[Federal Register Volume 63, Number 108 (Friday, June 5, 1998)]
[Rules and Regulations]
[Pages 30599-30614]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-15156]
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INTERNATIONAL TRADE COMMISSION
19 CFR Parts 201 and 207
Rules of Practice and Procedure
AGENCY: United States International Trade Commission.
ACTION: Final rulemaking.
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SUMMARY: The United States International Trade Commission (the
Commission) hereby amends its Rules of Practice and Procedure
concerning antidumping and countervailing duty investigations and
reviews in 19 CFR parts 201 and 207. The amendments establish
procedures for five-year reviews of antidumping and countervailing duty
orders and suspension agreements that the Commission will conduct
pursuant to the provisions of section 751(c) of the Tariff Act of 1930,
as amended (the Act).
DATES: In accordance with the 30-day advance publication requirement
imposed by 5 U.S.C. 553(d), the effective date of these rules is July
6, 1998.
FOR FURTHER INFORMATION CONTACT: Marc A. Bernstein, Office of General
Counsel, U.S. International Trade Commission (telephone: 202-205-3087,
e-mail: mbernstein@usitc.gov), or Vera A. Libeau, Office of
Investigations, U.S. International Trade Commission (telephone 202-205-
3176, e-mail: vlibeau@usitc.gov). Hearing-impaired individuals are
advised that information on this matter can be obtained by contacting
the Commission's TDD terminal on 202-205-1810.
SUPPLEMENTARY INFORMATION:
Background
On October 23, 1997, the Commission published a Notice of Proposed
Rulemaking (NOPR) in the Federal Register. 62 F.R. 55185 (Oct. 23,
1997). In the NOPR, the Commission proposed procedures for five-year
reviews it will conduct pursuant to section 751(c) of the Act. Some of
the proposed procedures were reflected in proposed amendments to the
Commission's Rules of Practice and Procedure. The Commission
additionally described in the preamble and annexes to the NOPR other
proposed procedures which were not incorporated into the proposed
regulations.
The Commission invited public comment on its proposed regulations,
the procedures discussed in the NOPR preamble and annexes, and any
other issues pertaining to five-year reviews. The Commission received
25 sets of first-round comments from 23 different submitters, and 15
sets of rebuttal comments from 12 different submitters. Those entities
that submitted written comments, as well as the short-form designations
that will be used to refer to them, are listed in Annex C to this
notice. Additionally, the Commission conducted a public hearing on
February 26, 1998, concerning five-year reviews at which it heard
testimony from numerous interested persons.
The Commission carefully considered all comments that it received.
The Commission's response to those comments that relate to the subjects
addressed in this rulemaking notice is provided below in the section-
by-section analysis of the rulemaking amendments. The Commission
appreciates the time and effort the commenters and hearing participants
took to present their views, and believes that the comments and hearing
testimony have contributed to improved regulations.
The Commission has determined that these regulations do not meet
the criteria described in section 3(f) of the Executive Order 12866 (58
F.R. 51735, Oct. 4, 1993) (EO) and thus do not constitute a significant
regulatory action for purposes of the EO. The Regulatory Flexibility
Act (5 U.S.C. 601 note) is inapplicable to this rulemaking, because it
is not one for which a NOPR is required under 5 U.S.C. 553(b) or any
other statute. Although the Commission published a NOPR, these
regulations are ``agency rules of procedure and practice,'' and thus
are exempt from the notice requirement imposed by 5 U.S.C. 553(b).
The sample notice of institution reproduced at Annex A to this
notice constitutes an information collection request subject to the
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. After
consultation with the Office of Management and Budget (OMB), the
Commission has concluded that the collection of information that will
be undertaken pursuant to the notice of institution is encompassed
within a clearance OMB has given the Commission under the Paperwork
Reduction Act to collect information for antidumping and countervailing
duty investigations and reviews, including those undertaken pursuant to
section 751 of the Act. This clearance has been assigned OMB Control
Number 3117-0016.
Pursuant to the Contract with America Advancement Act of 1996 (Pub.
L. 104-121), the Commission is submitting a report to the General
Accounting Office and to each House of Congress describing these
regulations and attaching their text.
Overview of the Amendments to the Regulations
The final regulations and procedures for five-year reviews contain
four principal changes from those proposed in the NOPR. These changes
are summarized here. A comprehensive explanation of the changes is
provided in the section-by-section analysis below.
First, responses to the notice of institution will be due 50 days
after its publication in the Federal Register. Thus, responses to the
Commission's notice need not be filed until 30 days after the date on
which the Department of Commerce (Commerce) will inform the Commission
if no domestic interested party has filed a Notice of Intent to
Participate in the five-year review.
Second, the notice of institution has been revised significantly.
In particular, the Commission has reduced the amount of empirical data
that interested parties will be requested to submit in their responses.
Additionally, interested parties will make a single submission to the
Secretary.
Third, the Commission has decided not to adopt numerical guidelines
concerning the adequacy, in the aggregate, of interested party
responses to the notice of institution. The Commission will make
adequacy rulings on a case-by-case basis taking several considerations
into account.
Fourth, the Commission has decided not to adopt a regulation
precluding interested parties from making data collection requests
after submission of the comments on the draft questionnaires.
Nevertheless, the regulation the Commission has promulgated states that
it will entertain such late requests for data collection only in
compelling circumstances.
Section-by-Section Analysis of the Regulations
Section 201.11
The Commission has amended section 201.11 by adding sections
201.11(b)(4) and (b)(5), which govern the filing of entries of
appearance in five-year reviews. Section 201.11(b)(4), which states
that entries of appearance are due 21 days after publication of the
notice of institution, is identical to the provision proposed in the
NOPR. Stewart requested that the 21-day period
[[Page 30600]]
for filing entries of appearance be extended to 30 days. The Commission
has retained the 21-day period, which is the same period used in
Commission investigations other than original antidumping and
countervailing duty investigations.
Section 201.11(b)(5) concerns the filing of entries of appearance
in a ``full'' five-year review. (A ``full review'' is any five-year
review except one that has been terminated by Commerce pursuant to
section 751(c)(3)(A) of the Act or that has been expedited by the
Commission pursuant to section 751(c)(3)(B) of the Act.) This provision
states that entries of appearance in full reviews may be filed within
the period specified in the Notice of Scheduling the Commission will
issue pursuant to section 207.62(c). The Commission has not established
a fixed date, as it proposed to do in the NOPR, to maximize its
flexibility in scheduling five-year reviews. Nevertheless, as indicated
in the final sentence of section 201.11(b)(5), parties will be provided
a minimum of 45 days to file entries of appearance in full reviews.
Stewart and Collier objected to any provision permitting parties to
file entries of appearance after commencement of a full review. The
Commission has decided to retain section 201.11(b)(5) to maximize
participation in full reviews.
The Commission has not made other amendments to section 201.11
requested by commenters. Section 201.11(a), as currently written,
expressly authorizes industrial users and certain consumer
organizations to enter appearances as parties in investigations under
part 207. New section 207.60(a) makes clear that this provision applies
to five-year reviews. Consequently, no further amendment to section
201.11, such as the one advocated by Canada, is needed to authorize
industrial users and consumer organizations to appear as parties in
five-year reviews.
The Commission has declined to modify the regulations to
``encourage'' interested parties to provide attorneys for industrial
users and consumer groups with access to business proprietary
information (BPI) under administrative protective order (APO), as
requested by Hogan and H&H. Sections 777(b)(1) and (c) of the Act
require the Commission to release BPI under APO to ``interested
parties.'' Under section 771(9) of the Act, industrial users or
consumers are not ``interested parties.'' Interested parties may elect
to release information not acquired under APO under such terms and
conditions as they designate to parties to a Commission investigation
or review that do not have ``interested party'' status.
Section 207.3
The Commission has amended section 207.3(b) to require hand or
overnight service of prehearing briefs, hearing testimony, and
posthearing briefs in five-year reviews. The amendment is identical to
the one proposed in the NOPR.
Hoogovens proposed that the regulation be amended to require each
party to serve its entry of appearance in a five-year review by hand or
express mail to all parties indicated on the Commerce service list for
the most recent administrative review pertaining to the order(s) that
are the subject of the five-year review. The Commission has not adopted
this proposal because it does not see the need for expeditious service
of entries of appearance on parties to a Commerce proceeding that may
or may not choose to appear in the Commission's five-year review.
Stewart proposed that the regulation be amended to require hand or
overnight service of final comments filed pursuant to section 207.68.
The amendment to section 207.3 is designed to make service requirements
in five-year reviews the same as those in original antidumping and
countervailing duty investigations. The Commission does not require
hand or overnight service for final comments in original
investigations.
Section 207.45
The Commission has amended section 207.45, which concerns changed
circumstances reviews pursuant to section 751(b) of the Act, to change
the statutory cross-reference in section 207.45(a) so it specifically
cites section 751(b). The amendment is identical to that proposed in
the NOPR.
Section 207.46
The Commission has amended section 207.46, an interim regulation
that establishes procedures for investigations under section 753 of the
Act, which concerns countervailing duty orders issued under section 303
of the Act without an injury determination by the Commission. The
amendments, which clarify the section's provisions and modify its
cross-references in light of the other changes to the regulations made
in this rulemaking, are identical to those proposed in the NOPR.
Section 207.60
Section 207.60 is a new provision that defines certain terms used
in new Subpart F of Part 207 concerning five-year reviews. The terms
defined are ``five-year review,'' ``expedited review,'' ``full
review,'' and ``notice of institution.''
The definition of ``five-year review'' has been revised to clarify
that generic references to ``investigations'' in Part 201 or in subpart
A of Part 207 are applicable to five-year reviews, unless superseded by
a Subpart F regulation of more specific application.
The definitions of ``expedited review'' and ``full review'' are
new, although each term was used in several places in the NOPR. An
``expedited review'' is a five-year review that the Commission has
expedited pursuant to section 751(c)(3)(B) of the Act. A ``full
review'' is any five-year review except one that has been terminated by
Commerce pursuant to section 751(c)(3)(A) of the Act or that has been
expedited by the Commission pursuant to section 751(c)(3)(B) of the
Act.
The definition of ``notice of institution'' is identical to that
proposed in the NOPR. The NOPR proposed definitions for the terms
``domestic like product,'' ``domestic industry,'' ``expedited
determination,'' and ``subject merchandise.'' The Commission has
deleted these definitions on the grounds they are unnecessary. This
change renders the comments directed to these proposed definitions
moot.
Section 207.61
Section 207.61 is a new provision concerning responses to the
notice of institution. Sections 207.61(a) and 207.61(b) have changed
substantially from the NOPR.
Section 207.61(a): When Responses to Notice of Institution Must be
Filed
Under section 207.61(a), interested parties must submit their
responses to the Commission's notice of institution no later than 50
days after its publication in the Federal Register. This response
period is longer than the 30-day response period proposed in the NOPR.
The Commission has made this change in response to both the comments to
the NOPR and Commerce's interim final rules for five-year reviews.
Many commenters objected to the proposed requirement that all
interested parties file complete responses to the notice of institution
within 30 days. Commenters stated two general types of objections. The
first objection was based on section 751(c)(3)(A) of the Act, which
directs Commerce to terminate a five-year review within 90 days when no
domestic interested party responds to Commerce's notice of initiation.
Respondent interested parties (a term that will be used to refer to
interested
[[Page 30601]]
parties described in sections 771(9)(A) and (B) of the Act,
encompassing U.S. importers, foreign producers, and exporters of
subject merchandise, and governments of the countries in which subject
merchandise is produced or exported) objected to being required to
submit substantive responses to the notice of institution before any
domestic interested party (a term that will be used to refer to
interested parties described in section 771(9)(C)-(G) of the Act,
encompassing domestic producers of the like product, domestic worker
groups, and associations of such groups) indicated its intent to
participate in the five-year review. They contended that proposed
section 207.61(a) placed undue burdens on respondent interested parties
by requiring them to respond to the notice of institution even when no
five-year review would ultimately be conducted.
The second objection was that the 30-day time period specified in
the NOPR for filing responses to the notice of institution was too
short. Schagrin requested that the comment period be extended to at
least 37 days; Hoogovens requested that it be extended to 45 days;
Eurofer and JMC requested that it be extended to 60 days. By contrast,
Cement Committee supported the 30-day time period.
On March 20, 1998, Commerce published in the Federal Register its
interim procedures for five-year reviews. These procedures specify
that: (1) domestic interested parties must file a Notice of Intent to
Participate in the five-year review no later than 15 days after
initiation; (2) Commerce will notify the Commission no later than 20
days after initiation when no domestic interested party has filed a
response to its notice of initiation; and (3) Commerce will notify the
Commission no later than 40 days after initiation when no domestic
interested party has responded adequately to its notice of initiation.
63 F.R. 13516, 13524-25 (Mar. 20, 1998).
In light of Commerce's interim procedures, the Commission has
adopted a 50-day deadline for responses to the notice of institution.
Consequently, respondent interested parties should know whether filing
a response to the Commission's notice of institution is unnecessary
because no domestic interested party has filed (1) a Notice of Intent
to Participate with Commerce or (2) an adequate response to Commerce's
notice of initiation. Additionally, a 50-day deadline will provide
ample time for interested parties to compile information and prepare
responses to the notice of institution.
Section 207.61(b): Content of Responses to Notice of Institution
Section 207.61(b) addresses the content of the responses to the
notice of institution. It combines aspects of the proposed versions of
section 207.61(b) and section 207.61(c), and has been revised
significantly from the NOPR. Section 207.61(b) describes the content of
the response to the notice of institution in general terms. A sample
notice of institution is attached at Annex A to this notice. It was
also revised significantly from the version proposed in the NOPR. The
discussion below explains the changes in the notice and the regulation.
The proposed notice of institution published in the NOPR drew
widely divergent reactions from commenters. Some commenters criticized
the Commission for seeking too much data upon initiation. Schagrin and
Stewart contended that the Commission's proposal placed undue burdens
on interested parties and maintained that the Commission should not
seek empirical data (with the possible exception of shipment data) in
the notice of institution that it would ultimately seek in
questionnaires in full reviews. JMC criticized the Commission's
proposal as excessively burdensome for foreign producers, which it
contended should be required only to produce data on total shipments.
On the other hand, several commenters requested that the Commission
seek even more information in the notice of institution than proposed
in the NOPR. Canada requested that all interested parties be required
to submit purchaser lists. ECS requested that domestic producers submit
five years of data concerning their capital and research and
development expenses. Eurofer requested that domestic producers be
asked about the sourcing for their inputs. Micron requested that
domestic producers be asked whether any improvements in their condition
were related to the order or agreement under review. Several commenters
representing domestic interests requested that the Commission request
foreign producers to provide all types of data, including financial
information, it was seeking from domestic producers. Quebec proposed
addressing additional questions to domestic producers concerning market
share and captive consumption and suggested that interested parties be
required, rather than merely invited, to assert arguments concerning
the domestic like product in their responses to the notice of
institution.
Commenters also disagreed on the utility of the Commission's
proposal that interested parties be asked to submit projections of
empirical data for the current calendar year. Four commenters supported
this proposal. Six opposed it and suggested that the Commission instead
seek interim period data, as it currently does in questionnaires in
original antidumping and countervailing duty investigations. Three
commenters suggested that, if the Commission should decide to seek
projections, the data should be provided in a different format than
proposed in the NOPR.
After review of the comments and hearing testimony, the Commission
has decided to make several major changes to the notice of institution.
First, it has significantly reduced the amount of empirical data
requested in the notice. Second, it has revised the question requesting
a statement on the likely effects of revocation and termination to
request interested parties to address the factors specified in section
752(a) of the Act. Third, it has edited or eliminated several narrative
questions. Fourth, it has changed the format of the response to the
notice of institution so that it will be a single document filed with
the Secretary, instead of separate documents filed with the Secretary
and the Office of Investigations.
The Commission has minimized the amount of empirical data requested
in the notice of institution to reduce both the burdens imposed on
interested parties at the outset of a review and the likelihood that
interested parties will need to respond to duplicative information
requests should there be a full review. In terms of empirical data,
domestic producers will be requested to submit their production
quantity and the quantity and value of U.S. commercial shipments for
the preceding calendar year. Importers will be requested to submit the
quantity and value of their U.S. imports and their U.S. commercial
shipments of the subject imports for the preceding calendar year.
Foreign producers of subject merchandise will be requested to submit
their production quantity and the quantity and value of U.S. exports
for the preceding calendar year.
The Commission recognizes that it is requesting submission of
considerably less empirical data in response to the notice of
institution than it proposed in the NOPR. As authorized by the Act, the
Commission will reach an expedited determination ``without further
investigation,'' and will not generate additional factual information
if it decides to conduct an expedited review. Instead, as contemplated
by section
[[Page 30602]]
751(c)(3)(B) of the Act, the Commission will rely on the facts
available, in accordance with section 776 of the Act, in making its
determination. The Commission's use of facts available, which is
described below in detail in the discussion of section 207.62(e), may
include reliance on adverse inferences against interested parties that
do not cooperate with information requests, as authorized by section
776(b) of the Act.
To facilitate the Commission's ability to use facts available and
take adverse inferences in expedited reviews, the Commission has
revised the question requesting a statement of the likely effects of
revocation or termination of the order or agreement under review. The
question now explicitly requests that interested parties address the
factors the Commission must examine under section 752(a) of the Act
when making a determination in a five-year review.
Additionally, the Commission has revised or eliminated several
other narrative questions in the notice of institution. A new
instruction requests unions or worker groups to identify the firms at
which the workers they represent are employed. The wording on the
question requesting identification of significant changes in supply and
demand has been revised. The questions regarding cumulation and the
submission of ``other information or data'' have been eliminated.
The Commission has retained the question giving interested parties
the option of stating whether they agree with the definitions of
domestic like product and domestic industry that the Commission reached
in its original determination(s). Several commenters representing
domestic interests argued that the Commission should reconsider its
original domestic like product determination only in exceptional
circumstances; Stewart requested that the regulations contain an
express ``presumption'' that the domestic like product in a five-year
review will be the same as in the original investigation. On the other
hand, several commenters representing respondent interests advocated
that the Commission retain the discretion to consider domestic like
product issues in five-year reviews; Canada requested promulgation of a
regulation to this effect.
In appropriate circumstances, the Commission may revisit its
original domestic like product and domestic industry determinations in
five-year reviews. For example, the Commission may revisit its like
product determination when there have been significant changes in the
products at issue since the original investigation or when domestic
like product definitions differed for individual orders within a group
concerning similar products. Accordingly, interested parties will have
the opportunity to address domestic like product and domestic industry
issues in their responses to the notice of institution. As explained
further below in the discussion of section 207.62, the existence of
significant domestic like product issues is a factor that the
Commission may take into account in determining whether to conduct a
full review. The Commission does not believe a regulation on this issue
is necessary, however.
In the regulations, the major drafting change has been the
consolidation of proposed section 207.61(b) and section 207.61(c) into
a single section 207.61(b). In the interest of transparency and
convenience, the entire response to the notice of institution will be
filed with the Secretary and will be subject to the requirements of
sections 201.6, 201.8, and 207.3. (One commenter, Stewart, criticized
the bifurcated filing process proposed in the NOPR on the grounds it
would likely result in significant nonconfidential information being
submitted to the Office of Investigations and therefore unavailable for
public inspection.) As with the proposed regulations, the final version
of section 207.61(b) does not specify each information request made in
the notice of institution. Because the regulation is general in nature,
the Commission will not elaborate in the regulation on the obligation
of interested parties to respond to particular requests, as advocated
by Pistachio Producers. As the Commission stated in the NOPR preamble,
interested parties will only be required to provide information in
their possession.
Section 207.61(c): When Requested Information Cannot Be Supplied
Section 207.61(c) addresses situations in which an interested party
cannot furnish the information requested in the notice of institution
in the form or manner requested. The section has been revised so that
it conforms more closely to section 782(c)(1) of the Act than did the
proposed provision.
Section 207.61(d): Submissions by Persons other than Interested Parties
Section 207.61(d) authorizes persons who are not interested parties
to submit to the Commission information relevant to a five-year review.
It is unchanged from proposed section 207.61(e) in the NOPR, except for
the due date of the submission. This submission is now due 50 days from
publication of the notice of institution, the same date on which
interested party responses to the notice of institution must be
submitted.
The Commission will consider any information submitted pursuant to
section 207.61(d) in making a determination in a full or expedited
review. The Commission will also consider this information in making
rulings on aggregate interested party adequacy. It will not use such
material, however, to serve as a substitute for individual interested
party responses, as suggested by H&H, Hogan, and Quebec.
Section 207.62
Section 207.62 is a new provision addressing Commission rulings on
adequacy of interested party responses. It also describes procedures in
expedited reviews. Its title has been revised to describe its purpose
more accurately.
How the Commission Will Determine Whether to Expedite Reviews
Many comments addressed the discussion in the NOPR preamble
concerning how interested party responses will be reviewed for adequacy
and what standards the Commission will use to determine whether to
conduct a full review or an expedited review. This section will discuss
five issues that were the subject of comment: (1) How the Commission
will evaluate individual interested party responses for adequacy; (2)
which groups of interested parties the Commission will examine on an
aggregate basis for adequacy; (3) what standards the Commission will
use to determine whether interested party responses are adequate on an
aggregate basis; (4) the circumstances in which the Commission may
exercise its discretion to conduct a full review even when interested
party responses are inadequate; and (5) the consequences of inadequate
interested party responses.
Evaluation of Individual Interested Party Responses. Some
commenters addressed how the Commission should evaluate the adequacy of
individual interested party responses. Fuji and JISEA asserted that the
Commission should require a ``rigorous completion standard.'' By
contrast, H&H, Schagrin, and Stewart argued against any practice where
the Commission would consider an individual response per se inadequate
if it were incomplete in any respect.
The Commission initially intends to address the evaluation of
individual interested party responses on a case-by-case basis, rather
than providing specific guidance at this time. As five-year reviews
proceed and the Commission gains experience in resolving these issues,
it may be in a
[[Page 30603]]
better position to address these issues categorically.
The preamble to the NOPR stated that the Commission would review
each individual interested party response to the notice of institution
for completeness immediately upon its receipt, would attempt to notify
each interested party of any deficiencies in its response to the extent
practicable, and would attempt to provide each interested party with
approximately five to ten days in which to remedy and explain the
deficiencies. The Commission has not changed its intentions in this
regard. Nevertheless, it declines to adopt the suggestion of Eurofer,
H&H, and Thailand that it codify in the regulations its procedures for
notification. The Commission does not believe that it is necessary for
the regulations to describe these procedures with the degree of
specificity desired by these commenters.
Which Groups Will Be Evaluated on an Aggregate Basis. In the NOPR
preamble, the Commission proposed to evaluate on an aggregate basis the
adequacy of responses from two distinct groups of interested parties:
(1) Interested parties described in sections 771(9)(C), (D), (E), (F),
and (G) of the Act (``domestic interested parties,'' consisting of,
inter alia, U.S. producers of the domestic like product and labor
unions or groups of workers which are representative of an industry
producing the domestic like product); and (2) interested parties
described in sections 771(9)(A) and (B) of the Act (``respondent
interested parties,'' consisting of, inter alia, U.S. importers and
foreign exporters or producers of subject merchandise and subject
country governments).
Some commenters advocated that the Commission subdivide these two
groups. JMC asserted that the Commission should divide the domestic
interested party group into two subgroups--one encompassing producers
and one encompassing worker groups--and deem the domestic interested
party response inadequate unless both subgroups submitted adequate
responses. Similarly, Cement Committee, Collier, Micron, and Stewart
proposed that the Commission divide the respondent interested party
group into two subgroups--one encompassing U.S. importers and one
encompassing foreign producers of subject merchandise--and deem the
respondent interested party response inadequate unless both subgroups
submitted adequate responses.
The Commission has declined to adopt either of these proposals. The
Commission does not believe it is appropriate to analyze the adequacy
of responses this narrowly. Consequently, the Commission's examination
of aggregate adequacy will focus on domestic interested parties and
respondent interested parties, rather than on several discrete
subgroups.
Standards Used for Determining Adequacy of Aggregated Responses.
The comments addressing the standards that the Commission should use in
determining the adequacy of the aggregated responses focused on three
areas. First, several commenters asserted that the Commission should
adopt considerably more lenient standards for determining aggregate
adequacy than proposed in the NOPR. Second, commenters disputed the
extent to which standards used by Commerce pursuant to sections
702(c)(4) and 732(c)(4) of the Act to determine whether an antidumping
or countervailing duty petition is filed by or on behalf of a domestic
industry are applicable to Commission rulings on adequacy in five-year
reviews. Third, commenters addressed how the Commission should treat
related parties in deciding whether the domestic interested party
response was adequate.
Some commenters proposed that the Commission adopt very low
adequacy thresholds. At the February 26 hearing, one representative of
domestic interests stated that the Commission should conduct a full
review as long as any domestic industry participant desired such a
review. Similarly, one respondent representative stated that a full
review should be conducted as long as a single committed respondent
responds to the notice of institution.
The Commission has decided not to adopt a ``single response''
adequacy standard. When interested parties do not show a sufficient
willingness to participate in a review and to submit requested
information, conducting a full review may not be an efficient exercise
of the resources of either the Commission or the parties. That a single
domestic interested party or respondent interested party has filed an
adequate response to the notice of institution is not per se sufficient
indication that either pertinent group of interested parties as a whole
is interested in a full review.
The Commission has decided not to adopt the numerical guidelines
proposed in the NOPR. The Commission proposed these guidelines in the
interest of providing guidance to interested parties concerning when
response rates would be considered sufficiently high or low to provide
a strong indication of the adequacy or inadequacy of aggregate
interested party responses. Upon review of the comments and hearing
testimony, the Commission has concluded that any benefits that would
result from the articulation of numerical guidelines for adequacy or
inadequacy are offset by the potential that parties appearing before
the Commission would: (1) devote extensive effort to arguing that
interested parties satisfied or failed to satisfy the numerical
guidelines; or (2) confuse any numerical guidelines with a
representation requirement, as some commenters did.
The Commission did not intend in the NOPR to equate adequacy with
industry representation requirements. It agrees with several
commenters' statements that the representation requirements in sections
702(c) and 732(c) of the Act do not apply to five-year reviews.
Consequently, the Commission has not adopted the suggestions of Fuji/
JISEA or Schagrin that it should consider domestic industry statements
of ``support'' for continuation of an order in determining whether the
domestic interested party response is adequate.
The Commission will evaluate the adequacy of interested party
responses on a case-by-case basis. The Commission will take into
account several considerations in evaluating the adequacy of interested
party responses. Because both the considerations examined and the
weight they are accorded may vary from review to review, the Commission
does not believe that the adequacy standards can be articulated in the
form of a regulation, as requested by Pistachio Producers.
In evaluating the adequacy of aggregate interested party response,
the Commission will examine several considerations, including:
The level of interested parties' responses. This
encompasses an examination of the responding parties' share of domestic
production (for domestic interested parties) or of subject imports or
foreign production or exports to the United States of the subject
merchandise (for respondent interested parties) for the most recent
calendar year. While the Commission will generally use quantity-based
production or import data in evaluating adequacy, it may use value data
when such data provide the sole aggregate measure of production or
sales for the pertinent domestic like product(s). (This may occur, for
example, when a domestic like product includes both finished articles
and parts or components.) As stated above, the Commission has not
provided quantitative measures of what will likely constitute an
``adequate'' or ``inadequate'' aggregate response. Adequate responses
by unions or
[[Page 30604]]
worker groups that are interested parties pursuant to section 771(9)(D)
of the Act will be counted as being equal to the production of the
domestic like product of the firms at which the workers in the group or
union are employed.
The structure of the industries in question. As stated in
the NOPR, a response rate that may seem to be inadequate for a highly
concentrated industry may be adequate for a highly fragmented industry.
The prevalence of related parties. Several commenters
representing domestic interests requested that the Commission per se
disregard nonresponses of domestic producers that are ``related
parties'' under section 771(4)(B) of the Act in evaluating whether
domestic interested party responses are adequate. By contrast, several
commenters representing respondent interests requested that the
Commission disregard nonresponses of related party domestic producers
only when circumstances would support the exclusion of those producers
from the domestic industry under the ``appropriate circumstances''
standard that the Commission applies in original antidumping and
countervailing duty investigations.
The Commission has determined not to adopt either of these
proposals for purposes of making adequacy rulings. Instead, the
Commission will evaluate the significance of nonresponses of related
parties on a case-by-case basis. It believes that the per se rule urged
by the commenters representing domestic interests is too inflexible and
is inconsistent with Commission practice. While the standard urged by
the respondent commenters is ostensibly consistent with Commission
practice, and is a standard the Commission intends to apply in making
final determinations in five-year reviews, it is not a practical
standard to use in making adequacy rulings. When the Commission makes
such a ruling, it will frequently have insufficient information in the
record to make a conclusion concerning whether ``appropriate
circumstances'' exist to exclude a related party from the domestic
industry.
The ability of particular foreign producers to export to
the United States. JMC and Schagrin questioned the inclusion of this
criterion. The Commission believes that it can be relevant in certain
circumstances, such as when particular foreign producers do not
manufacture a version of the subject merchandise that can be exported
to the United States.
The extent to which subject imports appear to have been
excluded from the U.S. market by the order or suspension agreement
under review.
Discretionary Factors Used in Determining Whether to Conduct a Full
Review. Section 751(c)(3)(B) of the Act provides that the Commission
``may issue'' an expedited determination when interested party
responses are inadequate. Hence, the Commission has the discretion to
conduct full reviews when the domestic and/or respondent interested
party responses are inadequate. In this regard, the Commission has
adopted Stewart's suggestion of inserting in the first sentence of
section 207.62(c) the language ``or otherwise determines that a full
review should proceed,'' to underscore the Commission's discretion to
conduct full reviews. The Commission has not adopted the suggestion of
JMC to circumscribe its exercise of discretion so that it retains
discretion to conduct a full review only when respondent interested
party responses are inadequate.
Stewart requested that the Commission indicate in this notice
circumstances in which it may exercise its discretion to conduct a full
review notwithstanding inadequate interested party responses. The
Commission has identified two such circumstances:
Mixed responses in grouped reviews. In the NOPR, the
Commission invited parties to comment on the appropriateness of making
expedited determinations in grouped reviews involving subject
merchandise from several countries, where domestic interested party
responses are adequate and responses from the respondent interested
parties are adequate with respect to some of the countries in the group
but inadequate with respect to others. Canada, Schagrin, and Thailand
commented that in such circumstances it is appropriate for the
Commission to render expedited determinations with respect to the
subject countries for which there has been inadequate respondent
interested party response. These commenters did not agree among
themselves, however, on the implications of such a decision on the use
of facts available regarding cumulation in the full review(s). Stewart,
by contrast, stated that the Commission should decline to reach
expedited determinations in such situations from the standpoint of
administrative efficiency. Collier stated it would prefer for the
Commission not to render expedited determinations in grouped reviews if
the alternative was adoption of a practice where cumulation in the full
review(s) is limited or precluded.
The Commission shares Stewart's concern that making multiple, non-
simultaneous determinations concerning a single domestic like product
is likely to be administratively inefficient. For this reason, in
grouped reviews where aggregate domestic interested party responses are
not inadequate and responses from the respondent interested parties are
adequate with respect to some of the countries in the group but
inadequate with respect to others, the Commission will normally conduct
full reviews for all countries in the group.
The existence of significant domestic like product issues.
Each interested party has the option of asserting arguments concerning
the definition of the domestic like product in its response to the
notice of institution. Should the Commission determine that there is a
need in the five-year review to re-examine the domestic like product
definition made in the original determination, it may determine to
conduct a full review even in circumstances when domestic and/or
respondent interested party responses are inadequate. This will enable
the Commission to obtain data in a full review concerning the potential
domestic like products.
Several commenters addressed the question of the implications of a
tie vote on whether to expedite a review; one commenter, Stewart,
requested that the Commission promulgate a regulation concerning tie
votes. The Commission agrees with the commenters that the tie vote
provision in section 771(11) of the Act is not applicable to a
Commission decision on whether to expedite a review. Consequently, a
decision to expedite a review will require a majority vote of the
Commission. The Commission has not, however, promulgated a regulation
to that effect in the current rulemaking, which focuses solely on
procedural issues. The Commission has further declined to promulgate
the regulation requested by Stewart stating that the Commission will
conduct a full review based on the vote of a single Commissioner. The
Commission does not believe that a vote of a single Commissioner should
preclude the Commission from conducting an expedited review when a
Commission majority has concluded that conducting an expedited review
is appropriate.
Consequences of Inadequate Interested Party Responses. Several
commenters requested that the Commission state with particularity the
consequences of inadequate interested party responses. Pistachio
Producers requested the promulgation of one
[[Page 30605]]
regulation concerning adverse inferences and another concerning
Presidential embargo situations. Several commenters proposed that the
Commission should make a ``negative'' determination (i.e., that
revocation of an order, or termination of a suspension agreement, under
review would not be likely to lead to continuation or recurrence of
material injury) in any review expedited because of inadequate domestic
interested party response. Micron and Schagrin proposed that the
Commission should make an ``affirmative'' determination (i.e., that
revocation of an order, or termination of a suspension agreement, under
review would be likely to lead to continuation or recurrence of
material injury) whenever it found that the respondent interested party
response was inadequate.
The Commission has decided not to adopt any of these proposals. The
statute authorizes an ``automatic'' determination in only one instance.
Section 751(c)(3)(A) of the Act directs Commerce to issue a final
determination terminating a review when there is no domestic interested
party response to its notice of initiation. The Commission believes
issuance of the type of per se rules advocated by some commenters that
inadequate domestic (or respondent) interested party response will
automatically lead to issuance of a negative (or affirmative)
determination would be inconsistent with section 752(a) of the Act.
The Final Regulation
Section 207.62(a): Basis for Rulings on Adequacy. Section 207.62(a)
is a new provision intended to make explicit a concept several
commenters found implicit in the proposed regulations and numerous
others endorsed--that the Commission will generally decide the
questions of adequacy and whether to conduct an expedited review on an
individual order, rather than a groupwide, basis. Section 207.62(a)
further indicates that when a particular order encompasses multiple
domestic like products on which the Commission originally made separate
affirmative determinations, the Commission will make a separate ruling
on the adequacy of the interested party responses and whether to
conduct an expedited review for each domestic like product. This
concept was endorsed by Collier, Fuji, and JISEA.
Section 207.62(b): Comments on Adequacy. Section 207.62(b),
concerning comments to the Commission regarding adequacy, is based on
proposed section 207.62(a). Section 207.62(b) contains several changes
from proposed section 207.62(a).
First, the Commission has increased the page limit for the comments
from five to 15 pages. Several commenters complained that the five-page
limit proposed in the NOPR was insufficient. Canada and Quebec
requested that the page limit be increased to 15 pages; Fuji and JISEA
requested that the page limit be increased to 20 pages; Cement
Committee, Collier, and Stewart requested that the page limit be
increased to five pages per subject country; Thailand requested that
the page limit be removed. After consideration of the comments, the
Commission has decided that some increase in the page limit is
warranted. Nevertheless, the Commission does not agree that the limit
should either be eliminated or increased to the extent requested by
some of the commenters. Comments under section 207.62(b) are designed
to be a succinct expression of views on a single issue. They are not
intended to be briefs on the merits. Consequently, the Commission
believes that a 15-page limit is appropriate.
An additional modification to section 207.62(b)(2) makes clear that
in a grouped review, only one set of comments may be filed per party.
This is consistent with current Commission practice.
There are also several changes in terminology throughout section
207.62(b). The terms ``expedited review'' and ``party to the five-year
review'' are used to conform the language in section 207.62(b) to that
in other provisions in Subpart F.
Section 207.62(c): Notice of Scheduling for Full Reviews. Section
207.62(c) is based on proposed section 207.62(b). It has been retitled
more accurately to reflect its subject matter--the notice of scheduling
the Commission will issue if it determines to conduct a full review.
The only change to the text of proposed section 207.62(b) is the
addition of a clause to make clear that the Commission may decide to
conduct a full review even when interested party responses to the
notice of institution are inadequate.
Annex B to this notice contains a sample schedule for a full five-
year review. This sample schedule contains several changes from the one
proposed in the NOPR. Specifically, the interval between the issuance
of draft questionnaires and the due date for party comments on
questionnaires has been reduced; the time allowed for questionnaire
responses has been decreased; and the prehearing report will be issued
earlier than in the proposed schedule. The interval between the
issuance of the prehearing report and the due date for prehearing
briefs has been increased, as has the interval between the hearing and
the due date for posthearing briefs. These changes are responsive to
the comments of several commenters that the Commission's proposed
schedule allowed excessive time for preparation and comment on
questionnaires and inadequate time for preparation of briefs and review
of the prehearing report.
The sample schedule concentrates investigative activities within a
180-day period, which reflects the Commission's need to deploy its
staffing resources in the most effective manner. Although the sample
schedule indicates activities in a full review will occur between day
180 and day 360, these dates may vary in individual reviews, as the
Commission intends to stagger schedules in simultaneously-initiated
reviews in the interests of administrative efficiency. All reviews
within a single group will have the same schedule, however. Further,
the record closing date for a review will always occur after issuance
of Commerce's determination.
Section 207.62(d): Procedures for Expedited Reviews. Section
207.62(d) is based on proposed section 207.62(c). It has been retitled
more accurately to reflect its subject matter--the procedures for
expedited reviews. Its text has also been changed in several respects.
Some terminology has been modified to conform this provision with
others in Subpart F. The page limit for comments has been eliminated,
as requested in the comments of Stewart and Thailand. The Commission
has agreed to eliminate the page limit because the comments will be the
only substantive filing that will be permitted in expedited reviews.
The Commission has, however, retained the prohibition against the
submission of new factual information in such comments. The Commission
has not imposed the page limit requested by Collier on nonparty
comments submitted pursuant to section 207.62(d)(3).
The Commission has declined to make several changes requested by
commenters concerning the conduct of expedited reviews. Stewart and
Schagrin proposed that the Commission give interested parties that
submitted adequate responses the opportunity to submit additional
factual information during the course of an expedited review. They
argued that such a procedure would allow the Commission to reduce the
amount of information requested in the notice of institution and would
reduce the burdens on the parties and the Commission at the outset of a
review. As discussed above,
[[Page 30606]]
the Commission has decided to reduce significantly the amount of
information requested in the notice of institution. The Commission has
concluded that additional factual information is not essential to its
analysis in expedited reviews. Therefore, the Commission believes it
would be inappropriate and inefficient to undertake further
investigative activities in expedited reviews. Instead, the Commission
intends to exercise its statutory authority to dispose of such cases
quickly and efficiently on the basis of the facts available (unless it
concludes that a full review is appropriate on other grounds).
The Commission also will not permit rebuttal comments or final
comments on the staff report to be submitted in an expedited review, as
requested by Stewart. Such submissions are unnecessary in light of the
limited record and condensed schedule of an expedited review.
A new section 207.62(d)(4) addresses staff reports in expedited
reviews. Stewart requested that such a provision be added to the
regulations. Although the Commission intends to release a staff report
in expedited reviews, this report will likely follow a different format
than staff reports in full reviews, in light of the more limited record
that will be compiled in expedited reviews. The schedule for release of
the staff report, and for other procedures in an expedited review, is
indicated in the schedule in Annex B to this Notice.
Section 207.62(e): Use of Facts Available. Section 207.62(e) is a
new provision stating that a determination in an expedited review will
be based on the facts available, in accordance with section 776 of the
Act. Although this provision was not proposed in the NOPR, it does not
establish any new requirements. Instead, it codifies the authority
provided in section 751(c)(3)(B) of the Act.
The facts available may include information submitted on the record
in the five-year reviews by parties and non-parties, other information
the Commission may compile before the record closes, material from the
record of the original investigation and subsequent Commission reviews,
if any, and available information from Commerce proceedings. (As stated
in the NOPR preamble, the material from the record of the original
investigation that the Commission will release to the parties will
include the Commission opinion(s) in the original investigation and
staff reports and non-privileged memoranda, where available.) The facts
available may also include reliance on adverse inferences against
interested parties that do not cooperate with information requests, as
authorized by section 776(b) of the Act.
Delegation. In the NOPR, the Commission proposed a regulation
(section 207.62(d)), which would have permitted the Commission to
delegate to staff the responsibility for making adequacy rulings.
Stewart and Schagrin requested that the provision not be promulgated,
on the ground that staff should not be given the authority to make
decisions having a significant impact on the parties' rights. Quebec
supported the proposed provision.
The Commission has determined not to promulgate a regulation on
delegation. The Commission has concluded that the regulation is
unnecessary because, should it decide to delegate the responsibility
for making adequacy rulings, promulgation of a regulation to effect
such a delegation is not required.
Section 207.63
Section 207.63 is a new provision addressing the circulation of
draft questionnaires in full reviews.
Section 207.63(a): Circulation of Draft Questionnaires
Section 207.63(a) concerns the circulation of draft questionnaires
for comment. Its text has been simplified by use of the term ``full
review.''
Section 207.63(b): Comments on Draft Questionnaires
Section 207.63(b), which concerns the written comments that parties
may file regarding the draft questionnaires, has been modified
significantly from the NOPR. As proposed, section 207.63(b) required
parties to present all requests for the collection of new data in their
comments and stated that the Commission would disregard subsequent
arguments premised on the collection of new data if such requests were
not included in the comments.
Nine commenters, representing both domestic and respondent
interests, objected to section 207.63(b) insofar as it required that
all data requests be made in the questionnaire comments. These
commenters contended that parties will not always be able to ascertain
what data the Commission should collect until they review the responses
to the questionnaires. Several of these commenters expressed divergent
views on the circumstances in which the Commission should entertain
subsequent data requests. Thailand advocated that the Commission issue
supplemental questionnaires as a matter of course. Eurofer and Stewart,
however, opposed such a procedure on the grounds that routine issuance
of supplemental questionnaires could encourage parties not to respond
to the initial questionnaires. Eurofer suggested that supplemental
questionnaires not be authorized in the absence of a compelling reason.
After review of the comments, the Commission has concluded that
section 207.63(b) should be modified. Accordingly, the second sentence
of the section now provides that parties ``should,'' rather than
``must,'' present all data collection requests in their questionnaire
comments. The Commission emphasizes that it ordinarily anticipates that
parties will make all data collection requests in the questionnaire
comments and that it will rarely entertain subsequent requests for data
collection. Consequently, the final sentence of section 207.63(c) has
been revised to provide that the Commission will not consider
subsequent requests for the collection of new information unless there
is a showing that there is a compelling need for the information and
that the information could not have been requested in the comments on
the draft questionnaires.
Verification of Questionnaire Responses. Several comments addressed
verification of questionnaire responses in five-year reviews. Canada,
Fuji, and JISEA requested that the Commission verify domestic producer
data it receives. Dewey/Skadden requested promulgation of a regulation
stating that the Commission will verify importer data it receives; Fuji
and JISEA also supported verification of such data. Stewart requested
promulgation of a regulation stating that the Commission will verify
purchaser data it receives. Dewey/Skadden, Schagrin, and Stewart
requested promulgation of a regulation stating that the Commission will
verify foreign producer data it receives; Collier and Micron also
supported such verification.
The Commission will consider verification of domestic interested
party and respondent interested party information in appropriate
circumstances and as staffing resources permit. The Commission will
also consider using Commerce verification reports as appropriate. The
regulations do not currently address verification in original
investigations, and the Commission does not believe it is necessary to
promulgate a regulation regarding verification in five-year reviews.
Section 207.64
Section 207.64 is a new provision concerning staff reports in full
reviews.
[[Page 30607]]
The section is identical to that proposed in the NOPR.
Section 207.65
Section 207.65 is a new provision concerning prehearing briefs. The
section, which is adapted from current section 207.23, is identical to
that proposed in the NOPR.
Section 207.66
Section 207.66 is a new provision concerning hearings in five-year
reviews. The text of section 207.66(a) has been simplified by use of
the term ``full review.'' Section 207.66(b) has not been changed from
the NOPR.
Section 207.67
Section 207.67 is a new provision concerning posthearing briefs and
statements in five-year reviews. This section is identical to that
proposed in the NOPR.
Cement Committee requested that this section be modified by
inserting a provision stating that new factual information in such
posthearing briefs and statements will be disregarded unless it is
responsive to a question or request made at the Commission hearing.
Collier requested that section 207.67(b) be modified by placing a five-
page limit on statements by nonparties.
As stated in the NOPR preamble, the provisions of section 207.67
are intended to track sections 207.25 and 207.26, which govern
posthearing briefs and statements in original investigations. Sections
207.25 and 207.26 do not contain any restrictions on the submission of
new factual information of the type requested by Cement Committee. Nor
does section 207.26 contain a page limit on the brief written
statements that nonparties may submit. To maintain consistency between
the procedures for original investigations and the procedures for five-
year reviews, the Commission has determined not to insert the
additional restrictions in section 207.67 requested by Cement Committee
and Collier.
Section 207.68
Section 207.68 is a new provision concerning final comments on
information. This section, which follows current section 207.30, is
identical to that proposed in the NOPR.
Section 207.69
Section 207.69 is a new provision concerning publication and
service of Commission determinations in five-year reviews. The section,
which follows current section 207.29, is identical to that proposed in
the NOPR.
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 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. New paragraphs (b)(4) and (b)(5) are added to Sec. 201.11 to
read as follows:
Sec. 201.11 Appearance in an investigation as a party.
* * * * *
(b) Time for filing.
* * * * *
(4) In the case of reviews conducted under subpart F of part 207 of
this chapter, each entry of appearance shall be filed with the
Secretary not later than twenty-one (21) days after publication in the
Federal Register of the notice of institution described in
Sec. 207.60(d) of this chapter.
(5) Notwithstanding paragraph (b)(4) of this section, a party may
file an entry of appearance in a review conducted under subpart F of
part 207 of this chapter within the period specified in the notice
issued under Sec. 207.62(c) of this chapter. This period shall be at
least 45 days.
* * * * *
PART 207--[AMENDED]
3. The authority citation for part 207 continues to read as
follows:
Authority: 19 U.S.C. 1336, 1671-1677n, 2482, 3513.
4. Paragraph (b) of Sec. 207.3 is revised to read as follows:
Sec. 207.3 Service, filing, and certification of documents.
* * * * *
(b) Service. Any party submitting a document for inclusion in the
record of the investigation shall, in addition to complying with
Sec. 201.8 of this chapter, serve a copy of each such document on all
other parties to the investigation in the manner prescribed in
Sec. 201.16 of this chapter. If a document is filed before the
Secretary's issuance of the service list provided for in Sec. 201.11 of
this chapter or the administrative protective order list provided for
in Sec. 207.7, the document need not be accompanied by a certificate of
service, but the document shall be served on all appropriate parties
within two (2) days of the issuance of the service list or the
administrative protective order list and a certificate of service shall
then be filed. Notwithstanding Sec. 201.16 of this chapter, petitions,
briefs, and testimony filed by parties pursuant to Secs. 207.10,
207.15, 207.23, 207.24, 207.25, 207.65, 207.66, and 207.67 shall be
served by hand or, if served by mail, by overnight mail or its
equivalent. Failure to comply with the requirements of this rule may
result in removal from status as a party to the investigation. The
Commission shall make available to all parties to the investigation a
copy of each document, except transcripts of conferences and hearings,
business proprietary information, privileged information, and
information required to be served under this section, placed in the
record of the investigation by the Commission.
* * * * *
5. Paragraph (a) of Sec. 207.45 is revised to read as follows:
Sec. 207.45 Investigation to review outstanding determination.
(a) Request for review. Any person may file with the Commission a
request for the institution of a review investigation under section
751(b) of the Act. The person making the request shall also promptly
serve copies of the request on the parties to the original
investigation upon which the review is to be based. All requests shall
set forth a description of changed circumstances sufficient to warrant
the institution of a review investigation by the Commission.
* * * * *
6. Paragraph (g) of Sec. 207.46 is revised to read as follows:
Sec. 207.46 Investigations concerning certain countervailing duty
orders.
* * * * *
(g) Request for simultaneous section 751(c) review. (1) A
requesting party who requests a section 753 review may at the same time
request from the Commission and the administering authority a review
under section 751(c) of the Act of a countervailing or antidumping duty
order involving the same or comparable subject merchandise.
(2) Should the administering authority, after consulting with the
Commission, determine to initiate a section 751(c) review, the
Commission shall conduct a consolidated review
[[Page 30608]]
under sections 751(c) and 753 of the Act of the orders involving the
same or comparable subject merchandise. Any such consolidated review
shall be conducted under the applicable procedures set forth in
subparts A and F of this part.
(3) Should the administering authority, after consulting with the
Commission, determine not to initiate a section 751(c) review, the
Commission will consider the request for a section 753 review pursuant
to the procedures established in this section.
7. A new Subpart F is added to read as follows:
Subpart F--Five-Year Reviews
207.60 Definitions.
207.61 Responses to notice of institution.
207.62 Rulings on adequacy and nature of Commission review.
207.63 Circulation of draft questionnaires.
207.64 Staff reports.
207.65 Prehearing briefs.
207.66 Hearing.
207.67 Posthearing briefs and statements.
207.68 Final comments on information.
207.69 Publication of determinations.
Sec. 207.60 Definitions.
For purposes of this subpart:
(a) The term five-year review means a five-year review conducted
pursuant to section 751(c) of the Act. The provisions of part 201 of
this chapter and subpart A of this part pertaining to
``investigations'' are generally applicable to five-year reviews,
unless superseded by a provision in this subpart of more specific
application.
(b) The term expedited review means a five-year review conducted by
the Commission pursuant to section 751(c)(3)(B) of the Act.
(c) The term full review means a five-year review that has not been
expedited by the Commission or terminated pursuant to section 751(c)(3)
of the Act.
(d) The term notice of institution shall refer to the notice of
institution of five-year review that the Commission shall publish in
the Federal Register requesting that interested parties provide
information to the Commission upon initiation of a five-year review.
Sec. 207.61 Responses to notice of institution.
(a) When information must be filed. Responses to the notice of
institution shall be submitted to the Commission no later than 50 days
after its publication in the Federal Register.
(b) Information to be filed with the Secretary. The notice of
institution shall direct each interested party to make a filing
pursuant to Secs. 201.6, 201.8 and 207.3 of this chapter containing the
following:
(1) A statement expressing its willingness to participate in the
review by providing information requested by the Commission;
(2) A statement regarding the likely effects of revocation of the
order(s) or termination of the suspended investigation(s) under review;
(3) Such information or industry data as the Commission may specify
in the notice of institution.
(c) When requested information cannot be supplied. Any interested
party that cannot furnish the information requested by the notice of
institution in the requested form and manner shall, promptly after
issuance of the notice, notify the Commission, provide a full
explanation of why it cannot furnish the requested information, and
indicate alternative forms in which it can provide equivalent
information. The Commission may modify its requests to the extent
necessary to avoid posing an unreasonable burden on that party.
(d) Submissions by persons other than interested parties. Any
person who is not an interested party may submit to the Commission, in
a filing satisfying the requirements of Sec. 201.8 of this chapter,
information relevant to the Commission's review no later than 50 days
after publication of the notice of institution in the Federal Register.
Sec. 207.62 Rulings on adequacy and nature of Commission review.
(a) Basis for rulings on adequacy. The Commission will assess the
adequacy of aggregate interested party responses to the notice of
institution with respect to each order or suspension agreement under
review and, where the underlying affirmative Commission determination
found multiple domestic like products, on the basis of each domestic
like product.
(b) Comments to the Commission. (1) Comments to the Commission
concerning whether the Commission should conduct an expedited review
may be submitted by:
(i) Any interested party that is a party to the five-year review
and that has responded to the notice of institution; and
(ii) Any party, other than an interested party, that is a party to
the five-year review.
(2) Comments shall be submitted within the time specified in the
notice of institution. In a grouped review, only one set of comments
shall be filed per party per group. Comments shall not exceed fifteen
(15) pages of textual material, double-spaced and single-sided, on
stationery measuring 8\1/2\ x 11 inches. Comments containing new
factual information shall be disregarded.
(c) Notice of scheduling of full review. If the Commission
concludes that interested parties' responses to the notice of
institution are adequate, or otherwise determines that a full review
should proceed, investigative activities pertaining to that review will
continue. The Commission will publish in the Federal Register a notice
of scheduling pertaining to subsequent procedures in the review.
(d) Procedures for expedited reviews. (1) If the Commission
concludes that interested parties' responses to the notice of
institution are inadequate, it may decide to conduct an expedited
review. In that event, the Commission shall direct the Secretary to
issue a notice stating that the Commission has decided to conduct an
expedited review and inviting those parties to the review described in
paragraph (d)(2) of this section to file written comments with the
Secretary on what determination the Commission should reach in the
review. The date on which such comments must be filed will be specified
in the notice to be issued by the Secretary. Comments containing new
factual information shall be disregarded.
(2) The following parties may file the comments described in
paragraph (d)(1) of this section:
(i) Any interested party that is a party to the five-year review
and that has filed an adequate response to the notice of institution;
and
(ii) Any party, other than an interested party, that is a party to
the five-year review.
(3) Any person that is neither a party to the five-year review nor
an interested party may submit a brief written statement (which shall
not contain any new factual information) pertinent to the review within
the time specified for the filing of written comments.
(4) The Director shall prepare and place in the record, prior to
the date on which the comments described in paragraph (d)(1) of this
section must be filed, a staff report containing information concerning
the subject matter of the review. A version of the staff report
containing business proprietary information shall be placed in the
nonpublic record and made available to persons authorized to receive
business proprietary information under Sec. 207.7, and a nonbusiness
proprietary version of the staff report shall be placed in the public
record.
(e) Use of facts available. The Commission's determination in an
expedited review will be based on the facts available, in accordance
with section 776 of the Act.
[[Page 30609]]
Sec. 207.63 Circulation of draft questionnaires.
(a) The Director shall circulate draft questionnaires to the
parties for comment in each full review.
(b) Any party desiring to comment on the draft questionnaires shall
submit such comments in writing to the Commission within a time
specified by the Director. All requests for collecting new information
should be presented at this time. The Commission will disregard
subsequent requests for collection of new information absent a showing
that there is a compelling need for the information and that the
information could not have been requested in the comments on the draft
questionnaires.
Sec. 207.64 Staff reports.
(a) Prehearing staff report. The Director shall prepare and place
in the record, prior to the hearing, a prehearing staff report
containing information concerning the subject matter of the five-year
review. A version of the staff report containing business proprietary
information shall be placed in the nonpublic record and made available
to persons authorized to receive business proprietary information under
Sec. 207.7, and a nonbusiness proprietary version of the staff report
shall be placed in the public record.
(b) Final staff report. After the hearing, the Director shall
revise the prehearing staff report and submit to the Commission, prior
to the Commission's determination, a final version of the staff report.
The final staff report is intended to supplement and correct the
information contained in the prehearing staff report. A public version
of the final staff report shall be made available to the public and a
business proprietary version shall also be made available to persons
authorized to receive business proprietary information under
Sec. 207.7.
Sec. 207.65 Prehearing briefs.
Each party to a five-year review may submit a prehearing brief to
the Commission on the date specified in the scheduling notice. A
prehearing brief shall be signed and shall include a table of contents.
The prehearing brief should present a party's case concisely and shall,
to the extent possible, refer to the record and include information and
arguments which the party believes relevant to the subject matter of
the Commission's determination.
Sec. 207.66 Hearing.
(a) In general. The Commission shall hold a hearing in each full
review. The date of the hearing shall be specified in the scheduling
notice.
(b) Procedures. Hearing procedures in five-year reviews will
conform to those for final phase antidumping and countervailing duty
investigations set forth in Sec. 207.24.
Sec. 207.67 Posthearing briefs and statements.
(a) Briefs from parties. Any party to a five-year review may file
with the Secretary a posthearing brief concerning the information
adduced at or after the hearing within a time specified in the
scheduling notice or by the presiding official at the hearing. No such
posthearing brief shall exceed fifteen (15) pages of textual material,
double spaced and single sided, on stationery measuring 8\1/2\ x 11
inches. In addition, the presiding official may permit persons to file
answers to questions or requests made by the Commission at the hearing
within a specified time. The Secretary shall not accept for filing
posthearing briefs or answers which do not comply with this section.
(b) Statements from nonparties. Any person other than a party may
submit a brief written statement of information pertinent to the review
within the time specified for the filing of posthearing briefs.
Sec. 207.68 Final comments on information.
(a) The Commission shall specify a date after the filing of
posthearing briefs on which it will disclose to all parties to the
five-year review all information it has obtained on which the parties
have not previously had an opportunity to comment. Any such information
that is business proprietary information will be released to persons
authorized to obtain such information pursuant to Sec. 207.7.
(b) The parties shall have an opportunity to file comments on any
information disclosed to them after they have filed their posthearing
brief pursuant to Sec. 207.67. Comments shall only concern such
information, and shall not exceed 15 pages of textual material, double
spaced and single-sided, on stationery measuring 8\1/2\ x 11 inches. A
comment may address the accuracy, reliability, or probative value of
such information by reference to information elsewhere in the record,
in which case the comment shall identify where in the record such
information is found. Comments containing new factual information shall
be disregarded. The date on which such comments must be filed will be
specified by the Commission when it specifies the time that information
will be disclosed pursuant to paragraph (a) of this section. The record
shall close on the date such comments are due, except with respect to
changes in bracketing of business proprietary information in the
comments permitted by Sec. 207.3(c).
Sec. 207.69 Publication of determinations.
Whenever the Commission makes a determination concluding a five-
year review, the Secretary shall serve copies of the determination and,
when applicable, the nonbusiness proprietary version of the final staff
report on all parties to the review, and on the administering
authority. The Secretary shall publish notice of such determination in
the Federal Register.
By order of the Commission.
Issued: June 2, 1998.
Donna R. Koehnke,
Secretary.
Annex A: Sample Notice of Institution of Five-Year Review
Definitions
(1) Subject Merchandise is the class or kind of merchandise that
is within the scope of the five-year review, as defined by the
Department of Commerce.
(2) The Subject Country in this review is [INSERT COUNTRY].
(3) The Domestic Like Product is the domestically produced
product or products which are like, or in the absence of like, most
similar in characteristics or uses with, the Subject Merchandise. In
its original determination, the Commission defined the Domestic Like
Product as [INSERT DEFINITION]. (Add the following if applicable)
One Commissioner/certain Commissioners defined the Domestic Like
Product differently.
(4) The Domestic Industry is the producers as a whole of the
Domestic Like Product, or those producers whose collective output of
the Domestic Like Product constitutes a major proportion of the
total domestic production of the product. In its original
determination, the Commission defined the Domestic Industry as
producers of [INSERT DEFINITION]. (Add the following if applicable)
One Commissioner/certain Commissioners defined the Domestic Industry
differently.
(5) The Order Date is the date that the countervailing duty
order/antidumping duty order/suspension agreement under review
became effective. In this review, the Order Date is [INSERT DATE].
(6) An Importer is any person or firm engaged, either directly
or through a parent company or subsidiary, in importing the Subject
Merchandise into the United States from a foreign manufacturer or
through its selling agent.
Certification
In accordance with Commission rule 207.3, any person submitting
information to the Commission in connection with this review must
certify that the information is accurate and complete to the best of
the submitter's knowledge. In making the certification, the
submitter will be deemed to consent, unless otherwise specified, for
the Commission, its employees, and contract personnel to use the
[[Page 30610]]
information provided in any other reviews or investigations of the
same or comparable products which the Commission conducts under
Title VII of the Act, or in internal audits and investigations
relating to the programs and operations of the Commission pursuant
to 5 U.S.C. Appendix 3.
Information To Be Submitted to the Commission
All responses should be filed with the Secretary and must
conform with the provisions of sections 201.8 and 207.3 of the
Commission's rules. If business proprietary treatment is desired for
portions of a response, submitters must follow the requirements set
forth in sections 201.6 and 207.7 of the Commission's rules. Also,
in accordance with sections 201.16(c) and 207.3 of the Commission's
rules, each document filed by a party to the review must be served
on all other parties to the review (as identified by either the
public or BPI service list as appropriate), and a certificate of
service must accompany the document (if you are not a party to the
review you do not need to serve your response). Any interested party
that cannot furnish the information requested should explain, at the
earliest possible time, why it is unable to do so and indicate
alternative forms in which it can provide equivalent information.
(Add the following if more than one country is involved) If you are
a domestic producer, union/worker group, or trade/business
association; import/export Subject Merchandise from more than one
Subject Country; or produce Subject Merchandise in more than one
Subject Country, you may file a single response. If you do so,
please ensure that your response to each question includes the
information requested for each pertinent Subject Country.
The response should include:
(1) The name and address of your firm or entity (including World
Wide Web address if available) and name, telephone number, fax
number, and E-mail address of the certifying official.
(2) A statement indicating whether your firm/entity is a U.S.
producer of the Domestic Like Product, a U.S. union or worker group,
a U.S. importer of the Subject Merchandise, a foreign producer or
exporter of the Subject Merchandise, a U.S. or foreign trade or
business association, or another interested party (including an
explanation). If you are a union/worker group or trade/business
association, identify the firms in which your workers are employed
or which are members of your association.
(3) A statement indicating whether your firm/entity is willing
to participate in this review by providing information requested by
the Commission.
(4) A statement of the likely effects of the revocation of the
countervailing duty order/ antidumping duty order/termination of the
suspension agreement on the Domestic Industry in general and/or your
firm/entity specifically. In your response, please discuss the
various factors specified in section 752(a) of the Act (19 U.S.C.
Sec. 1675a(a)) including the likely volume of subject imports,
likely price effects of subject imports, and likely impact of
imports of Subject Merchandise on the Domestic Industry.
(5) A list of all known and currently operating U.S. producers
of the Domestic Like Product. Identify any known related parties and
the nature of the relationship as defined in section 771(4)(B) of
the Act (19 U.S.C. Sec. 1677(4)(B)).
(6) A list of all known and currently operating U.S. importers
of the Subject Merchandise and producers of the Subject Merchandise
in [INSERT COUNTRY] that currently export or have exported Subject
Merchandise to the United States or other countries since [INSERT
YEAR OF PETITION].
(7) If you are a U.S. producer of the Domestic Like Product,
provide the following information on your firm's operations on that
product during calendar year [INSERT PRECEDING YEAR] (report
quantity data in [INSERT MEASUREMENT UNIT] and value data in
thousands of dollars). If you are a union/worker group or trade/
business association, provide the information, on an aggregate
basis, for the firms in which your workers are employed/which are
members of your association.
(a) Production (quantity) and, if known, an estimate of the
percentage of total U.S. production of the Domestic Like Product
accounted for by your firm's(s') production; and
(b) the quantity and value of U.S. commercial shipments of the
Domestic Like Product produced in your U.S. plant(s).
(8) If you are a U.S. importer or a trade/business association
of U.S. importers of the Subject Merchandise from [INSERT COUNTRY],
provide the following information on your firm's(s') operations on
that product during calendar year [INSERT PRECEDING YEAR] (report
quantity data in [INSERT MEASUREMENT UNIT] and value data in
thousands of dollars). If you are a trade/business association,
provide the information, on an aggregate basis, for the firms which
are members of your association.
(a) The quantity and value of U.S. imports and, if known, an
estimate of the percentage of total U.S. imports of Subject
Merchandise from [INSERT COUNTRY] accounted for by your firm's(s')
imports; and
(b) the quantity and value of U.S. commercial shipments of
Subject Merchandise imported from [INSERT COUNTRY].
(9) If you are a producer, an exporter, or a trade/business
association of producers or exporters of the Subject Merchandise in
[INSERT COUNTRY], provide the following information on your
firm's(s') operations on that product during calendar year [INSERT
PRECEDING YEAR] (report quantity data in [INSERT MEASUREMENT UNIT]
and value data in thousands of dollars). If you are a trade/business
association, provide the information, on an aggregate basis, for the
firms which are members of your association.
(a) Production (quantity) and, if known, an estimate of the
percentage of total production of Subject Merchandise in [INSERT
COUNTRY] accounted for by your firm's(s') production; and
(b) the quantity and value of your firm's(s') exports to the
United States of Subject Merchandise and, if known, an estimate of
the percentage of total exports to the United States of Subject
Merchandise from [INSERT COUNTRY] accounted for by your firm's(s')
exports.
(10) Identify significant changes, if any, in the supply and
demand conditions or business cycle for the Domestic Like Product
that have occurred in the United States or in the market for the
Subject Merchandise in Subject Country since the Order Date, and
significant changes, if any, that are likely to occur within a
reasonably foreseeable time. Supply conditions to consider include
technology; production methods; development efforts; ability to
increase production (including the shift of production facilities
used for other products and the use, cost, or availability of major
inputs into production); and factors related to the ability to shift
supply among different national markets (including barriers to
importation in foreign markets or changes in market demand abroad).
Demand conditions to consider include end uses and applications; the
existence and availability of substitute products; and the level of
competition among the Domestic Like Product produced in the United
States, Subject Merchandise produced in the Subject Country, and
[INSERT PRODUCT DESCRIPTION] from other countries.
(11) (OPTIONAL) A statement of whether you agree with the above
definitions of the Domestic Like Product and Domestic Industry; if
you disagree with either or both of these definitions, please
explain why and provide alternative definitions.
BILLING CODE 7020-02-P
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[FR Doc. 98-15156 Filed 6-4-98; 8:45 am]
BILLING CODE 7020-02-C
