[Federal Register Volume 61, Number 141 (Monday, July 22, 1996)]
[Rules and Regulations]
[Pages 37818-37833]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18334]
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INTERNATIONAL TRADE COMMISSION
19 CFR Parts 201 and 207
Amendments to 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 have two purposes.
First, they 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: In accordance with the 30-day advance publication requirement
imposed by 5 U.S.C. 553(d), the effective date of these rules is August
21, 1996.1
\1\ Commissioner Newquist and Commissioner Bragg disapproved the
issuance of these final rules. Their reasons for disapproval are set
forth in Memorandum CO67- and 71-T-007, copies of which are
available on request from the Office of the Secretary, 202-205-2000.
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FOR FURTHER INFORMATION CONTACT: Marc A. Bernstein, Office of General
Counsel, United States International Trade Commission, telephone 202-
205-3087. 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 procedures of section 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 comment on the proposed rules;
(3) Commission review of such comments prior to developing final rules;
and (4) publication of 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 section 553 rulemaking 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.
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 decided to propose permanent
changes to its part 201 and 207 rules. The Commission published a
Notice of Proposed Rulemaking (NOPR) in the Federal Register on October
3, 1995. 60 FR 51748 (Oct. 3, 1995). In the NOPR, the Commission
proposed to issue as final rules all but one of the interim rules that
were published in the January 3, 1995, Federal Register notice; it
further proposed changes to several of these rules. The Commission also
proposed amendments to several rules
[[Page 37819]]
that were not the subject of the interim rulemaking procedure. Some of
these changes were intended to implement the new requirements of the
URAA, while others were intended to improve generally the efficiency
and effectiveness of the Commission's investigative process. The
Commission also described in its NOPR several changes to internal
agency procedures which did not require rulemaking to implement. The
Commission additionally requested comment on the proposed rules.
Comments on the proposed rules were submitted by Rep. Phil English
of the U.S. House of Representatives, the American Iron and Steel
Institute (AISI), the American Yarn Spinners Association (AYSA), the
Customs and International Trade Bar Association (CITBA), the Korean
Foreign Trade Association (KFTA), the Lawyers' Committee of the Fair
Trade Forum (Fair Trade Forum), and the Union of Needletrade,
Industrial and Textile Employees, AFL-CIO (UNITE). The following law
firms also filed comments: Aitken Irvin Lewin Berlin Vrooman & Cohn,
representing the Pro Trade Group (Pro Trade); Collier, Shannon, Rill &
Scott, representing 15 clients (Collier); 2 Dewey Ballantine,
representing the Coalition for Fair Lumber Imports (Lumber Coalition);
a joint submission by Dewey Ballantine and Skadden, Arps, Slate,
Meagher & Flom on behalf of six producers of flat-rolled steel (Flat-
Rolled Steel); 3 Hale and Dorr, representing Micron Technology,
Inc. (Micron); King & Spalding, representing the Cement Alliance for
Free Trade (Cement Alliance); Ober, Kaler, Grimes & Shriver, on its own
behalf (Ober); Pepper, Hamilton & Scheetz, representing Gouvernement du
Quebec (Quebec); Schagrin Associates, representing Weirton Steel Corp.
and Committee on Pipe and Tube Imports (Schagrin); Stewart and Stewart,
representing the Timken Co. and the Torrington Co. (Stewart); and
Wiley, Rein & Fielding, representing four domestic producers of carbon
steel wire rod (Steel Wire Rod).4 The Commission's response to
those comments pertinent to the subjects addressed in this rulemaking
notice is provided below in the section-by-section analysis of the
rulemaking amendments. The Commission notes here that it carefully
considered the comments it received and, partly in response to those
comments, determined not to adopt certain proposed rules that were
identified by commenters as being overly burdensome. The Commission
stresses that it has sought to revise the Title VII investigative
procedure to improve and streamline data collection and make better use
of the limited time allotted by the statute. The Commission appreciates
the time and effort taken by the commenters to share their experiences
and views, and believes that those comments have contributed to
improved final rules.
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\2\ American Beekeeping Federation, Inc.; American Honey
Producers Association; Bicycle Manufacturers Association of America;
Coalition for Fair Atlantic Salmon Trade; Copper & Brass Fabricators
Council; Footwear Industries of America; Fresh Garlic Producers
Association; Leather Industries of America; Nacco Materials Handling
Group, Inc.; National Pasta Association; National Pork Producers
Council; Specialty Steel Industry of North America; Specialty Tubing
Group; Tanners' Countervailing Duty Coalition; Vemco Corp; Verson
Division of Allied Products Corp.
\3\ AK Steel Corp., Bethlehem Steel Corp., Inland Steel
Industries, Inc., LTV Steel Co., National Steel Corp., and U.S.
Steel Group, a unit of USX Corp.
\4\ GS Industries, Inc., Co-Steel Raritan, Inc., Atlantic Steel
Co., and Connecticut Steel Corp.
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The Commission has determined that these rules do not meet the
criteria described in section 3(f) of the Executive Order 12866 (58 FR
51735, Oct. 4, 1993) (EO) and thus do not constitute a significant
regulatory action for purposes of the EO. In accordance with the
Regulatory Flexibility Act (5 U.S.C. 601 note), the Commission hereby
certifies that 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. Moreover, the Commission
maintains that the Regulatory Flexibility Act is inapplicable to this
rulemaking, because it is not one for which a NOPR was required under 5
U.S.C. 553(b) or another statute. Although the Commission chose to
publish such a notice on October 3, 1995, the amended rules are
``agency rules of procedure or practice'' and thus were exempt from the
notice requirement imposed by 5 U.S.C. 553(b). Additionally, these
rules do not contain any new reporting or recordkeeping requirements
that would be subject to the Paperwork Reduction Act of 1995, 44 U.S.C.
3501 et seq.
Overview of the Revised Rules
The amendments to the part 201 and 207 regulations change
Commission practice in antidumping and countervailing duty
investigations and reviews in four principal areas. This section will
provide an overview of the most significant changes. A detailed
analysis of each change and the Commission's responses to the comments
it received to the NOPR are provided in the section-by-section analysis
below.
First, under the revised regulations, the Commission will conduct a
single, continuous antidumping or countervailing duty investigation, in
contrast to the discrete preliminary and final investigations it
currently conducts. The purpose of this change, and certain related
changes discussed below, is to streamline the investigative procedure.
The Commission will continue to reach separate preliminary and final
determinations, as required by statute. The portion of the
investigation preceding issuance of the preliminary determination will
be called the preliminary phase of the investigation. Under new
Sec. 207.18, when the Commission publishes notice of an affirmative
preliminary determination, it will announce commencement of the final
phase of the investigation. (In the event of a preliminary negative
determination or a preliminary determination of negligible imports, the
investigation is terminated.) Pursuant to new Sec. 201.11(a)(2),
parties that entered appearances in the preliminary phase of the
investigation will not need to enter new appearances in the final
phase. However, under new Sec. 201.11(a)(3) parties that did not appear
in the preliminary phase of the investigation may enter an appearance
in the final phase at any time up until 21 days before the scheduled
hearing date.
Commission staff will prepare and circulate to the parties draft
questionnaires for the final phase investigation between the time the
Commission issues its preliminary determination and the time the
Department of Commerce (Commerce) issues its preliminary determination.
The revised rules, unlike the proposed rules, do not specify a
particular date on which the draft questionnaires will be circulated to
the parties, leaving that to the discretion of the Commission's
Director of Operations. Parties' comments on draft questionnaires, if
any, will have to be filed with the Secretary (instead of being
submitted to the Commission's Office of Investigations) and served on
the other parties to the investigation.
The Commission has determined not to implement its proposals for
filing of issues briefs and conducting an issues conference between the
time it issues its preliminary determination and Commerce issues its
preliminary determination. The Commission strongly encourages parties
to use the opportunity for filing comments on draft questionnaires to
identify issues they believe warrant data collection. The earlier that
such issues are identified in
[[Page 37820]]
the course of the investigation, the better able the Commission will be
to take such issues fully into account. Because there will be no issues
brief, the Commission has also determined not to implement its proposal
to impose page limits on prehearing briefs.
If Commerce issues a preliminary affirmative determination, the
Commission will publish in the Federal Register a Notice of Scheduling
for the final phase investigation pursuant to new Sec. 207.21(a). This
Notice of Scheduling will contain the same information (e.g., the date
of the hearing, deadlines for filing briefs) that the Commission
furnishes in the notice of institution of final investigation that it
currently publishes in the Federal Register.
The second principal area of change pertains to regulations
concerning the filing of petitions. The Commission has amended
Sec. 207.10 to require petitioners to serve confidential versions of
the petition more promptly on interested parties whose applications to
enter an administrative protective order (APO) have been approved. The
Commission has also amended Sec. 207.11 to require that petitioners
include in the petition, to the extent reasonably available to the
petitioner: (1) Identification of the proposed domestic like
product(s); (2) a listing of all U.S. producers of each proposed
domestic like product, including street addresses, phone numbers, and
contact persons for each producer; (3) a listing of all U.S. importers
of the subject merchandise, including street addresses and telephone
numbers; (4) identification of each product on which the petitioner
requests the Commission to seek pricing information in its
questionnaires; and (5) information concerning sales and revenues lost
by each petitioning firm. The Commission has determined not to adopt
other proposals made in the NOPR that would have required that
petitions include several additional types of information.
The third principal area of change pertains to final comments
submitted in final phase investigations. Under new Sec. 207.30, the
maximum length of such comments has been increased from 10 pages to 15
pages. Additionally, the amended rule eliminates the provision stating
that the Commission will disregard comments addressing information
disclosed prior to the filing of posthearing briefs.
The fourth principal area of change pertains to treatment of
business proprietary information (BPI). Section 201.6 has been amended
expressly to permit parties and the Commission to provide in public
submissions in certain circumstances nonquantitative characterizations
of quantitative BPI. Provisions in Secs. 201.6 and 207.7 concerning
treatment of BPI not subject to disclosure under APO have been amended.
Section-by-Section Analysis of the Revised Rules
Section 201.6
The Commission has made three principal changes to Sec. 201.6. The
first concerns nonnumerical characterization of certain BPI. The second
concerns provisions governing the filing of BPI not subject to
disclosure under APO. The third concerns appeals from approval by the
Secretary of requests for confidential treatment of submissions to the
Commission.
Nonnumerical Characterization of Numerical BPI. The Commission is
amending Sec. 201.6(a) to allow parties and the Commission publicly to
use non-quantitative characterizations to discuss confidential
statistics unless the submitter of confidential information provides
good cause for confidential treatment of such characterizations. This
revision would apply only to confidential business information (CBI)
and BPI submitted in numerical form; textual CBI and BPI could not be
disclosed in any form.
The amendment to Sec. 201.6(a) is unchanged from that proposed in
the NOPR, except for the addition of a parenthetical to subsection
(a)(2). Nine commenters discussed this proposal. Seven--CITBA, Fair
Trade Forum, KFTA, Quebec, Schagrin, Steel Wire Rod, and Stewart--
stated that they supported the proposal as drafted. Another commenter,
Collier, also expressed support for the proposal, but indicated that
the Commission should clarify the regulation to indicate precisely what
the term ``nonnumerical characterizations'' means, and to describe
what, if any, ``nonnumerical characterizations'' may be made other than
those pertaining to trends. The final commenter, Cement Alliance,
opposed the proposal on the grounds that it would not provide adequate
protection for BPI submitted by one or two parties.
With respect to Cement Alliance's position, the Commission notes
that under the rule a submitter will be able to claim confidential
treatment for good cause shown for nonnumerical characterizations, such
as trend data, of numerical BPI. If such a claim is made, the
information must be treated as confidential until or unless the
Secretary rejects the claim of confidentiality. These provisions should
provide adequate protection for CBI and BPI.
The Commission also wishes to provide, in this preamble, several
examples of how the regulation is intended to operate. As the
regulation states, discussion of trends is a permissible ``nonnumerical
characterization.'' Therefore, if quantitative information such as the
quantity of domestic industry shipments would be confidential, a party
or the Commission may state in a public document whether the quantity
of shipments rose or declined from one year to the next. However, the
public document may not provide information as to the degree or the
absolute level of the decline or the increase. Consequently, while
under new Sec. 201.6(a) a public submission may state that ``shipments
rose from 1995 to 1996,'' the submission should not state that
``shipments increased by 30 percent from 1995 to 1996'' or that
``shipments increased sharply from 1995 to 1996.'' There are also
limited circumstances where discussion of information other than trends
would be a permissible ``nonnumerical characterization.'' Thus, a
public submission may state whether or not an industry was profitable
or unprofitable in a given year, but should avoid characterizing the
degree of industry profitability.
Although the Commission hopes the examples above will provide
guidance to parties, it acknowledges that it cannot generically address
how the amended regulation will apply to every conceivable fact
pattern. The Commission advises parties that are unsure whether
Sec. 201.6(a) permits a specific public disclosure of a ``nonnumerical
characterization'' not to make the disclosure, because counsel who make
a disclosure that is not permitted by the regulation could be liable
for breach of the APO. Of course, parties also may seek the advice of
the investigator or the Secretary.
In the preamble to the NOPR, the Commission requested comment
concerning the practical effects of the amendment to Sec. 201.6(a) in
circumstances where some but not all firms request that nonnumerical
characterizations of their numerical BPI or CBI not be permitted in
public documents. CITBA, Fair Trade Forum, Quebec, and Schagrin, the
commenters addressing this matter, stated the Commission should in such
instances exercise its discretion to determine whether the aggregated
data should be released. The Commission adopts this suggestion, and
will in fact exercise its discretion on an investigation-specific basis
in such circumstances.
[[Page 37821]]
BPI Not Subject to Disclosure under APO. The second change to
Sec. 201.6 concerns BPI not subject to disclosure under APO pursuant to
777(c)(1)(A) of the Act. Under new Sec. 201.6(a)(2), such information
is now defined as ``nondisclosable confidential business information.''
The only comment received with respect to this issue addressed
Sec. 201.6(b)(3)(iv), which concerned the manner in which documents
containing BPI not subject to disclosure under APO should be filed with
the Commission. Stewart expressed the concern that proposed
Sec. 201.6(b)(3)(iv)(C), insofar as it requires double bracketing of
BPI not subject to APO, suggests that ordinary BPI should not be
double-bracketed. It noted that several law firms routinely double
bracket ordinary BPI to effect its redaction by word-processing
software. The Commission believes that, although Stewart's concern is
well-founded, it is nevertheless preferable to have an uniform means
for identifying nondisclosable confidential business information.
Accordingly, amended Sec. 201.6(b)(3)(iv)(C) will require
nondisclosable confidential business information to be identified as
such by triple bracketing. In other respects, the Commission is
adopting the proposals it made in the NOPR.
Appeals from approval of confidential treatment. The Commission is
amending Sec. 201.6(f) to revise the procedure for filing and handling
appeals from approval by the Secretary of requests for confidential
treatment so as to essentially parallel the procedure in Sec. 201.6(e)
for appeals from denials of such requests. This amendment is unchanged
from that proposed in the NOPR and was not addressed by any commenter.
Section 201.11
The Commission has amended Sec. 201.11 in two respects. The first
amendment concerns participation of consumer organizations and
industrial users in antidumping and countervailing duty investigations
and reviews. The second amendment concerns the filing of entries of
appearance.
Consumer Organizations and Industrial Users. The URAA added
Sec. 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. In the NOPR, the Commission
proposed adding a new Sec. 207.9 to the regulations to implement the
requirement of 777(h) that industrial users and consumer organizations
be provided an opportunity to participate in Commission antidumping and
countervailing duty investigations.
Five comments addressed proposed Sec. 207.9. Cement Alliance and
Micron stated that the proposed regulation should be modified so that
it expressly includes the statement, made in the NOPR preamble, that
the rule does not accord interested party status on consumer
organizations and industrial users. The remaining three commenters
requested that the proposal be modified to expand the procedural rights
accorded to consumer organizations and industrial users. Quebec stated
that the rule should accord these entities the right to participate in
hearings. Fair Trade Forum and Pro Trade contended that these entities
should be accorded the ability to obtain information pursuant to APO.
Upon further consideration and review of the comments, the
Commission has determined that proposed Sec. 207.9 is not the most
effective way to implement new section 777(h). Accordingly, the
Commission will not adopt proposed Sec. 207.9. Instead, it is adding a
sentence to Sec. 201.11(a) expressly stating that industrial users and
consumer organizations are entitled to appear in antidumping and
countervailing duty investigations and reviews as ``parties.'' With
party status, such entities are placed on the public service list
pursuant to Sec. 201.11(d), are entitled to participate in hearings
pursuant to Sec. 201.13(c) and in conferences pursuant to Sec. 207.15,
and are entitled to make written submissions pursuant to Sec. 207.15
and renumbered Sec. 207.23. It is the Commission's intention to publish
in its Federal Register notices instituting and scheduling antidumping
and countervailing duty investigations a statement informing consumer
organizations and industrial users of their right to participate as
parties in an investigation.
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 regulations
afford to interested parties. In particular, section 777(c) of the Act
authorizes the Commission to make BPI available under APO only to
``interested parties.'' Accordingly, Sec. 201.11(a) does not accord
these additional rights to industrial users and consumer organizations.
Entries of Appearance. The Commission is amending Sec. 201.7(b)
concerning the filing of entries of appearance in several respects. The
first sentence of the current rule, which governs the filing of entries
of appearance in investigations other than antidumping and
countervailing duty investigations, has been renumbered subsection
(b)(1), and revised as proposed in the NOPR.
New Sec. 201.7(b)(2), which governs the filing of entries of
appearance during the preliminary phase of antidumping and
countervailing duty investigations, is adopted as proposed in the NOPR,
except for a technical wording change. This section states that a party
that files an entry of appearance during the preliminary phase of the
investigation need not file an additional entry of appearance during
the final phase of the investigation. The four commenters who addressed
the proposal (Collier, Micron, Quebec, and Steel Wire Rod) each
supported it.
New Sec. 201.7(b)(3) governs the filing of entries of appearance
during the final phase of antidumping and countervailing duty
investigations. It makes several changes to both current practice and
the proposed Sec. 201.7(b)(4) published in the NOPR. (The proposed
Sec. 201.7(b)(3) published in the NOPR has been deleted because it
pertained to the proposed issues brief/issues conference requirement
which the Commission has decided not to adopt.) Under the new rule,
parties that did not file entries of appearance during the preliminary
phase of the investigation may file an entry of appearance in the final
phase of the investigation up until 21 days before the hearing date
listed in Federal Register notice that the Commission will publish
pursuant to Sec. 207.24(b). (Because the final date for filing entries
of appearance will be determined by reference to the hearing date
published in the Federal Register Notice of Final Phase Scheduling,
subsequent rescheduling of the hearing will not serve to adjust the
deadline for filing entries of appearance.)
Section 201.13
The Commission is amending Sec. 201.13(m) to revise a cross-
reference to a regulation that has been renumbered. The amendment is
identical to that proposed in the NOPR.
Section 207.1
In addition to issuing the interim rule in final form, the
Commission is amending Sec. 207.1 to eliminate a reference to former
section 303 of the Act.
[[Page 37822]]
Section 207.2
The Commission is issuing the interim rule in final form.
Section 207.3
The Commission is amending the ``24-hour rule'' governing final
bracketing of BPI in Sec. 207.3(c) to clarify that the only changes
that may be made in the 24-hour BPI version of documents are changes in
bracketing and deletion of BPI. The Commission received three comments
concerning the matter.
Collier requested that the Commission amend the 24-hour rule so
that it is applicable to all submissions in antidumping and
countervailing duty investigations, rather than those submitted
pursuant to an established deadline. The Commission, however, believes
that a submitter not facing a deadline should have ample time to review
a document's bracketing before filing it.
Stewart requested that the Commission adopt some expedited
procedural mechanism to permit parties to correct typographical errors
in briefs, so that a party seeking to correct such errors does not need
to submit a request to the Chairman to accept an untimely-filed
document. However, in the Commission's experience, the burden imposed
upon a party seeking leave to correct typographical errors under the
current procedure has been quite small. Stewart's other comment on this
section (shared by KFTA) requested that the proposed amendment be
redrafted to avoid possible unintended ambiguities. The point is well-
taken, and the Commission has accordingly relocated the parenthetical
clause ``including typographical changes'' in the final rule.
The Commission is also amending Sec. 207.3(b) to change cross-
references to renumbered regulations.
Section 207.4
The Commission is amending Sec. 207.4(a) to eliminate a reference
to section 303 of the Act.
Section 207.7
The Commission is making several amendments to the portions of
Sec. 207.7 addressing BPI not subject to disclosure under APO. Sections
207.7(a)(1) and 207.7(g) have been amended to use the term
``nondisclosable confidential business information'' to refer to such
material. Sections 207.7(f)(2) and 207.7(g) are amended to clarify the
procedures for submitting such information. Each of these provisions,
with the exception of Sec. 207.7(f), which has been further amended to
use the term ``nondisclosable confidential business information,''
follows the proposals made in the NOPR.
The Commission is also amending Secs. 207.7(a)(2) and 207.7(a)(4)
to refer to the ``preliminary phase'' of an investigation, reflecting
its decision to conduct a single, continuous investigation in
antidumping and countervailing duty proceedings. In the NOPR, the
Commission proposed amending Sec. 207.7(a)(2) to authorize the filing
of additional applications for a party that has entered an APO at least
five days before the deadline for filing an issues brief in an
investigation. Because the Commission has determined not to have
parties file issues briefs in investigations, this proposed amendment
to Sec. 207.7(a)(2) has not been adopted.
In their comments, KFTA and Fair Trade Forum requested that the
Commission eliminate altogether the final sentence of Sec. 207.7(a)(2),
which establishes deadlines for the filing of additional applications
for a party that has entered an APO. KFTA and Fair Trade Forum
perceived no justification for this provision. The Commission
disagrees, both because it is necessary to finalize service lists, and
because the Commission requires a comprehensive list of all those
persons having access to BPI in an investigation should a violation of
APO occur. Quebec requested that Sec. 207.7(f) be amended to require
service of BPI submissions on each law firm representing a party in an
investigation containing attorneys subject to APO, but the Commission
believes that the costs of copying and distributing BPI submissions to
more than one firm should be borne by the party deciding to retain
them.
Section 207.8
In its interim rulemaking, the Commission amended Sec. 207.8 to
conform with the URAA. This provision 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. In the
NOPR, the Commission proposed issuing this rule in final form.
Pro Trade, in its comments to the NOPR, repeated a comment it made
to the interim rulemaking that the Commission amend this regulation to
limit the instances in which the Commission would use ``facts otherwise
available.'' However, the proposed regulation conforms to the statute
as drafted, so the Commission is not modifying it, although it is
deleting a reference to former section 303 of the Act.
Section 207.10
The Commission is making several technical changes to
Sec. 207.10(a). These changes, which are identical to those proposed in
the NOPR, conform the section's cross-references to the provisions of
the URAA and refer to the ``preliminary phase of the investigation.''
Two commenters, Pro Trade and Fair Trade Forum, requested that the
Commission amend its regulations to require expressly that complete
copies of petitions be filed simultaneously with Commerce and the
Commission. Although the Commission believes that current law and
regulations already require simultaneous filing of the ``complete''
submission with Commerce and the Commission, it agrees with these
commenters that the regulations should expressly state this
requirement. Accordingly, the Commission is amending Sec. 207.10(a) to
make clear that the copy of the petition filed with the Commission
should contain all exhibits, appendices, attachments, and other
materials that are filed with Commerce.
The Commission is also amending Sec. 207.10(b) concerning service
of antidumping and countervailing duty petitions. In the NOPR, the
Commission stated that trade practitioners expressed the concern that
party representatives whose APO applications have been approved prior
to establishment of a service list do not gain access to the
confidential version of the petition quickly enough. The Commission
therefore proposed amending Sec. 207.10(b) to obligate petitioners to
serve the confidential version of the petition more rapidly than under
current practice.
The seven commenters who addressed this proposal were uniformly
supportive of the Commission's stated objective of facilitating more
rapid service of the confidential version of the petition. One
commenter, KFTA, supported the proposal as drafted. The remaining
commenters requested modification of the provision in the proposal
stating that service must be within ``two calendar days.'' The
commenters expressed divergent views on whether requiring holiday or
weekend service would be appropriate, as the proposal would require
when a notification of an approved APO application is sent out on a
Thursday or Friday. Fair Trade Forum contended that requiring weekend
service was appropriate, because counsel generally work on weekends
during a preliminary Commission investigation. It requested
[[Page 37823]]
that the rule be modified to require service within one calendar day.
It further suggested the rule be modified to require that service be by
hand when petitioners' attorney and the attorney to be served are both
located in Washington, DC and by overnight mail otherwise. Pro Trade
also agreed that service should be effected within one calendar day.
The remaining four commenters contended requiring weekend service was
not appropriate. CITBA and Schagrin contended that such a provision
could require petitioners' counsel to incur additional staffing costs
and could inadvertently encourage service by mail. They requested that
the proposal be modified to require service within two business days.
Stewart also advocated such a modification. Quebec agreed that
requiring weekend or holiday service was not appropriate, but requested
that the proposal be amended to require service within one business
day.
After reviewing the comments, the Commission has concluded that
service should be made within two calendar days. Although this may
require weekend service in certain instances, the Commission does not
believe that this is inappropriate in the context of the preliminary
phase of an antidumping or countervailing duty investigation, where
counsel typically work over weekends. The Commission does not feel that
requiring service by hand is appropriate given its cost, though parties
may make any such arrangements among themselves. Of course, service by
hand remains an option that fulfills the service requirement if it is
accomplished within two calendar days.
The Commission has, however, made several changes to its proposed
amendments to Sec. 207.10(b). First, section (b)(1) has been subdivided
into two subsections. Subsection (b)(1)(A) concerns service to parties
whose APO applications have been approved before the Secretary
establishes a service list in an investigation. The petitioner must
serve a confidential version of the petition on these parties within
two calendar days of the time the Secretary notifies it of approval of
an APO application. This notification will be made by facsimile where
practicable.
Subsection (b)(1)(B) concerns service on parties whose APO
applications are approved at or after the time the service list is
established. The petitioner must serve a confidential version of the
petition on these parties within two calendar days of the time the
service list including that party is established.
Section 207.10(b)(2), which is the same as that published in the
NOPR, concerns service of public copies of the petition. The petitioner
must serve public copies of the petition to parties on the public
service list within two calendar days of the time that service list is
established.
Section 207.10(b)(3) requires the petitioner to file a certificate
of service with the Commission after serving the petition.
Section 207.11
The Commission is amending Sec. 207.11 concerning the content of
petitions. The amended regulation imposes several new requirements. In
light of the comments received, the Commission decided to adopt
considerably less extensive revisions than those proposed in the NOPR.
The first sentence of current Sec. 207.11 will be redesignated
Sec. 207.11(a). It is unchanged except for the substitution of a
gender-neutral pronoun for a gender-specific one.
The second sentence of current Sec. 207.11 will be redesignated
Sec. 207.11(b)(1). There is in addition a minor wording change.
New Sec. 207.11(b)(2) outlines specific information that the
petition must contain. Subsection (b)(2)(i) requires identification of
the domestic like product(s) proposed by petitioner. No commenter
objected to this requirement when it was proposed in the NOPR.
Subsection (b)(2)(ii) is a modified version of the subsection that
appeared in the NOPR. As adopted by the Commission, subsection
(b)(2)(ii) requires a listing of all U.S. producers of each proposed
domestic like product including a street address, phone number, and
contact person for each producer. No commenter objected to these
requirements when they were proposed in the NOPR. The Commission
eliminated the requirement proposed in the NOPR that the petition
contain the estimated share of U.S. production for each producer on the
grounds that this information, unlike the other information that will
be required under subsection (b)(2)(ii), is not needed to facilitate
distribution of producers' questionnaires, and might be overly
burdensome to petitioners, as urged by Collier, Schagrin, and Stewart.
Subsection (b)(2)(iii) is also a modified version of the subsection
that appeared in the NOPR. As adopted by the Commission, subsection
(b)(2)(iii) requires a listing of all U.S. importers of the subject
merchandise, including street addresses and phone numbers for each
importer. Although one commenter, Lumber Coalition, criticized this
requirement as excessively burdensome, the requirement that the
petitioner provide a listing of all importers has long been included in
the Department of Commerce's regulations. The Commission's regulation
goes beyond this by also requiring that the petition provide the phone
number and address of each importer. Having such information in the
petition facilitates Commission staff's ability to mail importers'
questionnaires promptly after a petition is received. Because such
information can be obtained from such widely-available sources as
business directories and nationwide CD-ROM telephone directories, the
Commission believes that this requirement will not impose a substantial
burden on petitioners.
The Commission has eliminated from this subsection the requirement
proposed in the NOPR that petitioner provide an estimated share of U.S.
imports for each importer. As Stewart, Collier, and Micron pointed out,
this requirement might have imposed an excessive burden on petitioners
and could be more readily generated by Commission staff during the
course of the investigation. Moreover, Commission staff does not need
market share information to circulate questionnaires promptly.
Subsection (b)(2)(iv) is what appeared in the NOPR as subsection
(b)(2)(v). This requires identification of each product on which the
petitioner requests that the Commission seek pricing information in its
questionnaires. Two comments specifically addressed this provision.
KFTA proposed that the provision be amended to require that petitioner
explain why the products on which it requests pricing data be collected
are representative. The Commission believes this is unnecessary.
Schagrin asserted that the entire provision be deleted in favor of the
current practice whereby Commission staff informally consults with
counsel to select products on which pricing information will be
collected. Schagrin is correct that Commission staff confers with
petitioner's counsel prior to the filing of the petition concerning
selection of products on which pricing data will be sought when
petitioner's counsel makes itself available for such consultations.
However, in some cases the Commission staff has had to wait until after
filing of the petition to conduct such consultations. The new provision
will ensure that petitioner apprises the Commission of its views on the
appropriate products no later than the time the petition is filed. This
will facilitate the Commission staff's ability to prepare and circulate
questionnaires promptly.
[[Page 37824]]
Subsection (b)(2)(v) is what appeared in the NOPR as subsection
(b)(2)(vii). This requires listing all sales or revenues lost by each
petitioning firm during the three years preceding filing of the
petition. The term ``petitioning firm,'' means producers of the
proposed domestic like product(s) that are either members of any
petitioning entity (such as a trade association or ad hoc coalition) or
are themselves petitioners. If a labor union is the sole petitioner,
this requirement is inapplicable.
The Commission received six comments specifically addressing the
lost sales and revenue requirement. Micron and Stewart, which opposed
the proposal, questioned why it was necessary for the Commission to
require that lost sales and revenue information be provided in the
petition when such data have traditionally been sought in the
producer's questionnaire, and would continue to be for non-petitioning
domestic producers. The Commission feels that requiring petitioning
firms to include lost sales and revenue information in the petition
will improve its ability to investigate these firms' lost sales and
revenue information immediately after filing of the petition, instead
of having to wait until questionnaire responses are received, when
staff is under more severe time pressure to analyze all the other
information it is accumulating.
Schagrin stated that the proposed requirement should not serve to
estop petitioners from providing lost sales and revenue information
during the course of the investigation. Nothing in the rule stops
petitioning firms from providing lost sales and revenue information
after filing of the petition when such information was not ``reasonably
available'' to the firms at the time the petition was filed, and the
firms can establish why such information could not be included in the
petition. However, if lost sales and revenue information is
``reasonably available'' to the petitioner when the petition is filed,
it must be included in the petition.
KFTA, Lumber Coalition, and Micron each addressed the question of
documentation in their comments. KFTA, which supported the proposal,
requested that the regulation be amended to require petitioners to
provide documentation corroborating lost sale and revenue allegations.
Although the Commission encourages petitioners to provide all available
documentation to support their lost sales and revenue claims, it does
not believe that a requirement mandating petitioners document their
claims, such as the one sought by KFTA, is appropriate.
Lumber Coalition and Micron asserted that the requirement should be
eliminated because producers do not keep records of sales offers in
many industries. The Commission acknowledges that in some industries
producers may not retain records of offers to sell. In such instances,
however, lost sales and revenue information will not be ``reasonably
available'' to the petitioners and the petitioners need only provide a
certification to this effect pursuant to section (b)(3). That offers to
sell may not be retained in some industries, however, provides an
insufficient basis for eliminating the requirement for information
concerning lost sales and revenue claims with respect to all
industries. When a petitioning firm does have lost sales and revenue
information, it should provide that information.
Quebec, which otherwise supported the proposal, suggested that the
Commission use the term ``sales and revenues claimed to have been
lost'' in lieu of ``sales and revenues lost.'' The Commission opts for
the shorter phrase as more concise.
The provisions that appeared in the NOPR as subsections (b)(2)(iv)
and (b)(2)(vi) would have required a petition to include: (1) A table
providing data pertinent to the condition of the proposed domestic
industry; and (2) a listing of each petitioning firm's ten largest
customers for each proposed domestic like product.
The Commission received a variety of comments on these proposals.
KFTA and Quebec expressed general support. Twelve commenters objected
to these proposals on the grounds that (1) they were not required by
the URAA; (2) they misperceived the Commission's role in conducting
antidumping and countervailing duty investigations, and improperly
shifted the onus of conducting the investigation to petitioners; (3)
they would impose an undue burden on petitioners; (4) they were vague;
and (5) the additional information the Commission would receive would
not reduce its investigative workload. Two commenters, Pro Trade and
Fair Trade Forum, requested that Sec. 207.11 be amended more closely to
track provisions of the World Trade Organization (WTO) Agreements on
Antidumping and Countervailing Measures.
After consideration of the comments, the Commission has concluded
that the benefit it would obtain from the additional information it
would receive pursuant to proposed subsections (b)(2)(iv) and
(b)(2)(vi) is outweighed by the burden that petitioners would face in
providing this information. The Commission further acknowledges that
some of the types of information that would have been required by the
proposed provisions, such as financial information concerning non-
petitioning domestic producers, may not be obtainable by petitioning
firms from their own files or readily accessible public sources.
Accordingly, the Commission has determined not to adopt subsections
(b)(2)(iv) and (b)(2)(vi) proposed in the NOPR. By contrast, for those
new petition requirements that have been adopted, the Commission has
found, as explained above, that the benefits to the Commission's
investigative process will outweigh the generally modest additional
burdens that petitioners will assume in satisfying the requirements.
Additionally, the Commission does not agree with Pro Trade and Fair
Trade Forum that amendments to its regulations concerning the contents
of petitions are required to satisfy United States obligations under
the WTO Agreements. The amendments proposed and adopted by the
Commission were made for the purpose of increasing the efficiency of
Commission investigations, and not on the belief amendments were
required to bring Commission regulations in conformance with either the
URAA or the WTO Agreements.
New section (b)(3) requires that each petition contain a
certification that each item of information specified in section (b)(2)
that the petitioner does not provide was not reasonably available to
it. This section is unchanged from the one proposed in the NOPR.
Collier, Flat-Rolled Steel, Steel Wire Rod, Stewart and UNITE commented
that the ``reasonably available'' standard provides inadequate guidance
to petitioners concerning what efforts they must make to obtain
information. These commenters' remarks focus on proposed provisions in
section (b)(2) that arguably required petitioners to provide in the
petition certain types of information that were neither publicly
available nor in the possession of the petitioning firms themselves.
The Commission has eliminated these provisions from the final rules and
believes that the ``reasonably available'' standard, which has existed
for many years in the Act, provides sufficient guidance to petitioners
concerning the efforts they must undertake to provide the types of
information the Commission will require in petitions. Nonetheless, the
Commission wishes to assure prospective petitioners that whether
certain information is ``reasonably available'' will depend on the
facts in each case, including who the petitioner
[[Page 37825]]
is and the petitioner's resources. It is not the Commission's intention
to require petitioners to expend significant resources collecting
information called for in these new requirements. For purposes of
meeting the petition requirements, information will be considered to be
``reasonably available'' if it is readily accessible from public
sources or is maintained in the regular course of business by
petitioner. Thus, for example, where the petitioner is a trade
association comprised of domestic producers of the proposed domestic
like product, the association likely maintains records that identify
those producers. Such information would be required in the petition.
Where, however, the petitioner is a labor union, detailed information
concerning the location of some domestic producers or their lost sales
and revenues very likely might not be ``reasonably available'' to the
union, and therefore would not have to be provided. Finally, a
petitioner would not be expected to contact domestic producers or
importers to collect the information set forth in the requirements.
New section (b)(4) is the final sentence of current Sec. 207.11.
This has not been changed from the current rules.
Pro Trade requested that the Commission amend its regulations
concerning petitions to include an express provision requiring that the
Commission transmit all information it has received pertinent to the
question of standing to Commerce before Commerce determines whether to
initiate an investigation. The Commission is currently providing to
Commerce, at its request, limited information pertinent to Commerce's
standing determination.
Section 207.12
The Commission is amending Sec. 207.12 to reflect the concept that
the Commission will be conducting a single, continuous investigation in
antidumping and countervailing duty proceedings, as opposed to discrete
``preliminary'' and ``final'' investigations. Each of the ten
commenters that addressed the matter supported the Commission's
proposal that it conduct a single, continuous investigation. The
Commission will continue to render discrete preliminary and final
determinations in its investigation, as required by the Act.
The amendments to Sec. 207.12, which are identical to those
proposed in the NOPR, state that the Commission will commence the
preliminary phase of an investigation when it receives a petition for
imposition of antidumping or countervailing duties. Additionally, a
reference to former section 303 of the Act has been eliminated.
Section 207.13
The Commission is amending Sec. 207.13 has been amended to
incorporate the phrase ``preliminary phase of an investigation.''
Except for the substitution of a gender-neutral noun for a gender-
specific pronoun, the amendment is identical to that proposed in the
NOPR.
Section 207.14
The Commission is amending Sec. 207.14 to eliminate references to
former section 303 of the Act. Additionally, the last sentence of the
section has been amended to eliminate a gender-specific pronoun.
Section 207.18
The Commission is amending Sec. 207.18 to reflect the single,
continuous investigation concept. The amendments to Sec. 207.18 are
identical to those proposed in the NOPR.
The amended provision provides that when the Commission makes an
affirmative preliminary determination, the Federal Register notice of
that determination will further announce commencement of the final
phase of the investigation. Section 207.18 has also been amended to
reflect that, under the URAA, the Commission's preliminary
determination may be that imports are negligible. Additionally, the
final two sentences of current Sec. 207.18 have been relocated to new
Sec. 207.21.
Section 207.20
Section 207.20 is a new provision concerning investigative activity
in which the Commission will engage between the time of its preliminary
determination and the time of the Commerce preliminary determination.
(Current Secs. 207.20 through 207.29 have been renumbered Secs. 207.21
through 207.30.) New Sec. 207.20(a) states that, if the Commission has
reached an affirmative preliminary determination in an antidumping or
countervailing duty investigation, the Commission's Director of
Operations will continue investigative activities pending notice by
Commerce of its preliminary determination. Because, as discussed below,
the Commission will not be receiving an issues brief or conducting an
issues conference, there will be no need for the Commission to publish
a schedule of investigative activities at the time it commences its
final phase investigation. Consequently, the requirement that such a
schedule be published included in Sec. 207.20(a) as it was proposed in
the NOPR has been deleted from the final rule.
New Sec. 207.20(b) states that the Director shall circulate draft
questionnaires for the final phase investigation to the parties to the
investigation and that any party that desires to comment on the draft
questionnaires shall submit comments in writing to the Commission
within a time specified by the Director. This formalizes the current
practice under which Commission staff circulates draft questionnaires
for the final investigation to parties for comment. Under new
Sec. 207.20(b), however, parties' comments must be filed with the
Commission rather than submitted to the Office of Investigations;
consequently, comments must be filed with the Secretary pursuant to
section Sec. 201.8 and be served on all parties on the service list.
The purpose of this change is to increase the transparency of the
investigation.
In the NOPR, the Commission proposed to amend Sec. 207.20(b) to
require that the Director of Operations circulate to the parties draft
questionnaires for the final phase investigation no later than 14 days
after the Commission transmits to Commerce its facts and conclusions on
which the Commission's preliminary determination is based. Although the
commenters who addressed the issue uniformly supported the concept of
distributing draft questionnaires before Commerce issues its
preliminary determination, they expressed disparate views on when the
drafts should be circulated and whether the Commission should formalize
the comment process. KFTA proposed that Commission staff be provided at
least 40 days after transmittal of the preliminary phase investigation
opinion to draft final phase questionnaires; Flat-Rolled Steel
suggested that the questionnaires be circulated six weeks before the
Commerce preliminary determination. CITBA, Collier, and Schagrin
supported retaining current practice with respect to questionnaire
comments. By contrast, Fair Trade Forum, Pro Trade, and Stewart
advocated that the Commission adopt more formalized procedures for the
comment process, but opposed any provision precluding parties from
subsequently making data collection requests not asserted in their
comments on the questionnaires.
The Commission has decided not to issue a regulation specifying the
time at which draft final phase questionnaires will be circulated to
the parties. It has concluded that the scheduling of circulation of
draft questionnaires is best handled as an internal matter on an
[[Page 37826]]
investigation-by-investigation basis. The Commission does anticipate,
however, that draft questionnaires will be circulated several weeks
before the Commerce preliminary determination and that parties will be
afforded adequate time for comment.
The Commission further believes that the more formalized comment
procedures that are contemplated by Sec. 207.20(b) will improve the
investigative process by ensuring that comment procedures are the same
for each investigation and that each party's comments on the
questionnaires are seen by the Commission and by all other parties. The
Commission expects that the parties will use the comment process to
make data collection requests to the Commission for the final phase of
an investigation. At the time the draft questionnaire will be
circulated, the parties should be able to identify the data they desire
the Commission to generate during the final phase of the investigation.
This is particularly true with respect to issues such as domestic like
product and cumulation on which the parties typically will have
asserted detailed arguments, and will have obtained considerable data,
during the preliminary phase of the investigation. Consequently,
parties should make data collection requests in their questionnaire
comments rather than later in the investigation. It is often
impracticable to satisfy new data collection requests made during the
later stages of a final phase investigation, given the need to collect,
verify, and analyze data, release data under APO, and receive comments
from the parties concerning data before the record closes.
The Commission has not included in rule 207.20 the proposals made
in the NOPR for an issues brief and issues conference. Comments
concerning these proposals were almost uniformly negative. One
commenter, KFTA, limited its remarks to opposing the proposed provision
precluding a party from subsequently raising issues not asserted in the
issues brief. The remaining 14 commenters to address the issues brief
and issues conference proposal, representing both petitioner and
respondent interests, opposed the proposals outright. These commenters
complained that the proposed issues brief and issues conference were
unlikely either to narrow issues or simplify the Commission's
investigation but that they would impose considerable burdens on
parties appearing before the Commission. After review of the comments,
the Commission agrees that the burdens that would be imposed by the
proposed issues brief and issues conference likely outweigh the
benefits these additional procedures would confer on the investigative
process. Moreover, as noted earlier, identification of issues and data
collection needs may be accomplished through draft questionnaire
comments.
Section 207.21
New Sec. 207.21, which largely follows current Sec. 207.20,
concerns the Final Phase Notice of Scheduling that the Commission will
issue upon receipt of an affirmative preliminary determination by
Commerce. Section 207.21(a) is identical to current Sec. 207.20(a),
except that references to former section 303 of the Act have been
deleted.
Section 207.21(b) states that the Commission will publish in the
Federal Register a Final Phase Notice of Scheduling at the time it
receives notice of a Commerce affirmative preliminary determination, or
of a Commerce affirmative final determination in an investigation where
the Commerce preliminary determination was negative. The Final Phase
Notice of Scheduling will contain the same information that the
Commission currently provides in the notices of institution of final
investigations that it publishes in the Federal Register.
Sections 207.21 (c) and (d) carry forward provisions codified in
current Sec. 207.18. New Sec. 207.21(d) is the last sentence of
Sec. 207.21(c) as it was proposed in the NOPR; there has been no change
in wording.
Section 207.23
New Sec. 207.23, concerning prehearing briefs, contains several
technical amendments from current Sec. 207.22. These amendments add a
reference to the final phase Notice of Scheduling and delete a
reference to former section 303 of the Act.
In the NOPR, the Commission proposed amending Sec. 207.23 to impose
a 50-page limit on prehearing briefs. The Commission received 14
comments on this proposal, none of which supported the proposal as
drafted. All commenters said a 50-page limit was insufficient. Several
commenters suggested longer page limits; several stated that page
limits should be higher in multiple-country investigations than in
single-country investigations; several said the Commission should
continue not to impose any page limits on prehearing briefs.
The Commission's proposal to impose page limits on prehearing
briefs was premised largely on its belief that the proposed issues
brief would serve to reduce the number of arguments that would need to
be addressed in the prehearing brief. Because the Commission has
determined not to implement its proposal concerning issues briefs,
however, it will continue its current practice of not imposing page
limits on prehearing briefs. Nevertheless, the Commission encourages
parties to keep their prehearing briefs as concise as possible. As
stated in the NOPR, parties should not submit lengthy attachments to
briefs that merely restate arguments presented in the main brief.
Section 207.24
Renumbered Sec. 207.24 is identical to current Sec. 207.23 except
that references to former section 303 of the Act have been deleted,
cross-references to renumbered regulations have been changed, and
gender-specific pronouns have been modified.
Although the Commission did not propose any substantive changes to
renumbered Sec. 207.24, two commenters did request substantive
amendments to this provision. Stewart proposed that the third sentence
of subsection (b), limiting presentation at the hearing to a summary of
the information and arguments presented in the prehearing briefs, and
information not available at the time the prehearing brief is filed, be
stricken. Because the Commission believes that the prehearing brief
should be a party's principal vehicle for asserting its arguments, and
that the hearing functions primarily as a means for each party to
elaborate upon the arguments it has previously asserted in writing, it
will retain this provision.
Quebec requested that the regulation be amended to formalize the
practice of providing petitioners and respondents equal aggregate time
allocations at the hearing. Although Quebec's characterization of
Commission practice is accurate, the Commission does not believe
codification of the practice in the regulations is necessary. Instead,
Commission staff will continue to apprise parties of this practice
during the prehearing conference.
Section 207.25
Renumbered Sec. 207.25 is identical to current Sec. 207.24 except
for two nonsubstantive changes in wording that will conform this
regulation with others. The changes are identical to those proposed in
the NOPR.
Section 207.29
Renumbered Sec. 207.29 is identical to current Sec. 207.28 except
for deletion of a reference to former section 303 of the Act and a
nonsubstantive change in
[[Page 37827]]
wording. The changes are identical to those proposed in the NOPR.
Section 207.30
Renumbered Sec. 207.30 contains four amendments to current interim
Sec. 207.29. The first change increases from ten to 15 pages the
maximum length of the final comments that parties may submit pursuant
to Sec. 207.30(b), as the Commission proposed in the NOPR.
Four commenters addressed the page limits for final comments.
Cement Alliance requested that the 15-page limit be increased by five
pages per additional subject country in multiple-country
investigations. CITBA and Schagrin requested that the page limit be
established as 15 pages per subject country. Quebec requested that the
Commission retain the flexibility to increase the 15-page limit where
appropriate.
The Commission reiterates that the final comments are very limited
in scope, and are meant to enable the parties to address information
released to the parties subsequent to the filing of the posthearing
brief. Because the Commission intends to release factual information
under APO very promptly after receipt, it anticipates that the parties
will receive only a limited amount of information subsequent to filing
of the posthearing brief, whether an investigation involves one or
multiple countries. The Commission therefore concludes that the 15-page
limit for final comments is justified.
The second change is the deletion of the portion of the fourth
sentence of current Sec. 207.29(b) stating that final comments that
contain information disclosed prior to the filing of the posthearing
brief will be disregarded. This provision is being deleted because it
is not statutorily required. Moreover, the Commission believes that
ascertaining precisely at what point in the investigation information
discussed in the comments was released would impose excessive
administrative burdens on it and its staff.
The Commission nevertheless emphasizes that the purpose of the
final comments is to provide an opportunity for parties to comment on
information that they have not previously had an opportunity to
discuss. As previously stated, the strict page limits that are being
imposed on such comments is a reflection of the limited function final
comments serve. The Commission strongly discourages parties from using
the final comments solely or primarily as a device to reiterate
arguments that they have already made in their prehearing briefs,
hearing testimony, and posthearing submissions.
New Sec. 207.30(b) will state, as does current Sec. 207.29(b), that
final comments containing new factual information will be disregarded.
This restriction is required by section 782(g) of the Act. Examples of
``new factual information'' that will not be permitted in comments
submitted pursuant to Sec. 207.30(b) include the following:
New affidavits.
Press clippings, unless the press clipping was submitted
previously for the record.
Information or documentation concerning commercial
transactions, unless the material was submitted previously for the
record.
Updates to charts or tables previously included in the
record that contain information not already in the record.
By contrast, the following examples illustrate information that
would be permitted in final comments pursuant to Sec. 207.30(b).
Example 1. A party submits an affidavit in connection
with its posthearing brief providing new information. Another party
may identify in its final comments material previously submitted
into the record which rebuts or corroborates the assertions in the
affidavit.
Example 2. New questionnaire responses are released to
the parties after the posthearing briefs are filed. A party may
include in its final comments tabular material aggregating the data
in the newly-released questionnaire responses with data in
previously-released questionnaire responses. A compilation of
previously-released information is not ``new information'' for
purposes of either section 782(g) of the Act or Sec. 207.30(b).
The third change is the addition of a provision to new
Sec. 207.30(b) clarifying that the ``24-hour rule'' governing final
bracketing of BPI pertains to comments filed under Sec. 207.30. This
change is identical to the one proposed in the NOPR.
The fourth set of changes are technical changes. These include
changing cross-references to renumbered provisions, and inserting a
reference to the ``final phase'' of an investigation.
The Commission has decided not to make several changes to new rule
207.30 requested by commenters. Cement Alliance, Quebec, and Steel Wire
Rod requested that the Commission include in the regulation a provision
requiring that the Commission release all information a specific number
of days before the final comments are due. As the Commission stated in
the NOPR in responding to similar comments made with respect to the
interim rulemaking, the Commission does not believe that promulgating
regulations requiring release of material to parties at a specific date
is necessary or appropriate.
Cement Alliance, CITBA, and Schagrin asserted that the Commission
should release economic and variance memoranda, as well as the staff
report, to parties before final comments are due. The economic and
variance memoranda are now incorporated into the staff report, the
confidential version of which is released to the parties several days
before the final comments are due. Flat-Rolled Steel contended that
Sec. 207.30 should be amended to require disclosure of methodologies
used in compiling and analyzing questionnaire data, and in accepting or
rejecting lost sales or revenue allegations. However, section 782(g) of
the Act requires only disclosure of ``[i]nformation that is submitted
on a timely basis to the * * * Commission during the course of a
proceeding. * * *'' It does not require the Commission to disclose
every compilation it makes, or methodology it uses. The Commission will
continue to release to the parties in the staff report certain
compilations or explanations of methodology used to compile
information, and to explain its determinations in its written opinions.
Accordingly, the Commission has not made the amendment requested by
Flat-Rolled Steel.
Section 207.40
The Commission is issuing the interim rule in final form.
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. 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
[[Page 37828]]
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 section 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 (e.g.,
trade secrets) 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 triple 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, S.W., Washington, D.C.
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. Paragraphs (a) and (b) of Sec. 201.11 are revised to read as
follows:
Sec. 201.11 Appearance in an investigation as a party.
(a) Who may appear as a party. Any person may apply to appear in an
investigation as a party, either in person or by representative, by
filing an entry of appearance with the Secretary. Each entry of
appearance shall state briefly the nature of the person's reason for
participating in the investigation and state the person's intent to
file briefs with the Commission regarding the subject matter of the
investigation. The Secretary shall promptly determine whether the
person submitting the entry of appearance has a proper reason for
participating in the investigation. In any investigation conducted
under part 207 of this chapter, industrial users, and if the
merchandise under investigation is sold at the retail level,
representative consumer organizations, will be deemed to have a proper
reason for participating in the investigation. If it is found that a
person does not have a proper reason for participating in the
investigation, that person shall be so notified by the Secretary and
shall not be entitled to appear in the investigation as a party. A
person found to have a proper reason for participating in the
investigation shall be permitted to appear in the investigation as a
party, and acceptance of such person's entry of appearance shall be
signified by the Secretary's inclusion of such person on the service
list established pursuant to paragraph (d) of this section.
(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 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 portion of the investigation
conducted under subpart C of part 207 of this chapter.
(3) Notwithstanding paragraph (b)(2) of this section, a party may
file an entry of appearance during the final phase of an investigation
conducted under part
[[Page 37829]]
207 of this chapter no later than twenty-one (21) days prior to the
hearing date listed in the Federal Register notice published pursuant
to Sec. 207.24(b) 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 section 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. Section 207.1 is revised to read as follows:
Sec. 207.1 Applicability of part.
Part 207 applies to proceedings of the Commission under section
516A and title VII of the Tariff Act of 1930 (19 U.S.C. 1303, 1516A and
1671-1677n) (the Act), other than investigations under section 783 (19
U.S.C. 1677n), which will be conducted pursuant to procedures specified
by the Office of the United States Trade Representative.
7. The interim rule amending Sec. 207.2 published in the Federal
Register issue of January 3, 1995 at 60 FR 18 is adopted as a final
rule without change.
8. 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, including typographical changes, to the document
other than bracketing and deletion of business proprietary information
are permitted after the deadline unless an extension of time is granted
to file an amended document pursuant to Sec. 201.14(b)(2) of this
chapter. Failure to comply with this paragraph may result in the
striking from the record of all or a portion of a submitter's document.
9. Paragraph (a) of Sec. 207.4 is revised to read as follows:
Sec. 207.4 The record.
(a) Maintenance of the record. The Secretary shall maintain the
record of each investigation conducted by the Commission pursuant to
title VII of the Act. The record shall be maintained contemporaneously
with each actual filing in the record. It shall be divided into public
and nonpublic sections. The Secretary shall also maintain a
contemporaneous index of all materials filed in the record. All
material properly filed with the Secretary shall be placed in the
record. The Commission need not consider in its determinations or
include in the record any material that is not filed with the
Secretary. All material which is placed in the record shall be
maintained in the public record, with the exception of material which
is privileged, or which is business proprietary information submitted
in accordance with Sec. 201.6 of this chapter. Privileged and business
proprietary material shall be maintained in the nonpublic record.
* * * * *
10. 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
[[Page 37830]]
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 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,
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 section 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.
* * * * *
(f) Service. * * *
(2) If a party's request under paragraph (g) of this section is
granted, the Secretary shall accept the nondisclosable confidential
business information 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, 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
[[Page 37831]]
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 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 Sec. 201.6 of this chapter and Sec. 207.3. The other
two versions shall conform to and be filed in accordance with the
requirements of Sec. 201.6 of this chapter and Sec. 207.3, 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.
11. Section 207.8 is revised to read as follows:
Sec. 207.8 Questionnaires to have the force of subpoenas; subpoena
enforcement.
Any questionnaire issued by the Commission in connection with any
investigation under title VII of the Act may be issued as a subpoena
and subscribed by a Commissioner, after which it shall have the force
and effect of a subpoena authorized by the Commission. Whenever any
party or any other person fails to respond adequately to such a
subpoena or whenever a party or any other person refuses or is unable
to produce information requested in a timely manner and in the form
required, or otherwise significantly impedes an investigation, the
Commission may:
(a) Use the facts otherwise available in making its determination;
(b) Seek judicial enforcement of the subpoena pursuant to 19 U.S.C.
1333;
(c) Make inferences adverse to such person's position, if such
person is an interested party that has failed to cooperate by not
acting to the best of its ability to comply with a request for
information; and
(d) Take such other actions as necessary to obtain needed
information.
12. 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, including all exhibits, appendices, and attachments thereto,
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 investigation instituted upon the filing of its
petition, which shall be deemed an entry of appearance.
(b) Service of the petition. (1)(i) 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 of the time notification is made by the Secretary.
(ii) The petitioner shall serve persons enumerated on the list
established by the Secretary pursuant to Sec. 207.7(a)(4) that have not
been served pursuant to paragraph (b)(1)(i) of this section within two
(2) calendar days of the establishment of the Secretary's list.
(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.
(3) Service of the petition shall be attested by filing a
certificate of service with the Commission.
(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.
13. 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 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, and contact
person(s) for each producer;
(iii) A listing of all U.S. importers of the subject merchandise,
including street addresses and phone numbers for each importer;
(iv) Identification of each product on which the petitioner
requests the Commission to seek pricing information in its
questionnaires; and
(v) A listing of all sales or revenues lost by each petitioning
firm by reason of the subject merchandise during the
[[Page 37832]]
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 include 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.
14. 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.
15. 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 section
207.12, the Director shall conduct such investigation as the Director
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.
16. 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. All
persons who have received requests for information from the Director
shall be notified of the termination.
17. 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.
Secs. 207.20 through 207.29 [Redesignated as Secs. 207.21 through
207.30]
18. Sections 207.20 through 207.29 are redesignated as follows:
------------------------------------------------------------------------
New
Old section 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
------------------------------------------------------------------------
19. 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.
(b) The Director shall circulate draft questionnaires for the final
phase of an investigation to parties to the investigation for comment.
Any party desiring to comment on draft questionnaires shall submit such
comments in writing to the Commission within a time specified by the
Director.
20. 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
the Director deems appropriate pending a final determination by the
administering authority under section 705(a) or section 735(a) of the
Act.
(d) 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.
21. 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 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 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.
22. Redesignated Sec. 207.24 is 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
[[Page 37833]]
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. 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 or her 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, the Secretary shall incorporate the revision into a revised
transcript.
(d) Closed sessions. Upon a request filed by a party to the
investigation no later than seven (7) days prior to the date of the
hearing that identifies the subjects to be discussed, specifies the
amount of time requested, and justifies the need for a closed session
with respect to each subject to be discussed, the Commission may close
a portion of a hearing to persons not authorized under Sec. 207.7 to
have access to business proprietary information in order to allow such
party to address business proprietary information during the course of
its presentation. In addition, during each hearing held in an
investigation conducted under section 705(b) or section 735(b) of the
Act, 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 to persons not authorized under section
207.7 to have access to business proprietary information in order to
allow Commissioners to question parties and/or their representatives
concerning matters involving business proprietary information.
23. 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.
24. 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.
25. 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 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(c).
26. The interim rule amending Sec. 207.40 published in the Federal
Register issue of January 3, 1995 at 60 FR 18 is adopted as a final
rule without change.
Issued: July 15, 1996.
By order of the Commission.
Donna R. Koehnke,
Secretary.
[FR Doc. 96-18334 Filed 7-19-96; 8:45 am]
BILLING CODE 7020-02-P
