Investigations Relating to Global and Bilateral Safeguard Actions, Market Disruption, Trade Diversion and Review of Relief Actions; and Investigations of Whether Injury to Domestic Industries Results From Imports Sold at Less Than Fair Value or From Subsidized Exports to the United States

AGENCY:

International Trade Commission.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

On December 4, 2002, the United States International Trade Commission invited the public to provide input on specific ways in which it could improve its conduct of antidumping duty (AD) and countervailing duty (CVD) investigations (67 FR 72221, December 4, 2002). After consideration of the comments that were received, the Commission has decided to propose certain amendments to its Rules of Practice and Procedure.

DATES:

Comment Date: To be assured of consideration, written comments must be received by 5:15 p.m. on January 4, 2005.

ADDRESSES:

A signed original and 14 copies of each set of comments on these proposed amendments, along with a cover letter, should be submitted by mail or hand delivery to Marilyn R. Abbott, Secretary, United States International Trade Commission, 500 E Street, SW., Room 112, Washington, DC 20436. Comments may be submitted electronically to the extent provided by section 201.8 of the Commission's rules, as amended at 67 FR 68063 (November 8, 2002) and 68 FR 32971 (June 3, 2003).

FOR FURTHER INFORMATION CONTACT:

Marilyn R. Abbott, Secretary, United States International Trade Commission, telephone 202-205-2000. Hearing-impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal at 202-205-1810. General information concerning the Commission may also be obtained by accessing its Internet server ( http://www.usitc.gov ).

SUPPLEMENTARY INFORMATION:

The preamble below is designed to assist readers in understanding these proposed amendments to the Commission's Rules. The preamble begins with a discussion of the background leading up to these proposed amendments, a regulatory analysis addressing government-wide statutes and issuances on rulemaking, and a description of the proposed amendments to the rules. The Commission encourages members of the public to comment—in addition to any other comments they wish to make on the proposed amendments—on whether the proposed language is sufficiently clear for users of the rules to understand. In addition to these proposed amendments, the Commission has made some changes to its internal procedures not requiring amendment to its rules, which are contained in a Notice that has been published elsewhere in today's Federal Register.

Background

On December 4, 2002, the United States International Trade Commission published a notice in the Federal Register (67 FR 72221) inviting the public to provide input on specific ways in which it could improve its conduct of AD and CVD investigations under 19 U.S.C. 1671 et seq. The notice requested that such comments be filed within 90 days of publication of that notice in the Federal Register. Nine sets of comments were received, which suggested a number of changes to Commission rules, questionnaires, opinions, hearings and other practices.

The Commission appreciates the time and effort those who provided comments took to present their views, and believes that the comments have contributed to improving Commission procedures. The comments stimulated an internal review of the Commission's rules and practices in AD and CVD proceedings. That internal review has in turn resulted in a decision to propose certain changes to the Commission's rules. Some of the changes were not specifically suggested by any comment. A few are parallel amendments to comparable rules in Part 206 of the Commission's rules dealing with certain safeguard and market disruption proceedings. As is its normal practice, the Commission will continue to evaluate its procedures on an ongoing basis and will consider modifying them as is appropriate. Although the December 4, 2002 Notice noted that a hearing on these proposals might be held, after reviewing the comments, the Commission decided that such a hearing would not be necessary.

Regulatory Analysis of Proposed Amendments to the Commission's Rules

The Commission has determined that the proposed rules do not meet the criteria described in Section 3(f) of Executive Order 12866 (58 FR 51735, Oct. 4, 1993) and thus do not constitute a significant regulatory action for purposes of the Executive Order.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) is inapplicable to this rulemaking because it is not one for which a notice of proposed rulemaking is required under 5 U.S.C. 553(b) or any other statute. Although the Commission has chosen to publish a notice of proposed rulemaking, these proposed regulations are “agency rules of procedure and practice,” and thus are exempt from the notice requirement imposed by 5 U.S.C. 553(b).

These proposed rules do not contain federalism implications warranting the preparation of a federalism summary impact statement pursuant to Executive Order 13132 (64 FR 43255, Aug. 4, 1999).

No actions are necessary under the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 et seq.) because the proposed rules will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and will not significantly or uniquely affect small governments.

The proposed rules are not major rules as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.). Moreover, they are exempt from the reporting requirements of the Contract With America Advancement Act of 1996 (Pub. L. 104-121) because they concern rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties.

The amendments are not subject to section 3504(h) of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), since they do not contain any new information collection requirements.

Explanation of the Proposed Amendments to 19 CFR Parts 206 and 207

Section 207.3(b) provides that certain documents must be served by hand, or by overnight mail or its equivalent, upon other parties on the Commission's service lists. However, currently, requests to have a portion of the public hearing in final investigations held in camera are not explicitly mentioned as being subject to this requirement. In light of the proposed revision of rule 207.24 to allow responses to requests to have a portion of the public hearing in final investigations held in camera, and the short time provided for such comments, clarifying that hand or next-day service of those requests (and any comments on those requests) is required seems appropriate.

Section 207.7(b) describes the terms of an Administrative Protective Order (APO) that will be issued in each investigation, including provisions pertaining to clerical or other staff who are employed or supervised by an applicant for the APO. Two of the comments suggested that such clerical or other staff no longer be required to file an APO application with the Commission, and the Commission proposes that the rule be amended accordingly. Such clerical or other staff would still need to sign a form approved by the Secretary whereby they would agree to be bound by the terms of the APO, but that form would not be filed with the Commission unless specifically requested by the Secretary. The authorized applicant would be responsible for retention and accuracy of such forms and would be deemed responsible for such clerical persons' compliance with the APO.

A similar change is proposed for APOs issued under the comparable provisions of section 206.17 of the Commission's rules, which pertains to investigations relating to global and bilateral safeguard actions, market disruption, trade diversion, and review of relief actions, and to APOs issued in NAFTA panel and committee proceedings governed by section 207.93 of the Commission's rules.

Section 207.10(a) provides that a petition shall be deemed to be properly filed on the date on which the requisite number of copies is received by the Secretary. Frequently, petitions are filed late in the day, very close to the close of business for the Commission. By the time the petition is processed by the Secretary and distributed to the Commission and all pertinent staff, it is usually the next business day, often after an intervening weekend. This hinders the Commission's ability to proceed expeditiously with its investigation, a matter of concern in light of the fact that the statute normally gives the Commission only 45 days to conduct its preliminary phase investigation and issue its preliminary determination. Accordingly, the Commission proposes to amend the rule to provide that if the proper number of copies of the petition is not filed until after 12 noon, the filing date will be deemed to be the next business day. The Commission has already recently clarified rule 201.3 to provide that documents filed after close of business are deemed filed the next business day. 68 FR 32971 (June 3, 2003).

While the statute requires that a copy of the petition must be filed with the Commission “on the same day as it is filed with the administering authority,” and while Commerce does not have an “after noon” filing rule, we do not believe the proposed rule will adversely affect the filing of petitions or the conduct of investigations. The existing rules of the Commission clearly point out that a document that is not filed until after 5:15 p.m., when the Commission closes for business, will be deemed to have been filed the next business day. Further, the two agencies have slightly different hours of business (Commerce is open for filing “between 8:30 a.m. and 5 p.m. on business days,” while the Commission is open for filing between 8:45 a.m. and 5:15 p.m.). There has already been at least one occasion when the date of filing of the petition at Commerce was on the business day before proper filing at the Commission. In that instance, the petition was filed at Commerce before its docket closed, in that case on Friday, March 29, 1996, but was not filed at the Commission until after close of business at the Commission on that date. In that case, Commerce, noting the requirement that petitions must be filed on the same day with both Commerce and the Commission, deemed the petition to be filed on the day the Commission deemed it filed, the next business day, Monday, April 1, 1996. We would anticipate that under the proposed rule, which would deem an after noon filing at the Commission to occur on the next business day, the result would be similar. We note that a similar problem could arise even under the existing rule if a petitioner did not file the correct number of copies of a petition, or otherwise did not comply with the filing rules of the Commission, the same day it properly filed the petition at Commerce. As a final point, we note that it is the petitioner who controls the time in which the petition is filed, and thus a petitioner can plan accordingly for the proposed filing deadline.

In theory, deeming a “late” petition to be filed on the next business day could have implications for the period of investigation for Commerce under its rules, if, as in Tomatoes, there is an attempt to file a petition on the last business day of a calendar quarter. Commerce's rules for antidumping investigations, for example, provide that it will normally consider the “four most recently completed fiscal quarters * * * as of the month preceding the month in which the petition was filed * * *.” However, Commerce's rules also specifies “the Secretary may examine merchandise sold during any additional or alternate period that the Secretary concludes is appropriate.” Therefore, as in Tomatoes, we would not anticipate that the proposed rule would effectively force Commerce to change its period of investigation.

We invite comment on the effects of the proposed rule, particularly if there is any concern that it would, notwithstanding the discussion above, create problems in light of the “simultaneous filing” requirement of the statute.

For similar reasons, an amendment is also proposed for rule 206.45, which would provide that the date on which a petition is filed would be deemed to be the next business day when a petition is filed after 12:00 noon.

Section 207.23 currently requires interested parties that are parties to the investigation to submit a prehearing brief no later than four (4) business days prior to the hearing. As noted above, it is proposed to make this deadline one business day earlier, so that prehearing briefs will be due five business days prior to the hearing, giving the Commission and staff some additional time to consider arguments and information presented in those prehearing briefs.

Rule 207.24(d) provides that a party to the investigation may request that a portion of the public hearing be held in camera, but requires that the request be made no later than seven (7) calendar days prior to the hearing. However, parties frequently wait until that last day before making such requests. It normally takes several business days to process and consider such requests. Frequently other parties to the investigation respond to the request a day or two after the request is made, either to object or to note their concurrence with the request. Thus, generally it is not possible to reach a decision as to whether to grant or deny the request until shortly before the hearing, both making hearing preparation more difficult for parties (because they do not know whether or not the hearing will be public in its entirety) and taking time to prepare for the hearing away from the Commission and staff. Accordingly, it is proposed to amend rule 207.24 to require that requests to close a portion of the hearing be made no later than seven (7) business (instead of calendar) days prior to the hearing and that any comments on that request be made within two (2) business days after the filing of the request. As always, the Commission would seek to act on such requests as expeditiously as possible, but a somewhat earlier deadline for submitting the request may result in an earlier decision than is currently possible.

The rules currently provide that the Commission Secretary is responsible for the APO in a NAFTA appeal, pursuant to Commission rule 207.93(a), 19 U.S.C. 1677f(f)(1), and NAFTA Rules 47(3) and 48. Parties to a NAFTA appeal that were covered by a Commission APO during the underlying investigation are bound to the terms of the NAFTA APO (Form C) 15 days after the first request for a panel, if they have not notified the Commission of return or destruction of documents. These parties to the NAFTA appeal are not required to file a new APO application in the NAFTA appeal, but are required, pursuant to Commission rule 207.93(c)(5), to file 4 copies with the NAFTA Secretariat and 3 copies with the Commission Secretary of the APO applications and other various updates in the underlying proceeding. The parties also must inform the Commission Secretary of any changes to both the Commission and NAFTA APOs. Individuals not covered in the original Commission APOs must file a NAFTA APO form C. Parties frequently have filed both copies of the original Commission APOs and the NAFTA APO form C when not required by the Commission or NAFTA rules.

To streamline and clarify this process, the Commission proposes to change its rule so that all parties would file NAFTA APO applications. Parties covered under the Commission APO would still be bound on day 15, but would be required to file new NAFTA APO applications rather than file the numerous copies of original Commission applications and updates. This would streamline the process for the Commission Secretary and parties as well as reduce the papers filed. The proposed change to Commission rule 207.93(e) would also set forth a requirement that the Commission Secretary compile a NAFTA APO list.

A minor amendment is also proposed to change the references to the Mexican Secretary of Commerce and Industrial Development to the Mexican Secretary of Economia which we are informed by the NAFTA Secretariat is the more accurate term.

List of Subjects in CFR Parts 206 and 207

• Administrative practice and procedure
• Investigations

For the reasons stated in the preamble, the Commission proposes to amend 19 CFR parts 206 and 207 as set forth below:

PART 206—INVESTIGATIONS RELATING TO GLOBAL AND BILATERAL SAFEGUARD ACTIONS, MARKET DISRUPTION, TRADE DIVERSION, AND REVIEW OF RELIEF ACTIONS

1. The authority citation for part 206 continues to read as follows:

Authority: 19 U.S.C. 1335, 2251-2254, 2451-2451a, 3351-3382, sections 103, 301-302, Pub. L. 103-465, 108 Stat. 4809.

2. Amend § 206.17 by revising paragraphs (b) introductory text, (b)(1) introductory text, and (b)(1)(iv) to read as follows:

PART 207—INVESTIGATIONS OF WHETHER INJURY TO DOMESTIC INDUSTRIES RESULTS FROM IMPORTS SOLD AT LESS THAN FAIR VALUE OR FROM SUBSIDIZED EXPORTS TO THE UNITED STATES

4. The authority citation for part 207 continues to read as follows:

Authority: 19 U.S.C. 1336, 1671-1677n, 2482, 3513.

5. Amend § 207.3 by revising paragraph (b) as follows: