[Federal Register Volume 60, Number 191 (Tuesday, October 3, 1995)]
[Proposed Rules]
[Pages 51748-51760]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-24573]
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INTERNATIONAL TRADE COMMISSION
19 CFR Parts 201 and 207
Notice of Proposed Amendments to Rules of Practice and Procedure
AGENCY: United States International Trade Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The United States International Trade Commission (the
Commission) proposes to amend its Rules of Practice and Procedure
concerning antidumping and countervailing duty investigations and
reviews in 19 CFR parts 201 and 207. The proposed amendments have two
purposes. First, they will conform the Commission's rules, on a
permanent basis, to the requirements of the Uruguay Round Agreements
Act (URAA). Second, the amendments will improve the effectiveness and
efficiency of the Commission's procedures in conducting antidumping and
countervailing duty investigations and reviews.
DATES: To be assured of consideration, written comments must be
received not later than December 18, 1995.
ADDRESSES: A signed original and 14 copies of each set of comments,
along with a cover letter, should be submitted to the Secretary, U.S.
International Trade Commission, 500 E Street SW., Washington, D.C.
20436.
FOR FURTHER INFORMATION CONTACT: Marc A. Bernstein, Office of General
Counsel, U.S. International Trade Commission, telephone 202-205-3087,
or Vera A. Libeau, Office of Investigations, U.S. International Trade
Commission, telephone 202-205-3176. Hearing-impaired individuals are
advised that information on this matter can be obtained by contacting
the Commission's TDD terminal on 202-205-1810.
SUPPLEMENTARY INFORMATION:
Background
The URAA was enacted on December 8, 1994. It contains provisions
which, inter alia, amend Title VII of the Tariff Act of 1930, as
amended (the Act) (19 U.S.C. 1671 et seq.), concerning antidumping and
countervailing duty investigations and reviews. Enactment of the URAA
necessitated that the Commission amend its rules concerning Title VII
practice and procedure.
Commission rules to implement new legislation ordinarily are
promulgated in accordance with the rulemaking provisions of Sec. 553 of
the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq.), which
entails the following steps: (1) publication of a notice of proposed
rulemaking; (2) solicitation of public comments on the proposed rules;
(3) Commission review of such comments prior to developing final rules;
and (4) publication of the final rules thirty days prior to their
effective date. See 5 U.S.C. 553. That procedure could not be utilized
in this instance because the new legislation was enacted on December 8,
1994, and became effective on January 1, 1995. Because it was not
possible to complete the Sec. 553 rulemaking procedure prior to the
effective date of the new legislation, the Commission adopted interim
rules that came into effect at the same time as the URAA. These interim
amendments to part 207 of the Commission's Rules of Practice and
Procedure were published in the Federal Register on January 3, 1995. 60
FR 18 (Jan. 3, 1995). The Commission additionally requested comment on
the interim rules.
As the Commission stated in its January 3, 1995, Federal Register
notice, its interim rules were not intended to ``respond to anything
more than the exigencies created by the new legislation.'' The notice
explained that any final rules that the Commission would adopt could be
more comprehensive than the interim rules. Moreover, in the notice the
Commission solicited comment on whether more extensive changes to its
rules were necessary or desirable. 60 FR at 19-20. Comments were
submitted by the Royal Thai Government (``Thailand''), the law firm of
Stewart and Stewart (``S&S'') on its own behalf, the law firm of
Pepper, Hamilton & Scheetz on behalf of Gouvernement de Quebec
(``Quebec''), the law firm of Collier, Shannon, Rill & Scott on behalf
of the Specialty Steel Industry of North America (``SSINA''), the law
firms of Dewey Ballantine and Skadden, Arps, Slate, Meagher & Flom on
behalf of seven U.S. producers of flat-rolled steel (``Flat-Rolled
Steel''), and the law firm of Aitken, Irvin & Lewin on behalf of the
Pro Trade Group (``Pro Trade''). The nature of these comments, to the
extent that they are pertinent to the subjects addressed in this notice
of proposed rulemaking, and the Commission's response thereto is
provided below in the explanation of the proposed rules.
Both as a result of comments received in response to the notice of
interim rulemaking and as a result of the Commission's own independent
examination of its procedures in antidumping and countervailing duty
investigations and reviews, the Commission is proposing changes to its
procedures involving such investigations and reviews. Some of these
changes are intended to implement the new requirements of the URAA,
while others are intended generally to improve the efficiency and
effectiveness of the Commission's investigative procedures.12
\1\Chairman Watson and Commissioner Crawford are optimistic that
most proposals contained herein will provide efficiencies as well as
improve the process for the private and the public sector. Some
proposals have more potential for cost savings than others; some
will benefit primarily the private sector, others primarily the
Commission. Only one, the proposal to initiate an issues conference,
which is designed to improve and focus the investigative process,
may create no significant net efficiencies in the process. Chairman
Watson and Commissioner Crawford value and will carefully consider
all comments on each proposal.
\2\Commissioner Newquist's and Commissioner Bragg's approval of
this notice of proposed rulemaking is solely for the administrative
purpose of soliciting public comment on the proposed rules herein.
Their approval should not be construed as a concurrence with the
proposed rules.
While Commissioner Newquist and Commissioner Bragg generally
support any effort to reduce costs to and burdens on parties and the
Commission, they are concerned that these proposed rules, if
adopted, may have the contrary effect, particularly with regard to
the parties and other interested persons.
Commissioner Newquist and Commissioner Bragg strongly encourage
public comment on these proposed rules, whether in support or
opposition.
Finally, Commissioner Newquist and Commissioner Bragg note that
Commission staff prepared rough estimates of the costs and benefits
of many of the proposed rules herein. These estimates, contained in
memo INV-S-109, dated August 14, 1995, is available from the
Secretary's office. Commissioner Newquist and Commissioner Bragg
welcome public comment on these staff estimates.
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Several of these changes require amendments to the Commission's
rules. Accordingly, the Commission is proposing and submitting for
public comment amendments to its part 201 and 207 rules. Additionally,
the Commission is proposing to issue as final rules all but one of the
interim rules that were published in the January 3, 1995, Federal
Register notice. As explained below, the Commission has proposed
revisions to some of these
[[Page 51749]]
rules either in responses to comments received or as a result of its
independent examination of investigative procedures. Other aspects of
its independent examination, which are also described in this notice,
address internal agency procedures which do not require rulemaking to
implement.
The Commission has determined that these proposed rules do not meet
the criteria described in section 3(f) of Executive Order 12866 (58 FR
51735, Oct. 4, 1993) (EO) and thus do not constitute a significant
regulatory action for purposes of the EO. In accordance with the
Regulatory Flexibility Act (5 U.S.C. 601 note), the Commission hereby
certifies pursuant to 5 U.S.C. 605(b) that the rules set forth in this
notice are not likely to have a significant impact on a substantial
number of small business entities.
Petition Requirements
Sections 207.10 and 207.11
The Commission is proposing to amend Secs. 207.10 and 207.11
concerning the filing and content of antidumping and countervailing
duty petitions. Section 207.10 is proposed to be revised to require
petitioners to serve the confidential version of the petition on a
party representative as soon as a petitioner is notified that that
representative has had its application for administrative protective
order (APO) granted. Trade practitioners have expressed the concern
that party representatives whose APO applications have already been
approved do not gain access to business proprietary information (BPI),
and especially the confidential version of the petition, quickly enough
to prepare for the staff conference and the postconference briefs. The
proposed amendment would obligate petitioners to serve the confidential
version of the petition more rapidly than under current practice.
Two other changes that have been proposed to Sec. 207.10 are
discussed in more detail below. The first modifies a reference to the
Commission ``preliminary investigation,'' consistent with the general
change in terminology discussed below in the section concerning
investigative activity between the Commission preliminary determination
and the Department of Commerce (``Commerce'') preliminary
determination. The second, which deletes the current requirement that
petitioners file entries of appearance in a final investigation, is
discussed below in the section concerning entries of appearance.
The Commission also has proposed extensive amendments to
Sec. 207.11 concerning the content of antidumping and countervailing
duty petitions. The first sentence of the current rule, which requires
a petition to be signed and to identify the petitioner and its
representatives, will be retained with one grammatical change and will
be designated Sec. 207.11(a).
The second sentence of the rule, which requires that a petition
allege the elements necessary for imposition of antidumping and
countervailing duty rules and contain information reasonably available
to the petitioner supporting the allegation, will be designated
Sec. 207.11(b)(1). The Commission is proposing that the change made to
this portion of Sec. 207.11 as a result of the interim rulemaking--
deleting a reference to former section 303--be made permanent.
Paragraph (b)(2) of Sec. 207.11 contains new provisions specifying
particular information to be included within petitions to the extent
reasonably available to petitioner. These requirements are not
currently set forth in either the regulations of the Commission or
those of Commerce. Each of the provisions is designed to facilitate the
Commission's ability to conduct investigations under sections 703(a)
and 733(a) of the Act.
Several of the provisions are designed to facilitate the
preparation and dissemination of questionnaires. The requirements that
the petition identify the proposed domestic like product(s) and
identify each product on which the Commission should seek information
in its questionnaires are designed to aid the Commission in preparing
questionnaires. The requirements that the petition provide complete
listings of both U.S. producers of the proposed domestic like
product(s) and U.S. importers of the subject merchandise, including
information concerning street addresses, phone numbers, and market
shares (which are not currently required under Commerce's regulations)
are designed to facilitate prompt dissemination of questionnaires and
preparation of mailing lists by the Commission staff. (Commission staff
intends to encourage petitioners additionally to provide such
information electronically where feasible.) The requirement that the
petition include a table providing empirical data on factors pertinent
to the condition of the domestic industry during a period of time prior
to the filing of the petition, which will encompass three or three and
one-half calendar years, is designed to enable the Commission to
consult with Commerce as to the accuracy and adequacy of the
allegations in the petition concerning material injury by reason of
allegedly dumped or subsidized imports.
Other provisions in proposed Sec. 207.11(b)(2) are designed to
reduce the amount of data that will be requested in questionnaires.
Because information concerning each petitioner's ten largest U.S.
customers and lost sales and revenues will now be contained in the
petition, the Commission will no longer need to request such
information in the questionnaires it sends to petitioners. U.S.
producers of the proposed domestic like product who are not petitioners
will still be requested to provide lost sales and revenue information
in questionnaires.
The Commission emphasizes that, consistent with statutory
requirements, petitioners will only be required to provide information
that is reasonably available to them. The Commission realizes that, in
some instances, petitions are filed on behalf of U.S. industries, such
as those producing agricultural products, that contain so many
producers that providing a complete listing of U.S. producers would be
impossible. In other instances, petitioners may not have access to
financial or trade data concerning every domestic producer. The
Commission does not intend to require petitioners to provide the types
of data specified in proposed Sec. 207.11(b)(2) when such data are not
reasonably available to them. Proposed Sec. 207.11(b)(3) does require,
however, that when a petitioner is unable to provide a type of
information specified in Sec. 207.11(b)(2), it certify that that type
of information is not reasonably available to it.
Investigative Activity Between Commission Preliminary Determination and
Commerce Preliminary Determination
Sections 207.12, 207.13, 207.14, 207.18 and 207.20
Several of the comments filed in response to the January 3, 1995,
Federal Register notice endorsed the proposition that the Commission
should begin its final antidumping and countervailing duty
investigations at an earlier date. S&S suggested that the Commission
begin preparation of its questionnaires for use in the final
investigation before Commerce issues its preliminary determination, and
distribute them shortly after the Commerce preliminary determination is
issued. SSINA proposed that draft questionnaires be circulated to the
parties two weeks prior to the issuance of the Commerce preliminary
determination, and that the questionnaires be issued on the date of
[[Page 51750]]
the Commerce preliminary determination. Flat-Rolled Steel indicated
that the Commission should institute its final investigation 30 days
prior to the date that Commerce is scheduled to issue its preliminary
determination. Pro Trade also endorsed the Commission beginning its
final investigation before Commerce issued its preliminary
determination, early issuance of questionnaires, and establishment of a
period at the outset of the final investigation for the parties to
identify arguments they intend to raise concerning the appropriate
domestic like product(s).
In light of these comments, and as a result of its own internal
review of antidumping and countervailing duty procedures, the
Commission is proposing major changes in the way it conducts
investigative activity between issuance of its preliminary
determination and the issuance of the Commerce preliminary
determination. Although section 207.18 currently provides the
Commission's Director of Operations with the authority to conduct
investigative activity during this period, the Commission staff does
not ordinarily engage in extensive investigative activity between the
time the Commission issues its preliminary determination and the time
it institutes its final investigation.
Under the proposed revisions, however, the Commission will continue
to engage in investigative activity immediately following its
preliminary determination unless that determination is negative or one
of negligible imports, in which event the investigation is terminated
by operation of law. Therefore, section 207.18 is proposed to be
revised to indicate that, if the Commission's preliminary determination
is affirmative, it will state in the notice of its determination that
it publishes in the Federal Register that it will continue its
investigation to reach a final determination under section 705(b) or
735(b). This is in contrast to current practice, in which the
Commission does not ordinarily institute a ``final investigation''
until it receives notice of a preliminary affirmative determination by
Commerce. (Other proposed changes to section 207.18 delete a reference
to former section 303, make clear that the investigation will terminate
in the event of a preliminary determination of negligible imports, as
well as in the event of a negative preliminary determination, and
delete the last three sentences of the rule, which are superseded by
proposed Secs. 207.20 and 207.21.)
Because the Commission will be conducting a continuous
investigation, it proposes amending its regulations so that they no
longer refer to discrete ``preliminary'' and ``final'' investigations.
Of course, the Commission will continue to render discrete preliminary
and final determinations, as required by statute. The portion of the
investigation made in connection with the preliminary determination
will be known as the ``preliminary phase'' of the Commission
investigation, and the portion of the investigation made in connection
with the final determination will be known as the ``final phase'' of
the Commission investigation. The Commission has proposed wording
changes in Secs. 207.12, 207.13, and 207.14 to reflect this. (Sections
207.12 and 207.14 will also be revised to delete references to former
section 303 of the Act.)
The nature of the investigative activity that the Commission will
conduct between the time it issues its preliminary determination and
the time that Commerce issues its preliminary determination is
specified in proposed Sec. 207.20. (As explained further below, current
section 207.20 will be renumbered Sec. 207.21 and the succeeding
sections will be renumbered accordingly.) Under proposed
Sec. 207.20(a), the Director of Operations will publish in the Federal
Register a schedule of investigative activities that will take place
under Sec. 207.20 between the time of the Commission preliminary
determination and the time of the Commerce preliminary determination.
The remaining portions of proposed Sec. 207.20 identify the three major
aspects of this investigative activity.
First, under proposed Sec. 207.20(b), the Director of Operations
will circulate to the parties draft questionnaires for the phase that
the Commission will conduct in connection with its final determination
no later than 14 days after the Commission transmits its opinion(s) in
connection with its preliminary determination to Commerce pursuant to
section 703(f) or 733(f) of the Act. Although the Commission
investigative staff currently circulates draft final questionnaires to
the parties for comment, the proposed regulation will formalize this
process and move it to an earlier point in the investigation.
Second, under proposed Sec. 207.20(c), the parties will file an
issues brief with the Commission at the date specified in the Federal
Register notice, which is to be no later than 28 days before the date
on which Commerce is scheduled to issue its preliminary determination.
(The Commission solicits comment on whether the filing of this brief
should instead be scheduled in relation to the time that the Commission
transmits its preliminary determination opinion(s) to Commerce, i.e.,
that the brief must be filed no later than 75 days after transmission
of the Commission preliminary opinion(s).) Although the issues brief
should contain comments on the draft questionnaires, the Commission
envisions this brief as being considerably more thorough than the
informal comments that parties currently file addressing draft
questionnaires. In the proposed issues brief parties would state their
position on certain threshold issues (e.g., domestic like product,
domestic industry, cumulation, negligible imports) and additionally
identify all issues on which they maintain that the Commission should
collect data through the questionnaire process and provide a supporting
rationale indicating why such data are necessary to the investigation.
The brief should also identify any known sources of information that
the Commission should consult in connection with such issues. For
example, if a party intends to argue that the Commission should
designate multiple domestic like products, or domestic like products
that differ from those designated by the Commission in its preliminary
determination, it will be required in its issues brief to identify each
domestic like product on which the Commission should collect data, and
to provide the legal and factual basis for its position that such
domestic like product(s) should be designated.
Requests for data collection that are not made in the issues brief
may not be raised subsequently by parties in the investigation. To
continue the example above, a party that does not request in its issues
brief that the Commission should designate multiple domestic like
products and seek information concerning each proposed domestic like
product in questionnaires may not assert such a request for the first
time after the Commission has issued its questionnaires. The reason for
this provision is to ensure that the Commission receives data
collection requests from parties early enough in an investigation to
accord it sufficient time to collect data concerning those requests it
deems appropriate. Particularly in light of the new responsibilities
the URAA imposes on the Commission to disclose all information to
parties before the record closes prior to issuance of a final
determination, Commission staff will generally not have sufficient time
to generate data when a party does not assert an argument relating to
or implicating data collection for the first
[[Page 51751]]
time until a late stage of the investigation such as at the hearing or
in a prehearing brief.
Third, under proposed Sec. 207.20(c)(4), within five business days
of the filing of issues briefs, the Director of Operations will conduct
a conference concerning the issues raised in the brief. The purpose of
the conference is to provide a vehicle for the parties to identify and
discuss, and where possible, agree on threshold issues, such as
domestic like product, domestic industry, cumulation and negligible
imports. The conference also should help identify issues that may need
more specific or different data collection than that contemplated in
the draft questionnaires. The Commission will retain authority to
resolve all threshold and data collection issues. These matters, of
course, will not be formally resolved by the Commission at the time of
the conference. However, the Commission will give full consideration to
the outcome of the conference and, to the extent practicable, provide
guidance to the parties to permit them to focus their attention and
resources on the significant issues outstanding in the investigation.
The Commission anticipates that the new procedures proposed in
Sec. 207.20 will permit it to mail questionnaires within a week of
issuance of an affirmative preliminary dumping or subsidy determination
by Commerce. In investigations in which Commerce's preliminary
determination modifies the scope of the investigation from that stated
in its notice of initiation, the date of mailing may be delayed.
Notice of Scheduling of Final Phase Investigation
Secs. 201.13 and Renumbered Secs. 207.21, 207.23, 207.24, 207.25, and
207.29
As previously stated, under the Commission's ``continuous
investigation'' proposal, the Commission will institute its final phase
investigation at the same time it publishes notice of its preliminary
determination. Neither the Commission's notice of institution nor the
Director of Operation's scheduling notice under proposed Sec. 207.20(a)
will be able to contain a complete schedule of activities for the final
phase investigation. The Commission will not be able to schedule dates
for all activities until it is aware of the date on which its final
determination is due. It will not know this date, however, before
Commerce issues its preliminary determination.
Accordingly, the Commission is proposing to revise and retitle
current Sec. 207.20, which is to be renumbered Sec. 207.21. (Because
the Commission is proposing issuance of a new Sec. 207.20, current
Secs. 207.20 through 207.29 will be renumbered Secs. 207.21 through
207.30, respectively). Under the revised rule, upon receipt of an
affirmative preliminary determination from Commerce, the Commission
will issue a Final Phase Notice of Scheduling. This notice will contain
scheduling information equivalent to that provided by the notice of
institution of a final investigation currently issued under
Sec. 207.20(b). The Commission is proposing to amend proposed
renumbered Secs. 207.23 and 207.25 (corresponding respectively to
current Secs. 207.22 and 207.24) to reference this notice of scheduling
in lieu of the current references to the notice of institution. (An
additional amendment proposed for renumbered Sec. 207.23 with respect
to page limits is discussed separately below.)
Proposed Sec. 207.21(c) carries forward two provisions in the
current rules. The first, which now appears in Sec. 207.18, authorizes
the Director of Operations to continue investigative activity as
appropriate should Commerce issue a negative preliminary determination.
The second carries forward a provision currently in Sec. 207.20(b)
indicating that the Commission investigation shall be terminated if
Commerce should make a negative final determination.
Additionally, the Commission is proposing amendments to renumbered
Secs. 207.21, 207.24, and 207.29 (corresponding respectively to current
Secs. 207.20, 207.23, and 207.28) to delete references to former
Sec. 303 of the Act. Further amendments are proposed to Sec. 201.13(m)
and to renumbered Sec. 207.24 to change cross-references to other
renumbered sections.
Single Entry of Appearance
Sections 201.11 and 207.10
To implement its ``continuous investigation'' proposal, the
Commission is proposing to amend Sec. 201.11(b) governing the filing of
notices of appearance in antidumping and countervailing duty
investigations. Under proposed Sec. 201.11(b)(2), a party that files a
timely notice of appearance during the preliminary phase of an
investigation need not file any further notices of appearance before
the Commission in that antidumping or countervailing duty
investigation. A corresponding change is proposed to Sec. 207.10(a) to
eliminate the requirement that petitioners file an entry of appearance
during the final phase of an investigation.
Additionally, under proposed Sec. 201.11(b)(4) a party will still
be able to file a notice of appearance as late as 21 days after
publication in the Federal Register of the Final Phase Notice of
Scheduling. Nevertheless, a party that does not enter an appearance
within 60 days after issuance of the Commission's notice of Preliminary
Determination will be precluded by proposed Sec. 207.20(c)(3) from
raising issues requiring collection of further data by the Commission
subsequently in the investigation.
Page Limits
Renumbered Section 207.23
The current Commission rules impose page limits on postconference
briefs and posthearing briefs. Interim rule Sec. 207.29(b) promulgated
on January 3, 1995, imposes page limits for final comments on factual
information. Additionally, proposed Sec. 207.20(c)(3) would impose a
50-page limit on issues briefs.
The one brief that is not currently subject to page limits in
Commission antidumping and countervailing duty investigations is the
prehearing brief.
The Commission proposes that renumbered Sec. 207.23 (corresponding
to current Sec. 207.22) be amended to impose a 50-page limit on
prehearing briefs. The 50-page limit would encompass all textual
material, including attachments that contain textual material. The page
limit would not apply to nontextual material in briefs (such as a table
of contents) or exhibits (such as an illustration of a product). The
Commission's objective in proposing a page limit is to encourage
parties to present arguments concisely, and to limit argument to those
issues central to a case. The Commission believes that the new issues
brief to be submitted pursuant to proposed Sec. 207.20(c)(3) will
reduce the number of arguments--particularly pertaining to domestic
like product--that must be presented in the prehearing brief and
consequently will permit such briefs to be much shorter. The Commission
also desires to discourage parties from submitting lengthy attachments
to briefs that merely reiterate the arguments presented in the main
brief.
The Commission invites commenters to address whether its proposed
amendment to renumbered Sec. 207.23 will accomplish these objectives
while permitting parties ample opportunity to present evidence and
argument to the Commission. Commenters may further address whether they
believe that page limits for prehearing briefs should be established at
a level different from the
[[Page 51752]]
50-page limit proposed, or whether the Commission should continue not
to impose page limits on prehearing briefs. The Commission also
solicits comments on whether practitioners perceive the existing 50-
page limit on postconference briefs and the proposed 50-page limit on
issues briefs to be helpful and/or useful, whether these limits should
be modified or eliminated, and whether elimination of the page limit on
postconference briefs would be likely materially to change the length
and/or nature of the briefs filed with the Commission.
The Commission is also proposing to amend the page limit contained
in current interim rule Sec. 207.29(b). This is described further below
in the section addressing proposed renumbered Sec. 207.30.
Final Comments
Renumbered Section 207.30
In the January 3, 1995, interim rulemaking notice, the Commission
promulgated interim rule Sec. 207.29, a new provision implementing
Sec. 782(g) of the Act, which was added to the Act by the URAA. Section
782(g) requires that the Commission, before making a final
determination in antidumping or countervailing duty investigations or
review proceedings, cease collecting information and provide parties to
the proceeding with a final opportunity to comment upon all information
on which they had not previously had an opportunity to comment. The
rule states that the Commission will specify a date in final
antidumping and countervailing duty investigations after the filing of
posthearing briefs on which it will make available to all parties to
the investigation all information on which parties have not had an
opportunity to comment. It further states that the parties will be
accorded an opportunity to comment on this information, that any
comments can concern only such information, and that comments may not
exceed 10 double-spaced pages.
After consideration of the comments on the interim rule, the
Commission has decided to propose issuance of interim rule Sec. 207.29
as a final rule, to be renumbered Sec. 207.30, with two substantive
changes. The first change simply clarifies that the ``24-hour rule''
governing final bracketing of BPI pertains to comments filed under rule
207.30. The second change pertains to the page limits on the comments
to be submitted under Sec. 207.30(b). Additionally, the cross-
references in the rule to other provisions that have been renumbered
will be revised.
Comments on the interim rule focused on three areas. First, several
commenters addressed the type of material that they believe the
Commission should release in the disclosure process required by interim
rule Sec. 207.29(a). Pro Trade, SSINA, Quebec and S&S all asserted that
final versions of the staff report, the economic memorandum, and other
non-privileged memoranda that staff prepare for the Commission or
individual Commissioners should be released to the parties.
The Commission currently contemplates that a final version of the
staff report, which will incorporate material that is currently
presented in other non-privileged staff memoranda such as the economics
memorandum and the financial memorandum on variance analysis, will be
released to the parties under APO approximately five days before final
comments under subsection (b) of the interim rule will be due, which
will be approximately four days before the Commission's public briefing
and vote. (The Commission is also continuing to explore release of a
public version of the staff report prior to the time that final
comments are due, as sought by S&S and SSINA. The Commission does not
contemplate that this will be feasible in all investigations, however,
depending on unresolved issues of data confidentiality.) Although the
five-day period is shorter than that requested by commenters Quebec and
SSINA, the Commission believes that earlier release of the staff report
will not provide it sufficient time to investigate information obtained
at the hearing, and that establishing the deadline for comments at a
later time would not provide it sufficient time to analyze the comments
and the record prior to the vote or to prepare its determination.
Moreover, the Commission does not believe that promulgating regulations
requiring release of the staff report to the parties at a specific
point in the investigation is appropriate or necessary, particularly
before it has developed experience in implementing the requirements of
section 782(g) of the Act.
Several comments also responded to the inquiry posed by the
Commission in the preamble to its January 3, 1995, interim rulemaking
notice as to whether the Commission should adopt a procedure for
multiple-stage comments. Those commenters who addressed the issue--Pro
Trade, SSINA, and S&S--uniformly opposed such a procedure. The
Commission agrees that there is insufficient time in antidumping and
countervailing duty investigations for a multiple-stage comment
process. The proposed rule consequently retains the single-stage
comment procedure of the current interim rule.
The third area addressed by commenters concerns the 10-page limit
for final comments specified in interim rule Sec. 207.29(b). Flat-
Rolled Steel contended that this limit was too restrictive and should
be set at 25 pages; SSINA proposed that all respondents be required to
submit a single joint brief of the same length as the petitioner's. The
Commission does not believe that SSINA's proposal is workable in light
of the short deadlines involved.
In response to Flat-Rolled Steel's comment, the Commission
emphasizes that the final comments will be very limited in scope. The
Commission intends to release factual information under APO very
promptly after receipt. (It does not agree with Flat-Rolled Steel,
however, that the timing of APO releases is an appropriate subject for
rulemaking.) Consequently, the Commission anticipates that the parties
will receive a limited amount of new factual information subsequent to
filing of the posthearing brief which may be discussed in the final
comments. The Commission therefore contemplates that such comments will
be quite concise. Nevertheless, the Commission is concerned that the
10-page limit established in the interim rule may be too restrictive.
It is therefore proposing that this page limit be set at 15 pages.
Proprietary Information
Sections 201.6 and 207.7
The Commission is proposing amendments to some of its regulations
pertaining to submission and disclosure of proprietary information.
Section 201.6 is proposed to be revised expressly to allow parties and
the Commission publicly to discuss confidential statistics in
nonquantitative characterizations unless the submitter provides good
cause for confidential treatment of such characterizations. In
particular, the revision would permit the discussion of trends in such
statistics, e.g., whether the difference between two confidential
figures shows an increase or a decrease. This revision would apply only
to confidential business information (CBI) and BPI submitted in
numerical form; textual CBI and BPI would not be disclosed in any form.
Moreover, if the submitter makes a claim for confidential treatment of
trend information, such information must be treated as confidential
until or unless the Secretary rejects the claim of confidentiality
pursuant to section 201.6.
The proposed revision would address a concern expressed by
practitioners
[[Page 51753]]
that the Commission's definition of CBI and BPI may overly restrict use
of such information. The Commission requests comment concerning the
practical effects of the proposed revision in circumstances where some
but not all firms request that their trend data be kept confidential.
The Commission is additionally proposing to revise the procedure in
Sec. 201.6(f) for filing and handling appeals from approval by the
Secretary of requests for confidential treatment. Section 201.6(f) as
currently in effect requires that an appeal must comply with certain
rules applicable to requests under the Freedom of Information Act
(FOIA). This connection with the FOIA rules creates an unnecessary
step, inasmuch as the Secretary has already acted upon the matter. The
proposed amendment to Sec. 201.6(f) would establish a procedure for
appeals from approvals of requests for confidential treatment that
essentially parallels the procedure now specified in Sec. 201.6(e) for
appeals from denials of such requests.
Another proposed revision to section 201.6 would use the term
``nondisclosable confidential business information'' to describe BPI
not subject to disclosure under APO pursuant to section 777(c)(1)(A) of
the Act. Corresponding revisions to Sec. 207.7(a)(1), (f)(2), and (g)
would clarify the procedure for submitting such information.
Another proposed change to Sec. 207.7 relates to the proposed
amendment to Sec. 201.11 discussed above. Section 207.7(a)(2) currently
states that, when an APO application has been approved with respect to
applicants representing an interested party, additional applicants
representing that party may file applications after the deadline for
entries of appearance but no later than five days before the deadline
for filing posthearing briefs in the investigation, or before the
deadline for filing briefs in a preliminary investigation. The purpose
of the five day deadline(s) is to finalize service lists before
interested parties must file and serve their briefs. Accordingly, the
proposed amendment to Sec. 207.7(a)(2) indicates that APO applications
for additional applicants must also be filed no later than five days
before the deadline for filing issues briefs pursuant to proposed rule
Sec. 207.20(c)(3). Additionally, Sec. 207.7(b)(2) and (b)(4) will be
amended to refer to ``the preliminary phase of an investigation'' in
lieu of ``preliminary investigation.''
``24-Hour'' Rule
Section 207.3
The Commission is proposing to amend the ``24-hour'' rule governing
final bracketing of BPI, to clarify absolutely that the only changes
that may be made in the 24-hour BPI version of documents are changes in
bracketing and deletion of BPI. Any other changes, including
typographical changes, are not allowed unless the Commission grants an
extension of time to file an amended document pursuant to rule
Sec. 201.14(b)(2). In several instances, parties have made changes
other than those affecting bracketing and deletion of BPI in the briefs
filed under this rule, in some instances triggering an investigation
into whether there was a violation of the 24-hour rule. The proposed
amended language to Sec. 207.3(c) is intended to obviate similar
misinterpretations of the rule. An additional amendment is proposed to
Sec. 207.3(b) to revise a cross-reference to a renumbered regulation.
Opportunity for Nonparty Participation
Section 207.9
The URAA added a new section 777(h) to the Act, which requires the
Commission to provide an opportunity for industrial users of subject
merchandise, and, if the merchandise is sold at the retail level,
representative consumer organizations, to submit relevant information
concerning material injury by reason of subject imports. The Commission
is proposing to add a new Sec. 207.9 to the Commission rules to
implement the requirement of section 777(h) that industrial users and
consumer organizations be provided an opportunity to participate in
Commission antidumping and countervailing duty investigations. Proposed
Sec. 207.9, like section 777(h), does not, however, confer interested
party status on industrial users and consumer organizations. Unless
such entities qualify as interested parties under section 771(9) of the
Act, they do not have the rights that the Act and the Commission rules
afford to interested parties.
Other Conforming Changes
Sections 207.1, 207.2, 207.8, and 207.40
In its January 3, 1995, notice of interim rulemaking, the
Commission made amendments to Secs. 207.1, 207.2(e), 207.8, 207.10,
207.11, and 207.40 to conform these provisions with the URAA. The only
one of these amendments which was the subject of comment was the
amendment to section 207.8, which states that the Commission may use
``facts otherwise available'' whenever any party or any other person
fails to respond adequately to a subpoena or refuses or is unable to
produce information in a timely manner and in the form required, or
otherwise significantly impedes an investigation. Pro Trade suggested
the Commission amend the regulation to limit the instances in which the
Commission would use ``facts otherwise available.'' The Commission
believes, however, that the interim regulation conforms to the statute
as drafted.
Accordingly, the Commission proposes issuance in final form of
Secs. 207.1, 207.2(e), 207.8, and 207.40, as these provisions were
amended in the January 3, 1995, notice of interim rulemaking. As
discussed above, the Commission has proposed further amendments to
sections 207.10 and 207.11.
In the January 3, 1995, notice of interim rulemaking, the
Commission additionally promulgated a new Sec. 207.46 for
investigations under section 753 of the Act. Several comments
concerning this interim rule address matters which also implicate the
type of procedures the Commission should establish for ``sunset''
reviews under section 751(c) of the Act. The instant rulemaking has
focused primarily on implementing changes to procedures in final
Commission antidumping and countervailing duty investigations required
by the URAA, and the Commission is not prepared to address the question
of ``sunset'' reviews at this time. Consequently, the Commission is not
proposing in the instant rulemaking proceeding to issue Sec. 207.46 in
final form. Section 207.46 will remain in effect as an interim rule.
Comments
The Commission solicits comments on the proposed amendments to its
part 201 and 207 rules, as well as the proposed changes to its internal
procedures concerning antidumping and countervailing duty
investigations described above. Such comments should be filed within 75
days of publication of this notice in the Federal Register.
The Commission also solicits comments on several proposed changes
to its procedures in antidumping and countervailing duty investigations
that it is contemplating which do not require, and are not related to,
changes in the Commission's rules. The Commission is particularly
interested in commenters' views concerning whether the proposals serve
the objectives of: (1) promoting transparency; (2) promoting
consistent, well-supported and legally
[[Page 51754]]
defensible determinations; (3) minimizing burdens to all participants;
and (4) minimizing cost of process to the Commission. These changes are
as follows:
1. Preliminary phase investigation conferences. As in hearings held
in conjunction with final phase investigations, allow questioning by
opposing parties; the time spent on questions (but not responses) and
rebuttal/closing statements would come out of overall time allocations.
2. Questionnaires. Adopt a new format for and revise the basic
content of Commission questionnaires to reduce respondent burden and
better tailor questions to investigative issues. Copies of the proposed
new generic producer, importer, and purchaser questionnaires may be
obtained for comment from the Commission's Office of Investigations
(202-205-3160). Representative of the changes being proposed, the new
producer questionnaire is about half the length of the current one and
incorporates the following changes:
a. The questionnaire would be in two parts, the first consisting of
general instructions/definitions, and the second consisting of the data
requests (a transmittal letter, a ``fact sheet'' on Title VII
investigations, and the Commission's institution notice would also
accompany each questionnaire);
b. Questions on capacity, production, shipments, inventories,
channels of distribution, and employment are combined onto one page;
c. Current questions seeking employment and financial data on
overall establishment operations are eliminated (certain overall
establishment financial data requests may be added if deemed necessary
by the Commission, or if respondents are unable to provide product-line
data);
d. Only the total quantity and value of sales are requested for
questions seeking pricing data for particular products, as opposed to
that information plus largest sale value, quantity, and shipping costs
in current questionnaires (this proposal initially applies to
questionnaires for preliminary phase investigations; it may be
appropriate to request more information in final phase investigations
if deemed necessary by the Commission); and
e. The current requests for lost sales and revenue allegations are
eliminated in questionnaires sent in preliminary phase investigations
to petitioners, and eliminated altogether in questionnaires for final
phase investigations. As explained above, petitioners would be required
to furnish their allegations in the petition, thus allowing the
Commission more time to investigate them.
The new producer questionnaire for use in preliminary phase
investigations contains provisions for providing certain information to
Commerce, on its request, if it has questions concerning domestic
industry support for the petition. Questionnaires for final phase
investigations would not contain those provisions.
The Commission also solicits comments on other possible changes to
questionnaires, such as: (1) requesting only half-year ``interim-
period'' data as opposed to the current practice of requesting
quarterly interim-period data; (2) electronic transmission,
preparation, and submission of questionnaires; (3) a mechanism that
would allow firms to not repeat information provided in preliminary
questionnaires in final questionnaires if the questions are the same
and the information originally provided was correct; and (4) increased
use of sampling in developing mailing lists of questionnaire recipients
in appropriate circumstances (i.e., agricultural domestic industry with
multiple producers).
Finally, the Commission will endeavor to increase coordination and
cooperation with the Department of Commerce with respect to data
collection, such as exploring the possibility of ``piggy-backing'' on
Commerce's questionnaire to collect foreign-industry data directly from
the exporting companies investigated by Commerce, and using joint
telegrams to U.S. embassies.
3. Briefing. The Commission solicits comments on its proposed plans
to reduce by two days the period between the Commission hearing and the
submission of posthearing briefs in order to provide the Commission
more time to consider these briefs, prior to the closing of the record.
In particular, the Commission solicits comments on how significantly
this scheduling change will affect the parties' ability to prepare
their posthearing briefs, including responding to Commissioners' and
Commission staff's questions from the hearing.
4. Reports. Eliminate the separate financial memorandum on variance
analysis and incorporate the analysis into staff reports when
appropriate.
Eliminate the separate economics memorandum and incorporate the
analysis into staff reports.
Release the public version of the staff report to parties at the
conclusion of the investigation but publish only the Commission's
determination and Commissioners' opinions. Determinations and opinions
are currently made available electronically on the Internet. As soon as
certain technical problems related to the transmission of graphic
presentations are resolved, the Commission would make public versions
of reports similarly available.
The Commission also solicits comments on whether or not it is
useful to parties and/or the public to include its own and Commerce's
Federal Register notices and conference/hearing witness lists in staff
reports, and whether the public version of the staff report should
continue to be included in its published report.
5. Verification policies. The Commission solicits comments on the
following policies related to on-site verification of data received
during the course of investigations:
a. General--Verifications will normally be conducted in final phase
investigations. In preliminary phase Title VII investigations, no on-
site verifications will be attempted except under exceptional
circumstances.
b. Questionnaire type--The extent and scope of the on-site
verification efforts will focus mainly on producer questionnaire
responses, with verifications of importer, purchaser, and foreign
producer questionnaire responses as appropriate.
c. Company selection--The guidelines for the selection of companies
to be verified is documented in the updated Verification Handbook. The
criteria include such factors as inclusion of the petitioner(s), market
share, data discrepancies, and submissions from APO parties.
d. Scheduling of the verification--Best efforts will be made to
complete producer questionnaire verifications and formally release
Verification Reports to APO parties and the Commission prior to the
hearing date.
e. Procedures--The verification covers all questionnaire data,
including trade, production, employment, pricing, and financial data.
The Verification Handbook covers the detailed procedures for the on-
site verification of companies.
f. Verification report--A detailed verification report will be
prepared after verification. The report, which will be signed and
dated, will indicate both the verification procedures utilized as well
as the results. Additional information collected at verification may be
included in the report. Dating and initialing the Verification Handbook
is not necessary, but may be done in verifications involving new
Commission auditors.
g. Documentation--The collection of company documents will only be
[[Page 51755]]
undertaken when such documents are believed necessary to document
contested, complex, or questionable information submitted to the
Commission. Supporting documentation will not be obtained solely for
the purpose of documenting a data check. All documents obtained at
verification will become exhibits to the verification report.
h. Commerce--In cases where Commerce has verified data submitted by
an importer which is also the subject of a Commission verification,
Commerce's verification report will be reviewed for information that
may be useful.
i. Participants--Verifications will be conducted by auditors. Other
team members or Commission staffers also may participate.
List of Subjects
19 CFR Part 201
Administrative practice and procedure, Investigations, Imports.
19 CFR Part 207
Administrative practice and procedure, Antidumping, Countervailing
duties, Investigations.
For the reasons stated in the preamble, 19 CFR parts 201 and 207
are proposed to be amended as set forth below:
PART 201--[AMENDED]
1. The authority citation for part 201 continues to read as
follows:
Authority: Sec. 335 of the Tariff Act of 1930 (19 U.S.C. 1335)
and sec. 603 of the Trade Act of 1974 (19 U.S.C. 2482), unless
otherwise noted.
2. Paragraphs (a), (b), and (f) of Sec. 201.6 are revised to read
as follows:
Sec. 201.6 Confidential business information.
(a) Definitions. (1) Confidential business information is
information which concerns or relates to the trade secrets, processes,
operations, style of works, or apparatus, or to the production, sales,
shipments, purchases, transfers, identification of customers,
inventories, or amount or source of any income, profits, losses, or
expenditures of any person, firm, partnership, corporation, or other
organization, or other information of commercial value, the disclosure
of which is likely to have the effect of either impairing the
Commission's ability to obtain such information as is necessary to
perform its statutory functions, or causing substantial harm to the
competitive position of the person, firm, partnership, corporation, or
other organization from which the information was obtained, unless the
Commission is required by law to disclose such information. The term
``confidential business information'' includes ``proprietary
information'' within the meaning of Sec. 777(b) of the Tariff Act of
1930 (19 U.S.C. 1677f(b)). Nonnumerical characterizations of numerical
confidential business information (e.g. discussion of trends) will be
treated as confidential business information only at the request of the
submitter for good cause shown.
(2) Nondisclosable confidential business information is privileged
information, classified information, or specific information of a type
for which there is a clear and compelling need to withhold from
disclosure. Special rules for the handling of such information are set
out in Sec. 207.7 of this chapter.
(b) Procedure for submitting business information in confidence.
(1) A request for confidential treatment of business information shall
be addressed to the Secretary, United States International Trade
Commission, 500 E Street SW., Washington, DC 20436, and shall indicate
clearly on the envelope that it is a request for confidential
treatment.
(2) In the absence of good cause shown, any request relating to
material to be submitted during the course of a hearing shall be
submitted at least three (3) working days prior to the commencement of
such hearing.
(3) With each submission of, or offer to submit, business
information which a submitter desires to be treated as confidential
business information, under paragraph (a) of this section, the
submitter shall provide the following, which may be disclosed to the
public:
(i) A written description of the nature of the subject information;
(ii) A justification for the request for its confidential
treatment;
(iii) A certification in writing under oath that substantially
identical information is not available to the public;
(iv) A copy of the document:
(A) Clearly marked on its cover as to the pages on which
confidential information can be found;
(B) With information for which confidential treatment is requested
clearly identified by means of brackets; and
(C) With information for which nondisclosable confidential
treatment is requested clearly identified by means of double brackets
(except when submission of such document is withheld in accord with
paragraph (b)(4) of this section); and
(v) A nonconfidential copy of the documents as required by
Sec. 201.8(d).
(4) The submission of the documents itemized in paragraph (b)(3) of
this section will provide the basis for rulings on the confidentiality
of submissions, including rulings on the confidentiality of submissions
offered to the Commission which have not yet been placed under the
possession, control, or custody of the Commission. The submitter has
the option of providing the business information for which confidential
treatment is sought at the time the documents itemized in paragraph
(b)(3) of this section are provided or of withholding them until a
ruling on their confidentiality has been issued.
* * * * *
(f) Appeals from approval of confidential treatment. (1) For good
cause shown, the Commission may grant an appeal from an approval by the
Secretary of a request for confidential treatment of a submission. Any
appeal filed shall be addressed to the Chairman, United States
International Trade Commission, 500 E Street, SW., Washington, DC
20436, shall show that a copy thereof has been served upon the
submitter, and shall clearly indicate that it is a confidential
submission appeal. An appeal may be made within twenty (20) days of the
approval by the Secretary of a request for confidential treatment or
whenever the approval or denial has not been forthcoming within ten
(10) days (excepting Saturdays, Sundays, and Federal legal holidays) of
the receipt of a confidential treatment request, unless an extension
notice in writing with the reasons therefor has been provided the
person requesting confidential treatment.
(2) An appeal will be decided within twenty (20) days of its
receipt (excepting Saturdays, Sundays, and Federal legal holidays)
unless an extension notice, in writing with the reasons therefor, has
been provided the person making the appeal.
* * * * *
3. Paragraph (b) of Sec. 201.11 is revised to read as follows:
Sec. 201.11 Appearance in an investigation as a party
* * * * *
(b) Time for filing. (1) Except in the case of investigations
conducted under part 207 of this chapter, each entry of appearance
shall be filed with the Secretary not later than twenty-one (21) days
after publication of the Commission's notice of investigation in the
Federal Register.
(2) In the case of investigations conducted under Subpart B of part
207 of this chapter, each entry of appearance shall be filed with the
Secretary not
[[Page 51756]]
later than seven (7) days after publication of the Commission's notice
of investigation in the Federal Register. A party that files a notice
of appearance during such time need not file an additional notice of
appearance during the investigation conducted under subpart C of part
207 of this chapter.
(3) In the case of investigations conducted under subpart C of part
207 of this chapter, a party may file an entry of appearance within
sixty (60) days of issuance of the notice of preliminary determination
in the Federal Register. A party that does not file a notice of
appearance by such time will be precluded pursuant to Sec. 207.20(c)(3)
from raising issues requiring collection of further data by the
Commission subsequently in the investigation.
(4) Notwithstanding paragraphs (b)(2) and (b)(3) of this section, a
party may file an entry of appearance in the investigation conducted
under subpart C of part 207 of this chapter during the twenty-one (21)
days following publication in the Federal Register of the Final Phase
Notice of Scheduling described in Sec. 207.21 of this chapter.
* * * * *
4. Paragraph (m) of Sec. 201.13 is revised to read as follows:
Sec. 201.13 Conduct of nonadjudicative hearings.
* * * * *
(m) Closed sessions. (1) Upon a request filed by a party to the
investigation no later than seven (7) days prior to the date of the
hearing (or three (3) days prior to the date of a conference conducted
under Sec. 207.15 of this chapter) that:
(i) Identifies the subjects to be discussed;
(ii) Specifies the amount of time requested; and
(iii) Justifies the need for a closed session with respect to each
subject to be discussed, the Commission (or the Director, as defined in
Sec. 207.2(c) of this chapter, for a conference under Sec. 207.15 of
this chapter) may close a portion of a hearing (or conference under
Sec. 207.15 of this chapter) held in any investigation in order to
allow such party to address confidential business information, as
defined in Sec. 201.6, during the course of its presentation.
(2) In addition, during each hearing held in an investigation
conducted under Sec. 202 of the Trade Act, as amended, or in an
investigation under title VII of the Tariff Act as provided in
Sec. 207.24 of this chapter, following the public presentation of the
petitioner(s) and that of each panel of respondents, the Commission
will, if it deems it appropriate, close the hearing in order to allow
Commissioners to question parties and/or their representatives
concerning matters involving confidential business information.
PART 207--[AMENDED]
5. The authority citation for part 207 is revised to read as
follows:
Authority: 19 U.S.C. 1336, 1671-1677n, 2482, 3513.
6. Paragraphs (b) and (c) of Sec. 207.3 are revised to read as
follows:
Sec. 207.3 Service, filing, and certification of documents.
* * * * *
(b) Service. Any party submitting a document for inclusion in the
record of the investigation shall, in addition to complying with
Sec. 201.8 of this chapter, serve a copy of each such document on all
other parties to the investigation in the manner prescribed in
Sec. 201.16 of this chapter. If a document is filed before the
Secretary's issuance of the service list provided for in Sec. 201.11 of
this chapter or the administrative protective order list provided for
in Sec. 207.7, the document need not be accompanied by a certificate of
service, but the document shall be served on all appropriate parties
within two (2) days of the issuance of the service list or the
administrative protective order list and a certificate of service shall
then be filed. Notwithstanding Sec. 201.16 of this chapter, petitions,
briefs, and testimony filed by parties pursuant to Secs. 207.10,
207.15, 207.23, 207.24, and 207.25 shall be served by hand or, if
served by mail, by overnight mail or its equivalent. Failure to comply
with the requirements of this rule may result in removal from status as
a party to the investigation. The Commission shall make available to
all parties to the investigation a copy of each document, except
transcripts of conferences and hearings, business proprietary
information, privileged information, and information required to be
served under this section, placed in the record of the investigation by
the Commission.
(c) Filing. Documents to be filed with the Commission must comply
with applicable rules, including Sec. 201.8 of this chapter. If the
Commission establishes a deadline for the filing of a document, and the
submitter includes business proprietary information in the document,
the submitter is to file and, if the submitter is a party, serve the
business proprietary version of the document on the deadline and may
file and serve the nonbusiness proprietary version of the document no
later than one business day after the deadline for filing the document.
The business proprietary version shall enclose all business proprietary
information in brackets and have the following warning marked on every
page: ``Bracketing of BPI not final for one business day after date of
filing.'' The bracketing becomes final one business day after the date
of filing of the document, i.e., at the same time as the nonbusiness
proprietary version of the document is due to be filed. Until the
bracketing becomes final, recipients of the document may not divulge
any part of the contents of the document to anyone not subject to the
administrative protective order issued in the investigation. If the
submitter discovers it has failed to bracket correctly, the submitter
may file a corrected version or portion of the business proprietary
document at the same time as the nonbusiness proprietary version is
filed. No changes to the document other than bracketing and deletion of
business proprietary information, including typographical changes, are
permitted after the deadline unless an extension of time is granted to
file an amended document pursuant to section 201.14(b)(2). Failure to
comply with this paragraph may result in the striking from the record
of all or a portion of a submitter's document.
7. Paragraphs (a), (f)(2), (f)(3), and (g) of Sec. 207.7 are
revised to read as follows:
Sec. 207.7 Limited disclosure of certain business proprietary
information under administrative protective order.
(a) (1) Disclosure. Upon receipt of a timely application filed by
an authorized applicant, as defined in paragraph (a)(3) of this
section, which describes in general terms the information requested,
and sets forth the reasons for the request (e.g., all business
proprietary information properly disclosed pursuant to this section for
the purpose of representing an interested party in investigations
pending before the Commission), the Secretary shall make available all
business proprietary information contained in Commission memoranda and
reports and in written submissions filed with the Commission at any
time during the investigation (except nondisclosable confidential
business information) to the authorized applicant under an
administrative protective order described in paragraph (b) of this
section. The term ``business proprietary information'' has the same
meaning as the term ``confidential business information'' as defined in
Sec. 201.6 of this chapter.
(2) Application. An application under paragraph (a)(1) of this
section must be made by an authorized applicant on a
[[Page 51757]]
form adopted by the Secretary or a photocopy thereof. An application on
behalf of a petitioner, a respondent, or another party must be made no
later than the time that entries of appearance are due pursuant to
Sec. 201.11 of this chapter. In the event that two or more authorized
applicants represent one interested party who is a party to the
investigation, the authorized applicants must select one of their
number to be lead authorized applicant. The lead authorized applicant's
application must be filed no later than the time that entries of
appearance are due. Provided that the application is accepted, the lead
authorized applicant shall be served with business proprietary
information pursuant to paragraph (f) of this section. The other
authorized applicants representing the same party may file their
applications after the deadline for entries of appearance but at least
five (5) days before the deadline for filing posthearing briefs in the
investigation, the deadline for filing the brief required by
Sec. 207.20(c), or the deadline for filing briefs in the preliminary
phase of an investigation, and shall not be served with business
proprietary information.
(3) Authorized applicant. (i) Only an authorized applicant may file
an application under this subsection. An authorized applicant is:
(A) An attorney for an interested party which is a party to the
investigation;
(B) A consultant or expert under the direction and control of a
person under paragraph (a)(3)(i)(A) of this section;
(C) A consultant or expert who appears regularly before the
Commission and who represents an interested party which is a party to
the investigation; or
(D) A representative of an interested party which is a party to the
investigation, if such interested party is not represented by counsel.
(ii) In addition, an authorized applicant must not be involved in
competitive decisionmaking for an interested party which is a party to
the investigation. Involvement in ``competitive decisionmaking''
includes past, present, or likely future activities, associations, and
relationships with an interested party which is a party to the
investigation that involve the prospective authorized applicant's
advice or participation in any of such party's decisions made in light
of similar or corresponding information about a competitor (pricing,
product design, etc.).
(4) Forms and determinations. (i) The Secretary may adopt, from
time to time, forms for submitting requests for disclosure pursuant to
an administrative protective order incorporating the terms of this
rule. The Secretary shall determine whether the requirements for
release of information under this rule have been satisfied. This
determination shall be made concerning specific business proprietary
information as expeditiously as possible but in no event later than
fourteen (14) days from the filing of the information, or seven (7)
days in the preliminary phase of an investigation, except if the
submitter of the information objects to its release or the information
is unusually voluminous or complex, in which case the determination
shall be made within thirty (30) days from the filing of the
information, or ten (10) days in the preliminary phase of an
investigation. The Secretary shall establish a list of parties whose
applications have been granted. The Secretary's determination shall be
final for purposes of review by the U.S. Court of International Trade
under Sec. 777(c)(2) of the Act.
(ii) Should the Secretary determine pursuant to this section that
materials sought to be protected from public disclosure by a person do
not constitute business proprietary information or were not required to
be served under paragraph (f) of this section, then the Secretary
shall, upon request, issue an order on behalf of the Commission
requiring the return of all copies of such materials served in
accordance with paragraph (f) of this section.
(iii) The Secretary shall release business proprietary information
only to an authorized applicant whose application has been accepted and
who presents the application along with adequate personal
identification; or a person described in paragraph (b)(1)(iv) of this
section who presents a copy of the statement referred to in that
paragraph along with adequate personal identification.
(iv) An authorized applicant granted access to business proprietary
information in the preliminary phase of an investigation may, subject
to paragraph (c) of this section, retain such business proprietary
information during any final phase of that investigation, provided that
the authorized applicant has not lost his authorized applicant status
(e.g., by terminating his representation of an interested party who is
a party). When retaining business proprietary information pursuant to
this paragraph, the authorized applicant need not file a new
application in the final phase of the investigation, but shall list in
a submission to the Commission in the final phase of the investigation
the authorized applicants in the same firm and the persons employed or
supervised by the authorized applicant who continue to participate in
the investigation.
* * * * *
(f) Service. * * *
(2) If a party's request under paragraph (g) of this section is
granted, the Secretary shall accept the information exempt from
disclosure into the record. The party shall serve the submission
containing such information in accordance with the requirements of
Sec. 207.3(b) and paragraph (f)(1) of this section, with the
information redacted from the copies served.
(3) The Secretary shall not accept for filing into the record of an
investigation submissions filed without a proper certificate of
service. Failure to comply with paragraph (f) of this section may
result in denial of party status and such sanctions as the Commission
deems appropriate. Business proprietary information in submissions must
be dealt with as required by Sec. 207.3(c).
(g) Exemption from disclosure. (1) In general. Any person may
request exemption from the disclosure of business proprietary
information under administrative protective order, whether the person
desires to include such information in a petition filed under
Sec. 207.10 of this chapter, or any other submission to the Commission
during the course of an investigation. Such a request shall only be
granted if the Secretary finds that such information is nondisclosable
confidential business information as defined in Sec. 201.6(a)(2) of
this chapter. The request will be granted or denied not later than
thirty (30) days (ten (10) days in a preliminary phase investigation)
after the date on which the request is filed.
(2) Request for exemption. A request for exemption from disclosure
must be filed with the Secretary in writing with the reasons therefor.
At the same time as the request is filed, one copy of the business
proprietary information in question must be lodged with the Secretary
solely for the purpose of obtaining a determination as to the request.
The business proprietary information for which exemption from
disclosure is sought shall remain the property of the requester, and
shall not become or be incorporated into any agency record until such
time as the request is granted. A request should, when possible, be
filed two business days prior to the deadline, if any, for filing the
document in which the information for which exemption from disclosure
is sought is proposed to be included. If the request is denied, the
copy of the information lodged with the Secretary shall promptly be
returned to the requester. Such a request shall only
[[Page 51758]]
be granted if the Secretary finds that such information is privileged
information, classified information, or specific information of a type
for which there is a clear and compelling need to withhold from
disclosure. The Secretary shall promptly notify the requester as to
whether the request has been approved or denied.
(3) Procedure if request is approved. If the request is approved,
the person shall file three versions of the submission containing the
nondisclosable confidential business information in question. One
version shall contain all business proprietary information, bracketed
in accordance with Secs. 201.6 and 207.3 of this chapter. The other two
versions shall conform to and be filed in accordance with the
requirements of Secs. 201.6 and 207.3 of this chapter, except that the
specific information as to which exemption from disclosure was granted
shall be redacted from the submission.
(4) Procedure if request is denied. If the request is denied, the
copy of the information lodged with the Secretary shall promptly be
returned to the requester. The requester may file the submission in
question without that information, in accordance with the requirements
of Sec. 207.3.
8. A new Sec. 207.9 is added to subpart A to read as follows:
Sec. 207.9 Opportunity for nonparty participation.
In any investigation conducted under this part, the Commission
shall provide an opportunity for industrial users, and, if the
merchandise is sold at the retail level, for representative consumer
organizations, to submit relevant information to the Commission
concerning material injury by reason of dumped or subsidized imports.
Each notice published in the Federal Register in connection with an
investigation conducted under this Part shall include a statement
informing industrial users and consumer organizations of the
opportunity to participate in the investigation.
9. Section 207.12 is revised to read as follows:
Sec. 207.12 Notice of preliminary phase of investigation.
Upon receipt by the Commission of a petition under Sec. 207.10 or
receipt of notice that the administering authority has commenced an
investigation under section 702(a) or section 732(a) of the Act, the
Director shall, as soon as practicable after consultation with the
administering authority, institute an investigation and commence the
preliminary phase of the investigation under section 703(a) or section
733(a) of the Act and shall publish a notice to that effect in the
Federal Register.
10. Section 207.13 is revised to read as follows:
Sec. 207.13 Cooperation with administering authority; preliminary
phase of investigation.
Subsequent to institution of an investigation pursuant to
Sec. 207.12, the Director shall conduct such investigation as he deems
appropriate. Information adduced in the investigation shall be placed
on the record. The Director shall cooperate with the administering
authority in its determination of the sufficiency of a petition and in
its decision whether to permit any proposed amendment to a petition.
Notwithstanding Secs. 201.11(c) and 201.14(b) of this chapter, late
filings in the preliminary phase of an investigation shall be referred
to the Director, who shall determine whether to accept such filing for
good cause shown by the person making the filing.
11. Section 207.14 is revised to read as follows:
Sec. 207.14 Negative petition determination.
Upon receipt by the Commission of notice from the administering
authority under section 702(d) or section 732(d) of the Act that the
administering authority has made a negative petition determination
under section 702(c)(3) or section 732(c)(3) of the Act, the
investigation begun pursuant to Sec. 207.12 shall terminate. The
Director shall notify all persons who have received requests for
information from him of the termination.
12. Section 207.18 is revised to read as follows:
Sec. 207.18 Notice of preliminary determination.
Whenever the Commission makes a preliminary determination, the
Secretary shall serve copies of the determination and a public version
of the staff report on the petitioner, other parties to the
investigation, and the administering authority. The Secretary shall
publish a notice of such determination in the Federal Register. If the
Commission's determination is negative, or that imports are negligible,
the investigation shall be terminated. If the Commission's
determination is affirmative, the notice shall announce commencement of
the final phase of the investigation.
13. Sections 207.20 through 207.29 are redesignated as follows:
------------------------------------------------------------------------
Old section New section
------------------------------------------------------------------------
207.20............................................... 207.21
207.21............................................... 207.22
207.22............................................... 207.23
207.23............................................... 207.24
207.24............................................... 207.25
207.25............................................... 207.26
207.26............................................... 207.27
207.27............................................... 207.28
207.28............................................... 207.29
207.29............................................... 207.30
------------------------------------------------------------------------
14. A new Sec. 207.20 is added to read as follows:
Sec. 207.20 Investigative activity following preliminary
determination.
(a) If the Commission's preliminary determination is affirmative,
the Director shall continue investigative activities pending notice by
the administering authority of its preliminary determination under
section 703(b) or section 733(b) of the Act. The Director shall publish
in the Federal Register a schedule for the investigative activities to
be conducted pursuant to this section.
(b) The Director shall serve on each party who is a party to the
investigation draft questionnaires for use in any final phase
Commission investigation no later than 14 days after the date on which
the Commission transmits the facts and conclusions on which its
preliminary determination is based to the administering authority
pursuant to section 703(f) or section 733(f) of the Act.
(c) Each party who is a party to the investigation shall submit to
the Commission on a date to be specified in the schedule to be
published pursuant to paragraph (a) of this section, which shall be no
later than 28 days before the date on which the administering authority
is scheduled to issue its preliminary determination in the
investigation, a brief including the following:
(1) Comments on the draft questionnaire circulated pursuant to
paragraph (b) of this section;
(2) Identification of the party's position on the issues in the
investigation;
(3) Identification of issues on which data collection through
questionnaires is requested. The brief shall include a supporting
rationale for those issues, and shall identify any known sources of
information that Commission staff should consult in connection with
such issues. A party will not be permitted to raise subsequently in the
investigation arguments concerning data collection not identified in
the brief. The brief shall not exceed fifty (50) pages of textual
material, double spaced and
[[Page 51759]]
single-sided, on stationery measuring 8\1/2\x11 inches; and
(4) Within five (5) business days of the filing of the briefs
referred to in paragraph (c)(3) of this section, the Director shall
hold a conference concerning the issues raised in the briefs.
15. Redesignated Sec. 207.21 is revised to read as follows:
Sec. 207.21 Final Phase Notice of Scheduling
(a) Notice from the administering authority of an affirmative
preliminary determination under section 703(b) or section 733(b) of the
Act and notice from the administering authority of an affirmative final
determination under section 705(a) or section 735(a) of the Act shall
be deemed to occur on the date on which the transmittal letter of such
determination is received by the Secretary from the administering
authority or the date on which notice of such determination is
published in the Federal Register, whichever shall first occur.
(b) Upon receipt of notice from the administering authority of an
affirmative preliminary determination under section 703(b) or section
733(b) of the Act or, if the administering authority's preliminary
determination is negative, notice of an affirmative final determination
under section 705(a) or section 735(a) of the Act, the Commission shall
publish in the Federal Register a Final Phase Notice of Scheduling.
(c) If the administering authority's preliminary determination is
negative, the Director shall continue such investigative activities as
he deems appropriate pending a final determination by the administering
authority under section 705(a) or section 735(a) of the Act. Upon
receipt by the Commission of notice from the administering authority of
its final negative determination under section 705(a) or section 735(a)
of the Act, the corresponding Commission investigation shall be
terminated.
16. Redesignated Sec. 207.23 is revised to read as follows:
Sec. 207.23 Prehearing brief.
Each party who is an interested party shall submit to the
Commission, no later than four (4) business days prior to the date of
the hearing specified in the notice of scheduling, a prehearing brief.
Prehearing briefs shall be signed, shall include a table of contents,
and shall not exceed fifty (50) pages of textual material, double
spaced and single-sided, on stationery measuring 8\1/2\ x 11 inches.
The prehearing brief should present a party's case concisely and shall,
to the extent possible, refer to the record and include information and
arguments which the party believes relevant to the subject matter of
the Commission's determination under section 705(b) or section 735(b)
of the Act. Any person not an interested party may submit a brief
written statement of information pertinent to the investigation within
the time specified for filing of prehearing briefs.
17. Redesignated Sec. 207.25 is revised to read as follows:
Sec. 207.25 Posthearing briefs.
Any party may file a posthearing brief concerning the information
adduced at or after the hearing with the Secretary within a time
specified in the notice of scheduling or by the presiding official at
the hearing. No such posthearing brief shall exceed fifteen (15) pages
of textual material, double spaced and single sided, on stationery
measuring 8\1/2\ x 11 inches. In addition, the presiding official may
permit persons to file answers to questions or requests made by the
Commission at the hearing within a specified time. The Secretary shall
not accept for filing posthearing briefs or answers which do not comply
with this section.
18. Redesignated Sec. 207.29 is revised to read as follows:
Sec. 207.29 Publication of notice of determination.
Whenever the Commission makes a final determination, the Secretary
shall serve copies of the determination and the nonbusiness proprietary
version of the final staff report on the petitioner, other parties to
the investigation, and the administering authority. The Secretary shall
publish notice of such determination in the Federal Register.
19. Except for Sec. 207.46, the interim rules amending part 207
published in the Federal Register issue of January 3, 1995 at 60 FR 18
are proposed to be adopted as final, with the following changes:
a. Section 207.10 is revised to read as follows:
Sec. 207.10 Filing of petition with the Commission.
(a) Filing of the petition. Any interested party who files a
petition with the administering authority pursuant to section 702(b) or
section 732(b) of the Act in a case in which a Commission determination
under title VII of the Act is required, shall file copies of the
petition, pursuant to Sec. 201.8 of this chapter, with the Secretary on
the same day the petition is filed with the administering authority. If
the petition complies with the provisions of Sec. 207.11, it shall be
deemed to be properly filed on the date on which the requisite number
of copies of the petition is received by the Secretary. The Secretary
shall notify the administering authority of that date. Notwithstanding
Sec. 201.11 of this chapter, a petitioner need not file an entry of
appearance in the preliminary phase of the investigation instituted
upon the filing of its petition, which shall be deemed an entry of
appearance.
(b) Service of the petition. (1) The Secretary shall promptly
notify a petitioner when, before the establishment of a service list
under Sec. 207.7(a)(4), he or she approves an application under
Sec. 207.7(a). When practicable, this notification shall be made by
facsimile transmission. A copy of the petition including all business
proprietary information shall then be served by petitioner on those
approved applicants in accord with Sec. 207.3(b) within two (2)
calendar days. The petitioner shall serve persons enumerated on the
list established by the Secretary pursuant to Sec. 207.7(a)(4) (not
already served) within two (2) calendar days of the establishment of
the Secretary's list. Service shall be attested by a certificate of
service as required in Sec. 201.16(c)(2) of this chapter.
(2) A copy of the petition omitting business proprietary
information shall be served by petitioner on those persons enumerated
on the list established by the Secretary pursuant to Sec. 201.11(d) of
this chapter within two (2) calendar days of the establishment of the
Secretary's list.
(c) Amendments and withdrawals; critical circumstances. (1) Any
amendment or withdrawal of a petition shall be filed on the same day
with both the Secretary and the administering authority, without regard
to whether the requester seeks action only by one agency.
(2) When not made in the petition, any allegations of critical
circumstances under section 703 or section 733 of the Act shall be made
in an amendment to the petition and shall be filed as early as
possible. Critical circumstances allegations, whether made in the
petition or in an amendment thereto, shall contain information
reasonably available to petitioner concerning the factors enumerated in
sections 705(b)(4)(A) and 735(b)(4)(A) of the Act.
b. Section 207.11 is revised to read as follows:
Sec. 207.11 Contents of petition.
(a) The petition shall be signed by the petitioner or its duly
authorized officer, attorney, or agent, and shall set forth the
[[Page 51760]]
name, address, and telephone number of the petitioner and any such
officer, attorney, or agent, and the names of all representatives of
petitioner who will appear in the investigation.
(b) (1) The petition shall allege the elements necessary for the
imposition of a duty under section 701(a) or section 731(a) of the Act
and contain information reasonably available to the petitioner
supporting the allegations.
(2) The petition shall also include the following specific
information, to the extent reasonably available to the petitioner:
(i) Identification of the domestic like product(s) proposed by
petitioner.
(ii) A listing of all U.S. producers of the proposed domestic like
product(s), including a street address, phone number, contact
person(s), and estimated share of U.S. production for each producer.
(iii) A listing of all U.S. importers of the subject merchandise,
including street addresses, phone numbers, and estimated share of U.S.
imports for each importer.
(iv) A table summarizing the proposed domestic industry's
production, domestic shipments, share of domestic consumption,
capacity, capacity utilization, inventories, employment levels,
operating income, research and development expenses, and capital
expenses for the three most recent calendar years preceding the filing
of the petition for which data are available. If the most recent
calendar year preceding the filing of the petition for which data are
available concluded over eight months prior to the filing of the
petition, the table should also include data for the first six months
of both the calendar year in which the petition was filed and the
preceding calendar year.
(v) Identification of each product on which the petitioner requests
the Commission to seek pricing information in its questionnaires.
(vi) A listing of each petitioning firm's ten largest U.S.
customers for each proposed domestic like product, including a street
address, phone number, contact person(s), and share of the petitioning
firm's total sales for each customer.
(vii) A listing of all sales or revenues lost by each petitioning
firm by reason of the subject merchandise during the three years
preceding filing of the petition.
(3) The petition shall contain a certification that each item of
information specified in paragraph (b)(2) of this section that the
petition does not provide was not reasonably available to the
petitioner.
(4) Petitioners are also advised to refer to the administering
authority's regulations concerning the contents of petitions.
c. Paragraphs (a), (b), and (c) of redesignated Sec. 207.24 are
revised to read as follows:
Sec. 207.24 Hearing.
(a) In general. The Commission shall hold a hearing concerning an
investigation before making a final determination under section 705(b)
or section 735(b) of the Act.
(b) Procedures. Any hearing shall be conducted after notice
published in the Federal Register. The hearing shall not be subject to
the provisions of 5 U.S.C. subchapter II, chapter 5, or to 5 U.S.C.
702. Each party shall limit its presentation at the hearing to a
summary of the information and arguments contained in its prehearing
brief, an analysis of the information and arguments contained in the
prehearing briefs described in Sec. 207.23, and information not
available at the time its prehearing brief was filed. Unless a portion
of the hearing is closed, presentations at the hearing shall not
include business proprietary information. Notwithstanding
Sec. 201.13(f) of this chapter, in connection with its presentation a
party may file witness testimony with the Secretary no later than three
(3) business days before the hearing. In the case of testimony to be
presented at a closed session held in response to a request under
Sec. 207.24(d), confidential and non-confidential versions shall be
filed in accordance with Sec. 207.3 of this chapter. Any person not a
party may make a brief oral statement of information pertinent to the
investigation.
(c) Hearing Transcripts--(1) In general. A verbatim transcript
shall be made of all hearings or conferences held in connection with
Commission investigations conducted under this part.
(2) Revision of transcripts. Within ten (10) days of the completion
of a hearing, but in any event at least one (1) day prior to the date
for disclosure of information set pursuant to Sec. 207.30(a), any
person who testified at the hearing may submit proposed revisions to
the transcript of his testimony to the Secretary. No substantive
revisions shall be permitted. If in the judgment of the Secretary a
proposed revision does not alter the substance of the testimony in
question, he shall incorporate the revision into a revised transcript.
* * * * *
d. Redesignated Sec. 207.30 is revised to read as follows:
Sec. 207.30 Comment on information.
(a) In any final phase of an investigation under section 705 or
section 735 of the Act, the Commission shall specify a date on which it
will disclose to all parties to the investigation all information it
has obtained on which the parties have not previously had an
opportunity to comment. Any such information that is business
proprietary information will be released to persons authorized to
obtain such information pursuant to Sec. 207.7. The date on which
disclosure is made will occur after the filing of posthearing briefs
pursuant to Sec. 207.25.
(b) The parties shall have an opportunity to file comments on any
information disclosed to them after they have filed their posthearing
brief pursuant to Sec. 207.25. Comments shall only concern such
information, and shall not exceed 15 pages of textual material, double
spaced and single-sided, on stationery measuring 8\1/2\ x 11 inches. A
comment may address the accuracy, reliability, or probative value of
such information by reference to information elsewhere in the record,
in which case the comment shall identify where in the record such
information is found. Comments containing new factual information or
comments on information disclosed prior to the filing of the
posthearing brief shall be disregarded. The date on which such comments
must be filed will be specified by the Commission when it specifies the
time that information will be disclosed pursuant to paragraph (a) of
this section. The record shall close on the date such comments are due,
except with respect to investigations subject to the provisions of
section 771(7)(G)(iii) of the Act, and with respect to changes in
bracketing of business proprietary information in the comments
permitted by Sec. 207.3. By Order of the Commission:
Issued: September 21, 1995.
Donna R. Koehnke,
Secretary.
[FR Doc. 95-24573 Filed 10-2-95; 8:45 am]
BILLING CODE 7020-02-P
