Rule2023-21516
Administrative Protective Order, Service, and Other Procedures in Antidumping and Countervailing Duty Proceedings
Primary source
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Published
September 29, 2023
Effective
October 30, 2023
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 U.S. Department of Commerce (Commerce) is modifying its regulations governing procedures related to administrative protective orders (APO) and service of documents submitted in antidumping (AD) and countervailing duty (CVD) proceedings. Specifically, Commerce is making certain changes to its procedures governing the filing of documents (including public documents, business proprietary documents, and public versions of business proprietary documents), as well as service of documents. Commerce is also making 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 is deleting 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 88 Issue 188 (Friday, September 29, 2023)</title>
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[Federal Register Volume 88, Number 188 (Friday, September 29, 2023)]
[Rules and Regulations]
[Pages 67069-67081]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-21516]
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DEPARTMENT OF COMMERCE
International Trade Administration
19 CFR Part 351
[Docket No. 230905-0210]
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: Final rule.
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SUMMARY: Pursuant to its authority under title VII of the Tariff Act of
1930, as amended (the Act), the U.S. Department of Commerce (Commerce)
is modifying its regulations governing procedures related to
administrative protective orders (APO) and service of documents
submitted in antidumping (AD) and countervailing duty (CVD)
proceedings. Specifically, Commerce is making certain changes to its
procedures governing the filing of documents (including public
documents, business proprietary documents, and public versions of
business proprietary documents), as well as service of documents.
Commerce is also making 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 is deleting from its regulations two
provisions that have been invalidated by the United States Court of
Appeals for the Federal Circuit (Federal Circuit).
DATES: Effective date: October 30, 2023. This final rule will apply to
all AD/CVD proceedings that are ongoing on the effective date and all
AD/CVD proceedings initiated on or after the effective date.
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
On November 28, 2022, Commerce published a proposed modification of
its regulations governing procedures related to APOs and service of
documents submitted in AD and CVD proceedings and to procedural aspects
of its AD/CVD regulations (hereafter, the Proposed Rule).\1\ The
Proposed Rule explained Commerce's proposal to make permanent certain
changes to its service procedures that have been adopted on a temporary
basis due to COVID-19, and proposed additional clarifications and
corrections to its AD/CVD regulations, including updating the scope,
circumvention, and covered merchandise referrals, and deleting from its
regulations two provisions that have been invalidated by the Federal
Circuit. Commerce received nine comments on the Proposed Rule and has
addressed those comments below. After analyzing and carefully
considering each comment it received in response to the Proposed Rule,
Commerce has adopted the proposed modification with certain changes and
is amending its regulations accordingly.
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\1\ See Administrative Protective Order, Service, and Other
Procedures in Antidumping and Countervailing Duty Proceedings, 87 FR
72916 (November 28, 2022) (Proposed Rule).
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Explanation of Modifications From the Proposed Rule to the Final Rule
As we explained in the Proposed Rule, one of the purposes for
modifying our regulations 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
this final rule, Commerce has determined to make certain modifications
from the Proposed Rule in response to the comments received. With these
modifications, as discussed further below, this final rule codifies the
regulations proposed on November 28, 2022.
In this final rule, Commerce is amending proposed section
351.303(f)(1)(iii) to make service via electronic transmission for
public documents and public versions of a business proprietary
document, and service via secure electronic transmission for business
proprietary documents, the default method of alternative service when
service of such documents cannot be effectuated on ACCESS or when
ACCESS is unavailable. This includes, for example, service of business
proprietary documents filed under the one-day lag rule under section
351.303(c) (i.e., non-final business proprietary documents filed on the
due date under the one-day lag rule). As a result of adopting this
change, Commerce is not adopting its proposed modification that parties
file a standalone certificate of service for documents filed under the
one-day lag rule under proposed section 351.303(c)(2)(i). Commerce is
also modifying section 351.303(f)(2)(i) to permit electronic service of
certain requests for review. In addition, Commerce is modifying section
351.305(c)(2) to specify that service of earlier-filed business
proprietary submissions that are no longer available on ACCESS may be
effectuated via secure electronic transmission. Commerce is also making
some additional modifications for clarity and consistency. Finally, in
this final rule, we are adopting the proposed amendments to the
regulations discussed in the Proposed Rule for which we did not receive
comments, or that we are not otherwise modifying, as discussed in
greater detail below.
The following sections generally contain a brief discussion of each
regulatory provision for which we received comments, a summary of the
comments we received, and Commerce's responses to those comments. These
sections contain further explanation of any changes Commerce is making
in this final rule from the Proposed Rule, either in response to
comments or that Commerce deems necessary for conforming to, or
clarification of, the regulations, or for providing additional public
benefit. The final section discusses additional comments suggesting
other modifications to the ACCESS system and filing procedures that
were not covered or addressed in the Proposed Rule and are therefore
not included in this final rule.
Responses to Comments Received on the Proposed Rule
Commerce received nine comments on the Proposed Rule. Below is a
summary of the comments, grouped by issue category, followed by
Commerce's response.
Standalone Certificates of Service for Business Proprietary Documents
Proposed section 351.303(c)(2)(i) would require a party filing a
business proprietary document on ACCESS to also file a separate,
standalone, public certificate of service with its submission. Although
the Preamble to
[[Page 67070]]
the Proposed Rule indicates that this provision would apply to business
proprietary documents filed under the one-day lag rule, two commenters
interpret the certificate of service requirement under section
351.303(c)(2)(i) as applying to any business proprietary filing. One
commenter suggests that Commerce modify proposed section
351.303(c)(2)(i) to limit the standalone certificate of service
requirement to only business proprietary documents filed under the one-
day lag rule.
Several other commenters argue that any requirement to file a
standalone certificate of service is burdensome, inefficient, costly,
would clutter the docket, and would not necessarily provide same-day
notice of a filing, because documents submitted close to 5:00 p.m.
often do not appear on ACCESS until the next day. Another commenter
argues that the standalone certificate of service would add little
value if Commerce reinstates the requirement to serve documents
submitted under the one-day lag rule and even if Commerce does not
reinstate that service rule, the standalone certificate of service will
only inform parties that the filing was made, which would become
apparent anyway in one business day.
These commenters suggest several alternatives, including making
technical changes to ACCESS to permit the one-day lag filing to appear
on the ACCESS docket and digests, but not be viewable or downloadable,
which would give parties notice of the filing without it becoming part
of the official record. One commenter argues that Commerce should
simply require a certificate of service with every public and
proprietary filing. Another suggestion, further discussed below, is to
require electronic service of documents filed under the one-day lag
rule on the same day they are filed with Commerce, thereby obviating
the need to file a standalone certificate of service.
Response: We clarify that the proposal to file standalone
certificates of service only applies to documents submitted under the
one-day lag rule and does not apply to all business proprietary
documents. However, as explained below, we are amending the regulation
to permit the service of one-day lag documents via secure electronic
transmission. That will obviate the need to file a standalone
certificate of service, because parties served via secure electronic
transmission will be able to receive the documents the same day they
are filed on ACCESS. Thus, we are removing from this final rule the
provision of section 351.303(c)(2)(i) that would require the filing of
a standalone certificate of service with the submission of business
proprietary documents filed under the one-day lag rule.
Further, we are not adopting the suggestion that Commerce make one-
day lag documents appear on the ACCESS docket and digests without being
viewable or downloadable, as an alternative way of providing notice to
parties that a one-day lag submission has been filed. As stated in the
Proposed Rule, 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.\2\ Similarly, ACCESS does not have the technical capability
at this time to make these documents appear on the ACCESS docket and
digests without being viewable or downloadable or becoming part of the
official record. As stated above, we are amending the regulation to
permit the service of one-day lag documents via secure electronic
transmission, which will enable parties to receive the documents the
same day they are filed on ACCESS. Therefore, we find it unnecessary to
adopt this commenter's suggestion.
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\2\ See Proposed Rule, 87 FR at 72920.
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Service of Business Proprietary Documents, Public Documents, and Public
Versions of Business Proprietary Documents via ACCESS
Most commenters express support for the proposal in proposed
sections 351.303(f)(1)(i) and (ii)(A) that, in general, service of a
public document, public version of a business proprietary document, and
a business proprietary document will be effectuated on parties on the
public and APO service lists upon filing of the submission on ACCESS,
unless ACCESS is unavailable. Two commenters particularly support the
proposal to move service requirements of case and rebuttal briefs from
current section 351.303(f)(3)(i) (service of case and rebuttals briefs
through personal service on the same day the brief is filed, or
overnight mail or courier on the next day) to proposed section
351.303(f)(1), which would generally allow service through ACCESS.
However, some commenters express concern that due to the time it
takes ACCESS to process filed documents and release digest
notifications, parties are not able to download documents the same day
they are filed and sometimes must wait a day or longer when documents
are filed before a weekend or holiday. One commenter remarks that under
the Temporary Rule,\3\ case and rebuttal briefs were often not
available on ACCESS the same day as filing, which was particularly
problematic when filed under the one-day lag rule, which could result
in parties not receiving case or rebuttal briefs until two days or more
after the initial filing. Several commenters remark that ACCESS delays
in making documents available shorten the time parties must respond to
filings because certain response deadlines are triggered from the
filing date. This in turn creates inefficiencies and compresses the
time in which Commerce has to conduct a proceeding when parties file
extension requests that Commerce must take the time to consider.
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\3\ 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 Temporary Rule Modifying AD/CVD
Service Requirements Due to COVID-19; Extension of Effective Period,
85 FR 29615 (May 18, 2020); Temporary Rule Modifying AD/CVD Service
Requirements Due to COVID-19; Extension of Effective Period, 85 FR
41363 (July 10, 2020).
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One commenter proposes that Commerce adjust ACCESS release times to
ensure that documents are ``served'' on the same business day they are
filed. Another commenter asserts that ACCESS delays in making documents
available the same day as filing contravenes the statutory requirement
under section 777(d) of the Act that ``[a]ny party submitting written
information, including business proprietary information, to the
administering authority . . . during a proceeding shall, at the same
time, serve the information upon all interested parties who are parties
to the proceeding, if the information is covered by a protective
order'' (emphasis added). This commenter suggests that Commerce revise
proposed sections 351.303(f)(1)(i) and (f)(1)(ii)(A) to require that if
ACCESS does not release a business proprietary, public, or public
version of a document within one business day, then the submitter must
effectuate service of the document upon the request of a party on the
service list, using one of the alternative methods of service provided
for under proposed section 351.303(f)(1)(iii). The commenter relatedly
proposes to add a requirement to proposed section 351.303(f)(1)(iii)
that if such an alternative method of service is used
[[Page 67071]]
when ACCESS does not release documents within one business day, the
submitter would then be required to file a revised certificate of
service pursuant to sections 351.303(c)(2)(i) and 351.303(f)(3).
Response: We understand the concerns expressed by some commenters
that parties sometimes must wait a day or longer to download filed
documents due to ACCESS delays. While most of the time documents are
made available on the same day they are filed on ACCESS, this is not
always achievable. Commerce endeavors to review and approve for release
on ACCESS all documents submitted on the same day of filing, but this
is sometimes not possible due to Commerce's limited resources, as well
as other factors, including the timing of when the document is filed on
ACCESS, and the volume of files that must be reviewed and approved. On
balance, Commerce makes documents available on ACCESS as soon as
possible, and many times, on the same day the document is filed.
Relatedly, we disagree with the comment that section 777(d) of the
Act requires documents to be made available the same day as filing. The
statute requires that a document be served at the same time as it is
filed, but it does not require that the document be received by parties
on the same day as filing.\4\ Thus, the requirements of the statute are
fulfilled for those situations under the revised regulations where
service is effectuated upon filing on ACCESS, even if the document is
not received by other parties on the same day as filing. This is
consistent with how service operates under the current regulations
where, for example, parties may serve certain documents by first-class
mail on the day the document is filed, but the documents are not
necessarily received on the same day as filing.
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\4\ Section 777(d) of the Act states, ``Any party submitting
written information, including business proprietary information, to
the administering authority or the Commission during a proceeding
shall, at the same time, serve the information upon all interested
parties who are parties to the proceeding, if the information is
covered by a protective order'' (emphasis added).
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For the reasons discussed above, we are not adopting the suggestion
that Commerce revise the regulations to provide that if ACCESS does not
release a business proprietary, public, or public version of a document
within one business day, the submitter must effectuate service using an
alternative method of service and file a revised certificate of
service. Such a rule would be difficult for Commerce to administer
given its limited resources. Moreover, submitters would not be able to
predict when the submission will be made available in ACCESS, and thus,
may not know that they should effectuate service using an alternative
method.
Alternative Methods of Service for Business Proprietary Documents,
Public Documents, and Public Versions of Business Proprietary Documents
Several commenters raise concerns about mail or hand delivery as
alternative methods of service authorized under proposed section
351.303(f)(1)(iii) when service of a public, business proprietary, or
public version of a business proprietary document cannot be effectuated
through ACCESS. Commenters argue that mail or hand delivery is
regressive, contrary to the stated purpose of the Proposed Rule to make
service more efficient, costly, burdensome, less reliable than
electronic transmission, out of step with modern professional practice
of electronic transmission, wasteful (when the documents will usually
be scanned and the delivered hard copy destroyed), and inequitable in
that it requires some personnel to be in the office rather than
telework. Several commenters also point out that Commerce itself uses
encrypted electronic platforms when transmitting business proprietary
documents.
One commenter argues that proposed section 351.303(f)(1)(iii)
places a greater burden on petitioners' firms, which often file
submissions containing business proprietary information of multiple
parties, and therefore are required to serve submissions by hand
delivery or mail. Even if a petitioner is commenting on the business
proprietary information of only one respondent, the petitioner only has
the option of seeking consent to electronic service from that
particular respondent and would still have to serve all other parties
on the APO service list by hand or by mail. One commenter points out
that for documents submitted under the one-day lag rule, service by
mail or hand delivery does not necessarily result in parties receiving
the documents on the day of filing, but rather after filing of the
final business proprietary version on ACCESS.
Thus, several commenters propose that Commerce eliminate the
requirement for service by mail or hand delivery and make electronic
service through secure electronic transmission the default rule. Some
commenters propose that in making electronic service the default rule,
Commerce should require that when parties sign an APO or make an entry
of appearance, they agree to electronic transmission via secure file
transfer unless they specifically opt out and request service by hand
delivery or mail on their forms. One commenter suggests that Commerce
may also consider giving parties the option to express inability to
receive certain types of electronic service. Another commenter
recommends amending proposed section 351.303(f)(1)(iii) to establish
that service of documents containing business proprietary information
of a person who is not included on the APO service list shall be made
via secure electronic file transfer unless the party has ``opted out''
in its entry of appearance, in which case service may be effectuated by
hand delivery or first-class mail. One commenter similarly proposes
that electronic service through encrypted platforms should also be
available to pro se and non-APO represented parties.
Several commenters also argue that Commerce should specify certain
security standards that electronic transmission platforms used to
transmit documents are required to contain.
Some commenters argue that under proposed section
351.303(f)(1)(iii), Commerce should allow secure electronic
transmission of a third party's business proprietary information,
rather than just that of the sender and recipient and eliminate the
requirement of consent from the recipient for service through secure
electronic transmission. Commenters argue that the requirement to seek
consent for electronic service of business proprietary documents that
contain business proprietary information of the sender or the recipient
only is burdensome. For certain documents that include issues and
arguments relating to multiple parties (e.g., case briefs), it may not
be possible to include business proprietary information without
preparing party-specific versions of the submission. Thus, commenters
argue that the default rule for electronic service through secure
electronic transmission (unless a party affirmatively opts out) would
eliminate the inefficiency of requiring parties to obtain consent
before using electronic file transfer and eliminate the need for
multiple different versions of the same document depending on whether a
party affirmatively consented to electronic service.
If Commerce permits service by unencrypted email, several
commenters argue that such submissions should still only contain the
recipient's or submitter's business proprietary information, and that
all parties must consent. Another commenter proposes that, in addition
to these requirements, the recipient must explicitly request an
unencrypted email transmission.
[[Page 67072]]
One commenter raises concern regarding the requirement of section
351.303(f)(1)(ii)(B) that if a document contains the business
proprietary information of a party who is not on the APO service list,
the submitter of the document must serve the unrepresented party its
own business proprietary information using one of the alternative
service methods under section 351.303(f)(1)(iii). This requirement,
according to the commenter, would require represented parties to reach
an agreement with unrepresented parties on an alternative means of
service, and potentially place the represented party in the position of
needing to explain the regulations to the unrepresented party, which
could lead to conflicts in which Commerce would need to intervene. The
commenter proposes that Commerce amend section 351.303(f)(1)(ii)(B) to
include specific language stating that Commerce will instruct, and will
assume the responsibility for such instruction of, the parties as to
the alternative means of service submitters must use under section
351.303(f)(1)(iii).
Another commenter requests clarification of the statements that
public and business proprietary documents will be served via ACCESS
``unless ACCESS is unavailable'' and that an alternative method of
service must be used if service ``cannot be effectuated on ACCESS (for
any reason).'' Although the commenter interprets these phrases to
encompass situations where a filing is not submitted through ACCESS
(e.g., ACCESS is temporarily unavailable due to technical failure) or a
party is unable to receive service via ACCESS (e.g., a pro se party
that would not be able to receive service via ACCESS of a document
containing only its own business proprietary information), the
commenter notes that these phrases could be interpreted to encompass
other situations. For example, there may be a situation in which a
party files a document on ACCESS but due to a technical error the
document is not made available via ACCESS, and the submitter is unaware
and unable to know that it is necessary to take alternative measures.
Thus, the commenter seeks clarification on the circumstances under
which service would not be ``effectuated on ACCESS.''
Response: Upon consideration of these comments, we agree that
electronic service via secure electronic transmission between parties
should be the primary method of service when service cannot be
effectuated on ACCESS or when ACCESS is unavailable. This approach is
consistent with modern professional practice and would fulfill the goal
of these regulatory amendments to make service more efficient. Thus,
for this final rule we are amending section 351.303(f)(1)(iii) so that
service via electronic transmission for public documents and public
versions of business proprietary documents, and secure electronic
transmission for business proprietary documents, is the default method
of alternative service when service of such documents cannot be
effectuated on ACCESS or when ACCESS is unavailable.
This default rule for electronic service will apply to APO-
authorized, non-APO authorized, and pro se parties. Thus, non-APO
authorized representatives and pro se parties generally will be
permitted to transmit business proprietary information electronically,
subject to additional restrictions as explained below. Accordingly, we
find that the concern expressed by one commenter that a represented
party may be put in a situation where it needs to explain the
regulations to an unrepresented party is rendered moot by adoption of
electronic transmission as the default method of alternative service
under section 351.303(f)(1)(iii).
Because this is the default rule, parties generally will not need
to affirmatively consent to receiving business proprietary information
by electronic transmission. Service by mail or personal service \5\
will continue to be an acceptable means of alternative service only in
the very limited circumstance that a party does not have the capacity
to send or receive documents electronically (e.g., an interested party
in a foreign country that does not have access to email). Because
electronic service is the default rule, we are not adopting the
proposal that parties be permitted to affirmatively opt out of
electronic service in their entries of appearance and APO applications.
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\5\ For consistency with our current regulations, in this final
rule we have adopted the term ``personal service'' instead of ``hand
delivery,'' which was used in the Proposed Rule. By reverting to the
term in our current regulations, we indicate that methods of
personal service that have been used under the current regulations
continue to be acceptable as alternative methods of service when
secure electronic transmission is not possible.
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We also clarify that in making electronic service the default rule,
APO-authorized representatives will be permitted to serve documents on
other APO-authorized representatives that include third-party business
proprietary information, and not just that of the sender or the
recipient, and the recipient need not affirmatively consent to service
(as was required in the Proposed Rule). That is, any APO-authorized
representative may serve documents that include any business
proprietary information (including that of a third party) on another
APO-authorized representative. This alleviates the concern expressed by
some commenters that there is a greater burden on petitioners' firms
because they often file submissions containing the business proprietary
information of multiple parties. However, the APO-authorized
representative must ensure that when serving documents on non-APO
authorized representatives and pro se parties, the documents contain
only the business proprietary information of the non-APO authorized
representative or of the pro se party.
When compared to APO-authorized representatives, the procedures
differ for non-APO authorized representatives and pro se parties where
electronic service is the default rule. Non-APO authorized
representatives and pro se parties will be permitted to serve documents
containing the business proprietary information of the non-APO
represented party or the pro se party (respectively) on APO-authorized
representatives.\6\ They may also receive service of documents
containing their own business proprietary information.
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\6\ We note that a non-APO authorized representative or pro se
party may also serve its own client's or its own business
proprietary information (respectively) on anyone, but for purposes
of our proceedings, they would normally serve APO-authorized
representatives.
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We strongly encourage the transmission of business proprietary
information through secure electronic transmission. However, we will
permit service via unsecure electronic transmission (i.e., electronic
mail) if an APO-authorized representative, pro se party, or non-APO
authorized representative of a party requests service via unsecure
electronic transmission, the recipient consents, and the document
contains only the business proprietary information of the submitter or
recipient. If the business proprietary document is encrypted, then
consent is not required.
Given rapid changes in technology, we do not find it practical to
set minimum security standards in these regulations. Thus, we are not
adopting the proposal to specify a particular encryption level for
secure electronic transmission in the regulation but rather advise that
generally, business proprietary documents should be served through
platforms that use secure electronic transmission (e.g., encrypted
emails, File Transfer Protocol Secure (FTPS), or secure file share such
as Kiteworks, DocuSign, or Google Drive).
[[Page 67073]]
However, more specific security standards may be added to the ACCESS
Handbook and updated from time to time as technological changes
necessitate.
In response to the comment that language describing ACCESS as
``unavailable'' under sections 351.303(f)(1)(i) and (f)(1)(ii)(A) could
be interpreted to include multiple situations, we have amended the
regulation to add a requirement that an alternative form of service in
accordance with section 351.303(f)(1)(iii) is needed when a submission
is filed manually, including bulky document filings, super bulky
filings, and data files that exceed the file size limit. The reason for
this change is to expedite the availability of these submissions, which
require additional processing. In some cases, as a commenter mentioned,
there may be delays in making those files available, especially in
situations where the ACCESS team may need to find an alternative method
of releasing the files. In our experience, the transmittal of extremely
large collections of documents has, at times, required a corresponding
large use of ACCESS resources. The use of such resources has, in turn,
caused the ACCESS system to operate at much slower speeds, resulting in
extensive download times for parties and forcing them to download
documents during non-peak times. Considering the above, Commerce has
determined that for such manual filings (including bulky document
filings, super bulky filings and data files exceeding the file size
limit), that the submitter who is filing the submission in this
alternative manner also be required to serve the submission in an
alternative manner in accordance with section 351.303(f)(1)(iii). This
additional step for the submitter to ensure timely service will be
offset by the time savings the submitter will gain in manually filing
its voluminous submission. This requirement also addresses the concerns
of those commenters who expressed concern about receiving access to
submissions in a timely manner.
We also clarify that ACCESS is considered ``unavailable'' when, due
to a technical failure, ACCESS is unable to accept electronic filings,
as specified in the Handbook on Electronic Filing Procedures, which is
available on the ACCESS website at <a href="https://access.trade.gov">https://access.trade.gov</a> (via the
ACCESS Handbook link). If ACCESS is unable to accept electronic filings
for more than one hour between the hours of 12:00 p.m. and 4:30 p.m.
Eastern Time, or for any duration of time between the hours of 4:31
p.m. and 5:00 p.m. Eastern Time, Commerce will allow a document or data
to be filed manually. In such a situation, if a submitter files a
submission manually, it must also serve the submission on the parties
to the proceeding in accordance with section 351.303(f)(1)(iii). Thus,
generally, if a submitter must file a submission manually, the
submitter must also use an alternative form of service. The reason for
requiring alternative service is that a technical failure that requires
manual filing will cause a delay in service, as discussed above. At the
time of filing, the submitter will be aware of the technical failure
and therefore should also be aware of the service obligations for
manual filings.
If a technical failure occurs, but a submitter already successfully
filed a submission electronically before the technical failure
occurred, the submitter does not need to serve the submission using an
alternative method. Rather, the would-be recipients should wait until
the ACCESS technical failure has been resolved, and the submissions
will be available at that time. If Commerce determines that the
technical failure will be lengthy in duration given the severity of the
problem or a large backlog of filings to process, Commerce may direct
parties to seek service copies from one another.
Finally, we clarify what is meant by situations when service
``cannot be effectuated on ACCESS'' under section 351.303(f)(1)(iii).
There are certain situations in which ACCESS does not have the
capability to effectuate service based on the way the system is
structured. There are two categories that determine who and what gets
served. Who gets served is determined by the individuals on the APO and
public service lists. What gets served is determined by the documents
that are on the record. A party to the proceeding can use these
guidelines to understand whether, at the time of filing, service of a
particular submission can be effectuated on ACCESS.
For example, a document submitted under the one-day lag rule under
section 351.303(c)(2)(i) is not considered a record document due to the
non-final nature of the designation of business proprietary
information; therefore, service cannot be effectuated on ACCESS.
Another example is a document that contains the business proprietary
information of a person who is not included on the APO service list.
Under section 351.303(f)(1)(ii)(B), service cannot be effectuated on
ACCESS for that person and must be made in accordance with section
351.303(f)(1)(iii). A further example is a situation where a
representative of an interested party is granted APO access after other
parties to the proceeding have already filed submissions to the record
and they are no longer available for download on ACCESS, as addressed
in section 351.305(c)(2).
Other situations in which a document is not immediately made
available on ACCESS are not situations in which service cannot be
effectuated on ACCESS.
Reinstatement of Service Requirement for Documents Filed Under the One-
Day Lag Rule
Commenters are divided in their support of Commerce's proposed
reinstatement of the requirement that business proprietary documents
filed under the one-day lag rule be served on interested parties.
Commenters who oppose the reinstatement of the service requirement
argue that it is burdensome (even if done by electronic means); creates
inconsistencies; increases the likelihood of errors, including APO
violations; and does not allow the flexibility to manage varied
situations, such as another pandemic, inclement weather, and increased
telework. One commenter argues that the burden of service of one-day
lag documents is greater for petitioners' firms, because they are more
likely to file submissions containing multiple parties' business
proprietary information, and such documents cannot be served by
electronic means under the Proposed Rule.
Several commenters address Commerce's observation in the Proposed
Rule that under the waiver of the service requirement for one-day lag
submissions under the Temporary Rule, parties were sometimes not aware
of a filing. One commenter notes that any uncertainty as to whether a
document has been filed under the one-day lag rule lasts only about a
day, and parties have been dealing with that uncertainty now for over
two years under the Temporary Rule. This commenter points out that any
inconvenience in having a tighter rebuttal period could be alleviated
by maintaining the extension of the time for rebuttal briefs from five
to seven days, as adopted under the Temporary Rule. Another commenter
points out that lack of same-day notice of the filing of a business
proprietary document under the one-day lag rule also occurred before
the Temporary Rule, for example when first-class mail delivery of the
document arrived the next business day after filing with Commerce. Some
commenters note that under the proposed alternative methods of service
under section 351.303(f)(1)(iii), one-day lag filings
[[Page 67074]]
might still be received after the final bracketed version is released
by Commerce because of delays in the type of service used (e.g., first-
class mail). Thus, several commenters conclude that the benefits of
notice through reinstatement of the service requirement for one-day lag
documents do not outweigh the burdens and risks.
Other commenters propose measures to address Commerce's concern
that parties are not aware of the filing of documents under the one-day
lag rule, without reinstating the service requirement for one-day lag
documents. For example, one commenter suggests that Commerce adopt the
proposal under section 351.303(c)(2)(i) to file a standalone
certificate of service for documents filed under the one-day lag rule
that would include the name of the submission and the party for whom it
was filed. This would effectively be a ``certificate of non-service''
because the documents would not be served but would give parties notice
of the filing of the one-day lag document through the ACCESS public
service list. This commenter also proposes that parties be permitted to
file the ``certificate of non-service'' before the filing of the
document on ACCESS to reduce the burden on parties filing multiple
submissions on the same day, to help ensure submissions are made in
their entirety prior to the filing deadline, and to increase the
likelihood that other parties will be made aware of the filing on the
actual filing day. Alternatively, the commenter proposes that Commerce
permit that the ``certificate of non-service'' be filed two hours after
the deadline for the one-day lag document (e.g., 7:00 p.m. for a 5:00
p.m. filing deadline), and still be deemed timely.
One commenter suggests that Commerce itself release the one-day lag
submission under the same procedures as the release of the final
bracketed business proprietary versions. Another commenter suggests
that Commerce could require that final business proprietary and public
versions of one-day lag documents contain a header indicating whether
the one-day lag rule was used, an approach that is similar to the
current ``bracketing not final'' designations on documents filed under
the one-day lag rule.
Several other commenters support reinstatement of the service
requirement for documents filed under the one-day lag rule. One
commenter states that Commerce's concern over parties not receiving
notice of filings of one-day lag documents under the Temporary Rule's
waiver of service requirements was borne out by its own experiences.
That commenter states that parties often did not know if a document had
been filed under the one-day lag rule, or a party had missed the
deadline. Moreover, because parties did not receive the document the
day it was filed with Commerce, they missed a day or more of the
regulatory rebuttal period, requiring the filing of extension requests.
Another commenter supports the reinstatement of the service requirement
of documents filed under the one-day lag rule because it prevents
parties from delaying service of documents through the one-day lag
rule, and because it enables other parties to ensure that the only
changes made between the document filed by the deadline under the one-
day lag rule and the final document relate to identification of
business proprietary information.
Some commenters support the reinstatement of the service
requirement for documents filed under the one-day lag rule, but object
to the requirement that such service be effectuated outside of ACCESS.
These commenters suggest that documents submitted under the one-day lag
rule should be deemed served on parties on the APO service list when
filed on ACCESS. Several parties address Commerce's explanation in the
Proposed Rule that a business proprietary document filed under the one-
day lag rule contains non-final bracketing that is not treated as an
official record document, and thus cannot be served via ACCESS with the
same technology used for serving official record documents. Some
commenters suggest that Commerce make technical changes to ACCESS to
prevent one-day lag filings from becoming part of the official record,
including permitting parties 14 days to download business proprietary
documents filed under the one-day lag rule before deleting the
documents from the record.
Several commenters state that if documents filed under the one-day
lag rule are not served via ACCESS, parties should be permitted to
serve such documents via secure electronic transmission on the day the
document is filed with Commerce, and object to any requirement that
service be completed via first-class mail or hand delivery as
inefficient, costly, and burdensome on parties. These commenters argue
that parties often do not receive the documents filed under the one-day
lag rule before the final proprietary version is filed on ACCESS
because documents served by such means are not always received on the
same day as filing. One commenter proposes that documents filed under
the one-day lag rule may be served via email if all parties agree, and
that first-class mail or hand delivery should only be required when a
party explicitly requests that method of service. Other commenters
state that electronic service of one-day lag documents would obviate
the need for the standalone public certificate of service requirements
under proposed section 351.303(c)(2)(i).
One commenter notes that because the bracketing in one-day lag
filings is only provisional, an attorney may not be able to share it
with a client until the final business proprietary version is filed.
The commenter indicates that delays in receipt when documents are
served via first-class mail are particularly problematic with respect
to case and rebuttal briefs, and suggests that Commerce could require
that business proprietary case and rebuttal briefs served under the
one-day lag rule be served by hand delivery or overnight mail or
courier, and that Commerce could set an earlier deadline for submission
of the final proprietary and public versions of a document submitted
under the one-day lag rule. According to this commenter, setting an
earlier deadline would result in a greater likelihood that the
submissions would be ``approved'' and available to other parties on
ACCESS on the same day.
Finally, two commenters argue that if Commerce reinstates the
service requirement for business proprietary documents filed under the
one-day lag rule, service should only be made on parties on the APO
service list, and not on pro se or non-APO authorized parties. The
commenters argue that to require service of such documents to non-APO
authorized parties before the final bracketing is checked creates
significant risk of an APO violation, particularly when submissions
contain the business proprietary information of multiple parties. These
commenters argue that this undermines the purpose of the one-day lag
rule to protect business proprietary information.
Response: Upon consideration of these comments, we are adopting our
proposal to reinstate 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. However, as discussed above, for this final rule we
are amending section 351.303(f)(1)(iii) so that electronic service via
secure electronic transmission is the default method of alternative
service, including for business proprietary documents filed under the
one-day lag rule. We believe
[[Page 67075]]
that reinstating the service requirement of such documents eliminates
uncertainties that resulted from waiving service during the past three
years under the Temporary Rule and helps with providing parties as much
time as possible with such documents to protect their interests. In our
view, this fulfills the goal of these regulatory amendments to make
service more efficient and addresses many of the concerns raised
regarding the burden of other forms of service, such as first-class
mail or personal service, while also maintaining flexibility. Although
some commenters oppose the reinstatement of service requirements for
documents filed under the one-day lag rule, we are not convinced that,
overall, the benefits of not being required to serve these documents
under the Temporary Rule outweigh the benefits of requiring service.
This is particularly true when considering that Commerce is amending
the regulations to permit such documents to be served via secure
electronic transmission, which greatly reduces the burdens expressed by
certain commenters.
Further, as discussed above, because we are amending the regulation
to permit the service of one-day lag documents via secure electronic
transmission, we are removing the requirement to file a standalone
certificate of service from this final rule. For similar reasons, we
determine it is not necessary to adopt one commenter's alternative
proposal to require a ``certificate of non-service.'' Because we are
reinstating the service requirements for business proprietary documents
filed under the one-day lag rule, filing a ``certificate of non-
service'' would not be needed because such documents would in fact be
served.
Allowing electronic service of business proprietary documents filed
under the one-day lag rule removes the uncertainty parties may have
experienced over whether a document was filed under the one-day lag
rule or whether the document was untimely filed or not filed at all.
Having the submitter serve parties via secure electronic service will
also help to reduce delays in service, enable parties to ensure that
any changes made to the final business proprietary document are only
related to bracketing, and increase the likelihood that parties will
receive the documents the same day they are filed on ACCESS.
Accordingly, we find it unnecessary to adopt the suggestion that the
time for submitting rebuttal briefs be increased from five to seven
days as a method of relieving the potential compressed period for
submitting rebuttal briefs that may result from delays in receiving
documents filed under the one-day lag rule. For similar reasons, we
also find it unnecessary to adopt the suggestion that Commerce set an
earlier deadline for the submission of final business proprietary and
public versions of documents submitted under the one-day lag rule as a
potential way for these documents to be approved faster on ACCESS. We
also note that neither of these suggestions are responsive to the
proposed regulatory amendments in the Proposed Rule, and thus, such
modifications would be outside the scope of this rulemaking.
Moreover, as discussed above, in making electronic service the
default rule, APO-authorized representatives will be permitted to serve
third-party business proprietary information, not just that of the
sender or the recipient, and the recipient need not affirmatively
consent to service. This alleviates the concern expressed by some
commenters that there is a greater burden on petitioners' firms that
often file submissions containing the business proprietary information
of multiple parties, because these parties will be able to
electronically serve documents containing the business proprietary
information of multiple parties.
Some commenters suggest that Commerce itself should release non-
final business proprietary documents filed under the one-day lag rule
by making technical changes to ACCESS to prevent such documents from
becoming part of the official record. These commenters suggest that
this would be a method of allowing ACCESS to effectuate service of such
documents without reinstating service requirements outside of ACCESS.
As stated in the Proposed Rule, 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.\7\ Should ACCESS technology capabilities
change in the future, we will consider whether service of non-final
bracketing documents can be effectuated upon filing on ACCESS. At this
time, however, we believe that permitting electronic service of non-
final bracketing documents is efficient, consistent with modern
professional practice, and sufficiently addresses the various concerns
raised by parties.
---------------------------------------------------------------------------
\7\ See Proposed Rule, 87 FR at 72920.
---------------------------------------------------------------------------
Finally, certain commenters argue that if Commerce reinstates
service requirements for non-final business proprietary documents filed
under the one-day lag rule, such requirement should only apply to
persons on the APO service list and not on non-APO authorized
representatives or pro se parties because it creates a significant risk
of an APO violation. We recognize there may be some risk of a potential
APO violation if parties do not properly bracket business proprietary
information in a non-final business proprietary submission. At the same
time, we are cognizant that non-APO authorized representatives and pro
se parties would benefit from service of such documents in defending
their interests during a segment of the proceeding. We remind parties
of their responsibility to properly safeguard business proprietary
information.\8\ Commerce's regulations have required parties to
identify whose business proprietary information is contained in a
submission; this is not a new requirement.\9\ If a submitter cannot
identify certain business proprietary information as definitively
belonging to a non-APO authorized representative or pro se party, then
it is the submitter's responsibility to bracket the information
accordingly in the non-final business proprietary submission and
consider whether service of the submission needs to be made. When
preparing the final version of the submission, the submitter should
assess whether the bracketing should be updated or corrected. On
balance, we believe it is important to reinstate service requirements
for non-final business proprietary documents filed under the one-day
lag rule on all parties, whether or not they are APO-authorized, and
are adopting this change.
---------------------------------------------------------------------------
\8\ See, e.g., 19 CFR 351.305(a)(1) and 351.306(d).
\9\ See 19 CFR 351.306(c)(1)-(2) (requiring a submitting party
to identify, contiguously with each item of business proprietary
information, the person that originally submitted the item).
---------------------------------------------------------------------------
To be clear, the requirement to serve business proprietary
documents filed under the one-day lag rule applies to non-final
business proprietary documents. For final business proprietary
documents, with or without bracketing corrections, and public versions
of final business proprietary documents, the general rule applies that
ACCESS will effectuate service, as outlined elsewhere in this final
rule and in the Proposed Rule.
Request for Review
Two commenters express concern over the requirement in proposed
section 351.303(f)(2)(i) that requests for an expedited AD review, an
administrative review, a new shipper review, or a changed circumstances
review be served by personal service or first-class mail on each
exporter or producer specified in the request. One
[[Page 67076]]
commenter argues that such delivery methods are inefficient, costly,
and prejudice small- and medium-sized enterprises (particularly for
overseas deliveries), and that publicly listed addresses are sometimes
undeliverable or refuse service. Moreover, the commenter notes that the
Federal Register already provides public notice of the initiation of
such proceedings. Thus, the commenter proposes that Commerce permit
parties to serve requests for these reviews through electronic means,
unless there are no means for electronic service.
Response: Upon consideration of these comments, we are amending the
regulation so that requests for an expedited AD review, an
administrative review, a new shipper review, or a changed circumstances
review may be served via electronic service. Service of documents
containing business proprietary information must be effectuated in
accordance with the rules provided elsewhere in this final rule.
Although the Federal Register provides public notice of the initiation
of these proceedings, there is a delay between when parties may request
these reviews and when Commerce will initiate the proceeding itself and
publish the Federal Register notice. There is a benefit to service of
requests for these types of proceedings because it may inform another
party's decision whether to participate in the proceeding or to
potentially comment on another party's request prior to a decision by
Commerce to initiate the proceeding. Therefore, we are maintaining the
requirement to serve requests for these types of reviews but are
permitting parties to serve these requests via electronic service.
APO Applications Using Electronic Form ITA-367
The only commenter remarking on this provision in proposed section
351.305(b)(2) supports the codification of the APO application process
to use electronic Form ITA-367, because it would expedite the APO
application approvals by Commerce, as well as service of applications
and updated service lists.
Response: Upon consideration of this comment, we have made no
changes to this provision from the Proposed Rule.
Service of Business Proprietary Documents to Newly Authorized APO
Representatives
Several commenters support the general proposal in proposed section
351.305(c)(2) that representatives that are newly granted APO access
would be responsible for requesting business proprietary documents that
are no longer available on ACCESS from the party that made the business
proprietary submission. However, one commenter notes that proposed
section 351.305(c)(2) does not indicate the acceptable means of service
for such documents, or whether a certificate of service would be
required. Thus, the commenter suggests that Commerce amend
subparagraphs (c)(2)(i) and (ii) to state that parties may agree upon
any acceptable means of service listed in section 351.303(f)(1)(iii),
and to state that a certificate of service is not required.
Response: Upon consideration of these comments, we clarify that
service via secure electronic transmission is permitted and that a
certificate of service is not required and are amending this regulation
accordingly.
Service of Business Proprietary Information
Commenters generally support the proposal in proposed section
351.306(c)(2) that when a party is not represented, or when its
representative is not APO-authorized, another party need only serve
that party or its representative its own business proprietary
information, and not the business proprietary information of other
parties. However, one commenter notes that in some instances a party
files its own submission even when it is otherwise represented, and
requests that Commerce clarify that a submitting party need only serve
a party's representative rather than serve both the party and its
representative.
Another commenter requests that Commerce limit the service
exceptions under section 351.306(c)(2) to parties and representatives
who are not eligible to obtain approval for access under an APO. The
commenter states that if a U.S. attorney is eligible to obtain APO
access, it should be required to do so to receive business proprietary
information, including that of its client. If the attorney is eligible
to obtain APO access but simply chooses not to, the commenter asserts
other parties should not be required to serve the attorney under the
service exceptions under section 351.306(c)(2) for pro se parties and
non-APO authorized representatives and suggests that Commerce could
require that parties indicate in their entry of appearance if they are
not eligible to submit an APO application and the reasons why they are
ineligible to submit an APO application.
Response: We clarify that a submitting party is required to serve
the party or parties that are on the service list. If a party is not on
the service list, but its representative is, the submitting party is
only required to serve the party's representative, even if the party
itself, and not its representative, filed the submission.
In addition, we decline to adopt the suggestion that Commerce limit
service exceptions under this provision to parties that are not
eligible to obtain approval for access to an APO. There is no
requirement to file an APO application, and we do not view it as
appropriate to require a person to file an APO application simply
because that person is an attorney. As such, we are not making changes
to the regulations to limit the service exceptions in this manner.
Labor Factors of Production Valuation
One commenter argues that if Commerce adopts its proposal to remove
paragraph (c)(3) and redesignate paragraph (c)(4) as paragraph (c)(3)
under proposed section 351.408, Commerce should also remove the
reference to current paragraph (c)(3) in paragraph (c)(2). The
commenter notes that paragraph (c)(2) currently reads: ``Except for
labor, as provided in paragraph (d)(3) of this section, the Secretary
normally will value all factors in a single surrogate country.'' The
commenter argues that for consistency, that paragraph could be revised
to state: ``The Secretary normally will value all factors in a single
surrogate country.''
Response: We agree and are amending the regulation accordingly.
Other Suggestions From Commenters
Commenters recommended several modifications to the ACCESS system
and filing procedures that were not covered or addressed in the
Proposed Rule.
1. Commenter Suggestions Related to ACCESS
Commenters suggested a variety of changes to ACCESS, including:
<bullet> creating a separate docket and separate notification
digests for procedural documents such as APO applications, entries of
appearance, and amendments thereto;
<bullet> adding additional notification digests;
<bullet> adding a ``released date'' column to show the date and
time a document is made available to parties;
<bullet> extending the number of days business proprietary
documents are available on ACCESS to 30 days;
<bullet> increasing the number of ACCESS proxy users, including a
proposal to create firm-wide proxies;
<bullet> increasing the ACCESS file-size limit;
[[Page 67077]]
<bullet> increasing the number of files available for batch
download;
<bullet> requiring optimization of PDFs for maximum compression;
and
<bullet> consolidating all parts of a filing under one barcode.
Response: We note that these suggestions are not responsive to the
proposed regulatory amendments in the Proposed Rule. Thus, such
modifications would be outside the scope of this rulemaking. However,
Commerce is committed to improving the ACCESS system by implementing
features that will foster efficiency and ease of use for the most users
while staying within Commerce's resource constraints. As such, we will
take these proposals into consideration and may address one or more in
possible future rulemakings. To the extent consideration or
implementation of certain new features would not require notice and
comment, Commerce will consider these proposals and any new features
adopted will be announced on the ACCESS website at <a href="https://access.trade.gov">https://access.trade.gov</a> and included in the ACCESS Handbook.
2. Additional Commenter Suggestions
Commenters also proposed three additional changes to Commerce's
filing procedures that were not included in the Proposed Rule: amending
section 351.309(d) to require rebuttal briefs to be due seven days
after the due date for case briefs, rather than the current five days;
amending section 351.303(b)(1) to set a filing deadline of 12:00 a.m.
Hawaiian Standard Time, or at a minimum changing to a midnight Eastern
Time deadline rather than 5:00 p.m. Eastern Time; and amending section
351.303(b)(1) to deem the time of filing of a submission as the time
the party begins the filing process, rather than the end time at which
it is filed in its entirety.
Response: Commerce has not adopted these three recommendations in
this final rule. The Proposed Rule did not cover or address these
regulatory provisions in sections 351.309(d) and 351.303(b)(1), and the
comments are outside the scope of the modifications and additions to
regulations that we proposed for comment.
Classification
Executive Order 12866
OMB has determined that this rule is not significant for purposes
of Executive Order 12866.
Executive Order 13132
This 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 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 of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration at the proposed rule stage that this rule, if adopted,
would not have a significant economic impact on a substantial number of
small business entities under the provisions of the Regulatory
Flexibility Act, 5 U.S.C. 605(b). The factual basis for the
certification was published with the Proposed Rule and is not repeated
here. We received no comments and were not made aware of any positions
of opposition to the certification. As a result, a Final Regulatory
Flexibility Analysis was not required and none was 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: September 25, 2023.
Lisa W. Wang,
Assistant Secretary for Enforcement and Compliance.
For the reasons stated in the preamble, the Department of Commerce
amends 19 CFR part 351 as follows:
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
[[Page 67078]]
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, 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.
* * * * *
(1) * * *
(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 comments 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) * * *
[[Page 67079]]
(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)(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) * * *
(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 the electronic filing of the submission in ACCESS,
unless it is filed manually in accordance with paragraph (b)(2) of this
section, or ACCESS is unavailable. If a submission is filed manually or
ACCESS is unavailable, 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 the electronic filing of
the submission in ACCESS, unless it is filed manually in accordance
with paragraph (b)(2) of this section, or ACCESS is unavailable. If a
submission is filed manually or ACCESS is unavailable, 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 in accordance with
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 in accordance with 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 document, or a business proprietary document cannot be
effectuated on ACCESS, the submitter must serve the recipient by
electronic transmission. Generally, a business proprietary document
must be served by secure electronic transmission. If the submitter is
not able to use such a method, it may use an acceptable alternative
method of service, including personal service, first-class mail, or
electronic mail. Electronic mail may only be used as an acceptable
alternative method of service for a business proprietary document under
paragraph (f)(1)(ii)(B) 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 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. Service may be made by an electronic transmission
method if the interested party that files the request has an electronic
mail address for the recipient; otherwise, service must be made by
personal service or first-class mail. 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
[[Page 67080]]
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 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. Service must be made in accordance with section
351.303(f)(1)(iii). A certificate of service is not required.
(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. Service must be made in accordance with section
351.303(f)(1)(iii). A certificate of service is not required. 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).
* * * * *
0
14. In Sec. 351.408:
0
a. Revise paragraph (c)(2).
0
b. Remove paragraph (c)(3) and redesignate paragraph (c)(4) as
paragraph (c)(3).
[[Page 67081]]
The revisions read as follows:
Sec. 351.408 Calculation of normal value of merchandise from
nonmarket economy countries.
* * * * *
(c) * * *
(2) Valuation in a single country. The Secretary normally will
value all factors in a single surrogate country.
(3) Manufacturing overhead, general expenses, and profit. For
manufacturing overhead, general expenses, and profit, the Secretary
normally will use non-proprietary information gathered from producers
of identical or comparable merchandise in the surrogate country.
[FR Doc. 2023-21516 Filed 9-28-23; 8:45 am]
BILLING CODE 3510-DS-P
</pre></body>
</html>Indexed from Federal Register on September 29, 2023.
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.