinations, reporting.
(a) In general. The Commission will make its determination with
respect to injury within 120 days after the date on which the
investigation is initiated. The Commission will make its report to the
President no later than 30 days after the date on which its
determination is made.
(b) Perishable agricultural product. In the case of a request in a
petition for provisional relief with respect to a perishable
agricultural product that has been the subject of monitoring by the
Commission, the Commission will report its determination and any
finding to the President not later than 21 days after the date on which
the request for provisional relief is received.
(c) Critical circumstances. If petitioner alleges the existence of
critical circumstances in the petition or on or before the 90th day
after the day on which the investigation is initiated, the Commission
will report its determination regarding such allegation and any finding
on or before the 120th day after such initiation date.
Sec. 206.36 Public report.
Upon making a report to the President of the results of an
investigation to which this subpart D relates, the Commission will make
such report public (with the exception of information which the
Commission determines to be confidential) and cause a summary thereof
to be published in the Federal Register.
Subpart E--Investigations for Relief From Market Disruption
Sec. 206.41 Applicability of subpart.
This subpart E applies specifically to investigations under section
406(a) of the Trade Act. For other applicable rules, see subpart A of
this part and part 201 of this chapter.
Sec. 206.42 Who may file a petition.
A petition under this subpart E may be filed by an entity,
including a trade association, firm, certified or recognized union, or
group of workers, that is representative of a domestic industry
producing an article with respect to which there are imports of a like
or directly competitive article which is the product of a Communist
country, which imports, allegedly, are increasing rapidly, either
absolutely or relative to domestic production, so as to be a
significant cause of a material injury, or the threat thereof, to such
domestic industry.
Sec. 206.43 Contents of petition.
A petition under this subpart E shall include specific information
in support of the claim that imports of an article that are the product
of a Communist country which are like or directly competitive with an
article produced by a domestic industry, are increasing rapidly, either
absolutely or relative to domestic production, so as to be a
significant cause of material injury, or the threat thereof, to such
domestic industry. In addition, such petition shall, to the extent
practicable, include the following information:
(a) Product description. The name and description of the imported
article concerned, specifying the United States tariff provision under
which such article is classified and the current tariff treatment
thereof, and the name and description of the like or directly
competitive domestic article concerned;
(b) Representativeness. (1) The names and addresses of the firms
represented in the petition and/or the firms employing or previously
employing the workers represented in the petition and the locations of
their establishments in which the domestic article is produced; (2) the
percentage of domestic production of the like or directly competitive
domestic article that such represented firms and/or workers account for
and the basis for asserting that petitioner is representative of an
industry; and (3) the names and locations of all other producers of the
domestic article known to the petitioner;
(c) Import data. Import data for at least each of the most recent 5
full years which form the basis of the claim that imports from a
Communist country of an article like or directly competitive with the
article produced by the domestic industry concerned are increasing
rapidly, either absolutely or relative to domestic production;
(d) Domestic production data. Data on total U.S. production of the
domestic article for each full year for which data are provided
pursuant to paragraph (c) of this section;
(e) Data showing injury. Quantitative data indicating the nature
and extent of injury to the domestic industry concerned:
(1) With respect to material injury, data indicating:
(i) An idling of production facilities in the industry, including
data indicating plant closings or the underutilization of production
capacity;
(ii) The inability of a number of firms to carry out domestic
production operations at a reasonable level of profit; and
(iii) Unemployment or underemployment within the industry; and/or
(2) With respect to the threat of material injury, data relating
to:
(i) A decline in sales or market share, a higher and growing
inventory (whether maintained by domestic producers, importers,
wholesalers, or retailers), and a downward trend in production,
profits, wages, or employment (or increasing underemployment);
(ii) The extent to which firms in the industry are unable to
generate adequate capital to finance the modernization of their
domestic plants and equipment, or are unable to maintain existing
levels of expenditures for research and development; and
(iii) The extent to which the U.S. market is the focal point for
the diversion of exports of the article concerned by reason of
restraints on exports of such article to, or on imports of such article
into, third country markets;
(f) Cause of injury. An enumeration and description of the causes
believed to be resulting in the material injury, or threat thereof,
described in paragraph (e) of this section; information relating to the
effect of imports of the subject merchandise on prices in the United
States for like or directly competitive articles; evidence of
disruptive pricing practices, or other efforts to unfairly manage trade
patterns; and a statement regarding the extent to which increased
imports, either actual or relative to domestic production, of the
imported article are believed to be such a cause, supported by
pertinent data;
(g) Relief sought and purpose thereof. A statement describing the
import relief sought.
Sec. 206.44 Time for reporting.
The Commission will make its report to the President at the
earliest practical time, but not later than 3 months after the date on
which the petition is filed, the request or resolution is received, or
the motion is adopted, as the case may be.
Sec. 206.45 Public report.
Upon making a report to the President of the results of an
investigation to which this subpart E relates, the Commission will make
such report public (with the exception of information which the
Commission determines to be confidential) and cause a summary thereof
to be published in the Federal Register.
Subpart F--Monitoring; Advice as to Effect of Extension, Reduction,
Modification, or Termination of Relief Action
Sec. 206.51 Applicability of subpart.
This subpart F applies specifically to investigations under section
204 of the Trade Act. For other applicable rules, see subpart A of this
part and part 201 of this chapter.
Sec. 206.52 Monitoring.
(a) In general. As long as any import relief imposed by the
President pursuant to section 203 of the Trade Act remains in effect,
the Commission will monitor developments with respect to the domestic
industry, including the progress and specific efforts made by workers
and firms in the industry to make a positive adjustment to import
competition.
(b) Biannual reports. The Commission will submit a report on the
results of the monitoring to the President and the Congress not later
than (1) the 2nd anniversary of the day on which the action under
section 203 of the Trade Act first took effect, and (2) the last day of
each 2-year period occurring after such first report. In the course of
preparing each such report, the Commission will hold a hearing at which
interested persons will be given a reasonable opportunity to be
present, to produce evidence, and to be heard.
Sec. 206.53 Investigations to advise the President as to the probable
economic effect of extension, reduction, modification, or termination
of action.
Upon the request of the President, the Commission will conduct an
investigation for the purpose of gathering information in order that it
might advise the President of its judgment as to the probable economic
effect on the industry concerned of any extension, reduction,
modification, or termination of the action taken under section 203
which is under consideration.
Sec. 206.54 Investigations to evaluate the effectiveness of relief.
(a) Investigation. After any action taken under section 203 has
terminated, the Commission will conduct an investigation for the
purpose of evaluating the effectiveness of the relief action in
facilitating positive adjustment by the domestic industry to import
competition, consistent with the reasons set out by the President in
the report submitted to the Congress under section 203(b).
(b) Hearing. In the course of such investigation, the Commission
will hold a hearing at which interested persons will be given an
opportunity to be present, to produce evidence, and to be heard.
(c) Time for reporting. The Commission will submit its report to
the President and to the Congress by no later than the 180th day after
the day on which the action terminated.
2. Part 207, Subpart G, is revised to read as follows:
Subpart G--Implementing Regulations for the North American Free Trade
Agreement
Sec.
207.90 Scope.
207.91 Definitions.
207.92 Procedures for commencing review of final determinations.
207.93 Protection of proprietary information during panel and
committee proceedings.
207.94 Protection of privileged information during panel and
committee proceedings.
Procedures for Imposing Sanctions for Violation of Provisions of a
Protective Order Issued During Panel and Committee Proceedings
207.100 Sanctions.
207.101 Reporting of prohibited act and commencement of
investigation.
207.102 Initiation of proceedings.
207.103 Charging letter.
207.104 Response to charging letter.
207.105 Confidentiality.
207.106 Interim measures.
207.107 Motions.
207.108 Preliminary conference.
207.109 Discovery.
207.110 Subpoenas.
207.111 Prehearing conference.
207.112 Hearings.
207.113 The record.
207.114 Initial determination.
207.115 Petition for review.
207.116 Commission review on its own motion.
207.117 Review by Commission.
207.118 Role of the General Counsel in advising the Commission.
207.119 Reconsideration.
207.120 Public notice of sanctions.
Authority: Sec. 777(d) of the Tariff Act of 1930 (19 U.S.C.
1677f (d); secs. 402(g), 405 of the North American Free Trade
Agreement Implementation Act (107 Stat. 2057, Pub. L. 103-182, Dec.
8, 1993).
Subpart G--Implementing Regulations for the North American Free
Trade Agreement
Sec. 207.90 Scope.
This subpart sets forth the procedures and regulations for
implementation of Article 1904 of the North American Free Trade
Agreement under the Tariff Act of 1930, as amended by title IV of the
North American Free Trade Agreement Implementation Act (19 U.S.C. 1516a
and 1677f). These regulations are authorized by section 402(g) of the
North American Free Trade Agreement Implementation Act and 19 U.S.C.
1335.
Sec. 207.91 Definitions.
As used in this subpart--
Administrative Law Judge means the United States Government
employee appointed under section 310(f) of title 5 of the United States
Code to conduct proceedings under this part in accordance with section
554 of title 5 of the United States Code;
Agreement means the North American Free Trade Agreement entered
into among Canada, the United States of America and the United Mexican
States (``Mexico''); or, with respect to binational panel proceedings
between Canada and the United States underway as of the date of
enactment of the Agreement, or any binational panel proceedings that
may proceed between the United States and Canada following any
withdrawal from the Agreement by the United States or Canada, the
United States-Canada Free Trade Agreement entered into between the
Government of Canada and the Government of the United States of
America, effective as of January 1, 1989;
Article 1904 Rules means the Rules of Procedure for Article 1904
Binational Panel Reviews adopted by the United States of America,
Canada and Mexico pursuant to the Agreement, or where applicable under
the Agreement, the Rules of Procedure for Article 1904 Binational Panel
Reviews adopted by the United States of America and Canada pursuant to
the United States-Canada Free Trade Agreement, as amended;
Canadian Secretary means the Secretary of the Canadian section of
the Secretariat and includes any person authorized to act on the
Secretary's behalf;
Charged party means a person who is charged by the Commission with
committing a prohibited act under 19 U.S.C. 1677f(f)(3);
Clerical person means a person such as a paralegal, secretary, or
law clerk who is employed or retained by and under the direction and
control of an authorized applicant;
Commission means the United States International Trade Commission;
Commission Secretary means the Secretary to the Commission;
Complaint means the complaint referred to in the Article 1904
Rules;
Counsel means persons described in the definition of ``counsel of
record'' in Rule 3 of the Article 1904 Rules or the ECC Rules, and
counsel for an interested person who plans to file a timely complaint
or notice of appearance in the panel review.
Date of Service means the day a document is deposited in the mail
or delivered in person;
Days means calendar days, but if a deadline falls on a weekend or
United States federal holiday, it shall be extended to the next working
day;
Extraordinary challenge committee means the committee established
pursuant to Annex 1904.13 of the Agreement to review decisions of a
panel or conduct of a panelist;
ECC Rules means the Rules of Procedure for Article 1904
Extraordinary Challenge Committees adopted by the United States of
America, Canada and Mexico, or where applicable, the Rules of Procedure
for Article 1904 Extraordinary Challenge Committees adopted by the
United States of America and Canada pursuant to the United States-
Canada Free Trade Agreement, as amended;
Final determination, means ``final determination'' under Article
1911 of the Agreement;
Free Trade Area Country means the ``free trade area country'' as
defined in 19 U.S.C. 1516a(f)(10);
Investigative attorney means an attorney designated by the Office
of Unfair Import Investigations to engage in inquiries and proceedings
under 19 CFR 207.100 et seq.
Mexican Secretary means the Secretary of the Mexican section of the
Secretariat and includes any persons authorized to act on the
Secretary's behalf;
NAFTA Act means the North American Free Trade Agreement
Implementation Act, Pub. L. 103-182 (December 8, 1993);
Notice of Appearance means the notice of appearance provided for by
Article 1904 Rules or by the ECC Rules;
Panel review means review of a final determination pursuant to
chapter 19 of the Agreement, including review by an extraordinary
challenge committee;
Party means, for the purposes of 19 CFR 207.100 through 207.120,
either the investigative attorney(ies) or the charged party(ies);
Person means, for the purposes of 19 CFR 207.100 through 207.120,
an individual, partnership, corporation, association, organization, or
other entity;
Privileged information means all information covered by the
provisions of the second sentence of 19 U.S.C. 1677f(f)(1)(A);
Professional means an accountant, economist, engineer, or other
non-legal specialist who is employed by, or under the direction and
control, of a counsel;
Prohibited act means the violation of a protective order, the
inducement of a violation of a protective order, or the knowing receipt
of information the receipt of which constitutes a violation of a
protective order;
Proprietary information means confidential business information as
defined in 19 CFR 201.6(a);
Protective Order means an administrative protective order issued by
the Commission;
Relevant FTA Secretary means the Secretary referred to in Article
1908 of the Agreement;
Secretariat means the Secretariat established pursuant to Article
2002 of the Agreement and includes the Secretariat sections located in
Canada, the United States, and Mexico;
Service address means the facsimile number, if any, and address of
the counsel of record for a person or, where a person is not
represented by counsel, the facsimile number, if any, and address set
out by a person in a Request for Panel Review, Complaint or Notice of
Appearance as the address at which the person may be served or, where a
Change of Service Address has been filed by a person, the facsimile
number, if any, and address set out as the service address in that
form;
Service list means the list maintained by the Commission Secretary
under 19 CFR 201.11(d) of persons in the administrative proceeding
leading to the final determination under panel review;
United States Secretary means the Secretary of the United States
section of the Secretariat and includes any person authorized to act on
the Secretary's behalf;
Except as otherwise provided in this subpart, the definitions set
forth in the Article 1904 Rules and the ECC Rules are applicable to
this subpart and to any protective orders issued pursuant to this
subpart.
Sec. 207.92 Procedures for commencing review of final determinations.
(a) Notice of Intent to Commence Judicial Review. A Notice of
Intent to Commence Judicial Review shall contain such information, and
be in such form, manner, and style, including service requirements, as
prescribed by the Department of Commerce in its regulations at 19 CFR
part 356.
(b) Request for Panel Review. A Request for Panel Review shall
contain such information, and be in such form, manner, and style,
including service requirements, as prescribed by the Department of
Commerce in its regulations at 19 CFR part 356.
Sec. 207.93 Protection of proprietary information during panel and
committee proceedings.
(a) Requests for protective orders. A request for access to
proprietary information pursuant to 19 U.S.C. 1677f(f)(1) shall be made
to the Secretary of the Commission.
(b) Persons authorized to receive proprietary information under
protective order. The following persons may be authorized by the
Commission to receive access to proprietary information if they comply
with these regulations and such other conditions imposed upon them by
the Commission:
(1) The members of a binational panel or an extraordinary challenge
committee, any assistant to a member, court reporters and translators;
(2) Counsel and professionals, provided that the counsel or
professional does not participate in competitive decision-making, as
defined in US Steel Corp. v. United States, 730 F.2d 1465 (Fed. Cir.
1984), for the person represented or for any person that would gain a
competitive advantage through knowledge of the proprietary information
sought;
(3) Clerical persons who are employed or retained by and under the
direction and control of a person described in paragraph (b) (1), (2),
(5) or (6) of this section who has been issued a protective order, if
such clerical persons:
(i) Are not involved in the competitive decision-making, or the
support functions for the competitive decision-making, of a participant
to the proceeding or of any person that would gain a competitive
advantage through knowledge of the proprietary information sought, and
(ii) Have agreed to be bound by the terms set forth in the
application for protective order of the person who retains or employs
him or her;
(4) The Secretaries of the United States, Canadian and Mexican
sections of the Secretariat and members of their staffs;
(5) Any officer or employee of the United States Government who the
United States Trade Representative informs the Commission Secretary
needs access to proprietary information to make recommendations
regarding the convening of extraordinary challenge committees; and
(6) Any officer or employee of the Government of Canada or the
Government of Mexico who the Canadian Minister of Trade or the Mexican
Secretary of Commerce and Industrial Development, as the case may be,
informs the Commission Secretary needs access to proprietary
information to make recommendations regarding the convening of
extraordinary challenge committees.
(c) Procedures for obtaining access to proprietary information
under protective order.--(1) Persons who must file an application for
release under protective order. To be permitted access to proprietary
information in the administrative record of a determination under panel
review, all persons described in paragraphs (b) (1), (2), (4), (5) or
(6) of this section, unless described in paragraph (c)(5)(i) of this
section, shall file an application for a protective order.
(2) Contents of applications for release under protective order.
(i) The Commission Secretary shall adopt from time to time forms for
submitting requests for release pursuant to protective order that
incorporate the terms of this rule. The Commission Secretary shall
supply the United States Secretary with copies of the forms for persons
described in paragraphs (b) (1), (4), (5) and (6) of this section.
Other applicants may obtain the forms at the Commission Secretary's
office at 500 E Street SW., Washington, DC 20436.
(ii) Such forms shall require the applicant to submit a personal
sworn statement that, in addition to such other conditions as the
Commission Secretary may require, the applicant will:
(A) Not disclose any proprietary information obtained under
protective order and not otherwise available to any person other than:
(1) Personnel of the Commission involved in the particular panel
review in which the proprietary information is part of the
administrative record,
(2) The person from whom the information was obtained,
(3) A person who is authorized to have access to the same
proprietary information pursuant to a Commission protective order, and
(4) A clerical person retained or employed by and under the
direction and control of a person described in paragraph (b) (1), (2),
(5), or (6) of this section who has been issued a protective order, if
such clerical person has signed and dated an agreement to be bound by
the terms set forth in the application for a protective order of the
person who retains or employs him or her;
(B) Not use any of the proprietary information released under
protective order and not otherwise available for purposes other than
the particular proceedings under Article 1904 of the Agreement;
(C) Upon completion of panel review, or at such other date as may
be determined by the Commission Secretary, return to the Commission, or
certify to the Commission Secretary the destruction of, all documents
released under the protective order and all other material (such as
briefs, notes, or charts), containing the proprietary information
released under the protective order, except that those described in
paragraph (b)(1) of this section may return such documents and other
materials to the United States Secretary. The United States Secretary
may retain a single file copy of each document for the official file.
(D) Update information in the application for protective order as
required by the protective order; and
(E) Acknowledge that the person becomes subject to the provisions
of 19 U.S.C. 1677f(f) and to this subpart, as well as corresponding
provisions of Canadian and Mexican law on disclosure undertakings
concerning proprietary information.
(3) Timing of applications. An application for any person described
in paragraph (b)(1) or (b)(2) of this section may be filed after a
notice of request for panel review has been filed with the Secretariat.
A person described in paragraph (b)(4) of this section shall file an
application immediately upon assuming official responsibilities in the
United States, Canadian or Mexican Secretariat. An application for any
person described in paragraph (b)(5) or (b)(6) of this section may be
filed at any time after the United States Trade Representative, the
Canadian Minister of Trade, or the Mexican Secretary of Commerce and
Industrial Development, as the case may be, has notified the Commission
Secretary that such person requires access.
(4) Filing and service of applications--(i) Applications of persons
described in paragraph (b)(1) of this section. A person described in
paragraph (b)(1) of this section shall submit the completed original of
the form to the United States Secretary, NAFTA Secretariat, room 2061,
U.S. Department of Commerce, Pennsylvania Avenue and 14th Street, NW.,
Washington, DC 20230. The United States Secretary, in turn, shall file
the original plus three (3) copies of the application with the
Commission Secretary.
(ii) Applications of persons described in paragraph (b)(2) of this
section--(A) Filing. A person described in paragraph (b)(2) of this
section shall file the completed original of the form and three (3)
copies with the Commission Secretary, and four (4) copies with the
United States Secretary.
(B) Service. If an applicant files before the deadline for filing
notices of appearance for the panel review, the applicant shall
concurrently serve each person on the service list with a copy of the
application. If the applicant files after the deadline for filing
notices of appearance for the panel review, the applicant shall serve
each participant in the panel review in accordance with the applicable
Article 1904 Rules and ECC Rules. Service on a person may be effected
by delivering a copy to the person's service address; by sending a copy
to the person's service address by facsimile transmission, expedited
courier service, expedited mail service; or by personal service.
(iii) Applications of persons described in paragraph (b)(4) of this
section. A person described in paragraph (b)(4) of this section shall
file the original and three (3) copies of the protective order
application with the Commission Secretary.
(iv) Applications of persons described in paragraph (b)(5) of this
section. A person described in paragraph (b)(5) of this section shall
file the original and three (3) copies with the Commission Secretary
and four (4) copies with the United States Secretary.
(v) Applications of persons described in paragraph (b)(6) of this
section. A person described in paragraph (b)(6) of this section shall
submit the completed original of the protective order application to
the relevant FTA Secretary. The relevant FTA Secretary in turn, shall
file the original and three (3) copies with the Commission Secretary.
(5) Persons who retain access to proprietary information under a
protective order issued during the administrative proceedings. (i) If
counsel or a professional has been granted access in an administrative
proceeding to proprietary information under a protective order that
contains a provision governing continued access to that information
during panel review, and that counsel or professional retains the
proprietary information more than fifteen (15) days after a First
Request for Panel Review is filed with the Secretariat, that counsel or
professional, and such clerical persons with access on or after that
date, become immediately subject to the terms and conditions of Form C
maintained by the Commission Secretary on that date including
provisions regarding sanctions for violations thereof.
(ii) Any person described in paragraph (c)(5)(i) of this section,
concurrent with the filing of a complaint or notice of appearance in
the panel review on behalf of the participant represented by such
person, shall:
(A) File four (4) copies of the original application, of all
existing updates to that application, and of the protective order with
the United States Secretary; and
(B) Serve three (3) copies of the protective order and of all
existing updates upon the Commission Secretary.
(iii) Any person described in paragraph (c)(5)(i) of this section
need not submit a new application for a protective order at the
commencement of a panel review.
(d) Issuance of protective orders--(1) Applicants described in
paragraphs (b) (1), (4), (5) and (6) of this section. Upon approval of
an application of persons described in paragraphs (b)(1), (4), (5), or
(6) of this section, the Commission Secretary shall issue a protective
order permitting release of proprietary information. Any member of a
binational panel proceeding initiated under the United States-Canada
Free Trade Agreement to whom the Commission Secretary issues a
protective order must countersign it and return one copy of the
countersigned order to the United States Secretary. Any other applicant
under paragraph (b)(1) of this section must file a copy of the order
with the United States Secretary.
(2) Applicants described in paragraph (b)(2) of this section. (i)
The Commission shall not rule on an application filed by a person
described in paragraph (b)(2) until ten (10) days after the request is
filed unless there is a compelling need to rule more expeditiously. Any
person may file an objection to the application within seven (7) days
of the application's filing date, stating the specific reasons why the
Commission should not grant the application. One (1) copy of the
objection shall be served on the applicant and on all persons who were
served with the application. Any reply to an objection will be
considered if it is filed and served before the Commission Secretary
renders a decision. Service of objections and replies shall be made in
accordance with paragraph (c)(4)(ii)(B) of this section.
(ii) Denial of application. The Commission's Secretary may deny an
application by serving a letter notifying the applicant of the decision
and the reasons therefor within fourteen (14) days of the receipt of
the application. The letter shall advise the applicant of the right to
appeal to the Commission. Any appeal must be made within five (5) days
of the service of the Commission Secretary's letter.
(iii) Appeal from denial of an application. An appeal from a denial
of a request must be addressed to the Chairman, United States
International Trade Commission, 500 E Street, SW., Washington, DC
20436. Such appeal must be served in accordance with paragraph
(c)(4)(ii)(B) of this section. The Commission shall make a final
decision granting or denying the appeal within thirty (30) days from
the day on which the application was filed with the Commission
Secretary.
(iv) Approval of the application. If the Commission Secretary does
not deny an application pursuant to paragraph (d)(2)(ii) of this
section, the Commission shall, by the fifteenth day following the
receipt of the application, issue a protective order permitting the
release of proprietary information to the applicant.
(v) Filing of protective orders. If a protective order is issued to
a person described in paragraph (b)(2) of this section, the person
shall immediately file one (1) copy of the protective order with the
United States Secretary.
(e) Retention of protective orders. The Commission Secretary shall
retain, in a public file, copies of applications granted, including any
updates thereto, and protective orders issued under this section,
including protective orders filed in accordance with paragraph
(b)(6)(ii) of this section.
(f) Filing of amendments to granted applications. Any person who
has been issued a protective order under this section shall:
(1) If a person described in paragraph (b)(1) of this section,
submit any amendments to the application for a protective order to the
United States Secretary, who shall file the original and three (3)
copies with the Commission Secretary;
(2) If a person described in paragraph (b)(2) of this section, file
the original and three (3) copies of any amendments to the application
with the Commission Secretary and four (4) copies with the United
States Secretary; or
(3) If any other person, file the original and three (3) copies of
any amendments to the application with the Commission Secretary.
(g) Modification or revocation of protective orders. (1) Any person
may file with the Commission Secretary a request that a protective
order issued under this section be modified or revoked because of
changed conditions of fact or law, or on grounds of the public
interest. The request shall state the changes desired and include any
supporting materials and arguments. The person filing the request shall
serve a copy of the request upon the person to whom the protective
order was issued.
(2) Any person may file a response to the request within twenty
(20) days after it is filed, unless the Commission issues a notice
indicating otherwise. After consideration of the request and any
responses thereto, the Commission shall take such action as it deems
appropriate.
(3) If a request filed under this paragraph alleges that a person
is violating the terms of a protective order, the Commission may treat
the request as a report of violation under Sec. 207.101 of this
subpart.
(4) The Commission may also modify or revoke a protective order on
its own initiative.
(5) If the Commission revokes, amends or modifies a person's
protective order, it shall provide to the person, the United States
Secretary and all participants a copy of the Notice of Revocation,
amendment or modification.
Sec. 207.94 Protection of privileged information during panel and
committee proceedings.
When and if a panel or extraordinary challenge committee decides
that the Commission is required, pursuant to the United States law, to
grant access pursuant to protective order to information for which the
Commission has claimed a privilege, any individual to whom a panel or
extraordinary challenge committee has directed the Commission release
information and who is otherwise within the category of individuals
eligible to receive proprietary information pursuant to 19 CFR
207.93(b), may file an application for a protective order with the
Commission. Upon receipt of such application, the Commission Secretary
shall certify to the Commission that a panel or extraordinary challenge
committee has required the Commission to release such information to
specified persons, pursuant to 19 U.S.C. 1677f(f)(1). Twenty-four hours
following such certification, the Commission Secretary shall issue a
protective order releasing such information to any authorized applicant
subject to terms and conditions equivalent to those described in 19 CFR
207.93(c)(2).
Procedures for Imposing Sanctions for Violation of the Provisions
of a Protective Order Issued During Panel and Committee Proceedings
Sec. 207.100 Sanctions.
(a) A person, other than a person exempted from this regulation by
the provisions of 19 U.S.C. 1677f(f)(4), who is determined under this
subpart to have committed a prohibited act, may be subject to one or
more of the following sanctions:
(1) A civil penalty not to exceed $100,000 for each violation, each
day of a continuing violation constituting a separate violation;
(2) Debarment from practice in any capacity before the Commission,
which disbarment may, in appropriate circumstances, include such
person's partners, associates, employers and employees, for a
designated time period following publication of a determination that
the protective order has been breached;
(3) Denial of further access to proprietary or privileged
information covered by the breached protective order or to proprietary
information in future Commission proceedings;
(4) An official reprimand by the Commission;
(5) In the case of an attorney, accountant, or other professional,
referral of the facts underlying the prohibited act to the ethics panel
or other disciplinary body of the appropriate professional association
or licensing authority;
(6) When appropriate, referral of the facts underlying the
violation to the United States Trade Representative or his or her
designees, or to another government agency; and
(7) Any other administrative sanctions as the Commission determines
to be appropriate.
(b) Each partner, associate, employer, and employee described in
paragraph (a)(2) of this section is entitled to all the administrative
rights set forth in this subpart.
(c) For the purposes of this subpart, the knowing receipt of
information the receipt of which constitutes a violation of a
protective order includes, but is not limited to, the reading or
unauthorized dissemination of the information covered by a protective
order by a person who knows or should reasonably believe that he or she
is not authorized to read or disseminate such information.
207.101 Reporting of prohibited act and commencement of investigation.
(a) Any person who has information indicating that a prohibited act
has been committed shall immediately report all pertinent facts
relating thereto to the Commission Secretary.
(b) Upon receipt, the Commission Secretary shall record the
information, assign an investigation number, and forward all
information he or she received to the Office of Unfair Import
Investigations.
(c) As expeditiously as possible, the Office of Unfair Import
Investigations shall conduct an inquiry to determine whether there is
reasonable cause to believe that a person or persons have committed a
prohibited act. At any time, the Office of Unfair Import Investigations
may request that the Commission assign an administrative law judge to
oversee the inquiry.
(d) At the conclusion of the inquiry, the Office of Unfair Import
Investigations shall assess whether the available information is
sufficient to provide reasonable cause to believe that a person or
persons have committed a prohibited act.
207.102 Initiation of proceedings.
(a) Upon completion of the inquiry,
(1) If the Office of Unfair Import Investigations concludes that
there is not reasonable cause to believe that a person or persons have
committed a prohibited act, the Office of Unfair Import Investigations
shall:
(i) Submit a report to the Commission; and
(ii) Unless the Commission directs otherwise, the file shall be
closed and returned to the Commission Secretary.
(2) If the Office of Unfair Import Investigations concludes that
there is reasonable cause to believe that a person or persons have
committed a prohibited act, the Office of Unfair Import Investigations
shall:
(i) Make a recommendation to the Commission regarding whether and
to what extent it is appropriate to notify the person whose proprietary
information may have been compromised; and
(ii) Submit a report and recommendation to the Commission regarding
whether to initiate sanctions proceedings or to take other appropriate
action.
(b) The Commission may make any appropriate determination regarding
the initiation of sanctions proceedings, including rejecting,
approving, or approving and amending any recommendation made by the
Office of Unfair Import Investigations.
(c) If the Commission determines that it is appropriate to issue a
charging letter, the Commission shall appoint an administrative law
judge to oversee the proceeding and the Commission Secretary shall
initiate a proceeding under this Subpart by issuing a charging letter
as set forth in 19 CFR 207.103.
(d) If the Commission determines that it is appropriate to initiate
proceedings, but that the party to be charged is beyond the
jurisdiction of the Commission and within the jurisdiction of another
Free Trade Area country, or that for other reasons an authorized agency
of another Free Trade Area country would be the more appropriate forum
for initiation of a proceeding, the Commission shall take the necessary
steps for issuance of a letter requesting the authorized agency of
another Free Trade Area country to initiate proceedings under
applicable law on the basis of an alleged prohibited act.
(e) The Commission may make any determination regarding
notification about the alleged prohibited act and the relevant
underlying facts to the persons who submitted the proprietary
information that allegedly has been disclosed. A determination by the
Commission on this subject does not foreclose the administrative law
judge from redetermining at any time during the hearing whether
notification to the compromised party is appropriate.
(f) If the Commission determines that it is not appropriate to
issue a charging letter or to refer the facts to the authorized agency
of another Free Trade Area country, the file shall be closed and
returned to the Commission Secretary, unless the Commission directs
otherwise.
(g) All aspects of the inquiry shall remain confidential, except as
deemed reasonably necessary to the Office of Unfair Import
Investigations to gather relevant information and to protect the
interests of the person who submitted the proprietary information, or
except as otherwise ordered by the Commission. Except as the Commission
may otherwise order, the Commission Secretary shall maintain all closed
investigatory files in confidence to the extent permitted by law, and
shall destroy any documentary evidence containing allegations of a
prohibited act for which no proceeding is initiated one year after the
file is closed.
Sec. 207.103 Charging letter.
(a) Contents of charging letter. Each charged party shall be served
by the Commission with a copy of a charging letter and any accompanying
motion for interim measures, as provided for in 19 CFR 207.106. The
charging letter shall include:
(1) Allegations concerning a prohibited act;
(2) A citation to Sec. 207.100 of this subpart, for a listing of
sanctions that may be imposed for a prohibited act;
(3) A statement that a proceeding has been initiated and that an
APA hearing will be held before an administrative law judge;
(4) A statement that the charged party or his or her attorney may
request the issuance of an appropriate administrative protective order
to obtain access to the information upon which the charge is based;
(5) A statement that the charged party has a right to retain an
attorney at the charged party's own expense for purposes of
representation; and
(6) A statement that the charged party has the right to request in
the response described in Sec. 207.104 of this subpart that the
proceedings remain confidential to the extent practicable.
(b) Service of charging letter. (1) The charging letter shall be
served in a double envelope. The inner envelope shall indicate that it
is to be opened only by the addressee. Service of a charging letter
shall be made by one of the following methods:
(i) Mailing a copy by registered or certified mail addressed to the
charged party at the party's last known permanent address; or
(ii) Personal service; or
(iii) Any other method acceptable under Rule 4 of the Federal Rules
of Civil Procedure.
(2) Service shall be evidenced by a certificate of service signed
by the person making such service.
(c) Confidentiality of charging letter. Prior to entry of an order
by the administrative law judge under Sec. 207.105 of this subpart, the
charging letter will be confidential and disclosed only to necessary
Commission staff and the charged parties.
(d) Amendment of charging letter. (1) At any time after proceedings
have been initiated, the investigative attorney may move for leave to
amend or withdraw the charging letter.
(2) If the administrative law judge determines that the charging
letter should be amended to include additional parties, the judge shall
issue a recommended determination to that effect. The Commission shall
review the recommended determination, and issue a determination
granting or denying the motion to amend the charging letter to include
additional parties.
(3) Upon motion, the administrative law judge may grant leave to
amend the charging letter for good cause shown upon such conditions as
are necessary to avoid prejudicing the public interest and the rights
of the parties already charged.
(4) Any amended charging letter shall be served upon all charged
parties in the form and manner set forth in paragraphs (a) and (b) of
this section.
Sec. 207.104 Response to charging letter.
(a) Time for filing. A charged party shall have twenty (20) days
from the date of service of the charging letter within which to file a
written response to the allegations made in the charging letter unless
otherwise ordered by the administrative law judge.
(b) Form and content. Each response shall be under oath and signed
by the charged party or its duly authorized officer, attorney, or
agent, with the name, address, and telephone number of the same. Each
charged party shall respond to each allegation in the charging letter,
and may set forth a concise statement of the facts constituting each
ground of defense. There shall be a specific admission or denial of
each fact alleged in the charging letter, or if the charged party is
without knowledge of any such fact, a statement to that effect.
(c) Request for confidentiality. The response shall contain a
statement as to whether the charged party seeks an order to maintain
the confidentiality of all or part of the proceedings to the extent
practicable, pursuant to Sec. 207.105 of this subpart.
Sec. 207.105 Confidentiality.
(a) Protection of proprietary and privileged information. As the
administrative law judge deems reasonably necessary for the preparation
of the defense of a charged party, the attorney for the charged party
may be granted access in these proceedings to proprietary information
or to the privileged information, the disclosure of which is the
subject of the proceedings. Any such access shall be under protective
order consistent with the provisions of this subpart.
(b) Confidentiality of proceedings. Upon the request of any charged
party pursuant to Sec. 207.106 of this subpart, the administrative law
judge will issue an appropriate confidentiality order. This order will
provide for the confidentiality, to the extent practicable and
permitted by law, of information relating to allegations concerning the
commitment of a prohibited act, consistent with public policy
considerations and the needs of the parties in conducting the sanctions
proceedings. The order will provide that all proceedings under this
provision shall be kept confidential within the terms of the order,
except to the extent that a discussion of such proceedings is
incorporated into a published final decision of the Commission. Any
confidential information not disclosed in such decision will remain
protected.
Sec. 207.106 Interim measures.
(a) At any time after proceedings are initiated, the administrative
law judge, upon motion, or on his or her own initiative, may issue a
recommended determination to revoke the allegedly-violated protective
order, to disclose information about the proceedings that would
otherwise be kept confidential, or to take other appropriate interim
measures.
(b) Before issuing a determination recommending interim sanctions,
the administrative law judge shall afford a party against whom such
measures are proposed the opportunity to oppose them. The
administrative law judge shall ordinarily decide any motion under this
section no more than twenty (20) days after it is filed.
(c) The Commission shall review any recommended determination
regarding the imposition of interim measures within twenty (20) days
from its issuance or such other time as it may order. The Commission
may impose any appropriate interim sanctions.
(d) The administrative law judge may recommend to the Commission
that interim measures be modified or revoked. The Commission shall rule
on such recommendation within ten (10) days after its issuance or such
other time as it may order.
(e) The Commission Secretary shall immediately notify the
Secretariat of any interim measures that revoke or modify an
outstanding protective order in an ongoing panel review. The Commission
Secretary shall also immediately notify the Secretariat of any
revocation or modification of an interim measure.
Sec. 207.107 Motions.
(a) Presentation and disposition. (1) After issuance of the
charging letter and while part of the proceeding is pending before the
administrative law judge, all motions relating to that part of the
proceeding shall be addressed to the administrative law judge.
(2) While part of a proceeding is pending before the Commission,
all motions relating to that part of the proceeding shall be addressed
to the Chairman of the Commission. All written motions shall be filed
with the Commission Secretary and served upon all parties.
(b) Content. All written motions shall state the particular order,
ruling, or action desired and the grounds therefor.
(c) Responses. Any response to a motion shall be filed within ten
(10) days after service of the motions, or within such longer or
shorter time as may be designated by the administrative law judge or
the Commission. The moving party shall have no right to reply, except
as permitted by the administrative law judge or the Commission.
(d) Service. All motions, responses, replies, briefs, petitions,
and other documents filed in sanctions proceedings under this subpart
shall be served by the party filing the document upon each other party.
Service shall be made upon the attorney for the party unless the
administrative law judge or the Commission orders otherwise.
Sec. 207.108 Preliminary conference.
As soon as practicable after the response to the charging letter is
filed, the administrative law judge shall direct counsel or other
representatives for the parties to meet with him or her at a
preliminary conference, unless the administrative law judge determines
that such a conference is not necessary. At the conference, the
administrative law judge shall consider the issuance of such orders as
the administrative law judge deems necessary for the conduct of the
proceedings. Such orders may include, as appropriate under these
regulations, the establishment of a discovery schedule or the issuance
of an order, if requested, to provide for maintaining the
confidentiality of the proceedings pursuant to Sec. 207.105(b) of this
subpart.
Sec. 207.109 Discovery.
(a) Discovery methods. All parties may obtain discovery under such
terms and limitations as the administrative law judge may order.
Discovery may be by one or more of the following methods:
(1) Depositions upon oral examination or written questions;
(2) Written interrogatories;
(3) Production of documents or things for inspection and other
purposes; and
(4) Requests for admissions.
(b) Sanctions. If a party or an officer or agent of a party fails
to comply with a discovery order, the administrative law judge may take
such action as he deems reasonable and appropriate, including the
issuance of evidentiary sanctions or deeming the respondent to be in
default.
(c) Depositions of nonparty officers or employees of the United
States or another Free Trade Area country government.--(1) Depositions
of Commission officers or employees. A party desiring to take the
deposition of an officer or employee of the Commission (other than a
member of the Office of Unfair Import Investigations or of the Office
of the Administrative Law Judges), or to obtain nonprivileged documents
or other physical exhibits in the custody, control, and possession of
such officer or employee, shall file a written motion requesting the
administrative law judge to recommend that the Commission direct that
officer or employee to testify or produce the requested materials.
(2) Depositions of officers or employees of other United States
agencies, or of the government of another Free Trade Area country. A
party desiring to take the deposition of an officer or employee of
another agency, or of the government of another Free Trade Area
country, or to obtain nonprivileged documents or other physical
exhibits in the custody, control, and possession of such officer or
employee, shall file a written motion requesting the administrative law
judge to recommend that the Commission seek the testimony or production
of requested material from the officer or employee.
Sec. 207.110 Subpoenas.
(a) Application for issuance of a subpoena. Except as provided in
Sec. 207.109(c) of this subpart, an application for issuance of a
subpoena requiring a person to appear and depose or testify at the
taking of a deposition or at a hearing shall be made to the
administrative law judge. The application shall be made in writing, and
shall specify the material to be produced as precisely as possible,
showing the relevancy of the material and the reasonableness of the
scope of the subpoena. The application shall be ruled upon by the
administrative law judge.
(b) Enforcement of a subpoena. A motion for enforcement of a
subpoena shall be made to the administrative law judge. Upon
consideration of the motion and any response thereto, the
administrative law judge shall recommend to the Commission in favor of
or against enforcement. The administrative law judge's recommendation
shall provide the basis therefor, and shall address each of the
criteria necessary for enforcement of an administrative subpoena. After
consideration of the administrative law judge's recommendation, the
Commission shall determine whether initiation of enforcement
proceedings is appropriate.
(c) Application for subpoena grounded upon the Freedom of
Information Act. No application for a subpoena for production of
documents grounded upon the Freedom of Information Act (5 U.S.C. 552)
shall be entertained by the administrative law judge or the Commission.
Sec. 207.111 Prehearing conference.
The administrative law judge may direct the attorney or other
representatives for the parties to meet with him or her to consider any
or all of the following:
(a) Simplification and clarification of the issues;
(b) Scope of the hearing;
(c) Stipulations and admissions of either fact or the content and
authenticity of documents;
(d) Disclosure of the names of witnesses and the exchange of
documents or other physical evidence that will be introduced in the
course of the hearing; and
(e) Such other matters as may aid in the orderly and expeditious
disposition of the proceedings.
Sec. 207.112 Hearings.
(a) Purpose of and scheduling of hearings. An opportunity for a
hearing before an administrative law judge shall be provided for each
action initiated under Sec. 207.102 of this subpart. The purpose of
such hearing shall be to receive evidence and hear argument in order to
determine whether a charged party has committed a prohibited act and if
so, what sanctions are appropriate. Hearings shall proceed with all
reasonable expedition, and, insofar as practicable, shall be held at
one place, continuing until completed, unless otherwise ordered by the
administrative law judge.
(b) Joinder or consolidation. The administrative law judge may
order such joinder or consolidation of proceedings initiated under
Sec. 207.102 of this subpart at the administrative law judge's
discretion.
(c) Compliance with Administrative Procedure Act. The
administrative law judge shall conduct a hearing that complies with the
requirements of section 554 of title 5 of the United States Code.
Sec. 207.113 The record.
(a) Definition of the record. The record shall consist of--
(1) The charging letter and response, motions and responses, and
other documents and exhibits properly filed with the Commission
Secretary;
(2) All orders, notices, and the recommended or initial
determinations of the administrative law judge;
(3) Orders, notices, and any final determination of the Commission;
(4) Hearing transcripts, and evidence admitted at the hearing; and
(5) Any other items certified into the record by the administrative
law judge.
(b) Certification of the record. The record shall be certified to
the Commission by the administrative law judge upon his or her filing
of the initial determination.
Sec. 207.114 Initial determination.
(a) Time for filing of initial determination. (1) Except as may
otherwise be ordered by the Commission, within ninety (90) days of the
date of issuance of the charging letter, the administrative law judge
shall certify the record to the Commission and shall file with the
Commission an initial determination as to whether each charged party
has committed a prohibited act, and as to appropriate sanctions.
(2) The administrative law judge may request the Commission to
extend the time period for issuance of the initial determination for
good cause shown.
(b) Contents of the initial determination. The initial
determination shall include the following:
(1) An opinion making all necessary findings of fact and
conclusions of law and the reasons therefor, and
(2) A statement that the initial determination shall become the
determination of the Commission unless a party files a petition for
review of the determination pursuant to Sec. 207.115 or the Commission
pursuant to Sec. 207.116 of this subpart, orders on its own motion a
review of the initial determination or certain issues therein.
(c) Burden of proof. A finding that a charged party committed a
prohibited act shall be supported by clear and convincing evidence.
(d) Effect of initial determination. The initial determination
shall become the determination of the Commission forty-five (45) days
after the date of service of the initial determination, unless the
Commission within such time orders review of the initial determination
or certain issues therein pursuant to Sec. 207.115 or 207.116 of this
subpart or by order shall have changed the effective date of the
initial determination. In the event an initial determination becomes
the determination of the Commission, the parties shall be notified
thereof by the Commission Secretary.
Sec. 207.115 Petition for review.
(a) The petition and responses. (1) Any party may request a review
by the Commission of the initial determination by filing with the
Commission Secretary a petition for review, except that a party who has
defaulted may not petition for review of any issue regarding which the
party is in default.
(2) Any person who wishes to obtain judicial review pursuant to 19
U.S.C. 1677f(f)(5) must first seek review by the Commission in
accordance with the procedures set forth in this regulation governing
petitions for review.
(3) Any petition for review must be filed within fourteen (14) days
after service of the initial determination on the charged party. The
petition shall:
(i) Identify the party seeking review;
(ii) Specify the issues upon which review is sought, including a
statement as to whether review is sought of the initial determination
regarding the commitment of a prohibited act, or of the initial
determination regarding sanctions;
(iii) Set forth a concise statement of the relevant law or material
facts necessary for consideration of the stated issues; and
(iv) Present a concise argument setting forth the reasons why
review is necessary or appropriate.
(4) Any issue not raised in the petition for review filed under
this section will be deemed to have been abandoned and may be
disregarded by the Commission.
(5) Any party may file a response to the petition within seven (7)
days after service of the petition, except that a party who has
defaulted may not file a response to any issue regarding which the
party is in default.
(b) Grant or denial of review. (1) The Commission shall decide
whether to grant a petition for review, in whole or in part, within
forty-five (45) days of the service of the initial determination on the
parties, or by such other time as the Commission may order.
(2) The Commission shall base its decision whether to grant a
petition for review upon the petition and response thereto, without
oral argument or further written submissions, unless the Commission
shall order otherwise.
(3) The Commission shall grant a petition for review of an initial
determination or certain issues therein when at least one of the
participating Commissioners votes for ordering review. In its notice,
the Commission shall establish the scope of the review and the issues
that will be considered and make provisions for the filing of briefs
and oral argument if deemed appropriate by the Commission. The notice
that the Commission has granted the petition shall be served by the
Commission Secretary on all parties.
Sec. 207.116 Commission review on its own motion.
Within forty-five (45) days of the date of service of the initial
determination, the Commission on its own initiative shall order review
of an initial determination or certain issues therein upon request of
any Commissioner.
Sec. 207.117 Review by Commission.
On review, the parties may not present argument on any issue that
is not set forth in the notice of review; and the Commission may
affirm, reverse, modify, set aside or remand for further proceedings,
in whole or in part, the initial determination of the administrative
law judge. The Commission may make any findings or conclusions that in
its judgment are proper based on the record in the proceeding.
Sec. 207.118 Role of the General Counsel in advising the Commission.
The Assistant General Counsel for Section 337 Investigations shall
serve as Acting General Counsel for the purpose of advising the
Commission on proceedings brought under this subpart if the prohibited
act described in the charging letter involves a protective order issued
in connection with a panel review that was pending when the letter was
issued, and the General Counsel participated in the panel review. No
other Commission attorney shall advise the Commission on proceedings
under this Subpart concerning a protective order issued during a panel
review in which the attorney participated.
Sec. 207.119 Reconsideration.
(a) Motion for reconsideration. Within fourteen (14) days after
service of a Commission determination, any party may file with the
Commission a motion for reconsideration, setting forth the relief
desired and the grounds in support thereof. Any motion filed under this
section must be confined to new questions raised by the determination
or action ordered to be taken thereunder and upon which the moving
party had no opportunity to submit arguments.
(b) Disposition of motion for reconsideration. The Commission shall
grant or deny the motion for reconsideration. No response to a motion
for reconsideration will be received unless requested by the
Commission, but a motion for reconsideration will not be granted in the
absence of such a request. If the motion to reconsider is granted, the
Commission may affirm, set aside, or modify its determination,
including any action ordered by it to be taken thereunder. When
appropriate, the Commission may order the administrative law judge to
take additional evidence.
Sec. 207.120 Public notice of sanctions.
If the final Commission decision is that there has been a
prohibited act, and that public sanctions are to be imposed, notice of
the decision will be published in the Federal Register and forwarded to
the Secretariat. Such publication will occur no sooner than fourteen
(14) days after issuance of a final decision or after any motion for
reconsideration has been denied. The Commission Secretary shall also
serve notice of the Commission decision upon such departments and
agencies of the United States, Canadian and Mexican governments as the
Commission deems appropriate.
[FR Doc. 94-2341 Filed 2-2-94; 8:45 am]
BILLING CODE 7020-02-P
