Proposed Rule2022-25675
Administrative Protective Order, Service, and Other Procedures in Antidumping and Countervailing Duty Proceedings
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 28, 2022
Issuing agencies
Commerce DepartmentInternational Trade Administration
Abstract
Pursuant to its authority under title VII of the Tariff Act of 1930, as amended (the Act), the Department of Commerce (Commerce) proposes to modify its regulations governing procedures related to administrative protective orders (APO) and service of documents submitted in antidumping (AD) and countervailing duty (CVD) proceedings. Commerce proposes to make permanent certain changes to its service procedures that have been adopted on a temporary basis due to COVID-19. Commerce also proposes additional clarifications and corrections to other procedural aspects of its AD/CVD regulations, including updates to the scope, circumvention, and covered merchandise referral regulations. Lastly, Commerce proposes to delete from its regulations two provisions that have been invalidated by the United States Court of Appeals for the Federal Circuit (Federal Circuit).
Full Text
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<title>Federal Register, Volume 87 Issue 227 (Monday, November 28, 2022)</title>
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[Federal Register Volume 87, Number 227 (Monday, November 28, 2022)]
[Proposed Rules]
[Pages 72916-72927]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-25675]
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DEPARTMENT OF COMMERCE
International Trade Administration
19 CFR Part 351
[Docket No. 221102-0229]
RIN 0625-AB15
Administrative Protective Order, Service, and Other Procedures in
Antidumping and Countervailing Duty Proceedings
AGENCY: Enforcement and Compliance, International Trade Administration,
Department of Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: Pursuant to its authority under title VII of the Tariff Act of
1930, as amended (the Act), the Department of Commerce (Commerce)
proposes to modify its regulations governing procedures related to
administrative protective orders (APO) and service of documents
submitted in antidumping (AD) and countervailing duty (CVD)
proceedings. Commerce proposes to make permanent certain changes to its
service procedures that have been adopted on a temporary basis due to
COVID-19. Commerce also proposes additional clarifications and
corrections to other procedural aspects of its AD/CVD regulations,
including updates to the scope, circumvention, and covered merchandise
referral regulations. Lastly, Commerce proposes to delete from its
regulations two provisions that have been invalidated by the United
States Court of Appeals for the Federal Circuit (Federal Circuit).
DATES: To be assured of consideration, written comments must be
received no later than December 28, 2022.
ADDRESSES: Submit electronic comments only through the Federal
eRulemaking Portal at <a href="http://www.Regulations.gov">http://www.Regulations.gov</a>, Docket No. ITA-2022-
0013. Comments may also be submitted by mail or hand delivery/courier,
addressed to Lisa W. Wang, Assistant Secretary for Enforcement and
Compliance, Room 18022, Department of Commerce, 1401 Constitution Ave.
NW, Washington, DC 20230. An appointment must be made in advance with
the APO/Dockets Unit at (202) 482-4920 to submit comments in person by
hand delivery or courier. All comments submitted during the comment
period permitted by this document will be a matter of public record and
will generally be available on the Federal eRulemaking Portal at <a href="http://www.Regulations.gov">http://www.Regulations.gov</a>. Commerce will not accept comments accompanied by
a request that part or all of the material be treated confidentially
because of its business proprietary nature or for any other reason.
Therefore, do not submit confidential business information or otherwise
sensitive or protected information.
Any questions concerning the process for submitting comments should
be submitted to Enforcement & Compliance Communications office at (202)
482-0063 or <a href="/cdn-cgi/l/email-protection#36737575595b5b43585f5557425f59584576424457525318515940"><span class="__cf_email__" data-cfemail="bffafcfcd0d2d2cad1d6dcdecbd6d0d1ccffcbcddedbda91d8d0c9">[email protected]</span></a>.
FOR FURTHER INFORMATION CONTACT: Nikki Kalbing at (202) 482-4343, Elio
Gonzalez at (202) 482-3765, or Scott McBride at (202) 482-6292.
SUPPLEMENTARY INFORMATION:
General Background
Title VII of the Act vests Commerce with authority to administer
the AD/CVD laws. In particular, section 731 of the Act directs Commerce
to impose an AD order on merchandise entering the United States when it
determines that a producer or exporter is selling a class or kind of
foreign merchandise into the United States at less than fair value
(i.e., dumping), and material injury or threat of material injury to
that industry in the United States is found by the International Trade
Commission (ITC). Section 701 of the Act directs Commerce to impose a
CVD order when it determines that a government of a country or any
public entity within the territory of a country is providing, directly
or indirectly, a countervailable subsidy with respect to the
manufacture, production, or export of a class or kind of merchandise
that is imported into the United States, and material injury or threat
of material injury to that industry in the United States is found by
the ITC.\1\
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\1\ A countervailable subsidy is further defined under section
771(5)(B) of the Act as existing when: A government or any public
entity within the territory of a country provides a financial
contribution; provides any form of income or price support; or makes
a payment to a funding mechanism to provide a financial
contribution, or entrusts or directs a private entity to make a
financial contribution, if providing the contribution would normally
be vested in the government and the practice does not differ in
substance from practices normally followed by governments; and a
benefit is thereby conferred. To be countervailable, a subsidy must
be specific within the meaning of section 771(5A) of the Act.
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In conducting its AD/CVD proceedings, the statute directs Commerce
to make certain information generally available on a public record.\2\
Because of the nature of Commerce's proceedings, which frequently
require Commerce to rely on non-public information such as business
proprietary information in issuing its determinations, the statute also
provides a framework for Commerce to receive such information and
maintain its proprietary nature by exempting it from disclosure on the
public record. Specifically, pursuant to section 777(c)(1)(A) of the
Act, Commerce must make available to interested parties, under an APO,
business proprietary information submitted to it during the course of
an AD/CVD proceeding. Additionally, section 777(d) of the Act requires
that parties submitting to Commerce business proprietary information
which is covered by an APO must serve such information on all
interested parties who are parties to the proceeding that are subject
to the protective order.\3\ Section 777(d) of the Act also requires
that the submitter serve a nonconfidential summary of the business
proprietary information to all interested parties who are parties to
the proceeding. Further, section 777(d) of the Act states that Commerce
shall not accept information which is not accompanied by a certificate
of service or otherwise does not comply with the statutory
requirements. Section 777(c)(1)(B) of the Act authorizes Commerce to
issue regulations governing the APO process. Commerce's current
regulations are codified at 19 CFR part 351.
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\2\ See generally section 777(a) of the Act. See also 19 CFR
351.104 (describing the official record of AD/CVD proceedings).
\3\ ``Interested party'' is defined under section 771(9) of the
Act and 19 CFR 351.102(b)(29); ``party to the proceeding'' is
defined under 19 CFR 351.102(b)(36).
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Section 351.303 of Commerce's regulations provides procedural rules
governing the filing of documents (including public documents
containing only public information, business
[[Page 72917]]
proprietary documents containing business proprietary information, and
public versions of business proprietary documents),\4\ as well as
service of documents. In particular, Sec. 351.303(b) generally
requires that all parties submitting documents to Commerce must file
electronically through Commerce's Antidumping and Countervailing Duty
Centralized Electronic Service System (ACCESS). Additionally, Sec.
351.303(f)(1)(i) generally requires that all documents filed with
Commerce must be served simultaneously on all parties on the relevant
public or APO service lists.\5\ Section 351.303 also contains special
rules for specific types of documents. For example, Sec. 351.303(c)
allows for a one-day lag in the filing of the final version of business
proprietary documents and public versions of proprietary documents
(known as the ``one-day lag rule''). Commerce has adopted a number of
temporary changes to its service rules due to COVID-19.\6\ These
changes are codified at Sec. 351.303(f)(4).
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\4\ See 19 CFR 351.105 (defining the various categories of
information in AD/CVD proceedings).
\5\ See 19 CFR 351.103(d) (describing service lists in AD/CVD
proceedings). Under Commerce's regulations, only those parties that
have filed their application for APO access and been approved in
accordance with 19 CFR 351.103(d)(1) and 19 CFR 351.305 will be
included on the APO service list. Additionally, those parties that
have filed a letter of appearance in accordance with 19 CFR
351.103(d)(1) will be included on the public service list.
\6\ See Temporary Rule Modifying AD/CVD Service Requirements Due
to COVID-19, 85 FR 17006 (March 26, 2020) (Temporary Rule)
(temporarily modifying certain requirements for serving documents
containing business proprietary information in AD/CVD cases to
facilitate the effectuation of service through electronic means for
purposes of promoting public health and slowing the spread of COVID-
19). The Temporary Rule was extended on May 18, 2020, and then again
indefinitely on July 10, 2020. See Extension of Effective Period, 85
FR 29615 (May 18, 2020); Extension of Effective Period, 85 FR 41363
(July 10, 2020).
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The purpose of the regulatory changes proposed in this rulemaking
is to assist in making the administration of Commerce's AD/CVD
proceedings more efficient by allowing parties to utilize available
electronic or other efficient means of service. In addition, the
proposed changes also update certain outdated cross-references and
citations, remove two paragraphs (Sec. Sec. 351.204(d)(3) and
351.408(c)(3)) invalidated by the Federal Circuit, and make other
revisions intended to clarify certain regulatory provisions, including
the scope, circumvention, and covered merchandise referral regulations.
Explanation of the Proposed Rule
1. Service of Documents via ACCESS--Section 351.303(f)
Current Sec. 351.303(f)(1)(i) provides that service of documents
filed with Commerce on the record of a segment of a proceeding \7\ must
be done simultaneously via personal service or first-class mail on all
parties on the relevant APO or public service lists, with certain
exceptions.\8\ Of importance, Sec. 351.303(f)(1)(ii) provides that
service of public documents, public versions of business proprietary
documents, or a business proprietary document containing only the
server's own business proprietary information may be made by facsimile
transmission or other electronic transmission process, with the consent
of the person to be served. Additionally, Sec. 351.303(f)(3)(i)
provides special rules for expediting service of case and rebuttal
briefs upon designated agents located within and outside the United
States.
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\7\ See 19 CFR 351.102(b)(40) (defining AD/CVD proceeding) and
19 CFR 351.102(b)(47) (defining segment of a proceeding).
\8\ For instance, the filing of AD/CVD petitions under 19 CFR
351.202(c) is exempted from simultaneous service under 19 CFR
351.303(f)(1)(i). However, service of the business proprietary
documents would be required after the establishment of an APO for
parties who join the APO service list. See 19 CFR 351.305(a) and
(b)(3) through (4). The filing of proposed suspension agreements
under 19 CFR 351.208(f)(1) is exempted from service altogether, as
19 CFR 351.208(f)(2) requires Commerce to provide a copy of the
proposed agreement to the petitioner.
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In a prior rulemaking in which Commerce first established its
electronic filing procedures under ACCESS, Commerce also announced the
future implementation of its now-existing procedures related to the
electronic release of Commerce-generated documents using ACCESS.\9\
Pursuant to these procedures, Commerce currently releases both public
and business proprietary documents (and public versions of business
proprietary documents) which it has self-generated using ACCESS. Upon
release, Commerce notifies the lead attorney for service and any other
designated authorized individuals on the relevant APO and public
service lists via email that a new document has been posted to a
particular segment of a proceeding.\10\ The authorized user is then
able to securely access the business proprietary document for 14 days
from the date of filing,\11\ before its access to the document expires
(access to public documents and public version documents does not
expire; these documents remain available on ACCESS). At the time
Commerce announced these procedures, it received comments requesting
that Commerce adopt similar procedures to effectuate service of
documents filed by interested parties on one another.\12\ Commerce
considered these comments, but ultimately determined to focus its
attention on establishing electronic filing procedures, rather than
electronic service.\13\
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\9\ See Antidumping and Countervailing Duty Proceedings:
Electronic Filing Procedures; Administrative Protective Order
Procedures, 76 FR 39263, 39273 (July 6, 2011) (2011 Final Rule).
\10\ See ACCESS Handbook on Electronic Filing Procedures at 19-
21 available at <a href="https://access.trade.gov/help/Handbook_on_Electronic_Filing_Procedures.pdf">https://access.trade.gov/help/Handbook_on_Electronic_Filing_Procedures.pdf</a>.
\11\ Id. at 20-21.
\12\ 2011 Final Rule, 76 FR at 39270.
\13\ Id. (``The Department agrees that changes affecting service
of business proprietary information should be introduced gradually
and be subject to comment . . . {T{time} he Department has not
changed any of the service requirements in the regulations . .
.{because{time} {t{time} he Department has decided to focus on
electronic filing, rather than electronic service, at this time.'').
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In the years since the 2011 Final Rule, the establishment of
ACCESS, and the Temporary Rule, Commerce has gained significant
experience with its electronic filing and service procedures and is now
proposing new regulations to formally effectuate service via ACCESS.
Since the Temporary Rule went into effect on March 24, 2020, Commerce
received comments from the Committee to Support U.S. Trade Laws
(CSUSTL) \14\ and the Customs and International Trade Bar Association
(CITBA) \15\ expressing support for the Temporary Rule and requesting
that Commerce promulgate regulations to make service of business
proprietary documents via ACCESS permanent.
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\14\ Letter to the Hon. Wilbur L. Ross, Jr. from Mark B.
Benedict and Timothy C. Brightbill on behalf of CSUSTL re Potential
Responses to COVID-19/Workload Issues Affecting AD/CVD Cases (July
9, 2020) at 2 (``We believe the system has worked well, and Commerce
should strongly consider making it permanent.'').
\15\ Letter to the Hon. Wilbur Ross from Deanna Tanner Okun and
Elizabeth Drake, on behalf of CITBA re Petition for Rulemaking to
Promulgate Temporary Rule Modifying AD/CVD Service Requirements Due
to COVID-19 as Final Rules.
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Under the Temporary Rule, Sec. 351.303(f)(4) provides that, with
limited exceptions, service of business proprietary documents are
deemed to have been served on persons on the APO service list upon
filing of the business proprietary document in ACCESS. Those APO-
authorized persons receive an ACCESS email notification called a ``BPI
Release Digest'' at approximately noon and 5:00 p.m. on business days,
which notifies them of the availability of business proprietary
documents for download. Those documents remain available for 14 days
after filing. This method of
[[Page 72918]]
service does not apply to requests for administrative review, new
shipper review, changed circumstances review and expedited review.
Because service lists for these segments are not yet established in
ACCESS at the time of filing the relevant request, parties must serve
them by personal service or first-class mail.\16\ In addition, requests
for a scope ruling or circumvention inquiry are served in accordance
with Sec. Sec. 351.225(n) and 351.226(n), respectively. The Temporary
Rule also does not apply to the service of public documents and public
versions of business proprietary documents. However, Commerce proposes
effectuating service via ACCESS for public documents and public
versions of business proprietary documents with revised Sec.
351.303(f)(1), as discussed below.
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\16\ See 19 CFR 351.303(f)(3)(ii).
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Commerce proposes to continue requiring a person filing a document
with Commerce to simultaneously serve a copy of the document on all
other persons on the service list, with the exception of a petition and
proposed suspension agreement (which are addressed under Sec. Sec.
351.202(c) and 351.208(f)(1), respectively) and requests for an
expedited antidumping review, an administrative review, a new shipper
review, or a changed circumstances review (which have specific service
requirements under current paragraph (f)(3) and revised paragraph
(f)(2) of this section). Revised paragraph (f)(1)(i) addresses service
of public documents and public versions of business proprietary
documents. Revised paragraph (f)(1)(ii) addresses service of business
proprietary documents, and revised paragraph (f)(1)(iii) provides
acceptable alternative methods of service when ACCESS cannot effectuate
service.
Under revised paragraph (f)(1)(i), service of a public document or
public version of a business proprietary document is effectuated on the
persons on the public service list upon filing of the submission in
ACCESS, unless ACCESS is unavailable, in which case paragraph
(f)(1)(iii) is applicable. This is an expansion of the Temporary Rule,
which only applies to business proprietary documents. Commerce has
determined that effectuating service via ACCESS will make the method of
service consistent between business proprietary documents, public
documents and public versions of business proprietary documents. It
will also reduce the burden on the parties, while also reducing the
risk of error associated with serving incorrect documents or incorrect
parties. Similar to what is done with business proprietary documents,
ACCESS will email a ``Public Release Digest'' that notifies parties to
the proceeding when a public document or public version of a business
proprietary document submitted by parties to the proceeding is
available for download. This digest will be emailed to individuals on
Commerce's public service lists at approximately noon and 5:00pm on
business days.
Under new paragraph (f)(1)(ii)(A), service of a business
proprietary document is effectuated on the persons on the APO service
list upon filing of the submission in ACCESS, unless ACCESS is
unavailable, in which case paragraph (f)(1)(iii) is applicable. In
addition, new paragraph (f)(1)(ii)(A) provides that a business
proprietary document submitted under the one-day lag rule that contains
bracketing \17\ that is not final under paragraph (c)(2)(i) must be
served using an acceptable alternative method under paragraph
(f)(1)(iii), as discussed below. Because bracketing is not final until
one business day after filing these documents, Commerce does not make
them available in ACCESS. Therefore, they require an alternative method
of service.
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\17\ The term ``bracketing'' refers to the placement of square
brackets (``[ ]'') around certain information to indicate that the
submitter of the information requests business proprietary treatment
for that item of information. See 19 CFR 351.304(b).
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Under new paragraph (f)(1)(ii)(B), if a document contains business
proprietary information of a person who is not included on the APO
service list, then service of such document on that person cannot be
effectuated on ACCESS. Instead, the submitter must serve that person
its own business proprietary information using an acceptable
alternative method under new paragraph (f)(1)(iii) and in accordance
with Sec. 351.306(c)(2) as applicable.
Under new paragraph (f)(1)(iii), Commerce will provide that if
service of a public document, a public version of a business
proprietary document, or a business proprietary document cannot be
effectuated on ACCESS for any reason, an acceptable alternative method
of service must be used, such as first class mail, hand delivery or
electronic transmission.
With regard to service by electronic transmission, Commerce's
current regulations provide that service of a public document, a public
version of a business proprietary document, or a business proprietary
document containing the submitter's own business proprietary
information, may be made by facsimile or other electronic transmission
process, with the consent of the person being served. This provision
was first introduced in 1997 (including only service of a submitter's
own business proprietary document and service of public versions),\18\
and later amended in 2011 to include service of public documents and
make specific reference to APO and public service lists.\19\
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\18\ Antidumping Duties; Countervailing Duties: Final Rule, 62
FR 27296, 27337 (May 19, 1997) (1997 Antidumping and Countervailing
Duties Final Rule).
\19\ 2011 Final Rule, 76 FR at 39270.
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Commerce has since received several informal suggestions and
comments from pro se parties and non-APO-authorized representatives
located outside the United States requesting that other parties be
allowed to serve them their own business proprietary information by
email or other electronic process. Commerce has generally discouraged
the emailing of third-party business proprietary information, but
recognized that allowing it with the consent of the recipient, when the
business proprietary information belongs to the recipient, would result
in efficiencies and allow those parties who could not be served through
ACCESS (such as pro se parties and non-APO-authorized representatives)
to receive service in a more expeditious manner than first class mail
or other means specified in the regulations. As such, in the Temporary
Rule at paragraph (f)(4)(iv), Commerce allowed an interested party to
serve by electronic transmission a pro se party or a non-APO-authorized
representative of a party, a document containing the business
proprietary information of either the pro se party or the party
represented by the non-APO-authorized representative.
In this proposed rule, Commerce has created a new paragraph
(f)(1)(iii) that expands the scope of paragraph (f)(4)(iv) of the
Temporary Rule to allow service by electronic transmission if the
business proprietary document being served contains the business
proprietary information of either the submitter or the recipient, with
the consent of the recipient. By referring to the submitter and
recipient rather than pro se party and non-APO-authorized
representative as in the Temporary Rule, Commerce is proposing to
expand the eligible group to also include APO-authorized
representatives, such that APO-authorized representatives will also be
permitted to serve one another by electronic transmission, provided
that the business proprietary information in the document belongs to
the client of
[[Page 72919]]
either the representative submitting the document or receiving service,
and that the receiving representative gives its consent. Documents
containing third-party business proprietary information belonging to a
party other than the submitter or the recipient may not be served by
electronic transmission under this paragraph.
Current paragraphs (f)(2) and (f)(3) involve certificates of
service and service requirements for certain documents, respectively.
Revised paragraphs (f)(2) and (f)(3) reverse the order in which each
topic is addressed. Current paragraph (f)(3)(i) requires the person
filing a case or rebuttal brief to simultaneously serve on all persons
on the service list and on any U.S. Government agency that has
submitted a case or rebuttal brief by either personal service on the
same day the brief is filed or by overnight mail or courier on the next
day. Further, if the person has designated an agent to receive service
that is located outside the United States, service on that person must
be by first class airmail. This requirement has been negated by the
Temporary Rule, which allows service of case and rebuttal briefs via
ACCESS on the date they are filed.
In this proposed rule, Commerce will remove the special
requirements for service of case and rebuttal briefs from paragraph
(f)(3)(i). Instead, service of case and rebuttal briefs will occur
under the general service provision in revised paragraph (f)(1).
Current paragraph (f)(3)(ii), which requires a request for expedited
antidumping review, an administrative review, a new shipper review, or
a changed circumstances review to be served by personal service or
first class mail on each exporter or producer specified in the request
and on the petitioner by the end of the anniversary month or within ten
days of filing the request for review, whichever is later, will then be
renumbered as paragraph (f)(2)(i). Commerce will also revise the
citation contained in revised paragraph (f)(2)(i), from paragraph
(f)(2) to paragraph (f)(3), which is the renumbered paragraph involving
certificate of service requirements.
Commerce proposes creating a new paragraph (f)(2)(ii) to require an
interested party that files a scope ruling application or request for
circumvention inquiry to serve a copy of the request on all persons
included in the annual inquiry service list in accordance with
Sec. Sec. 351.225(n) and 351.226(n), respectively. Commerce added this
paragraph to bring the service regulations in conformity with the
September 20, 2021, final rule modifying various provisions of
Commerce's AD and CVD regulations.\20\
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\20\ See Regulations to Improve Administration and Enforcement
of Antidumping and Countervailing Duty Laws, 86 FR 52300 (September
20, 2021) (2021 Final Rule).
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Revised paragraph (f)(3) will contain the same language that
appears in current paragraph (f)(2), which requires that each document
filed with Commerce include a certificate of service listing each
person served (including agents), the type of document served, and the
date and method of service on each person. It continues to state that
Commerce may refuse to accept any document that is not accompanied by a
certificate of service. No changes are made to this paragraph besides
the numbering. Commerce believes it is useful for a submitter to
document the parties who it understands will be served at the time of
filing the document. A certificate of service is also essential to
determining the method of service when an acceptable alternative method
of service (besides ACCESS) is used.
In light of the changes discussed in this proposed rule, Commerce
finds that it is no longer necessary to continue the service rules set
forth in the Temporary Rule and codified at Sec. 351.303(f). Commerce
therefore proposes to terminate and remove Sec. 351.303(f)(4). If this
proposal is adopted, Sec. 351.303(f) will be terminated.
2. Service on Pro Se Parties and Non-APO-Authorized Representatives--
Section 351.306(c)(2)
Section 351.306(c)(2) of Commerce's current regulations requires a
party submitting a document containing the business proprietary
information of a pro se party to serve that pro se party with a version
of the document containing only the pro se party's business proprietary
information. The current regulations do not contain any similar
requirement that a party submitting a document containing the business
proprietary information of a party with a non-APO-authorized
representative must also serve that non-APO-authorized representative
with a version of the document containing only the business proprietary
information of the party with the non-APO-authorized representative.
However, the Temporary Rule at Sec. 351.303(f)(4)(iv) contained such a
provision. Commerce thus proposes making it permanent by adding to
Sec. 351.306(c)(2) the requirement that the submitting party must also
serve a party's non-APO-authorized representative with a version of the
document that contains only that non-APO-represented party's business
proprietary information.
3. Service Requirement for Earlier-Filed Business Proprietary
Submissions Upon New Authorized Applicants--Section 351.305
Commerce's current regulations at Sec. 351.303(f) require a
submitter to serve a document on all persons on the APO and public
service lists simultaneously at the time of filing. Because the service
lists are updated on an ongoing basis, Commerce requires submitters to
serve earlier-filed business proprietary documents upon representatives
who are added to the APO service lists after a document has been filed.
Specifically, Sec. 351.305(b)(3) and (4) require service of such
documents already on the record upon a representative within two
business days after they are added to the APO service list for a
submission filed before the first questionnaire response is filed, and
within five business days for submissions filed after the first
questionnaire response is filed.\21\ Parties or their representatives
are currently responsible for monitoring who is added to the APO
service list and serving those parties as the segment of the proceeding
progresses. There is no service requirement for parties added to the
public service list after a document is filed, because these documents
can be retrieved on ACCESS.
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\21\ See Antidumping and Countervailing Duty Proceedings:
Documents Submission Procedures; APO Procedures: Final Rule, 73 FR
3634, 3637 (January 22, 2008). In 2008, Commerce re-established the
requirement to serve a new authorized applicant within two business
days of the approval of the APO application for submissions filed
before the first questionnaire response is submitted. Commerce noted
that this requirement was previously in place before the 1998 Final
Rule but it was inadvertently deleted from it. Id.
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In this proposed rule, Commerce is requiring those representatives
who are granted APO access after a business proprietary document has
already been filed, but is no longer available in ACCESS, to contact
the party that filed the business proprietary document to request
service of that document by any acceptable means agreed upon by the
parties (i.e., electronic service or otherwise). Commerce proposes to
remove the requirement of service of earlier-filed business proprietary
documents to new authorized applicants from current paragraphs (b)(3)
and (4) and address it in a new paragraph (c)(2). Current paragraph
(b)(3) is removed and current paragraph (b)(4) is renumbered (b)(3).
The proposed regulation removes the responsibility of the submitter to
monitor the newly added authorized
[[Page 72920]]
applicants to identify who needs to be served, and places the
responsibility on the authorized applicant to request service. This
requirement is addressed in new paragraph (c)(2).
In addition, revised paragraph (b)(3) and new paragraphs (c)(2)(i)
and (ii) specify the timeframe in which service must be made, by
considering whether the authorized applicant's APO application was
approved before or after the first questionnaire response is submitted.
Commerce proposes replacing ``first questionnaire response'' with
``first response to the initial questionnaire'' so it is not mistaken
with other questionnaire responses such as Quantity and Value
questionnaire responses. Commerce proposes specifying that the
submitting party must serve the authorized applicant within two
business days of the request if the APO application is approved before
the first response to the initial questionnaire was submitted under
paragraph new (c)(2)(i). If the APO application was approved after the
first response to the initial questionnaire was submitted, revised
paragraph (c)(2)(ii) requires the submitting party to serve the
authorized applicant within five business days of the request.
4. One-Day Lag Rule--Section 351.303
In 1997, Commerce codified its practice of allowing a party to file
only one copy of a business proprietary document on the deadline, and
then take additional time to review the bracketing of business
proprietary information, and make the necessary changes to the
bracketing before filing the required number of copies of the final
business proprietary document and the public version on the next
business day.\22\ The one-day lag rule was intended to provide an
additional safeguard by giving more time to interested parties to
ensure that both their own business proprietary information as well as
APO-protected information of third parties is not inadvertently
disclosed. In 2011, with the introduction of electronic filing via
ACCESS, Commerce continued to allow filing under the one-day lag rule
under Sec. 351.303(c)(2)(i), which requires a person to file a
business proprietary document within the applicable deadline.\23\
Notably, petitions, supplements to a petition, or any other document
filed prior to the initiation of an investigation are excluded from the
one-day lag rule.\24\
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\22\ See 1997 Antidumping and Countervailing Duties Final Rule,
62 FR 27337; see also Antidumping and Countervailing Duty
Proceedings: Administrative Protective Order Procedures; Procedures
for Imposing Sanctions for Violation of a Protective Order, 63 FR
24391, 24393 (May 4, 1998) (1998 Final Rule) (stating that 1997
Antidumping and Countervailing Duties Final Rule's procedural
regulations codified Commerce practice of one-day lag rule).
\23\ 2011 Final Rule, 76 FR 39268.
\24\ Id.; see also 19 CFR 351.303(c)(2)(i).
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Normally, the business proprietary document filed on the due date
must be served in accordance with current Sec. 351.303(f)(i), but
under the Temporary Rule, Commerce waived this service requirement.\25\
A business proprietary document filed under the one-day lag rule
contains non-final bracketing and is therefore not treated as an
official record document in ACCESS. As such, business proprietary
documents filed under the one-day lag rule and containing non-final
bracketing cannot be served via ACCESS using the same technology used
for serving official record documents. During Commerce's temporary
waiver of this service requirement during the past two years, Commerce
became aware of uncertainties that resulted from waiving service. For
example, both Commerce staff and parties to the proceeding were
sometimes unaware that other interested parties were filing their
submissions under the one-day lag rule. At times, it was not clear
whether an interested party had missed the filing deadline or had opted
to use the one-day lag rule.
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\25\ Temporary Rule, 85 FR 17006.
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In this proposed rule, Commerce proposes reinstating the
requirement that a business proprietary document filed on the due date
under the one-day lag rule must also be served on the persons on the
APO service list and those non-APO authorized parties whose business
proprietary information is contained in the document using one of the
acceptable alternative methods of service under new Sec.
351.303(f)(1)(iii). This way, APO-authorized counsel and non-APO-
authorized parties whose business proprietary information is in the
document will receive service of the business proprietary document. In
addition, Commerce proposes requiring the submitter to also file the
certificate of service that would be included in the submission
(pursuant to Sec. 351.303(f)(3)), as a standalone public document in
ACCESS under revised Sec. 351.303(c)(2)(i). Filing the certificate of
service separately will document for the record the date and
alternative method of service used by the submitter when it filed the
business proprietary document under the one-day lag rule. This would
provide an ACCESS notification to Commerce staff and the parties to the
proceeding that the document was filed under the one-day lag rule.
Under current Sec. 351.303(c)(2)(ii), a submitter who used the
one-day lag rule must then file the complete final business proprietary
document by the close of business one business day after the applicable
deadline. The final business proprietary document must be identical, in
all respects, to the business proprietary document filed on the
previous day, except for any bracketing corrections. In addition, the
submitter must file the public version at the same time.\26\
---------------------------------------------------------------------------
\26\ See 19 CFR 351.303(c)(2)(iii).
---------------------------------------------------------------------------
Under Commerce's current service regulations, a submitter must
serve on persons on the APO service list the complete final business
proprietary document, if there are bracketing corrections. If there are
no bracketing corrections, a person need not serve a copy of the final
business proprietary document.\27\ A submitter must also serve the
public version on persons on the public service list.\28\ Because
ACCESS will generally effectuate service under the proposed amendments
to the regulations, it is no longer necessary for Sec.
351.303(c)(2)(ii) to state that service of the final business
proprietary document with bracketing corrections is required in all
circumstances. The service rules for the final business proprietary
document and the public version will default to the proposed general
rules regarding service outlined elsewhere in the proposed rule. To the
extent the final business proprietary document contains business
proprietary information of a party not on the APO service list, service
of the final business proprietary document must be made using an
acceptable alternative means of service, with that party's consent.
---------------------------------------------------------------------------
\27\ See 19 CFR 351.303(c)(2)(ii).
\28\ See 19 CFR 351.303(c)(2)(iii).
---------------------------------------------------------------------------
5. Filing of Public Versions of Business Proprietary Documents--Section
351.304
Current Sec. 351.304(c)(1) provides that parties filing documents
containing business proprietary information must file a public version
of the document on the first business day after the filing deadline for
the business proprietary version. In some instances, parties have
interpreted Sec. 351.304(c)(1) to mean that the deadline for the
public version of a business proprietary document not filed under the
one-day lag rule is the first business day after the filing deadline
for the business proprietary document. Commerce proposes to revise
Sec. 351.304(c)(1) to clarify that the public
[[Page 72921]]
version of a business proprietary document is due on the filing
deadline of the business proprietary document. Thus, the public version
of a business proprietary document not filed under the one-day lag rule
is due the same day as the business proprietary document is filed.
However, if the business proprietary document is filed under the one-
day lag rule, the deadline for the public version of the business
proprietary document is the first business day after the filing
deadline for the business proprietary document (the same deadline as
the final business proprietary document filed under the one-day lag
rule). Finally, current Sec. 351.304(c)(1) incorrectly references
Sec. 351.303(b), which sets forth general filing requirements. The
correct citation is to Sec. 351.303(c)(2), which details filing
requirements under the one-day lag rule. Commerce proposes to correct
this citation.
Current Sec. 351.304(c)(2) provides that under the one-day lag
rule, a submitter may make corrections to the bracketing of a business
proprietary document, and file a corrected final business proprietary
document and public version on the next business day. However, Sec.
351.304(c)(2) incorrectly references Sec. 351.303(b), which sets forth
general filing requirements. The correct citation is to Sec.
351.303(c)(2)(ii) and (iii), which detail filing requirements under the
one-day lag rule for the final business proprietary document and public
version. In addition, Sec. 351.304(c)(2) incorrectly references
``paragraph (c)(2)'' (i.e., Sec. 351.304(c)(2)) which is the very same
paragraph). The correct citation is to the preceding paragraph, Sec.
351.304(c)(1), which sets forth the date in which the public version
should be filed under the one-day lag rule. Commerce proposes
corrections to these citations.
6. APO Applications--Section 351.305(b)(2)
Section 351.305(b)(2) describes the process in which a
representative of a party to the proceeding may obtain access to
proprietary information under an APO by submitting Form ITA-367 to the
Secretary, allowing for the use of an applicant's own word processing
equipment to create the application, and requiring it to be served
using the most expeditious means possible. Commerce proposes to revise
this provision to require an applicant to use electronic Form ITA-367,
which is available in ACCESS at <a href="https://access.trade.gov">https://access.trade.gov</a>. The
electronic application will then be filed and served in ACCESS upon
submission. As such, Commerce also proposes revising this provision to
remove the separate requirement that the application be served using
the most expeditious means possible because service will be effectuated
via ACCESS.
7. Central Records Unit and Administrative Protective Order and Dockets
Unit--Section 351.103
Commerce proposes updating certain information pertaining to the
Central Records Unit (CRU) and Administrative Protective Order and
Dockets (APO/Dockets) Unit in Sec. 351.103(a) and (b), including an
update of the CRU's room number in paragraph (a) and the deletion of an
extraneous period in Commerce's street address in paragraphs (a) and
(b). In addition, Commerce proposes adding a statement that visitors to
the CRU and the APO/Dockets Unit should consult the ACCESS website for
information regarding in-person visits and in-person manual filings,
respectively. By posting such information on the ACCESS website,
Commerce can provide updates to the public as to the operating status
of the CRU and the APO/Dockets Unit. This will be helpful in light of
limited operations or restrictions on visitor access to the Commerce
building, such as those related to COVID-19.
8. Other Corrections and Updates
Commerce proposes to make certain additional revisions to the
regulations, as described below.
A. Sections 351.404(d) and 351.104(a)(2)(ii)(A)
Commerce's current regulations contain certain outdated cross-
references to other regulatory provisions. Commerce proposes to correct
the following cross-references.
First, Sec. 351.404(d) states that allegations concerning market
viability or exceptions to calculating price-based normal value in
viable markets must be filed within the time limits set forth under
Sec. 351.301(d)(1). However, based on the 2013 amendments to the
regulations, the current regulations do not contain a Sec. 351.301(d),
and the correct cross-reference is Sec. 351.301(c)(2)(i).\29\
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\29\ The 2013 amendments to the regulations amended Sec.
351.301 to only include subsections (a)-(c). Under those amendments,
Sec. 351.301(c)(2)(i) became the new provision setting forth the
time limits for allegations concerning market viability or
exceptions to calculating price-based normal value in viable
markets. See Definition of Factual Information and Time Limits for
Submission of Factual Information, 78 FR 21246, 21255 (April 10,
2013) (2013 Final Rule). However, the amendments did not also update
Sec. 351.404(d) to cross-reference Sec. 351.301(c)(2)(i). Id.
---------------------------------------------------------------------------
Second, Sec. 351.104(a)(2)(ii)(A), regarding the rejection of
material from the record of a proceeding, currently refers to Sec.
351.301(b) for the definition of untimely filed new factual
information. However, based on the 2013 amendments to the regulations,
the correct cross-reference for time limits for submitting new factual
information is Sec. 351.301(c).\30\
---------------------------------------------------------------------------
\30\ Under the 2013 amendments to the regulations, the provision
on time limits for the submission of new factual information was
moved to Sec. 351.301(c). 2013 Final Rule, 78 FR 21255. However,
the amendments did not also update Sec. 351.104(a)(2)(ii)(A) to
cross-reference Sec. 351.301(c). Id.
---------------------------------------------------------------------------
B. Sections 351.301(c)(2)(vi) and (3)(iv)
Commerce also proposes to revise certain provisions in Sec.
351.301. Commerce's regulations at Sec. 351.301 set forth the time
limits for submitting factual information during the course of AD and
CVD proceedings. Many of the time limits specified in Sec. 351.301(c)
are based off the date a submission is filed with Commerce. However,
the time limits specified in Sec. 351.301(c)(2)(vi) and (c)(3)(iv) are
based off the date the submission of factual information is served on
interested parties. For clarity and to provide consistency in the time
limits that apply to the submission of factual information, Commerce
proposes to revise Sec. 351.301(c)(2)(vi) and (c)(3)(iv) so that the
time limits for submitting factual information under these provisions
are based off the date a submission is filed with Commerce.
C. Sections 351.225(f)(1), 351.225(f)(2), 351.226(f)(1), 351.226(f)(2)
and 351.227(d)
In the 2021 Final Rule, Commerce revised Sec. 351.225, which
describes the applicable procedures and standards concerning scope
inquiries, created Sec. 351.226, which describes the applicable
procedures and standards concerning circumvention inquiries, and
created Sec. 351.227, which applies to covered merchandise inquiries.
Current Sec. 351.225(f)(2) states that within 30 days of the
initiation of a scope inquiry under Sec. 351.225(d)(2), an interested
party other than the applicant is permitted one opportunity to submit
comments and factual information to rebut, clarify, or correct factual
information contained in the scope ruling application. However, the
cross-reference to Sec. 351.225(d)(2) is incorrect and the correct
reference is Sec. 351.225(d)(1), which governs the initiation of scope
inquiries. Therefore, Commerce proposes to correct this cross-
reference.
In addition, Sec. Sec. 351.225(f)(1) and (2), 351.226(f)(1) and
(2), and 351.227(d)(1) all use the terminology ``within 30 days of''
and ``within 14 days of,'' which has
[[Page 72922]]
led to some unnecessary confusion if that phrase refers to time period
before and after 30 and 14 days, or only after 30 and 14 days. The
intention of those regulatory provisions was always just to pertain to
periods ``after'' the triggering event, so Commerce proposes in each
incidence to replace the word ``of'' in those provisions with
``after.'' Thus, each phrase would now say ``within 30 days after'' and
``within 14 days after'' to make the deadlines for filing submissions
clearer.
D. Sections 351.225(b), 351.226(b), 351.225(d) and 351.226(d)(1)
As we have explained, in the 2021 Final Rule Commerce revised its
scope inquiry regulations and created new regulations to address
circumvention inquiries. One of those changes was to require that if
Commerce self-initiates a scope inquiry or circumvention inquiry, it
will publish a notice in the Federal Register initiating that inquiry.
The language currently in Sec. Sec. 351.225(b) and 351.226(b) says
that Commerce will ``initiate'' ``and publish a notice,'' but in fact,
Commerce intended for the initiation to be effective in both cases upon
the date of publication of those notice in the Federal Register.
Accordingly, for clarification, we are proposing modifying the language
to say that self-initiation of both inquiries will be ``by publishing a
notice of initiation in the Federal Register.''
As part of the new procedures set forth in both sets of
regulations, Commerce explained that it must make determinations to
accept or reject a scope application or circumvention inquiry request
within 30 days. Commerce also explained that if it does accept the
scope application or circumvention inquiry request, it must also decide
within that period of time to initiate or not initiate an inquiry. For
scope inquiries, if Commerce makes no determination in 30 days, then
the regulations under Sec. 351.225(d)(1)(ii) provides that the scope
ruling application will be deemed accepted and the scope inquiry will
be deemed initiated. We believe that the language in Sec. Sec.
351.225(d) and 351.226(d)(1) could be clarified with respect to both
the acceptance/rejection and initiation/no-initiation status in those
provisions, including a reference to the deemed initiation alternative
in Sec. 351.225(d)(1)(ii), so we have proposed the addition of
language in both provisions to avoid future misunderstandings.
E. Section 351.225(e)(2)
Section 225(e)(2) allows Commerce to extend a scope ruling for good
cause from its initial 120 days by no more than another 180 days. The
intention of the 180 day extension was to allow for a total of no more
than 300 days from initiation of the scope inquiry in which to issue a
scope ruling if the case were fully extended. However, some
individuals, both within Commerce and outside of Commerce, have asked
if the text in the regulation was intended to only allow extension of
the scope ruling up to 180 days following initiation. Accordingly, we
believe that Sec. 225(e)(2) should be clarified to add language
following the 180 day language to read as follows: ``by no more than
180 days, for a final scope ruling to be issued no later than 300 days
after initiation, if the Secretary determines that good cause exists to
warrant an extension.''
F. Section 351.226(l)(2)(ii)
Commerce proposes to add the word ``circumvention'' before the word
``inquiry'' in the phrase ``after the date of the publication of the
notice of initiation of the inquiry'' in Sec. 351.226(l)(2)(ii). This
is to provide clarification that this provision applies to the
initiation of a circumvention inquiry, and not another inquiry. Similar
language is found in the parallel provisions applicable to Sec. Sec.
351.225(l) (scope) and 351.227(l) (covered merchandise) inquiries, so
providing this clarifying word would assist in providing consistency
among these different inquiry regulations.
G. Section 351.227(b)
As we have explained, in the 2021 Final Rule, Commerce also created
new Sec. 351.227, which addresses procedures and standards specific to
Commerce's consideration of covered merchandise referrals from U.S.
Customs and Border Protection (CBP) under section 517(b)(4)(A) of the
Act. This regulation governs Commerce's receipt of a covered
merchandise referral from CBP, Commerce's initiation and conduct of a
covered merchandise inquiry, and Commerce's covered merchandise
determination. Commerce has identified certain aspects of Sec.
351.227(b) that need to be clarified and revised. Under current Sec.
351.227(b), within 20 days after receiving a covered merchandise
referral from CBP that Commerce determines to be sufficient, Commerce
will take one of two actions. Commerce will either initiate a covered
merchandise inquiry and publish a notice of initiation in the Federal
Register, or, if Commerce determines upon review of the covered
merchandise referral that the issue can be addressed in an ongoing
segment of the proceeding, such as a scope or circumvention inquiry,
Commerce will publish in the Federal Register a notice of its intent to
address the covered merchandise referral in such other segment.
Commerce intends to revise Sec. 351.227(b) in two ways. First,
Commerce clarifies that, within 20 days of receiving a covered
merchandise referral from CBP that Commerce determines to be
sufficient, Commerce will issue its decision whether to initiate a
covered merchandise inquiry or to address the covered merchandise
referral in an ongoing segment of the proceeding. It was not Commerce's
intent in drafting this regulation, and Commerce does not interpret
this regulation, to mean that Commerce will publish notice of its
decision in the Federal Register within 20 days of receipt its decision
to initiate a covered merchandise inquiry or to address a covered
merchandise referral in an ongoing segment of the proceeding. Thus,
Commerce intends to revise Sec. 351.227(b) to clarify this issue.
Second, Commerce intends to revise Sec. 351.227(b) to clarify that
Commerce will take one of the two actions described above within 20
days of acknowledging receipt of a sufficient covered merchandise
referral from CBP. This revision is necessary to preserve flexibility
and to allow Commerce the full 20 days provided in the regulation to
take one of the two actions described above after making a
determination that the covered merchandise referral is sufficient.\31\
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\31\ Commerce has described that in determining whether a
covered merchandise referral is sufficient, Commerce may consider,
among other things, whether the referral has provided the name and
contact information of the parties to CBP's investigation, including
the name and contact information of any known representative acting
on behalf of such parties; an adequate description of the alleged
covered merchandise; identification of the applicable AD or CVD
orders; and any necessary information reasonably available to CBP
regarding whether the merchandise at issue is covered merchandise.
See Regulations to Improve Administration and Enforcement of
Antidumping and Countervailing Duty Laws, Proposed Rule, 85 FR
49472, 49490 (August 13, 2020). Additionally, Commerce reviews the
covered merchandise referral and any accompanying documentation to
ensure any business proprietary information is properly redacted in
accordance with Commerce's statutory and regulatory requirements.
Id.
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H. Section 351.305(a)
Commerce proposes to revise Sec. 351.305(a) to add a reference to
requests for a circumvention inquiry filed under Sec. 351.226. In the
2021 Final Rule, Commerce created new Sec. 351.226, which covers the
procedures for Commerce to address potential circumvention of AD/CVD
orders. Prior to the 2021 Final Rule, circumvention
[[Page 72923]]
inquiries were governed under Commerce's scope inquiries regulation at
Sec. 351.225. Section 351.305(a) of Commerce's current regulations
discusses the timing of when Commerce places an administrative
protective order on the record of its proceedings. This paragraph
indicates that within five business days after the day on which an
application for a scope ruling is properly filed under Sec. 351.225,
Commerce will place an administrative protective order on the record of
the segment of the proceeding. Thus, Commerce proposes to revise Sec.
351.305(a) to add a reference to requests for a circumvention inquiry
filed under Sec. 351.226.
I. Sections 351.204(d)(3) and 351.408(c)(3)
Two of Commerce's regulations have been invalidated by the Federal
Circuit, and Commerce proposes to remove the invalidated paragraphs
from the CFR.
On June 3, 2014, the Federal Circuit invalidated Sec.
351.204(d)(3) of Commerce's regulations in MacLean-Fogg Co. v. United
States, 753 F. 3d 1237 (Fed. Cir. 2014) (MacLean-Fogg). The regulatory
language at issue is as follows: ``Exclusion of voluntary respondents'
rates from all-others rate. In calculating an all-others rate under
section 705(c)(5) or section 735(c)(5) of the Act, the Secretary will
exclude weighted-average dumping margins or countervailable subsidy
rates calculated for voluntary respondents.'' Section 705(c)(5)(A) of
the Act states that the ``all-others rate shall be an amount equal to
the weighted average countervailable subsidy rates established for
exporters and producers individually investigated.'' The Federal
Circuit held that there is no ambiguity in the statutory words
``individually'' and ``investigated,'' and that a voluntary respondent
who receives an individual rate has undergone ``individual
investigation.'' The Federal Circuit therefore concluded that Sec.
351.204(d)(3) was invalid, and Commerce is proposing removing that
paragraph and replacing it with the language found in current Sec.
351.204(d)(4).
Furthermore, on May 14, 2010, the Federal Circuit in Dorbest Ltd.
v. United States, 604 F. 3d 1363, 1372 (Fed. Cir. 2010) (Dorbest),
invalidated Sec. 351.408(c)(3) of Commerce's regulations. Section
733(c) of the Act provides that Commerce will value the factors of
production (FOPs) in non-market economy cases using the best available
information regarding the value of such factors in a market economy
country or countries considered to be appropriate by the administering
authority. The Act requires that when valuing the FOPs, Commerce
utilize, to the extent possible, the prices or costs of factors of
production in one or more market-economy countries that are at a level
of comparable economic development and significant producers of
comparable merchandise.\32\
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\32\ See section 733(c)(4) of the Act.
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However, it was Commerce's practice to calculate wages using a
regression analysis that captured the worldwide relationship between
per capita Gross National Income and hourly wage rates in
manufacturing.\33\ The language of Sec. 351.408(c)(3) reflected this
use of a regression analysis: ``Labor. For Labor, the Secretary will
use regression-based wage rates reflective of the observed relationship
between wages and national income in market economy countries. The
Secretary will calculate the wage rate to be applied in nonmarket
economy proceedings each year. The calculation will be based on current
data and will be made available to the public.''
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\33\ See Antidumping Methodologies: Market Economy Inputs,
Expected Non-Market Economy Wages, Duty Drawback; and Request for
Comments (``Antidumping Methodologies Notice''), 71 FR 61716
(October 19, 2006).
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The Federal Circuit in Dorbest held that because the regulation
required Commerce to use wage data in a regression analysis from
countries that did not meet the statutory criteria, the regulation was
invalid. Thus, Commerce is proposing removing Sec. 351.408(c)(3) and
replacing it with the language found in current Sec. 351.408(c)(4).
Classification
Executive Order 12866
OMB has determined that this proposed rule is not significant for
purposes of Executive Order 12866.
Executive Order 13132
This proposed rule does not contain policies with federalism
implications as that term is defined in section 1(a) of Executive Order
13132, dated August 4, 1999 (64 FR 43255 (August 10, 1999)).
Paperwork Reduction Act
This proposed rule does not contain a collection of information
subject to the Paperwork Reduction Act, 44 U.S.C. chapter 35.
Regulatory Flexibility Act
The Chief Counsel for Regulation has certified to the Chief Counsel
for Advocacy of the Small Business Administration under the provisions
of the Regulatory Flexibility Act, 5 U.S.C. 605(b), that the proposed
rule would not have a significant economic impact on a substantial
number of small business entities. A summary of the need for,
objectives of, and legal basis for this proposed rule is provided in
the preamble, and is not repeated here.
The entities upon which this rulemaking could have an impact
include foreign governments, foreign exporters and producers, some of
whom are affiliated with U.S. companies, U.S. importers, and domestic
producers of the domestic like product. However, the proposed
modifications will not have a significant economic impact on these
entities. Rather, they would make the administration of Commerce's AD/
CVD proceedings more efficient by allowing parties to utilize available
electronic or other expedient means of service, and by clarifying and
updating certain regulatory provisions.
Enforcement & Compliance currently does not have information on the
number of entities that would be considered small under the Small
Business Administration's size standards for small businesses in the
relevant industries. However, some of these entities may be considered
small entities under the appropriate industry size standards. Although
this proposed rule may indirectly impact small entities that are
parties to individual AD and CVD proceedings, it will not have a
significant economic impact on any such entities because the proposed
rule applies to administrative enforcement actions, only clarifying and
establishing streamlined procedures; it does not impose any significant
costs on regulated entities. Therefore, the proposed rule would not
have a significant economic impact on a substantial number of small
business entities. For this reason, an Initial Regulatory Flexibility
Analysis is not required and one has not been prepared.
List of Subjects in 19 CFR Part 351
Administrative practice and procedure, Antidumping, Business and
industry, Cheese, Confidential business information, Countervailing
duties, Freedom of information, Investigations, Reporting and
recordkeeping requirements.
Dated: November 18, 2022.
Lisa W. Wang,
Assistant Secretary for Enforcement and Compliance.
For the reasons stated in the preamble, the Department of Commerce
is proposing to amend 19 CFR part 351 as follows:
[[Page 72924]]
PART 351--ANTIDUMPING AND COUNTERVAILING DUTIES
0
1. The authority citation for 19 CFR part 351 continues to read as
follows:
Authority: 5 U.S.C. 301; 19 U.S.C. 1202 note; 19 U.S.C. 1303
note; 19 U.S.C. 1671 et seq.; and 19 U.S.C. 3538.
0
2. In Sec. 351.103, revise paragraphs (a) and (b) to read as follows:
Sec. 351.103 Central Records Unit and Administrative Protective Order
and Dockets Unit.
(a) Enforcement and Compliance's Central Records Unit maintains a
Public File Room in Room B8024, U.S. Department of Commerce, 14th
Street and Constitution Avenue NW, Washington, DC 20230. The office
hours of the Public File Room are between 8:30 a.m. and 5 p.m. Eastern
Time on business days. Visitors to the Public File Room should consult
the ACCESS website at <a href="https://access.trade.gov">https://access.trade.gov</a> for information
regarding in-person visits. Among other things, the Central Records
Unit is responsible for maintaining an official and public record for
each antidumping and countervailing duty proceeding (see Sec.
351.104).
(b) Enforcement and Compliance's Administrative Protective Order
and Dockets Unit (APO/Dockets Unit) is located in Room 18022, U.S.
Department of Commerce, 14th Street and Constitution Avenue NW,
Washington, DC 20230. The office hours of the APO/Dockets Unit are
between 8:30 a.m. and 5 p.m. Eastern Time on business days. Visitors to
the APO/Dockets Unit should consult the ACCESS website at <a href="https://access.trade.gov">https://access.trade.gov</a> for information regarding in-person manual filings.
Among other things, the APO/Dockets Unit is responsible for receiving
submissions from interested parties, issuing administrative protective
orders (APOs), maintaining the APO service list and the public service
list as provided for in paragraph (d) of this section, releasing
business proprietary information under APO, and conducting APO
violation investigations. The APO/Dockets Unit also is the contact
point for questions and concerns regarding claims for business
proprietary treatment of information and proper public versions of
submissions under Sec. Sec. 351.105 and 351.304.
* * * * *
0
3. In Sec. 351.104, revise paragraph (a)(2)(ii)(A) to read as follows:
Sec. 351.104 Record of proceedings.
(a) * * *
(2) * * *
(ii) * * *
(A) The document, although otherwise timely, contains untimely
filed new factual information (see Sec. 351.301(c));
* * * * *
Sec. 351.204 [Amended]
0
4. In Sec. 351.204, remove paragraph (d)(3) and redesignate paragraph
(d)(4) as paragraph (d)(3).
0
5. In Sec. 351.225, revise paragraphs (b), (d)(1), (e)(2), and (f)(1)
and (2) to read as follows:
Sec. 351.225 Scope rulings.
* * * * *
(b) Self-initiation of a scope inquiry. If the Secretary determines
from available information that an inquiry is warranted to determine
whether a product is covered by the scope of an order, the Secretary
may initiate a scope inquiry by publishing a notice of initiation in
the Federal Register.
* * * * *
(d) Initiation of a scope inquiry and other actions based on a
scope application--(1) Acceptance and Initiation of a scope inquiry
ruling application. Except as provided under paragraph (d)(2) of this
section, within 30 days after the filing of a scope application, the
Secretary will determine whether to accept or reject the scope ruling
application and to initiate or not initiate a scope inquiry, or, in the
alternative, paragraph (d)(1)(ii) will apply.
* * * * *
(e) * * *
(2) Extension. The Secretary may extend the deadline in paragraph
(e)(1) of this section by no more than 180 days, for a final scope
ruling to be issued no later than 300 days after initiation, if the
Secretary determines that good cause exists to warrant an extension.
Situations in which good cause has been demonstrated may include:
* * * * *
(f) * * *
(1) Within 30 days after the Secretary's self-initiation of a scope
inquiry under paragraph (b) of this section, interested parties are
permitted one opportunity to submit comments and factual information
addressing the self-initiation. Within 14 days after the filing of such
comments, any interested party is permitted one opportunity to submit
comments and factual information submitted by the other interested
parties.
(2) Within 30 days after the initiation of a scope inquiry under
paragraph (d)(1) of this section, an interested party other than the
applicant is permitted one opportunity to submit comments and factual
information to rebut, clarify, or correct factual information contained
in the scope ruling application. Within 14 days after the filing of
such rebuttal, clarification, or correction, the applicant is permitted
one opportunity to submit comments and factual information to rebut,
clarify, or correct factual information submitted in the interested
party's rebuttal, clarification or correction.
* * * * *
0
6. In Sec. 351.226, revise paragraphs (b), (d)(1), (f)(1) and (2), and
(l)(2)(ii) to read as follows:
Sec. 351.226 Circumvention Inquiries
* * * * *
(b) Self-initiation of a circumvention inquiry. If the Secretary
determines from available information that an inquiry is warranted into
the question of whether the elements necessary for a circumvention
determination under section 781 of the Act exist, the Secretary may
initiate a circumvention inquiry by publishing a notice of initiation
in the Federal Register.
* * * * *
(d) * * *
(1) Initiation of circumvention inquiry. Except as provided under
paragraph (d)(2) of this section, within 30 days after the filing of a
request for a circumvention inquiry, the Secretary will determine
whether to accept or reject the request and whether to initiate or not
initiate a circumvention inquiry. If it is not practicable to determine
whether to accept or reject a request or initiate or not initiate
within 30 days, the Secretary may extend that deadline by an additional
15 days.
* * * * *
(f) * * *
(1) Within 30 days after the Secretary's self-initiation of a
circumvention inquiry under paragraph (b) of this section, interested
parties are permitted one opportunity to submit comments and factual
information addressing the self-initiation. Within 14 days after the
filing of such comments, any interested party is permitted one
opportunity to submit comments and factual information submitted by the
other interested parties.
(2) Within 30 days after the initiation of a circumvention inquiry
under paragraph (d)(1) of this section, an interested party other than
the applicant is permitted one opportunity to submit comments and
factual information to rebut, clarify, or correct factual information
contained in the scope ruling application. Within 14 days after the
filing of such rebuttal, clarification,
[[Page 72925]]
or correction, the applicant is permitted one opportunity to submit
comments and factual information to rebut, clarify, or correct factual
information submitted in the interested party's rebuttal, clarification
or correction.
* * * * *
(l) * * *
(2) * * *
(ii) The Secretary will direct the Customs Service to begin the
suspension of liquidation and require a cash deposit of estimated
duties, at the applicable rate, for each unliquidated entry of the
product not yet suspended, entered, or withdrawn from warehouse, for
consumption on or after the date of the publication of the notice of
initiation of the circumvention inquiry; and
* * * * *
0
7. In Sec. 351.227, revise paragraphs (b) and (d)(1) to read as
follows:
Sec. 351.227 Covered merchandise referrals.
* * * * *
(b) Actions with respect to covered merchandise referral. (1)
Within 20 days after acknowledging receipt of a covered merchandise
referral from the Customs Service pursuant to section 517(b)(4)(A)(i)
of the Act that the Secretary determines to be sufficient, the
Secretary will take one of the following actions.
(i) Initiate a covered merchandise inquiry; or
(ii) If the Secretary determines upon review of the covered
merchandise referral that the issue can be addressed in an ongoing
segment of the proceeding, such as a scope inquiry under Sec. 351.225
or a circumvention inquiry under Sec. 351.226, rather than initiating
the covered merchandise inquiry, the Secretary will address the covered
merchandise referral in such other segment.
(2) The Secretary will publish a notice of its action taken with
respect to a covered merchandise referral under paragraph (b)(1) of
this section in the Federal Register.
* * * * *
(d) * * *
(1) Within 30 days after the date of publication of the notice of
an initiation of a covered merchandise inquiry under paragraph (b)(1)
of this section, interested parties are permitted one opportunity to
submit comment and factual information addressing the initiation.
Within 14 days after the filing of such comments, any interested party
is permitted one opportunity to submit comment and factual information
to rebut, clarify, or correct factual information submitted by the
other interested parties.
* * * * *
0
8. In Sec. 351.301, revise paragraphs (c)(2)(vi) and (c)(3)(iv) to
read as follows:
Sec. 351.301 Time limits for submission of factual information.
* * * * *
(c) * * *
(2) * * *
(vi) Rebuttal, clarification or correction of factual information
submitted in support of allegations. An interested party is permitted
one opportunity to submit factual information to rebut, clarify, or
correct factual information submitted in support of allegations 10 days
after the date such factual information is filed with the Department.
(3) * * *
(iv) Rebuttal, clarification, or correction of factual information
submitted to value factors under Sec. 351.408(c) or to measure the
adequacy of remuneration under Sec. 351.511(a)(2). An interested party
is permitted one opportunity to submit publicly available information
to rebut, clarify, or correct such factual information submitted
pursuant to Sec. 351.408(c) or Sec. 351.511(a)(2) 10 days after the
date such factual information is filed with the Department. An
interested party may not submit additional, previously absent-from-the-
record alternative surrogate value information under this paragraph
(c)(3)(iv). Additionally, all factual information submitted under this
paragraph (c)(3)(iv) must be accompanied by a written explanation
identifying what information already on the record of the ongoing
proceeding the factual information is rebutting, clarifying, or
correcting. Information submitted to rebut, clarify, or correct factual
information submitted pursuant to Sec. 351.408(c) will not be used to
value factors under Sec. 351.408(c).
* * * * *
0
9. In Sec. 351.303, revise paragraphs (c)(2)(i) and (ii), and (f)(1)
through (3) to read as follows:
Sec. 351.303 Filing, document identification, format, translation,
service, and certification of documents.
* * * * *
(c) * * *
(2) * * *
(i) Filing the business proprietary document. A person must file a
business proprietary document with the Department within the applicable
time limit. The submitter must also file the certificate of service (a
public document) included with its submission under this section as a
separate, stand-alone submission on ACCESS.
(ii) Filing of final business proprietary document; bracketing
corrections. By the close of business one business day after the date
the business proprietary document is filed under paragraph (c)(2)(i) of
this section, a person must file the complete final business
proprietary document with the Department. The final business
proprietary document must be identical in all respects to the business
proprietary document filed on the previous day except for any
bracketing corrections and the omission of the warning ``Bracketing of
Business Proprietary Information Is Not Final for One Business Day
After Date of Filing'' in accordance with paragraph (d)(2)(v) of this
section.
* * * * *
(f) Service of copies on other persons--(1) In general. Generally,
a person filing a document with the Department simultaneously must
serve a copy of the document on all other persons on the service list.
Except as provided in Sec. 351.202(c) (filing of petition), Sec.
351.208(f)(1) (submission of proposed suspension agreement), and
paragraph (f)(2) of this section:
(i) Service of a public document or public version of a business
proprietary document is effectuated on the persons on the public
service list upon filing of the submission in ACCESS, unless ACCESS is
unavailable, in which case, paragraph (f)(1)(iii) of this section is
applicable.
(ii)(A) Service of a business proprietary document is effectuated
on the persons on the APO service list upon filing of the submission in
ACCESS unless ACCESS is unavailable, in which case, paragraph
(f)(1)(iii) of this section is applicable. In addition, a business
proprietary document submitted under the one-day lag rule under
paragraph (c)(2)(i) of this section must be served using an acceptable
alternative method under paragraph (f)(1)(iii) of this section.
(B) If the document contains the business proprietary information
of a person who is not included on the APO service list, then service
of such documents on that person cannot be effectuated on ACCESS and
the submitter must serve that person its own business proprietary
information using an acceptable alternative method under paragraph
(f)(1)(iii) of this section. In addition, specific service requirements
under Sec. 351.306(c)(2) are applicable.
(iii) If service of a public document, public version of a business
proprietary
[[Page 72926]]
document, or a business proprietary document cannot be effectuated on
ACCESS (for any reason), an alternative method of service must be used.
Acceptable alternative methods may include: first class mail, hand
delivery, or electronic transmission. Electronic transmission may only
be used as an acceptable alternative method of service for business
proprietary documents under paragraph (f)(1)(ii) of this section if the
business proprietary document contains the business proprietary
information of either the submitter or the recipient, with the consent
of the recipient.
(2) Service requirements for certain documents--(i) Request for
review. In addition to the certificate of service requirements under
paragraph (f)(3) of this section, an interested party that files with
the Department a request for an expedited antidumping review, an
administrative review, a new shipper review, or a changed circumstances
review must serve a copy of the request by personal service or first
class mail on each exporter or producer specified in the request and on
the petitioner by the end of the anniversary month or within ten days
of filing the request for review, whichever is later. If the interested
party that files the request is unable to locate a particular exporter
or producer, or the petitioner, the Secretary may accept the request
for review if the Secretary is satisfied that the party made a
reasonable attempt to serve a copy of the request on such person.
(ii) Scope and circumvention. In addition to the certificate of
service requirements under paragraph (f)(3) of this section, an
interested party that files with the Department a scope ruling
application or a request for a circumvention inquiry must serve a copy
of the request on all persons included in the annual inquiry service
list in accordance with Sec. Sec. 351.225(n) and 351.226(n),
respectively.
(3) Certificate of service. Each document filed with the Department
must include a certificate of service listing each person served
(including agents), the type of document served, and the date and
method of service on each person. The Secretary may refuse to accept
any document that is not accompanied by a certificate of service.
* * * * *
0
10. In Sec. 351.304, revise paragraphs (c)(1) and (2) to read as
follows:
Sec. 351.304 Establishing business proprietary treatment of
information.
* * * * *
(c) * * *
(1) A person filing a submission that contains information for
which business proprietary treatment is claimed must also file a public
version of the submission. The public version must be filed on the
filing deadline for the business proprietary document. If the business
proprietary document was filed under the one-day lag rule (see Sec.
351.303(c)(2)), the public version and the final business proprietary
document must be filed on the first business day after the filing
deadline. The public version must contain a summary of the bracketed
information in sufficient detail to permit a reasonable understanding
of the substance of the information. If the submitting person claims
that summarization is not possible, the claim must be accompanied by a
full explanation of the reasons supporting that claim. Generally,
numerical data will be considered adequately summarized if grouped or
presented in terms of indices or figures within 10 percent of the
actual figure. If an individual portion of the numerical data is
voluminous, at least one percent representative of that portion must be
summarized. A submitter should not create a public summary of business
proprietary information of another person.
(2) If a submitting party discovers that it has failed to bracket
information correctly, the submitter may file a complete, corrected
business proprietary document along with the public version (see Sec.
351.303(c)(2)(ii) through (iii)). At the close of business on the day
on which the public version of a submission is due under paragraph
(c)(1) of this section, however, the bracketing of business proprietary
information in the original business proprietary document or, if a
corrected version is timely filed, the corrected business proprietary
document will become final. Once bracketing has become final, the
Secretary will not accept any further corrections to the bracketing of
information in a submission, and the Secretary will treat non-bracketed
information as public information.
* * * * *
0
11. In Sec. 351.305:
0
a. Revise the introductory text of paragraph (a);
0
b. Revise paragraph (b)(2) and (3), and remove paragraph (b)(4); and
0
c. Revise paragraph (c).
The revisions read as follows:
Sec. 351.305 Access to business proprietary information.
* * * * *
(a) The administrative protective order. The Secretary will place
an administrative protective order on the record as follows: within two
business days after the day on which a petition is filed or an
investigation is self-initiated; within five business days after the
day on which a request for a new shipper review is properly filed in
accordance with Sec. Sec. 351.214 and 351.303, an application for a
scope ruling is properly filed in accordance with Sec. Sec. 351.225
and 351.303, or a request for a circumvention inquiry is properly filed
in accordance with Sec. Sec. 351.226 and 351.303; within five business
days after the day on which a request for a changed circumstances
review is properly filed in accordance with Sec. Sec. 351.216 and
351.303 or a changed circumstances review is self-initiated; or within
five business days after initiating any other segment of a proceeding.
The administrative protective order will require the authorized
applicant to:
* * * * *
(b) * * *
(2) A representative of a party to the proceeding may apply for
access to business proprietary information under the administrative
protective order by submitting an electronic application available in
ACCESS at <a href="https://access.trade.gov">https://access.trade.gov</a> (Form ITA-367) to the Secretary. The
electronic application will be filed and served in ACCESS upon
submission. Form ITA-367 must identify the applicant and the segment of
the proceeding involved, state the basis for eligibility of the
applicant for access to business proprietary information, and state the
agreement of the applicant to be bound by the administrative protective
order. Form ITA-367 must be accompanied by a certification that the
application is consistent with Form ITA-367 and an acknowledgment that
any discrepancies will be interpreted in a manner consistent with Form
ITA-367. An applicant must apply to receive all business proprietary
information on the record of the segment of a proceeding in question,
but may waive service of business proprietary information it does not
wish to receive from other parties to the proceeding.
(3) To minimize the disruption caused by late applications, an
application should be filed before the first response to the initial
questionnaire has been submitted. Where justified, however,
applications may be filed up to the date on which the case briefs are
due.
* * * * *
(c) Approval of access under administrative protective order;
administrative protective order service list; service of earlier-filed
business proprietary submissions. (1) The Secretary will grant access
to a qualified
[[Page 72927]]
applicant by including the name of the applicant on an administrative
protective order service list. Access normally will be granted within
five days of receipt of the application unless there is a question
regarding the eligibility of the applicant to receive access. In that
case, the Secretary will decide whether to grant the applicant access
within 30 days of receipt of the application. The Secretary will
provide by the most expeditious means available the administrative
protective order service list to parties to the proceeding on the day
the service list is issued or amended.
(2) After the Secretary approves an application, the authorized
applicant may request service of earlier-filed business proprietary
submissions of the other parties that are no longer available in
ACCESS.
(i) For an application that is approved before the first response
to the initial questionnaire is submitted, the submitting party must
serve the authorized applicant those submissions within two business
days of the request.
(ii) For an application that is approved after the first response
to the initial questionnaire is submitted, the submitting party must
serve the authorized applicant those submissions within five business
days of the request. Any authorized applicant who filed the application
after the first response to the initial questionnaire is submitted will
be liable for costs associated with the additional production and
service of business proprietary information already on the record.
* * * * *
0
12. In Sec. 351.306, revise paragraph (c)(2) to read as follows:
Sec. 351.306 Use of business proprietary information.
* * * * *
(c) * * *
(2) If a party to a proceeding is not represented, or its
representative is not an authorized applicant, the submitter of a
document containing that party's business proprietary information must
serve that party or its representative, if applicable, with a version
of the document that contains only that party's business proprietary
information consistent with Sec. 351.303(f)(1)(iii). The document must
not contain the business proprietary information of other parties.
* * * * *
0
13. In Sec. 351.404, revise paragraph (d) to read as follows:
Sec. 351.404 Selection of the market to be used as the basis for
normal value.
* * * * *
(d) Allegations concerning market viability and the basis for
determining a price-based normal value. In an antidumping investigation
or review, allegations regarding market viability or the exceptions in
paragraph (c)(2) of this section, must be filed, with all supporting
factual information, in accordance with Sec. 351.301(c)(2)(i).
Sec. 351.408 [Amended]
0
14. In Sec. 351.408, remove paragraph (c)(3) and redesignate paragraph
(c)(4) as paragraph (c)(3).
[FR Doc. 2022-25675 Filed 11-25-22; 8:45 am]
BILLING CODE 3510-DS-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.