[Title 19 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 1997 Edition]
[From the U.S. Government Printing Office]


          19



          Customs Duties



[[Page i]]

          PART 200 TO END

          Revised as of April 1, 1997
          CONTAINING
          A CODIFICATION OF DOCUMENTS
          OF GENERAL APPLICABILITY
          AND FUTURE EFFECT

          AS OF APRIL 1, 1997
          With Ancillaries
          Published by
          the Office of the Federal Register
          National Archives and Records
          Administration

          as a Special Edition of
          the Federal Register



[[Page ii]]

                                      




                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 1997



               For sale by U.S. Government Printing Office
 Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328



[[Page iii]]




                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 19:
    Chapter II--United States International Trade Commission..       3
    Chapter III--International Trade Administration, 
        Department of Commerce................................     167
  Finding Aids:
    Table of CFR Titles and Chapters..........................     293
    Alphabetical List of Agencies Appearing in the CFR........     309
    List of CFR Sections Affected.............................     319

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                                  ----------------------------------------------------------                    

   Cite this Code:  CFR                                                         
                                                                                                                
   To cite the regulations in this volume use title, part                       
   and section number. Thus, 19 CFR 200.735-101 refers to                      
   title 19, part 200, section 735-101.                                        
                                  ----------------------------------------------------------                    
                                                                                                                


[[Page v]]

                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
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parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
    The appropriate revision date is printed on the cover of each 
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HOW TO USE THE CODE OF FEDERAL REGULATIONS

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inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
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OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
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CFR INDEXES AND TABULAR GUIDES

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    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
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the revision dates of the 50 CFR titles.

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    There are no restrictions on the republication of material appearing 
in the Code of Federal Regulations.

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    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
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                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

April 1, 1997.



[[Page vii]]



                               THIS TITLE

    Title 19--Customs Duties is composed of three volumes. The first two 
volumes, parts 1 to 140 and parts 141 to 199 contain the regulations in 
Chapter I--United States Customs Service, Department of the Treasury. 
The third volume, part 200 to end contains the regulations in Chapter 
II--United States International Trade Commission and Chapter III--
International Trade Administration, Department of Commerce. The contents 
of these volumes represent all current regulations issued under this 
title of the CFR as of April 1, 1997.

    Redesignation Tables and a Subject Index to Chapter I--U.S. Customs 
Service appear in the Finding Aids section of the first two volumes.

    For this volume, Brian Swidal was Chief Editor. The Code of Federal 
Regulations publication program is under the direction of Frances D. 
McDonald, assisted by Alomha S. Morris.

[[Page viii]]



 
[[Page 1]]



                        TITLE 19--CUSTOMS DUTIES




                  (This book contains part 200 to End)

  --------------------------------------------------------------------
                                                                    Part
Chapter ii--United States International Trade Commission....         200
Chapter iii--International Trade Administration, Department 
  of Commerce...............................................         353

Cross References: Regulations of the Department of Agriculture: See 
  Titles 7 and 9.
Internal Revenue Service, Department of the Treasury: See Internal 
  Revenue Service, 26 CFR Chapter I.
Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury: 27 
  CFR Chapter I.
Drug Enforcement Administration, Department of Justice: See Food and 
  Drugs, 21 CFR Chapter II.
Coast Guard, Department of Transportation: See 33 CFR Chapter I and 46 
  CFR Chapter I.
Department of Defense procurement: See Federal Acquisition Regulations 
  System, 48 CFR Chapter 2.
Department of State: See Foreign Relations, 22 CFR Chapter I.
Export clearance and destination control: See Commerce and Foreign 
  Trade, 15 CFR part 386.
Food and Drug Administration, Department of Health and Human Services: 
  See Food and Drugs, 21 CFR Chapter I.
Foreign excess property: See Commerce and Foreign Trade, 15 CFR part 
  302.
Foreign trade statistics: See Commerce and Foreign Trade, 15 CFR part 
  30.
Foreign-Trade Zones Board: See Commerce and Foreign Trade, 15 CFR 
  Chapter IV.
Immigration and Naturalization Service, Department of Justice: See 
  Aliens and Nationality, 8 CFR Chapter I.
Importation of wildlife and plants: See Wildlife and Fisheries, 50 CFR 
  Chapter I, Subchapter B.
Postal Service (International Mail): See United States Postal Service, 
  39 CFR Chapter I, Subchapter B.
Public Health Service, Department of Health and Human Services: See 
  Public Health, 42 CFR Chapter I.
Other regulations issued by the Department of the Treasury appear in 12 
  CFR Chapter I; and Title 31.

[[Page 3]]



     CHAPTER II--UNITED STATES INTERNATIONAL TRADE COMMISSION




  --------------------------------------------------------------------
Part                                                                Page
200             Employee responsibilities and conduct.......           5
                          SUBCHAPTER A--GENERAL
201             Rules of general application................          16
              SUBCHAPTER B--NONADJUDICATIVE INVESTIGATIONS
202             Investigations of costs of production.......          53
204             Investigations of effects of imports on 
                    agricultural programs...................          54
205             Investigations to determine the probable 
                    economic effect on the economy of the 
                    United States of proposed modifications 
                    of duties or of any barrier to (or other 
                    distortion of) international trade or of 
                    taking retaliatory actions to obtain the 
                    elimination of unjustifiable or 
                    unreasonable foreign acts or policies 
                    which restrict U.S. commerce............          55
206             Investigations relating to global and 
                    bilateral safeguard actions, market 
                    disruption, and review of relief actions          57
207             Investigations of whether injury to domestic 
                    industries results from imports sold at 
                    less than fair value or from subsidized 
                    exports to the United States............          74
    SUBCHAPTER C--INVESTIGATIONS OF UNFAIR PRACTICES IN IMPORT TRADE
210             Adjudication and Enforcement................         105
212             Implementation of the Equal Access to 
                    Justice Act.............................         157
213             Trade remedy assistance.....................         162

[[Page 5]]



PART 200--EMPLOYEE RESPONSIBILITIES AND CONDUCT--Table of Contents




                      Subpart A--General Provisions

Sec.
200.735-101  Purpose.
200.735-102  Definitions.
200.735-103  Counseling service.
200.735-104  Disciplinary and other remedial action.

     Subpart B--Provisions Governing Ethical and Other Conduct and 
                      Responsibilities of Employees

200.735-104a  Proscribed actions.
200.735-105  Gifts, entertainment and favors.
200.735-106  Outside employment and other activities.
200.735-107  Financial interests.
200.735-108  Use of Government property.
200.735-109  Misuse of information.
200.735-110  Indebtedness.
200.735-111  Gambling, betting, and lotteries.
200.735-112  General conduct prejudicial to the Government.
200.735-113  Miscellaneous statutory provisions.

 Subpart C--Provisions Governing Statements of Employment and Financial 
                                Interests

200.735-114  Employees required to submit statements.
200.735-114a  Employees not required to submit statements.
200.735-114b  Employee complaints on filing requirements.
200.735-114c  Voluntary submission by employees.
200.735-115  Forms--Interests not to be reported.
200.735-116  Time and place for submission of employees' statements.
200.735-117  Supplementary statements.
200.735-118  Interests of employees' relatives.
200.735-119  Information not known by employees.
200.735-120  Information prohibited.
200.735-121  Confidentiality of employees' statements.
200.735-122  Special Government employees.
200.735-123  Effect of employees' and special Government employees' 
          statements on other requirements.

 Subpart D--Provisions for Administrative Enforcement of Postemployment 
                    Conflict of Interest Restrictions

200.735-124  General.
200.735-125  Exemption from restrictions.
200.735-126  Administrative enforcement proceedings.

    Authority: E.O. 11222, 30 FR 6469, 3 CFR, 1965 Supp.; 5 CFR 735.101 
et seq., 5 CFR 2638.101 et seq., unless otherwise noted.

    Source: 31 FR 2593, Feb. 10, 1966, unless otherwise noted.



Subpart A--General Provisions

Sec. 200.735-101   Purpose.

    The purpose of the regulations in this part is to maintain the 
highest standards of honesty, integrity, impartiality, and conduct on 
the part of all employees of the U.S. International Trade Commission and 
to maintain public confidence that the business of the Commission is 
being conducted in accordance with such standards.

[31 FR 2593, Feb. 10, 1966, as amended at 46 FR 17542, Mar. 19, 1981]

Sec. 200.735-102   Definitions.

    In this part:
    (a) Commission means the U.S. International Trade Commission.
    (b) Commissioner means a Commissioner of the U.S. International 
Trade Commission.
    (c) Employee means a Commissioner, employee, or special Government 
employee of the Commission.
    (d) Executive order means Executive Order 11222 of May 8, 1965.
    (e) Person means an individual, a corporation, a company, an 
association, a firm, a partnership, a society, a joint stock company, or 
any other organization or institution.
    (f) Special Government employee means a ``special Government 
employee'' as defined in section 202 of Title 18 of the United States 
Code who is employed by the Commission.

[31 FR 2593, Feb. 10, 1966, as amended at 44 FR 23823, Apr. 23, 1979; 46 
FR 17542, Mar. 19, 1981; 56 FR 36726, Aug. 1, 1991]

Sec. 200.735-103  Counseling service.

    (a) The Chairman shall appoint a Designated Agency Ethics Official 
(DAEO) who serves as liaison to the Office of Government Ethics and who 
is responsible for carrying out the Commission's ethics program. The 
program shall be designed to implement titles II, IV, and V of the 
Ethics in Government Act of 1978, Executive Order No. 11222, the 
regulations in this part, and

[[Page 6]]

(6other statutes and regulations applicable to agency ethics matters. 
The DAEO will be a senior Commission employee with experience 
demonstrating the ability to review financial disclosure reports and 
counsel employees with regard to resolving conflicts of interest, review 
the financial disclosures of Presidential nominees to the Commission 
prior to confirmation hearings, counsel employees with regard to ethics 
standards, assist supervisors in implementing the Commission's ethics 
program, and periodically evaluate the ethics program.
    (b) The Chairman shall select an Alternate Agency Ethics Official 
who will serve as Deputy DAEO to whom any of the DAEO's statutory and 
regulatory duties may be delegated.
    (c) The DAEO shall coordinate and manage the agency's ethics 
program. The DAEO duties shall consist of:
    (1) Liaison with the Office of Government Ethics;
    (2) Review of financial disclosure reports, including reports filed 
by Presidential nominees to the Commission;
    (3) Initiation and maintenance of ethics education and training 
programs;
    (4) Monitoring administrative actions and sanctions; and
    (5) Implementation of the specific program elements listed in Office 
of Government Ethics regulations, 5 CFR 738.203(b).

[46 FR 17542, Mar. 19, 1981, as amended at 56 FR 36726, Aug. 1, 1991]

Sec. 200.735-104   Disciplinary and other remedial action.

    (a) An employee who violates any of the regulations in this part may 
be disciplined. The disciplinary action may be in addition to any other 
penalty prescribed by law for the violation. In addition to, or in lieu 
of, disciplinary action, remedial action to end conflicts or appearance 
of conflicts of interest may include, but is not limited to:
    (1) Changes in assigned duties;
    (2) Divestment by the employee of his conflicting interest; or
    (3) Disqualification for a particular assignment.
    (b) Remedial action, whether disciplinary or otherwise, shall be 
effected in accordance with any applicable laws, Executive orders, and 
regulations.



Subpart B--Provisions Governing Ethical and Other Conduct and Responsibilities of Employees

Sec. 200.735-104a   Proscribed actions.

    An employee shall avoid any action, whether or not specifically 
prohibited by this subpart, which might result in, or create the 
appearance of:
    (a) Using public office for private gain;
    (b) Giving preferential treatment to any person;
    (c) Impeding Government efficiency or economy;
    (d) Losing complete independence or impartiality;
    (e) Making a Government decision outside official channels; or
    (f) Affecting adversely the confidence of the public in the 
integrity of the Government.

[32 FR 16210, Nov. 28, 1967]

Sec. 200.735-105   Gifts, entertainment, and favors.

    (a) Except as provided in paragraph (b) of this section, no employee 
may solicit or accept, directly or indirectly, any gift, gratuity, 
favor, entertainment, loan, or any other thing of monetary value from 
any person who:
    (1) Has, or is seeking to obtain, contractual or other business or 
financial relations with the Commission;
    (2) Conducts operations or activities that are being investigated by 
the Commission; or
    (3) Has interests that may be substantially affected by the 
performance or nonperformance of the employee's official duty.
    (b) The prohibitions set forth under paragraph (a) of this section 
shall not apply to:
    (1) Solicitations or acceptances based on obvious family or personal 
relationships (such as those between parents, children, or spouse of the 
employee and the employee) when the circumstances make it clear that it 
is those relationships rather than the business of the persons concerned 
which are the motivating factors;
    (2) The acceptance of food and refreshments of nominal value on 
infrequent occasions in the ordinary course

[[Page 7]]

(7of a luncheon or dinner meeting or other meeting or on a field trip, 
and of ground transportation of nominal value in the course of a field 
trip, where an employee may properly be in attendance.
    (3) The acceptance of loans from banks or other financial 
institutions on customary terms to finance proper and usual activities 
of employees, such as home mortgage loans; and
    (4) The acceptance of unsolicited advertising or promotional 
material, such as pens, pencils, note pads, calendars, and other items 
of nominal value.
    (c) An employee shall not solicit a contribution from another 
employee for a gift to an official superior, make a donation as a gift 
to an official superior, or accept a gift from an employee receiving 
less pay than himself (5 U.S.C. 7351). However, this paragraph does not 
prohibit a voluntary gift of nominal value or donation in a nominal 
amount made on a special occasion such as marriage, illness, or 
retirement.
    (d) An employee shall not accept a gift, present, decoration, or 
other thing from a foreign government unless authorized by Congress as 
provided by the Constitution and in 5 U.S.C. 7342.
    (e) Neither this section nor Sec. 200.735-106 precludes an employee 
from receipt of bona fide reimbursement, unless prohibited by law, for 
expenses of travel and such other necessary subsistence as is compatible 
with this part for which no Government payment or reimbursement is made. 
However, this paragraph does not allow an employee to be reimbursed, or 
payment to be made on his behalf, for excessive personal living 
expenses, gifts, entertainment or other personal benefits, nor does it 
allow an employee to be reimbursed by a person for travel on official 
business under agency orders when reimbursement is proscribed by 
Decision B-128527 of the Comptroller General dated March 7, 1967.

[32 FR 16210, Nov. 28, 1967, as amended at 46 FR 41036, Aug. 14, 1981]

Sec. 200.735-106   Outside employment and other activities.

    (a) An employee may engage in outside employment or other outside 
activity not incompatible with the full and proper discharge of the 
duties and responsibilities of his Government employment: Provided, That 
no Commissioner shall actively engage in any other business, vocation, 
or employment than that of serving as a Commissioner (19 U.S.C. 
1330(c)). Incompatible activities include but are not limited to:
    (1) Acceptance of a fee, compensation, gift, payment of expense, or 
any other thing of monetary value in circumstances in which acceptance 
may result in, or create the appearance of, conflicts of interest; or
    (2) Outside employment tending to impair the employee's capacity to 
perform his Government duties and responsibilities in an acceptable 
manner.
    (b) An employee (except a special Government employee) shall not 
receive any salary or anything of monetary value from a private source 
as compensation for his services to the Government (18 U.S.C. 209).
    (c) Employees are encouraged to engaged in teaching, lecturing, and 
writing that is not prohibited by law, the Executive order, or this 
part. However, an employee shall not, either for or without 
compensation, engage in teaching, lecturing, or writing, including 
teaching, lecturing, or writing for the purpose of the special 
preparation of a person or class of persons for an examination of the 
Civil Service Commission or Board of Examiners for the Foreign Service, 
that is dependent on information obtained as a result of his Government 
employment, except when that information has been made available to the 
general public or will be made available on request, or when the 
Commission gives authorization for the use of nonpublic information 
(other than information received in confidence) on the basis that the 
use is in the public interest and would not be in violation of law. In 
addition, Commissioners shall not receive compensation or anything of 
monetary value for any consultation, lecture, discussion, writing, or 
appearance the subject matter of which is devoted substantially to the 
responsibilities, programs, or operations of the Commission, or which 
draws substantially on official data or

[[Page 8]]

(8ideas which have not become part of the body of public information.
    (d) This section does not preclude an employee from:
    (1) Participation in the activities of national or State political 
parties not proscribed by law.
    (2) Participation in the affairs of, or acceptance of, an award for 
a meritorious public contribution or achievement given by a charitable, 
religious, professional, social, fraternal, nonprofit educational and 
recreational, public service, or civic organization.

[33 FR 8447, June 7, 1968]

Sec. 200.735-107   Financial interests.

    (a) An employee shall not:
    (1) Have a direct or indirect financial interest that conflicts 
substantially, or appears to conflict substantially, with his Government 
duties or responsibilities; or
    (2) Engage in, directly or indirectly, a financial transaction as a 
result of, or primarily relying on, information obtained through his 
Government employment.
    (b) This section does not preclude an employee from having a 
financial interest or engaging in financial transactions to the same 
extent as a private citizen not employed by the Government so long as it 
is not prohibited by law, the Executive order, or this part.
    (c) Pursuant to the authority contained in 18 U.S.C. 208(b), the 
following types of financial interests are considered too remote or 
inconsequential to affect a Commission employee's integrity or services 
and do not constitute a conflict of interest under 18 U.S.C. 208(a):
    (1) In widely-held, diversified mutual funds or regulated investment 
companies, regardless of their value; and
    (2) In state or local government bonds, or other noncorporate bonds, 
regardless of their value.

[31 FR 2593, Feb. 10, 1966, as amended at 44 FR 23823, Apr. 23, 1979]

Sec. 200.735-108   Use of Government property.

    An employee shall not directly or indirectly use, or allow the use 
of, Government property of any kind, including property leased to the 
Government, for other than officially approved activities. An employee 
has a positive duty to protect and conserve Government property, 
including equipment, supplies, and other property issued to him.

Sec. 200.735-109   Misuse of information.

    For the purpose of furthering a private interest, an employee shall 
not, except as provided in Sec. 200.735-106(c), directly or indirectly 
use, or allow the use of, official information obtained through or in 
connection with his Government employment which has not been made 
available to the general public.

Sec. 200.735-110   Indebtedness.

    An employee shall pay each just financial obligation in a proper and 
timely manner, especially one imposed by law such as Federal, State or 
local taxes. For the purpose of this section a just financial obligation 
means one acknowledged by the employee or reduced to judgment by a 
court, and in a proper and timely manner means in a manner which the 
Commission determines does not, under the circumstances, reflect 
adversely on the Government as his employer. In the event of a dispute 
between an employee and an alleged creditor, the Commission shall make 
no determination of the validity or amount of the disputed debt.

Sec. 200.735-111   Gambling, betting, and lotteries.

    An employee shall not participate, while on Government-owned or 
leased property or while on duty for the Government, in any gambling 
activity including the operation of a gambling device, in conducting a 
lottery or pool, in a game for money or property, or in selling or 
purchasing a numbers slip or ticket. However, this section does not 
preclude activities:
    (a) Necessitated by an employee's law enforcement duties; or
    (b) Under section 3 of Executive Order 10927 and similar Commission-
approved activities.

[[Page 9]]

(9

Sec. 200.735-112   General conduct prejudicial to the Government.

    An employee shall not engage in criminal, infamous, dishonest, 
immoral, or notoriously disgraceful conduct, or other conduct 
prejudicial to the Government.

Sec. 200.735-113   Miscellaneous statutory provisions.

    Each employee shall familiarize himself with each statute that 
relates to his ethical and other conduct as a Government employee, 
including the following statutes:
    (a) House Concurrent Resolution 175, 85th Congress, 2d Session, 72 
Stat. B12, the ``Code of Ethics for Government Service.''
    (b) Chapter 11 of Title 18, United States Code, relating to bribery, 
graft, and conflicts of interest.
    (c) The prohibition against lobbying with appropriated funds (18 
U.S.C. 1913).
    (d) The prohibitions against disloyalty and striking (5 U.S.C. 7311, 
18 U.S.C. 1918).
    (e) The prohibition against the employment of a member of a 
Communist organization (50 U.S.C. 784).
    (f) The prohibitions against (1) the disclosure of classified 
information (18 U.S.C. 798, 50 U.S.C. 783); and (2) the disclosure of 
confidential information (18 U.S.C. 1905).
    (g) The provision relating to the habitual use of intoxicants to 
excess (5 U.S.C. 7352).
    (h) The prohibition against the misuse of a Government vehicle (31 
U.S.C. 638a(c)).
    (i) The prohibition against the misuse of the franking privilege (18 
U.S.C. 1719).
    (j) The prohibition against the use of deceit in an examination or 
personnel action in connection with Government employment (18 U.S.C. 
1917).
    (k) The prohibition against fraud or false statements in a 
Government matter (18 U.S.C. 1001).
    (l) The prohibition against mutilating or destroying a public record 
(18 U.S.C. 2071).
    (m) The prohibition against counterfeiting and forging 
transportation requests (18 U.S.C. 508).
    (n) The prohibitions against (1) embezzlement of Government money or 
property (18 U.S.C. 641); (2) failing to account for public money (18 
U.S.C. 643); and (3) embezzlement of the money or property of another 
person in the possession of an employee by reason of his employment (18 
U.S.C. 654).
    (o) The prohibition against unauthorized use of documents relating 
to claims from or by the Government (18 U.S.C. 285).
    (p) The prohibitions against political activities in subchapter III 
of chapter 73 of title 5, United States Code and 18 U.S.C. 602, 603, 
607, and 608.
    (q) The prohibition against an employee acting as an agent of a 
foreign principal registered under the Foreign Agents Registration Act 
(18 U.S.C. 219).

[31 FR 2593, Feb. 10, 1966, as amended at 32 FR 16210, Nov. 28, 1967]



Subpart C--Provisions Governing Statements of Employment and Financial Interests

Sec. 200.735-114  Employees required to submit statements.

    Except as provided in Sec. 200.735-114a, the following employees 
shall submit confidential statements of employment and financial 
interests:
    (a)(1) Employees in grade GS-13 or above under section 5332 of title 
5, United States Code, or in comparable or higher positions not subject 
to that section, other than those employees who are required to file 
public financial disclosure reports by title II of the Ethics in 
Government Act of 1978.
    (2) The Director of Personnel shall list all such positions, shall 
include the listing in the chapter of the Commission's Policy Manual 
pertaining to the filing of confidential statements of employment and 
financial interests, and shall furnish copies thereof to the Deputy DAEO 
and to affected employees.
    (3) The Director of Personnel shall update the listing required by 
paragraph (a)(2) of this section and shall take all other steps required 
by paragraph (a)(2) as of January 1 and July 1 of each year.
    (b)(1) Employees classified below GS-13 under section 5332 of title 
5, United States Code, or at a comparable pay

[[Page 10]]

(10level under other authority, other than those employees who are 
required to file public financial disclosure reports by title II of the 
Ethics in Government Act of 1978, who are: (i) Responsible for making a 
decision or taking an action in regard to Commission contracting or 
procurement, (ii) responsible for conducting investigative and research 
activities where the decision to be made or action to be taken could 
have an economic impact on any non-Federal enterprise, or (iii) 
responsible for exercising the authority of any supervisory or 
investigative employee in the absence of such employee.
    (2) The Director of Personnel, upon obtaining the advice of the 
General Counsel, shall be responsible for determining which positions 
below GS-13 meet the criteria of paragraph (b)(1) of this section. The 
Director of Personnel shall justify his or her determination in writing 
and shall submit it to the Office of Personnel Management for its 
approval. Upon obtaining the approval of the Office of Personnel 
Management, the Director of Personnel shall include the listing of these 
positions in the chapter of the Commission's Policy Manual pertaining to 
the filing of confidential statements of employment and financial 
interests and shall furnish copies thereof to the Deputy DAEO and to 
affected employees.
    (3) The Director of Personnel shall evaluate the determination under 
paragraph (b)(2) of this section as of January 1 and July 1 of each 
year. When organizational changes or personnel actions indicate that 
positions should be either added to or taken from the list of positions 
which the Director of Personnel has determined meet the criteria of 
paragraph (b)(1) of this section, the Director of Personnel shall make a 
new determination under paragraph (b)(2) of this section and shall take 
all other steps required by paragraph (b)(2) immediately upon the 
implementation of said organizational changes or personnel actions.

[46 FR 17543, Mar. 19, 1981, as amended at 56 FR 36726, Aug. 1, 1991]

Sec. 200.735-114a  Employees not required to submit statements.

    (a) Employees in positions that meet the criteria in paragraphs 
(b)(1) or (c)(1) of Sec. 200.735-114 of this subpart may be exempted 
from the reporting requirement of Sec. 200.735-114 if the Director of 
Personnel, upon obtaining the advice of the General Counsel, determines 
that:
    (1) The duties of a position are such that the likelihood of the 
incumbent's involvement in a conflict-of-interest situation is remote;
    (2) The duties of a position are at such a level of responsibility 
that the submission of a statement of employment and financial interests 
is not necessary because of the degree of supervision and review over 
the incumbent or the inconsequential effect on the integrity of the 
Government.
    (b) All determinations made pursuant to paragraph (a) shall be 
documented in a writing which shall be annexed to the listings required 
by paragraphs (b)(2) and (c)(2) of Sec. 200.735-114 of this subpart. The 
factual bases and reasons for determinations under paragraphs (a)(1) and 
(a)(2) of this section shall be specified by the Director of Personnel 
in said writing. Said writing shall refer to the position only and shall 
not include the name, or other identifying particular, of the incumbent 
occupying the position.
    (c) A statement of employment and financial interests from 
commissioners is not required by this subpart. Such employees are 
subject to separate reporting requirements under section 401 of 
Executive Order 11222 (3 CFR 306 (1964-1965 Comp.)).

[42 FR 59958, Nov. 23, 1977]

Sec. 200.735-114b   Employee complaints on filing requirements.

    Any employee who believes that his position has been improperly 
included under the reporting requirements of Sec. 200.735-114 may obtain 
a review thereof through the Commission's grievance procedures.

[42 FR 59958, Nov. 23, 1977]

Sec. 200.735-114c  Voluntary submission by employees.

    Any employee not required to submit a statement of employment and 
financial interests under the criteria established by Sec. 200.735-114 
may submit such a statement to the Deputy Counselor

[[Page 11]]

(11in the manner specified in Sec. 200.735-116 if he or she so desires.

[42 FR 59958, Nov. 23, 1977]

Sec. 200.735-115  Forms--Interests not to be reported.

    (a) Statements required to be submitted by the provisions of this 
subpart shall be prepared on forms (the format of which is prescribed by 
the Office of Government Ethics, Office of Personnel Management) 
available from the Deputy DAEO.
    (b) Employees, GS-15 and below, who are required to file a statement 
of employment and financial interests under Sec. 200.735-114 of this 
part, need not report to the Deputy DAEO those financial interests 
specified in Secs. 200.735-107(c) (1) and (2) of this part. 
Commissioners and Commission employees, GS-16 and above, are required to 
report the financial interests specified in Secs. 200.735-107(c) (1) and 
(2) of this part under section 202(a) of the Ethics in Government Act of 
1978.

[44 FR 23823, Apr. 23, 1979, as amended at 56 FR 36726, Aug. 1, 1991]

Sec. 200.735-116   Time and place for submission of employees' 
          statements.

    (a) An employee required to submit such a statement shall submit it 
not later than:
    (1) Ninety days after the effective date of the regulations in this 
part, if employed on or before that effective date; or
    (2) Thirty days after his entrance on duty, but not earlier than 
ninety days after the effective date, if appointed after the effective 
date.
    (b) Each such statement shall be submitted to the Office of the 
General Counsel of the Commission and shall be marked ``Submitted in 
Confidence to the Deputy DAEO.'': Provided, That the statement of the 
Deputy DAEO shall be submitted directly to the DAEO.

[31 FR 2593, Feb. 10, 1966, as amended at 56 FR 36726, Aug. 1, 1991]

Sec. 200.735-117   Supplementary statements.

    Changes in, or additions to, the information contained in an 
employee's statement of employment and financial interests shall be 
reported in a supplementary statement as of June 30 each year. If no 
changes or additions occur, a negative report is required. 
Notwithstanding the filing of the annual report under this section, each 
employee shall at all times avoid acquiring a financial interest that 
could result, or taking an action that would result, in a violation of 
the conflicts of interest provisions of section 208 of title 18, United 
States Code, or the regulations in this part.

[32 FR 16211, Nov. 28, 1967]

Sec. 200.735-118   Interests of employees' relatives.

    The interest of a spouse, minor child or other member of an 
employee's immediate household is considered to be an interest of the 
employee. For the purpose of this section, member of an employee's 
immediate household means those blood relations who are residents of the 
employee's household.

Sec. 200.735-119   Information not known by employees.

    If any information required to be included in a statement of 
employment and financial interests or supplementary statement, including 
holdings placed in trust, is not known to the employee but is known to 
another person, the employee shall request that other person to submit 
information on his behalf.

Sec. 200.735-120   Information prohibited.

    An employee is not required to submit in a statement of employment 
and financial interests or supplementary statement any information 
relating to the employee's connection with, or interest in, a 
professional society or a charitable, religious, social, fraternal, 
recreational, public service, civic, or political organization or 
similar organization not conducted as a business enterprise. For the 
purpose of this section, educational and other institutions doing 
research and development or related work involving grants of money from, 
or contracts with, the Government are deemed business enterprises and 
are required to be included in an employee's statement of employment and 
financial interests.

[[Page 12]]

(12

Sec. 200.735-121   Confidentiality of employees' statements.

    Each statement of employment and financial interests, and each 
supplementary statement, shall be held in confidence. To ensure this 
confidentiality, the Deputy DAEO is authorized to review and retain the 
statements. He shall be responsible for maintaining the statements in 
confidence and shall not allow access to, or allow information to be 
disclosed from, a statement except to carry out the purpose of this 
part. The Deputy DAEO may not disclose information from the statement 
except as the Civil Service Commission or the Chairman of the Tariff 
Commission may determine for good cause shown.

[32 FR 16211, Nov. 28, 1967, as amended at 56 FR 36726, Aug. 1, 1991]

Sec. 200.735-122   Special Government employees.

    (a) Except as provided in paragraph (b) of this section, each 
special Government employee shall submit a statement of employment and 
financial interests which reports:
    (1) All of his employment; and
    (2) The financial interests of the special Government employee which 
the Commission determines are relevant in the light of the duties he is 
to perform.
    (b) The Commission may waive the requirement in paragraph (a) of 
this section for the submission of a statement of employment and 
financial interests in the case of a special Government employee who is 
not a consultant or an expert when the Commission finds that the duties 
of the position held by that special Government employee are of a nature 
and at such a level of responsibility that the submission of the 
statement by the incumbent is not necessary to protect the integrity of 
the Government. For the purpose of this paragraph, consultant and expert 
have the meanings given those terms by Chapter 304 of the Federal 
Personnel Manual.
    (c) A statement of employment and financial interests required to be 
submitted under this section shall be submitted as provided for 
employees in Sec. 200.735-116. Each special Government employee shall 
keep his statement current throughout his employment with the Commission 
by the submission of supplementary statements.

[31 FR 2593, Feb. 10, 1966, as amended at 32 FR 16211, Nov. 28, 1967]

Sec. 200.735-123   Effect of employees' and special Government 
          employees' statements on other requirements.

    The statements of employment and financial interests and 
supplementary statements required of employees and special Government 
employees are in addition to, and not in substitution for, or in 
derogation of, any similar requirement imposed by law, order, or 
regulation. The submission of a statement or supplementary statement by 
an employee or special Government employee does not permit him or any 
other person to participate in a matter which his or the other person's 
participation in is prohibited by law, order, or regulation.



Subpart D--Provisions for Administrative Enforcement of Postemployment Conflict of Interest Restrictions

    Authority: Ethics in Government Act of 1978, Pub. L. 95-521, 92 
Stat. 1864 (18 U.S.C. 207), as amended by Pub. L. 96-28, 93 Stat. 76 
(1979); 45 FR 7402, (1979) (5 CFR part 737).

    Source: 45 FR 31988, May 15, 1980, unless otherwise noted.

Sec. 200.735-124  General.

    The procedures in this subpart are established pursuant to 
subsection 207(j) of title 18, United States Code, for the 
administrative enforcement of the restrictions on postemployment 
activities in Title V of the Ethics in Government Act of 1978 (18 U.S.C. 
207 (a), (b), and (c)) and implementing regulations published by the 
Office of Government Ethics (5 CFR part 737). Subsections 207 (a), (b), 
and (c) of Title 18, United States Code, prohibit certain forms of 
representational activity or communications by former Commission 
employees.

[[Page 13]]

(13

Sec. 200.735-125  Exemption from restrictions.

    (a) Scientific and technological information solicited by the 
Commission. Communications of a former Commission employee solely for 
the purpose of furnishing scientific or technological information 
solicited by the Commission in the course of its statutory 
investigations are exempted from the restrictions on postemployment 
practices.
    (b) Exemption for persons with special qualifications in a technical 
discipline--(1) Applicability. A former Commission employee may be 
exempted from the restrictions on postemployment practices if the 
Chairman, in consultation with the Director, Office of Government Ethics 
(the Director), executes a certification published in the Federal 
Register that the former Commission employee has outstanding 
qualifications in a scientific, technological, or other technical 
discipline; that the former Commission employee is acting with respect 
to a particular matter which requires such qualifications; and that the 
national interest would be served by the former Commission employee's 
participation.
    (2) Certification authority. Certification shall be by the Chairman, 
or in the absence thereof, by the acting head of the Commission. 
Consultation with the Director shall precede any certification. The 
exemption is effective upon the execution of the certification. The 
Secretary shall immediately transmit the certification to the Federal 
Register for publication.
    (c) Testimony and statement under oath are subject to penalty of 
perjury--(1) Applicability. A former Commission employee may testify 
before any court, board, commission, or legislative body with respect to 
matters of fact within the personal knowledge of the former Commission 
employee. This provision does not, however, allow a former Commission 
employee, otherwise barred under 18 U.S.C. 207 (a), (b), or (c), to 
testify on behalf of another as an expert witness except (i) to the 
extent that the former employee may testify from personal knowledge as 
to occurrences which are relevant to the issues in the proceeding, 
including those in which the Commission employee participated, utilizing 
his or her expertise, or (ii) in any proceeding where it is determined 
that another expert in the field cannot practically be obtained, that it 
is impracticable for the facts or opinions on the same subject to be 
obtained by other means, and that the former Commission employee's 
testimony is required in the interest of justice.
    (2) Statements under penalty of perjury. A former Commission 
employee may make any statements required to be made under penalty of 
perjury, such as those required in registration statements for 
securities, tax returns, or security clearances. The exception does not, 
however, permit a former employee to submit pleadings, applications, or 
other documents in a representational capacity on behalf of another 
merely because the attorney or other representative must sign the 
documents under oath or penalty of perjury.

Sec. 200.735-126  Administrative enforcement proceedings.

    The following are basic guidelines for administrative enforcement of 
restrictions on postemployment activities:
    (a) Initiation of administrative disciplinary hearing. (1) On 
receipt of information regarding a possible violation of 18 U.S.C. 207, 
and after determining that such information does not appear to be 
frivolous, the Chairman shall expeditiously provide such information, 
along with any comments or agency regulations, to the Director and to 
the Criminal Division, Department of Justice. Any investigation or 
administrative action will be coordinated with the Department of Justice 
to avoid prejudicing criminal proceedings, unless the Department of 
Justice informs the Commission that it does not intend to initiate 
criminal prosecution.
    (2) Whenever the Chairman has determined after appropriate review 
that there is reasonable cause to believe that a former Commission 
employee has violated 18 U.S.C. 207 (a), (b), or (c) or implementing 
regulations of the Office of Government Ethics (5 CFR part 737), he or 
she shall initiate an administrative disciplinary proceeding by 
providing the former Commission employee with notice as defined in 
paragraph (b).

[[Page 14]]

(14
    (3) The Chairman shall take all necessary steps to protect the 
privacy of former employees prior to a determination of sufficient cause 
to initiate an administrative disciplinary hearing.
    (b) Notice. (1) The Chairman shall provide the former Commission 
employee with notice of an administrative disciplinary proceeding and an 
opportunity for a hearing.
    (2) Notice to the former Commission employee must include--
    (i) A statement of allegations and the basis thereof in detail 
sufficient to enable the former Commission employee to prepare an 
adequate defense;
    (ii) Notification of the right to a hearing;
    (iii) An explanation of the method by which a hearing may be 
requested; and
    (iv) A copy of this subpart.
    (c) Examiner. (1) The presiding official at proceedings under this 
subpart shall be an individual to whom the Chairman has delegated 
authority to make a recommended determination (hereinafter referred to 
as examiner).
    (2) An examiner shall be an experienced government attorney of high 
moral character and sound judgment.
    (3) An examiner shall be impartial. No individual who has 
participated in any manner in the decision to initiate the proceedings 
may serve as an examiner in those proceedings.
    (d) Scheduling of hearing. In setting a hearing date, the examiner 
shall give due regard to the former Commission employee's need for--
    (1) Adequate time to prepare a defense properly, and
    (2) An expeditious resolution of allegations that may be damaging to 
his or her reputation.
    (e) Hearing rights. A hearing shall include, at a minimum, the 
following rights:
    (1) To be represented by counsel,
    (2) To introduce and examine witnesses and to submit physical 
evidence,
    (3) To confront and cross-examine adverse witnesses,
    (4) To present oral argument; and
    (5) To obtain a transcript or recording of the proceeding on 
request.
    (f) Burden of proof. In any hearing under this subpart the 
Commission has the burden of proof and must establish a violation by 
clear and convincing evidence. The case of the Commission shall be 
presented by the Office of the General Counsel.
    (g) Recommended determination. (1) The examiner shall make a 
recommended determination exclusively on matters of record in the 
proceeding and shall set forth therein all findings of fact and 
conclusions of law relevant to the matters at issue. The recommended 
determination shall be delivered to the parties.
    (2) Within ten (10) days of the date of receipt of the recommended 
determination either party may submit to the Chairman exceptions to the 
recommended determination and alternative findings of fact and 
conclusions of law.
    (h) Final administrative decision. (1) Within forty (40) days of the 
date of the recommended determination, the Chairman shall make a final 
administrative decision based solely on the record of the proceedings.
    (2) In the event that no hearing is requested, the Chairman shall 
make a final administrative decision within forty (40) days of the date 
notice is provided to the former employee and the record of the 
proceedings shall consist of the statement of allegations as defined in 
paragraph (b)(2)(i) and whatever written response the former employee 
shall provide.
    (3) The Chairman shall specify in the final administrative decision 
the findings of fact and conclusions of law that differ from the 
recommended determination of the hearing examiner.
    (i) Administrative sanctions. The Chairman may take appropriate 
action in the case of any individual who is found in violation of 18 
U.S.C. 207(a), (b), or (c) or implementing regulations of the Office of 
Government Ethics (5 CFR part 737) after a final administrative decision 
by----
    (1) Prohibiting the individual from making, on behalf of any other 
person (except the United States), any formal or informal appearance 
before, or, with the intent to influence, any oral or written 
communication to, the Commission on any matter of business for a period 
not to exceed five (5) years. This prohibition may be enforced by 
directing Commission employees to refuse to

[[Page 15]]

(15participate in any such appearance or to accept any such 
communication;
    (2) Taking other appropriate disciplinary action.
    (j) Judicial review. Any person found to have participated in a 
violation of 18 U.S.C. 207(a), (b), or (c) or these regulations may seek 
judicial review of the administrative determination. Review shall be 
before the appropriate United States district court.

[[Page 16]]

(16



                          SUBCHAPTER A--GENERAL





PART 201--RULES OF GENERAL APPLICATION--Table of Contents




Sec.
201.0  Seal.
201.1  Applicability of part.

                        Subpart A--Miscellaneous

201.2  Definitions.
201.3  Commission offices, mailing address, and hours.
201.3a  Missing children information.
201.4  Performance of functions.
201.5  Attendance fees and mileage.
201.6  Confidential business information.

           Subpart B--Initiation and Conduct of Investigations

201.7  Investigative authority and initiation of investigations.
201.8  Filing of documents.
201.9  Methods employed in obtaining information.
201.10  Public notices.
201.11  Appearance in an investigation as a party.
201.12  Requests.
201.13  Conduct of nonadjudicative hearings.
201.14  Computation of time, additional hearings, postponements, 
          continuances, and extensions of time.
201.15  Attorneys or agents.
201.16  Service of process and other documents.

   Subpart C--Availability of Information to the Public Pursuant to 5 
                               U.S.C. 552

201.17  Procedures for requesting access to records.
201.18  Denial of requests, appeals from denial.
201.19  Notification regarding requests for confidential business 
          information.
201.20  Fees.
201.21  Availability of specific records.

  Subpart D--Safeguarding Individual Privacy Pursuant to 5 U.S.C. 552a

201.22  Purpose and scope.
201.23  Definitions.
201.24  Procedures for requests pertaining to individual records in a 
          records system.
201.25  Times, places, and requirements for identification of 
          individuals making requests.
201.26  Disclosure of requested information to individuals.
201.27  Special procedures: Medical records.
201.28  Request for correction or amendment of record.
201.29  Commission review of request for correction or amendment to 
          record.
201.30  Commission disclosure of record to person other than the 
          individual to whom it pertains.
201.31  Fees.
201.32  Specific exemptions.

Subpart E--Opening Commission Meetings to Public Observation Pursuant to 
                              5 U.S.C. 552b

201.33  Purpose and scope.
201.34  Definitions.
201.35  Notices to the public.
201.36  Closing a portion or portions of a meeting or a series of 
          meetings.
201.37  Changing the time, place, subject matter, or determination to 
          open or close a meeting following a public notice.
201.38  Requests by interested persons that the Commission close a 
          portion of a Commission meeting.
201.39  General Counsel's certification of Commission action in closing 
          a meeting or a series of meetings.
201.40  Records-retention requirements.
201.41  Public inspection and copying of records; applicable fees.

                Subpart F--National Security Information

201.42  Purpose and scope.
201.43  Program.
201.44  Procedures.

Subpart G--Enforcement of Nondiscrimination on the Basis of Handicap in 
    Programs or Activities Conducted by the U.S. International Trade 
                               Commission

201.101  Purpose.
201.102  Application.
201.103  Definitions.
201.104--201.109  [Reserved]
201.110  Self-evaluation.
201.111  Notice.
201.112--201.129  [Reserved]
201.130  General prohibitions against discrimination.
201.131--201.139  [Reserved]
201.140  Employment.
201.141--201.148  [Reserved]
201.149  Program accessibility: Discrimination prohibited.
201.150  Program accessibility: Existing facilities.
201.151  Program accessibility: New construction and alterations.
201.152--201.159  [Reserved]
201.160  Communications.

[[Page 17]]

          (17
201.161--201.169  [Reserved]
201.170  Compliance procedures.
201.171--201.999  [Reserved]

    Authority: Sec. 335 of the Tariff Act of 1930 (19 U.S.C. 1335), and 
sec. 603 of the Trade Act of 1974 (19 U.S.C. 2482), unless otherwise 
noted.

    Source: 27 FR 12118, Dec. 7, 1962, unless otherwise noted.

    Editorial Note: Nomenclature changes to this part appear at 52 FR 
48994, Dec. 29, 1987.

Sec. 201.0   Seal.

    (a) Pursuant to section 331(g) of the Tariff Act of 1930, as amended 
(19 U.S.C. 1331(g)), the United States International Trade Commission 
has adopted an official seal, the depiction of which follows:
[GRAPHIC] [TIFF OMITTED] TC05OC91.026

    (b) Custody and certification obligations. The Secretary shall have 
custody of the seal of the United States International Trade Commission 
and he, or the Acting Secretary, may execute under seal any 
certification required to authenticate any books, records, papers, or 
other documents as true copies of official records of the United States 
International Trade Commission.

(Sec. 331(g), Tariff Act of 1930, as amended (19 U.S.C. 1331(g)))

[40 FR 53384, Nov. 18, 1975; 40 FR 55838, Dec. 2, 1975]

Sec. 201.1   Applicability of part.

    This part relates generally to functions and activities of the 
Commission under various statutes and other legal authority. Rules 
having special application appear separately in parts 202 through 207, 
inclusive, of this chapter. In case of inconsistency between a rule of 
general application and a rule of special application, the latter is 
controlling.

[27 FR 12118, Dec. 7, 1962, as amended at 44 FR 76476, Dec. 26, 1979]



Subpart A--Miscellaneous

Sec. 201.2  Definitions.

    As used in this chapter--
    (a) Commission means the United States International Trade 
Commission;
    (b) Inspector General means the Inspector General of the Commission;
    (c) Tariff Act means the Tariff Act of 1930, 19 U.S.C. 1202-1677j;
    (d) Trade Expansion Act means the Trade Expansion Act of 1962, 19 
U.S.C. 1801-1991;
    (e) Trade Act means the Trade Act of 1974, 19 U.S.C. 2101-2487;
    (f) Trade Agreements Act means the Trade Agreements Act of 1979, 
Public Law 96-39, 93 Stat. 144;
    (g) Rule means a section of the Commission Rules of Practice and 
Procedure (19 CFR chapter II);
    (h) Secretary means the Secretary of the Commission.
    (i) Except for adjudicative investigations under subchapter C of 
this chapter, party means any person who has filed a complaint or 
petition on the basis of which an investigation has been instituted, or 
any person whose entry of appearance has been accepted pursuant to 
Sec. 201.11 (a) or (c). Mere participation in an investigation without 
an accepted entry of appearance does not confer party status.
    (j) Person means an individual, partnership, corporation, 
association, or public or private organization.

[56 FR 11922, Mar. 21, 1991, as amended at 60 FR 37336, July 20, 1995]

Sec. 201.3  Commission offices, mailing address, and hours.

    (a) Offices. The Commission's offices are located in the United 
States International Trade Commission Building on 500 E Street SW., 
Washington, DC.
    (b) Mailing address. All communications to the Commission should be 
addressed to the ``Secretary, U.S. International Trade Commission, 500 E 
Street SW., Washington, DC 20436.''
    (c) Hours. The hours of the Commission are from 8:45 a.m. to 5:15 
p.m., eastern standard or daylight savings time, whichever is in effect 
in Washington, DC.

[45 FR 80276, Dec. 4, 1980]

[[Page 18]]

(18

Sec. 201.3a  Missing children information.

    (a) Pursuant to 39 U.S.C. 3220, penalty mail sent by the Commission 
may be used to assist in the location and recovery of missing children. 
This section establishes procedures for such use and is applicable on a 
Commission-wide basis. The Program and Planning Branch, Office of 
Management Services, 202-724-1234, shall be the point of contact for 
matters related to the implementation of this section.
    (b) Missing children information shall be inserted in or affixed to 
such mailings of Commission monthly calendars, notices, press releases, 
and other documents as the Commission may direct. Such missing children 
information shall be obtained exclusively from the National Center for 
Missing and Exploited Children.
    (c) The procedure established in subsection (b) above will result in 
missing childern information being inserted in an estimated 25 percent 
of the Commission's penalty mail and will cost an estimated $1,500 for 
the first year of implementation. The Director of Administration shall 
make such changes in the procedure as he deems appropriate to maximize 
the use of missing children information in the Commission's mail.

[51 FR 25195, July 11, 1986]

Sec. 201.4   Performance of functions.

    (a) Conduct of business. A majority of the members of the Commission 
constitutes a quorum. The Commission may meet and exercise its powers at 
any place, and may, by one or more of its members, or by such agents as 
it may designate, prosecute any inquiry necessary to its duties in any 
part of the United States or in any foreign country.
    (b) Alteration or waiver of rules. Rules in this chapter may be 
amended, waived, suspended, or revoked by the Commission only. A rule 
may be waived or suspended only when in the judgment of the Commission 
there is good and sufficient reason therefor, provided the rule is not a 
matter of procedure required by law.
    (c) Authority to make decisions. Authority to interpret the 
Commission's rules and the laws applying to the Commission, and to make 
findings, determinations, or other decisions not relating to matters of 
internal management, is retained in the Commission itself and is not 
delegated.
    (d) Presentation of matter that may come within the purview of other 
laws. Whenever any party or person, including the Commission staff, has 
reason to believe that (1) a matter under investigation pursuant to 
section 337 of the Tariff Act of 1930, or (2) a matter under an 
investigation pursuant to section 201 of the Trade Act of 1974 (19 
U.S.C. 2251), which is causing increased imports may come within the 
purview of another remedial provision of law not the basis of such 
investigation, including but not limited to the antidumping provisions 
(19 U.S.C. 1673) or the countervailing duty provisions (19 U.S.C. 1303, 
1671 et seq.) of the Tariff Act of 1930, then the party or person may 
file a suggestion of notification with the Commission that the 
appropriate agency be notified of such matter or circumstances, together 
with such information as the party or person has available. The 
Commission Secretary shall promptly thereafter publish notice of the 
filing of such suggestion and information, and make them available for 
inspection and copying to the extent permitted by law. Any person may 
comment on the suggestion within 10 days after the publication of said 
notice. Thereafter, the Commission shall determine whether notification 
is appropriate under the law and, if so, shall notify the appropriate 
agency of such matters or circumstances. The Commission may at any time 
make such notification in the absence of a suggestion under this rule 
when the Commission has reason to believe, on the basis of information 
before it, that notification is appropriate under law.

[27 FR 12118, Dec. 7, 1962, as amended at 45 FR 80276, Dec. 4, 1980]

Sec. 201.5   Attendance fees and mileage.

    (a) Deponents and witnesses. Any person compelled to appear in 
person to depose or testify in response to a subpoena shall be paid the 
same fees and mileage as are paid witnesses in the courts of the United 
States: Provided, that salaried employees of the United States summoned 
to depose or testify

[[Page 19]]

(19as to matters related to their public employment, irrespective of at 
whose instance they are summoned, shall be paid in accordance with 
applicable Government regulations.
    (b) Responsibility. The fees and mileage referred to in this section 
shall be paid by the party at whose instance deponents or witnesses 
appear: Provided, that when it is the Commission, one or more 
Commissioners, or one of its employees at whose instance deponents or 
witnesses appear, such fees and mileage shall be paid by the Commission.

[41 FR 17710, Apr. 27, 1976]

Sec. 201.6  Confidential business information.

    (a) Definitions. (1) Confidential business information is 
information which concerns or relates to the trade secrets, processes, 
operations, style of works, or apparatus, or to the production, sales, 
shipments, purchases, transfers, identification of customers, 
inventories, or amount or source of any income, profits, losses, or 
expenditures of any person, firm, partnership, corporation, or other 
organization, or other information of commercial value, the disclosure 
of which is likely to have the effect of either impairing the 
Commission's ability to obtain such information as is necessary to 
perform its statutory functions, or causing substantial harm to the 
competitive position of the person, firm, partnership, corporation, or 
other organization from which the information was obtained, unless the 
Commission is required by law to disclose such information. The term 
``confidential business information'' includes ``proprietary 
information'' within the meaning of section 777(b) of the Tariff Act of 
1930 (19 U.S.C. 1677f(b)). Nonnumerical characterizations of numerical 
confidential business information (e.g., discussion of trends) will be 
treated as confidential business information only at the request of the 
submitter for good cause shown.
    (2) Nondisclosable confidential business information is privileged 
information, classified information, or specific information (e.g., 
trade secrets) of a type for which there is a clear and compelling need 
to withhold from disclosure. Special rules for the handling of such 
information are set out in Sec. 207.7 of this chapter.
    (b) Procedure for submitting business information in confidence. (1) 
A request for confidential treatment of business information shall be 
addressed to the Secretary, United States International Trade 
Commission, 500 E Street SW., Washington, DC 20436, and shall indicate 
clearly on the envelope that it is a request for confidential treatment.
    (2) In the absence of good cause shown, any request relating to 
material to be submitted during the course of a hearing shall be 
submitted at least three (3) working days prior to the commencement of 
such hearing.
    (3) With each submission of, or offer to submit, business 
information which a submitter desires to be treated as confidential 
business information, under paragraph (a) of this section, the submitter 
shall provide the following, which may be disclosed to the public:
    (i) A written description of the nature of the subject information;
    (ii) A justification for the request for its confidential treatment;
    (iii) A certification in writing under oath that substantially 
identical information is not available to the public;
    (iv) A copy of the document
    (A) Clearly marked on its cover as to the pages on which 
confidential information can be found;
    (B) With information for which confidential treatment is requested 
clearly identified by means of brackets; and
    (C) With information for which nondisclosable confidential treatment 
is requested clearly identified by means of triple brackets (except when 
submission of such document is withheld in accord with paragraph (b)(4) 
of this section); and
    (v) A nonconfidential copy of the documents as required by 
Sec. 201.8(d).
    (4) The submission of the documents itemized in paragraph (b)(3) of 
this section will provide the basis for rulings on the confidentiality 
of submissions, including rulings on the confidentiality of submissions 
offered to the Commission which have not yet been placed under the 
possession, control, or custody of the Commission. The submitter has the 
option of providing the business information for which confidential 
treatment is sought at the time the

[[Page 20]]

(20documents itemized in paragraph (b)(3) of this section are provided 
or of withholding them until a ruling on their confidentiality has been 
issued.
    (c) Identification of business information submitted in confidence. 
Business information which a submitter desires to be treated as 
confidential shall be clearly labeled ``confidential business 
information'' when submitted, and shall be segregated from other 
material being submitted.
    (d) Approval or denial of requests for confidential treatment. 
Approval or denial of requests shall be made only by the Secretary or 
Acting Secretary. A denial shall be in writing, shall specify the reason 
therefor, and shall advise the submitter of the right to appeal to the 
Commission.
    (e) Appeals from denial of confidential treatment. (1) For good 
cause shown, the Commission may grant an appeal from a denial by the 
Secretary of a request for confidential treatment of a submission. Any 
appeal filed shall be addressed to the Chairman, United States 
International Trade Commission, 500 E Street SW., Washington, DC 20436, 
and shall clearly indicate that it is a confidential submission appeal. 
An appeal may be made within twenty (20) days of a denial or whenever 
the approval or denial has not been forthcoming within ten (10) days 
(excepting Saturdays, Sundays, and Federal legal holidays) of the 
receipt of a confidential treatment request, unless an extension notice 
in writing with the reasons therefor has been provided the person 
requesting confidential treatment.
    (2) An appeal will be decided within twenty (20) days of its receipt 
(excepting Saturdays, Sundays, and Federal legal holidays) unless an 
extension notice in writing with the reasons therefor, has been provided 
the person making the appeal.
    (3) The justification submitted to the Commission in connection with 
an appeal shall be limited to that presented to the Secretary with the 
original or amended request. When the Secretary or Acting Secretary has 
denied a request on the ground that the submitter failed to provide 
adequate justification, any such additional justification shall be 
submitted to the Secretary for his consideration as part of an amended 
request. For purposes of paragraph (e)(1) of this section, the twenty 
(20) day period for filing an appeal shall be tolled on the filing of an 
amended request and a new twenty (20) day period shall begin once the 
Secretary or Acting Secretary has denied the amended request, or the 
approval or denial has not been forthcoming within ten (10) days of the 
filing of the amended request. A denial of a request by the Secretary on 
the ground of inadequate justification shall not obligate a requester to 
furnish additional justification and shall not preclude a requester from 
filing an appeal with the Commission based on the justification earlier 
submitted to the Secretary.
    (f) Appeals from approval of confidential treatment. (1) For good 
cause shown, the Commission may grant an appeal from an approval by the 
Secretary of a request for confidential treatment of a submission. Any 
appeal filed shall be addressed to the Chairman, United States 
International Trade Commission, 500 E Street, S.W., Washington, DC 
20436, shall show that a copy thereof has been served upon the 
submitter, and shall clearly indicate that it is a confidential 
submission appeal. An appeal may be made within twenty (20) days of the 
approval by the Secretary of a request for confidential treatment or 
whenever the approval or denial has not been forthcoming within ten (10) 
days (excepting Saturdays, Sundays, and Federal legal holidays) of the 
receipt of a confidential treatment request, unless an extension notice 
in writing with the reasons therefor has been provided the person 
requesting confidential treatment.
    (2) An appeal will be decided within twenty (20) days of its receipt 
(excepting Saturdays, Sundays, and Federal legal holidays) unless an 
extension notice, in writing with the reasons therefor, has been 
provided the person making the appeal.
    (g) Granting confidential status to business information. Any 
business information submitted in confidence and determined to be 
entitled to confidential treatment shall be maintained in confidence by 
the Commission and not disclosed except as required by law. In the event 
that any business information

[[Page 21]]

(21submitted to the Commission is not entitled to confidential 
treatment, the submitter will be permitted to withdraw the tender unless 
it is the subject of a request under the Freedom of Information Act or 
of judicial discovery proceedings.
    (h) Scope of provisions. The provisions of Secs. 201.6(b) and 201.6 
(d) through (g) shall not apply to adjudicative investigations under 
Subchapter C, Part 210, of the Commission's rules of practice and 
procedure.

[41 FR 28951, July 14, 1976, as amended at 49 FR 32571, Aug. 15, 1984; 
54 FR 13678, Apr. 5, 1989; 61 FR 37827, July 22, 1996]



Subpart B--Initiation and Conduct of Investigations

Sec. 201.7  Investigative authority and initiation of investigations.

    (a) Who may appear as a party. Any person may apply to appear in an 
investigation as a party, either in person or by representative, by 
filing an entry of appearance with the Secretary. Each entry of 
appearance shall state briefly the nature of the person's reason for 
participating in the investigation and state the person's intent to file 
briefs with the Commission regarding the subject matter of the 
investigation. The Secretary shall promptly determine whether the person 
submitting the entry of appearance has a proper reason for participating 
in the investigation. In any investigation conducted under part 207 of 
this chapter, industrial users, and if the merchandise under 
investigation is sold at the retail level, representative consumer 
organizations, will be deemed to have a proper reason for participating 
in the investigation. If it is found that a person does not have a 
proper reason for participating in the investigation, that person shall 
be so notified by the Secretary and shall not be entitled to appear in 
the investigation as a party. A person found to have a proper reason for 
participating in the investigation shall be permitted to appear in the 
investigation as a party, and acceptance of such person's entry of 
appearance shall be signified by the Secretary's inclusion of such 
person on the service list established pursuant to paragraph (d) of this 
section.
    (b) Time for filing. (1) Except in the case of investigations 
conducted under part 207 of this chapter, each entry of appearance shall 
be filed with the Secretary not later than twenty-one (21) days after 
publication of the Commission's notice of investigation in the Federal 
Register.
    (2) In the case of investigations conducted under subpart B of part 
207 of this chapter, each entry of appearance shall be filed with the 
Secretary not later than seven (7) days after publication of the 
Commission's notice of investigation in the Federal Register. A party 
that files a notice of appearance during such time need not file an 
additional notice of appearance during the portion of the investigation 
conducted under subpart C of part 207 of this chapter.
    (3) Notwithstanding paragraph (b)(2) of this section, a party may 
file an entry of appearance during the final phase of an investigation 
conducted under part 207 of this chapter no later than twenty-one (21) 
days prior to the hearing date listed in the Federal Register notice 
published pursuant to Sec. 207.24(b) of this chapter.

[44 FR 76476, Dec. 26, 1979, as amended at 61 FR 37828, July 22, 1996]

Sec. 201.8   Filing of documents.

    (a) Where to file; date of filing. Documents shall be filed at the 
office of the Secretary of the Commission in Washington, DC. Such 
documents, if properly filed, will be deemed to be filed on the date on 
which they are actually received in the Commission.
    (b) Conformity with rules. Each document filed with the Commission 
for the purpose of initiating any investigation shall be considered 
properly filed if it conforms with the pertinent rules prescribed in 
this chapter. Substantial compliance with the pertinent rules may be 
accepted by the Commission provided good and sufficient reason is stated 
in the document for inability to comply fully with the pertinent rules.
    (c) Specifications for documents. Each document filed under this 
chapter shall be clear and legible.
    (d) Number of copies. A signed original (or a copy designated as an 
original) and fourteen (14) copies of each document shall be filed. All 
submissions

[[Page 22]]

(22shall be on letter-sized paper (8\1/2\ inches by 11 inches), except 
copies of documents prepared for another agency or a court (e.g. patent 
file wrappers or pleadings papers). The original and at least one copy 
of all submissions shall be printed on one side only and shall be 
unbound (although they may be stapled or held together by means of a 
clip). In the event that confidential treatment of the document is 
requested under Sec. 201.6, at least four (4) additional copies shall be 
filed, in which the confidential business information shall have been 
deleted and which shall have been conspicuously marked 
``nonconfidential'' or ``public inspection.'' The name of the person 
signing the original shall be typewritten or otherwise reproduced on 
each copy.
    (e) Identification of party filing document. Each document filed 
with the Commission for the purpose of initiating any investigation 
shall show on the first page thereof the name, address, and telephone 
number of the party or parties by whom or on whose behalf the document 
is filed and shall be signed by the party filing the document or by a 
duly authorized officer, attorney, or agent of such party. (Also, any 
attorney or agent filing the document shall give his address and 
telephone number.) The signature of the person signing such a document 
constitutes a certification that he had read the document, that to the 
best of his knowledge and belief the statements contained therein are 
true, and that the person signing the document was duly authorized to 
sign it.

[41 FR 17710, Apr. 27, 1976, as amended at 49 FR 32571, Aug. 15, 1984; 
56 FR 11922, Mar. 21, 1991]

Sec. 201.9   Methods employed in obtaining information.

    In obtaining information necessary to carry out its functions and 
duties, the Commission may employ any means authorized by law. In 
general, the Commission obtains pertinent information from its own 
files, from other agencies of the Government, through questionnaires and 
correspondence, through field work by members of the Commission's staff, 
and from testimony and other information presented at the hearings.

[27 FR 12118, Dec. 7, 1962, as amended at 44 FR 76476, Dec. 26, 1979]

Sec. 201.10  Public notices.

    Formal notice of the receipt of documents properly filed, of the 
institution of investigations, of public hearings, and, as required or 
appropriate, of other formal actions of the Commission, will be given by 
publication in the Federal Register. In addition to such formal notice, 
a copy of each notice will be posted at the Office of the Secretary of 
the Commission in Washington, DC, and copies will be sent to press 
associations, to trade and similar organizations of producers and 
importers, and to others known to the Commission to have an interest in 
the subject matter. An announcement regarding the notice will be 
furnished to the Treasury Department for publication in Treasury 
Decisions and to the Department of Commerce for publication in 
International Commerce.

[45 FR 80276, Dec. 4, 1980]

Sec. 201.11  Appearance in an investigation as a party.

    (a) Who may appear as a party. Any person may apply to appear in an 
investigation as a party, either in person or by representative, by 
filing an entry of appearance with the Secretary. Each entry of 
appearance shall state briefly the nature of the person's reason for 
participating in the investigation and state the person's intent to file 
briefs with the Commission regarding the subject matter of the 
investigation. The Secretary shall promptly determine whether the person 
submitting the entry of appearance has a proper reason for participating 
in the investigation. In any investigation conducted under part 207 of 
this chapter, industrial users, and if the merchandise under 
investigation is sold at the retail level, representative consumer 
organizations, will be deemed to have a proper reason for participating 
in the investigation. If it is found that a person does not have a 
proper reason for participating in the investigation, that

[[Page 23]]

(23person shall be so notified by the Secretary and shall not be 
entitled to appear in the investigation as a party. A person found to 
have a proper reason for participating in the investigation shall be 
permitted to appear in the investigation as a party, and acceptance of 
such person's entry of appearance shall be signified by the Secretary's 
inclusion of such person on the service list established pursuant to 
paragraph (d) of this section.
    (b) Time for filing. (1) Except in the case of investigations 
conducted under part 207 of this chapter, each entry of appearance shall 
be filed with the Secretary not later than twenty-one (21) days after 
publication of the Commission's notice of investigation in the Federal 
Register.
    (2) In the case of investigations conducted under subpart B of part 
207 of this chapter, each entry of appearance shall be filed with the 
Secretary not later than seven (7) days after publication of the 
Commission's notice of investigation in the Federal Register. A party 
that files a notice of appearance during such time need not file an 
additional notice of appearance during the portion of the investigation 
conducted under subpart C of part 207 of this chapter.
    (3) Notwithstanding paragraph (b)(2) of this section, a party may 
file an entry of appearance during the final phase of an investigation 
conducted under part 207 of this chapter no later than twenty-one (21) 
days prior to the hearing date listed in the Federal Register notice 
published pursuant to Sec. 207.24(b) of this chapter.
    (c) Late filing. Any entry of appearance filed with the Secretary 
after the filing date established in paragraph (b) of this section shall 
be referred to the Chairman, or other person designated to conduct the 
investigation, who shall promptly determine whether to accept such entry 
for good cause shown by the person desiring to file the notice. The 
Secretary shall promptly notify the submitter of a decision to deny the 
entry, or if the entry is accepted, include such person on the service 
list established pursuant to paragraph (d) of this section.
    (d) Service list. Upon the expiration of the time for filing notices 
of appearance established in paragraph (b) of this section, the 
Secretary shall prepare a service list. The service list shall contain 
the names and addresses of all persons, or their representatives, who 
are parties to the investigation pursuant to Sec. 201.2(h) and paragraph 
(a) of this section. Upon the acceptance of a late entry of appearance 
pursuant to paragraph (c) of this section, the Secretary shall amend the 
service list to include the name and address of the person whose notice 
has been accepted and shall promptly forward such notice to all parties 
to the investigation.

[56 FR 11922, Mar. 21, 1991, as amended at 61 FR 37828, July 22, 1996]

Sec. 201.12  Requests.

    Any party to a nonadjudicative investigation may request the 
Commission to take particular action with respect to that investigation. 
Such requests shall be by letter adressed to the Secretary, shall be 
placed by him in the record, and shall be served on all other parties. 
The Commission shall take such action or make such response as it deems 
appropriate.

[47 FR 6189, Feb. 10, 1982]

Sec. 201.13  Conduct of nonadjudicative hearings.

    (a) In general. Public hearings are held by the Commission when 
required by law or, if not required by law, when in the judgment of the 
Commission there is good and sufficient reason therefor. Public hearings 
will be held at the time and place specified in notices issued under 
Sec. 201.10. Public hearings are ordinarily held in the Hearing Room of 
the International Trade Commission Building, in Washington, DC, but may 
be held elsewhere at the Commission's discretion.
    (b) Presiding officials--(1) Who presides. Public hearings or 
conferences in nonadjudicative investigations will be conducted by the 
Commission or by one or more Commissioners. When the Commission deems it 
necessary, such hearings will be conducted by one or more designated 
employees. In all cases the transcript of the testimony at a hearing 
will be presented for the consideration of the Commission.

[[Page 24]]

(24
    (2) Powers and duties. The Commission, one or more of the 
Commissioners, or one or more designated employees shall have all the 
powers to conduct fair and impartial hearings, to take necessary action 
to avoid delay in the disposition of proceedings, including the 
prescription of time allocated to testimony, argument, and questioning, 
to regulate the course of hearings and the conduct of the parties and 
their counsel therein, and to maintain order.
    (c) Participation in a hearing--(1) Who may participate. A party may 
participate in the hearing, either in person or by representative. A 
nonparty who has testimony or arguments that may aid the Commission's 
deliberations may also participate, under such conditions as may be 
established by the presiding officials at the hearing.
    (2) Notices of participation. Notices of participation in a hearing 
shall be filed with the Secretary at least three (3) days in advance of 
the date set for the hearing or two (2) days in advance of the date set 
in the notice of investigation for a prehearing conference, whichever 
shall first occur, except that the presiding officials may waive this 
requirement for good cause. Witnesses on behalf of persons filing 
notices of participation need not file separate notices.
    (d) Witness list. Each person who files a notice of participation 
pursuant to paragraph (c) of this section shall simultaneously file with 
the Secretary a list of the witnesses he intends to call at the hearing.
    (e) Order of the testimony. Unless otherwise ordered by the 
presiding officials, witnesses will give testimony in the order 
designated by the Secretary to the Commission. Each witness, after being 
duly sworn, will be permitted to proceed with his or her testimony 
without interruption except by presiding officials.
    (f) Supplementary material. Up to five double-spaced pages of 
supplementary material, other than remarks read into the record, will be 
accepted for the record. Supplementary material exceeding five pages may 
be accepted upon a showing of such cause as may be deemed sufficient by 
the presiding officials. As used herein, the term supplementary material 
refers to (1) additional graphic material such as charts and diagrams 
used to illuminate an argument or clarify a position and (2) information 
not available to a party at the time its prehearing brief was filed.
    (g) Questioning of witnesses. After completing testimony, a witness 
may be questioned by any member of the Commission or by its staff. Any 
participant may, with the permission of the presiding officials, direct 
questions to the witness, but only for the purpose of assisting the 
Commission in obtaining relevant and material facts with respect to the 
subject matter of the investigation.
    (h) Oral argument. When, in the opinion of the presiding officials, 
time permits and the nature of the proceedings and the complexity or 
importance of the questions of fact or law involved warrant, the 
presiding officials may allow oral argument after conclusion of the 
testimony in a hearing. The presiding officials will determine in each 
instance the time to be allowed for argument and the allocation thereof.
    (i) Briefs--(1) Parties. Briefs of the information produced at the 
hearing and arguments thereon may be presented to the Commission by 
parties to the investigation. Unless otherwise ordered, fourteen (14) 
clear copies shall be filed with the Secretary to the Commission. Time 
to be allowed for submission of briefs will be set after conclusion of 
testimony and oral argument, if any.
    (2) Nonparties. Any person who is not a party to an investigation 
may submit a short statement for the record regarding the subject matter 
of an investigation.
    (j) Verification of testimony. Oral or written information submitted 
at hearings will, upon order of the Commission, be subject to 
verification from books, papers, and records of the persons submitting 
the information and from any other available sources.
    (k) Hearing transcripts. A verbatim transcript of all hearings will 
be taken. The Commission does not distribute transcripts of the records 
of such hearings. Any person may inspect the transcript of a hearing at 
the Commission's office in Washington, DC, or purchase it from the 
official reporter.

[[Page 25]]

(25
    (l) To facilitate the conduct of hearings, parties intending to use 
easels, audio visual, and similar equipment in the course of hearing 
presentations should advise the Secretary of their intent to use such 
equipment at least three (3) working days before the hearing.
    (m) Closed sessions. (1) Upon a request filed by a party to the 
investigation no later than seven (7) days prior to the date of the 
hearing (or three (3) days prior to the date of a conference conducted 
under Sec. 207.15 of this chapter) that
    (i) Identifies the subjects to be discussed;
    (ii) Specifies the amount of time requested; and
    (iii) Justifies the need for a closed session with respect to each 
subject to be discussed, the Commission (or the Director, as defined in 
Sec. 207.2(c) of this chapter, for a conference under Sec. 207.15 of 
this chapter) may close a portion of a hearing (or conference under 
Sec. 207.15 of this chapter) held in any investigation in order to allow 
such party to address confidential business information, as defined in 
Sec. 201.6, during the course of its presentation.
    (2) In addition, during each hearing held in an investigation 
conducted under section 202 of the Trade Act, as amended, or in an 
investigation under title VII of the Tariff Act as provided in 
Sec. 207.24 of this chapter, following the public presentation of the 
petitioner(s) and that of each panel of respondents, the Commission 
will, if it deems it appropriate, close the hearing in order to allow 
Commissioners to question parties and/or their representatives 
concerning matters involving confidential business information.

[47 FR 6189, Feb. 10, 1982, as amended at 47 FR 33682, Aug. 4, 1982; 54 
FR 13678, Apr. 5, 1989; 59 FR 66722, Dec. 28, 1994; 61 FR 37829, July 
22, 1996]

Sec. 201.14   Computation of time, additional hearings, postponements, 
          continuances, and extensions of time.

    (a) Computation of time. Computation of any period of time 
prescribed or allowed by the rules in this chapter, by order of the 
Commission, or by order of the presiding officer under part 210 of this 
chapter shall begin with the first business day following the day on 
which the act or event initiating such period of time shall have 
occurred. The last day of the period so computed is to be included, 
unless it is a Saturday, Sunday, or Federal legal holiday, in which 
event the period runs until the end of the next business day. When the 
period of time prescribed or allowed is less than 7 days, intermediate 
Saturdays, Sundays, and Federal legal holidays shall be excluded from 
the computation. As used in this rule, a Federal legal holiday refers to 
any full calendar day designated as a legal holiday by the President or 
the Congress of the United States.
    (b) Additional hearings, postponements, continuances, and extensions 
of time. (1) Prior to its final determination in any investigation, the 
Commission may in its discretion for good cause shown grant additional 
hearings, postponements, or continuances of hearings.
    (2) The Chairman of the Commission or such other person as is 
designated to conduct the investigation shall determine whether to grant 
for good cause shown extensions of time for performing any act required 
by or pursuant to the rules contained in this chapter.
    (3) A request that the Commission take any of the actions described 
in this section shall be filed with the Secretary and served on all 
parties to the investigation.

[41 FR 17710, Apr. 27, 1976, as amended at 56 FR 11923, Mar. 21, 1991]

Sec. 201.15   Attorneys or agents.

    (a) In general. No register of attorneys or agents who may practice 
before the Commission is maintained. No application for admission to 
practice is required. Any person desiring to appear as attorney or agent 
before the Commission may be required to show to the satisfaction of the 
Commission his acceptability in that capacity. Any attorney or agent 
practicing before the Commission, or desiring so to practice, may for 
good cause shown be suspended or barred from practicing before the 
Commission, or have imposed on him such lesser sanctions as the 
Commission deems appropriate, but only after he has been accorded an 
opportunity to present his views in the matter.

[[Page 26]]

(26
    (b) Former officers or employees. No former officer or employee of 
the Commission who personally and substantially participated in a matter 
which was pending in any manner or form in the Commission during his 
employment shall be eligible to appear before the Commission as attorney 
or agent in connection with such matter. No former officer or employee 
of the Commission shall be eligible to appear as attorney or agent 
before the Commission in connection with any matter which was pending in 
any manner or form in the Commission during his employment, unless he 
first obtains written consent from the Commission.

[27 FR 12118, Dec. 7, 1962, as amended at 56 FR 11923, Mar. 21, 1991]

Sec. 201.16   Service of process and other documents.

    (a) By the Commission. Except when service by another method shall 
be specifically ordered by the Commission, the service of a process or 
other document of the Commission shall be served by anyone duly 
authorized by the Commission and be effected--
    (1) By mailing or delivering a copy of the document to the person to 
be served, to a member of the partnership to be served, to the 
president, secretary, other executive officer, or member of the board of 
directors of the corporation, association, or other organization to be 
served, or, if an attorney represents any of the above before the 
Commission, by mailing or delivering a copy to such attorney; or
    (2) By leaving a copy thereof at the principal office of such 
person, partnership, corporation, association, or other organization, 
or, if an attorney represents any of the above before the Commission, by 
leaving a copy at the office of such attorney.
    (b) By a party other than the Commission. Except when service by 
another method shall be specifically ordered by the Commission, the 
service of a document of a party shall be effected:
    (1) By mailing or delivering copies of the document to the Secretary 
to the Commission (the number of copies being as provided for in 
Sec. 201.8(d) of this part) and a nonconfidential version thereof to 
each other party, or, if the party is represented by an attorney before 
the Commission, by mailing or delivering a nonconfidential version 
thereof to such attorney; or
    (2) By leaving copies thereof at the office of the Secretary of the 
Commission (the number of copies being as provided for in Sec. 201.8(d) 
of this part) and at the principal office of each other party, or, if a 
party is represented by an attorney before the Commission, by leaving 
copies at the office of such attorney.
    (3) When service is by mail, it is complete upon mailing of the 
document.
    (4) When service is by mail, it shall be by first class mail, 
postage prepaid. In the event the addressee is outside the United 
States, service shall be by first class airmail, postage prepaid.
    (c) Proof of service; certificate. (1) Each document filed with the 
Secretary to the Commission by a party in the course of an investigation 
(as provided in Sec. 201.8 of this part) shall be served on each other 
party to the investigation.
    (2) Each document served by a party shall include a certificate of 
service, setting forth the manner and date of such service. The 
certificate of service shall be deemed proof of service of the document. 
In the event a document is not accompanied by a certificate of service, 
the Secretary shall not accept such document for filing and shall 
promptly notify the submitter.
    (d) Additional time after service by mail. Whenever a party or 
Federal agency or department has the right or is required to perform 
some act or take some action within a prescribed period after the 
service of a document upon it and the document is served upon it by 
mail, three (3) calendar days shall be added to the prescribed period, 
except that when mailing is to a person located in a foreign country, 
ten (10) calendar days shall be added to the prescribed period.

(19 U.S.C. 1335 and the Administrative Procedure Act, 5 U.S.C. 551, et 
seq.)

[41 FR 17711, Apr. 27, 1976, as amended at 47 FR 6190, Feb. 10, 1982; 47 
FR 33682, Aug. 4, 1982; 49 FR 32571, Aug. 15, 1984]



Subpart C--Availability of Information to the Public Pursuant to 5 U.S.C. 552

    Authority: 19 U.S.C. 1335, 5 U.S.C. 552.


[[Page 27]]

(27
    Source: 40 FR 8328, Feb. 27, 1975, unless otherwise noted.

Sec. 201.17   Procedures for requesting access to records.

    (a) A request for any information or record shall be addressed to 
the Secretary, United States International Trade Commission, 500 E 
Street SW., Washington, DC 20436 and shall indicate clearly both on the 
envelope and in the letter that it is a Freedom of Information Act 
request.
    (b) Any request shall reasonably describe the requested record to 
facilitate location of the record.
    (c) Any request for transcripts of hearings shall be addressed to 
the official hearing reporter, the name and address of which can be 
obtained from the Secretary. A copy of such request shall at the same 
time be forwarded to the Secretary.
    (d) A day-to-day, composite record shall be kept by the Secretary of 
each request with the disposition thereof.

Sec. 201.18   Denial of requests, appeals from denial.

    (a) Written requests for inspection or copying of records shall be 
denied only by the Secretary or Acting Secretary, or, for records 
maintained by the Office of Inspector General, the Inspector General. 
Denials of written requests shall be in writing, shall specify the 
reason therefor, and shall advise the person requesting of the right to 
appeal to the Commission. Oral requests may be dealt with orally, but if 
the requester is dissatisfied he shall be asked to put the request in 
writing.
    (b) An appeal from a denial of a request shall be made to the 
Commission and addressed to the Chairman, United States International 
Trade Commission, 500 E Street SW., Washington, DC 20436. Any appeal 
shall clearly indicate in the letter that it is a Freedom of Information 
Act appeal. An appeal may be made after denial or whenever compliance 
with a request has not been forthcoming within ten days (excepting 
Saturdays, Sundays, and legal public holidays) after receipt of such 
request, unless an extension notice in writing with the reasons therefor 
has been provided the person making the request.
    (c) An appeal will be decided within twenty days (excepting 
Saturdays, Sundays, and legal holidays) unless an extension, noticed in 
writing with the reasons therefor, has been provided the person making 
the request. Notice of the decision on appeal and the reasons therefor 
will be made promptly after a decision.
    (d) The extensions of time mentioned in paragraphs (a) and (b) of 
this section shall be made only for one or more of the following 
reasons:
    (1) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request;
    (2) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are requested 
in a single communication; or
    (3) The need for consultation, which shall be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request or among two or more components of the 
agency having a substantial subject-matter interest therein.
    (e) The extensions of time mentioned in paragraphs (a) and (b) of 
this section shall not exceed ten working days in the aggregate.

[40 FR 8328, Feb. 27, 1975, as amended at 54 FR 13678, Apr. 5, 1989; 60 
FR 37336, July 20, 1995]

Sec. 201.19  Notification regarding requests for confidential business 
          information.

    (a) In general. Business information provided to the Commission by a 
business submitter which the Commission has designated as ``confidential 
business information'' will not be disclosed pursuant to a Freedom of 
Information Act (FOIA) request except in accordance with this section.
    (b) Definitions. The following definitions are to be used in 
reference to this section:
    Confidential business information means commercial or financial 
information that has been designated as confidential business 
information by the Commission under Sec. 201.6 of this part.

[[Page 28]]

(28
    Submitter means any person or entity who provides confidential 
business information, directly or indirectly, to the Commission. The 
term includes, but is not limited to, corporations, producers, 
importers, and state and foreign governments.
    (c) Notice to submitters. Except as provided for in paragraph (e) of 
this section, the Commission will, to the extent permitted by law, 
provide a submitter with prompt written notice of a FOIA request or 
administrative appeal encompassing its confidential business information 
whenever required under paragraph (d) of this section, in order to 
afford the submitter an opportunity to object to disclosure pursuant to 
paragraph (f) of this section. Such written notice will describe the 
nature of the confidential business information requested. The requester 
will also be notified that notice and opportunity to object to are being 
provided to a submitter.
    (d) When notice is required. Notice will be given to a submitter in 
writing at submitter's last known address whenever:
    (1) The information the subject of the FOIA request or appeal has 
been designated by the Commission as confidential business information; 
and
    (2) The Commission has reason to believe that the information may 
not be protected from disclosure under FOIA Exemptions 3 or 4.
    (e) Exceptions to notice requirment. The notice requirements of 
paragraph (c) of this section will not apply if:
    (1) The Commission determines that the information should not be 
disclosed;
    (2) The information lawfully has been published or has been 
officially made available to the public; or
    (3) Disclosure of the information is required by law (other than 5 
U.S.C. 552).
    (f) Opportunity to object to disclosure. In general, the Commision 
has 10 working days in which to respond to a FOIA request. Through the 
notice described in paragraph (c) of this section, the Commission will 
afford a submitter an opportunity, within the period afforded to the 
Commission to make its decision in response to the FOIA request, to 
provide the Commission with a detailed written statement of any 
objection to disclosure. Such statement shall be filed at least one 
working day before the Commission is required to respond to the FOIA 
request, and it shall specify all grounds for withholding any of the 
information under any exemption of FOIA. In the case of FOIA Exemptions 
3 or 4, it shall demonstrate why the information should continue to be 
considered confidential business information within the meaning of 
Sec. 201.6 of this part and should not be disclosed. The submitter's 
claim of continued confidentiality should be supported by a 
certification by an officer or authorized representative of the 
submitter. Information provided by a submitter pursuant to this 
paragraph may itself be subject to disclosure under FOIA.
    (g) Notice of intent to disclose. The Commission will consider 
carefully a submitter's objections and specific grounds for 
nondisclosure prior to determining whether to disclose the information. 
Whenever the Commission decides to disclose such information over the 
objection of a submitter, the Commission will forward to the submitter a 
written notice which will include:
    (1) A statement of the reasons for which the submitter's disclosure 
objections were not sustained;
    (2) A description of the information to be disclosed; and
    (3) A specified disclosure date.

Such notice of intent to disclose will be forwarded to the submitter a 
reasonable number of days prior to the specified disclosure date and the 
requester will be notified likewise.
    (h) Notice of FOIA lawsuit. Whenever a requester brings suit seeking 
to compel disclosure of information that the Commission has designated 
as confidential business information, the Commission will promptly 
notify the submitter at its last known address. For the purpose of this 
paragraph, the Secretary may assume such address to be that given on the 
submission.

[54 FR 13678, Apr. 5, 1989]

Sec. 201.20  Fees.

    (a) In general. Fees pursuant to 5 U.S.C. 552 shall be assessed 
according

[[Page 29]]

(29to the schedule contained in paragraph (b) of this section for 
services rendered by agency personnel in responding to and processing 
requests for records under this subpart. All fees so assessed shall be 
charged to the requester, except where the charging of fees is limited 
under paragraph (c) of this section or where a waiver or reduction of 
fees is granted under paragraph (d) of this section. The Secretary will 
collect all applicable fees. Requesters shall pay fees by check or money 
order made payable to the Treasury of the United States.
    (b) Charges. In responding to requests under this subpart, the 
following fees shall be assessed, unless a waiver or reduction of fees 
has been granted pursuant to paragraph (d) of this section:
    (1) Search. (i) No search fee shall be assessed with respect to 
requests by educational institutions, noncommercial scientific 
institutions, and representatives of the news media as defined in 
paragraphs (j)(6), (7), and (8) of this section, respectively. Search 
fees shall be assessed with respect to all other requests, subject to 
the limitations of paragraph (c) of this section. The secretary may 
assess fees for time spent searching even if agency personnel fail to 
locate any respective record or where records located are subsequently 
determined to be entirely exempt from disclosure.
    (ii) For each quarter hour spent by agency personnel in salary 
grades GS-2 through GS-10 in searching for and retrieving a requested 
record, the fee shall be $3.00. When the time of agency personnel in 
salary grades GS-11 and above is required, the fee shall be $5.00 for 
each quarter hour of search and retrieval time spent by such personnel.
    (iii) For computer searches of records, which may be undertaken 
through the use of existing programming, requester shall be charged the 
actual direct costs of conducting the search, although certain 
requesters (as defined in paragraph (c)(2) of this section) shall be 
entitled to the cost equivalent of two hours of manual search time 
without charge. These direct costs shall include the cost of operating a 
central processing unit for that portion of operating time that is 
directly attributable to searching for records responsive to a request, 
as well as the costs of operator/programmer salary apportionable to the 
search (at no more than $5.00 per quarter hour of time so spent). Agency 
personnel are not required to alter or develop programming to conduct a 
search.
    (2) Duplication. Duplication fees shall be assessed with respect to 
all requesters, subject to the limitations of paragraph (c) of this 
section. For a paper photocopy of a record (no more than one copy of 
which need be supplied), the fee shall be $0.10 per page. For copies 
produced by computer, such as tapes or printouts, the Secretary shall 
charge the actual direct costs, including operator time, of producing 
the copy. For other methods of duplication, the Secretary shall charge 
the actual direct costs of duplicating a record.
    (3) Review. (i) Review fees shall be assessed with respect to only 
those requesters who seek records for a commercial use, as defined in 
paragraph (j)(5) of this section. For each quarter hour spent by agency 
personnel in reviewing a requested record for possible disclosure, the 
fee shall be $5.00.
    (ii) Review fees shall be assessed only for the initial record 
review, i.e., all of the review undertaken when a component analyzes the 
applicability of a particular exemption to a particular record or record 
portion at the initial request level. No charge shall be assessed for 
review at the administrative appeal level of an exemption already 
applied. However, records or record portions withheld pursuant to an 
exemption that is subsequently determined not to apply may be reviewed 
again to determine the applicability of other exemptions not previously 
considered. The costs of such a subsequent review are properly 
assessable, particularly where that review is made necessary by a change 
of circumstances.
    (c) Limitations on charging fees. (1) No search or review fee shall 
be charged for a quarter-hour period unless more than half of that 
period is required for search or review.
    (2) Except for requesters seeking records for a commercial use (as 
defined in paragraph (j)(5) of this section), the Secretary shall 
provide without charge--

[[Page 30]]

(30
    (i) The first 100 pages of duplication (or its cost equivalent), and
    (ii) The first two hours of search (or its cost equivalent).
    (3) Whenever a total fee calculated under paragraph (b) of this 
section is $25.00 or less, no fee shall be charged.
    (4) The provisions of paragraphs (c)(2) and (3) of this section work 
together. For requesters other than those seeking records for a 
commercial use, no fee shall be charged unless the cost of search is in 
excess of two hours plus the cost of duplication in excess of 100 pages 
exceeds $25.00.
    (d) Waiver or reduction of fees. (1) Records responsive to a request 
under 5 U.S.C. 552 shall be furnished without charge or at a charge 
reduced below that established under paragraph (b) of this section where 
the Secretary determines, based upon information provided by a requester 
in support of a fee waiver request or otherwise made known to the 
Secretary that disclosure of the requested information is in the public 
interest, because it is likely to contribute significantly to public 
understanding of the operations or activities of the Government and is 
not primarily in the commercial interest of the requester. Requests for 
a waiver or reduction of fees shall be considered on a case-by-case 
basis.
    (2) In order to determine whether the first fee waiver requirement 
is met--i.e., that disclosure of the requested information is in the 
public interest because it is likely to contribute significantly to 
public understanding of the operations or activities of the government--
the Secretary shall consider the following four factors in sequence:
    (i) The subject of the request: Whether the subject of the requested 
records concerns ``the operations or activities of the government.'' The 
subject matter of the requested records, in the context of the request, 
must specifically concern identifiable operations or activities of the 
federal government--with a connection that is direct and clear, not 
remote or attenuated. Furthermore, the records must be sought for their 
informative value with respect to those government operations or 
activities; a request for access to records for their intrinsic 
informational content alone will not satisfy this threshold 
consideration.
    (ii) The informative value of the information to be disclosed: 
Whether the disclosure is ``likely to contribute'' to an understanding 
of government operations or activities. The disclosable portions of the 
requested records must be meaningfully informative on specific 
government operations or activities in order to hold potential for 
contributing to increased public understanding of those operations and 
activities. The disclosure of information that already is in the public 
domain, in either a duplicative or a substantially identical form, would 
not be likely to contribute to such understanding, as nothing new would 
be added to the public record.
    (iii) The contribution of an understanding of the subject by the 
public likely to result from disclosure: Whether disclosure of the 
requested information will contribute to ``public understanding.'' The 
disclosure must contribute to the understanding of the public at large, 
as opposed to the individual understanding of the requester or a narrow 
segment of interested persons. A requester's identity and 
qualifications--e.g., expertise in the subject area and ability and 
intention to effectively convey information to the general public--shall 
be considered. It will be presumed that a representative of the news 
media (as defined in paragraph (j)(8) of this section) who has access to 
the means of public dissemination readily will be able to satisfy this 
consideration. Requests from libraries or other record repositories (or 
requesters who intend merely to disseminate information to such 
institutions) shall be analyzed, like those of other requesters, to 
identify a particular person who represents that he actually will use 
the requested information in scholarly or other analytic work and then 
disseminate it to the general public.
    (iv) The significance of the contribution to public understanding: 
Whether the disclosure is likely to contribute ``significantly'' to 
public understanding of government operations or activities. The 
public's understanding of the subject matter in question, as compared to 
the level of public understanding existing prior to the disclosure, must 
be likely to be enhanced by the disclosure to a

[[Page 31]]

(31significant extent. The Secretary shall not make separate judgments 
as to whether information, even though it in fact would contribute 
significantly to public understanding of the operations or activities of 
the government, is ``important'' enough to be made public.
    (3) In order to determine whether the second fee waiver requirement 
is met--i.e., that disclosure of the requested information is not 
primarily in the commercial interest of the requester--the Secretary 
shall consider the following two factors in sequence:
    (i) The existence and magnitude of a commercial interest: Whether 
the requester has a commercial interest that would be furthered by the 
requested disclosure. The Secretary shall consider all commercial 
interests of the requester (with reference to the definition of 
commercial use in paragraph (j)(5) of this section), or any person on 
whose behalf the requester may be acting, but shall consider only those 
interests which would be furthered by the requested disclosure. In 
assessing the magnitude of identified commercial interests, 
consideration shall be given to the role that such FOIA-disclosed 
information plays with respect to those commercial interests, as well as 
to the extent to which FOIA disclosures serve those interests overall. 
Requesters shall be given a reasonable opportunity in the administrative 
process to provide information bearing upon this consideration.
    (ii) The primary interest in disclosure: Whether the magnitude of 
the identified commercial interest of the requester is sufficiently 
large, in comparison with the public interest in disclosure, that 
disclosure is ``primarily in the commercial interest of the requester.'' 
A fee waiver or reduction is warranted only where, once the ``public 
interest'' standard set out in paragraph (d)(2) of this section is 
satisfied, that public interest can fairly be regarded as greater in 
magnitude than that of the requester's commercial interest in 
disclosure. The Secretary shall ordinarily presume that, where a news 
media requester has satisfied the ``public interest'' standard, that 
will be the interest primarily served by disclosure to that requester. 
Disclosure to data brokers or others who compile and market government 
information for direct economic return shall not be presumed to 
primarily serve the ``public interest.''
    (4) Where only a portion of the requested records satisfies both of 
the requirements for a waiver or reduction of fees under this paragraph, 
a waiver or reduction shall be granted only as to that portion.
    (5) Requests for the waiver or reduction of fees shall address each 
of the factors listed in paragraphs (d) (2) and (3) of this section, as 
they apply to each record request.
    (e) Notice of anticipated fees in excess of $25.00. Where the 
Secretary determines or estimates that the fees to be assessed under 
this section may amount to more than $25.00, he shall notify the 
requester as soon as practicable of the actual or estimated amount of 
the fees, unless the requester has indicated in advance his willingness 
to pay fees as high as those anticipated. (If only a portion of the fee 
can be estimated readily, the Secretary shall advise the requester that 
the estimated fee may be only a portion of the total fee.) In cases 
where a requester has been notified that actual or estimated fees may 
amount to more than $25.00, the request will be deemed not to have been 
received until the requester has agreed to pay the anticipated total 
fee. A notice of the requester pursuant to this paragraph shall offer 
him the opportunity to confer with agency personnel in order to 
reformulate his request to meet his needs at a lower cost.
    (f) Aggregating requests. Where the Secretary reasonably believes 
that a requester or a group of requesters acting in concert is 
attempting to divide a request into a series of requests for the purpose 
of evading the assessment of fees, the Secretary may aggregate any such 
requests and charge accordingly. The Secretary may presume that multiple 
requests of such type made within a 30-day period have been made in 
order to evade fees. Where requests are separated by a longer period, 
the Secretary shall aggregate them only where there exists a reasonable 
basis for determining that said aggregation is warranted, e.g., where 
the requests involve

[[Page 32]]

(32clearly related matters. Multiple requests involving unrelated 
matters shall not be aggregated
    (g) Advance payments. (1) Where the Secretary estimates that a total 
fee to be assessed under this section is likely to exceed $250.00, the 
Secretary may require the requester to make an advance payment of an 
amount up to the entire estimated fee before beginning to process the 
request, except where the Secretary receives a satisfactory assurance of 
full payment from a requester with a history of prompt payment.
    (2) Where a requester has previously failed to pay a records access 
fee within 30 days of the date of billing, the Secretary may require the 
requester to pay the full amount owed, plus any applicable interest (as 
provided for in paragraph (h) of this section), and to make an advance 
payment of the full amount of any estimated fee before he begins to 
process a new request or continues to process a pending request from 
that requester.
    (3) For requests other than those described in paragraphs (g) (1) 
and (2) of this section, the Secretary shall not require the requester 
to make an advance payment, i.e., a payment made before work is 
commenced or continued on a request. Payment owed on work already 
completed is not an advance payment.
    (4) Where the Secretary acts under paragraph (g) (1) or (2) of this 
section, the administrative time limits described in subsection (a)(6) 
of the FOIA for the processing of an initial request or an appeal, plus 
permissible extensions of these time limits, shall be deemed not to 
begin to run until the Secretary has received payment of the assessed 
fee.
    (h) Charging interest. The Secretary may assess interest charges on 
an unpaid bill starting on the 31st day following the day on which the 
bill was sent to the requester. Once a fee payment has been received by 
the Secretary, even if not processed, the accrual of interest shall be 
stayed. Interest charges shall be assessed at the rate prescribed in 
section 3717 of title 31 U.S.C. and shall accrue from the date of the 
billing. The Secretary shall follow the provisions of the Debt 
Collection Act of 1982, Pub. L. 97-265 (Oct. 25, 1982), and its 
implementing procedures, including the use of consumer reporting 
agencies, collection agencies, and offset.
    (i) Other statutes specifically providing for fees. (1) The fee 
schedule of this section does not apply with respect to the charging of 
fees under a statute specifically providing for setting the level of 
fees for particular types of records--i.e., any statute that 
specifically requires a government entity such as the Government 
Printing Office or the National Technical Information Service, to set 
and collect fees for particular types of records--in order to:
    (i) Serve both the general public and private sector organizations 
by conveniently making available government information;
    (ii) Ensure that groups and individuals pay the cost of publications 
and other services that are for their special use so that these costs 
are not borne by the general taxpaying public;
    (iii) Operate an information-dissemination activity on a self-
sustaining basis to the maximum extent possible; or
    (iv) Return revenue to the Treasury for defraying, wholly or in 
part, appropriate funds used to pay the costs of disseminating 
government information.
    (2) Where records responsive to requests are maintained for 
distribution by agencies operating statutorily based fee schedule 
programs, the Secretary shall inform requesters of the steps necessary 
to obtain records from those sources.
    (j) Definitions. For the purpose of this section:
    (1) The term direct costs means those expenditures which the agency 
actually incurs in searching for and duplicating (and, in the case of 
commercial use requesters, reviewing) records to respond to a FOIA 
request. Direct costs include, for example the salary of the employee 
performing the work (the basic rate of pay for the employee plus 16 
percent of that rate to cover benefits) and the cost of operating 
duplicating machinery. Not included in direct costs are overhead 
expenses such as costs of space and heating or lighting of the facility 
in which the records are stored.

[[Page 33]]

(33
    (2) The term search includes all time spent looking for material 
that is responsive to a request, including page-by-page or line-by-line 
identification of material within documents. The Secretary shall ensure, 
however, that searches are undertaken in the most efficient and least 
expensive manner reasonably possible; thus, for example, the Secretary 
shall not engage in line-by-line search where merely duplicating an 
entire document would be quicker and less expensive.
    (3) The term duplication refers to the process of making a copy of a 
record necessary to respond to a FOIA request. Such copies can take the 
form of paper copy, microform, audio-visual materials, or machine-
readable documentation (e.g., magnetic tape or disk), among others. The 
copy provided shall be in a form that is reasonably usable by 
requesters.
    (4) The term review refers to the process of examining a record 
located in response to a request in order to determine whether any 
portion of it is permitted to be withheld. It also includes processing 
any record for disclosure, e.g., doing all that is necessary to excise 
it and otherwise prepare it for release, although review costs shall be 
recoverable even where there ultimately is no disclosure of a record. 
Review time does not include time spent resolving general legal or 
policy issues regarding the application of exemptions.
    (5) The term commercial use in the context of a request refers to a 
request from or on behalf of one who seeks information for a use or 
purpose that furthers the commercial, trade, or profit interests of the 
requester or the person on whose behalf the request is made, which can 
include furthering those interests through litigation. The Secretary 
shall determine, as well as reasonably possible, the use to which a 
requester will put the records requested. Where the circumstances of a 
request suggest that the requester will put the records sought to a 
commercial use, either because of the nature of the request itself or 
because the Secretary otherwise has reasonable cause to doubt a 
requester's stated use, the Secretary shall provide the requester a 
reasonable opportunity to submit further clarification.
    (6) The term educational institution refers to a preschool, a public 
or private elementary or secondary school, an institution of 
undergraduate higher education, an institution of graduate higher 
education, an institution of professional education, and an institution 
of vocational education, which operates a program or programs of 
scholarly research. To be eligible for inclusion in this category, a 
requester must show that the request is being made as authorized by and 
under the auspices of a qualifying institution and that the records are 
not sought for a commercial use but are sought in furtherance of 
scholarly research.
    (7) The term noncommercial scientific institution refers to an 
institution that is not operated on a ``commercial'' basis as that term 
is referenced in paragraph (j)(5) of this section, and which is operated 
solely for the purpose of conducting scientific research the results of 
which are not intended to promote any particular product or industry. To 
be eligible for inclusion in this category, a requester must show that 
the request is being made as authorized by and under the auspices of a 
qualifying institution and that the records are not sought for a 
commercial use but are sought in furtherance of scientific research.
    (8) The term representative of the news media refers to any person 
actively gathering news for an entity that is organized and operated to 
publish or broadcast news to the public. The term news means information 
that is about current events or that would be of current interest to the 
public. Examples of news media entities include television or radio 
stations broadcasting to the public at large and publishers of 
periodicals (but only in those instances where they can qualify as 
disseminators of ``news'') who make their products available for 
purchase or subscription by the general public. For ``freelance'' 
journalists to be regarded as working for a news organization, they must 
demonstrate a clear basis for expecting publication through that 
organization; a publication contract would be the clearest proof, but 
the Secretary shall also look to the past publication

[[Page 34]]

(34record of a requester in making this determination. To be eligible 
for inclusion in this category, a requester also must not be seeking the 
requested records for a commercial use. In this regard, a request for 
records supporting the news dissemination function of the requester 
shall not be considered to be for a commercial use.
    (k) Charges for other services and materials. Apart from the other 
provisions of this section, where the Secretary elects, as a matter of 
administrative discretion, to comply with a request for a special 
service or materials, such as certifying that records are true copies or 
sending them other than by ordinary mail, the actual direct costs of 
providing the service or materials shall be charged.

[54 FR 13673, Apr. 5, 1989]

Sec. 201.21   Availability of specific records.

    (a) Records available. The following information, on request to the 
Secretary of the Commission, is available for public inspection and 
copying: (1) final opinions, including concurring and dissenting 
opinions, as well as orders, made in the adjudication of cases; (2) 
those statements of policy and interpretations which have been adopted 
by the agency; and (3) administrative staff manuals and instructions to 
staff that affect a member of the public.

Available information includes, but is not limited to: (i) Applications, 
petitions, and other formal documents filed with the Commission, (ii) 
notices to the public concerning Commission matters, (iii) transcripts 
of testimony taken and exhibits submitted at hearings, (iv) reports to 
the President, to either or both Houses of Congress, or to Committees of 
Congress, release of which has been authorized by the President or the 
legislative body concerned, (v) reports and other documents issued for 
general distribution.
    (b) Records not available. Information specifically exempted from 
disclosure by 5 U.S.C. 552(b), including reports to the President, to 
either or both Houses of Congress, or to Committees of Congress, the 
release of which has not been authorized by the President or the 
legislative body concerned, and confidential business data as defined in 
18 U.S.C. 1905 and 19 CFR 201.06 are not available to the public.
    (c) Information requested in cases or matters to which the 
Commission is not a party. (1) The procedure specified in this section 
will apply to all demands directed to Commission employees for the 
production of documents or for testimony that relates in any way to the 
employees' official duties. These procedures will also apply to demands 
directed to former employees if the demands seek nonpublic materials or 
information acquired during Commission employment. The provisions of 
paragraph (c)(2) of this section will also apply to demands directed to 
the agency. For purposes of this section, the term demand means any 
request, order or subpoena for testimony or production of documents; the 
term subpoena means any compulsory process in a case or matter to which 
the Commission is not a party; the term nonpublic includes any material 
or information which, under Sec. 201.21(b), is exempt from availability 
for public inspection and copying; the term employee means any current 
or former officer or employee of the Commission; the term documents 
means all records, papers or official files, including without 
limitation, official letters, telegrams, memoranda, reports, studies, 
calendar and diary entries, graphs, notes, charts, tabulations, data 
analysis, statistical or information accumulations, records of meetings 
and conversations, film impressions, magnetic tapes, and sound or 
mechanical reproductions; the term case or matter means any civil 
proceeding before a court of law, administrative board, hearing officer, 
or other body conducting a legal or administrative proceeding in which 
the Commission is not a named party.
    (2) Prior to or simultaneously with a demand to a Commission 
employee for the production of documents or for testimony concerning 
matters relating to official duties, the party seeking such production 
or testimony must serve upon the General Counsel of the Commission an 
affidavit, or if that is not feasible, then a statement which sets forth 
the title of the case, the forum, the party's interest in the case, the 
reasons for the request, and a showing

[[Page 35]]

(35that the desired testimony or documents are not reasonably available 
from any other source. Where testimony is sought, the party must also 
provide a summary of the testimony desired, the intended use of the 
testimony, and show that Commission records could not be provided and 
used instead of the requested testimony. A subpoena for testimony from a 
Commission employee concerning official matters or for the production of 
documents shall be served in accordance with Rule 45 of the Federal 
Rules of Civil Procedure and a copy of the subpoena shall be sent to the 
General Counsel.
    (3) Any employee or former employee who is served with a subpoena or 
other demand shall promptly advise the General Counsel of the service of 
the subpoena or other demand, the nature of the documents or information 
sought, and all relevant facts and circumstances.
    (4) Absent written authorization from the Chairman of the Commission 
(``Chairman''), the employee shall respectfully decline to produce the 
requested documents, to testify, or to otherwise disclose requested 
information. If a court rules that the demand must be complied with 
despite the absence of such written authorization, the employee upon 
whom the demand is made shall respectfully refuse to comply based upon 
these regulations and Touhy v. Ragan, 340 U.S. 462 (1951).
    (5) The Chairman will consider and act upon subpoenas under this 
section with due regard for statutory restrictions, the Commission's 
rules and the public interest, taking into account such factors as the 
need to conserve employees' time for conducting official business, the 
need to prevent the expenditure of the United States government's time 
and money for private purposes, the need to maintain impartiality 
between private litigants in cases where no substantial governmental 
interest is involved, and the relevant legal standards for determining 
whether justification exists for the disclosure of nonpublic information 
and documents. If the Chairman determines that the subpoenaed documents 
or information are protected by a privilege or that the Commission has a 
duty in law or equity to protect such documents or information from 
disclosure, the General Counsel shall move the court to quash the 
subpoena or for other appropriate action.
    (6) The General Counsel may consult or negotiate with counsel or the 
party seeking testimony or documents to refine and limit the demand so 
that compliance is less burdensome, or obtain information necessary to 
make the determination described in paragraph (c)(5) of this section. 
Failure of the counsel or party seeking the testimony or documents to 
cooperate in good faith to enable the General Counsel to make an 
informed recommendation to the Chairman under paragraph (c)(5) of this 
section may serve as the basis for a determination not to comply with 
the demand.
    (7) Permission to testify will, in all cases, be limited to the 
information set forth in the affidavit as described in paragraph (c)(2) 
of this section, or to such portions thereof as the Chairman deems 
proper.
    (8) If the Chairman authorizes the testimony of an employee, then 
the General Counsel shall arrange for the taking of the testimony by 
methods that are least disruptive of the official duties of the 
employee. Testimony may, for example, be provided by affidavits, answers 
to interrogatories, written depositions, or depositions transcribed, 
recorded, or preserved by any other means allowable by law. Costs of 
providing testimony, including transcripts, will be borne by the party 
requesting the testimony. Such costs shall also include reimbursing the 
Commission for the usual and ordinary expenses attendant upon the 
employee's absence from his or her official duties in connection with 
the case or matter, including the employee's salary and applicable 
overhead charges and any necessary travel expenses.
    (9) The Secretary in consultation with the General Counsel is 
further authorized to charge reasonable fees to parties demanding 
documents or information. Such fees, calculated to reimburse the 
government for the expense of responding to such demand, may include the 
costs of time expended by Commission employees to process and respond to 
the demand, attorney time

[[Page 36]]

(36for reviewing the demand and for related legal work in connection 
with the demand, and expenses generated by equipment used to search for, 
produce and copy the responsive information. In general, such fees will 
be assessed at the rates and in the manner specified in Sec. 201.20 of 
this part.
    (10) This section does not affect the rights and procedures 
governing the public access to official documents pursuant to the 
Freedom of Information Act or the Privacy Act.
    (11) This section is intended to provide instructions to Commission 
employees and does not create any right or benefit, substantive or 
procedural, enforceable by any party against the Commission.

[40 FR 8328, Feb. 27, 1975, as amended at 54 FR 13676, Apr. 5, 1989]



Subpart D--Safeguarding Individual Privacy Pursuant to 5 U.S.C. 552a

    Authority: 5 U.S.C. 552a.

    Source: 40 FR 47976, Oct. 10, 1975, unless otherwise noted.

Sec. 201.22   Purpose and scope.

    The purpose of these regulations is to provide certain safeguards 
for an individual against an invasion of personal privacy by the United 
States International Trade Commission. These regulations are promulgated 
pursuant to the requirements for all Federal Agencies contained in 5 
U.S.C. 552a(f).

Sec. 201.23   Definitions.

    For the purpose of these regulations,
    (a) The term individual means a citizen of the United States or an 
alien lawfully admitted for permanent residence;
    (b) The term maintain includes maintain, collect, use, or 
disseminate;
    (c) The term record means any item, collection, or grouping of 
information about an individual that is maintained by the Commission, 
including, but not limited to, his education, financial transactions, 
medical history, and criminal or employment history and that contains 
his name, or the identifying number, symbol, or other identifying 
particular assigned to the individual;
    (d) The term system of records means a group of any records under 
the control of the Commission from which information is retrieved by the 
name of the individual or by some identifying particular assigned to the 
individual;
    (e) The term Director of Personnel refers to the Director, Office of 
Personnel and Management Systems, United States International Trade 
Commission, 500 E Street SW., Washington, DC 20436, or his or her 
designee.

Sec. 201.24   Procedures for requests pertaining to individual records 
          in a records system.

    (a) A request by an individual to gain access to his or her record 
or to any information pertaining to him or her which is contained in the 
systems of records maintained by the Commission shall be addressed to 
the Director of Personnel, United States International Trade Commission, 
500 E Street SW., Washington, DC 20436, and shall indicate clearly both 
on the envelope and in the letter that it is a Privacy Act request.
    (b) In order to facilitate location of requested records, the 
request of the individual shall name the systems of records maintained 
by the Commission which he or she believes contain records pertaining to 
him or her or shall reasonably describe the requested record.
    (c) The Director of Personnel shall acknowledge receipt of a request 
within ten days (excluding Saturdays, Sundays, and legal public 
holidays), and wherever practicable, indicate whether or not access can 
be granted. If access is not to be granted, the requestor shall be 
notified of the reason.
    (d) The Director of Personnel, or, the Inspector General, if such 
records are maintained by the Inspector General, shall ascertain whether 
the systems of records maintained by the Commission contain records 
pertaining to the individual, and whether access will be granted. 
Thereupon the Director of Personnel shall:
    (1) Notify the individual whether or not the requested record is 
contained in any system of records maintained by the Commission; and

[[Page 37]]

(37
    (2) Notify the individual of the procedures as prescribed in 
Secs. 201.25 and 201.26 of this chapter by which the individual may gain 
access to those records maintained by the Commission which pertain to 
him or her. Access to the records will be provided within 30 days 
(excluding Saturdays, Sundays, and legal public holidays).

[41 FR 18810, May 7, 1976, as amended at 60 FR 37336, July 20, 1995]

Sec. 201.25   Times, places, and requirements for identification of 
          individuals making requests.

    (a) It shall be the responsibility of the individual requester to 
arrange an appointment with the Director of Personnel for the purpose of 
inspecting individual records. The time of inspection shall be during 
the regular office hours of the Commission, 8:45 A.M. to 5:15 P.M., 
Monday through Friday. The time arranged should be mutually convenient 
to the requester and to the Commission.
    (b) The place where an individual may gain access to records 
maintained by the Commission which pertain to him or her shall be at the 
United States International Trade Commission Building, 500 E Street SW., 
Washington, DC 20436. The Director of Personnel shall inform the 
individual requester of the specific room wherein inspection will take 
place.
    (c) An individual who requests to gain access to those records 
maintained by the Commission which pertain to him or her shall not be 
granted access to those records without first presenting adequate 
identification to the Director of Personnel. Adequate identification 
includes, but is not limited to, a government identification card, a 
driver's license, medicare card, a birth certificate, or a passport.
    (d) Where the nature of the record or system of records permits and 
where the individual cannot view the records pertaining to him in 
person, the Director of Personnel may dispense with the requisites of 
Secs. 201.25(a) and 201.25(b) of these regulations and provide the 
individual with a copy of the record by certified mail.

Sec. 201.26   Disclosure of requested information to individuals.

    (a) Assuming that the individual requester has met the adequate 
identification criterion of Sec. 201.25(c) of these regulations, the 
Director of Personnel shall permit the individual to review the 
pertinent records and to have a copy made of all or any portion of them. 
Where specific exemptions within the purview of Sec. 201.32(c) would 
render such records or portions thereof incomprehensible, the Director 
of Personnel shall furnish an abstract in addition to an actual copy.
    (b) The individual has the right to have a person of his or her own 
choosing accompany him or her to review his or her records. The Director 
of Personnel shall permit a person of the individual requester's 
choosing to accompany the individual during inspection.
    (c) When the individual requests the Director of Personnel to permit 
a person of the individual's choosing to accompany him or her during the 
inspection of his or her records, the Director of Personnel shall 
require the individual requester to furnish a written statement 
authorizing discussion of the records in the accompanying person's 
presence.
    (d) The Director of Personnel shall take all necessary steps to 
insure that individual privacy is protected while the individual 
requester is inspecting his or her records or while those records are 
being discussed. Only the Director of Personnel shall accompany the 
individual as representative of the Commission during the inspection of 
the individual's records. The Director of Personnel shall be authorized 
to discuss the pertinent records with the individual.

Sec. 201.27   Special procedures: Medical records.

    (a) While an individual has an unqualified right of access to the 
records in systems of records maintained by the Commission which pertain 
to him or her, medical and psychological records merit special treatment 
because of the possibility that disclosure will have an adverse physical 
or psychological effect upon the requesting individual. Accordingly, 
therefore, in those instances where an individual is

[[Page 38]]

(38requesting the medical and/or psychological records which pertain to 
him or her, he or she shall, in his or her Privacy Act request to the 
Director of Personnel as called for in Sec. 201.24(a) of these 
regulations, specify a physician to whom the medical and/or 
psychological records may be released.
    (b) It shall be the responsibility of the individual requesting 
medical or psychological records to specify a physician to whom the 
requested records may be released. If an individual refuses to name a 
physician and insists on inspecting his or her medical or psychological 
records in the absence of a doctor's discussion and advice, the 
individual shall so state in his Privacy Act request to the Director of 
Personnel as called for in Sec. 201.24(a) and the Director of Personnel 
shall provide access to or transmit such records directly to the 
individual.

Sec. 201.28   Request for correction or amendment of record.

    (a) If, upon viewing his or her records, the individual disagrees 
with a portion thereof or feels sections thereof to be erroneous, the 
individual may request amendment(s) of the records pertaining to him or 
her. The individual should request such an amendment in writing. The 
request for amendment of records shall be addressed to the Director of 
Personnel, United States International Trade Commission, 500 E Street 
SW., Washington, DC 20436, and shall clearly indicate both on the 
envelope and in the letter that it is a Privacy Act request for 
amendment of records.
    (b) Not later than 10 days (Saturdays, Sundays and Federal legal 
public holidays excluded) after the date of receipt of a Privacy Act 
request for amendment of records, the Director of Personnel shall 
acknowledge such receipt in writing. Such a request for amendment will 
be granted or denied by the Director of Personnel or, for records 
maintained by the Inspector General, the Inspector General. If the 
request is granted, the Director of Personnel, or, the Inspector 
General, for records maintained by the Inspector General, shall promptly 
make any correction of any portion of the record which the individual 
believes is not accurate, relevant, timely, or complete. If, however, 
the request is denied, the Director of Personnel shall inform the 
individual of the refusal to amend the record in accordance with the 
individual's request and give the reason(s) for the refusal. In cases 
where the Director of Personnel or the Inspector General has refused to 
amend in accordance with an individual's request, he or she also shall 
advise the individual of the procedures under Sec. 201.29 of this 
chapter for the individual to request a review of that refusal by the 
full Commission or by an officer designated by the Commission.

[40 FR 47976, Oct. 10, 1975, as amended at 60 FR 37336, July 20, 1995]

Sec. 201.29  Commission review of request for correction or amendment to 
          record.

    (a) The individual who disagrees with the refusal of the Director of 
Personnel or the Inspector General to amend the record may request a 
review of the refusal by the Commission. All requests for review of 
refusals to amend records should be addressed to the Chairman, United 
States International Trade Commission, 500 E Street, SW., Washington, DC 
20436, and shall clearly indicate both on the envelope and in the letter 
that it is a Privacy Act review request.
    (b) Not later than 30 days (Saturdays, Sundays, and Federal legal 
public holidays excluded) from the date on which the Commission receives 
a request for review of the Director of Personnel's or the Inspector 
General's refusal to amend the record, the Commission shall complete 
such a review and make a final determination thereof unless, for good 
cause shown, the Commission extends the 30-day period.
    (c) After the individual's request to amend his or her records has 
been reviewed by the Commission, if the Commission agrees with the 
Director of Personnel's or the Inspector General's refusal to amend the 
record in accordance with the individual's request, the Commission 
shall:
    (1) Notify the individual in writing of the Commission's decision;

[[Page 39]]

(39
    (2) Advise the individual that he or she has the right to file a 
concise statement of disagreement with the Commission which sets forth 
his or her reasons for disagreement with the refusal of the Commission 
to amend the records; and
    (3) Notify the individual of his or her legal right to judicial 
review of the Commission's final determination.
    (d) In any disclosure, containing information about which the 
individual has filed a statement of disagreement, the Director of 
Personnel, or, for records maintained by the Inspector General, the 
Inspector General, shall clearly note any portion of the record which is 
disputed and shall provide copies of the statement and, if the 
Commission deems it appropriate, copies of a concise statement of the 
reasons of the Commission for not making the amendments requested, to 
persons or other agencies to whom the disputed record has been 
disclosed.

[60 FR 37336, July 20, 1995]

Sec. 201.30   Commission disclosure of record to person other than the 
          individual to whom it pertains.

    (a) Except as is permitted under 5 U.S.C. 552a(b)(1)-(b)(11), it is 
the policy of the Commission not to disclose any record which is 
contained in any system of records maintained by the Commission to any 
person, or to another agency, except pursuant to a written request by, 
or with the prior written consent of, the individual to whom the record 
pertains.
    (b) Except for disclosures either to officers and employees of the 
Commission, or, to contractor employees who, in the Inspector General's 
or the Director of Personnel's judgment, are acting as federal 
employees, who have a need for the record in the performance of their 
duties, and any disclosure required by 5 U.S.C. 552, the Director of 
Personnel shall keep an accurate accounting of:
    (1) The date, nature, and purpose of each disclosure of a record to 
any person or to another agency under paragraph (a) of this section; and
    (2) The name or address of the person or agency to whom the 
disclosure is made.
    (c) The Director of Personnel shall retain the accounting required 
by Sec. 201.30(b) for at least five years or the life of the record, 
whichever is longer, after such disclosure.
    (d) Except for disclosures made to other agencies for civil or 
criminal law enforcement purposes pursuant to 5 U.S.C. 552a(b)(7), the 
Director of Personnel shall make any accounting made under 
Sec. 201.30(b) available to the individual named in the record at the 
individual's request.
    (e) Where the Commission has provided any person or other agency 
with an individual record and such accounting as required by 
Sec. 201.30(b) has been made, the Director of Personnel shall inform all 
such persons or other agencies of any correction, amendment, or notation 
of dispute concerning said record.

[40 FR 47976, Oct. 10, 1975, as amended at 60 FR 37336, July 20, 1995]

Sec. 201.31   Fees.

    (a) The Commission shall not charge any fee for the cost of 
searching for and reviewing an individual's records.
    (b) Reproduction, duplication or copying of records by the 
Commission shall be at the rate of 10 cents per page. There shall be no 
charge, however, when the total amount does not exceed 50 cents.

Sec. 201.32   Specific exemptions.

    (a) A system of records or a record which is specifically required 
by Executive order to be kept secret in the interest of national defense 
or foreign policy, pursuant to 5 U.S.C. 552(b)(1), shall be exempt from 
this subpart and from subsections (c)(3), (d), (e)(1), (e)(4) (G), (H), 
and (I), and (f) of section 3 of the Privacy Act.
    (b) Systems of records required by statute to be maintained and used 
solely as statistical records shall be exempt from this subpart and 
shall be exempt from subsections (c)(3), (d), (e)(1), (e)(4) (G), (H), 
and (I) and (f) of section 3 of the Privacy Act.
    (c) Personnel investigations records in the custody of the Security 
Officer of the Commission, which are compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for Commission 
employment or

[[Page 40]]

(40access to classified information shall be exempt from this subpart 
and from subsections (c)(3), (d), (e)(4) (G), (H), and (I) and (f) of 
section 3 of the Privacy Act, but only to the extent that the disclosure 
of such material would reveal the identity of a source who furnished 
information to government investigators under an express promise that 
the identity of the source would be held in confidence, or, prior to 
September 27, 1975, under an implied promise that the identity of the 
source would be held in confidence.
    (d) Pursuant to 5 U.S.C. 552a(k)(2), and in order to protect the 
effectiveness of Inspector General investigations by preventing 
individuals who may be the subject of an investigation from obtaining 
access to the records and thus obtaining the opportunity to conceal or 
destroy evidence or to intimidate witnesses, records contained in the 
system titled Office of Inspector General Investiative Files (General), 
insofar as they include investigatory material compiled for law 
enforcement purposes, shall be exempt from this subpart and from 
subsections (c)(3), (d), (e)(1), (e)(4)(G), (H), and (I) and (f) of 
section 3 of the Privacy Act. Provided, however, that if any individual 
is denied any right, privilege, or benefit to which he is otherwise 
entitled to under Federal law due to the maintenance of this material, 
such material shall be provided to such individual except to the extent 
that the disclosure of such material would reveal the identify of a 
source who furnished information to government investigators under an 
express promise that the identity of the source would be held in 
confidence.
    (e) Pursuant to 5 U.S.C. 552a(j)(2), and in order to protect the 
confidentiality and integrity of Inspector General investigations by 
preventing individuals who may be the subject of an investigation from 
obtaining access to the records and thus obtaining the opportunity to 
conceal or destroy evidence or to intimidate witnesses, records 
maintained in the Office of Inspector General Investigative Files 
(Criminal), insofar as they contain information pertaining to the 
enforcement of criminal laws, shall be exempt from this subpart and from 
the Privacy Act, except that, subsections (b), (c)(1) and (2), (e)(4)(A) 
through (F), (e)(6), (7), (9), (10), and (11) and (i) shall still apply 
to these records.

[40 FR 47976, Oct. 10, 1975, as amended at 55 FR 40379, Oct. 3, 1990]



Subpart E--Opening Commission Meetings to Public Observation Pursuant to 5 U.S.C. 552b

    Authority: 5 U.S.C. 552b; 19 U.S.C. 1335.

    Source: 42 FR 11243, Feb. 28, 1977, unless otherwise noted.

Sec. 201.33   Purpose and scope.

    (a) Consistent with the principle that the public is entitled to the 
fullest practicable information regarding the decisionmaking processes 
of the Federal Government, it is the purpose of this subpart to open the 
meetings of the United States International Trade Commission to public 
observation while protecting the rights of individuals and the ability 
of the Commission to carry out its statutory functions and 
responsibilities. These regulations are promulgated pursuant to the 
directive of section (g) of the Government in the Sunshine Act (5 U.S.C. 
552b(g)), and specifically implement sections (b) through (f) of said 
act (5 U.S.C. 552(b) through (f)).
    (b) Public access to documents being considered at Commission 
meetings may be obtained by access to the public files of the Commission 
or, where documents are not in said public files, shall be obtained in 
the manner set forth in subpart C of this part (Secs. 201.17 through 
201.21).
    (c) Unless otherwise provided by the public notices as described in 
Sec. 201.35 of this subpart, public observation of Commission meetings 
does not encompass public participation in the deliberations at such 
meetings.

Sec. 201.34   Definitions.

    For the purpose of this subpart:
    (a)(1) Except as hereinafter provided, the term meeting means the 
deliberations of at least the number of individual Commissioners 
required to take action on behalf of the Commission where such 
deliberations determine or result in the joint conduct or disposition of 
official Commission business.

[[Page 41]]

(41
    (2) The consideration by individual Commissioners of business which 
is circulated sequentially in writing (circulation by ``action jacket'') 
is not considered a meeting under paragraph (a)(1) of this section 
because circulation by action jacket does not determine or result in the 
joint conduct or disposition of Commission business until ratification 
thereof by formal vote of the Commissioners in a meeting as defined by 
paragraph (a)(1) of this section, although action proposed by action 
jacket may be taken before or after formal ratification thereof by vote 
at a Commission meeting.
    (3) Conference telephone calls among the Commissioners are 
considered meetings as defined by paragraph (a)(1) of this section if 
they involve the number of Commissioners requisite for Commission 
action.
    (4) Deliberations of a majority of the entire membership of the 
Commission with the sole purpose of determining whether or not to call a 
meeting at a date earlier than the requisite public notice period as 
specified in Sec. 201.35 of this subpart are not considered to 
constitute a meeting or portion of a meeting as defined by paragraph 
(a)(1) of this section.
    (5) Deliberations of a majority of the entire membership of the 
Commission with the sole purpose of determining whether or not to close 
a portion or portions of a meeting or series of meetings pursuant to 
Sec. 201.36 of this subpart are not considered to constitute a meeting 
or portion of a meeting within the meaning of paragraph (a)(1) of this 
section.
    (6) Deliberations of a majority of the entire membership of the 
Commission with the sole purpose of determining whether or not to change 
the subject matter of a publicly announced meeting, or to change the 
determination of the Commission to open or close a meeting, or portion 
thereof, to the public, following a public notice, as permitted under 
Sec. 201.37(b) of this subpart, are not considered to constitute a 
meeting or portion of a meeting under paragraph (a)(1) of this section.
    (b) The terms Secretary and General Counsel mean the Secretary and 
General Counsel of the Commission and their respective designees within 
their respective offices.

Sec. 201.35   Notices to the public.

    (a) At least seven (7) days before each Commission meeting the 
Commission shall issue a public notice which:
    (1) States the time and place of the meeting;
    (2) Lists the subjects or agenda items to be discussed at the 
meeting;
    (3) States whether the meeting or portion thereof is to be open or 
closed to public observation; and
    (4) Gives the name and business phone number of the Secretary to the 
Commission.
    (b) When the Commission has voted to close any portion of any 
meeting in accordance with Sec. 201.36 of this subpart, the notice 
referred to in paragraph (a) of this section shall also include, or be 
amended to include, if already issued, (1) A list of the persons 
reasonably expected to be present at such closed portion or portions of 
the meeting, (2) A corresponding list of the affiliations of those 
persons reasonably expected to be present, (3) A written copy of the 
vote of each Commissioner on whether or not the portion or portions of 
the meeting or series of meetings should be closed to public 
observation, (4) A full, written explanation of the Commission's action 
in closing the portion or portions of the meeting or series of meetings, 
and (5) A copy of the certification of the General Counsel, called for 
by Sec. 201.39 of this subpart, that such portion or portions of the 
meeting or series of meetings were properly closed to the public by the 
Commission. When a vote to close a portion or portions of a meeting in 
accordance with Sec. 201.36 of this subpart or a vote to change the 
subject matter of a meeting or to change a determination to open or 
close a meeting, or portion thereof, to the public in accordance with 
Sec. 201.37(b) of this subpart fails for lack of a majority of the 
entire membership of the Commission, the vote shall also be published as 
part of the notice required by paragraph (a) of this section.
    (c)(1) The 7-day period for public notice provided for in paragraph 
(a) of this section shall not apply when a majority of the entire 
membership of the Commission determines by recorded

[[Page 42]]

(42vote that Commission business requires that a particular meeting be 
called with less than 7 days' notice and that no earlier announcement of 
such meeting was possible.
    (2) When the Commission has voted in conformity with paragraph 
(c)(1) of this section to shorten the 7-day period for public notice 
provided for by paragraph (a) of this section with respect to a 
particular meeting, the Commission shall issue the public notice 
required by paragraph (a) of this section at the earliest practicable 
time.
    (3) When the Commission not only has voted in conformity with 
paragraph (c)(1) of this section to shorten the 7-day period for public 
notice provided for in paragraph (a) of this section with respect to a 
particular meeting, but also has voted to close a portion or portions of 
such meeting in accordance with Sec. 201.36 of this subpart, the public 
notice required by paragraph (c)(2) of this section shall also include, 
or be amended to include, if already issued, those items specified in 
paragraph (b) of this section.
    (d)(1) When the Commission has changed the time or place of a 
publicly announced meeting by acting under Sec. 201.37(a) of this 
subpart, the public notice required by paragraph (a) or (c)(2) of this 
section shall be amended to reflect such changed time or place.
    (2) When the Commission has changed the subject matter of a meeting 
or its determination to open or close a meeting, or portion thereof, to 
the public following a public notice by acting under Sec. 201.37(b) of 
this subpart, the public notice required by paragraph (a) or (c)(2) of 
this section shall be amended to (i) Include a statement affirming that 
Commission business required the change in subject matter and that no 
earlier announcement of such change was possible and (ii) Indicate the 
change in subject matter and the vote of each Commissioner upon such 
change.
    (e)(1) The Secretary shall issue the public notices required by this 
section and such amendments thereto as are appropriate to the specific 
meeting to which they pertain.
    (2) The Secretary (i) Shall promptly post the public notices 
referred to in paragraph (e)(1) of this section on bulletin boards 
outside the Office of the Secretary to the Commission, (ii) Shall make 
copies thereof available to interested members of the public, including 
mailing copies thereof through a mailing list of those persons desiring 
to receive such notices and distributing copies to the press, whether of 
specialized or general readership, and (iii) Shall immediately submit 
said public notices to the Federal Register for publication.
    (3) The Office of the Secretary shall respond to all questions from 
the public concerning the agendas of Commission meetings. Persons 
desiring to receive copies of notices of Commission meetings should 
contact the Office of the Secretary and request to be placed on the 
mailing list.

[42 FR 11243, Feb. 28, 1977, as amended at 58 FR 64121, Dec. 6, 1993]

Sec. 201.36   Closing a portion or portions of a meeting or a series of 
          meetings.

    (a) Every meeting of the Commission shall be open to public 
observation except when the Commission properly determines in the manner 
specified in paragraph (d) of this section that a portion or portions of 
a Commission meeting shall be closed to the public for the specific 
reasons enumerated in paragraph (b) of this section.
    (b) The Commission may close a portion or portions of a Commission 
meeting only when it determines that public disclosure of information to 
be discussed at such meeting is likely to:
    (1) Disclose matters that are (i) Specifically authorized under 
criteria established by Executive order to be kept secret in the 
interests of national defense or foreign policy and (ii) in fact 
properly classified pursuant to such Executive order;
    (2) Relate solely to the internal personnel rules and practices of 
the Commission;
    (3) Disclose matters specifically exempted from disclosure by 
statute (other than the Freedom of Information Act), provided that such 
statute (i) Requires that the matters be withheld from the public in 
such a manner as to leave no discretion on the issue, or (ii) 
Establishes particular criteria for withholding or refers to particular 
types of matters to be withheld.

[[Page 43]]

(43
    (4) Disclose trade secrets and commercial or financial information 
obtained from a person and privileged or confidential;
    (5) Involve accusing any person of a crime, or formally censuring 
any person;
    (6) Disclose information of a personal nature when disclosure would 
constitute a clearly unwarranted invasion of personal privacy;
    (7) Disclose investigatory records compiled for law-enforcement 
purposes, or information which, if written, would be contained in such 
records, but only to the extent that the production of such records or 
information would: (i) Interfere with enforcement proceedings, (ii) 
deprive a person of a right to a fair trial or to an impartial 
adjudication, (iii) constitute an unwarranted invasion of personal 
privacy, or (iv) disclose the identity of a confidential source, and, in 
the case of a record compiled by a criminal law-enforcement authority in 
the course of a criminal investigation or by an agency conducting a 
lawful national-security intelligence investigation, confidential 
information furnished only by the confidential source;
    (8)(i) Disclose information the premature disclosure of which would, 
in those instances where the Commission regulates commodities, be likely 
to lead to significant financial speculation in such commodities;
    (ii) Disclose information the premature disclosure of which would be 
likely to significantly frustrate implementation of a proposed 
Commission action except (A) When the Commission has already disclosed 
to the public the content or nature of its proposed action or (B) when 
the Commission is required by law to make such disclosure on its own 
initiative prior to taking final Commission action on such proposal; or
    (9) Specifically concern: (i) The Commission's issuance of a 
subpoena, (ii) the Commission's participation in a civil action or 
proceeding, or (iii) the initiation, conduct, or disposition by the 
Commission of a particular case of formal Commission adjudication under 
19 U.S.C. 1337 pursuant to the procedures of 5 U.S.C. 554 or otherwise 
involving a determination on the record after opportunity for a hearing.
    (c)(1) When the Commission has determined that one or more of the 
specific reasons enumerated in paragraph (b) of this section for closing 
a portion or portions of a Commission meeting is applicable to the 
subject matter or matters to be discussed, the Commission shall consider 
whether or not the public interest requires that such portion or 
portions of the meeting be open to public observation.
    (2) In making the public-interest determination under paragraph 
(c)(1) of this section, the Commission shall consider whether public 
disclosure would (i) Interfere with the Commission's carrying out its 
statutory responsibilities, (ii) Conflict with the individual right of 
privacy under the Privacy Act of 1974 (5 U.S.C. 552a), or (iii) Place 
the Commission in violation of any other applicable provision of law, in 
addition to any other factors which it deems to be relevant to the 
particular meeting in question.
    (d)(1) Action by the Commission to close a portion or portions of a 
meeting for one or more of the specific reasons enumerated in paragraphs 
(b) (1) through (9) of this section shall be taken only when a majority 
of the entire membership of the Commission has voted to take such 
action.
    (2) A single recorded vote of the Commission shall be taken with 
respect to: (i) Each Commission meeting of which the Commission proposes 
to close a portion or portions to the public for one or more of the 
specific reasons enumerated in paragraphs (b) (1) through (9) of this 
section, or (ii) any information which the Commission proposes to 
withhold from the public for one or more of the specific reasons 
enumerated in paragraphs (b) (1) through (9) of this section. No proxy 
votes are permissible.
    (e)(1) Action by the Commission to close a series of meetings of 
which the Commission proposes to close a portion or portions to the 
public for one or more of the specific reasons enumerated in paragraphs 
(b) (1) through (9) of this section may be taken by a single recorded 
vote of the Commission to close such portion or portions of the series. 
No proxy votes are permissible.

[[Page 44]]

(44
    (2) A series of meetings may be closed pursuant to paragraph (e)(1) 
of this section so long as each meeting in such series: (i) Involves the 
same particular matters and (ii) is scheduled to be held no more than 30 
days after the initial meeting in such series.
    (f) When the Commission (i) Has voted to close a portion or portions 
of a meeting in accordance with paragraph (d) of this section or (ii) 
has voted to close a portion or portions of a series of meetings in 
accordance with paragraph (e) of this section, the public notices 
referred to in paragraph (a) or (c)(2) of Sec. 201.35 shall be issued or 
amended in accordance with paragraph (b) or (c)(3) of Sec. 201.35 at the 
earliest practicable time, but no later than one (1) working day 
following such vote.

Sec. 201.37   Changing the time, place, subject matter, or determination 
          to open or close a meeting following a public notice.

    (a) The time or place of a Commission meeting may be changed 
following a public announcement required by Sec. 201.35 only if the 
Commission publicly announces such change or changes at the earliest 
practicable time by issuing an appropriate amendment to the public 
notice as required by Sec. 201.35.
    (b) The subject matter or matters of a Commission meeting or the 
determination of the Commission to open or close a meeting, or portion 
of a meeting, to the public may be changed following a public 
announcement required by Sec. 201.35 only if: (i) A majority of the 
entire membership of the Commission determines by recorded vote that 
Commission business so requires and that no earlier announcement of the 
change was possible and (ii) the Commission publicly announces such 
change in subject matter or such change in the determination of the 
Commission to open or close a meeting, or a portion of a meeting, to the 
public and the vote of each Commissioner upon such change or changes in 
a subsequent amendment of the public notice required by Sec. 201.35.

Sec. 201.38   Requests by interested persons that the Commission close a 
          portion of a Commission meeting.

    (a) Whenever any person whose interests may be directly affected by 
a portion of a Commission meeting requests that the Commission close 
such portion to the public for any of the specific reasons enumerated in 
paragraphs (b) (5), (6), or (7) of Sec. 201.36, the Commission, upon the 
request of any one of the Commissioners, shall take a vote in the manner 
specified in Sec. 201.36 of this subpart on whether or not to close such 
portion of the meeting.
    (b) When the Commission votes on a request to close a portion of a 
meeting under paragraph (a) of this section in the manner specified in 
Sec. 201.36(d), a public notice as required by paragraphs (a) and (b) of 
Sec. 201.35 shall be issued.

Sec. 201.39   General Counsel's certification of Commission action in 
          closing a meeting or a series of meetings.

    Before a Commission meeting may be closed for the specific reasons 
enumerated in paragraphs (b) (1) through (9) of Sec. 201.36, the General 
Counsel (i) Shall, in the related public notice, certify that in his or 
her opinion the meeting may be closed to the public and (ii) Shall state 
each applicable exemptive provision of paragraphs (b) (1) through (9) of 
Sec. 201.36.

Sec. 201.40   Records-retention requirements.

    (a) The Secretary shall maintain a copy of the certification by the 
General Counsel required by Sec. 201.39 for each Commission meeting of 
which a portion or portions are closed to the public pursuant to a vote 
under Sec. 201.36(d).
    (b) The Secretary shall also maintain a copy of a statement from the 
presiding officer of each Commission meeting or portion thereof which 
was closed to the public for the specific reasons enumerated in 
paragraphs (b) (1) through (9) of Sec. 201.36(b) setting forth (i) The 
time and place of the closed meeting, or portion thereof, and (ii) A 
list of the persons present thereat.
    (c) The Secretary shall also maintain a complete transcript or 
electronic recording of the proceedings of each Commission meeting or 
portion of a meeting, whether open to public observation or closed to 
the public. The Secretary shall also maintain a complete transcript or 
electronic recording of all

[[Page 45]]

(45deliberations conducted under paragraphs (a) (4), (5), and (6) of 
Sec. 201.34 of this subpart.
    (d) Where portions of a Commission meeting are closed for the 
reasons contained in paragraphs (b) (8)(A) or (9) of Sec. 201.36, the 
Commission preserves the option to maintain detailed minutes of such 
portions. Such detailed minutes shall fully and clearly describe all 
matters discussed and shall provide a full and accurate summary of any 
actions taken, and the reasons therefor, including a description of each 
of the views expressed on any item and the record of any rollcall vote 
(reflecting the vote of each member on the question). All documents 
considered in connection with any action shall be identified in such 
minutes.
    (e) The retention period for the records required by paragraphs (a), 
(b), (c), and (d) of this section shall be for a period of at least two 
(2) years after the particular Commission meeting, or until one (1) year 
after the conclusion of any Commission proceeding with respect to which 
the meeting or portion thereof was held, whichever occurs later.
    (f) The requirements of paragraphs (c) and (d) of this section shall 
not affect or supplant the existing duty of the Secretary to maintain 
permanent minutes of each Commission meeting. The Secretary shall also 
maintain permanent minutes of all deliberations conducted under 
paragraphs (a) (4), (5), and (6) of Sec. 201.34 of this subpart.

Sec. 201.41   Public inspection and copying of records; applicable fees.

    (a) The Secretary shall promptly make available to interested 
members of the public the transcript or electronic recording of the 
discussion of any item on the agenda of a Commission meeting or of any 
item of the testimony of any witness received at the meeting, except for 
such item or items of such discussion or testimony as the Secretary 
determines to contain information which may be withheld for reasons 
specified in paragraphs (b) (1) through (9) of Sec. 201.36. The 
determination of the Secretary shall be in conformity with a prior vote 
of the Commission under Sec. 201.36(d) to close a portion or portions of 
a meeting.
    (b) Public inspection of electronic recordings, transcripts, or 
minutes of Commission meetings shall take place at the United States 
International Trade Commission, 500 E Street SW., Washington, DC 20436. 
A room is designated by the Office of the Secretary and tape recorders 
with earphones are provided by the Commission for public-inspection 
purposes when proceedings are recorded on tape.
    (c)(1) The Secretary shall provide any person with copies of 
transcripts, minutes of Commission meetings, or transcriptions of 
electronic recordings of Commission meetings, which disclose the 
identity of each speaker, at the actual cost of transcription or 
duplication.
    (2) The Secretary shall not include items of discussion or testimony 
determined by the Secretary to contain information which may be withheld 
from the public for the reasons specified in paragraphs (b) (1) through 
(9) of Sec. 201.36 in the copies furnished to the public in accordance 
with paragraph (c)(1) of this section. The determination of the 
Secretary shall be in conformity with a prior vote of the Commission 
under Sec. 201.36(d) to close a portion or portions of a meeting.



Subpart F--National Security Information

    Authority: Sec. 335, 72 Stat. 680, sec. 401, 76 Stat. 902; 19 U.S.C. 
1335, 1802; E.O. 12356.

    Source: 48 FR 5898, Feb. 9, 1983, unless otherwise noted.

Sec. 201.42  Purpose and scope.

    The following regulation supplements Executive Order 12356, National 
Security Information, April 2, 1982, as it applies to the Commission.

Sec. 201.43  Program.

    The Director of Administration is designated as the official of the 
Commission who is responsible for implementation and oversight of 
information security programs and procedures, including ensuring 
conformity with the provisions of Executive Order No. 12356. He shall 
chair a committee, composed of himself and representatives of the

[[Page 46]]

(46offices of the Secretary, General Counsel, Executive Liaison and 
Special Adviser for Trade Agreements, and Operations, that will act on 
all suggestions and complaints with respect to the Commission's 
administration of the program. All questions, suggestions, and 
complaints regarding all elements of the information security program 
shall be directed to the Director of Administration.

Sec. 201.44  Procedures.

    (a) Mandatory declassification review. (1) Requests for 
declassification and release of national security information in the 
custody of the Commission shall be directed to the Secretary. Requests 
must reasonably describe the information that is desired to be 
declassified. All requests for declassification submitted pursuant to 
the Freedom of Information Act shall be processed in accordance with the 
provisions of that act and the applicable regulations of the Commission 
(19 CFR 201.17 through 201.21).
    (2) Because the Commission does not have original classification 
authority and national security information in its custody has been 
classified by another Federal agency, the Secretary shall refer all 
requests for mandatory declassification review of classified information 
to the originating Federal agency along with his recommendations. 
Following consultation with the originating agency, the Secretary will 
notify the requestor of the referral.
    (b) Safeguarding. All classified materials shall be delivered to the 
addressee or his designee immediately upon receipt at the Commission. In 
the event that the addressee or his designee is not available to receive 
the materials, they shall be delivered to the Secretary and secured, 
unopened, in a combination safe located in his office until the 
addressee or his designee is available. Under no circumstances shall 
classified materials that cannot be delivered to the addressee or his 
designee be stored other than in a GSA approved safe. Access to 
classified materials at the Commission shall be limited to officers and 
employees of the Commission on the basis of a favorable determination of 
trustworthiness on the basis of appropriate personnel security 
investigations and a need for access in the performance of official 
duties.
    (c) Reproduction. ``Top Secret'' documents may not be reproduced 
without the consent of the originating agency unless otherwise marked by 
that agency. Documents that have been classified ``Secret'' or 
``Confidential'' with special dissemination orders may not be reproduced 
without the permission of the Executive Liaison and Special Adviser for 
Trade Agreements, and are subject to any limitations imposed by the 
originator. Reproduced copies shall be subject to the same controls as 
the original document. The Executive Liaison and Special Adviser for 
Trade Agreements shall establish a system of recording the number and 
distribution of copies reproduced from the original documents. 
Reproduction for the purposes of mandatory review shall not be 
restricted.
    (d) Storage. All classified material shall be stored in GSA-approved 
combination safes located at the Commission. The combinations shall be 
changed as required by section 2001.43(b) of Information Security 
Oversight Office Directive No. 1. The combinations shall be known only 
by those employees possessing an appropriate security clearance who have 
need for access in the performance of official duties.
    (e) Employee education. The Director of Administration shall 
establish for all employees who have been granted a security clearance 
an information security education program that will advise them of the 
handling, reproduction, and storage procedures for these materials. The 
education program will also enable employees to familiarize themselves 
with the Order and applicable directives of the Information Security 
Oversight Office. New employees will be instructed in these procedures 
as they enter employment with the Commission.
    (f) Agency terminology. The use of the terms ``Top Secret'', 
``Secret'', and ``Confidential'' shall be limited to material classified 
for national security purposes.

[[Page 47]]

(47



Subpart G--Enforcement of Nondiscrimination on the Basis of Handicap in Programs or Activities Conducted by the U.S. International Trade Commission

    Authority: 29 U.S.C. 794.

    Source: 51 FR 4575, 4579, Feb. 5, 1986, unless otherwise noted.

Sec. 201.101  Purpose.

    This part effectuates section 119 of the Rehabilitation, 
Comprehensive Services, and Developmental Disabilities Amendments of 
1978, which amended section 504 of the Rehabilitation Act of 1973 to 
prohibit discrimination on the basis of handicap in programs or 
activities conducted by Executive agencies or the United States Postal 
Service.

Sec. 201.102  Application.

    This part applies to all programs or activities conducted by the 
agency.

Sec. 201.103  Definitions.

    For purposes of this part, the term--
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, Brailled materials, 
audio recordings, telecommunications devices and other similar services 
and devices. Auxiliary aids useful for persons with impaired hearing 
include telephone handset amplifiers, telephones compatible with hearing 
aids, telecommunication devices for deaf persons (TDD's), interpreters, 
notetakers, written materials, and other similar services and devices.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the agency's alleged 
discriminatory action in sufficient detail to inform the agency of the 
nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes or third parties shall 
describe or identify (by name, if possible) the alleged victims of 
discrimination.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    Handicapped person means any person who has a physical or mental 
impairment that substantially limits one or more major life activities, 
has a record of such an impairment, or is regarded as having such an 
impairment.
    As used in this definition, the phrase:
    (l) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term physical or mental impairment 
includes, but is not limited to, such diseases and conditions as 
orthopedic, visual, speech, and hearing impairments, cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness, and drug addition and 
alcholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by

[[Page 48]]

(48the agency as constituting such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in subparagraph (1) of 
this definition but is treated by the agency as having such an 
impairment.
    Qualified handicapped person means--
    (1) With respect to any agency program or activity under which a 
person is required to perform services or to achieve a level of 
accomplishment, a handicapped person who meets the essential eligibility 
requirements and who can achieve the purpose of the program or activity 
without modifications in the program or activity that the agency can 
demonstrate would result in a fundamental alteration in its nature; or
    (2) With respect to any other program or activity, a handicapped 
person who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity.
    (3) Qualified handicapped person is defined for purposes of 
employment in 29 CFR 1613.702(f), which is made applicable to this part 
by Sec. 201.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617), 
and the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used 
in this part, section 504 applies only to programs or activities 
conducted by Executive agencies and not to federally assisted programs.

[51 FR 4575, 4579, Feb. 5, 1986; 51 FR 7543, Mar. 5, 1986]
Secs. 201.104--201.109  [Reserved]

Sec. 201.110  Self-evaluation.

    (a) The agency shall, by April 9, 1987, evaluate its current 
policies and practices, and the effects thereof, that do not or may not 
meet the requirements of this part, and, to the extent modification of 
any such policies and practices is required, the agency shall proceed to 
make the necessary modifications.
    (b) The agency shall provide an opportunity to interested persons, 
including handicapped persons or organizations representing handicapped 
persons, to participate in the self-evaluation process by submitting 
comments (both oral and written).
    (c) The agency shall, until three years following the completion of 
the self-evaluation, maintain on file and make available for public 
inspections:
    (1) A description of areas examined and any problems identified, and
    (2) A description of any modifications made.

Sec. 201.111  Notice.

    The agency shall make available to employees, applicants, 
participants, beneficiaries, and other interested persons such 
information regarding the provisions of this part and its applicability 
to the programs or activities conducted by the agency, and make such 
information available to them in such manner as the head of the agency 
finds necessary to apprise such persons of the protections against 
discrimination assured them by section 504 and this regulation.
Secs. 201.112--201.129  [Reserved]

Sec. 201.130  General prohibitions against discrimination.

    (a) No qualified handicapped person shall, on the basis of handicap, 
be excluded from participation in, be denied the benefits of, or 
otherwise be subjected to discrimination under any program or activity 
conducted by the agency.
    (b)(1) The agency, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap--
    (i) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified handicapped person an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;

[[Page 49]]

(49
    (iii) Provide a qualified handicapped person with an aid, benefit, 
or service that is not as effective in affording equal opportunity to 
obtain the same result, to gain the same benefit, or to reach the same 
level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
handicapped persons or to any class of handicapped persons than is 
provided to others unless such action is necessary to provide qualified 
handicapped persons with aid, benefits, or services that are as 
effective as those provided to others;
    (v) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified handicapped person in the enjoyment 
of any right, privilege, advantage, or opportunity enjoyed by others 
receiving the aid, benefit, or service.
    (2) The agency may not deny a qualified handicapped person the 
opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (3) The agency may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified handicapped persons to discrimination on the 
basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to handicapped persons.
    (4) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude handicapped persons from, deny them the benefits of, or 
otherwise subject them to discrimination under any program or activity 
conducted by the agency; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to handicapped persons.
    (5) The agency, in the selection of procurement contractors, may not 
use criteria that subject qualified handicapped persons to 
discrimination on the basis of handicap.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or Executive order to handicapped 
persons or the exclusion of a specific class of handicapped persons from 
a program limited by Federal statute or Executive order to a different 
class of handicapped persons is not prohibited by this part.
    (d) The agency shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified handicapped 
persons.
Secs. 201.131--201.139  [Reserved]

Sec. 201.140  Employment.

    No qualified handicapped person shall, on the basis of handicap, be 
subjected to discrimination in employment under any program or activity 
conducted by the agency. The definitions, requirements, and procedures 
of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613, shall apply to employment in federally conducted programs or 
activities.
Secs. 201.141--201.148  [Reserved]

Sec. 201.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 201.150, no qualified 
handicapped person shall, because the agency's facilities are 
inaccessible to or unusable by handicapped persons, be denied the 
benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the agency.

Sec. 201.150  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so 
that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by handicapped persons. This paragraph does 
not--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by handicapped persons; or

[[Page 50]]

(50
    (2) Require the agency to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where agency personnel believe that the proposed action 
would fundamentally alter the program or activity or would result in 
undue financial and administrative burdens, the agency has the burden of 
proving that compliance with Sec. 201.150(a) would result in such 
alteration or burdens. The decision that compliance would result in such 
alteration or burdens must be made by the agency head or his or her 
designee after considering all agency resources available for use in the 
funding and operation of the conducted program or activity, and must be 
accompanied by a written statement of the reasons for reaching that 
conclusion. If an action would result in such an alteration or such 
burdens, the agency shall take any other action that would not result in 
such an alteration or such burdens but would nevertheless ensure that 
handicapped persons receive the benefits and services of the program or 
activity.
    (b) Methods. The agency may comply with the requirements of this 
section through such means as redesign of equipment, reassignment of 
services to accessible buildings, assignment of aides to beneficiaries, 
home visits, delivery of services at alternate accessible sites, 
alteration of existing facilities and construction of new facilities, 
use of accessible rolling stock, or any other methods that result in 
making its programs or activities readily accessible to and usable by 
handicapped persons. The agency is not required to make structural 
changes in existing facilities where other methods are effective in 
achieving compliance with this section. The agency, in making 
alterations to existing buildings, shall meet accessibility requirements 
to the extent compelled by the Architectural Barriers Act of 1968, as 
amended (42 U.S.C. 4151-4157), and any regulations implementing it. In 
choosing among available methods for meeting the requirements of this 
section, the agency shall give priority to those methods that offer 
programs and activities to qualified handicapped persons in the most 
integrated setting appropriate.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section by June 6, 1986, except that 
where structural changes in facilities are undertaken, such changes 
shall be made by April 7, 1989, but in any event as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
agency shall develop, by October 7, 1986, a transition plan setting 
forth the steps necessary to complete such changes. The agency shall 
provide an opportunity to interested persons, including handicapped 
persons or organizations representing handicapped persons, to 
participate in the development of the transition plan by submitting 
comments (both oral and written). A copy of the transition plan shall be 
made available for public inspection. The plan shall, at a minimum--
    (1) Identify physical obstacles in the agency's facilities that 
limit the accessibility of its programs or activities to handicapped 
persons;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the 
plan.

[51 FR 4575, 4579, Feb. 5, 1986; 51 FR 7543, Mar. 5, 1986]

Sec. 201.151  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the agency shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
handicapped persons. The definitions, requirements, and standards of the 
Architectural Barriers Act (42 U.S.C. 4151-4157), as established in 41 
CFR 101-19.600 to 101-19.607, apply to buildings covered by this 
section.

[[Page 51]]

(51
Secs. 201.152--201.159  [Reserved]

Sec. 201.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where 
necessary to afford a handicapped person an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
handicapped person.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the agency communicates with applicants and beneficiaries 
by telephone, telecommunication devices for deaf persons (TDD's) or 
equally effective telecommunication systems shall be used.
    (b) The agency shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The agency shall provide signage at a primary entrance to each 
of its inaccessible facilities, directing users to a location at which 
they can obtain information about accessible facilities. The 
international symbol for accessibility shall be used at each primary 
entrance of an accessible facility.
    (d) This section does not require the agency to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and administrative 
burdens. In those circumstances where agency personnel believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the agency 
has the burden of proving that compliance with Sec. 201.160 would result 
in such alteration or burdens. The decision that compliance would result 
in such alteration or burdens must be made by the agency head or his or 
her designee after considering all agency resources available for use in 
the funding and operation of the conducted program or activity, and must 
be accompanied by a written statement of the reasons for reaching that 
conclusion. If an action required to comply with this section would 
result in such an alteration or such burdens, the agency shall take any 
other action that would not result in such an alteration or such burdens 
but would nevertheless ensure that, to the maximum extent possible, 
handicapped persons receive the benefits and services of the program or 
activity.
Secs. 201.161--201.169  [Reserved]

Sec. 201.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
handicap in programs or activities conducted by the agency.
    (b) The agency shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791).
    (c) EEO Director, Office of Operations, Office of Data Systems, 
Library Division shall be responsible for coordinating implementation of 
this section. Complaints may be sent to Handicap Coordinator, Office of 
Operations, Office of Investigations, 500 E Street SW., Washington, DC 
20436.
    (d) The agency shall accept and investigate all complete complaints 
for which it has jurisdiction. All complete complaints must be filed 
within 180 days of the alleged act of discrimination. The agency may 
extend this time period for good cause.
    (e) If the agency receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall make 
reasonable efforts to refer the complaint to the appropriate government 
entity.
    (f) The agency shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or

[[Page 52]]

(52facility that is subject to the Architectural Barriers Act of 1968, 
as amended (42 U.S.C. 4151-4157), or section 502 of the Rehabilitation 
Act of 1973, as amended (29 U.S.C. 792), is not readily accessible to 
and usable by handicapped persons.
    (g) Within 180 days of the receipt of a complete complaint for which 
it has jurisdiction, the agency shall notify the complainant of the 
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found;
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within 90 days of receipt from 
the agency of the letter required by Sec. 201.170(g). The agency may 
extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the head of 
the agency.
    (j) The head of the agency shall notify the complainant of the 
results of the appeal within 60 days of the receipt of the request. If 
the head of the agency determines that additional information is needed 
from the complainant, he or she shall have 60 days from the date of 
receipt of the additional information to make his or her determination 
on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section 
may be extended with the permission of the Assistant Attorney General.
    (l) The agency may delegate its authority for conducting complaint 
investigations to other Federal agencies, except that the authority for 
making the final determination may not be delegated to another agency.

[51 FR 4575, 4579, Feb. 5, 1986, as amended at 51 FR 4576, Feb. 5, 1986]
Secs. 201.171--201.999  [Reserved]

[[Page 53]]

(53



              SUBCHAPTER B--NONADJUDICATIVE INVESTIGATIONS





PART 202--INVESTIGATIONS OF COSTS OF PRODUCTION--Table of Contents




Sec.
202.1  Applicability of part.
202.2  Applications.
202.3  Preliminary inquiry.
202.4  Public hearing.
202.5  Type of information to be developed at hearing.
202.6  Reports.

    Authority: Sec. 335, 72 Stat. 680; 19 U.S.C. 1335.

    Source: 27 FR 12120, Dec. 7, 1962, unless otherwise noted.

Sec. 202.1   Applicability of part.

    This part 202 applies specifically to investigations under section 
366 of the Tariff Act (19 U.S.C. 1336).1 For other applicable 
rules see part 201 of this chapter.
---------------------------------------------------------------------------

    \1\ Section 336(a) of the Tariff Act provides in part that ``(1) 
upon request of the President, or (2) upon resolution of either or both 
Houses of Congress, or (3) upon its own motion, or (4) when in the 
judgment of the Commission there is good and sufficient reason therefor, 
upon application of any interested party, [the commission] shall 
investigate the differences in the costs of production of any domestic 
article and of any like or similar foreign article''. (19 U.S.C. 1336.) 
The provisions of section 336 of the Tariff Act may not be applied to 
any article with respect to the importation of which into the United 
States a foreign trade agreement has been concluded under the Trade 
Agreements Act of 1934, as amended, or the Trade Expansion Act. (19 
U.S.C. 1352(a)).
---------------------------------------------------------------------------

Sec. 202.2   Applications.

    (a) Who may file. Applications for an investigation to which this 
part 202 relates may be filed by any firm, association of firms, or 
corporation engaged in the production of a domestic article, or by any 
duly authorized representative of the foregoing.
    (b) Requirements for applications. In addition to conforming with 
the requirements of Sec. 201.8 of this chapter, applications under this 
part 202 shall include the following: (1) A clear statement that they 
are requests for investigations for the purposes of section 336; (2) the 
name or description of the article concerning which an investigation is 
sought; (3) a reference to the tariff provision or provisions applicable 
to such article; and (4) a statement indicating whether an increase or a 
decrease in the rate of duty is sought.
    (c) Supporting information. The applicant must file with his 
application such supporting information as may be in his possession. As 
far as practicable, information of the following character should be 
furnished:
    (1) Comparability of the domestic and foreign articles and the 
degree of competition between them.
    (2) Trend in recent years of (i) domestic production, (ii) domestic 
sales, (iii) imports, (iv) costs of production, and (v) prices.
    (3) Evidence of difference between domestic and foreign costs of 
production of the articles involved.
    (4) Areas of greatest competition between the imported and domestic 
products and the principal market or markets in the United States.
    (5) Other relevant factors that constitute, in the opinion of the 
applicant, an advantage or disadvantage in competition, and any other 
information which the applicant believes the Commission should consider.

Sec. 202.3   Preliminary inquiry.

    Upon the receipt of an application properly filed, the Commission 
will make a preliminary inquiry for the purpose of determining whether 
there is good and sufficient reason for a full investigation. If such 
determination is in the affirmative, a full investigation will be 
instituted.

Sec. 202.4   Public hearing.

    A public hearing will be held in connection with each full 
investigation to which this part 202 relates.

Sec. 202.5   Type of information to be developed at hearing.

    Without excluding other factors, but with a view to assisting 
parties interested to present information necessary for the formulation 
of findings required

[[Page 54]]

(54by the statute, the Commission will expect attention in the hearing 
to be concentrated upon facts relating to:
    (a) The degree of competition between the foreign and domestic 
articles in the markets of the United States.
    (b) The degree of likeness or similarity between grades, classes, 
and price groups of the American product and the imported article.
    (c) Costs of production and importation. Statements of average cost 
of production, domestic and, so far as known, foreign, may be submitted 
subject to verification and review in the Commission's investigation. 
Such statements should include not only the direct costs for materials 
and labor, commonly termed prime cost, but also indirect costs such as 
indirect labor, overhead factory expenses, fixed charges, the portion of 
general and administrative expense chargeable to manufacture, imputed 
interest on investment equity, and transportation to markets. For the 
foreign product the expenses (other than duties) incident to importation 
are also important. Any information which may be available bearing on 
the general levels of domestic and foreign costs of production, the 
differentials between particular elements of domestic and foreign costs, 
and the extent to which invoice or wholesale prices are reliable 
evidence of foreign costs, will be pertinent.
    (d) Other significant advantages or disadvantages in competition.

Sec. 202.6   Reports.

    After the completion of its investigation, the Commission will 
incorporate its findings in a report, and the report will be transmitted 
to the President.



PART 204--INVESTIGATIONS OF EFFECTS OF IMPORTS ON AGRICULTURAL PROGRAMS--Table of Contents




Sec.
204.1  Applicability of part.
204.2  Investigations.
204.3  Public hearings.
204.4  Supplemental investigations.
204.5  Reports.

    Authority: Sec. 335, 72 Stat. 680; 19 U.S.C. 1335.

    Source: 27 FR 12121, Dec. 7, 1962, unless otherwise noted.

Sec. 204.1   Applicability of part.

    This part 204 applies specifically to investigations under section 
22 of the Agricultural Adjustment Act, as amended (7 U.S.C. 
624).5 For other applicable rules see part 201 of this 
chapter.
---------------------------------------------------------------------------

    \5\ Section 22 provides in part as follows:
    ``(a) Whenever the Secretary of Agriculture has reason to believe 
that any article or articles are being or are practically certain to be 
imported into the United States under such conditions and in such 
quantities as to render or tend to render ineffective, or materially 
interfere with * * * any loan, purchase, or other program or operation 
undertaken by the Department of Agriculture, or any agency operating 
under its direction, with respect to any agricultural commodity or 
product thereof, or to reduce substantially the amount of any product 
processed in the United States from any agricultural commodity or 
product thereof with respect to which any such program or operation is 
being undertaken he shall so advise the President, and, if the President 
agrees that there is reason for such belief, the President shall cause 
an immediate investigation to be made by the United States Tariff 
Commission, which shall give precedence to investigations under this 
section to determine such facts. Such investigation shall be made after 
due notice and opportunity for hearing to interested parties, and shall 
be conducted subject to such regulations as the President shall specify.
      *        *        *        *        *    
    ``(d) After investigation, report, finding and declaration in the 
manner provided in the case of a proclamation issued pursuant to 
subsection (b) of this section, any proclamation or provision of such 
proclamation may be suspended or terminated by the President whenever he 
finds and proclaims that the circumstances requiring the proclamation or 
provision thereof no longer exist or may be modified by the President 
whenever he finds and proclaims that changed circumstances require such 
modification to carry out the purposes of this section.'' (7 U.S.C. 
624.)
    Regulations of the President are set forth in Executive Order 7233 
of November 23, 1935.
---------------------------------------------------------------------------

Sec. 204.2   Investigations.

    The Commission will make an investigation for the purposes of 
section 22(a) of the Agricultural Adjustment Act, as amended, only upon 
request of the President.6
---------------------------------------------------------------------------

    \6\ Applications for investigations for the purposes of section 22 
of this Agricultural Adjustment Act, as amended, must be filed with the 
Secretary of Agriculture (Executive Order 7233).

[[Page 55]]

(55
---------------------------------------------------------------------------

Sec. 204.3   Public hearings.

    A public hearing will be held in connection with each investigation 
to which this part 204 relates. The Foreign Agricultural Service of the 
U.S. Department of Agriculture may have a representative or 
representatives at each hearing who shall have the privilege of 
examining witnesses.

Sec. 204.4   Supplemental investigations.

    An investigation for the purposes of section 22(d) of the 
Agricultural Adjustment Act, as amended, will be made upon request of 
the President, or upon the Commission's own motion when in its judgment 
there is good and sufficient reason therefor. A public hearing will be 
held in connection with each such supplemental investigation.

Sec. 204.5  Reports.

    After completion of its investigation, the Commission will transmit 
to the President a report of the results thereof, including its findings 
and recommendations based thereon, and a statement of the steps taken in 
the investigation, together with a transcript of the evidence submitted 
at the hearing. A copy of such report will be transmitted to the 
Secretary of Agriculture.

[49 FR 32571, Aug. 15, 1984]




PART 205--INVESTIGATIONS TO DETERMINE THE PROBABLE ECONOMIC EFFECT ON THE ECONOMY OF THE UNITED STATES OF PROPOSED MODIFICATIONS OF DUTIES OR OF ANY BARRIER TO (OR OTHER DISTORTION OF) INTERNATIONAL TRADE OR OF TAKING RETALIATORY ACTIONS TO OBTAIN THE ELIMINATION OF UNJUSTIFIABLE OR UNREASONABLE FOREIGN ACTS OR POLICIES WHICH RESTRICT U.S. COMMERCE--Table of Contents





Sec.
205.1  Applicability of part.

 Subpart A--Investigations To Determine the Probable Economic Effect of 
  Modifications of United States Duties or of Any Barrier To (or Other 
    Distortion of) International Trade on Domestic Industries and on 
                                Consumers

205.2  Applicability of subpart.
205.3  Investigations under sections 131 and 503 of the Trade Act of 
          1974.
205.4  [Reserved]

Subpart B--Investigations Concerning the Probable Impact on the Economy 
  of the United States of the President's Taking Retaliatory Action To 
Obtain the Elimination of Unjustifiable or Unreasonable Foreign Acts or 
                  Policies Which Restrict U.S. Commerce

205.5  Applicability of subpart.
205.6  Investigations under section 301(e)(3) of the Trade Act of 1974.

    Authority: Sec. 335, Tariff Act of 1930 (72 Stat. 680; 19 U.S.C. 
1335); sec. 603, Trade Act of 1974 (88 Stat. 2073); (19 U.S.C. 2482).

    Source: 42 FR 40426, Aug. 10, 1977, unless otherwise noted.

Sec. 205.1  Applicability of part.

    This part 205 applies to functions and duties of the Commission 
under sections 131, 301(e)(3), and 503(a) of the Trade Act of 1974. For 
other applicable rules, see part 201 of this chapter.



Subpart A--Investigations To Determine the Probable Economic Effect of Modifications of United States Duties or of Any Barrier to (or Other Distortion of) 
Interna
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Sec. 205.2  Applicability of subpart.

    This subpart A of part 205 applies to investigations for the 
purposes of section 131(a)-(b), 131(c), and 503 of the Trade Act of 
1974. For other applicable rules, see part 201 of this chapter.

Sec. 205.3  Investigations under sections 131 and 503 of the Trade Act 
          of 1974.

    (a) Purpose of investigations--(1) Sections 131(a)-(b) and 503(a). 
Upon the receipt of a list of articles from the

[[Page 56]]

(56President or from the Special Representative for Trade Negotiations 
as provided in section 131(a) or 503(a), and in Executive Order No. 
11846, as amended, which may be considered for modification of United 
States duties, or as eligible articles for duty-free treatment under the 
generalized system of preferences, respectively, the Commission shall 
initiate an investigation to obtain information pertinent to the 
fomulation of its advice to the President under section 131(b) with 
respect to such articles to assist him in making an informed judgment as 
to the impact which might be caused by such duty modifications or duty-
free treatment on U.S. manufacturing, agriculture, mining, fishing, 
labor, and consumers, including whether any reductions in rates of duty 
should take place over a period longer than the minimum periods provided 
by section 109(a) of the Trade Act of 1974 (88 Stat. 1985; 19 U.S.C. 
2119).
    (2) Section 131(c). Upon the receipt of a request from the President 
or from the Special Representative for Trade Negotiations as provided in 
section 131(c) and in Executive Order No. 11846, as amended, to assist 
him in his determination of whether to enter into any trade agreement 
under section 102, the Commission shall institute an investigation to 
obtain information pertinent to the formulation of its views with 
respect to the probable economic effects of modifications of any barrier 
to (or other distortion of) international trade on domestic industries 
and purchasers and on prices and quantities of articles in the United 
States.
    (b) Institution and notice of investigation. An investigation to 
which this subpart A relates will be instituted promptly after the 
receipt from the President or the Special Representative for Trade 
Negotiations of (1) a list of articles which may be considered for duty 
modifications or duty-free treatment, or (2) a request for an 
investigation and report concerning the probable economic effects of 
modifications of any barrier to (or other distortion of) international 
trade.
    (c) Hearings. Public hearings will be held in connection with every 
investigation to which this subpart A relates. For other applicable 
rules, see Sec. 201.11 of this chapter.
    (d) Report to the President. After the completion of its 
investigation, the Commission will incorporate its advice or views in a 
report which together with hearing transcripts, briefs and other 
information will be transmitted to the President through the Special 
Representive for Trade Negotiations.
Sec. 205.4  [Reserved]



Subpart B--Investigations Concerning the Probable Impact on the Economy of the United States of the President's Taking Retaliatory Action To Obtain the 
Eliminatio
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Sec. 205.5  Applicability of subpart.

    This subpart B of part 205 applies to investigations for the purpose 
of section 301(e)(3) of the Trade Act of 1974. For other applicable 
rules, see part 201 of this chapter.

Sec. 205.6  Investigations under section 301(e)(3) of the Trade Act of 
          1974.

    (a) Purpose of investigation. The purpose of an investigation by the 
Commission is to provide the President with its views pursuant to 
section 301(e)(3) as to the probable impact on the economy of the United 
States of imposing retaliatory restrictions on imports into the United 
States from countries or foreign instrumentalities which maintain 
restrictions against U.S. exports.
    (b) Institution and notice of investigation. An investigation to 
which this subpart B relates will be instituted promptly after the 
receipt from the President of a request for the views of the Commission 
with regard to the matters indicated in paragraph (a) of this section.
    (c) Public hearings. If, in the judgment of the Commission, there is 
good and sufficient reason therefor, the Commission, in the course of 
its investigation, will hold a public hearing and afford interested 
parties opportunity to appear and be heard at such hearing. If

[[Page 57]]

(57no notice of public hearing issues concurrently with a notice of 
investigation, any interested party who believes that a public hearing 
should be held may, within thirty (30) days after the date of 
publication in the Federal Register of the notice of investigation, 
submit a request in writing to the Secretary of the Commission that a 
public hearing be held, stating the reasons for such request.
    (d) Written statements. Any interested party may submit to the 
Commission a written statement of information pertinent to the subject 
matter of such investigation not later than thirty (30) days after a 
notice of investigation under paragraph (b) of this section is published 
in the Federal Register. If a public hearing is held in the 
investigation, a statement may be received in lieu of or in addition to 
appearance at the hearing. Statements shall conform with the 
requirements for documents set forth in Secs. 201.6 and 201.8 of this 
chapter.
    (e) Report to the President. After the completion of its 
investigation, the Commission will incorporate its views in a report 
which will be transmitted promptly to the President.



PART 206--INVESTIGATIONS RELATING TO GLOBAL AND BILATERAL SAFEGUARD ACTIONS, MARKET DISRUPTION, AND REVIEW OF RELIEF ACTIONS--Table of Contents




Sec.
206.1  Applicability of part.

                           Subpart A--General

206.2  Identification of type of petition or request.
206.3  Institution of investigations; publication of notice; 
          availability of petition for public inspection.
206.4  Notification of other agencies.
206.5  Public hearing.
206.6  Report to the President.
206.7  Confidential business information; furnishing of nonconfidential 
          summaries thereof.
206.8  Service, filing, and certification of documents.

     Subpart B--Investigations Relating to Global Safeguard Actions

206.11  Applicability of subpart.
206.12  Definitions applicable to subpart B of this part.
206.13  Who may file a petition.
206.14  Contents of petition.
206.15  Institution of investigation.
206.16  Industry adjustment plan and commitments.
206.17  Limited disclosure of certain confidential business information 
          under administrative protective order.
206.18  Time for determinations, reporting.
206.19  Public report.

 Subpart C--Investigations Relating to a Surge in Imports From a NAFTA 
                                 Country

206.21  Applicability of subpart.
206.22  Definition applicable to subpart C.
206.23  Who may file a request.
206.24  Contents of request.
206.25  Time for reporting.
206.26  Public report.

    Subpart D--Investigations Relating to Bilateral Safeguard Actions

206.31  Applicability of subpart.
206.32  Definitions applicable to subpart D.
206.33  Who may file a petition.
206.34  Contents of petition.
206.35  Time for determinations, reporting.
206.36  Public report.

       Subpart E--Investigations for Relief From Market Disruption

206.41  Applicability of subpart.
206.42  Who may file a petition.
206.43  Contents of petition.
206.44  Time for reporting.
206.45  Public report.

  Subpart F--Monitoring; Advice As to Effect of Extension, Reduction, 
              Modification, or Termination of Relief Action

206.51  Applicability of subpart.
206.52  Monitoring.
206.53  Investigations to advise the President as to the probable 
          economic effect of reduction, modification, or termination of 
          action.
206.54  Investigations with respect to extension of action.
206.55  Investigations to evaluate the effectiveness of relief.

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

    Source: 59 FR 5091, Feb. 3, 1994, unless otherwise noted.

Sec. 206.1  Applicability of part.

    This part 206 applies specifically to functions and duties of the 
Commission under sections 201-202, 204, and 406 of

[[Page 58]]

(58the Trade Act of 1974, as amended (19 U.S.C. 2251, 2252, 2254, 2436) 
(hereinafter Trade Act), and sections 301-318 of the North American Free 
Trade Agreement Implementation Act (19 U.S.C. 3351 et seq.) (hereinafter 
NAFTA Implementation Act). Subpart A of this part sets forth rules 
generally applicable to investigations conducted under these provisions; 
for other rules of general application, see part 201 of this chapter. 
Subpart B of this part sets forth rules specifically applicable to 
petitions and investigations under section 202 of the Trade Act; subpart 
C sets forth rules specifically applicable to requests and 
investigations under section 312(c) of the NAFTA Implementation Act; 
subpart D sets forth rules specifically applicable to petitions and 
investigations under section 302 of the NAFTA Implementation Act; and 
subpart E sets forth rules specifically applicable to petitions and 
investigations under section 406 of the Trade Act. Subpart F of this 
part sets forth rules applicable to functions and duties under section 
204 of the Trade Act.



Subpart A--General

    Source: 60 FR 10, Jan. 3, 1995, unless otherwise noted.

Sec. 206.2  Identification of type of petition or request.

    An investigation under this Part 206 may be commenced on the basis 
of a petition, request, resolution, or motion described in section 
202(a)(1), 204(c)(1), or 406(a)(1) of the Trade Act of 1974 or section 
302(a)(1) or 312(c)(1) of the North American Free Trade Agreement 
Implementation Act. Each petition or request, as the case may be, filed 
by an entity representative of a domestic industry under this Part 206 
shall state clearly on the first page thereof ``This is a [petition or 
request] under section [202, 204(c), or 406 of the Trade Act of 1974, or 
section 302 or 312(c) of the North American Free Trade Agreement 
Implementation Act] and Subpart [B, C, D, E, or F] of Part 206 of the 
rules of practice and procedure of the United States International Trade 
Commission''.

Sec. 206.3  Institution of investigations; publication of notice; 
          availability of petition for public inspection.

    (a) Institution of investigation and publication of notice. Except 
as provided in Sec. 206.15(b), the Commission, after receipt of a 
petition or request under Part 206, properly filed, will promptly 
institute an appropriate investigation and publish notice thereof in the 
Federal Register.
    (b) Contents of notice. The notice will identify the petitioner or 
other requestor, the imported article that is the subject of the 
investigation and its tariff subheading, the nature and timing of the 
determination to be made, the time and place of any public hearing, 
dates of deadlines for filing briefs, statements, and other documents, 
the place at which the petition or request and any other documents filed 
in the course of the investigation may be inspected, and the name, 
address, and telephone number of the office that may be contacted for 
more information.
    (c) Availability for public inspection. The Commission will promptly 
make such petition or request available for public inspection (with the 
exception of confidential business information).

Sec. 206.4  Notification of other agencies.

    The Commission will promptly transmit copies of petitions or 
requests filed and notification of investigations instituted to the 
Office of the United States Trade Representative (hereinafter USTR), the 
Secretary of Commerce, the Secretary of Labor, and other Federal 
agencies directly concerned.

Sec. 206.5  Public hearing.

    (a) Investigations under subpart B of this part. A public hearing on 
the question of injury and a second public hearing on remedy (if 
necessary) will be held in connection with each investigation instituted 
under Subpart B of this Part after reasonable notice thereof has been 
caused to be published in the Federal Register. A hearing on remedy is 
not necessary if the Commission has made a negative determination on the 
question of injury.
    (b) Investigations under subparts C, D, and E of this part. A public 
hearing on the subject of injury and remedy will

[[Page 59]]

(59be held in connection with each investigation instituted under 
subparts C, D, and E of this part after reasonable notice thereof has 
been published in the Federal Register.
    (c) Investigations under subpart F of this part. A public hearing on 
the subject of whether an action taken under section 203 of the Trade 
Act of 1974 should be extended will be held in connection with each 
investigation instituted under subpart F of this part after reasonable 
notice thereof has been published in the Federal Register.
    (d) Opportunity to appear and to cross-question. All interested 
parties and consumers, including any association representing the 
interests of consumers, will be afforded an opportunity to be present, 
to present evidence, to comment on the adjustment plan, if any, 
submitted in the case of an investigation under section 202(b) of the 
Trade Act of 1974, and to be heard at such hearings. All interested 
parties and consumers, including any association representing the 
interests of consumers, will be afforded an opportunity to cross-
question interested parties making presentations at the hearing.

Sec. 206.6  Report to the President.

    (a) In general. The Commission will include in its report to the 
President the following:
    (1) The determination made and an explanation of the basis for the 
determination;
    (2) If the determination is affirmative, to the extent appropriate, 
the recommendations for action and an explanation of the basis for each 
recommendation;
    (3) Any dissenting or separate views by members of the Commission 
regarding the determination and any recommendations;
    (b) Additional findings and information. (1) In the case of a 
determination made under section 202(b) of the Trade Act, the Commission 
will also include in its report the following:
    (i) The findings with respect to the results of an examination of 
the factors other than imports which may be a cause of serious injury or 
threat thereof to the domestic industry;
    (ii) A copy of the adjustment plan, if any, submitted by the 
petitioner;
    (iii) Commitments submitted and information obtained by the 
Commission regarding steps that firms and workers in the domestic 
industry are taking, or plan to take, to facilitate positive adjustment 
to import competition;
    (iv) A description of the short- and long-term effects that 
implementation of the action recommended is likely to have on the 
petitioning domestic industry, other domestic industries, and consumers; 
and
    (v) A description of the short- and long-term effects of not taking 
the recommended action on the petitioning domestic industry, its workers 
and communities where production facilities of such industry are 
located, and other domestic industries.
    (2) In the case of a determination made under section 302(b) of the 
NAFTA Implementation Act, the Commission will also include in its report 
the findings with respect to the results of an examination of the 
factors other than imports which may be a cause of serious injury or 
threat thereof to the domestic industry.

Sec. 206.7  Confidential business information; furnishing of 
          nonconfidential summaries thereof.

    (a) Nonrelease of information. Except as provided for in 
Sec. 206.17, in the case of an investigation under Subpart B, C, D, or F 
of this Part, the Commission will not release information which the 
Commission considers to be confidential business information within the 
meaning of Sec. 201.6 unless the party submitting the confidential 
business information had notice, at the time of submission, that such 
information would be released by the Commission, or such party 
subsequently consents to the release of the information. When 
appropriate, the Commission will include confidential business 
information in reports transmitted to the President and the Trade 
Representative; such reports will be marked as containing confidential 
business information, and a nonconfidential version of such report will 
be made available to the public.
    (b) Nonconfidential summaries. Except as the Commission may 
otherwise provide, a party submitting confidential business information 
shall also submit

[[Page 60]]

(60to the Commission, at the time it submits such information, a 
nonconfidential summary of the information. If a party indicates that 
the confidential business information cannot be summarized, it shall 
state in writing the reasons why a summary cannot be provided. If the 
Commission finds that a request for confidentiality is not warranted and 
if the party concerned is either unwilling to make the information 
public or to authorize its disclosure in generalized or summarized form, 
the Commission may disregard the submission.

Sec. 206.8  Service, filing, and certification of documents.

    (a) Certification. Any person submitting factual information on 
behalf of the petitioner or any other interested party for the 
consideration of the Commission in the course of an investigation to 
which this part pertains, and any person submitting a response to a 
Commission questionnaire issued in connection with an investigation to 
which this part pertains, must certify that such information is accurate 
and complete to the best of the submitter's knowledge.
    (b) Service. Any party submitting a document for the consideration 
of the Commission in the course of an investigation to which this part 
pertains shall, in addition to complying with Sec. 201.8 of this 
chapter, serve a copy of the public version of such document on all 
other parties to the investigation in the manner prescribed in 
Sec. 201.16 of this chapter, and, when appropriate, serve a copy of the 
confidential version of such document in the manner provided for in 
Sec. 206.17(f). If a document is filed before the Secretary's issuance 
of the service list provided for in Sec. 201.11 of this chapter or the 
administrative protective order list provided for in Sec. 206.17, the 
document need not be accompanied by a certificate of service, but the 
document shall be served on all appropriate parties within two (2) days 
of the issuance of the service list or the administrative protective 
order list and a certificate of service shall then be filed. 
Notwithstanding Sec. 201.16 of this chapter, petitions, briefs, and 
testimony filed by parties shall be served by hand or, if served by 
mail, by overnight mail or its equivalent. Failure to comply with the 
requirements of this rule may result in removal from status as a party 
to the investigation. The Commission shall make available, upon request, 
to all parties to the investigation a copy of each document, except 
transcripts of hearings, confidential business information, privileged 
information, and information required to be served under this section, 
placed in the docket file of the investigation by the Commission.
    (c) Filing. Documents to be filed with the Commission must comply 
with applicable rules, including Sec. 201.8 of this chapter. If the 
Commission establishes a deadline for the filing of a document, and the 
submitter includes confidential business information in the document, 
the submitter is to file and, if the submitter is a party, serve the 
confidential version of the document on the deadline and may file and 
serve the nonconfidential version of the document no later than one 
business day after the deadline for filing the document. The 
confidential version shall enclose all confidential business information 
in brackets and have the following warning marked on every page: 
``Bracketing of CBI not final for one business day after date of 
filing.'' The bracketing becomes final one business day after the date 
of filing of the document, i.e., at the same time as the nonconfidential 
version of the document is due to be filed. Until the bracketing becomes 
final, recipients of the document may not divulge any part of the 
contents of the document to anyone not subject to the administrative 
protective order issued in the investigation. If the submitter discovers 
it has failed to bracket correctly, the submitter may file a corrected 
version or portion of the confidential document at the same time as the 
nonconfidential version is filed. No changes to the document other than 
bracketing and deletion of confidential business information are 
permitted after the deadline. Failure to comply with this paragraph may 
result in the striking of all or a portion of a submitter's document.

[[Page 61]]

(61



Subpart B--Investigations Relating to Global Safeguard Actions

    Source: 60 FR 12, Jan. 3, 1995, unless otherwise noted.

Sec. 206.11  Applicability of subpart.

    This subpart B applies specifically to investigations under section 
202(b) of the Trade Act. For other applicable rules, see subpart A of 
this part and part 201 of this chapter.

Sec. 206.12  Definitions applicable to subpart B of this part.

    For the purposes of this Subpart, the following terms have the 
meanings hereby assigned to them:
    (a) Adjustment plan means a plan to facilitate positive adjustment 
to import competition submitted by a petitioner to the Commission and 
USTR either with the petition or at any time within 120 days after the 
date of filing of the petition.
    (b) Commitment means commitments that a firm in the domestic 
industry, a certified or recognized union or group of workers in the 
domestic industry, a local community, a trade association representing 
the domestic industry, or any other person or group of persons submits 
to the Commission regarding actions such persons and entities intend to 
take to facilitate positive adjustment to import competition.

Sec. 206.13  Who may file a petition.

    A petition under this Subpart B may be filed by an entity, including 
a trade association, firm, certified or recognized union, or group of 
workers, that is representative of a domestic industry producing an 
article like or directly competitive with a foreign article that is 
allegedly being imported into the United States in such increased 
quantities as to be a substantial cause of serious injury, or the threat 
thereof, to such domestic industry.

Sec. 206.14  Contents of petition.

    A petition under this Subpart B shall include specific information 
in support of the claim that an article is being imported into the 
United States in such increased quantities as to be a substantial cause 
of serious injury, or the threat thereof, to the domestic industry 
producing an article like or directly competitive with the imported 
article. Such petition shall state whether provisional relief is sought 
because critical circumstances exist or because the imported article is 
a perishable agricultural product. In addition, such petition shall 
include the following information, to the extent that such information 
is available from governmental or other sources, or best estimates and 
the basis therefor if such information is not available:
    (a) Product description. The name and description of the imported 
article concerned, specifying the United States tariff provision under 
which such article is classified and the current tariff treatment 
thereof, and the name and description of the like or directly 
competitive domestic article concerned;
    (b) Representativeness. (1) The names and addresses of the firms 
represented in the petition and/or the firms employing or previously 
employing the workers represented in the petition and the locations of 
their establishments in which the domestic article is produced;
    (2) The percentage of domestic production of the like or directly 
competitive domestic article that such represented firms and/or workers 
account for and the basis for claiming that such firms and/or workers 
are representative of an industry; and
    (3) The names and locations of all other producers of the domestic 
article known to the petitioner;
    (c) Import data. Import data for at least each of the most recent 5 
full years which form the basis of the claim that the article concerned 
is being imported in increased quantities, either actual or relative to 
domestic production;
    (d) Domestic production data. Data on total U.S. production of the 
domestic article for each full year for which data are provided pursuant 
to paragraph (c) of this section;
    (e) Data showing injury. Quantitative data indicating the nature and 
extent of injury to the domestic industry concerned:
    (1) With respect to serious injury, data indicating:

[[Page 62]]

(62
    (i) A significant idling of production facilities in the industry, 
including data indicating plant closings or the underutilization of 
production capacity;
    (ii) The inability of a significant number of firms to carry out 
domestic production operations at a reasonable level of profit; and
    (iii) Significant unemployment or underemployment within the 
industry; and/or
    (2) With respect to the threat of serious injury, data relating to:
    (i) A decline in sales or market share, a higher and growing 
inventory (whether maintained by domestic producers, importers, 
wholesalers, or retailers), and a downward trend in production, profits, 
wages, productivity, or employment (or increasing underemployment);
    (ii) The extent to which firms in the industry are unable to 
generate adequate capital to finance the modernization of their domestic 
plants and equipment, or are unable to maintain existing levels of 
expenditures for research and development;
    (iii) The extent to which the U.S. market is the focal point for the 
diversion of exports of the article concerned by reason of restraints on 
exports of such article to, or on imports of such article into, third 
country markets; and
    (3) Changes in the level of prices, production, and productivity.
    (f) Cause of injury. An enumeration and description of the causes 
believed to be resulting in the injury, or threat thereof, described 
under paragraph (e) of this section, and a statement regarding the 
extent to which increased imports, either actual or relative to domestic 
production, of the imported article are believed to be such a cause, 
supported by pertinent data;
    (g) Relief sought and purpose thereof. A statement describing the 
import relief sought, including the type, amount, and duration, and the 
specific purposes therefor, which may include facilitating the orderly 
transfer of resources to more productive pursuits, enhancing 
competitiveness, or other means of adjustment to new conditions of 
competition;
    (h) Efforts to compete. A statement on the efforts being taken, or 
planned to be taken, or both, by firms and workers in the industry to 
make a positive adjustment to import competition.
    (i) Imports from NAFTA countries. Quantitative data indicating the 
share of imports accounted for by imports from each NAFTA country 
(Canada and Mexico), and petitioner's view on the extent to which 
imports from such NAFTA country or countries are contributing 
importantly to the serious injury, or threat thereof, caused by total 
imports of such article.
    (j) Critical circumstances. If the petition alleges the existence of 
critical circumstances, a statement setting forth the basis for the 
belief that there is clear evidence that increased imports (either 
actual or relative to domestic production) of the article are a 
substantial cause of serious injury, or the threat thereof, to the 
domestic industry, and that delay in taking action would cause damage to 
that industry that would be difficult to repair, and a statement 
concerning the provisional relief requested and the basis therefor.

Sec. 206.15  Institution of investigation.

    (a) In general. Except as provided in paragraph (b) of this section, 
the Commission, after receipt of a petition under this Subpart B, 
properly filed, will promptly institute an appropriate investigation and 
will cause a notice thereof to be published in the Federal Register.
    (b) Exceptions--(1) Reinvestigation within one (1) year. Except for 
good cause determined by the Commission to exist, no new investigation 
will be made under section 202 of the Trade Act with respect to the same 
subject matter as a previous investigation under section 202 unless one 
(1) year has elapsed since the Commission made its report to the 
President of the results of such previous investigation.
    (2) Articles subject to prior action. No new investigation will be 
made under section 202 of the Trade Act with respect to an article that 
is or has been the subject of an action under section 203(a) (3)(A), 
(B), (C), or (E) of the Trade Act if the last day on which the

[[Page 63]]

(63President could take action under section 203 of the Trade Act in the 
new investigation is a date earlier than that permitted under section 
203(e)(7) of the Trade Act.
    (3) Articles subject to the Textiles Agreement. No investigation 
will be made under section 202 of the Trade Act with respect to an 
article that is the subject of the WTO Agreement on Textiles and 
Clothing unless the United States has integrated the article into GATT 
1994 and the Secretary of Commerce has published notice to such effect 
in the Federal Register.
    (4) Perishable agricultural product. An entity of the type described 
in Sec. 206.13 that represents a domestic industry producing a 
perishable agricultural product may petition for provisional relief with 
respect to such product only if such product has been subject to 
monitoring by the Commission for not less than 90 days as of the date 
the allegation of injury is included in the petition.

Sec. 206.16  Industry adjustment plan and commitments.

    (a) Adjustment plan. A petitioner may submit to the Commission, 
either with the petition or at any time within 120 days after the date 
of filing of the petition, a plan to facilitate positive adjustment to 
import competition.
    (b) Commitments. If the Commission makes an affirmative injury 
determination, any firm in the domestic industry, certified or 
recognized union or group of workers in the domestic industry, local 
community, trade association representing the domestic industry, or any 
other person or group of persons may, individually, submit to the 
Commission commitments regarding actions such persons and entities 
intend to take to facilitate positive adjustment to import competition.

Sec. 206.17  Limited disclosure of certain confidential business 
          information under administrative protective order.

    (a)(1) Disclosure. Upon receipt of a timely application filed by an 
authorized applicant, as defined in paragraph (a)(3) of this section, 
which describes in general terms the information requested, and sets 
forth the reasons for the request (e.g., all confidential business 
information properly disclosed pursuant to this section for the purpose 
of representing an interested party in investigations pending before the 
Commission), the Secretary shall make available all confidential 
business information contained in Commission memoranda and reports and 
in written submissions filed with the Commission at any time during the 
investigation (except privileged information, classified information, 
and specific information of a type which there is a clear and compelling 
need to withhold from disclosure, e.g., trade secrets) to the authorized 
applicant under an administrative protective order described in 
paragraph (b) of this section. The term ``confidential business 
information'' is defined in Sec. 201.6 of this chapter.
    (2) Application. An application under paragraph (a)(1) of this 
section must be made by an authorized applicant on a form adopted by the 
Secretary or a photocopy thereof. An application on behalf of an 
authorized applicant must be made no later than the time that entries of 
appearance are due pursuant to Sec. 201.11 of this chapter. In the event 
that two or more authorized applicants represent one interested party 
who is a party to the investigation, the authorized applicants must 
select one of their number to be lead authorized applicant. The lead 
authorized applicant's application must be filed no later than the time 
that entries of appearance are due. Provided that the application is 
accepted, the lead authorized applicant shall be served with 
confidential business information pursuant to paragraph (f) of this 
section. The other authorized applicants representing the same party may 
file their applications after the deadline for entries of appearance but 
at least five (5) days before the deadline for filing posthearing briefs 
in the investigation, and shall not be served with confidential business 
information.
    (3) Authorized applicant. (i) Only an authorized applicant may file 
an application under this subsection. An authorized applicant is:
    (A) An attorney for an interested party which is a party to the 
investigation;

[[Page 64]]

(64
    (B) A consultant or expert under the direction and control of a 
person under paragraph (a)(3)(i)(A) of this section;
    (C) A consultant or expert who appears regularly before the 
Commission and who represents an interested party which is a party to 
the investigation; or
    (D) A representative of an interested party which is a party to the 
investigation, if such interested party is not represented by counsel.
    (ii) In addition, an authorized applicant must not be involved in 
competitive decisionmaking for an interested party which is a party to 
the investigation. Involvement in ``competitive decisionmaking'' 
includes past, present, or likely future activities, associations, and 
relationships with an interested party which is a party to the 
investigation that involve the prospective authorized applicant's advice 
or participation in any of such party's decisions made in light of 
similar or corresponding information about a competitor (pricing, 
product design, etc.).
    (iii) For purposes of this Sec. 206.17, the term interested party 
means:
    (A) A foreign manufacturer, producer, or exporter, or the United 
States importer, of an article which is the subject of an investigation 
under this section or a trade or business association a majority of the 
members of which are producers, exporters, or importers of such article;
    (B) The government of a country in which such article is produced or 
manufactured;
    (C) A manufacturer, producer, or wholesaler in the United States of 
a like or directly competitive article;
    (D) A certified union or recognized union or group of workers which 
is representative of an industry engaged in the manufacture, production, 
or wholesale of a like or directly competitive article in the United 
States;
    (E) A trade or business association a majority of whose members 
manufacture, produce, or wholesale a like or directly competitive 
article in the United States; and
    (F) An association, a majority of whose members is composed of 
interested parties described in paragraphs (a)(3)(iii) (C), (D), or (E) 
of this section with respect to a like or directly competitive article.
    (4) Forms and determinations. (i) The Secretary may adopt, from time 
to time, forms for submitting requests for disclosure pursuant to an 
administrative protective order incorporating the terms of this rule. 
The Secretary shall determine whether the requirements for release of 
information under this rule have been satisfied. This determination 
shall be made concerning specific confidential business information as 
expeditiously as possible but in no event later than fourteen (14) days 
from the filing of the information, except if the submitter of the 
information objects to its release or the information is unusually 
voluminous or complex, in which case the determination shall be made 
within thirty (30) days from the filing of the information. The 
Secretary shall establish a list of parties whose applications have been 
granted. The Secretary's determination shall be final.
    (ii) Should the Secretary determine pursuant to this section that 
materials sought to be protected from public disclosure by a person do 
not constitute confidential business information or were not required to 
be served under paragraph (f) of this section, then the Secretary shall, 
upon request, issue an order on behalf of the Commission requiring the 
return of all copies of such materials served in accordance with 
paragraph (f) of this section.
    (iii) The Secretary shall release confidential business information 
only to an authorized applicant whose application has been accepted and 
who presents the application along with adequate personal 
identification; or a person described in paragraph (b)(1)(iv) of this 
section who presents a copy of the statement referred to in that 
paragraph along with adequate personal identification.
    (b) Administrative protective order. The administrative protective 
order under which information is made available to the authorized 
applicant shall require him to submit to the Secretary a personal sworn 
statement that, in addition to such other conditions as the Secretary 
may require, he shall:
    (1) Not divulge any of the confidential business information 
obtained

[[Page 65]]

(65under the administrative protective order and not otherwise available 
to him, to any person other than
    (i) Personnel of the Commission concerned with the investigation,
    (ii) The person or agency from whom the confidential business 
information was obtained,
    (iii) A person whose application for access to confidential business 
information under the administrative protective order has been granted 
by the Secretary, and
    (iv) Other persons, such as paralegals and clerical staff, who are 
employed or supervised by an authorized applicant; who have a need 
thereof in connection with the investigation; who are not involved in 
competitive decisionmaking on behalf of an interested party which is a 
party to the investigation; and who have submitted to the Secretary a 
signed statement in a form approved by the Secretary that they agree to 
be bound by the administrative protective order (the authorized 
applicant shall be deemed responsible for such persons' compliance with 
the administrative protective order);
    (2) Use such confidential business information solely for the 
purposes of the Commission investigation then in progress;
    (3) Not consult with any person not described in paragraph (b)(1) of 
this section concerning such confidential business information without 
first having received the written consent of the Secretary and the party 
or the attorney of the party from whom such confidential business 
information was obtained;
    (4) Whenever materials (e.g., documents, computer disks, etc.) 
containing such confidential business information are not being used, 
store such material in a locked file cabinet, vault, safe, or other 
suitable container;
    (5) Serve all materials containing confidential business information 
as directed by the Secretary and pursuant to paragraph (f) of this 
section;
    (6) Transmit all materials containing confidential business 
information with a cover sheet identifying the materials as containing 
confidential business information;
    (7) Comply with the provisions of this section;
    (8) Make true and accurate representations in the authorized 
applicant's application and promptly notify the Secretary of any changes 
that occur after the submission of the application and that affect the 
representations made in the application (e.g., change in personnel 
assigned to the investigation);
    (9) Report promptly and confirm in writing to the Secretary any 
breach of the administrative protective order; and
    (10) Acknowledge that breach of the administrative protective order 
may subject the authorized applicant to such sanctions or other actions 
as the Commission deems appropriate.
    (c) Final disposition of material released under administrative 
protective order. At such date as the Secretary may determine 
appropriate for particular data, each authorized applicant shall return 
or destroy all copies of materials released to authorized applicants 
pursuant to this section and all other materials containing confidential 
business information, such as charts or notes based on any such 
information received under administrative protective order, and file 
with the Secretary a certificate attesting to his personal, good faith 
belief that all copies of such material have been returned or destroyed 
and no copies of such material have been made available to any person to 
whom disclosure was not specifically authorized.
    (d) Commission responses to a breach of administrative protective 
order. A breach of an administrative protective order may subject an 
offender to:
    (1) Disbarment from practice in any capacity before the Commission 
along with such person's partners, associates, employer, and employees, 
for up to seven years following publication of a determination that the 
order has been breached;
    (2) Referral to the United States Attorney;
    (3) In the case of an attorney, accountant, or other professional, 
referral to the ethics panel of the appropriate professional 
association;
    (4) Such other administrative sanctions as the Commission determines 
to be appropriate, including public release

[[Page 66]]

(66of or striking from the record any information or briefs submitted 
by, or on behalf of, the offender or the party represented by the 
offender, denial of further access to confidential business information 
in the current or any future investigations before the Commission, and 
issuance of a public or private letter of reprimand; and
    (5) Such other actions, including but not limited to, a warning 
letter, as the Commission determines to be appropriate.
    (e) Breach investigation procedure. (1) The Commission shall 
determine whether any person has violated an administrative protective 
order, and may impose sanctions or other actions in accordance with 
paragraph (d) of this section. At any time within sixty (60) days of the 
later of
    (i) The date on which the alleged violation occurred or, as 
determined by the Commission, could have been discovered through the 
exercise of reasonable and ordinary care; or
    (ii) The completion of an investigation conducted under this 
subpart, the Commission may commence an investigation of any breach of 
an administrative protective order alleged to have occurred at any time 
during the pendency of the investigation, including all appeals, 
remands, and subsequent appeals. Whenever the Commission has reason to 
believe that a person may have breached an administrative protective 
order issued pursuant to this section, the Secretary shall issue a 
letter informing such person that the Commission has reason to believe a 
breach has occurred and that the person has a reasonable opportunity to 
present his views on whether a breach has occurred. If subsequently the 
Commission determines that a breach has occurred and that further 
investigation is warranted, then the Secretary shall issue a letter 
informing such person of that determination and that the person has a 
reasonable opportunity to present his views on whether mitigating 
circumstances exist and on the appropriate sanction to be imposed, but 
no longer on whether a breach has occurred. Once such person has been 
afforded a reasonable opportunity to present his views, the Commission 
shall determine what sanction if any to impose.
    (2) Where the sanction imposed is a private letter of reprimand, the 
Secretary shall expunge the sanction from the recipient's record two (2) 
years from the date of issuance of the sanction, provided that
    (i) The recipient has not received another unexpunged sanction 
pursuant to this section at any time prior to the end of the two year 
period, and
    (ii) The recipient is not the subject of an investigation for 
possible breach of administrative protective order under this section at 
the end of the two year period. Upon the completion of such a pending 
breach investigation without the issuance of a sanction, the original 
sanction shall be expunged. The Secretary shall notify a sanction 
recipient in the event that the sanction is expunged.
    (f) Service. (1) Any party filing written submissions which include 
confidential business information to the Commission during an 
investigation shall at the same time serve complete copies of such 
submissions upon all authorized applicants specified on the list 
established by the Secretary pursuant to paragraph (a)(4) of this 
section, and, except as provided in Sec. 206.8(c), a nonconfidential 
version on all other parties. All such submissions must be accompanied 
by a certificate attesting that complete copies of the submission have 
been properly served. In the event that a submission is filed before the 
Secretary's list is established, the document need not be accompanied by 
a certificate of service, but the submission shall be served within two 
(2) days of the establishment of the list and a certificate of service 
shall then be filed.
    (2) A party may seek an exemption from the service requirement of 
paragraph (f)(1) of this section for particular confidential business 
information by filing a request for exemption from disclosure in 
accordance with paragraph (g) of this section. The Secretary shall 
promptly respond to the request. If a request is granted, the Secretary 
shall accept the information. The party

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(67shall file three versions of the submission containing the 
information in accordance with paragraph (g) of this section, and serve 
the submission in accordance with the requirements of Sec. 206.8(b) and 
paragraph (f)(1) of this section, with the specific information as to 
which exemption from disclosure under administrative protective order 
has been granted redacted from the copies served. If a request is 
denied, the copy of the information lodged with the Secretary shall 
promptly be returned to the requester.
    (3) The Secretary shall not accept for filing into the record of an 
investigation submissions filed without a proper certificate of service. 
Failure to comply with paragraph (f) of this section may result in 
denial of party status and such sanctions as the Commission deems 
appropriate. Confidential business information in submissions must be 
clearly marked as such when submitted, and must be segregated from other 
material being submitted.
    (g) Exemption from disclosure--(1) In general. Any person may 
request exemption from the disclosure of confidential business 
information under administrative protective order, whether the person 
desires to include such information in a petition filed under this 
Subpart B, or any other submission to the Commission during the course 
of an investigation. Such a request shall only be granted if the 
Secretary finds that such information is privileged information, 
classified information, or specific information of a type which there is 
a clear and compelling need to withhold from disclosure.
    (2) Request for exemption. A request for exemption from disclosure 
must be filed with the Secretary in writing with the reasons therefor. 
At the same time as the request is filed, one copy of the confidential 
business information in question must be lodged with the Secretary 
solely for the purpose of obtaining a determination as to the request. 
The confidential business information for which exemption from 
disclosure is sought shall remain the property of the requester, and 
shall not become or be incorporated into any agency record until such 
time as the request is granted. A request should, when possible, be 
filed two business days prior to the deadline, if any, for filing the 
document in which the information for which exemption from disclosure is 
sought is proposed to be included. The Secretary shall promptly notify 
the requester as to whether the request has been approved or denied.
    (3) Procedure if request is approved. If the request is approved, 
the person shall file three versions of the submission containing the 
confidential business information in question. One version shall contain 
all confidential business information, bracketed in accordance with 
Sec. 206.8(c), with the specific information as to which exemption from 
disclosure was granted enclosed in double brackets. This version shall 
have the following warning marked on every page: ``CBI exempted from 
disclosure under APO enclosed in double brackets.'' The other two 
versions shall conform to and be filed in accordance with the 
requirements of Sec. 206.8, except that the specific information as to 
which exemption from disclosure was granted shall be redacted from those 
versions of the submission.
    (4) Procedure if request is denied. If the request is denied, the 
copy of the information lodged with the Secretary shall promptly be 
returned to the requester.

Sec. 206.18  Time for determinations, reporting.

    (a) In general. The Commission will make its determination with 
respect to injury within 120 days after the date on which the petition 
is filed, the request or resolution is received, or the motion is 
adopted, as the case may be, except that--
    (1) If the Commission determines before the 100th day that the 
investigation is extraordinarily complicated, the Commission will make 
its determination within 150 days; or
    (2) If critical circumstances are alleged, the Commission will make 
its determination within 120 days after completion of its investigation 
with respect to critical circumstances. The Commission will make its 
report to the President at the earliest practicable time, but not later 
than 180 days (240 days if critical circumstances are alleged) after the 
date on which the petition is filed, the request or resolution

[[Page 68]]

(68is received, or the motion is adopted, as the case may be.
    (b) Perishable agricultural product. In the case of a request in a 
petition for provisional relief with respect to a perishable 
agricultural product that has been the subject of monitoring by the 
Commission, the Commission will report its determination and any finding 
to the President not later than 21 days after the date on which the 
request for provisional relief is received.
    (c) Critical circumstances. If petitioner alleges the existence of 
critical circumstances in the petition, the Commission will report its 
determination regarding such allegation and any finding on or before the 
60th day after such filing date.

Sec. 206.19  Public report.

    Upon making a report to the President of the results of an 
investigation to which this Subpart B relates, the Commission will make 
such report public (with the exception of information which the 
Commission determines to be confidential) and cause a summary thereof to 
be published in the Federal Register.



Subpart C--Investigations Relating to a Surge in Imports From a NAFTA Country

Sec. 206.21  Applicability of subpart.

    This subpart C applies specifically to investigations under section 
312(c) of the NAFTA Implementation Act. For other applicable rules, see 
subpart A of this part and part 201 of this chapter.

Sec. 206.22  Definition applicable to subpart C.

    For the purposes of this subpart, the term surge means a significant 
increase in imports over the trend for a recent representative base 
period.

Sec. 206.23  Who may file a request.

    If the President, under section 312(b) of the NAFTA Implementation 
Act, has excluded imports from a NAFTA country or countries from an 
action under chapter 1 of title II of the Trade Act of 1974, any entity 
that is representative of an industry for which such action is being 
taken may request the Commission to conduct an investigation to 
determine whether a surge in such imports undermines the effectiveness 
of the action.

Sec. 206.24  Contents of request.

    The request for an investigation shall include the following 
information:
    (a) The identity of the entity submitting the request; a description 
of the relief action the effectiveness of which is allegedly being 
undermined; and a description of the imported article, identifying the 
United States tariff provision under which it is classified, and the 
name of the country or countries from which the surge in imports is 
alleged to be coming;
    (b) The information required in Sec. 206.14(b) of this subpart 
concerning representativeness of the entity filing the request;
    (c) Data concerning imports from the NAFTA country or countries that 
form the basis of requestor's claim that a surge in imports has 
occurred;
    (d) Information supporting the claim that such surge in imports 
undermines the effectiveness of the relief action.

Sec. 206.25  Time for reporting.

    The Commission will submit the findings of its investigation to the 
President no later than 30 days after the request is received.

Sec. 206.26  Public report.

    Upon making a report to the President of the results of an 
investigation to which this subpart C relates, the Commission will make 
such report public (with the exception of any confidential business 
information) and cause a summary thereof to be published in the Federal 
Register.



Subpart D--Investigations Relating to Bilateral Safeguard Actions

Sec. 206.31  Applicability of subpart.

    This subpart D applies specifically to investigations under section 
302(b) of the NAFTA Implementation Act. For other applicable rules, see 
subpart A of this part and part 201 of this chapter.

[[Page 69]]

(69

Sec. 206.32  Definitions applicable to subpart D.

    For the purposes of this subpart, the following terms have the 
meanings hereby assigned to them:
    (a) Critical circumstances mean such circumstances as are described 
in section 202(b)(3)(B) of the Trade Act;
    (b) Perishable agricultural product means any agricultural article 
or citrus product, including livestock, which is the subject of 
monitoring pursuant to section 202(d) of the Trade Act.

Sec. 206.33  Who may file a petition.

    (a) In general. A petition under this subpart D may be filed by an 
entity, including a trade association, firm, certified or recognized 
union, or group of workers, that is representative of a domestic 
industry producing an article that is like or directly competitive with 
a Canadian or Mexican article that is allegedly, as a result of the 
reduction or elimination of a duty provided for under the North American 
Free Trade Agreement, being imported into the United States in such 
increased quantities (in absolute terms) and under such conditions so 
that imports of the article alone constitute a substantial cause of 
serious injury, or (except in the case of a Canadian article) a threat 
of serious injury, to such domestic industry.
    (b) Perishable agricultural product. An entity of the type described 
in paragraph (a) of this section that represents a domestic industry 
producing a perishable agricultural product may petition for provisional 
relief with respect to imports of such product from Canada or Mexico 
only if such product has been subject to monitoring by the Commission 
for not less than 90 days as of the date the allegation of injury is 
included in the petition.
    (c) The President is authorized to provide import relief with 
respect to an article from Canada or Mexico during the period provided 
for in section 305(a) of the NAFTA Implementation Act; the President may 
provide relief after the expiration of this period, but only if the 
Government of Canada or Mexico, as the case may be, consents to such 
provision (see section 305(b) of the NAFTA Implementation Act).

Sec. 206.34  Contents of petition.

    A petition under this Subpart D shall include specific information 
in support of the claim that, as a result of the reduction or 
elimination of a duty provided for under the North American Free Trade 
Agreement, a Canadian or Mexican article, as the case may be, is being 
imported into the United States in such increased quantities (in 
absolute terms) and under such conditions so that imports of the 
article, alone, constitute a substantial cause of serious injury, or 
(except in the case of a Canadian article) a threat of serious injury, 
to the domestic industry producing an article that is like or directly 
competitive with the imported article. Such petition shall state whether 
provisional relief is sought because critical circumstances exist or 
because the imported article is a perishable agricultural product. In 
addition, such petition shall include the following information, to the 
extent that such information is publicly available from governmental or 
other sources, or best estimates and the basis therefor if such 
information is not available:
    (a) Product description. The name and description of the imported 
article concerned, specifying the United States tariff provision under 
which such article is classified and the current tariff treatment 
thereof, and the name and description of the like or directly 
competitive domestic article concerned;
    (b) Representativeness. (1) The names and addresses of the firms 
represented in the petition and/or the firms employing or previously 
employing the workers represented in the petition and the locations of 
their establishments in which the domestic article is produced;
    (2) The percentage of domestic production of the like or directly 
competitive domestic article that such represented firms and/or workers 
account for and the basis for claiming that such firms and/or workers 
are representative of an industry; and
    (3) The names and locations of all other producers of the domestic 
article known to the petitioner;
    (c) Import data. Import data for at least each of the most recent 5 
full years that form the basis of the claim that the Canadian or Mexican 
article

[[Page 70]]

(70concerned is being imported in increased quantities in absolute 
terms;
    (d) Domestic production data. Data on total U.S. production of the 
domestic article for each full year for which data are provided pursuant 
to paragraph (c) of this section;
    (e) Data showing injury. Quantitative data indicating the nature and 
extent of injury to the domestic industry concerned:
    (1) With respect to serious injury, data indicating:
    (i) A significant idling of production facilities in the industry, 
including data indicating plant closings or the underutilization of 
production capacity;
    (ii) The inability of a significant number of firms to carry out 
domestic production operations at a reasonable level of profit; and
    (iii) Significant unemployment or underemployment within the 
industry; and/or
    (2) With respect to the threat of serious injury, data relating to:
    (i) A decline in sales or market share, a higher and growing 
inventory (whether maintained by domestic producers, importers, 
wholesalers, or retailers), and a downward trend in production, profits, 
wages, productivity, or employment (or increasing underemployment);
    (ii) The extent to which firms in the industry are unable to 
generate adequate capital to finance the modernization of their domestic 
plants and equipment, or are unable to maintain existing levels of 
expenditures for research and development;
    (iii) The extent to which the U.S. market is the focal point for the 
diversion of exports of the article concerned by reason of restraints on 
exports of such article to, or on imports of such article into, third 
country markets; and
    (3) Changes in the level of prices, production, and productivity.
    (f) Cause of injury. An enumeration and description of the causes 
believed to be resulting in the injury, or threat thereof, described 
under paragraph (e) of this section, and a statement regarding the 
extent to which increased imports of the Canadian or Mexican article are 
believed to be such a cause, supported by pertinent data;
    (g) Relief sought and purpose thereof. A statement describing the 
import relief sought, including the type, amount, and duration, and the 
specific purposes therefor, which may include facilitating the orderly 
transfer of resources to more productive pursuits, enhancing 
competitiveness, or other means of adjustment to new conditions of 
competition;
    (h) Efforts to compete. A statement on the efforts being taken, or 
planned to be taken, or both, by firms and workers in the industry to 
make a positive adjustment to import competition.
    (i) Critical circumstances. If the petition alleges the existence of 
critical circumstances, a statement setting forth the basis for the 
belief that there is clear evidence that increased imports (either 
actual or relative to domestic production) of the article are a 
substantial cause of serious injury, or the threat thereof, to the 
domestic industry, and that delay in taking action would cause damage to 
that industry that would be difficult to repair, and a statement 
concerning the provisional relief requested and the basis therefor.

[60 FR 16, Jan. 3, 1995]

Sec. 206.35  Time for determinations, reporting.

    (a) In general. The Commission will make its determination with 
respect to injury within 120 days after the date on which the 
investigation is initiated. The Commission will make its report to the 
President no later than 30 days after the date on which its 
determination is made.
    (b) Perishable agricultural product. In the case of a request in a 
petition for provisional relief with respect to a perishable 
agricultural product that has been the subject of monitoring by the 
Commission, the Commission will report its determination and any finding 
to the President not later than 21 days after the date on which the 
request for provisional relief is received.
    (c) Critical circumstances. If petitioner alleges the existence of 
critical circumstances in the petition, the Commission will report its 
determination

[[Page 71]]

(71regarding such allegation and any finding on or before the 60th day 
after such filing date.

[60 FR 17, Jan. 3, 1995]

Sec. 206.36  Public report.

    Upon making a report to the President of the results of an 
investigation to which this subpart D relates, the Commission will make 
such report public (with the exception of information which the 
Commission determines to be confidential) and cause a summary thereof to 
be published in the Federal Register.



Subpart E--Investigations for Relief From Market Disruption

Sec. 206.41  Applicability of subpart.

    This subpart E applies specifically to investigations under section 
406(a) of the Trade Act. For other applicable rules, see subpart A of 
this part and part 201 of this chapter.

Sec. 206.42  Who may file a petition.

    A petition under this subpart E may be filed by an entity, including 
a trade association, firm, certified or recognized union, or group of 
workers, that is representative of a domestic industry producing an 
article with respect to which there are imports of a like or directly 
competitive article which is the product of a Communist country, which 
imports, allegedly, are increasing rapidly, either absolutely or 
relative to domestic production, so as to be a significant cause of a 
material injury, or the threat thereof, to such domestic industry.

Sec. 206.43  Contents of petition.

    A petition under this subpart E shall include specific information 
in support of the claim that imports of an article that are the product 
of a Communist country which are like or directly competitive with an 
article produced by a domestic industry, are increasing rapidly, either 
absolutely or relative to domestic production, so as to be a significant 
cause of material injury, or the threat thereof, to such domestic 
industry. In addition, such petition shall, to the extent practicable, 
include the following information:
    (a) Product description. The name and description of the imported 
article concerned, specifying the United States tariff provision under 
which such article is classified and the current tariff treatment 
thereof, and the name and description of the like or directly 
competitive domestic article concerned;
    (b) Representativeness. (1) The names and addresses of the firms 
represented in the petition and/or the firms employing or previously 
employing the workers represented in the petition and the locations of 
their establishments in which the domestic article is produced; (2) the 
percentage of domestic production of the like or directly competitive 
domestic article that such represented firms and/or workers account for 
and the basis for asserting that petitioner is representative of an 
industry; and (3) the names and locations of all other producers of the 
domestic article known to the petitioner;
    (c) Import data. Import data for at least each of the most recent 5 
full years which form the basis of the claim that imports from a 
Communist country of an article like or directly competitive with the 
article produced by the domestic industry concerned are increasing 
rapidly, either absolutely or relative to domestic production;
    (d) Domestic production data. Data on total U.S. production of the 
domestic article for each full year for which data are provided pursuant 
to paragraph (c) of this section;
    (e) Data showing injury. Quantitative data indicating the nature and 
extent of injury to the domestic industry concerned:
    (1) With respect to material injury, data indicating:
    (i) An idling of production facilities in the industry, including 
data indicating plant closings or the underutilization of production 
capacity;
    (ii) The inability of a number of firms to carry out domestic 
production operations at a reasonable level of profit; and
    (iii) Unemployment or underemployment within the industry; and/or
    (2) With respect to the threat of material injury, data relating to:
    (i) A decline in sales or market share, a higher and growing 
inventory

[[Page 72]]

(72(whether maintained by domestic producers, importers, wholesalers, or 
retailers), and a downward trend in production, profits, wages, or 
employment (or increasing underemployment);
    (ii) The extent to which firms in the industry are unable to 
generate adequate capital to finance the modernization of their domestic 
plants and equipment, or are unable to maintain existing levels of 
expenditures for research and development; and
    (iii) The extent to which the U.S. market is the focal point for the 
diversion of exports of the article concerned by reason of restraints on 
exports of such article to, or on imports of such article into, third 
country markets;
    (f) Cause of injury. An enumeration and description of the causes 
believed to be resulting in the material injury, or threat thereof, 
described in paragraph (e) of this section; information relating to the 
effect of imports of the subject merchandise on prices in the United 
States for like or directly competitive articles; evidence of disruptive 
pricing practices, or other efforts to unfairly manage trade patterns; 
and a statement regarding the extent to which increased imports, either 
actual or relative to domestic production, of the imported article are 
believed to be such a cause, supported by pertinent data;
    (g) Relief sought and purpose thereof. A statement describing the 
import relief sought.

Sec. 206.44  Time for reporting.

    The Commission will make its report to the President at the earliest 
practical time, but not later than 3 months after the date on which the 
petition is filed, the request or resolution is received, or the motion 
is adopted, as the case may be.

Sec. 206.45  Public report.

    Upon making a report to the President of the results of an 
investigation to which this subpart E relates, the Commission will make 
such report public (with the exception of information which the 
Commission determines to be confidential) and cause a summary thereof to 
be published in the Federal Register.



Subpart F--Monitoring; Advice As to Effect of Extension, Reduction, Modification, or Termination of Relief Action

    Source: 60 FR 10, Jan. 3, 1995, unless otherwise noted.

Sec. 206.51  Applicability of subpart.

    This subpart F applies specifically to investigations under section 
204 of the Trade Act. For other applicable rules, see subpart A of this 
part and part 201 of this chapter.

Sec. 206.52  Monitoring.

    (a) In general. As long as any import relief imposed by the 
President pursuant to section 203 of the Trade Act remains in effect, 
the Commission will monitor developments with respect to the domestic 
industry, including the progress and specific efforts made by workers 
and firms in the industry to make a positive adjustment to import 
competition.
    (b) Reports. Whenever the initial period of import relief, or any 
extension thereof, exceeds three (3) years, the Commission will submit a 
report on the results of such monitoring to the President and the 
Congress. Such report will be submitted not later than the date which is 
the mid-point of the initial period of import relief, or any extension 
thereof. In the course of preparing each such report, the Commission 
will hold a hearing at which interested persons will be given a 
reasonable opportunity to be present, to produce evidence, and to be 
heard.

Sec. 206.53  Investigations to advise the President as to the probable 
          economic effect of reduction, modification, or termination of 
          action.

    Upon the request of the President, the Commission will conduct an 
investigation for the purpose of gathering information in order that it 
might advise the President of its judgment as to the probable economic 
effect on the industry concerned of any reduction, modification, or 
termination of the action taken under section 203 of the Trade Act which 
is under consideration.

[[Page 73]]

(73

Sec. 206.54  Investigations with respect to extension of action.

    (a) Institution of investigations. Upon the request of the 
President, or upon petition on behalf of the industry concerned, the 
Commission will investigate to determine whether an action taken under 
section 203 of the Trade Act continues to be necessary to prevent or 
remedy serious injury and whether there is evidence that the industry is 
making a positive adjustment to import competition.
    (b) Who may file a petition. A petition under this Sec. 206.54 may 
be filed by an entity, including a trade association, firm, certified or 
recognized union, or group of workers, which is representative of the 
industry producing the domestic article concerned in the investigation 
of the Commission which resulted in the imposition by the President of 
the import relief action.
    (c) Time for filing. Any petition filed on behalf of an industry for 
a determination under this Sec. 206.54 must be filed with the Commission 
not earlier than the date which is 9 months, and not later than the date 
which is 6 months, before the date any action taken under section 203 of 
the Trade Act is to terminate.
    (d) Contents of petition. A petition under this Sec. 206.54 shall 
include the following information, to the extent that such information 
is publicly available from governmental or other sources, or best 
estimates and the basis therefor if such information is not available:
    (1) Identification of relief action. An identification of the action 
under section 203, or portion of such action, for which a determination 
under this Sec. 206.54 is sought;
    (2) Representativeness. (i) The names and addresses of the firms 
represented in the petition and/or the firms employing or previously 
employing the workers represented in the petition and the locations of 
their establishments in which the domestic article is produced;
    (ii) The percentage of domestic production of the like or directly 
competitive domestic article that such represented firms and/or workers 
account for and the basis for claiming that such firms and/or workers 
are representative of an industry; and
    (iii) The names and locations of all other producers of the domestic 
article known to the petitioner;
    (3) Import data. Import data on the foreign article concerned for 
each full year since action was taken under section 203 of the Trade 
Act, starting with the year in which action was taken;
    (4) Domestic production data. Data on total U.S. production of the 
domestic article concerned for each year for which data are provided 
pursuant to paragraph (d)(3) of this section;
    (5) Efforts to adjust. Specific information in support of the claim 
that action under section 203 of the Trade Act continues to be necessary 
to prevent or remedy serious injury and that there is evidence that the 
industry is making a positive adjustment to import competition.
    (e) Limited disclosure of certain confidential business information 
under administrative protective order. Upon receipt of a timely 
application filed by an authorized applicant, the Secretary shall make 
available to an authorized applicant under administrative protective 
order all confidential business information contained in Commission 
memoranda and reports and in written submissions filed with the 
Commission at any time during an investigation under this section with 
respect to an article that was the subject of an affirmative Commission 
determination under section 202 of the Trade Act (except privileged 
information, classified information, and specific information of a type 
which there is a clear and compelling need to withhold from disclosure). 
Such disclosure shall be made in the manner provided for and in 
accordance with the procedures set forth in Sec. 206.17. The provisions 
in paragraphs (d) and (e) of Sec. 206.17 relating to Commission 
responses to a breach of an administrative protective order and breach 
procedure shall apply with respect to orders issued under this 
paragraph.
    (f) Time for reporting. The Commission will make its report to the 
President at the earliest practical time, but not later than 60 days 
before the action under section 203 of the Trade Act is to terminate, 
unless the President specifies a different date.

[[Page 74]]

(74
    (g) Public report. Upon making a report to the President of the 
results of an investigation to which this Sec. 206.54 relates, the 
Commission will make such report public (with the exception of 
information which the Commission determines to be confidential) and 
cause a summary thereof to be published in the Federal Register.

Sec. 206.55  Investigations to evaluate the effectiveness of relief.

    (a) Investigation. After any action taken under section 203 has 
terminated, the Commission will conduct an investigation for the purpose 
of evaluating the effectiveness of the relief action in facilitating 
positive adjustment by the domestic industry to import competition, 
consistent with the reasons set out by the President in the report 
submitted to the Congress under section 203(b) of the Trade Act.
    (b) Hearing. In the course of such investigation, the Commission 
will hold a hearing at which interested persons will be given an 
opportunity to be present, to produce evidence, and to be heard.
    (c) Time for reporting. The Commission will submit its report to the 
President and to the Congress by no later than the 180th day after the 
day on which the action terminated.



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





Sec.
207.1  Applicability of part.

                      Subpart A--General Provisions

207.2  Definitions applicable to Part 207.
207.3  Service, filing, and certification of documents.
207.4  The record.
207.5  Ex parte meetings.
207.6  Reports of progress of investigation.
207.7  Limited disclosure of certain business proprietary information 
          under administrative protective order.
207.8  Questionnaires to have the force of subpoenas; subpoena 
          enforcement.

                  Subpart B--Preliminary Determinations

207.10  Filing of petition with the Commission.
207.11  Contents of petition.
207.12  Notice of preliminary phase of investigation.
207.13  Cooperation with administering authority; preliminary phase of 
          investigation.
207.14  Negative petition determination.
207.15  Written briefs and conference.
207.16  [Reserved]
207.17  Staff report.
207.18  Notice of preliminary determination.

       Subpart C--Final Determinations, Short Life Cycle Products

207.20  Investigative activity following preliminary determination.
207.21  Final phase notice of scheduling.
207.22  Prehearing and final staff reports.
207.23  Prehearing brief.
207.24  Hearing.
207.25  Posthearing briefs.
207.26  Statements by nonparties.
207.27  Short life cycle products.
207.28  Anticircumvention.
207.29  Publication of notice of determination.
207.30  Comment on information.

    Subpart D--Terminated, Suspended, and Continued Investigations, 
 Investigations to Review Negotiated Agreements, and Investigations to 
                    Review Outstanding Determinations

207.40  Termination and suspension of investigation.
207.41  Commission review of agreements to eliminate the injurious 
          effect of subsidized imports or imports sold at less than fair 
          value.
207.42  Investigation continued upon request.
207.43  [Reserved]
207.44  Consolidation of investigations.
207.45  Investigation to review outstanding determination.
207.46  Investigations concerning certain countervailing duty orders.

                       Subpart E--Judicial Review

207.50  Judicial review.
207.51  Judicial review of denial of application for disclosure of 
          certain business proprietary information under administrative 
          protective order.

                          Subpart F--[Reserved]

 Subpart G--Implementing Regulations for the North American Free Trade 
                                Agreement

207.90  Scope.

[[Page 75]]

          (75
207.91  Definitions.
207.92  Procedures for commencing review of final determinations.
207.93  Protection of proprietary information during panel and committee 
          proceedings.
207.94  Protection of privileged information during panel and committee 
          proceedings.

 Procedures for Imposing Sanctions for Violation of the Provisions of a 
     Protective Order Issued During Panel and Committee Proceedings

207.100  Sanctions.
207.101  Reporting of prohibited act and commencement of investigation.
207.102  Initiation of proceedings.
207.103  Charging letter.
207.104  Response to charging letter.
207.105  Confidentiality.
207.106  Interim measures.
207.107  Motions.
207.108  Preliminary conference.
207.109  Discovery.
207.110  Subpoenas.
207.111  Prehearing conference.
207.112  Hearings.
207.113  The record.
207.114  Initial determination.
207.115  Petition for review.
207.116  Commission review on its own motion.
207.117  Review by Commission.
207.118  Role of the General Counsel in advising the Commission.
207.119  Reconsideration.
207.120  Public notice of sanctions.

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

    Source: 44 FR 76468, Dec. 26, 1979, unless otherwise noted.

Sec. 207.1   Applicability of part.

    Part 207 applies to proceedings of the Commission under section 516A 
and title VII of the Tariff Act of 1930 (19 U.S.C. 1303, 1516A and 1671-
1677n) (the Act), other than investigations under section 783 (19 U.S.C. 
1677n), which will be conducted pursuant to procedures specified by the 
Office of the United States Trade Representative.

[61 FR 37829, July 22, 1996]



Subpart A--General Provisions

    Source: 56 FR 11923, Mar. 21, 1991, unless otherwise noted.

Sec. 207.2  Definitions applicable to part 207.

    For the purposes of this part, the following terms have the meanings 
hereby assigned to them:
    (a) The term the Act means: The Tariff Act of 1930, as amended.
    (b) The term administering authority means: The Secretary of 
Commerce, or any other officer of the United States to whom the 
responsibility for carrying out the duties of the administering 
authority under section 303 or title VII of the Act is transferred by 
law.
    (c) The term Director means: The incumbent Commission Director or 
Acting Director, Office of Operations, or, in the absence of either, a 
person designated by the Director.
    (d) The term ex parte meeting means: Any communication between
    (1) Any interested party or other person providing factual 
information in connection with an investigation, and
    (2) Any Commissioner, or member of a Commissioner's staff, in which 
less than all parties participate, and which is not a hearing or 
conference for which an opportunity to participate is given to the 
parties.
    (e) The term injury means: Material injury or threat of material 
injury to an industry in the United States, or material retardation of 
the establishment of an industry in the United States, by reason of 
imports into the United States of subject merchandise which is found by 
the administering authority to be subsidized, or sold, or likely to be 
sold, at less than its fair value.
    (f) The term record means:
    (1) All information presented to or obtained by the Commission 
during the course of an investigation, including completed 
questionnaires, any information obtained from the administering 
authority, written communications from any person filed with the 
Secretary, staff reports, all governmental memoranda pertaining to the 
case, and the record of ex parte meetings required to be kept pursuant 
to section 777(a)(3) of the Act; and
    (2) A copy of all Commission orders and determinations, all 
transcripts or records of conferences or hearings, and all notices 
published in the Federal Register concerning the investigation.
    (g) The term coalition or trade association as used in an 
investigation referred to in section 771(9)(G) of the Act means a 
coalition or trade association which

[[Page 76]]

(76is representative of domestic processors, domestic processors and 
producers, or domestic processors and growers.
[44 FR 76468, Dec. 26, 1979, as amended at 60 FR 21, Jan. 3, 1995]

Sec. 207.3  Service, filing, and certification of documents.

    (a) Certification. Any person submitting factual information on 
behalf of the petitioner or any other interested party for inclusion in 
the record, and any person submitting a response to a Commission 
questionnaire, must certify that such information is accurate and 
complete to the best of the submitter's knowledge.
    (b) Service. Any party submitting a document for inclusion in the 
record of the investigation shall, in addition to complying with 
Sec. 201.8 of this chapter, serve a copy of each such document on all 
other parties to the investigation in the manner prescribed in 
Sec. 201.16 of this chapter. If a document is filed before the 
Secretary's issuance of the service list provided for in Sec. 201.11 of 
this chapter or the administrative protective order list provided for in 
Sec. 207.7, the document need not be accompanied by a certificate of 
service, but the document shall be served on all appropriate parties 
within two (2) days of the issuance of the service list or the 
administrative protective order list and a certificate of service shall 
then be filed. Notwithstanding Sec. 201.16 of this chapter, petitions, 
briefs, and testimony filed by parties pursuant to Secs. 207.10, 207.15, 
207.23, 207.24, and 207.25 shall be served by hand or, if served by 
mail, by overnight mail or its equivalent. Failure to comply with the 
requirements of this rule may result in removal from status as a party 
to the investigation. The Commission shall make available to all parties 
to the investigation a copy of each document, except transcripts of 
conferences and hearings, business proprietary information, privileged 
information, and information required to be served under this section, 
placed in the record of the investigation by the Commission.
    (c) Filing. Documents to be filed with the Commission must comply 
with applicable rules, including Sec. 201.8 of this chapter. If the 
Commission establishes a deadline for the filing of a document, and the 
submitter includes business proprietary information in the document, the 
submitter is to file and, if the submitter is a party, serve the 
business proprietary version of the document on the deadline and may 
file and serve the nonbusiness proprietary version of the document no 
later than one business day after the deadline for filing the document. 
The business proprietary version shall enclose all business proprietary 
information in brackets and have the following warning marked on every 
page: ``Bracketing of BPI not final for one business day after date of 
filing.'' The bracketing becomes final one business day after the date 
of filing of the document, i.e., at the same time as the nonbusiness 
proprietary version of the document is due to be filed. Until the 
bracketing becomes final, recipients of the document may not divulge any 
part of the contents of the document to anyone not subject to the 
administrative protective order issued in the investigation. If the 
submitter discovers it has failed to bracket correctly, the submitter 
may file a corrected version or portion of the business proprietary 
document at the same time as the nonbusiness proprietary version is 
filed. No changes, including typographical changes, to the document 
other than bracketing and deletion of business proprietary information 
are permitted after the deadline unless an extension of time is granted 
to file an amended document pursuant to Sec. 201.14(b)(2) of this 
chapter. Failure to comply with this paragraph may result in the 
striking from the record of all or a portion of a submitter's document.

[44 FR 76468, Dec. 26, 1979, as amended at 61 FR 37829, July 22, 1996]

Sec. 207.4  The record.

    (a) Maintenance of the record. The Secretary shall maintain the 
record of each investigation conducted by the Commission pursuant to 
title VII of the Act. The record shall be maintained contemporaneously 
with each actual filing in the record. It shall be divided into public 
and nonpublic sections. The Secretary shall also maintain a 
contemporaneous index of all

[[Page 77]]

(77materials filed in the record. All material properly filed with the 
Secretary shall be placed in the record. The Commission need not 
consider in its determinations or include in the record any material 
that is not filed with the Secretary. All material which is placed in 
the record shall be maintained in the public record, with the exception 
of material which is privileged, or which is business proprietary 
information submitted in accordance with Sec. 201.6 of this chapter. 
Privileged and business proprietary material shall be maintained in the 
nonpublic record.
    (b) Audits. The Commission may in its discretion verify information 
received in the course of an investigation. To the extent a verification 
results in new or different information, the Commission shall place such 
information on the record.
    (c) Materials provided by the administering authority. Materials 
received by the Commission from the administering authority shall be 
placed on the Commission's record and shall be designated by the 
Commission as public or nonpublic in conformity with the applicable 
designation of the administering authority. Any requests to the 
Commission either to permit access to such materials or to release such 
materials shall be referred to the administering authority for its 
advice.

[44 FR 76468, Dec. 26, 1979, as amended at 61 FR 37829, July 22, 1996]

Sec. 207.5  Ex parte meetings.

    There shall be included in the record of each investigation a record 
of ex parte meetings as required by section 777(a)(3) of the Act. The 
record of each ex parte meeting shall include the identity of the 
persons present at the meeting, the date, time, and place of the 
meeting, and a summary of the matters discussed or submitted.

Sec. 207.6  Reports of progress of investigation.

    The Secretary shall upon the request of a party inform the parties 
to an investigation of the progress of that investigation. No such 
progress report, however, shall be issued by the Secretary less than 
thirty (30) days after the date of publication of commencement of an 
investigation by notice in the Federal Register, nor shall the Secretary 
be required to issue a report on the progress of any investigation less 
than thirty (30) days after the date of issuance of the previous such 
report with respect to the same investigation. A report shall be limited 
to a statement of what official actions the Commission has taken since 
the previous such report, if any.

Sec. 207.7  Limited disclosure of certain business proprietary 
          information under administrative protective order.

    (a)(1) Disclosure. Upon receipt of a timely application filed by an 
authorized applicant, as defined in paragraph (a)(3) of this section, 
which describes in general terms the information requested, and sets 
forth the reasons for the request (e.g., all business proprietary 
information properly disclosed pursuant to this section for the purpose 
of representing an interested party in investigations pending before the 
Commission), the Secretary shall make available all business proprietary 
information contained in Commission memoranda and reports and in written 
submissions filed with the Commission at any time during the 
investigation (except nondisclosable confidential business information) 
to the authorized applicant under an administrative protective order 
described in paragraph (b) of this section. The term ``business 
proprietary information'' has the same meaning as the term 
``confidential business information'' as defined in Sec. 201.6 of this 
chapter.
    (2) Application. An application under paragraph (a)(1) of this 
section must be made by an authorized applicant on a form adopted by the 
Secretary or a photocopy thereof. An application on behalf of a 
petitioner, a respondent, or another party must be made no later than 
the time that entries of appearance are due pursuant to Sec. 201.11 of 
this chapter. In the event that two or more authorized applicants 
represent one interested party who is a party to the investigation, the 
authorized applicants must select one of their number to be lead 
authorized applicant. The lead authorized applicant's application must 
be filed no later than the time that entries of appearance are due. 
Provided

[[Page 78]]

(78that the application is accepted, the lead authorized applicant shall 
be served with business proprietary information pursuant to paragraph 
(f) of this section. The other authorized applicants representing the 
same party may file their applications after the deadline for entries of 
appearance but at least five (5) days before the deadline for filing 
posthearing briefs in the investigation, or the deadline for filing 
briefs in the preliminary phase of an investigation, and shall not be 
served with business proprietary information.
    (3) Authorized applicant. (i) Only an authorized applicant may file 
an application under this subsection. An authorized applicant is:
    (A) An attorney for an interested party which is a party to the 
investigation;
    (B) A consultant or expert under the direction and control of a 
person under paragraph (a)(3)(i)(A) of this section;
    (C) A consultant or expert who appears regularly before the 
Commission and who represents an interested party which is a party to 
the investigation; or
    (D) A representative of an interested party which is a party to the 
investigation, if such interested party is not represented by counsel.
    (ii) In addition, an authorized applicant must not be involved in 
competitive decisionmaking for an interested party which is a party to 
the investigation. Involvement in ``competitive decisionmaking'' 
includes past, present, or likely future activities, associations, and 
relationships with an interested party which is a party to the 
investigation that involve the prospective authorized applicant's advice 
or participation in any of such party's decisions made in light of 
similar or corresponding information about a competitor (pricing, 
product design, etc.).
    (4) Forms and determinations. (i) The Secretary may adopt, from time 
to time, forms for submitting requests for disclosure pursuant to an 
administrative protective order incorporating the terms of this rule. 
The Secretary shall determine whether the requirements for release of 
information under this rule have been satisfied. This determination 
shall be made concerning specific business proprietary information as 
expeditiously as possible but in no event later than fourteen (14) days 
from the filing of the information, or seven (7) days in the preliminary 
phase of an investigation, except if the submitter of the information 
objects to its release or the information is unusually voluminous or 
complex, in which case the determination shall be made within thirty 
(30) days from the filing of the information, or ten (10) days in the 
preliminary phase of an investigation. The Secretary shall establish a 
list of parties whose applications have been granted. The Secretary's 
determination shall be final for purposes of review by the U.S. Court of 
International Trade under section 777(c)(2) of the Act.
    (ii) Should the Secretary determine pursuant to this section that 
materials sought to be protected from public disclosure by a person do 
not constitute business proprietary information or were not required to 
be served under paragraph (f) of this section, then the Secretary shall, 
upon request, issue an order on behalf of the Commission requiring the 
return of all copies of such materials served in accordance with 
paragraph (f) of this section.
    (iii) The Secretary shall release business proprietary information 
only to an authorized applicant whose application has been accepted and 
who presents the application along with adequate personal 
identification; or a person described in paragraph (b)(1)(iv) of this 
section who presents a copy of the statement referred to in that 
paragraph along with adequate personal identification.
    (iv) An authorized applicant granted access to business proprietary 
information in the preliminary phase of an investigation may, subject to 
paragraph (c) of this section, retain such business proprietary 
information during any final phase of that investigation, provided that 
the authorized applicant has not lost his authorized applicant status 
(e.g., by terminating his representation of an interested party who is a 
party). When retaining business proprietary information pursuant to this 
paragraph, the authorized applicant need not file a new application in 
the final phase of the investigation.
    (b) Administrative protective order. The administrative protective 
order under

[[Page 79]]

(79which information is made available to the authorized applicant shall 
require him to submit to the Secretary a personal sworn statement that, 
in addition to such other conditions as the Secretary may require, he 
shall:
    (1) Not divulge any of the business proprietary information obtained 
under the administrative protective order and not otherwise available to 
him, to any person other than
    (i) Personnel of the Commission concerned with the investigation,
    (ii) The person or agency from whom the business proprietary 
information was obtained,
    (iii) A person whose application for access to business proprietary 
information under the administrative protective order has been granted 
by the Secretary, and
    (iv) Other persons, such as paralegals and clerical staff, who are 
employed or supervised by the authorized applicant; who have a need 
thereof in connection with the investigation; who are not involved in 
competitive decisionmaking for an interested party which is a party to 
the investigation; and who have submitted to the Secretary a signed 
statement in a form approved by the Secretary that they agree to be 
bound by the administrative protective order (the authorized applicant 
shall be deemed responsible for such persons' compliance with the 
administrative protective order);
    (2) Use such business proprietary information solely for the 
purposes of the Commission investigation then in progress or for 
judicial or other review of such Commission investigation;
    (3) Not consult with any person not described in paragraph (b)(1) of 
this section concerning such business proprietary information without 
first having received the written consent of the Secretary and the party 
or the attorney of the party from whom such business proprietary 
information was obtained;
    (4) Whenever materials (e.g., documents, computer disks, etc.) 
containing such business proprietary information are not being used, 
store such material in a locked file cabinet, vault, safe, or other 
suitable container;
    (5) Serve all materials containing business proprietary information 
as directed by the Secretary and pursuant to paragraph (f) of this 
section;
    (6) Transmit all materials containing business proprietary 
information with a cover sheet identifying the materials as containing 
business proprietary information;
    (7) Comply with the provisions of this section;
    (8) Make true and accurate representations in the authorized 
applicant's application and promptly notify the Secretary of any changes 
that occur after the submission of the application and that affect the 
representations made in the application (e.g., change in personnel 
assigned to the investigation);
    (9) Report promptly and confirm in writing to the Secretary any 
breach of the administrative protective order; and
    (10) Acknowledge that breach of the administrative protective order 
may subject the authorized applicant to such sanctions or other actions 
as the Commission deems appropriate.
    (c) Final disposition of material released under administrative 
protective order. At such date as the Secretary may determine 
appropriate for particular data, each authorized applicant shall return 
or destroy all copies of materials released to authorized applicants 
pursuant to this section and all other materials containing business 
proprietary information, such as charts or notes based on any such 
information received under administrative protective order, and file 
with the Secretary a certificate attesting to his personal, good faith 
belief that all copies of such material have been returned or destroyed 
and no copies of such material have been made available to any person to 
whom disclosure was not specifically authorized.
    (d) Commission responses to a breach of administrative protective 
order. A breach of an administrative protective order may subject an 
offender to:
    (1) Disbarment from practice in any capacity before the Commission 
along with such person's partners, associates, employer, and employees, 
for up to seven years following publication of a determination that the 
order has been breached;

[[Page 80]]

(80
    (2) Referral to the United States Attorney;
    (3) In the case of an attorney, accountant, or other professional, 
referral to the ethics panel of the appropriate professional 
association;
    (4) Such other administrative sanctions as the Commission determines 
to be appropriate, including public release of or striking from the 
record any information or briefs submitted by, or on behalf of, the 
offender or the party represented by the offender, denial of further 
access to business proprietary information in the current or any future 
investigations before the Commission, and issuance of a public or 
private letter of reprimand; and
    (5) Such other actions, including but not limited to, a warning 
letter, as the Commission determines to be appropriate.
    (e) Breach investigation procedure. (1) The Commission shall 
determine whether any person has violated an administrative protective 
order, and may impose sanctions or other actions in accordance with 
paragraph (d) of this section. At any time within sixty (60) days of the 
later of the date on which the alleged violation occurred or, as 
determined by the Commission, could have been discovered through the 
exercise of reasonable and ordinary care, or the completion of an 
investigation conducted under subpart B or C of this part, the 
Commission may commence an investigation of any breach of an 
administrative protective order alleged to have occurred at any time 
during the pendency of the investigation, including all appeals, 
remands, and subsequent appeals. Whenever the Commission has reason to 
believe that a person may have breached an administrative protective 
order issued pursuant to this section, the Secretary shall issue a 
letter informing such person that the Commission has reason to believe a 
breach has occurred and that the person has a reasonable opportunity to 
present his views on whether a breach has occurred. If subsequently the 
Commission determines that a breach has occurred and that further 
investigation is warranted, the Secretary shall issue a letter informing 
such person of that determination and that the person has a reasonable 
opportunity to present his views on whether mitigating circumstances 
exist and on the appropriate sanction to be imposed, but no longer on 
whether a breach has occurred. Once such person has been afforded a 
reasonable opportunity to present his views, the Commission shall 
determine what sanction if any to impose.
    (2) Where the sanction imposed is a private letter of reprimand, the 
Secretary shall expunge the sanction from the recipient's record two (2) 
years from the date of issuance of the sanction, provided that
    (i) The recipient has not received another unexpunged sanction 
pursuant to this section at any time prior to the end of the two year 
period, and
    (ii) The recipient is not the subject of an investigation for 
possible breach of administrative protective order under this section at 
the end of the two year period. Upon the completion of such a pending 
breach investigation without the issuance of a sanction, the original 
sanction shall be expunged. The Secretary shall notify a sanction 
recipient in the event that the sanction is expunged.
    (f) Service. (1) Any party filing written submissions which include 
business proprietary information to the Commission during an 
investigation shall at the same time serve complete copies of such 
submissions upon all authorized applicants specified on the list 
established by the Secretary pursuant to paragraph (a)(4) of this 
section, and, except as provided in Sec. 207.3, a nonbusiness 
proprietary version on all other parties. All such submissions must be 
accompanied by a certificate attesting that complete copies of the 
submission have been properly served. In the event that a submission is 
filed before the Secretary's list is established, the document need not 
be accompanied by a certificate of service, but the submission shall be 
served within two (2) days of the establishment of the list and a 
certificate of service shall then be filed.
    (2) If a party's request under paragraph (g) of this section is 
granted, the Secretary shall accept the nondisclosable confidential 
business information into the record. The party shall serve the 
submission containing

[[Page 81]]

(81such information in accordance with the requirements of Sec. 207.3(b) 
and paragraph (f)(1) of this section, with the information redacted from 
the copies served.
    (3) The Secretary shall not accept for filing into the record of an 
investigation submissions filed without a proper certificate of service. 
Failure to comply with paragraph (f) of this section may result in 
denial of party status and such sanctions as the Commission deems 
appropriate. Business proprietary information in submissions must be 
dealt with as required by Sec. 207.3(c).
    (g) Exemption from disclosure--(1) In general. Any person may 
request exemption from the disclosure of business proprietary 
information under administrative protective order, whether the person 
desires to include such information in a petition filed under 
Sec. 207.10, or any other submission to the Commission during the course 
of an investigation. Such a request shall only be granted if the 
Secretary finds that such information is nondisclosable confidential 
business information as defined in Sec. 201.6(a)(2) of this chapter. The 
request will be granted or denied not later than thirty (30) days (ten 
(10) days in a preliminary phase investigation) after the date on which 
the request is filed.
    (2) Request for exemption. A request for exemption from disclosure 
must be filed with the Secretary in writing with the reasons therefor. 
At the same time as the request is filed, one copy of the business 
proprietary information in question must be lodged with the Secretary 
solely for the purpose of obtaining a determination as to the request. 
The business proprietary information for which exemption from disclosure 
is sought shall remain the property of the requester, and shall not 
become or be incorporated into any agency record until such time as the 
request is granted. A request should, when possible, be filed two 
business days prior to the deadline, if any, for filing the document in 
which the information for which exemption from disclosure is sought is 
proposed to be included. If the request is denied, the copy of the 
information lodged with the Secretary shall promptly be returned to the 
requester. Such a request shall only be granted if the Secretary finds 
that such information is privileged information, classified information, 
or specific information of a type for which there is a clear and 
compelling need to withhold from disclosure. The Secretary shall 
promptly notify the requester as to whether the request has been 
approved or denied.
    (3) Procedure if request is approved. If the request is approved, 
the person shall file three versions of the submission containing the 
nondisclosable confidential business information in question. One 
version shall contain all business proprietary information, bracketed in 
accordance with Sec. 201.6 of this chapter and Sec. 207.3. The other two 
versions shall conform to and be filed in accordance with the 
requirements of Sec. 201.6 of this chapter and Sec. 207.3, except that 
the specific information as to which exemption from disclosure was 
granted shall be redacted from the submission.
    (4) Procedure if request is denied. If the request is denied, the 
copy of the information lodged with the Secretary shall promptly be 
returned to the requester. The requester may file the submission in 
question without that information, in accordance with the requirements 
of Sec. 207.3.

[44 FR 76468, Dec. 26, 1979, as amended at 59 FR 66723, Dec. 28, 1994; 
61 FR 37829, July 22, 1996]

Sec. 207.8  Questionnaires to have the force of subpoenas; subpoena 
          enforcement.

    Any questionnaire issued by the Commission in connection with any 
investigation under title VII of the Act may be issued as a subpoena and 
subscribed by a Commissioner, after which it shall have the force and 
effect of a subpoena authorized by the Commission. Whenever any party or 
any other person fails to respond adequately to such a subpoena or 
whenever a party or any other person refuses or is unable to produce 
information requested in a timely manner and in the form required, or 
otherwise significantly impedes an investigation, the Commission may:
    (a) Use the facts otherwise available in making its determination;

[[Page 82]]

(82
    (b) Seek judicial enforcement of the subpoena pursuant to 19 U.S.C. 
1333;
    (c) Make inferences adverse to such person's position, if such 
person is an interested party that has failed to cooperate by not acting 
to the best of its ability to comply with a request for information; and
    (d) Take such other actions as necessary to obtain needed 
information.

[61 FR 37831, July 22, 1996]



Subpart B--Preliminary Determinations

    Source: 56 FR 11927, Mar. 21, 1991, unless otherwise noted.

Sec. 207.10  Filing of petition with the Commission.

    (a) Filing of the petition. Any interested party who files a 
petition with the administering authority pursuant to section 702(b) or 
section 732(b) of the Act in a case in which a Commission determination 
under title VII of the Act is required, shall file copies of the 
petition, including all exhibits, appendices, and attachments thereto, 
pursuant to Sec. 201.8 of this chapter, with the Secretary on the same 
day the petition is filed with the administering authority. If the 
petition complies with the provisions of Sec. 207.11, it shall be deemed 
to be properly filed on the date on which the requisite number of copies 
of the petition is received by the Secretary. The Secretary shall notify 
the administering authority of that date. Notwithstanding Sec. 201.11 of 
this chapter, a petitioner need not file an entry of appearance in the 
investigation instituted upon the filing of its petition, which shall be 
deemed an entry of appearance.
    (b) Service of the petition. (1)(i) The Secretary shall promptly 
notify a petitioner when, before the establishment of a service list 
under Sec. 207.7(a)(4), he or she approves an application under 
Sec. 207.7(a). When practicable, this notification shall be made by 
facsimile transmission. A copy of the petition including all business 
proprietary information shall then be served by petitioner on those 
approved applicants in accord with Sec. 207.3(b) within two (2) calendar 
days of the time notification is made by the Secretary.
    (ii) The petitioner shall serve persons enumerated on the list 
established by the Secretary pursuant to Sec. 207.7(a)(4) that have not 
been served pursuant to paragraph (b)(1)(i) of this section within two 
(2) calendar days of the establishment of the Secretary's list.
    (2) A copy of the petition omitting business proprietary information 
shall be served by petitioner on those persons enumerated on the list 
established by the Secretary pursuant to Sec. 201.11(d) of this chapter 
within two (2) calendar days of the establishment of the Secretary's 
list.
    (3) Service of the petition shall be attested by filing a 
certificate of service with the Commission.
    (c) Amendments and withdrawals; critical circumstances. (1) Any 
amendment or withdrawal of a petition shall be filed on the same day 
with both the Secretary and the administering authority, without regard 
to whether the requester seeks action only by one agency.
    (2) When not made in the petition, any allegations of critical 
circumstances under section 703 or section 733 of the Act shall be made 
in an amendment to the petition and shall be filed as early as possible. 
Critical circumstances allegations, whether made in the petition or in 
an amendment thereto, shall contain information reasonably available to 
petitioner concerning the factors enumerated in sections 705(b)(4)(A) 
and 735(b)(4)(A) of the Act.

[61 FR 37831, July 22, 1996]

Sec. 207.11  Contents of petition.

    (a) The petition shall be signed by the petitioner or its duly 
authorized officer, attorney, or agent, and shall set forth the name, 
address, and telephone number of the petitioner and any such officer, 
attorney, or agent, and the names of all representatives of petitioner 
who will appear in the investigation.
    (b)(1) The petition shall allege the elements necessary for the 
imposition of a duty under section 701(a) or section 731(a) of the Act 
and contain information reasonably available to the petitioner 
supporting the allegations.
    (2) The petition shall also include the following specific 
information, to the

[[Page 83]]

(83extent reasonably available to the petitioner:
    (i) Identification of the domestic like product(s) proposed by 
petitioner;
    (ii) A listing of all U.S. producers of the proposed domestic like 
product(s), including a street address, phone number, and contact 
person(s) for each producer;
    (iii) A listing of all U.S. importers of the subject merchandise, 
including street addresses and phone numbers for each importer;
    (iv) Identification of each product on which the petitioner requests 
the Commission to seek pricing information in its questionnaires; and
    (v) A listing of all sales or revenues lost by each petitioning firm 
by reason of the subject merchandise during the three years preceding 
filing of the petition.
    (3) The petition shall contain a certification that each item of 
information specified in paragraph (b)(2) of this section that the 
petition does not include was not reasonably available to the 
petitioner.
    (4) Petitioners are also advised to refer to the administering 
authority's regulations concerning the contents of petitions.

[61 FR 37831, July 22, 1996]

Sec. 207.12  Notice of preliminary phase of investigation.

    Upon receipt by the Commission of a petition under Sec. 207.10 or 
receipt of notice that the administering authority has commenced an 
investigation under section 702(a) or section 732(a) of the Act, the 
Director shall, as soon as practicable after consultation with the 
administering authority, institute an investigation and commence the 
preliminary phase of the investigation under section 703(a) or section 
733(a) of the Act and shall publish a notice to that effect in the 
Federal Register.

[61 FR 37832, July 22, 1996]

Sec. 207.13  Cooperation with administering authority; preliminary phase 
          of investigation.

    Subsequent to institution of an investigation pursuant to section 
207.12, the Director shall conduct such investigation as the Director 
deems appropriate. Information adduced in the investigation shall be 
placed on the record. The Director shall cooperate with the 
administering authority in its determination of the sufficiency of a 
petition and in its decision whether to permit any proposed amendment to 
a petition. Notwithstanding Secs. 201.11(c) and 201.14(b) of this 
chapter, late filings in the preliminary phase of an investigation shall 
be referred to the Director, who shall determine whether to accept such 
filing for good cause shown by the person making the filing.

[61 FR 37832, July 22, 1996]

Sec. 207.14  Negative petition determination.

    Upon receipt by the Commission of notice from the administering 
authority under section 702(d) or section 732(d) of the Act that the 
administering authority has made a negative petition determination under 
section 702(c)(3) or section 732(c)(3) of the Act, the investigation 
begun pursuant to Sec. 207.12 shall terminate. All persons who have 
received requests for information from the Director shall be notified of 
the termination.

[61 FR 37832, July 22, 1996]

Sec. 207.15  Written briefs and conference.

    Each party may submit to the Commission on or before a date 
specified in the notice of investigation issued pursuant to Sec. 207.12 
a written brief containing information and arguments pertinent to the 
subject matter of the investigation. Briefs shall be signed, shall 
include a table of contents, and shall contain no more than fifty (50) 
double spaced and single sided pages of textual material, on stationery 
measuring 8\1/2\ x 11 inches. Any person not a party may submit a brief 
written statement of information pertinent to the investigation within 
the time specified for the filing of briefs. In addition, the presiding 
official may permit persons to file within a specified time answers to 
questions or requests made by the Commission's staff. If he deems it 
appropriate, the Director shall hold a conference. The conference, if 
any, shall be held in accordance with the procedures in Sec. 201.13 of 
this chapter,

[[Page 84]]

(84except that in connection with its presentation a party may file 
witness testimony with the Secretary no later than three (3) days before 
the conference. The Director may request the appearance of witnesses, 
take testimony, and administer oaths.

Sec. 207.16  [Reserved]

Sec. 207.17  Staff report.

    Prior to the Commission's preliminary determination, the Director 
shall submit to the Commission a staff report. A public version of the 
staff report shall be made available to the public after the 
Commission's preliminary determination and a business proprietary 
version shall also be made available to persons authorized to receive 
business proprietary information under Sec. 207.7.

Sec. 207.18  Notice of preliminary determination.

    Whenever the Commission makes a preliminary determination, the 
Secretary shall serve copies of the determination and a public version 
of the staff report on the petitioner, other parties to the 
investigation, and the administering authority. The Secretary shall 
publish a notice of such determination in the Federal Register. If the 
Commission's determination is negative, or that imports are negligible, 
the investigation shall be terminated. If the Commission's determination 
is affirmative, the notice shall announce commencement of the final 
phase of the investigation.

[61 FR 37832, July 22, 1996]



Subpart C--Final Determinations, Short Life Cycle Products

    Source: 56 FR 11928, Mar. 21, 1991, unless otherwise noted.

Sec. 207.20  Investigative activity following preliminary determination.

    (a) If the Commission's preliminary determination is affirmative, 
the Director shall continue investigative activities pending notice by 
the administering authority of its preliminary determination under 
section 703(b) or section 733(b) of the Act.
    (b) The Director shall circulate draft questionnaires for the final 
phase of an investigation to parties to the investigation for comment. 
Any party desiring to comment on draft questionnaires shall submit such 
comments in writing to the Commission within a time specified by the 
Director.

[61 FR 37832, July 22, 1996]

Sec. 207.21  Final phase notice of scheduling.

    (a) Notice from the administering authority of an affirmative 
preliminary determination under section 703(b) or section 733(b) of the 
Act and notice from the administering authority of an affirmative final 
determination under section 705(a) or section 735(a) of the Act shall be 
deemed to occur on the date on which the transmittal letter of such 
determination is received by the Secretary from the administering 
authority or the date on which notice of such determination is published 
in the Federal Register, whichever shall first occur.
    (b) Upon receipt of notice from the administering authority of an 
affirmative preliminary determination under section 703(b) or section 
733(b) of the Act or, if the administering authority's preliminary 
determination is negative, notice of an affirmative final determination 
under section 705(a) or section 735(a) of the Act, the Commission shall 
publish in the Federal Register a Final Phase Notice of Scheduling.
    (c) If the administering authority's preliminary determination is 
negative, the Director shall continue such investigative activities as 
the Director deems appropriate pending a final determination by the 
administering authority under section 705(a) or section 735(a) of the 
Act.
    (d) Upon receipt by the Commission of notice from the administering 
authority of its final negative determination under section 705(a) or 
section 735(a) of the Act, the corresponding Commission investigation 
shall be terminated.

[61 FR 37832, July 22, 1996]

[[Page 85]]

(85

Sec. 207.22  Prehearing and final staff reports.

    (a) Prehearing staff report. The Director shall prepare and place in 
the record, prior to the hearing, a prehearing staff report containing 
information concerning the subject matter of the investigation. A 
version of the staff report containing business proprietary information 
shall be placed in the nonpublic record and made available to persons 
authorized to receive business proprietary information under Sec. 207.7, 
and a nonbusiness proprietary version of the staff report shall be 
placed in the public record.
    (b) Final staff report. After the hearing, the Director shall revise 
the prehearing staff report and submit to the Commission, prior to the 
Commission's final determination, a final version of the staff report. 
The final staff report is intended to supplement and correct the 
information contained in the prehearing staff report. A public version 
of the final staff report shall be made available to the public and a 
business proprietary version shall also be made available to persons 
authorized to receive business proprietary information under section 
207.7.

[56 FR 11927, Mar. 21, 1991, as amended at 60 FR 22, Jan. 3, 1995. 
Redesignated at 61 FR 37832, July 22, 1996]

Sec. 207.23  Prehearing brief.

    Each party who is an interested party shall submit to the 
Commission, no later than four (4) business days prior to the date of 
the hearing specified in the notice of scheduling, a prehearing brief. 
Prehearing briefs shall be signed and shall include a table of contents. 
The prehearing brief should present a party's case concisely and shall, 
to the extent possible, refer to the record and include information and 
arguments which the party believes relevant to the subject matter of the 
Commission's determination under section 705(b) or section 735(b) of the 
Act. Any person not an interested party may submit a brief written 
statement of information pertinent to the investigation within the time 
specified for filing of prehearing briefs.

[61 FR 37832, July 22, 1996]

Sec. 207.24  Hearing.

    (a) In general. The Commission shall hold a hearing concerning an 
investigation before making a final determination under section 705(b) 
or section 735(b) of the Act.
    (b) Procedures. Any hearing shall be conducted after notice 
published in the Federal Register. The hearing shall not be subject to 
the provisions of 5 U.S.C. subchapter II, chapter 5, or to 5 U.S.C. 702. 
Each party shall limit its presentation at the hearing to a summary of 
the information and arguments contained in its prehearing brief, an 
analysis of the information and arguments contained in the prehearing 
briefs described in Sec. 207.23, and information not available at the 
time its prehearing brief was filed. Unless a portion of the hearing is 
closed, presentations at the hearing shall not include business 
proprietary information. Notwithstanding Sec. 201.13(f) of this chapter, 
in connection with its presentation a party may file witness testimony 
with the Secretary no later than three (3) business days before the 
hearing. In the case of testimony to be presented at a closed session 
held in response to a request under Sec. 207.24(d), confidential and 
non-confidential versions shall be filed in accordance with Sec. 207.3. 
Any person not a party may make a brief oral statement of information 
pertinent to the investigation.
    (c) Hearing Transcripts--(1) In general. A verbatim transcript shall 
be made of all hearings or conferences held in connection with 
Commission investigations conducted under this part.
    (2) Revision of transcripts. Within ten (10) days of the completion 
of a hearing, but in any event at least one (1) day prior to the date 
for disclosure of information set pursuant to Sec. 207.30(a), any person 
who testified at the hearing may submit proposed revisions to the 
transcript of his or her testimony to the Secretary. No substantive 
revisions shall be permitted. If in the judgment of the Secretary a 
proposed revision does not alter the substance of the testimony in 
question, the Secretary shall incorporate the revision into a revised 
transcript.
    (d) Closed sessions. Upon a request filed by a party to the 
investigation no later than seven (7) days prior to the

[[Page 86]]

(86date of the hearing that identifies the subjects to be discussed, 
specifies the amount of time requested, and justifies the need for a 
closed session with respect to each subject to be discussed, the 
Commission may close a portion of a hearing to persons not authorized 
under Sec. 207.7 to have access to business proprietary information in 
order to allow such party to address business proprietary information 
during the course of its presentation. In addition, during each hearing 
held in an investigation conducted under section 705(b) or section 
735(b) of the Act, following the public presentation of the 
petitioner(s) and that of each panel of respondents, the Commission 
will, if it deems it appropriate, close the hearing to persons not 
authorized under section 207.7 to have access to business proprietary 
information in order to allow Commissioners to question parties and/or 
their representatives concerning matters involving business proprietary 
information.

[61 FR 37832, July 22, 1996]

Sec. 207.25  Posthearing briefs.

    Any party may file a posthearing brief concerning the information 
adduced at or after the hearing with the Secretary within a time 
specified in the notice of scheduling or by the presiding official at 
the hearing. No such posthearing brief shall exceed fifteen (15) pages 
of textual material, double spaced and single sided, on stationery 
measuring 8\1/2\  x  11 inches. In addition, the presiding official may 
permit persons to file answers to questions or requests made by the 
Commission at the hearing within a specified time. The Secretary shall 
not accept for filing posthearing briefs or answers which do not comply 
with this section.

[61 FR 37833, July 22, 1996]

Sec. 207.26  Statements by nonparties.

    Any person other than a party may submit a brief written statement 
of information pertinent to the investigation within the time specified 
for the filing of posthearing briefs.

[56 FR 11928, Mar. 21, 1991. Redesignated at 61 FR 37832, July 22, 1996]

Sec. 207.27  Short life cycle products.

    (a) An eligible domestic entity may file a petition to establish a 
product category for short life cycle merchandise which has been the 
subject of two or more affirmative dumping determinations. The 
Commission shall within thirty (30) days of the filing of the petition 
determine its sufficiency. If the petition is found to be sufficient, 
the Commission shall institute a proceeding to establish a product 
category and publish a notice of institution in the Federal Register. 
Upon request of an interested person filed within fifteen (15) days 
after publication of the notice of institution, the Commission shall 
conduct a hearing which shall be transcribed. The Commission's 
determination concerning the scope of the product category into which to 
classify the short life cycle merchandise identified by the petition 
shall be issued no later than ninety (90) days after the filing of the 
petition.
    (b) The Commission may on its own initiative and at any time modify 
the scope of a product category established in a proceeding pursuant to 
paragraph (a) of this section. Ninety (90) days prior to such 
modification, the Commission shall publish a notice of proposed 
modification in the Federal Register. Upon request of an interested 
party filed within fifteen (15) days after publication of the notice of 
proposed modification, the Commission shall conduct a hearing which 
shall be transcribed. Written submissions concerning the proposed 
modification shall be accepted if filed no later than sixty (60) days 
after publication of the notice of proposed modification.

[56 FR 11928, Mar. 21, 1991. Redesignated at 61 FR 37832, July 22, 1996]

Sec. 207.28  Anticircumvention.

    Prior to providing advice to the administering authority pursuant to 
section 781(e)(3) of the Act, the Commission shall publish in the 
Federal Register a notice that such advice is contemplated. Any person 
may file one written submission concerning the matter described in the 
notice no later than fourteen (14) days after publication of the notice. 
Such a statement shall contain no more than fifty (50)

[[Page 87]]

(87double spaced and single sided pages of textual material, on 
stationery measuring 8\1/2\ x 11 inches. The Commission shall by notice 
provide for additional statements as it deems necessary.

[56 FR 11928, Mar. 21, 1991. Redesignated at 61 FR 37832, July 22, 1996]

Sec. 207.29  Publication of notice of determination.

    Whenever the Commission makes a final determination, the Secretary 
shall serve copies of the determination and the nonbusiness proprietary 
version of the final staff report on the petitioner, other parties to 
the investigation, and the administering authority. The Secretary shall 
publish notice of such determination in the Federal Register.

[61 FR 37833, July 22, 1996]

Sec. 207.30  Comment on information.

    (a) In any final phase of an investigation under section 705 or 
section 735 of the Act, the Commission shall specify a date on which it 
will disclose to all parties to the investigation all information it has 
obtained on which the parties have not previously had an opportunity to 
comment. Any such information that is business proprietary information 
will be released to persons authorized to obtain such information 
pursuant to Sec. 207.7. The date on which disclosure is made will occur 
after the filing of posthearing briefs pursuant to Sec. 207.25.
    (b) The parties shall have an opportunity to file comments on any 
information disclosed to them after they have filed their posthearing 
brief pursuant to Sec. 207.25. Comments shall only concern such 
information, and shall not exceed 15 pages of textual material, double 
spaced and single-sided, on stationery measuring 8\1/2\  x  11 inches. A 
comment may address the accuracy, reliability, or probative value of 
such information by reference to information elsewhere in the record, in 
which case the comment shall identify where in the record such 
information is found. Comments containing new factual information shall 
be disregarded. The date on which such comments must be filed will be 
specified by the Commission when it specifies the time that information 
will be disclosed pursuant to paragraph (a) of this section. The record 
shall close on the date such comments are due, except with respect to 
investigations subject to the provisions of section 771(7)(G)(iii) of 
the Act, and with respect to changes in bracketing of business 
proprietary information in the comments permitted by Sec. 207.3(c).

[61 FR 37833, July 22, 1996]



Subpart D--Terminated, Suspended, and Continued Investigations, Investigations to Review Negotiated Agreements, and Investigations To Review Outstanding 
Determina
t
i
o
n
s



    Source: 56 FR 11929, Mar. 21, 1991, unless otherwise noted.

Sec. 207.40  Termination and suspension of investigation.

    (a) An investigation under title VII may be terminated by the 
Commission by giving notice in the Federal Register to all parties to 
the investigation, upon withdrawal of the petition by the petitioner, or 
upon issuance of a final negative determination or termination of its 
investigation by the administering authority under section 303, 705 or 
735 of the Act. The Commission may not terminate an investigation upon 
withdrawal of the petition by the petitioner, however, before a 
determination is made by the administering authority under section 
702(c), 703(b), 732(c) or 733(b) of the Act.
    (b) Upon receipt of notice of suspension of an investigation by the 
administering authority under section 704 (b) or (c) or 734(b), (c), or 
(1), of the Act, the Secretary shall issue a notice of suspension of the 
Commission investigation. Such suspension shall not prevent the Director 
from conducting such other investigative activities as he deems 
appropriate with respect to the subject matter of the suspended 
investigation.
    (c) Resumption of suspended investigation--(1) Purpose. If the 
administering authority determines pursuant to section 704(i) or 734(i) 
of the Act to resume

[[Page 88]]

(88a suspended investigation and so notifies the Commission of its 
determination, and in the event that the suspended investigation was not 
terminated, the Commission shall resume the investigation.
    (2) Procedures. The procedures set forth in subpart C shall apply to 
all investigations instituted under this section.

[56 FR 11927, Mar. 21, 1991, as amended at 60 FR 22, Jan. 3, 1995]

Sec. 207.41  Commission review of agreements to eliminate the injurious 
          effect of subsidized imports or imports sold at less than fair 
          value.

    If the administering authority determines to suspend an 
investigation upon acceptance of an agreement to eliminate the injurious 
effect of subsidized imports or imports sold at less than fair value, 
the Commission shall, upon petition, initiate an investigation to 
determine whether the injurious effect of imports of the merchandise 
which was the subject of the suspended investigation is eliminated 
completely by the agreement. Petitions may be filed by a party to the 
investigation which is an interested party described in paragraph (C), 
(D), (E), (F), or (G) of section 771(9) of the Act. Investigations under 
this section shall be completed within seventy five (75) days of their 
initiation.

Sec. 207.42  Investigation continued upon request.

    Upon receipt of advice from the administering authority that it has 
received a request for the continuation of a suspended investigation 
pursuant to section 704(g) or 734(g) of the Act, the Commission shall 
continue the investigation. The procedures set forth in subparts B and C 
of this part, including applicable time limitations, shall apply to all 
continued investigations within this rule.

Sec. 207.43  [Reserved]

Sec. 207.44  Consolidation of investigations.

    The Commission may, when appropriate, consolidate continued 
investigations under section 704(g) or section 734(g) of the Act with 
investigations to review agreements for the elimination of injury under 
section 704(h) or section 734(h) of the Act.

Sec. 207.45  Investigation to review outstanding determination.

    (a) Request for review. Any person may file with the Commission a 
request for the institution of a review investigation under section 751 
of the Act. The person making the request shall also promptly serve 
copies of the request on the parties to the original investigation upon 
which the review is to be based. All requests shall set forth a 
description of changed circumstances sufficient to warrant the 
institution of a review investigation by the Commission.
    (b) Notice of receipt of a request. Upon the receipt of a properly 
filed and sufficient request for a review investigation, the Secretary 
shall publish a notice of having received such a request in the Federal 
Register inviting public comment on the question of whether the 
Commission should institute a review investigation. Persons shall have 
at least thirty (30) days from the date of publication in the Federal 
Register within which to submit comments to the Commission.
    (c) Institution of an investigation. Within thirty (30) days after 
the close of the period for public comments following publication of the 
receipt of a request, the Commission shall determine whether the request 
shows changed circumstances sufficient to warrant a review and, if so, 
shall institute a review investigation. The Commission may also 
institute a review investigation on its own initiative. The review 
investigation shall be instituted by notice published in the Federal 
Register and shall be completed within one hundred twenty (120) days of 
the date of such publication. If the Commission determines that a 
request does not show changed circumstances sufficient to warrant a 
review, the request shall be dismissed and a notice of the dismissal 
published in the Federal Register stating the reasons therefor.
    (d) Conduct of review investigation. The procedures set forth in 
subpart C of part 207 shall apply to all investigations instituted under 
this section.

[[Page 89]]

(89

Sec. 207.46  Investigations concerning certain countervailing duty 
          orders.

    (a) Definitions. For purposes of this section:
    (1) Requesting party means an interested party described in section 
771(9) (C), (D), (E), (F), or (G) of the Act.
    (2) Order means a countervailing duty order issued under section 303 
of the Act as to which the requirement of an affirmative determination 
of material injury under section 303(a)(2) of the Act was not applicable 
at the time such order was issued.
    (3) WTO Agreement means the Agreement Establishing the World Trade 
Organization entered into on April 15, 1994.
    (b) Request for review. A requesting party may file with the 
Commission a request for an investigation under section 753 of the Act 
within the time period established by section 753(a)(3) of the Act. The 
request should contain the following information:
    (1) A description and identification of the relevant domestic like 
product, the industry in the United States producing that product that 
is likely to be materially injured by reason of imports of the subject 
merchandise if the Order is revoked, and each individual member of that 
industry.
    (2) Information reasonably available to the requesting party 
concerning the names and addresses of all known enterprises believed to 
be manufacturing, producing, exporting, or importing the subject 
merchandise;
    (3) Information reasonably available to the requesting party 
documenting that the industry described in paragraph (b)(1) of this 
section is likely to be materially injured by reason of subject imports 
if the Order is revoked, including:
    (i) Information concerning the capacity, production, sales, market 
share, inventories, employment, wages, productivity, profits, ability to 
raise capital, and development and production efforts of the industry 
described in paragraph (b)(1) of this section.
    (ii) Information concerning current and projected production 
capacity in the exporting country of the subject merchandise, 
inventories of the subject merchandise, and the existence of barriers to 
the importation of such merchandise into countries other than the United 
States.
    (4) Information concerning any scope and anticircumvention rulings 
issued by the administering authority with respect to the Order.
    (c) Initiation of Investigation. (1) Upon the receipt of a timely 
filed request for a section 753 investigation satisfying the 
requirements of paragraph (b) of this section, the Secretary shall 
publish a notice of initiation of such investigation in the Federal 
Register.
    (2) Subject to paragraph (c)(3) of this section, a section 753 
investigation shall be completed within one year of the date of 
publication of the notice of initiation of such investigation in the 
Federal Register.
    (3) The Commission may take more than one year to complete section 
753 investigations for which requests for investigations are received 
within one year after the date on which the WTO Agreement enters into 
force with respect to the United States. All such investigations must be 
completed within four years of that date, however. In determining 
whether to extend the completion date for a section 753 investigation, 
the Commission shall consult with the administering authority. Grounds 
for extending completion include, but are not limited to, the desire to 
conduct investigations involving the same or similar domestic industries 
and domestic like products on a simultaneous basis, and the desire to 
efficiently manage the Commission's caseload.
    (d) Conduct of Investigations. The procedures set forth in subparts 
A and C of this part shall apply to all investigations initiated under 
this section.
    (e) When No Request for Review Is Filed. When there has been no 
properly filed and sufficient request for a section 753 investigation of 
an Order, the Commission shall notify the administering authority that a 
negative determination has been made under section 753(a) of the Act 
with respect to that Order.
    (f) Pending and Suspended Section 303 Investigations. If, on the 
data on which a country becomes a signatory to the Agreement on 
Subsidies and Countervailing Measures referred to in section

[[Page 90]]

(90101(d)(12) of the Uruguay Round Agreements Act, there is a section 
303 countervailing duty investigation in progress or suspended with 
respect to that country's merchandise for which the requirement of a 
material injury determination under section 303(a)(2) of the Act was not 
applicable at the time the investigation was initiated, the Commission 
shall commence an investigation pursuant to the provisions of section 
753(c) of the Act with respect to pending investigations and suspended 
investigations to which section 704(i)(1)(B) of the Act applies.
    (g) Request for Simultaneous Expedited Section 751(c) Review. (1) A 
requesting party who requests a section 753 review may at the same time 
request from the Commission and the administering authority an expedited 
review under section 751(c) of the Act of a countervailing or 
antidumping duty order involving the same or comparable subject 
merchandise. The request for review under section 751(c) of the Act 
should set forth evidence to establish why revocation of the order to be 
reviewed under section 751(c) of the Act would be likely to lead to 
continuation or recurrence of material injury and should additionally 
contain any information required by the regulations of the administering 
authority.
    (2) Should the administering authority, after consulting with the 
Commission, determine to initiate a section 751(c) review, the 
Commission shall conduct a consolidated review under sections 751(c) and 
753 of the Act of the orders involving the same or comparable subject 
merchandise. The procedures set forth in subparts A and C of this part 
shall apply to any such consolidated review.
    (3) Should the administering authority, after consulting with the 
Commission, determine not to initiate a section 751(c) review, the 
Commission will consider the request for a section 753 review pursuant 
to the procedures established in this section.

[60 FR 23, Jan. 3, 1995]



Subpart E--Judicial Review

    Source: 56 FR 11930, Mar. 21, 1991, unless otherwise noted.

Sec. 207.50  Judicial review.

    (a) In general. Persons entitled to judicial review under section 
516A of the Act may seek review in the U.S. Court of International 
Trade.
    (b) Transmittal of record. In the event a Commission determination 
is appealed to the U.S. Court of International Trade under section 516A, 
a copy of the record in the investigation before the Commission, as such 
record is defined in Sec. 207.2(f), or a certified list of all items 
therein, shall be transmitted to the court by the Secretary in 
accordance with the rules of the court.
    (c) Service of process. The Commission's General Counsel shall be 
the Commission's agent for service of process in cases arising under 
section 516A of the Act.

Sec. 207.51  Judicial review of denial of application for disclosure of 
          certain business proprietary information under administrative 
          protective order.

    (a) In general. Persons entitled to judicial review under section 
777(c)(2) of the Commission determination not to disclose business 
proprietary information may apply to the U.S. Court of International 
Trade for an order directing the Commission to make the information 
involved available.
    (b) Transmittal of record. In the event a court order is sought 
under section 777(c)(2) requiring the Commission to disclose business 
proprietary information, the Secretary shall within 20 days after 
service of a summons and complaint upon the Commission transmit to the 
court under seal the business proprietary information involved along 
with pertinent parts of the record.
    (c) Pertinent parts of the record. The pertinent parts of the record 
shall consist of:
    (1) The application for Commission disclosure together with any 
documents filed in support thereof or in opposition thereto.
    (2) Any Government memoranda relating to the Commission's 
determination, and
    (3) The Commission's action on the application.
    (d) Service of process. The Commission's General Counsel shall be 
the

[[Page 91]]

(91Commission's agent for service of process in cases under section 
777(c)(2) of the Act.



Subpart F--[Reserved]



Subpart G--Implementing Regulations for the North American Free Trade Agreement

    Authority: Sec. 777(d) of the Tariff Act of 1930 (19 U.S.C. 1677f 
(d); secs. 402(g), 405 of the North American Free Trade Agreement 
Implementation Act (107 Stat. 2057, Pub. L. 103-182, Dec. 8, 1993).

    Source: 59 FR 5097, Feb. 3, 1994, unless otherwise noted.

Sec. 207.90  Scope.

    This subpart sets forth the procedures and regulations for 
implementation of Article 1904 of the North American Free Trade 
Agreement under the Tariff Act of 1930, as amended by title IV of the 
North American Free Trade Agreement Implementation Act (19 U.S.C. 1516a 
and 1677f). These regulations are authorized by section 402(g) of the 
North American Free Trade Agreement Implementation Act and 19 U.S.C. 
1335.

Sec. 207.91  Definitions.

    As used in this subpart--
    Administrative Law Judge means the United States Government employee 
appointed under section 310(f) of title 5 of the United States Code to 
conduct proceedings under this part in accordance with section 554 of 
title 5 of the United States Code;
    Agreement means the North American Free Trade Agreement entered into 
among Canada, the United States of America and the United Mexican States 
(``Mexico''); or, with respect to binational panel proceedings between 
Canada and the United States underway as of the date of enactment of the 
Agreement, or any binational panel proceedings that may proceed between 
the United States and Canada following any withdrawal from the Agreement 
by the United States or Canada, the United States-Canada Free Trade 
Agreement entered into between the Government of Canada and the 
Government of the United States of America, effective as of January 1, 
1989;
    Article 1904 Rules means the Rules of Procedure for Article 1904 
Binational Panel Reviews adopted by the United States of America, Canada 
and Mexico pursuant to the Agreement, or where applicable under the 
Agreement, the Rules of Procedure for Article 1904 Binational Panel 
Reviews adopted by the United States of America and Canada pursuant to 
the United States-Canada Free Trade Agreement, as amended;
    Canadian Secretary means the Secretary of the Canadian section of 
the Secretariat and includes any person authorized to act on the 
Secretary's behalf;
    Charged party means a person who is charged by the Commission with 
committing a prohibited act under 19 U.S.C. 1677f(f)(3);
    Clerical person means a person such as a paralegal, secretary, or 
law clerk who is employed or retained by and under the direction and 
control of an authorized applicant;
    Commission means the United States International Trade Commission;
    Commission Secretary means the Secretary to the Commission;
    Complaint means the complaint referred to in the Article 1904 Rules;
    Counsel means persons described in the definition of counsel of 
record in Rule 3 of the Article 1904 Rules or the ECC Rules, and counsel 
for an interested person who plans to file a timely complaint or notice 
of appearance in the panel review.
    Date of Service means the day a document is deposited in the mail or 
delivered in person;
    Days means calendar days, but if a deadline falls on a weekend or 
United States federal holiday, it shall be extended to the next working 
day;
    Extraordinary challenge committee means the committee established 
pursuant to Annex 1904.13 of the Agreement to review decisions of a 
panel or conduct of a panelist;
    ECC Rules means the Rules of Procedure for Article 1904 
Extraordinary Challenge Committees adopted by the United States of 
America, Canada and Mexico, or where applicable, the Rules of Procedure 
for Article 1904 Extraordinary Challenge Committees adopted by the 
United States of America and Canada pursuant to the United States-

[[Page 92]]

(92Canada Free Trade Agreement, as amended;
    Final determination, means ``final determination'' under Article 
1911 of the Agreement;
    Free Trade Area Country means the ``free trade area country'' as 
defined in 19 U.S.C. 1516a(f)(10);
    Investigative attorney means an attorney designated by the Office of 
Unfair Import Investigations to engage in inquiries and proceedings 
under 19 CFR 207.100 et seq.
    Mexican Secretary means the Secretary of the Mexican section of the 
Secretariat and includes any persons authorized to act on the 
Secretary's behalf;
    NAFTA Act means the North American Free Trade Agreement 
Implementation Act, Pub. L. 103-182 (December 8, 1993);
    Notice of Appearance means the notice of appearance provided for by 
Article 1904 Rules or by the ECC Rules;
    Panel review means review of a final determination pursuant to 
chapter 19 of the Agreement, including review by an extraordinary 
challenge committee;
    Party means, for the purposes of 19 CFR 207.100 through 207.120, 
either the investigative attorney(ies) or the charged party(ies);
    Person means, for the purposes of 19 CFR 207.100 through 207.120, an 
individual, partnership, corporation, association, organization, or 
other entity;
    Privileged information means all information covered by the 
provisions of the second sentence of 19 U.S.C. 1677f(f)(1)(A);
    Professional means an accountant, economist, engineer, or other non-
legal specialist who is employed by, or under the direction and control, 
of a counsel;
    Prohibited act means the violation of a protective order, the 
inducement of a violation of a protective order, or the knowing receipt 
of information the receipt of which constitutes a violation of a 
protective order;
    Proprietary information means confidential business information as 
defined in 19 CFR 201.6(a);
    Protective Order means an administrative protective order issued by 
the Commission;
    Relevant FTA Secretary means the Secretary referred to in Article 
1908 of the Agreement;
    Secretariat means the Secretariat established pursuant to Article 
2002 of the Agreement and includes the Secretariat sections located in 
Canada, the United States, and Mexico;
    Service address means the facsimile number, if any, and address of 
the counsel of record for a person or, where a person is not represented 
by counsel, the facsimile number, if any, and address set out by a 
person in a Request for Panel Review, Complaint or Notice of Appearance 
as the address at which the person may be served or, where a Change of 
Service Address has been filed by a person, the facsimile number, if 
any, and address set out as the service address in that form;
    Service list means the list maintained by the Commission Secretary 
under 19 CFR 201.11(d) of persons in the administrative proceeding 
leading to the final determination under panel review;
    United States Secretary means the Secretary of the United States 
section of the Secretariat and includes any person authorized to act on 
the Secretary's behalf;
    Except as otherwise provided in this subpart, the definitions set 
forth in the Article 1904 Rules and the ECC Rules are applicable to this 
subpart and to any protective orders issued pursuant to this subpart.

Sec. 207.92  Procedures for commencing review of final determinations.

    (a) Notice of Intent to Commence Judicial Review. A Notice of Intent 
to Commence Judicial Review shall contain such information, and be in 
such form, manner, and style, including service requirements, as 
prescribed by the Department of Commerce in its regulations at 19 CFR 
part 356.
    (b) Request for Panel Review. A Request for Panel Review shall 
contain such information, and be in such form, manner, and style, 
including service requirements, as prescribed by the Department of 
Commerce in its regulations at 19 CFR part 356.

[[Page 93]]

(93

Sec. 207.93  Protection of proprietary information during panel and 
          committee proceedings.

    (a) Requests for protective orders. A request for access to 
proprietary information pursuant to 19 U.S.C. 1677f(f)(1) shall be made 
to the Secretary of the Commission.
    (b) Persons authorized to receive proprietary information under 
protective order. The following persons may be authorized by the 
Commission to receive access to proprietary information if they comply 
with these regulations and such other conditions imposed upon them by 
the Commission:
    (1) The members of a binational panel or an extraordinary challenge 
committee, any assistant to a member, court reporters and translators;
    (2) Counsel and professionals, provided that the counsel or 
professional does not participate in competitive decision-making, as 
defined in US Steel Corp. v. United States, 730 F.2d 1465 (Fed. Cir. 
1984), for the person represented or for any person that would gain a 
competitive advantage through knowledge of the proprietary information 
sought;
    (3) Clerical persons who are employed or retained by and under the 
direction and control of a person described in paragraph (b) (1), (2), 
(5) or (6) of this section who has been issued a protective order, if 
such clerical persons:
    (i) Are not involved in the competitive decision-making, or the 
support functions for the competitive decision-making, of a participant 
to the proceeding or of any person that would gain a competitive 
advantage through knowledge of the proprietary information sought, and
    (ii) Have agreed to be bound by the terms set forth in the 
application for protective order of the person who retains or employs 
him or her;
    (4) The Secretaries of the United States, Canadian and Mexican 
sections of the Secretariat and members of their staffs;
    (5) Any officer or employee of the United States Government who the 
United States Trade Representative informs the Commission Secretary 
needs access to proprietary information to make recommendations 
regarding the convening of extraordinary challenge committees; and
    (6) Any officer or employee of the Government of Canada or the 
Government of Mexico who the Canadian Minister of Trade or the Mexican 
Secretary of Commerce and Industrial Development, as the case may be, 
informs the Commission Secretary needs access to proprietary information 
to make recommendations regarding the convening of extraordinary 
challenge committees.
    (c) Procedures for obtaining access to proprietary information under 
protective order--(1) Persons who must file an application for release 
under protective order. To be permitted access to proprietary 
information in the administrative record of a determination under panel 
review, all persons described in paragraphs (b) (1), (2), (4), (5) or 
(6) of this section, unless described in paragraph (c)(5)(i) of this 
section, shall file an application for a protective order.
    (2) Contents of applications for release under protective order. (i) 
The Commission Secretary shall adopt from time to time forms for 
submitting requests for release pursuant to protective order that 
incorporate the terms of this rule. The Commission Secretary shall 
supply the United States Secretary with copies of the forms for persons 
described in paragraphs (b) (1), (4), (5) and (6) of this section. Other 
applicants may obtain the forms at the Commission Secretary's office at 
500 E Street SW., Washington, DC 20436.
    (ii) Such forms shall require the applicant to submit a personal 
sworn statement that, in addition to such other conditions as the 
Commission Secretary may require, the applicant will:
    (A) Not disclose any proprietary information obtained under 
protective order and not otherwise available to any person other than:
    (1) Personnel of the Commission involved in the particular panel 
review in which the proprietary information is part of the 
administrative record,
    (2) The person from whom the information was obtained,
    (3) A person who is authorized to have access to the same 
proprietary information pursuant to a Commission protective order, and

[[Page 94]]

(94
    (4) A clerical person retained or employed by and under the 
direction and control of a person described in paragraph (b) (1), (2), 
(5), or (6) of this section who has been issued a protective order, if 
such clerical person has signed and dated an agreement to be bound by 
the terms set forth in the application for a protective order of the 
person who retains or employs him or her;
    (B) Not use any of the proprietary information released under 
protective order and not otherwise available for purposes other than the 
particular proceedings under Article 1904 of the Agreement;
    (C) Upon completion of panel review, or at such other date as may be 
determined by the Commission Secretary, return to the Commission, or 
certify to the Commission Secretary the destruction of, all documents 
released under the protective order and all other material (such as 
briefs, notes, or charts), containing the proprietary information 
released under the protective order, except that those described in 
paragraph (b)(1) of this section may return such documents and other 
materials to the United States Secretary. The United States Secretary 
may retain a single file copy of each document for the official file.
    (D) Update information in the application for protective order as 
required by the protective order; and
    (E) Acknowledge that the person becomes subject to the provisions of 
19 U.S.C. 1677f(f) and to this subpart, as well as corresponding 
provisions of Canadian and Mexican law on disclosure undertakings 
concerning proprietary information.
    (3) Timing of applications. An application for any person described 
in paragraph (b)(1) or (b)(2) of this section may be filed after a 
notice of request for panel review has been filed with the Secretariat. 
A person described in paragraph (b)(4) of this section shall file an 
application immediately upon assuming official responsibilities in the 
United States, Canadian or Mexican Secretariat. An application for any 
person described in paragraph (b)(5) or (b)(6) of this section may be 
filed at any time after the United States Trade Representative, the 
Canadian Minister of Trade, or the Mexican Secretary of Commerce and 
Industrial Development, as the case may be, has notified the Commission 
Secretary that such person requires access.
    (4) Filing and service of applications--(i) Applications of persons 
described in paragraph (b)(1) of this section. A person described in 
paragraph (b)(1) of this section shall submit the completed original of 
the form to the United States Secretary, NAFTA Secretariat, room 2061, 
U.S. Department of Commerce, Pennsylvania Avenue and 14th Street, NW., 
Washington, DC 20230. The United States Secretary, in turn, shall file 
the original plus three (3) copies of the application with the 
Commission Secretary.
    (ii) Applications of persons described in paragraph (b)(2) of this 
section--(A) Filing. A person described in paragraph (b)(2) of this 
section shall file the completed original of the form and three (3) 
copies with the Commission Secretary, and four (4) copies with the 
United States Secretary.
    (B) Service. If an applicant files before the deadline for filing 
notices of appearance for the panel review, the applicant shall 
concurrently serve each person on the service list with a copy of the 
application. If the applicant files after the deadline for filing 
notices of appearance for the panel review, the applicant shall serve 
each participant in the panel review in accordance with the applicable 
Article 1904 Rules and ECC Rules. Service on a person may be effected by 
delivering a copy to the person's service address; by sending a copy to 
the person's service address by facsimile transmission, expedited 
courier service, expedited mail service; or by personal service.
    (iii) Applications of persons described in paragraph (b)(4) of this 
section. A person described in paragraph (b)(4) of this section shall 
file the original and three (3) copies of the protective order 
application with the Commission Secretary.
    (iv) Applications of persons described in paragraph (b)(5) of this 
section. A person described in paragraph (b)(5) of this section shall 
file the original and three (3) copies with the Commission Secretary and 
four (4) copies with the United States Secretary.
    (v) Applications of persons described in paragraph (b)(6) of this 
section. A person

[[Page 95]]

(95described in paragraph (b)(6) of this section shall submit the 
completed original of the protective order application to the relevant 
FTA Secretary. The relevant FTA Secretary in turn, shall file the 
original and three (3) copies with the Commission Secretary.
    (5) Persons who retain access to proprietary information under a 
protective order issued during the administrative proceedings. (i) If 
counsel or a professional has been granted access in an administrative 
proceeding to proprietary information under a protective order that 
contains a provision governing continued access to that information 
during panel review, and that counsel or professional retains the 
proprietary information more than fifteen (15) days after a First 
Request for Panel Review is filed with the Secretariat, that counsel or 
professional, and such clerical persons with access on or after that 
date, become immediately subject to the terms and conditions of Form C 
maintained by the Commission Secretary on that date including provisions 
regarding sanctions for violations thereof.
    (ii) Any person described in paragraph (c)(5)(i) of this section, 
concurrent with the filing of a complaint or notice of appearance in the 
panel review on behalf of the participant represented by such person, 
shall:
    (A) File four (4) copies of the original application, of all 
existing updates to that application, and of the protective order with 
the United States Secretary; and
    (B) Serve three (3) copies of the protective order and of all 
existing updates upon the Commission Secretary.
    (iii) Any person described in paragraph (c)(5)(i) of this section 
need not submit a new application for a protective order at the 
commencement of a panel review.
    (d) Issuance of protective orders--(1) Applicants described in 
paragraphs (b) (1), (4), (5) and (6) of this section. Upon approval of 
an application of persons described in paragraphs (b)(1), (4), (5), or 
(6) of this section, the Commission Secretary shall issue a protective 
order permitting release of proprietary information. Any member of a 
binational panel proceeding initiated under the United States-Canada 
Free Trade Agreement to whom the Commission Secretary issues a 
protective order must countersign it and return one copy of the 
countersigned order to the United States Secretary. Any other applicant 
under paragraph (b)(1) of this section must file a copy of the order 
with the United States Secretary.
    (2) Applicants described in paragraph (b)(2) of this section. (i) 
The Commission shall not rule on an application filed by a person 
described in paragraph (b)(2) until ten (10) days after the request is 
filed unless there is a compelling need to rule more expeditiously. Any 
person may file an objection to the application within seven (7) days of 
the application's filing date, stating the specific reasons why the 
Commission should not grant the application. One (1) copy of the 
objection shall be served on the applicant and on all persons who were 
served with the application. Any reply to an objection will be 
considered if it is filed and served before the Commission Secretary 
renders a decision. Service of objections and replies shall be made in 
accordance with paragraph (c)(4)(ii)(B) of this section.
    (ii) Denial of application. The Commission's Secretary may deny an 
application by serving a letter notifying the applicant of the decision 
and the reasons therefor within fourteen (14) days of the receipt of the 
application. The letter shall advise the applicant of the right to 
appeal to the Commission. Any appeal must be made within five (5) days 
of the service of the Commission Secretary's letter.
    (iii) Appeal from denial of an application. An appeal from a denial 
of a request must be addressed to the Chairman, United States 
International Trade Commission, 500 E Street, SW., Washington, DC 20436. 
Such appeal must be served in accordance with paragraph (c)(4)(ii)(B) of 
this section. The Commission shall make a final decision granting or 
denying the appeal within thirty (30) days from the day on which the 
application was filed with the Commission Secretary.
    (iv) Approval of the application. If the Commission Secretary does 
not deny an application pursuant to paragraph (d)(2)(ii) of this 
section, the Commission shall, by the fifteenth day following the 
receipt of the application, issue

[[Page 96]]

(96a protective order permitting the release of proprietary information 
to the applicant.
    (v) Filing of protective orders. If a protective order is issued to 
a person described in paragraph (b)(2) of this section, the person shall 
immediately file one (1) copy of the protective order with the United 
States Secretary.
    (e) Retention of protective orders. The Commission Secretary shall 
retain, in a public file, copies of applications granted, including any 
updates thereto, and protective orders issued under this section, 
including protective orders filed in accordance with paragraph 
(b)(6)(ii) of this section.
    (f) Filing of amendments to granted applications. Any person who has 
been issued a protective order under this section shall:
    (1) If a person described in paragraph (b)(1) of this section, 
submit any amendments to the application for a protective order to the 
United States Secretary, who shall file the original and three (3) 
copies with the Commission Secretary;
    (2) If a person described in paragraph (b)(2) of this section, file 
the original and three (3) copies of any amendments to the application 
with the Commission Secretary and four (4) copies with the United States 
Secretary; or
    (3) If any other person, file the original and three (3) copies of 
any amendments to the application with the Commission Secretary.
    (g) Modification or revocation of protective orders. (1) Any person 
may file with the Commission Secretary a request that a protective order 
issued under this section be modified or revoked because of changed 
conditions of fact or law, or on grounds of the public interest. The 
request shall state the changes desired and include any supporting 
materials and arguments. The person filing the request shall serve a 
copy of the request upon the person to whom the protective order was 
issued.
    (2) Any person may file a response to the request within twenty (20) 
days after it is filed, unless the Commission issues a notice indicating 
otherwise. After consideration of the request and any responses thereto, 
the Commission shall take such action as it deems appropriate.
    (3) If a request filed under this paragraph alleges that a person is 
violating the terms of a protective order, the Commission may treat the 
request as a report of violation under Sec. 207.101 of this subpart.
    (4) The Commission may also modify or revoke a protective order on 
its own initiative.
    (5) If the Commission revokes, amends or modifies a person's 
protective order, it shall provide to the person, the United States 
Secretary and all participants a copy of the Notice of Revocation, 
amendment or modification.

Sec. 207.94  Protection of privileged information during panel and 
          committee proceedings.

    When and if a panel or extraordinary challenge committee decides 
that the Commission is required, pursuant to the United States law, to 
grant access pursuant to protective order to information for which the 
Commission has claimed a privilege, any individual to whom a panel or 
extraordinary challenge committee has directed the Commission release 
information and who is otherwise within the category of individuals 
eligible to receive proprietary information pursuant to 19 CFR 
207.93(b), may file an application for a protective order with the 
Commission. Upon receipt of such application, the Commission Secretary 
shall certify to the Commission that a panel or extraordinary challenge 
committee has required the Commission to release such information to 
specified persons, pursuant to 19 U.S.C. 1677f(f)(1). Twenty-four hours 
following such certification, the Commission Secretary shall issue a 
protective order releasing such information to any authorized applicant 
subject to terms and conditions equivalent to those described in 19 CFR 
207.93(c)(2).

 Procedures for Imposing Sanctions for Violation of the Provisions of a 
     Protective Order Issued During Panel and Committee Proceedings

Sec. 207.100  Sanctions.

    (a) A person, other than a person exempted from this regulation by 
the provisions of 19 U.S.C. 1677f(f)(4), who is

[[Page 97]]

(97determined under this subpart to have committed a prohibited act, may 
be subject to one or more of the following sanctions:
    (1) A civil penalty not to exceed $100,000 for each violation, each 
day of a continuing violation constituting a separate violation;
    (2) Debarment from practice in any capacity before the Commission, 
which disbarment may, in appropriate circumstances, include such 
person's partners, associates, employers and employees, for a designated 
time period following publication of a determination that the protective 
order has been breached;
    (3) Denial of further access to proprietary or privileged 
information covered by the breached protective order or to proprietary 
information in future Commission proceedings;
    (4) An official reprimand by the Commission;
    (5) In the case of an attorney, accountant, or other professional, 
referral of the facts underlying the prohibited act to the ethics panel 
or other disciplinary body of the appropriate professional association 
or licensing authority;
    (6) When appropriate, referral of the facts underlying the violation 
to the United States Trade Representative or his or her designees, or to 
another government agency; and
    (7) Any other administrative sanctions as the Commission determines 
to be appropriate.
    (b) Each partner, associate, employer, and employee described in 
paragraph (a)(2) of this section is entitled to all the administrative 
rights set forth in this subpart.
    (c) For the purposes of this subpart, the knowing receipt of 
information the receipt of which constitutes a violation of a protective 
order includes, but is not limited to, the reading or unauthorized 
dissemination of the information covered by a protective order by a 
person who knows or should reasonably believe that he or she is not 
authorized to read or disseminate such information.

Sec. 207.101  Reporting of prohibited act and commencement of 
          investigation.

    (a) Any person who has information indicating that a prohibited act 
has been committed shall immediately report all pertinent facts relating 
thereto to the Commission Secretary.
    (b) Upon receipt, the Commission Secretary shall record the 
information, assign an investigation number, and forward all information 
he or she received to the Office of Unfair Import Investigations.
    (c) As expeditiously as possible, the Office of Unfair Import 
Investigations shall conduct an inquiry to determine whether there is 
reasonable cause to believe that a person or persons have committed a 
prohibited act. At any time, the Office of Unfair Import Investigations 
may request that the Commission assign an administrative law judge to 
oversee the inquiry.
    (d) At the conclusion of the inquiry, the Office of Unfair Import 
Investigations shall assess whether the available information is 
sufficient to provide reasonable cause to believe that a person or 
persons have committed a prohibited act.

Sec. 207.102  Initiation of proceedings.

    (a) Upon completion of the inquiry,
    (1) If the Office of Unfair Import Investigations concludes that 
there is not reasonable cause to believe that a person or persons have 
committed a prohibited act, the Office of Unfair Import Investigations 
shall:
    (i) Submit a report to the Commission; and
    (ii) Unless the Commission directs otherwise, the file shall be 
closed and returned to the Commission Secretary.
    (2) If the Office of Unfair Import Investigations concludes that 
there is reasonable cause to believe that a person or persons have 
committed a prohibited act, the Office of Unfair Import Investigations 
shall:
    (i) Make a recommendation to the Commission regarding whether and to 
what extent it is appropriate to notify the person whose proprietary 
information may have been compromised; and

[[Page 98]]

(98
    (ii) Submit a report and recommendation to the Commission regarding 
whether to initiate sanctions proceedings or to take other appropriate 
action.
    (b) The Commission may make any appropriate determination regarding 
the initiation of sanctions proceedings, including rejecting, approving, 
or approving and amending any recommendation made by the Office of 
Unfair Import Investigations.
    (c) If the Commission determines that it is appropriate to issue a 
charging letter, the Commission shall appoint an administrative law 
judge to oversee the proceeding and the Commission Secretary shall 
initiate a proceeding under this subpart by issuing a charging letter as 
set forth in 19 CFR 207.103.
    (d) If the Commission determines that it is appropriate to initiate 
proceedings, but that the party to be charged is beyond the jurisdiction 
of the Commission and within the jurisdiction of another Free Trade Area 
country, or that for other reasons an authorized agency of another Free 
Trade Area country would be the more appropriate forum for initiation of 
a proceeding, the Commission shall take the necessary steps for issuance 
of a letter requesting the authorized agency of another Free Trade Area 
country to initiate proceedings under applicable law on the basis of an 
alleged prohibited act.
    (e) The Commission may make any determination regarding notification 
about the alleged prohibited act and the relevant underlying facts to 
the persons who submitted the proprietary information that allegedly has 
been disclosed. A determination by the Commission on this subject does 
not foreclose the administrative law judge from redetermining at any 
time during the hearing whether notification to the compromised party is 
appropriate.
    (f) If the Commission determines that it is not appropriate to issue 
a charging letter or to refer the facts to the authorized agency of 
another Free Trade Area country, the file shall be closed and returned 
to the Commission Secretary, unless the Commission directs otherwise.
    (g) All aspects of the inquiry shall remain confidential, except as 
deemed reasonably necessary to the Office of Unfair Import 
Investigations to gather relevant information and to protect the 
interests of the person who submitted the proprietary information, or 
except as otherwise ordered by the Commission. Except as the Commission 
may otherwise order, the Commission Secretary shall maintain all closed 
investigatory files in confidence to the extent permitted by law, and 
shall destroy any documentary evidence containing allegations of a 
prohibited act for which no proceeding is initiated one year after the 
file is closed.

Sec. 207.103  Charging letter.

    (a) Contents of charging letter. Each charged party shall be served 
by the Commission with a copy of a charging letter and any accompanying 
motion for interim measures, as provided for in 19 CFR 207.106. The 
charging letter shall include:
    (1) Allegations concerning a prohibited act;
    (2) A citation to Sec. 207.100 of this subpart, for a listing of 
sanctions that may be imposed for a prohibited act;
    (3) A statement that a proceeding has been initiated and that an APA 
hearing will be held before an administrative law judge;
    (4) A statement that the charged party or his or her attorney may 
request the issuance of an appropriate administrative protective order 
to obtain access to the information upon which the charge is based;
    (5) A statement that the charged party has a right to retain an 
attorney at the charged party's own expense for purposes of 
representation; and
    (6) A statement that the charged party has the right to request in 
the response described in Sec. 207.104 of this subpart that the 
proceedings remain confidential to the extent practicable.
    (b) Service of charging letter. (1) The charging letter shall be 
served in a double envelope. The inner envelope shall indicate that it 
is to be opened only by the addressee. Service of a charging letter 
shall be made by one of the following methods:
    (i) Mailing a copy by registered or certified mail addressed to the 
charged

[[Page 99]]

(99party at the party's last known permanent address; or
    (ii) Personal service; or
    (iii) Any other method acceptable under Rule 4 of the Federal Rules 
of Civil Procedure.
    (2) Service shall be evidenced by a certificate of service signed by 
the person making such service.
    (c) Confidentiality of charging letter. Prior to entry of an order 
by the administrative law judge under Sec. 207.105 of this subpart, the 
charging letter will be confidential and disclosed only to necessary 
Commission staff and the charged parties.
    (d) Amendment of charging letter. (1) At any time after proceedings 
have been initiated, the investigative attorney may move for leave to 
amend or withdraw the charging letter.
    (2) If the administrative law judge determines that the charging 
letter should be amended to include additional parties, the judge shall 
issue a recommended determination to that effect. The Commission shall 
review the recommended determination, and issue a determination granting 
or denying the motion to amend the charging letter to include additional 
parties.
    (3) Upon motion, the administrative law judge may grant leave to 
amend the charging letter for good cause shown upon such conditions as 
are necessary to avoid prejudicing the public interest and the rights of 
the parties already charged.
    (4) Any amended charging letter shall be served upon all charged 
parties in the form and manner set forth in paragraphs (a) and (b) of 
this section.

Sec. 207.104  Response to charging letter.

    (a) Time for filing. A charged party shall have twenty (20) days 
from the date of service of the charging letter within which to file a 
written response to the allegations made in the charging letter unless 
otherwise ordered by the administrative law judge.
    (b) Form and content. Each response shall be under oath and signed 
by the charged party or its duly authorized officer, attorney, or agent, 
with the name, address, and telephone number of the same. Each charged 
party shall respond to each allegation in the charging letter, and may 
set forth a concise statement of the facts constituting each ground of 
defense. There shall be a specific admission or denial of each fact 
alleged in the charging letter, or if the charged party is without 
knowledge of any such fact, a statement to that effect.
    (c) Request for confidentiality. The response shall contain a 
statement as to whether the charged party seeks an order to maintain the 
confidentiality of all or part of the proceedings to the extent 
practicable, pursuant to Sec. 207.105 of this subpart.

Sec. 207.105  Confidentiality.

    (a) Protection of proprietary and privileged information. As the 
administrative law judge deems reasonably necessary for the preparation 
of the defense of a charged party, the attorney for the charged party 
may be granted access in these proceedings to proprietary information or 
to the privileged information, the disclosure of which is the subject of 
the proceedings. Any such access shall be under protective order 
consistent with the provisions of this subpart.
    (b) Confidentiality of proceedings. Upon the request of any charged 
party pursuant to Sec. 207.106 of this subpart, the administrative law 
judge will issue an appropriate confidentiality order. This order will 
provide for the confidentiality, to the extent practicable and permitted 
by law, of information relating to allegations concerning the commitment 
of a prohibited act, consistent with public policy considerations and 
the needs of the parties in conducting the sanctions proceedings. The 
order will provide that all proceedings under this provision shall be 
kept confidential within the terms of the order, except to the extent 
that a discussion of such proceedings is incorporated into a published 
final decision of the Commission. Any confidential information not 
disclosed in such decision will remain protected.

Sec. 207.106  Interim measures.

    (a) At any time after proceedings are initiated, the administrative 
law judge, upon motion, or on his or her own initiative, may issue a 
recommended determination to revoke the allegedly-violated protective 
order, to disclose

[[Page 100]]

(100information about the proceedings that would otherwise be kept 
confidential, or to take other appropriate interim measures.
    (b) Before issuing a determination recommending interim sanctions, 
the administrative law judge shall afford a party against whom such 
measures are proposed the opportunity to oppose them. The administrative 
law judge shall ordinarily decide any motion under this section no more 
than twenty (20) days after it is filed.
    (c) The Commission shall review any recommended determination 
regarding the imposition of interim measures within twenty (20) days 
from its issuance or such other time as it may order. The Commission may 
impose any appropriate interim sanctions.
    (d) The administrative law judge may recommend to the Commission 
that interim measures be modified or revoked. The Commission shall rule 
on such recommendation within ten (10) days after its issuance or such 
other time as it may order.
    (e) The Commission Secretary shall immediately notify the 
Secretariat of any interim measures that revoke or modify an outstanding 
protective order in an ongoing panel review. The Commission Secretary 
shall also immediately notify the Secretariat of any revocation or 
modification of an interim measure.

Sec. 207.107  Motions.

    (a) Presentation and disposition. (1) After issuance of the charging 
letter and while part of the proceeding is pending before the 
administrative law judge, all motions relating to that part of the 
proceeding shall be addressed to the administrative law judge.
    (2) While part of a proceeding is pending before the Commission, all 
motions relating to that part of the proceeding shall be addressed to 
the Chairman of the Commission. All written motions shall be filed with 
the Commission Secretary and served upon all parties.
    (b) Content. All written motions shall state the particular order, 
ruling, or action desired and the grounds therefor.
    (c) Responses. Any response to a motion shall be filed within ten 
(10) days after service of the motions, or within such longer or shorter 
time as may be designated by the administrative law judge or the 
Commission. The moving party shall have no right to reply, except as 
permitted by the administrative law judge or the Commission.
    (d) Service. All motions, responses, replies, briefs, petitions, and 
other documents filed in sanctions proceedings under this subpart shall 
be served by the party filing the document upon each other party. 
Service shall be made upon the attorney for the party unless the 
administrative law judge or the Commission orders otherwise.

Sec. 207.108  Preliminary conference.

    As soon as practicable after the response to the charging letter is 
filed, the administrative law judge shall direct counsel or other 
representatives for the parties to meet with him or her at a preliminary 
conference, unless the administrative law judge determines that such a 
conference is not necessary. At the conference, the administrative law 
judge shall consider the issuance of such orders as the administrative 
law judge deems necessary for the conduct of the proceedings. Such 
orders may include, as appropriate under these regulations, the 
establishment of a discovery schedule or the issuance of an order, if 
requested, to provide for maintaining the confidentiality of the 
proceedings pursuant to Sec. 207.105(b) of this subpart.

Sec. 207.109  Discovery.

    (a) Discovery methods. All parties may obtain discovery under such 
terms and limitations as the administrative law judge may order. 
Discovery may be by one or more of the following methods:
    (1) Depositions upon oral examination or written questions;
    (2) Written interrogatories;
    (3) Production of documents or things for inspection and other 
purposes; and
    (4) Requests for admissions.
    (b) Sanctions. If a party or an officer or agent of a party fails to 
comply with a discovery order, the administrative law judge may take 
such action as he deems reasonable and appropriate, including the 
issuance of evidentiary sanctions or deeming the respondent to be in 
default.

[[Page 101]]

(101
    (c) Depositions of nonparty officers or employees of the United 
States or another Free Trade Area country government--(1) Depositions of 
Commission officers or employees. A party desiring to take the 
deposition of an officer or employee of the Commission (other than a 
member of the Office of Unfair Import Investigations or of the Office of 
the Administrative Law Judges), or to obtain nonprivileged documents or 
other physical exhibits in the custody, control, and possession of such 
officer or employee, shall file a written motion requesting the 
administrative law judge to recommend that the Commission direct that 
officer or employee to testify or produce the requested materials.
    (2) Depositions of officers or employees of other United States 
agencies, or of the government of another Free Trade Area country. A 
party desiring to take the deposition of an officer or employee of 
another agency, or of the government of another Free Trade Area country, 
or to obtain nonprivileged documents or other physical exhibits in the 
custody, control, and possession of such officer or employee, shall file 
a written motion requesting the administrative law judge to recommend 
that the Commission seek the testimony or production of requested 
material from the officer or employee.

Sec. 207.110  Subpoenas.

    (a) Application for issuance of a subpoena. Except as provided in 
Sec. 207.109(c) of this subpart, an application for issuance of a 
subpoena requiring a person to appear and depose or testify at the 
taking of a deposition or at a hearing shall be made to the 
administrative law judge. The application shall be made in writing, and 
shall specify the material to be produced as precisely as possible, 
showing the relevancy of the material and the reasonableness of the 
scope of the subpoena. The application shall be ruled upon by the 
administrative law judge.
    (b) Enforcement of a subpoena. A motion for enforcement of a 
subpoena shall be made to the administrative law judge. Upon 
consideration of the motion and any response thereto, the administrative 
law judge shall recommend to the Commission in favor of or against 
enforcement. The administrative law judge's recommendation shall provide 
the basis therefor, and shall address each of the criteria necessary for 
enforcement of an administrative subpoena. After consideration of the 
administrative law judge's recommendation, the Commission shall 
determine whether initiation of enforcement proceedings is appropriate.
    (c) Application for subpoena grounded upon the Freedom of 
Information Act. No application for a subpoena for production of 
documents grounded upon the Freedom of Information Act (5 U.S.C. 552) 
shall be entertained by the administrative law judge or the Commission.

Sec. 207.111  Prehearing conference.

    The administrative law judge may direct the attorney or other 
representatives for the parties to meet with him or her to consider any 
or all of the following:
    (a) Simplification and clarification of the issues;
    (b) Scope of the hearing;
    (c) Stipulations and admissions of either fact or the content and 
authenticity of documents;
    (d) Disclosure of the names of witnesses and the exchange of 
documents or other physical evidence that will be introduced in the 
course of the hearing; and
    (e) Such other matters as may aid in the orderly and expeditious 
disposition of the proceedings.

Sec. 207.112  Hearings.

    (a) Purpose of and scheduling of hearings. An opportunity for a 
hearing before an administrative law judge shall be provided for each 
action initiated under Sec. 207.102 of this subpart. The purpose of such 
hearing shall be to receive evidence and hear argument in order to 
determine whether a charged party has committed a prohibited act and if 
so, what sanctions are appropriate. Hearings shall proceed with all 
reasonable expedition, and, insofar as practicable, shall be held at one 
place, continuing until completed, unless otherwise ordered by the 
administrative law judge.
    (b) Joinder or consolidation. The administrative law judge may order 
such joinder or consolidation of proceedings initiated under 
Sec. 207.102 of this subpart

[[Page 102]]

(102at the administrative law judge's discretion.
    (c) Compliance with Administrative Procedure Act. The administrative 
law judge shall conduct a hearing that complies with the requirements of 
section 554 of title 5 of the United States Code.

Sec. 207.113  The record.

    (a) Definition of the record. The record shall consist of--
    (1) The charging letter and response, motions and responses, and 
other documents and exhibits properly filed with the Commission 
Secretary;
    (2) All orders, notices, and the recommended or initial 
determinations of the administrative law judge;
    (3) Orders, notices, and any final determination of the Commission;
    (4) Hearing transcripts, and evidence admitted at the hearing; and
    (5) Any other items certified into the record by the administrative 
law judge.
    (b) Certification of the record. The record shall be certified to 
the Commission by the administrative law judge upon his or her filing of 
the initial determination.

Sec. 207.114  Initial determination.

    (a) Time for filing of initial determination. (1) Except as may 
otherwise be ordered by the Commission, within ninety (90) days of the 
date of issuance of the charging letter, the administrative law judge 
shall certify the record to the Commission and shall file with the 
Commission an initial determination as to whether each charged party has 
committed a prohibited act, and as to appropriate sanctions.
    (2) The administrative law judge may request the Commission to 
extend the time period for issuance of the initial determination for 
good cause shown.
    (b) Contents of the initial determination. The initial determination 
shall include the following:
    (1) An opinion making all necessary findings of fact and conclusions 
of law and the reasons therefor, and
    (2) A statement that the initial determination shall become the 
determination of the Commission unless a party files a petition for 
review of the determination pursuant to Sec. 207.115 or the Commission 
pursuant to Sec. 207.116 of this subpart, orders on its own motion a 
review of the initial determination or certain issues therein.
    (c) Burden of proof. A finding that a charged party committed a 
prohibited act shall be supported by clear and convincing evidence.
    (d) Effect of initial determination. The initial determination shall 
become the determination of the Commission forty-five (45) days after 
the date of service of the initial determination, unless the Commission 
within such time orders review of the initial determination or certain 
issues therein pursuant to Sec. 207.115 or 207.116 of this subpart or by 
order shall have changed the effective date of the initial 
determination. In the event an initial determination becomes the 
determination of the Commission, the parties shall be notified thereof 
by the Commission Secretary.

Sec. 207.115  Petition for review.

    (a) The petition and responses. (1) Any party may request a review 
by the Commission of the initial determination by filing with the 
Commission Secretary a petition for review, except that a party who has 
defaulted may not petition for review of any issue regarding which the 
party is in default.
    (2) Any person who wishes to obtain judicial review pursuant to 19 
U.S.C. 1677f(f)(5) must first seek review by the Commission in 
accordance with the procedures set forth in this regulation governing 
petitions for review.
    (3) Any petition for review must be filed within fourteen (14) days 
after service of the initial determination on the charged party. The 
petition shall:
    (i) Identify the party seeking review;
    (ii) Specify the issues upon which review is sought, including a 
statement as to whether review is sought of the initial determination 
regarding the commitment of a prohibited act, or of the initial 
determination regarding sanctions;
    (iii) Set forth a concise statement of the relevant law or material 
facts necessary for consideration of the stated issues; and
    (iv) Present a concise argument setting forth the reasons why review 
is necessary or appropriate.

[[Page 103]]

(103
    (4) Any issue not raised in the petition for review filed under this 
section will be deemed to have been abandoned and may be disregarded by 
the Commission.
    (5) Any party may file a response to the petition within seven (7) 
days after service of the petition, except that a party who has 
defaulted may not file a response to any issue regarding which the party 
is in default.
    (b) Grant or denial of review. (1) The Commission shall decide 
whether to grant a petition for review, in whole or in part, within 
forty-five (45) days of the service of the initial determination on the 
parties, or by such other time as the Commission may order.
    (2) The Commission shall base its decision whether to grant a 
petition for review upon the petition and response thereto, without oral 
argument or further written submissions, unless the Commission shall 
order otherwise.
    (3) The Commission shall grant a petition for review of an initial 
determination or certain issues therein when at least one of the 
participating Commissioners votes for ordering review. In its notice, 
the Commission shall establish the scope of the review and the issues 
that will be considered and make provisions for the filing of briefs and 
oral argument if deemed appropriate by the Commission. The notice that 
the Commission has granted the petition shall be served by the 
Commission Secretary on all parties.

Sec. 207.116  Commission review on its own motion.

    Within forty-five (45) days of the date of service of the initial 
determination, the Commission on its own initiative shall order review 
of an initial determination or certain issues therein upon request of 
any Commissioner.

Sec. 207.117  Review by Commission.

    On review, the parties may not present argument on any issue that is 
not set forth in the notice of review; and the Commission may affirm, 
reverse, modify, set aside or remand for further proceedings, in whole 
or in part, the initial determination of the administrative law judge. 
The Commission may make any findings or conclusions that in its judgment 
are proper based on the record in the proceeding.

Sec. 207.118  Role of the General Counsel in advising the Commission.

    The Assistant General Counsel for Section 337 Investigations shall 
serve as Acting General Counsel for the purpose of advising the 
Commission on proceedings brought under this subpart if the prohibited 
act described in the charging letter involves a protective order issued 
in connection with a panel review that was pending when the letter was 
issued, and the General Counsel participated in the panel review. No 
other Commission attorney shall advise the Commission on proceedings 
under this subpart concerning a protective order issued during a panel 
review in which the attorney participated.

Sec. 207.119  Reconsideration.

    (a) Motion for reconsideration. Within fourteen (14) days after 
service of a Commission determination, any party may file with the 
Commission a motion for reconsideration, setting forth the relief 
desired and the grounds in support thereof. Any motion filed under this 
section must be confined to new questions raised by the determination or 
action ordered to be taken thereunder and upon which the moving party 
had no opportunity to submit arguments.
    (b) Disposition of motion for reconsideration. The Commission shall 
grant or deny the motion for reconsideration. No response to a motion 
for reconsideration will be received unless requested by the Commission, 
but a motion for reconsideration will not be granted in the absence of 
such a request. If the motion to reconsider is granted, the Commission 
may affirm, set aside, or modify its determination, including any action 
ordered by it to be taken thereunder. When appropriate, the Commission 
may order the administrative law judge to take additional evidence.

Sec. 207.120  Public notice of sanctions.

    If the final Commission decision is that there has been a prohibited 
act, and that public sanctions are to be imposed, notice of the decision 
will be published in the Federal Register

[[Page 104]]

(104and forwarded to the Secretariat. Such publication will occur no 
sooner than fourteen (14) days after issuance of a final decision or 
after any motion for reconsideration has been denied. The Commission 
Secretary shall also serve notice of the Commission decision upon such 
departments and agencies of the United States, Canadian and Mexican 
governments as the Commission deems appropriate.

[[Page 105]]

(105



    SUBCHAPTER C--INVESTIGATIONS OF UNFAIR PRACTICES IN IMPORT TRADE





PART 210--ADJUDICATION AND ENFORCEMENT--Table of Contents




                Subpart A--Rules of General Applicability

Sec.
210.1  Applicability of part.
210.2  General policy.
210.3  Definitions.
210.4  Written submissions; representations; sanctions.
210.5  Confidential business information.
210.6  Computation of time, additional hearings, postponements, 
          continuances, and extensions of time.
210.7  Service of process and other documents; publication of notices.

Subpart B--Commencement of Preinstitution Proceedings and Investigations

210.8  Commencement of preinstitution proceedings.
210.9  Action of Commission upon receipt of complaint.
210.10  Institution of investigation.
210.11  Service of complaint and notice of investigation.

                          Subpart C--Pleadings

210.12  The complaint.
210.13  The response.
210.14  Amendments to pleadings and notice; supplemental submissions; 
          counterclaims.

                           Subpart D--Motions

210.15  Motions.
210.16  Default.
210.17  Failures to act other than the statutory forms of default.
210.18  Summary determinations.
210.19  Intervention.
210.20  Declassification of confidential information.
210.21  Termination of investigations.
210.22  Designating an investigation ``more complicated.''
210.23  Suspension of investigation.
210.24  Interlocutory appeals.
210.25  Sanctions.
210.26  Other motions.

               Subpart E--Discovery and Compulsory Process

210.27  General provisions governing discovery.
210.28  Depositions.
210.29  Interrogatories.
210.30  Requests for production of documents and things and entry upon 
          land.
210.31  Requests for admission.
210.32  Subpoenas.
210.33  Failure to make or cooperate in discovery; sanctions.
210.34  Protective orders.

             Subpart F--Prehearing Conferences and Hearings

210.35  Prehearing conferences.
210.36  General provisions for hearings.
210.37  Evidence.
210.38  Record.
210.39  In camera treatment of confidential information.
210.40  Proposed findings and conclusions and briefs.

               Subpart G--Determinations and Actions Taken

210.41  Termination of investigation.
210.42  Initial determinations.
210.43  Petitions for review of initial determinations on matters other 
          than temporary relief.
210.44  Commission review on its own motion of initial determinations on 
          matters other than temporary relief.
210.45  Review of initial determinations on matters other than temporary 
          relief.
210.46  Petitions for and sua sponte review of initial determinations on 
          violation of section 337 or temporary relief.
210.47  Petitions for reconsideration.
210.48  Disposition of petitions for reconsideration.
210.49  Implementation of Commission action.
210.50  Commission action, the public interest, and bonding by 
          respondents.
210.51  Period for concluding investigation.

                       Subpart H--Temporary Relief

210.52  Motions for temporary relief.
210.53  Motion filed after complaint.
210.54  Service of motion by the complainant.
210.55  Content of service copies.
210.56  Notice accompanying service copies.
210.57  Amendment of the motion.
210.58  Provisional acceptance of the motion.
210.59  Responses to the motion and the complaint.
210.60  Designating an investigation ``more complicated'' for the 
          purpose of adjudicating a motion for temporary relief.

[[Page 106]]

          (106
210.61  Discovery and compulsory process.
210.62  Evidentiary hearing.
210.63  Proposed findings and conclusions and briefs.
210.64  Interlocutory appeals.
210.65  Certification of the record.
210.66  Initial determination concerning temporary relief; Commission 
          action thereon.
210.67  Remedy, the public interest, and bonding by respondents.
210.68  Complainant's temporary relief bond.
210.69  Approval of complainant's temporary relief bond.

         Subpart I--Enforcement Procedures and Advisory Opinions

210.70  Forfeiture or return of complaintant's temporary relief bond.
210.71  Information gathering.
210.72  Confidentiality of information.
210.73  Review of reports.
210.74  Modification of reporting requirements.
210.75  Proceedings to enforce exclusion orders, cease and desist 
          orders, consent orders, and other Commission orders.
210.76  Modification or rescission of exclusion orders, cease and desist 
          orders, and consent orders.
210.77  Temporary emergency action.
210.78  Notice of enforcement action to Government agencies.
210.79  Advisory opinions.

    Authority: 19 U.S.C. 1333, 1335, and 1337.

    Source: 59 FR 39039, Aug. 1, 1994, unless otherwise noted.



Subpart A--Rules of General Applicability

Sec. 210.1  Applicability of part.

    The rules in this part apply to investigations under section 337 of 
the Tariff Act of 1930 and related proceedings. These rules are 
authorized by sections 333, 335, or 337 of the Tariff Act of 1930 (19 
U.S.C. Secs. 1333, 1335, and 1337) and sections 2 and 1342(d)(1)(B) of 
the Omnibus Trade and Competitiveness Act of 1988, Pub. L. No. 100-418, 
102 Stat. 1107 (1988).

Sec. 210.2  General policy.

    It is the policy of the Commission that, to the extent practicable 
and consistent with requirements of law, all investigations and related 
proceedings under this part shall be conducted expeditiously. The 
parties, their attorneys or other representatives, and the presiding 
administrative law judge shall make every effort at each stage of the 
investigation or related proceeding to avoid delay.

Sec. 210.3  Definitions.

    As used in this part--
    Administrative law judge means the person appointed under section 
3105 of title 5 of the United States Code who presides over the taking 
of evidence in an investigation under this part. If the Commission so 
orders or a section of this part so provides, an administrative law 
judge also may preside over stages of a related proceeding under this 
part.
    Commission investigative attorney means a Commission attorney 
designated to engage in investigatory activities in an investigation or 
a related proceeding under this part.
    Complainant means a person who has filed a complaint with the 
Commission under this part, alleging a violation of section 337 of the 
Tariff Act of 1930.
    Intervenor means a person who has been granted leave by the 
Commission to intervene as a party to an investigation or a related 
proceeding under this part.
    Investigation means a formal Commission inquiry instituted to 
determine whether there is a violation of section 337 of the Tariff Act 
of 1930. An investigation is instituted upon publication of a notice in 
the Federal Register. The investigation entails postinstitution 
adjudication of the complaint. An investigation can also involve the 
processing of one or more of the following: A motion to amend the 
complaint and notice of investigation; a motion for temporary relief; a 
motion to designate ``more complicated'' the temporary relief stage of 
the investigation; an interlocutory appeal of an administrative law 
judge's decision on a particular matter; a motion for sanctions for 
abuse of process, abuse of discovery, or failure to make or cooperate in 
discovery, which if granted, would have an impact on the adjudication of 
the merits of the complaint; a petition for reconsideration of a final 
Commission determination; a motion for termination of the investigation 
in whole or part; and procedures undertaken in response to a judgment or 
judicial order issued in an appeal of a Commission determination or

[[Page 107]]

(107remedial order issued under section 337 of the Tariff Act of 1930.
    Party means each complainant, respondent, intervenor, or Commission 
investigative attorney.
    Proposed intervenor means any person who has filed a motion to 
intervene in an investigation or a related proceeding under this part.
    Proposed respondent means any person named in a complaint filed 
under this part as allegedly violating section 337 of the Tariff Act of 
1930.
    Related proceeding means preinstitution proceedings, sanction 
proceedings (for the possible issuance of sanctions that would not have 
a bearing on the adjudication of the merits of a complaint or a motion 
under this part), bond forfeiture proceedings, proceedings to enforce, 
modify, or revoke a remedial or consent order, or advisory opinion 
proceedings.
    Respondent means any person named in a notice of investigation 
issued under this part as allegedly violating section 337 of the Tariff 
Act of 1930.

[59 FR 39039, Aug. 1, 1994, as amended at 59 FR 67626, Dec. 30, 1994]

Sec. 210.4  Written submissions; representations; sanctions.

    (a) Caption; names of parties. The front page of every written 
submission filed by a party or a proposed party to an investigation or a 
related proceeding under this part shall contain a caption setting forth 
the name of the Commission, the title of the investigation or related 
proceeding, the docket number or investigation number, if any, assigned 
to the investigation or related proceeding, and in the case of a 
complaint, the names of the complainant and all proposed respondents.
    (b) Signature. Every pleading, written motion, and other paper of a 
party or proposed party who is represented by an attorney in an 
investigation or a related proceeding under this part shall be signed by 
at least one attorney of record in the attorney's individual name. A 
party or proposed party who is not represented by an attorney shall 
sign, or his duly authorized officer or agent shall sign, the pleading, 
written motion, or other paper. Each paper shall state the signer's 
address and telephone number, if any. Pleadings, written motions, and 
other papers need not be under oath or accompanied by an affidavit, 
except as provided in Secs. 210.12(a)(1), 210.13(b), 210.18, 210.52(d), 
210.59(b), or another section of this part or by order of the 
administrative law judge or the Commission. If a pleading, motion, or 
other paper is not signed, it shall be stricken unless it is signed 
promptly after omission of the signature is called to the attention of 
the submitter.
    (c) Representations. By presenting to the presiding administrative 
law judge or the Commission (whether by signing, filing, submitting, or 
later advocating) a pleading, written motion, or other paper, an 
attorney or unrepresented party or proposed party is certifying that to 
the best of the person's knowledge, information, and belief, formed 
after an inquiry reasonable under the circumstances--
    (1) it is not being presented for any improper purpose, such as to 
harass or to cause unnecessary delay or needless increase in the cost of 
the investigation or related proceeding;
    (2) the claims, defenses, and other legal contentions therein are 
warranted by existing law or by a nonfrivolous argument for the 
extension, modification, or reversal of existing law or the 
establishment of new law;
    (3) the allegations and other factual contentions have evidentiary 
support or, if specifically so identified, are likely to have 
evidentiary support after a reasonable opportunity for further 
investigation or discovery; and
    (4) the denials of factual contentions are warranted on the evidence 
or, if specifically so identified, are reasonably based on a lack of 
information or belief.
    (d) Sanctions. If, after notice and a reasonable opportunity to 
respond (see paragraphs (d)(1) (i) and (ii) of this section and 
Sec. 210.25), the presiding administrative law judge or the Commission 
determines that paragraph (c) of this section has been violated, the 
administrative law judge or the Commission may, subject to the 
conditions stated below and in Sec. 210.25, impose an appropriate 
sanction upon the attorneys, law firms, or parties that have violated 
paragraph (c) or are responsible for the violation. A representation 
need not be

[[Page 108]]

(108frivolous in its entirety in order for the administrative law judge 
or the Commission to determine that paragraph (c) has been violated. If 
any portion of a representation is found to be false, frivolous, 
misleading, or otherwise in violation of paragraph (c), a sanction may 
be imposed. In determining whether paragraph (c) has been violated, the 
administrative law judge or the Commission will consider whether the 
representation or disputed portion thereof was objectively reasonable 
under the circumstances.
    (1) How initiated--(i) By motion. A motion for sanctions under this 
section shall be made separately from other motions or requests and 
shall describe the specific conduct alleged to violate paragraph (c). It 
shall be served as provided in paragraph (g) of this section, but shall 
not be filed with or presented to the presiding administrative law judge 
or the Commission unless, within seven days after service of the motion 
(or such other period as the administrative law judge or the Commission 
may prescribe), the challenged paper, claim, defense, contention, 
allegation, or denial is not withdrawn or appropriately corrected. See 
also Sec. 210.25 (a) through (c). If warranted, the administrative law 
judge or the Commission may award to the party or proposed party 
prevailing on the motion the reasonable expenses and attorney's fees 
incurred in presenting or opposing the motion. Absent exceptional 
circumstances, a law firm shall be held jointly responsible for 
violations committed by its partners, associates, and employees.
    (ii) On the administrative law judge's or the Commission's 
initiative. The administrative law judge or the Commission may enter an 
order sua sponte describing the specific conduct that appears to violate 
paragraph (c) of this section and directing an attorney, law firm, 
party, or proposed party to show cause why it has not violated paragraph 
(c) with respect thereto.
    (2) Nature of sanctions; limitations. A sanction imposed for 
violation of paragraph (c) of this section shall be limited to what is 
sufficient to deter repetition of such conduct or comparable conduct by 
others similarly situated. Subject to the limitations in paragraphs 
(d)(2) (i) through (iv) of this section, the sanction may consist of, or 
include, directives of a nonmonetary nature, an order to pay a penalty, 
or, if imposed on motion and warranted for effective deterrence, an 
order directing payment to the movant of some or all of the reasonable 
attorney's fees and other expenses incurred as a direct result of the 
violation.
    (i) Monetary sanctions shall not be imposed under this section 
against the United States, the Commission, or a Commission investigative 
attorney.
    (ii) Monetary sanctions may not be awarded against a represented 
party or proposed party for a violation of paragraph (c)(2) of this 
section.
    (iii) Monetary sanctions may not be imposed on the administrative 
law judge's or the Commission's initiative unless--
    (A) The Commission or the administrative law judge issues an order 
to show cause before the investigation or related proceeding is 
terminated, in whole or in relevant part, as to the party or proposed 
party which is, or whose attorneys are, to be sanctioned; and
    (B) such termination is the result of--
    (1) A motion to withdraw the complaint, motion, or petition that was 
the basis for the investigation or related proceeding;
    (2) A settlement agreement;
    (3) A consent order agreement; or
    (4) An arbitration agreement.
    (iv) Monetary sanctions imposed to compensate the Commission for 
expenses incurred by a Commission investigative attorney or the 
Commission's Office of Unfair Import Investigations will include 
reimbursement for some or all costs reasonably incurred as a direct 
result of the violation, but will not include attorney's fees.
    (3) Order. When imposing sanctions, the administrative law judge or 
the Commission shall describe the conduct determined to constitute a 
violation of this rule and explain the basis for the sanction imposed. 
See also Sec. 210.25(d)--(f).
    (e) Inapplicability to discovery. Paragraphs (c) and (d) of this 
section do not apply to discovery requests, responses,

[[Page 109]]

(109objections, and motions that are subject to provisions of 
Secs. 210.27 through 210.34.
    (f) Specifications; filing of documents. (1) (i) Written submissions 
that are addressed to the Commission during an investigation or a 
related proceeding shall comply with Sec. 201.8 of this chapter, except 
for the provisions regarding the number of copies to be submitted. The 
required number of copies shall be governed by paragraph (f)(2) of this 
section. Written submissions may be produced by standard typographic 
printing or by a duplicating or copying process which produces a clear 
black image on white paper. If the submission is produced by other than 
the standard typographical process used by commercial printers, typed 
matter shall not exceed 6\1/2\ by 9\1/2\ inches using 10-pitch (pica) or 
larger pitch type or 5\1/2\ by 8\1/2\ inches using 11-point or larger 
proportional spacing type, and shall be double-spaced between each line 
of text using the standard of 6 lines of type per inch. Text and 
footnotes shall be in the same size type. Quotations more than two lines 
long in the text or footnotes may be indented and single-spaced. 
Headings and footnotes may be single-spaced.
    (ii) The administrative law judge may impose any specifications he 
deems appropriate for submissions that are addressed to the 
administrative law judge.
    (2) Unless the Commission or another section of this part 
specifically states otherwise, the original and 6 true copies of each 
submission shall be filed if the investigation or related proceeding is 
before an administrative law judge, and the original and 14 true copies 
of each submission shall be filed if the investigation or related 
proceeding is before the Commission.
    (3)(i) If a complaint, a supplement to a complaint, a motion for 
temporary relief, or the documentation supporting a motion for temporary 
relief contains confidential business information as defined in 
Sec. 201.6(a) of this chapter, the complainant shall file 
nonconfidential copies of the complaint, the supplement to the 
complaint, the motion for temporary relief, or the documentation 
supporting the motion for temporary relief concurrently with the 
requisite confidential copies, as provided in Sec. 210.8(a) of this 
part.
    (ii) Persons who file the following submissions that contain 
confidential business information covered by an administrative 
protective order, or that are the subject of a request for confidential 
treatment, must file nonconfidential copies and serve them on the other 
parties to the investigation or related proceeding within 10 calendar 
days after filing the confidential version with the Commission:
    (A) A response to a complaint and all supplements and exhibits 
thereto;
    (B) All submissions relating to a motion to amend the complaint or 
notice of investigation; and
    (C) All submissions addressed to the Commission.
Other sections of this part may require, or the Commission or the 
administrative law judge may order, the filing and service of 
nonconfidential copies of other kinds of confidential submissions. If 
the submitter's ability to prepare a nonconfidential copy is dependent 
upon receipt of the nonconfidential version of an initial determination, 
or a Commission order or opinion, or a ruling by the administrative law 
judge or the Commission as to whether some or all of the information at 
issue is entitled to confidential treatment, the nonconfidential copies 
of the submission must be filed within 10 calendar days after service of 
the Commission or administrative law judge document in question. The 
time periods for filing specified in this paragraph apply unless the 
Commission, the administrative law judge, or another section of this 
part specifically provides otherwise.
    (g) Service. Unless the Commission, the administrative law judge, or 
another section of this part specifically provides otherwise, every 
written submission filed by a party or proposed party shall be served on 
all other parties in the manner specified in Sec. 201.16(b) of this 
chapter.

[59 FR 39039, Aug. 1, 1994; 59 FR 64286, Dec. 14, 1994, as amended at 59 
FR 67626, Dec. 30, 1994; 60 FR 32443, June 22, 1995]

[[Page 110]]

(110

Sec. 210.5  Confidential business information.

    (a) Definition and submission. Confidential business information 
shall be defined and identified in accordance with Sec. 201.6 (a) and 
(c) of this chapter. Unless the Commission, the administrative law 
judge, or another section of this part states otherwise, confidential 
business information shall be submitted in accordance with Sec. 201.6(b) 
of this chapter. In the case of a complaint, any supplement to the 
complaint, and a motion for temporary relief filed under this part, the 
number of nonconfidential copies shall be prescribed by Sec. 210.8(a) of 
this part.
    (b) Restrictions on disclosure. Information submitted to the 
Commission or exchanged among the parties in connection with an 
investigation or a related proceeding under this part, which is properly 
designated confidential under paragraph (a) of this section and 
Sec. 201.6(a) of this chapter, may not be disclosed to anyone other than 
the following persons without the consent of the submitter:
    (1) Persons who are granted access to confidential information under 
Sec. 210.39(a) or a protective order issued pursuant to Sec. 210.34(a);
    (2) An officer or employee of the Commission who is directly 
concerned with--
    (i) Carrying out or maintaining the records of the investigation or 
related proceeding for which the information was submitted;
    (ii) The administration of a bond posted pursuant to subsection (e), 
(f), or (j) of section 337 of the Tariff Act of 1930;
    (iii) The administration or enforcement of an exclusion order issued 
pursuant to subsection (d), (e), or (g), a cease and desist order issued 
pursuant to subsection (f), or a consent order issued pursuant to 
subsection (c) of section 337 of the Tariff Act of 1930; or
    (iv) Proceedings for the modification or rescission of a temporary 
or permanent order issued under subsection (d), (e), (f), (g), or (i) of 
section 337 of the Tariff Act of 1930, or a consent order issued under 
section 337 of the Tariff Act of 1930;
    (3) An officer or employee of the United States Government who is 
directly involved in a review conducted pursuant to section 337(j) of 
the Tariff Act of 1930; or
    (4) An officer or employee of the United States Customs Service who 
is directly involved in administering an exclusion from entry under 
section 337 (d), (e), or (g) of the Tariff Act of 1930 resulting from 
the investigation or related proceeding in connection with which the 
information was submitted.
    (c) Transmission of certain records to district court. 
Notwithstanding paragraph (b) of this section, confidential business 
information may be transmitted to a district court and be admissible in 
a civil action, subject to such protective order as the district court 
determines necessary, pursuant to 28 U.S.C. 1659.
    (d) Confidentiality determinations in preinstitution proceedings. 
After a complaint is filed under section 337 of the Tariff Act of 1930 
and before an investigation is instituted by the Commission, 
confidential business information designated confidential by the 
supplier shall be submitted in accordance with Sec. 201.6(b) of this 
chapter. The Secretary shall decide, in accordance with Sec. 201.6(d) of 
this chapter, whether the information is entitled to confidential 
treatment. Appeals from the ruling of the Secretary shall be made to the 
Commission as set forth in Sec. 201.6(e) and (f) of this chapter.
    (e) Confidentiality determinations in investigations and other 
related proceedings. (1) If an investigation is instituted or if a 
related proceeding is assigned to an administrative law judge, the 
administrative law judge shall set the ground rules for the designation, 
submission, and handling of information designated confidential by the 
submitter. When requested to do so, the administrative law judge shall 
decide whether information in a document addressed to the administrative 
law judge, or to be exchanged among the parties while the administrative 
law judge is presiding, is entitled to confidential treatment. The 
administrative law judge shall also decide, with respect to all orders, 
initial determinations, or other documents issued by the administrative 
law judge, whether information designated confidential by the supplier 
is entitled to confidential

[[Page 111]]

(111treatment. The supplier of the information or the person seeking the 
information may, with leave of the administrative law judge, request an 
appeal to the Commission of the administrative law judge's unfavorable 
ruling on this issue, under Sec. 210.24(b)(2).
    (2) The Commission may continue protective orders issued by the 
administrative law judge, amend or revoke those orders, or issue new 
ones. All submissions addressed to the Commission that contain 
information covered by an existing protective order will be given 
confidential treatment. (See also Sec. 210.72.) New information that is 
submitted to the Commission, designated confidential by the supplier, 
and not covered by an existing protective order must be submitted to the 
Secretary with a request for confidential treatment in accordance with 
Sec. 201.6(b) and (c) of this chapter. The Secretary shall decide, in 
accordance with Sec. 201.6(d) of this chapter, whether the information 
is entitled to confidential treatment. Appeals from the ruling of the 
Secretary shall be made to the Commission as provided in Sec. 201.6(e) 
and (f) of this chapter. The Commission shall decide, with respect to 
all orders, notices, opinions, and other documents issued by or on 
behalf of the Commission, whether information designated confidential by 
the supplier is entitled to confidential treatment.

[59 FR 39039, Aug. 1, 1994, as amended at 59 FR 67626, Dec. 30, 1994; 60 
FR 32444, June 22, 1995]

Sec. 210.6  Computation of time, additional hearings, postponements, 
          continuances, and extensions of time.

    Unless the Commission, the administrative law judge, or another 
section of this part specifically provides otherwise, the computation of 
time and the granting of additional hearings, postponements, 
continuances, and extensions of time shall be in accordance with 
Secs. 201.14 and 201.16(d) of this chapter. Whenever a party has the 
right or is required to perform some act or to take some action within a 
prescribed period after service of a document upon it, and the document 
was served by mail, the deadline shall be computed by adding to the end 
of the prescribed period the additional time allotted under 
Sec. 201.16(d), unless the Commission, the administrative law judge, or 
another section of this part specifically provides otherwise.

Sec. 210.7  Service of process and other documents; publication of 
          notices.

    (a) Manner of service. The service of process and all documents 
issued by or on behalf of the Commission or the administrative law 
judge--and the service of all documents issued by parties under 
Secs. 210.27 through 210.34 of this part--shall be in accordance with 
Sec. 201.16 of this chapter, unless the Commission, the administrative 
law judge, or another section of this part specifically provides 
otherwise.
    (b) Publication of notices. (1) Notice of action by the Commission 
or an administrative law judge will be published in the Federal Register 
only as specifically provided in paragraph (b)(2) of this section, by 
another section in this chapter, or by order of an administrative law 
judge or the Commission.
    (2) When an administrative law judge or the Commission determines to 
amend or supplement a notice published in accordance with paragraph 
(b)(1) of this section, notice of the amendment will be published in the 
Federal Register.

[60 FR 53119, Oct. 12, 1995]



Subpart B--Commencement of Preinstitution Proceedings and Investigations

Sec. 210.8  Commencement of preinstitution proceedings.

    (a) Upon receipt of complaint. A preinstitution proceeding is 
commenced by filing with the Secretary a signed original complaint and 
the requisite number of true copies. The complainant shall file 14 
confidential copies of the complaint, 14 nonconfidential copies, plus 
one confidential copy and one nonconfidential copy for each person named 
in the complaint as violating section 337 of the Tariff Act of 1930, and 
one nonconfidential copy for the government of each foreign country of 
any person or persons so named. The same requirements apply for the 
filing of a supplement to the complaint. If

[[Page 112]]

(112the complainant is seeking temporary relief, the complainant must 
file 14 confidential copies of the motion, 14 nonconfidential copies, 
plus one additional confidential copy and one additional nonconfidential 
copy of the motion for such relief for each proposed respondent, and one 
nonconfidential copy for the government of the foreign country of the 
proposed respondent. The additional copies of the complaint and motion 
for temporary relief for each proposed respondent and the appropriate 
foreign government are to be provided notwithstanding the procedures 
applicable to a motion for temporary relief, which require service of 
the complaint and motion for temporary relief by the complainant.
    (b) Upon the initiative of the Commission. The Commission may upon 
its initiative commence a preinstitution proceeding based upon any 
alleged violation of section 337 of the Tariff Act of 1930.

[59 FR 39039, Aug. 1, 1994, as amended at 60 FR 32444, June 22, 1995]

Sec. 210.9  Action of Commission upon receipt of complaint.

    Upon receipt of a complaint alleging violation of section 337 of the 
Tariff Act of 1930, the Commission shall take the following actions:
    (a) Examination of complaint. The Commission shall examine the 
complaint for sufficiency and compliance with the applicable sections of 
this chapter.
    (b) Informal investigatory activity. The Commission shall identify 
sources of relevant information, assure itself of the availability 
thereof, and, if deemed necessary, prepare subpoenas therefore, and give 
attention to other preliminary matters.

Sec. 210.10  Institution of investigation.

    (a)(1) The Commission shall determine whether the complaint is 
properly filed and whether an investigation should be instituted on the 
basis of the complaint. That determination shall be made within 30 days 
after the complaint is filed, unless--
    (i) Exceptional circumstances preclude adherence to a 30-day 
deadline;
    (ii) Additional time is allotted under other sections of this part 
in connection with the preinstitution processing of a motion by the 
complainant for temporary relief;
    (iii) The complainant requests that the Commission postpone the 
determination on whether to institute an investigation; or
    (iv) The complainant withdraws the complaint.
    (2) If exceptional circumstances preclude Commission adherence to 
the 30-day deadline for determining whether to institute an 
investigation on the basis of the complaint, the determination will be 
made as soon after that deadline as possible.
    (3) If additional time is allotted in connection with the 
preinstitution processing of a motion by the complainant for temporary 
relief, the Commission will determine whether to institute an 
investigation and provisionally accept the motion within 35 days after 
the filing of the complaint or by a subsequent deadline computed in 
accordance with Sec. 210.53(a), Sec. 210.54, Sec. 210.55(b), 
Sec. 210.57, or Sec. 210.58 as applicable.
    (4) If the complainant desires to have the Commission postpone 
making a determination on whether to institute an investigation in 
response to the complaint, the complainant must file a written request 
with the Secretary. If the request is granted, the determination will be 
rescheduled for whatever date is appropriate in light of the facts.
    (5)(i) The complainant may withdraw the complaint as a matter of 
right at any time before the Commission votes on whether to institute an 
investigation. To effect such withdrawal, the complainant must file a 
written notice with the Commission. If the complaint is being withdrawn 
pursuant to a settlement agreement, a copy of the agreement must be 
filed with the Commission along with the notice of withdrawal. If the 
agreement contains confidential business information within the meaning 
of Sec. 201.6(a) of this chapter, at least one copy of the agreement 
with such information deleted shall accompany the motion, in addition to 
a copy of the confidential version.
    (ii) If a motion for temporary relief was filed in addition to the 
complaint, the motion must be withdrawn along

[[Page 113]]

(113with the complaint, and the complainant must serve copies of the 
notice of withdrawal on all proposed respondents and on the embassies 
that were served with copies of the complaint and motion pursuant to 
Sec. 210.54.
    (b) An investigation shall be instituted by the publication of a 
notice in the Federal Register. The notice will define the scope of the 
investigation and may be amended as provided in Sec. 210.14 (b) and (c).
    (c) If the Commission determines not to institute an investigation 
on the basis of the complaint, the complaint shall be dismissed, and the 
complainant and all proposed respondents will receive written notice of 
the Commission's action and the reason(s) therefor.

Sec. 210.11  Service of complaint and notice of investigation.

    (a)(1) Notwithstanding the provisions of Sec. 210.54 requiring 
service of the complaint by the complainant, the Commission, upon 
institution of an investigation, shall serve copies of the complaint and 
the notice of investigation (and any accompanying motion for temporary 
relief) upon each respondent and the embassy in Washington, DC of the 
government of each foreign country represented by each respondent. All 
respondents named after an investigation has been instituted and the 
governments of the foreign countries they represent shall be served as 
soon as possible after the respondents are named.
    (2) The Commission shall serve copies of the notice of investigation 
upon the U.S. Department of Health and Human Services, the U.S. 
Department of Justice, the Federal Trade Commission, the U.S. Customs 
Service, and such other agencies and departments as the Commission 
considers appropriate.
    (b) With leave from the presiding administrative law judge, a party 
may attempt to effect personal service of the complaint and notice of 
investigation upon a respondent, if the Secretary's efforts to serve the 
respondent by certified mail have been unsuccessful. If the party 
succeeds in serving the respondent by personal service, the party must 
notify the administrative law judge and file proof of such service with 
the Secretary.

[59 FR 39039, Aug. 1, 1994, as amended at 60 FR 53119, Oct. 12, 1995]



Subpart C--Pleadings

Sec. 210.12  The complaint.

    (a) Contents of the complaint. In addition to conforming with the 
requirements of Sec. 201.8 of this chapter and Secs. 210.4 and 210.5 of 
this part, the complaint shall--
    (1) Be under oath and signed by the complainant or his duly 
authorized officer, attorney, or agent, with the name, address, and 
telephone number of the complainant and any such officer, attorney, or 
agent given on the first page of the complaint;
    (2) Include a statement of the facts constituting the alleged unfair 
methods of competition and unfair acts;
    (3) Describe specific instances of alleged unlawful importations or 
sales, and shall provide the Tariff Schedules of the United States item 
number(s) for importations occurring prior to January 1, 1989, and the 
Harmonized Tariff Schedule of the United States item number(s) for 
importations occurring on or after January 1, 1989;
    (4) State the name, address, and nature of the business (when such 
nature is known) of each person alleged to be violating section 337 of 
the Tariff Act of 1930;
    (5) Include a statement as to whether the alleged unfair methods of 
competition and unfair acts, or the subject matter thereof, are or have 
been the subject of any court or agency litigation, and, if so, include 
a brief summary of such litigation;
    (6)(i) If the complaint alleges a violation of section 337 based on 
infringement of a U.S. patent, or a federally registered copyright, 
trademark, or mask work, under section 337(a)(1) (B), (C), or (D) of the 
Tariff Act of 1930, include a description of the relevant domestic 
industry as defined in section 337(a)(3) that allegedly exists or is in 
the process of being established, including the relevant operations of 
any licensees. Relevant information includes but is not limited to:
    (A) Significant investment in plant and equipment;

[[Page 114]]

(114
    (B) Significant employment of labor or capital; or
    (C) Substantial investment in the exploitation of the subject 
patent, copyright, trademark, or mask work, including engineering, 
research and development, or licensing; or
    (ii) If the complaint alleges a violation of section 337 of the 
Tariff Act of 1930 based on unfair methods of competition and unfair 
acts that have the threat or effect of destroying or substantially 
injuring an industry in the United States or preventing the 
establishment of such an industry under section 337(a)(1)(A) (i) or 
(ii), include a description of the domestic industry affected, including 
the relevant operations of any licensees; or
    (iii) If the complaint alleges a violation of section 337 of the 
Tariff Act of 1930 based on unfair methods of competition or unfair acts 
that have the threat or effect of restraining or monopolizing trade and 
commerce in the United States under section 337(a)(1)(A)(iii), include a 
description of the trade and commerce affected.
    (7) Include a description of the complainant's business and its 
interests in the relevant domestic industry or the relevant trade and 
commerce. For every intellectual property based complaint (regardless of 
the type of intellectual property right involved), include a showing 
that at least one complainant is the owner or exclusive licensee of the 
subject intellectual property; and
    (8) If the alleged violation involves an unfair method of 
competition or an unfair act other than those listed in paragraph 
(a)(6)(i) of this section, state a specific theory and provide 
corroborating data to support the allegation(s) in the complaint 
concerning the existence of a threat or effect to destroy or 
substantially injure a domestic industry, to prevent the establishment 
of a domestic industry, or to restrain or monopolize trade and commerce 
in the United States. The information that should ordinarily be provided 
includes the volume and trend of production, sales, and inventories of 
the involved domestic article; a description of the facilities and 
number and type of workers employed in the production of the involved 
domestic article; profit-and-loss information covering overall 
operations and operations concerning the involved domestic article; 
pricing information with respect to the involved domestic article; when 
available, volume and sales of imports; and other pertinent data.
    (9) Include, when a complaint is based upon the infringement of a 
valid and enforceable U.S. patent--
    (i) The identification of each U.S. letters patent and a certified 
copy thereof (a legible copy of each such patent will suffice for each 
required copy of the complaint);
    (ii) The identification of the ownership of each involved U.S. 
letters patent and a certified copy of each assignment of each such 
patent (a legible copy thereof will suffice for each required copy of 
the complaint);
    (iii) The identification of each licensee under each involved U.S. 
letters patent;
    (iv) When known, a list of each foreign patent, each foreign patent 
application (not already issued as a patent), and each foreign patent 
application that has been denied corresponding to each involved U.S. 
letters patent, with an indication of the prosecution status of each 
such foreign patent application;
    (v) A nontechnical description of the invention of each involved 
U.S. letters patent;
    (vi) A reference to the specific claims in each involved U.S. 
letters patent that allegedly cover the article imported or sold by each 
person named as violating section 337 of the Tariff Act of 1930, or the 
process under which such article was produced;
    (vii) A showing that each person named as violating section 337 of 
the Tariff Act of 1930 is importing or selling the article covered by, 
or produced under the involved process covered by, the above specific 
claims of each involved U.S. letters patent. The complainant shall make 
such showing by appropriate allegations, and when practicable, by a 
chart that applies an exemplary claim of each involved U.S. letters 
patent to a representative involved domestic article or process and to a 
representative involved article of each person named as violating 
section 337 of the Tariff Act or to the process

[[Page 115]]

(115under which such article was produced; and
    (viii) Drawings, photographs, or other visual representations of 
both the involved domestic article or process and the involved article 
of each person named as violating section 337 of the Tariff Act of 1930, 
or of the process utilized in producing the imported article, and, when 
a chart is furnished under paragraph (a)(9)(vii) of this section, the 
parts of such drawings, photographs, or other visual representations 
should be labeled so that they can be read in conjunction with such 
chart; and
    (10) Contain a request for relief, and if temporary relief is 
requested under section 337 (e) and/or (f) of the Tariff Act of 1930, a 
motion for such relief shall accompany the complaint as provided in 
Sec. 210.52(a) or may follow the complaint as provided in 
Sec. 210.53(a).
    (b) Submissions of articles as exhibits. At the time the complaint 
is filed, if practicable, the complainant shall submit both the domestic 
article and all imported articles that are the subject of the complaint.
    (c) Additional material to accompany each patent-based complaint. 
There shall accompany the submission of the original of each complaint 
based upon the alleged unauthorized importation or sale of an article 
covered by, or produced under a process covered by, the claims of a 
valid U.S. letters patent the following:
    (1) Three copies of each license agreement arising out of each 
involved U.S. letters patent, except that, to the extent that a standard 
license agreement is used, three copies of the standard license 
agreement and a list of the licensees operating under such agreement 
will suffice;
    (2) One certified copy of the U.S. Patent and Trademark Office 
prosecution history for each involved U.S. letters patent, plus three 
additional copies thereof; and
    (3) Four copies of each patent and applicable pages of each 
technical reference mentioned in the prosecution history of each 
involved U.S. letters patent.
    (d) Additional material to accompany each registered trademark-based 
complaint. There shall accompany the submission of the original of each 
complaint based upon the alleged unauthorized importation or sale of an 
article covered by a Federally registered trademark, one certified copy 
of the Federal registration and three additional copies, three copies of 
each license agreement (if any) concerning use of the trademark, except 
that if a standard license agreement is used, three copies of that 
agreement and a list of the licensees operating under it will suffice;
    (e) Additional material to accompany each complaint based on a non-
Federally registered trademark. There shall accompany the submission of 
the original of each complaint based upon the alleged unauthorized 
importation or sale of an article covered by a non-Federally registered 
trademark the following:
    (1) A detailed and specific description of the alleged trademark;
    (2) Information concerning prior attempts to register the alleged 
trademark; and
    (3) Information on the status of current attempts to register the 
alleged trademark.
    (f) Additional material to accompany each copyright-based complaint. 
There shall accompany the submission of the original of each complaint 
based upon the alleged unauthorized importation or sale of an article 
covered by a copyright one certified copy of the Federal registration 
and three additional copies, three copies of each license agreement (if 
any) concerning use of the copyright, except that if a standard license 
agreement is used, three copies of that agreement and a list of the 
licensees operating under it will suffice;
    (g) Additional material to accompany each registered mask work-based 
complaint. There shall accompany the submission of the original of each 
complaint based upon the alleged unauthorized importation or sale of a 
semiconductor chip in a manner that constitutes infringement of a 
Federally registered mask work, one certified copy of the Federal 
registration and three additional copies, three copies of each license 
agreement (if any) concerning use of the mask work, except that if a 
standard license agreement is used, three copies of that agreement

[[Page 116]]

(116and a list of the licensees operating under it will suffice;
    (h) Duty to supplement complaint. Complainant shall supplement the 
complaint prior to institution of an investigation if complainant 
obtains information upon the basis of which he knows or reasonably 
should know that a material legal or factual assertion in the complaint 
is false or misleading.

[59 FR 39039, Aug. 1, 1994; 59 FR 64286, Dec. 14, 1994]

Sec. 210.13  The response.

    (a) Time for response. Except as provided in Sec. 210.59(a) and 
unless otherwise ordered in the notice of investigation or by the 
administrative law judge, respondents shall have 20 days from the date 
of service of the complaint and notice of investigation, by the 
Commission under Sec. 210.11(a) or by a party under Sec. 210.11(b), 
within which to file a written response to the complaint and the notice 
of investigation. When the investigation involves a motion for temporary 
relief and has not been declared ``more complicated,'' the response to 
the complaint and notice of investigation must be filed along with the 
response to the motion for temporary relief--i.e., within 10 days after 
service of the complaint, notice of investigation, and the motion for 
temporary relief by the Commission under Sec. 210.11(a) or by a party 
under Sec. 210.11(b). (See Sec. 210.59.)
    (b) Content of the response. In addition to conforming to the 
requirements of Sec. 201.8 of this chapter and Secs. 210.4 and 210.5 of 
this part, each response shall be under oath and signed by respondent or 
his duly authorized officer, attorney, or agent with the name, address, 
and telephone number of the respondent and any such officer, attorney, 
or agent given on the first page of the response. Each respondent shall 
respond to each allegation in the complaint and in the notice of 
investigation, and shall set forth a concise statement of the facts 
constituting each ground of defense. There shall be a specific 
admission, denial, or explanation of each fact alleged in the complaint 
and notice, or if the respondent is without knowledge of any such fact, 
a statement to that effect. Allegations of a complaint and notice not 
thus answered may be deemed to have been admitted. Each response shall 
include, when available, statistical data on the quantity and value of 
imports of the involved article. Respondents who are importers must also 
provide the Harmonized Tariff Schedule item number(s) for importations 
of the accused imports occurring on or after January 1, 1989, and the 
Tariff Schedules of the United States item number(s) for importations 
occurring before January 1, 1989. Each response shall also include a 
statement concerning the respondent's capacity to produce the subject 
article and the relative significance of the United States market to its 
operations. Respondents who are not manufacturing their accused imports 
shall state the name and address of the supplier(s) of those imports. 
Affirmative defenses shall be pleaded with as much specificity as 
possible in the response. When the alleged unfair methods of competition 
and unfair acts are based upon the claims of a valid U.S. letters 
patent, the respondent is encouraged to make the following showing when 
appropriate:
    (1) If it is asserted in defense that the article imported or sold 
by respondents is not covered by, or produced under a process covered 
by, the claims of each involved U.S. letters patent, a showing of such 
noncoverage for each involved claim in each U.S. letters patent in 
question shall be made, which showing may be made by appropriate 
allegations and, when practicable, by a chart that applies the involved 
claims of each U.S. letters patent in question to a representative 
involved imported article of the respondent or to the process under 
which such article was produced;
    (2) Drawings, photographs, or other visual representations of the 
involved imported article of respondent or the process utilized in 
producing such article, and, when a chart is furnished under paragraph 
(b)(1) of this section, the parts of such drawings, photographs, or 
other visual representations, should be labeled so that they can be read 
in conjunction with such chart; and
    (3) If the claims of any involved U.S. letters patent are asserted 
to be invalid

[[Page 117]]

(117or unenforceable, the basis for such assertion, including, when 
prior art is relied on, a showing of how the prior art renders each 
claim invalid or unenforceable and a copy of such prior art. For good 
cause, the presiding administrative law judge may waive any of the 
substantive requirements imposed under this paragraph or may impose 
additional requirements.
    (c) Submission of article as exhibit. At the time the response is 
filed, if practicable, the respondent shall submit the accused article 
imported or sold by that respondent, unless the article has already been 
submitted by the complainant.

Sec. 210.14  Amendments to pleadings and notice; supplemental 
          submissions; counterclaims.

    (a) Preinstitution amendments. The complaint may be amended at any 
time prior to the institution of the investigation.
    (b) Postinstitution amendments generally. (1) After an investigation 
has been instituted, the complaint or notice of investigation may be 
amended only by leave of the Commission for good cause shown and upon 
such conditions as are necessary to avoid prejudicing the public 
interest and the rights of the parties to the investigation. A motion 
for amendment must be made to the presiding administrative law judge. If 
the proposed amendment of the complaint would require amending the 
notice of investigation, the presiding administrative law judge may 
grant the motion only by filing with the Commission an initial 
determination. All other dispositions of such motions shall be by order.
    (2) If disposition of the issues in an investigation on the merits 
will be facilitated, or for other good cause shown, the presiding 
administrative law judge may allow appropriate amendments to pleadings 
other than complaints upon such conditions as are necessary to avoid 
prejudicing the public interest and the rights of the parties to the 
investigation.
    (c) Postinstitution amendments to conform to evidence. When issues 
not raised by the pleadings or notice of investigation, but reasonably 
within the scope of the pleadings and notice, are considered during the 
taking of evidence by express or implied consent of the parties, they 
shall be treated in all respects as if they had been raised in the 
pleadings and notice. Such amendments of the pleadings and notice as may 
be necessary to make them conform to the evidence and to raise such 
issues shall be allowed at any time, and shall be effective with respect 
to all parties who have expressly or impliedly consented.
    (d) Supplemental submissions. The administrative law judge may, upon 
reasonable notice and on such terms as are just, permit service of a 
supplemental submission setting forth transactions, occurrences, or 
events that have taken place since the date of the submission sought to 
be supplemented and that are relevant to any of the issues involved.
    (e) Counterclaims. At any time after institution of the 
investigation, but not later than ten business days before the 
commencement of the evidentiary hearing, a respondent may file a 
counterclaim at the Commission in accordance with section 337(c) of the 
Tariff Act of 1930. Counterclaims shall be filed in a separate document. 
A respondent who files such a counterclaim shall immediately file a 
notice of removal with a United States district court in which venue for 
any of the counterclaims raised by the respondent would exist under 28 
U.S.C. 1391.

[59 FR 39039, Aug. 1, 1994, as amended at 59 FR 67627, Dec. 30, 1994]



Subpart D--Motions

Sec. 210.15  Motions.

    (a) Presentation and disposition. (1) During the period between the 
institution of an investigation and the assignment of the investigation 
to a presiding administrative law judge, all motions shall be addressed 
to the chief administrative law judge. During the time that an 
investigation or related proceeding is before an administrative law 
judge, all motions therein shall be addressed to the administrative law 
judge.
    (2) When an investigation or related proceeding is before the 
Commission, all motions shall be addressed to the Chairman of the 
Commission. A motion

[[Page 118]]

(118to amend the complaint and notice of investigation to name an 
additional respondent after institution shall be served on the proposed 
respondent. All motions shall be filed with the Secretary and shall be 
served upon each party.
    (b) Content. All written motions shall state the particular order, 
ruling, or action desired and the grounds therefor.
    (c) Responses to motions. Within 10 days after service of any 
written motions, or within such longer or shorter time as may be 
designated by the administrative law judge or the Commission, a 
nonmoving party, or in the instance of a motion to amend the complaint 
or notice of investigation to name an additional respondent after 
institution, the proposed respondent, shall respond or he may be deemed 
to have consented to the granting of the relief asked for in the motion. 
The moving party shall have no right to reply, except as permitted by 
the administrative law judge or the Commission.
    (d) Motions for extensions. As a matter of discretion, the 
administrative law judge or the Commission may waive the requirements of 
this section as to motions for extension of time, and may rule upon such 
motions ex parte.

Sec. 210.16  Default.

    (a) Definition of default. (1) A party shall be found in default if 
it fails to respond to the complaint and notice of investigation in the 
manner prescribed in Sec. 210.13 or Sec. 210.59(c), or otherwise fails 
to answer the complaint and notice, and fails to show cause why it 
should not be found in default.
    (2) A party may be found in default as a sanction for abuse of 
process, under Sec. 210.4(c), or failure to make or cooperate in 
discovery, under Sec. 210.33(b).
    (b) Procedure for determining default. (1) If a respondent has 
failed to respond or appear in the manner described in paragraph (a)(1) 
of this section, a party may file a motion for, or the administrative 
law judge may issue upon his own initiative, an order directing that 
respondent to show cause why it should not be found in default. If the 
respondent fails to make the necessary showing, the administrative law 
judge shall issue an initial determination finding the respondent in 
default. An administrative law judge's decision denying a motion for a 
finding of default under paragraph (a)(1) of this section shall be in 
the form of an order.
    (2) Any party may file a motion for issuance of, or the 
administrative law judge may issue on his own initiative, an initial 
determination finding a party in default for abuse of process under 
Sec. 210.4(c) or failure to make or cooperate in discovery. A motion for 
a finding of default as a sanction for abuse of process or failure to 
make or cooperate in discovery shall be granted by initial determination 
or denied by order.
    (3) A party found in default shall be deemed to have waived its 
right to appear, to be served with documents, and to contest the 
allegations at issue in the investigation.
    (c) Relief against a respondent in default. (1) After a respondent 
has been found in default by the Commission, the complainant may file 
with the Commission a declaration that it is seeking immediate entry of 
relief against the respondent in default. The facts alleged in the 
complaint will be presumed to be true with respect to the defaulting 
respondent. The Commission may issue an exclusion order, a cease and 
desist order, or both, affecting the defaulting respondent only after 
considering the effect of such order(s) upon the public health and 
welfare, competitive conditions in the U.S. economy, the production of 
like or directly competitive articles in the United States, and U.S. 
consumers, and concluding that the order(s) should still be issued in 
light of the aforementioned public interest factors.
    (2) In any motion requesting the entry of default or the termination 
of the investigation with respect to the last remaining respondent in 
the investigation, the complainant shall declare whether it is seeking a 
general exclusion order. The Commission may issue a general exclusion 
order pursuant to section 337(g)(2) of the Tariff Act of 1930, 
regardless of the source or importer of the articles concerned, provided 
that a violation of section 337 of the Tariff Act of 1930 is established 
by

[[Page 119]]

(119substantial, reliable, and probative evidence, and only after 
considering the aforementioned public interest factors and the 
requirements of Sec. 210.50(c).

[59 FR 39039, Aug. 1, 1994, as amended at 59 FR 67627, Dec. 30, 1994]

Sec. 210.17  Failures to act other than the statutory forms of default.

    Failures to act other than the defaults listed in Sec. 210.16 may 
provide a basis for the presiding administrative law judge or the 
Commission to draw adverse inferences and to issue findings of fact, 
conclusions of law, determinations (including a determination on 
violation of section 337 of the Tariff Act of 1930), and orders that are 
adverse to the party who fails to act. Such failures include, but are 
not limited to:
    (a) Failure to respond to a motion that materially alters the scope 
of the investigation or a related proceeding;
    (b) Failure to respond to a motion for temporary relief pursuant to 
Sec. 210.59;
    (c) Failure to respond to a motion for summary determination under 
Sec. 210.18;
    (d) Failure to appear at a hearing before the administrative law 
judge after filing a written response to the complaint or motion for 
temporary relief, or failure to appear at a hearing before the 
Commission;
    (e) Failure to file a brief or other written submission requested by 
the administrative law judge or the Commission during an investigation 
or a related proceeding;
    (f) Failure to respond to a petition for review of an initial 
determination, a petition for reconsideration of an initial 
determination, or an application for interlocutory review of an 
administrative law judge's order;
    (g) Failure to file a brief or other written submission requested by 
the administrative law judge or the Commission; and
    (h) Failure to participate in temporary relief bond forfeiture 
proceedings under Sec. 210.70.

The presiding administrative law judge or the Commission may take action 
under this rule sua sponte or in response to the motion of a party.

Sec. 210.18  Summary determinations.

    (a) Motions for summary determinations. Any party may move with any 
necessary supporting affidavits for a summary determination in his favor 
upon all or any part of the issues to be determined in the 
investigation. Counsel or other representatives in support of the 
complaint may so move at any time after 20 days following the date of 
service of the complaint and notice instituting the investigation. Any 
other party or a respondent may so move at any time after the date of 
publication of the notice of investigation in the Federal Register. Any 
such motion by any party in connection with the issue of permanent 
relief, however, must be filed at least 30 days before the date fixed 
for any hearing provided for in Sec. 210.36(a)(1). Any motion for 
summary determination filed in connection with the temporary relief 
phase of an investigation must be filed on or before the deadline set by 
the presiding administrative law judge.
    (b) Opposing affidavits; oral argument; time and basis for 
determination. Any nonmoving party may file opposing affidavits within 
10 days after service of the motion for summary determination. The 
administrative law judge may, in his discretion or at the request of any 
party, set the matter for oral argument and call for the submission of 
briefs or memoranda. The determination sought by the moving party shall 
be rendered if pleadings and any depositions, answers to 
interrogatories, and admissions on file, together with the affidavits, 
if any, show that there is no genuine issue as to any material fact and 
that the moving party is entitled to a summary determination as a matter 
of law.
    (c) Affidavits. Supporting and opposing affidavits shall be made on 
personal knowledge, shall set forth such facts as would be admissible in 
evidence, and shall show affirmatively that the affiant is competent to 
testify to the matters stated therein. Sworn or certified copies of all 
papers or parts thereof referred to in an affidavit shall be attached 
thereto or served therewith. The administrative law judge

[[Page 120]]

(120may permit affidavits to be supplemented or opposed by depositions, 
answers to interrogatories, or further affidavits. When a motion for 
summary determination is made and supported as provided in this section, 
a party opposing the motion may not rest upon the mere allegations or 
denials of the opposing party's pleading, but the opposing party's 
response, by affidavits, answers to interrogatories, or as otherwise 
provided in this section, must set forth specific facts showing that 
there is a genuine issue of fact for the evidentiary hearing under 
Sec. 210.36(a)(1) or (2). If the opposing party does not so respond, a 
summary determination, if appropriate, shall be rendered against the 
opposing party.
    (d) Refusal of application for summary determination; continuances 
and other orders. Should it appear from the affidavits of a party 
opposing the motion that the party cannot, for reasons stated, present 
by affidavit facts essential to justify the party's opposition, the 
administrative law judge may refuse the application for summary 
determination, or may order a continuance to permit affidavits to be 
obtained or depositions to be taken or discovery to be had or may make 
such other order as is appropriate, and a ruling to that effect shall be 
made a matter of record.
    (e) Order establishing facts. If on motion under this section a 
summary determination is not rendered upon the whole case or for all the 
relief asked and a hearing is necessary, the administrative law judge, 
by examining the pleadings and the evidence and by interrogating counsel 
if necessary, shall if practicable ascertain what material facts exist 
without substantial controversy and what material facts are actually and 
in good faith controverted. The administrative law judge shall thereupon 
make an order specifying the facts that appear without substantial 
controversy and directing such further proceedings in the investigation 
as are warranted. The facts so specified shall be deemed established.
    (f) Order of summary determination. An order of summary 
determination shall constitute an initial determination of the 
administrative law judge.

Sec. 210.19  Intervention.

    Any person desiring to intervene in an investigation or a related 
proceeding under this part shall make a written motion. The motion shall 
have attached to it a certificate showing that the motion has been 
served upon each party to the investigation or related proceeding in the 
manner described in Sec. 201.16(b) of this chapter. Any party may file a 
response to the motion in accordance with Sec. 210.15(c) of this part, 
provided that the response is accompanied by a certificate confirming 
that the response was served on the proposed intervenor and all other 
parties. The Commission, or the administrative law judge by initial 
determination, may grant the motion to the extent and upon such terms as 
may be proper under the circumstances.

Sec. 210.20  Declassification of confidential information.

    (a) Any party may move to declassify documents (or portions thereof) 
that have been designated confidential by the submitter but that do not 
satisfy the confidentiality criteria set forth in Sec. 201.6(a) of this 
chapter. All such motions, whether brought at any time during the 
investigation or after conclusion of the investigation shall be 
addressed to and ruled upon by the presiding administrative law judge, 
or if the investigation is not before a presiding administrative law 
judge, by the chief administrative law judge or such administrative law 
judge as he may designate.
    (b) Following issuance of a public version of the initial 
determination on whether there is a violation of section 337 of the 
Tariff Act of 1930 or an initial determination that would otherwise 
terminate the investigation (if adopted by the Commission), the granting 
of a motion, in whole or part, to declassify information designated 
confidential shall constitute an initial determination, except as to 
that information for which no submissions in opposition to 
declassification have been filed.

Sec. 210.21  Termination of investigations.

    (a) Motions for termination. (1) Any party may move at any time 
prior to the issuance of an initial determination on violation of 
section 337 of the

[[Page 121]]

(121Tariff Act of 1930 for an order to terminate an investigation in 
whole or in part as to any or all respondents, on the basis of 
withdrawal of the complaint or certain allegations contained therein, or 
for good cause other than the grounds listed in paragraph (a)(2) of this 
section. The presiding administrative law judge may grant the motion in 
an initial determination upon such terms and conditions as he deems 
proper.
    (2) Any party may move at any time for an order to terminate an 
investigation in whole or in part as to any or all respondents on the 
basis of a settlement, a licensing or other agreement, including an 
agreement to present the matter for arbitration, or a consent order, as 
provided in paragraphs (b), (c) and (d) of this section.
    (b) Termination by Settlement. (1) An investigation before the 
Commission may be terminated as to one or more respondents pursuant to 
section 337(c) of the Tariff Act of 1930 on the basis of a licensing or 
other settlement agreement. A motion for termination by settlement shall 
contain copies of the licensing or other settlement agreement, any 
supplemental agreements, and a statement that there are no other 
agreements, written or oral, express or implied between the parties 
concerning the subject matter of the investigation. If the licensing or 
other settlement agreement contains confidential business information 
within the meaning of Sec. 201.6(a) of this chapter, a copy of the 
agreement with such information deleted shall accompany the motion.
    (2) The motion and agreement(s) shall be certified by the 
administrative law judge to the Commission with an initial determination 
if the motion for termination is granted. If the licensing or other 
agreement or the initial determination contains confidential business 
information, copies of the agreement and initial determination with 
confidential business information deleted shall be certified to the 
Commission simultaneously with the confidential versions of such 
documents. Notice of the initial determination and the agreement shall 
be provided to the U.S. Department of Health and Human Services, the 
U.S. Department of Justice, the Federal Trade Commission, the U.S. 
Customs Service, and such other departments and agencies as the 
Commission deems appropriate. If the Commission's final disposition of 
the initial determination results in termination of the investigation in 
its entirety, a notice will be published in the Federal Register. An 
order of termination by settlement need not constitute a determination 
as to violation of section 337 of the Tariff Act of 1930.
    (c) Termination by entry of consent order. An investigation before 
the Commission may be terminated pursuant to section 337(c) of the 
Tariff Act of 1930 on the basis of a consent order. An order of 
termination by consent order need not constitute a determination as to 
violation of section 337.
    (1) Opportunity to submit proposed consent order--(i) Prior to 
institution of an investigation. Where time, the nature of the 
proceeding, and the public interest permit, any person being 
investigated pursuant to section 603 of the Trade Act of 1974 (19 U.S.C. 
Sec. 2482) shall be afforded the opportunity to submit to the Commission 
a proposal for disposition of the matter under investigation in the form 
of a consent order stipulation that incorporates a proposed consent 
order executed by or on behalf of such person and that complies with the 
requirements of paragraph (c)(3) of this section.
    (ii) Subsequent to institution of an investigation. In 
investigations under section 337 of the Tariff Act of 1930, a proposal 
to terminate by consent order shall be submitted as a motion to the 
administrative law judge with a stipulation that incorporates a proposed 
consent order. If the stipulation contains confidential business 
information within the meaning of Sec. 201.6(a) of this chapter, a copy 
of the stipulation with such information deleted shall accompany the 
motion. The stipulation shall comply with the requirements of paragraph 
(c)(3)(i) of this section. At any time prior to commencement of the 
hearing, the motion may be filed by one or more respondents, and may be 
filed jointly with other parties to the investigation. Upon request and 
for good cause shown, the administrative law judge may consider such a 
motion during or after a hearing. The filing of the motion shall not 
stay proceedings

[[Page 122]]

(122before the administrative law judge unless the administrative law 
judge so orders. The administrative law judge shall promptly file with 
the Commission an initial determination regarding the motion for 
termination if the motion is granted. If the initial determination 
contains confidential business information, a copy of the initial 
determination with such information deleted shall be filed with the 
Commission simultaneously with the filing of the confidential version of 
the initial determination. Pending disposition by the Commission of a 
consent order stipulation, a party may not, absent good cause shown, 
withdraw from the stipulation once it has been submitted pursuant to 
this section.
    (2) Commission disposition of consent order. (i) If an initial 
determination granting the motion for termination based on a consent 
order stipulation is filed with the Commission, notice of the initial 
determination and the consent order stipulation shall be provided to the 
U.S. Department of Health and Human Services, the U.S. Department of 
Justice, the Federal Trade Commission, the U.S. Customs Service, and 
such other departments and agencies as the Commission deems appropriate.
    (ii) The Commission, after considering the effect of the settlement 
by consent order upon the public health and welfare, competitive 
conditions in the U.S. economy, the production of like or directly 
competitive articles in the United States, and U.S. consumers, shall 
dispose of the initial determination according to the procedures of 
Secs. 210.42 through 210.45. If the Commission's final disposition of 
the initial determination results in termination of the investigation in 
its entirety, a notice will be published in the Federal Register. An 
order of termination by consent order need not constitute a 
determination as to violation of section 337. Should the Commission 
reverse the initial determination, the parties are in no way bound by 
their proposal in later actions before the Commission.
    (3) Contents of consent order stipulation--(i) Contents. (A) Every 
consent order stipulation shall contain, in addition to the proposed 
consent order, the following:
    (1) An admission of all jurisdictional facts;
    (2) An express waiver of all rights to seek judicial review or 
otherwise challenge or contest the validity of the consent order;
    (3) A statement that the signatories to the consent order 
stipulation will cooperate with and will not seek to impede by 
litigation or other means the Commission's efforts to gather information 
under subpart I of this part; and
    (4) A statement that the enforcement, modification, and revocation 
of the consent order will be carried out pursuant to subpart I of this 
part, incorporating by reference the Commission's Rules of Practice and 
Procedure.
    (B) In the case of an intellectual property-based investigation, the 
consent order stipulation shall also contain--
    (1) a statement that the consent order shall not apply with respect 
to any claim of any intellectual property right that has expired or been 
found or adjudicated invalid or unenforceable by the Commission or a 
court or agency of competent jurisdiction, provided that such finding or 
judgment has become final and nonreviewable; and
    (2) a statement that each signatory to the stipulation who was a 
respondent in the investigation will not seek to challenge the validity 
of the intellectual property right(s), in any administrative or judicial 
proceeding to enforce the consent order.
    (C) The consent order stipulation may contain a statement that the 
signing thereof is for settlement purposes only and does not constitute 
admission by any respondent that an unfair act has been committed.
    (ii) Effect, interpretation, and reporting. The consent order shall 
have the same force and effect and may be enforced, modified, or revoked 
in the same manner as is provided in section 337 of the Tariff Act of 
1930 and this part for other Commission actions. The Commission may 
require periodic compliance reports pursuant to subpart I of this part 
to be submitted by the person entering into the consent order 
stipulation.
    (d) Termination based upon arbitration agreement. Upon filing of a 
motion for

[[Page 123]]

(123termination with the administrative law judge or the Commission, a 
section 337 investigation may be terminated as to one or more 
respondents pursuant to section 337(c) of the Tariff Act of 1930 on the 
basis of an agreement between complainant and one or more of the 
respondents to present the matter for arbitration. The motion and a copy 
of the arbitration agreement shall be certified by the administrative 
law judge to the Commission with an initial determination if the motion 
for termination is granted. If the agreement or the initial 
determination contains confidential business information, copies of the 
agreement and initial determination with confidential business 
information deleted shall be certified to the Commission with the 
confidential versions of such documents. A notice will be published in 
the Federal Register if the Commission's final disposition of the 
initial determination results in termination of the investigation in its 
entirety. An order of termination based on an arbitration agreement does 
not constitute a determination as to violation of section 337 of the 
Tariff Act of 1930.
    (e) Effect of termination. An order of termination issued by the 
administrative law judge shall constitute an initial determination.

[59 FR 39039, Aug. 1, 1994, as amended at 59 FR 67627, Dec. 30, 1994; 60 
FR 53120, Oct. 12, 1995]

Sec. 210.22  Designating an investigation ``more complicated''.

    (a) Definition. A more complicated investigation is an investigation 
that is of an involved nature owing to the subject matter, difficulty in 
obtaining information, the large number of parties involved, or other 
significant factors.
    (b) Temporary relief. The Commission or the presiding administrative 
law judge, pursuant to Sec. 210.60, may declare an investigation ``more 
complicated'' in order to have up to 60 days of additional time to 
adjudicate a motion for temporary relief. See also Sec. 210.51(b). The 
Commission's or the administrative law judge's reasons for designating 
the investigation ``more complicated'' for that purpose shall be 
published in the Federal Register. The extended deadline for concluding 
an investigation that has been designated ``more complicated'' under 
this paragraph shall be computed in the manner specified in 
Sec. 210.51(c).

[59 FR 39039, Aug. 1, 1994, as amended at 59 FR 67627, Dec. 30, 1994]

Sec. 210.23  Suspension of investigation.

    Any party may move to suspend an investigation under this part, 
because of the pendency of proceedings before the Secretary of Commerce 
or the administering authority pursuant to section 337(b)(3) of the 
Tariff Act of 1930. The administrative law judge or the Commission also 
may raise the issue sua sponte. An administrative law judge's decision 
granting a motion for suspension shall be in the form of an initial 
determination.

[59 FR 39039, Aug. 1, 1994, as amended at 59 FR 67627, Dec. 30, 1994]

Sec. 210.24  Interlocutory appeals.

    Rulings by the administrative law judge on motions may not be 
appealed to the Commission prior to the administrative law judge's 
issuance of an initial determination, except in the following 
circumstances:
    (a) Appeals without leave of the administrative law judge. The 
Commission may in its discretion entertain interlocutory appeals, except 
as provided in Sec. 210.64, when a ruling of the administrative law 
judge:
    (1) Requires the disclosure of Commission records or requires the 
appearance of Government officials pursuant to Sec. 210.32(c)(2); or
    (2) Denies an application for intervention under Sec. 210.19. 
Appeals from such rulings may be sought by filing an application for 
review, not to exceed 15 pages, with the Commission within five days 
after service of the administrative law judge's ruling. An answer to the 
application for review may be filed within five days after service of 
the application. The application for review should specify the person or 
party taking the appeal, designate the ruling or part thereof from which 
appeal is being taken, and specify the reasons and present arguments as 
to why review is being sought. The Commission may, upon its own motion, 
enter an order

[[Page 124]]

(124staying the return date of an order issued by the administrative law 
judge pursuant to Sec. 210.32(c)(2) or may enter an order placing the 
matter on the Commission's docket for review. Any order placing the 
matter on the Commission's docket for review will set forth the scope of 
the review and the issues that will be considered and will make 
provision for the filing of briefs if deemed appropriate by the 
Commission.
    (b) Appeals with leave of the administrative law judge. (1) Except 
as otherwise provided in paragraph (a) of this section, Sec. 210.64, and 
paragraph (b)(2) of this section, applications for review of a ruling by 
an administrative law judge may be allowed only upon request made to the 
administrative law judge and upon determination by the administrative 
law judge in writing, with justification in support thereof, that the 
ruling involves a controlling question of law or policy as to which 
there is substantial ground for difference of opinion, and that either 
an immediate appeal from the ruling may materially advance the ultimate 
completion of the investigation or subsequent review will be an 
inadequate remedy.
    (2) Applications for review of a ruling by an administrative law 
judge under Sec. 210.5(e)(1) as to whether information designated 
confidential by the supplier is entitled to confidential treatment under 
Sec. 210.5(b) may be allowed only upon request made to the 
administrative law judge and upon determination by the administrative 
law judge in writing, with justification in support thereof.
    (3) A written application for review under paragraph (b)(1) or 
(b)(2) of this section shall not exceed 15 pages and may be filed within 
five days after service of the administrative law judge's determination. 
An answer to the application for review may be filed within five days 
after service of the application for review. Thereupon, the Commission 
may, in its discretion, permit an appeal. Unless otherwise ordered by 
the Commission, Commission review, if permitted, shall be confined to 
the application for review and answer thereto, without oral argument or 
further briefs.
    (c) Investigation not stayed. Application for review under this 
section shall not stay the investigation before the administrative law 
judge unless the administrative law judge or the Commission shall so 
order.

[59 FR 39039, Aug. 1, 1994, as amended at 59 FR 67627, Dec. 30, 1994]

Sec. 210.25  Sanctions.

    (a) (1) Any party may file a motion for sanctions for abuse of 
process under Sec. 210.4(d)(1), abuse of discovery under 
Sec. 210.27(d)(3), failure to make or cooperate in discovery under 
Sec. 210.33 (b) or (c), or violation of a protective order under 
Sec. 210.34(c). A motion alleging abuse of process should be filed 
promptly after the requirements of Sec. 210.4(d)(1)(i) have been 
satisfied. A motion alleging abuse of discovery, failure to make or 
cooperate in discovery, or violation of a protective order should be 
filed promptly after the allegedly sanctionable conduct is discovered.
    (2) The administrative law judge (when the investigation or related 
proceeding is before him) or the Commission (when the investigation or 
related proceeding is before it) also may raise the sanction issue sua 
sponte. (See also Secs. 210.4(d)(1)(ii), 210.27(d)(3), 210.33(c), and 
210.34(c).)
    (b) A motion for sanctions shall be addressed to the presiding 
administrative law judge, if the allegedly sanctionable conduct occurred 
and is discovered while the administrative law judge is presiding in an 
investigation or in a related proceeding. During an investigation, the 
administrative law judge's ruling on the motion shall be in the form of 
an order, if it is issued before or concurrently with the initial 
determination concerning violation of section 337 of the Tariff Act of 
1930 or termination of the investigation. In a related proceeding, the 
administrative law judge's ruling shall be in the form of an order, 
regardless of the point in time at which the order is issued.
    (c) A motion for sanctions shall be addressed to the Commission, if 
the allegedly sanctionable conduct occurred while the Commission is 
presiding or is filed after the subject investigation or related 
proceeding is terminated. The Commission may assign the motion to

[[Page 125]]

(125an administrative law judge for issuance of a recommended 
determination. The deadlines and procedures that will be followed in 
processing the recommended determination will be set forth in the 
Commission order assigning the motion to an administrative law judge.
    (d) If an administrative law judge's order concerning sanctions is 
issued before the initial determination concerning violation of section 
337 of the Tariff Act of 1930 or termination of the investigation, it 
may be appealed under Sec. 210.24(b)(1) with leave from the 
administrative law judge, if the requirements of that section are 
satisfied. If the order is issued concurrently with the initial 
determination, the order may be appealed by filing a petition meeting 
the requirements of Sec. 210.43(b). The periods for filing such 
petitions and responding to the petitions will be specified in the 
Commission notice issued pursuant to Sec. 210.42(i), if the initial 
determination has granted a motion for termination of the investigation, 
or in the Commission notice issued pursuant to Sec. 210.46(a), if the 
initial determination concerns violation of section 337. The Commission 
will determine whether to adopt the order after disposition of the 
initial determination concerning violation of section 337 or termination 
of the investigation.
    (e) If the administrative law judge's ruling on the motion for 
sanctions is in the form of a recommended determination pursuant to 
paragraph (c) of this section, the deadlines and procedures for parties 
to contest the recommended determination will be set forth in the 
Commission order assigning the motion to an administrative law judge.
    (f) If a motion for sanctions is filed with the administrative law 
judge during an investigation, he may defer his adjudication of the 
motion until after he has issued a final initial determination 
concerning violation of section 337 of the Tariff Act of 1930 or 
termination of investigation. If the administrative law judge defers his 
adjudication in such a manner, his ruling on the motion for sanctions 
must be in the form of a recommended determination and shall be issued 
no later than 90 days after issuance of the aforesaid initial 
determination on violation of section 337 or termination of the 
investigation. To aid the Commission in determining whether to adopt a 
recommended determination, any party may file written comments with the 
Commission 14 days after service of the recommended determination. 
Replies to such comments may be filed within seven days after service of 
the comments. The Commission will determine whether to adopt the 
recommended determination after reviewing the parties' arguments and 
taking any other steps the Commission deems appropriate.

Sec. 210.26  Other motions.

    Motions pertaining to discovery shall be filed in accordance with 
Sec. 210.15 and the pertinent provisions of subpart E of this part 
(Secs. 210.27 through 210.34). Motions pertaining to evidentiary 
hearings and prehearing conferences shall be filed in accordance with 
Sec. 210.15 and the pertinent provisions of subpart F of this part 
(Secs. 210.35 through 210.40). Motions for temporary relief shall be 
filed as provided in subpart H of this part (see Secs. 210.52 through 
210.57).



Subpart E--Discovery and Compulsory Process

Sec. 210.27  General provisions governing discovery.

    (a) Discovery methods. The parties to an investigation may obtain 
discovery by one or more of the following methods: depositions upon oral 
examination or written questions; written interrogatories; production of 
documents or things or permission to enter upon land or other property 
for inspection or other purposes; and requests for admissions.
    (b) Scope of discovery. Regarding the scope of discovery for the 
temporary relief phase of an investigation, see Sec. 210.61. For the 
permanent relief phase of an investigation, unless otherwise ordered by 
the administrative law judge, a party may obtain discovery regarding any 
matter, not privileged, that is relevant to the following:
    (1) The claim or defense of the party seeking discovery or to the 
claim or defense of any other party, including the existence, 
description, nature, custody, condition, and location of any

[[Page 126]]

(126books, documents, or other tangible things;
    (2) The identity and location of persons having knowledge of any 
discoverable matter;
    (3) The appropriate remedy for a violation of section 337 of the 
Tariff Act of 1930 (see Sec. 210.42(a)(1)(ii)(A)); or
    (4) The appropriate bond for the respondents, under section 
337(j)(3) of the Tariff Act of 1930, during Presidential review of the 
remedial order (if any) issued by the Commission (see 
Sec. 210.42(a)(1)(ii)(B)).

It is not grounds for objection that the information sought will be 
inadmissible at the hearing if the information sought appears reasonably 
calculated to lead to the discovery of admissible evidence.
    (c) Supplementation of Responses. (1) A party who has responded to a 
request for discovery with a response is under a duty to supplement or 
correct the response to include information thereafter acquired if 
ordered by the administrative law judge or the Commission or in the 
following circumstances: A party is under a duty seasonably to amend a 
prior response to an interrogatory, request for production, or request 
for admission if the party learns that the response is in some material 
respect incomplete or incorrect and if the additional or corrective 
information has not otherwise been made known to the other parties 
during the discovery process or in writing.
    (2) A duty to supplement responses also may be imposed by agreement 
of the parties, or at any time prior to a hearing through new requests 
for supplementation of prior responses.
    (d) Signing of Discovery Requests, Responses, and Objections. (1) 
The front page of every request for discovery or response or objection 
thereto shall contain a caption setting forth the name of the 
Commission, the title of the investigation or related proceeding, and 
the docket number or investigation number, if any, assigned to the 
investigation or related proceeding.
    (2) Every request for discovery or response or objection thereto 
made by a party represented by an attorney shall be signed by at least 
one attorney of record in the attorney's individual name, whose address 
shall be stated. A party who is not represented by an attorney shall 
sign the request, response, or objection and shall state the party's 
address. The signature of the attorney or party constitutes a 
certification that to the best of the signer's knowledge, information, 
and belief formed after a reasonable inquiry, the request, objection, or 
response is:

    (i) Consistent with Sec. 210.5(a) (if applicable) and other relevant 
provisions of this chapter, and warranted by existing law or a good 
faith argument for the extension, modification, or reversal of existing 
law;
    (ii) Not interposed for any improper purpose, such as to harass or 
to cause unnecessary delay or needless increase in the cost of 
litigation; and
    (iii) Not unreasonable or unduly burdensome or expensive, given the 
needs of the case, the discovery already had in the case, and the 
importance of the issues at stake in the litigation.

If a request, response, or objection is not signed, it shall be stricken 
unless it is signed promptly after the omission is called to the 
attention of the party making the request, response, or objection, and a 
party shall not be obligated to take any action with respect to it until 
it is signed.
    (3) If without substantial justification a request, response, or 
objection is certified in violation of paragraph (d)(2) of this section, 
the administrative law judge or the Commission, upon motion or sua 
sponte under Sec. 210.25 of this part, may impose an appropriate 
sanction upon the person who made the certification, the party on whose 
behalf the request, response, or objection was made, or both.
    (4) An appropriate sanction may include an order to pay to the other 
parties the amount of reasonable expenses incurred because of the 
violation, including a reasonable attorney's fee, to the extent 
authorized by Rule 26(g) of the Federal Rules of Civil Procedure. 
Monetary sanctions shall not be imposed under this section against the 
United States, the Commission, or a Commission investigative attorney.
    (5) Monetary sanctions may be imposed under this section to 
reimburse the Commission for expenses incurred by a Commission 
investigative attorney or the Commission's Office of Unfair Import 
Investigations. Monetary sanctions will not be imposed under

[[Page 127]]

(127this section to reimburse the Commission for attorney's fees.

Sec. 210.28  Depositions.

    (a) When depositions may be taken. Following publication in the 
Federal Register of a Commission notice instituting the investigation, 
any party may take the testimony of any person, including a party, by 
deposition upon oral examination or written questions. The presiding 
administrative law judge will determine the permissible dates or 
deadlines for taking such depositions.
    (b) Persons before whom depositions may be taken. Depositions may be 
taken before a person having power to administer oaths by the laws of 
the United States or of the place where the examination is held.
    (c) Notice of examination. A party desiring to take the deposition 
of a person shall give notice in writing to every other party to the 
investigation. The administrative law judge shall determine the 
appropriate period for providing such notice. The notice shall state the 
time and place for taking the deposition and the name and address of 
each person to be examined, if known, and, if the name is not known, a 
general description sufficient to identify him or the particular class 
or group to which he belongs. A notice may provide for the taking of 
testimony by telephone, but the administrative law judge may, on motion 
of any party, require that the deposition be taken in the presence of 
the deponent. The parties may stipulate in writing, or the 
administrative law judge may upon motion order, that the testimony at a 
deposition be recorded by other than stenographic means. If a subpoena 
duces tecum is to be served on the person to be examined, the 
designation of the materials to be produced as set forth in the subpoena 
shall be attached to or included in the notice.
    (d) Taking of deposition. Each deponent shall be duly sworn, and any 
adverse party shall have the right to cross-examine. Objections to 
questions or documents shall be in short form, stating the grounds of 
objections relied upon. Evidence objected to shall be taken subject to 
the objections, except that privileged communications and subject matter 
need not be disclosed. The questions propounded and the answers thereto, 
together with all objections made, shall be reduced to writing, after 
which the deposition shall be subscribed by the deponent (unless the 
parties by stipulation waive signing or the deponent is ill or cannot be 
found or refuses to sign) and certified by the person before whom the 
deposition was taken. If the deposition is not subscribed by the 
deponent, the person administering the oath shall state on the record 
such fact and the reason therefor. When a deposition is recorded by 
stenographic means, the stenographer shall certify on the transcript 
that the witness was sworn in the stenographer's presence and that the 
transcript is a true record of the testimony of the witness. When a 
deposition is recorded by other than stenographic means and is 
thereafter transcribed, the person transcribing it shall certify that 
the person heard the witness sworn on the recording and that the 
transcript is a correct writing of the recording. Thereafter, that 
person shall forward one copy to each party who was present or 
represented at the taking of the deposition. See paragraph (i) of this 
section concerning the effect of errors and irregularities in 
depositions.
    (e) Depositions of nonparty officers or employees of the Commission 
or of other Government agencies. A party desiring to take the deposition 
of an officer or employee of the Commission other than the Commission 
investigative attorney, or of an officer or employee of another 
Government agency, or to obtain documents or other physical exhibits in 
the custody, control, and possession of such officer or employee, shall 
proceed by written motion to the administrative law judge for leave to 
apply for a subpoena under Sec. 210.32(c). Such a motion shall be 
granted only upon a showing that the information expected to be obtained 
thereby is within the scope of discovery permitted by Sec. 210.27(b) or 
Sec. 210.61 and cannot be obtained without undue hardship by alternative 
means.
    (f) Service of deposition transcripts on the Commission staff. The 
party taking the deposition shall promptly serve one copy of the 
deposition transcript on the Commission investigative attorney.

[[Page 128]]

(128
    (g) Admissibility of depositions. The fact that a deposition is 
taken and filed with the Commission investigative attorney as provided 
in this section does not constitute a determination that it is 
admissible in evidence or that it may be used in the investigation. Only 
such part of a deposition as is received in evidence at a hearing shall 
constitute a part of the record in such investigation upon which a 
determination may be based. Objections may be made at the hearing to 
receiving in evidence any deposition or part thereof for any reason that 
would require exclusion of the evidence if the witness were then present 
and testifying.
    (h) Use of depositions. A deposition may be used as evidence against 
any party who was present or represented at the taking of the deposition 
or who had reasonable notice thereof, in accordance with any of the 
following provisions:
    (1) Any deposition may be used by any party for the purpose of 
contradicting or impeaching the testimony of a deponent as a witness;
    (2) The deposition of a party may be used by an adverse party for 
any purpose;
    (3) The deposition of a witness, whether or not a party, may be used 
by any party for any purposes if the administrative law judge finds--
    (i) That the witness is dead; or
    (ii) That the witness is out of the United States, unless it appears 
that the absence of the witness was procured by the party offering the 
deposition; or
    (iii) That the witness is unable to attend or testify because of 
age, illness, infirmity, or imprisonment; or
    (iv) That the party offering the deposition has been unable to 
procure the attendance of the witness by subpoena; or
    (v) Upon application and notice, that such exceptional circumstances 
exist as to make it desirable in the interest of justice and with due 
regard to the importance of presenting the oral testimony of witnesses 
at a hearing, to allow the deposition to be used.
    (4) If only part of a deposition is offered in evidence by a party, 
an adverse party may require him to introduce any other part that ought 
in fairness to be considered with the part introduced, and any party may 
introduce any other parts.
    (i) Effect of errors and irregularities in depositions--(1) As to 
notice. All errors and irregularities in the notice for taking a 
deposition are waived unless written objection is promptly served upon 
the party giving notice.
    (2) As to disqualification of person before whom the deposition is 
to be taken. Objection to taking a deposition because of 
disqualification of the person before whom it is to be taken is waived 
unless made before the taking of the deposition begins or as soon 
thereafter as the disqualification becomes known or could be discovered 
with reasonable diligence.
    (3) As to taking of depositions. (i) Objections to the competency of 
a witness or the competency, relevancy, or materiality of testimony are 
not waived by failure to make them before or during the deposition, 
unless the ground of the objection is one which might have been obviated 
or removed if presented at that time.
    (ii) Errors and irregularities occurring at the oral examination in 
the manner of taking the deposition, in the form of the questions or 
answers, in the oath or affirmation, or in the conduct of parties, and 
errors of any kind which might be obviated, removed, or cured if 
promptly presented, are waived unless seasonable objection thereto is 
made at the taking of the deposition.
    (iii) Objections to the form of written questions submitted under 
this section are waived unless served in writing upon the party 
propounding them. The presiding administrative law judge shall set the 
deadline for service of such objections.
    (4) As to completion and return of deposition. Errors and 
irregularities in the manner in which the testimony is transcribed or 
the deposition is prepared, signed, certified, sealed, indorsed, 
transmitted, filed, or otherwise dealt with by the person before whom it 
is taken are waived unless a motion to suppress the deposition or some 
part thereof is made with reasonable promptness after such defect is, or 
with due diligence might have been, ascertained.

[[Page 129]]

(129

Sec. 210.29  Interrogatories.

    (a) Scope; use at hearing. Any party may serve upon any other party 
written interrogatories to be answered by the party served. 
Interrogatories may relate to any matters that can be inquired into 
under Sec. 210.27(b) or Sec. 210.61, and the answers may be used to the 
extent permitted by the rules of evidence.
    (b) Procedure. (1) Interrogatories may be served upon any party 
after the date of publication in the Federal Register of the notice of 
investigation.
    (2) Parties answering interrogatories shall repeat the 
interrogatories being answered immediately preceding the answers. Each 
interrogatory shall be answered separately and fully in writing under 
oath, unless it is objected to, in which event the reasons for objection 
shall be stated in lieu of an answer. The answers are to be signed by 
the person making them, and the objections are to be signed by the 
attorney making them. The party upon whom the interrogatories have been 
served shall serve a copy of the answers, and objections if any, within 
the time specified by the administrative law judge. The party submitting 
the interrogatories may move for an order under Sec. 210.33(a) with 
respect to any objection to or other failure to answer an interrogatory.
    (3) An interrogatory otherwise proper is not necessarily 
objectionable merely because an answer to the interrogatory involves an 
opinion or contention that relates to fact or the application of law to 
fact, but the administrative law judge may order that such an 
interrogatory need not be answered until after designated discovery has 
been completed or until a prehearing conference or a later time.
    (c) Option to produce records. When the answer to an interrogatory 
may be derived or ascertained from the records of the party upon whom 
the interrogatory has been served or from an examination, audit, or 
inspection of such records, or from a compilation, abstract, or summary 
based thereon, and the burden of deriving or ascertaining the answer is 
substantially the same for the party serving the interrogatory as for 
the party served, it is a sufficient answer to such interrogatory to 
specify the records from which the answer may be derived or ascertained 
and to afford to the party serving the interrogatory reasonable 
opportunity to examine, audit, or inspect such records and to make 
copies, compilations, abstracts, or summaries. The specifications 
provided shall include sufficient detail to permit the interrogating 
party to locate and to identify, as readily as can the party served, the 
documents from which the answer may be ascertained.

Sec. 210.30  Requests for production of documents and things and entry 
          upon land.

    (a) Scope. Any party may serve on any other party a request:
    (1) To produce and permit the party making the request, or someone 
acting on his behalf, to inspect and copy any designated documents 
(including writings, drawings, graphs, charts, photographs, and other 
data compilations from which information can be obtained), or to inspect 
and copy, test, or sample any tangible things that are in the 
possession, custody, or control of the party upon whom the request is 
served; or
    (2) To permit entry upon designated land or other property in the 
possession or control of the party upon whom the request is served for 
the purpose of inspecting and measuring, surveying, photographing, 
testing, or sampling the property or any designated object or operation 
thereon, within the scope of Sec. 210.27(b).
    (b) Procedure. (1) The request may be served upon any party after 
the date of publication in the Federal Register of the notice of 
investigation. The request shall set forth the items to be inspected, 
either by individual item or by category, and describe each item and 
category with reasonable particularity. The request shall specify a 
reasonable time, place, and manner of making the inspection and 
performing the related acts.
    (2) The party upon whom the request is served shall serve a written 
response within the time specified by the administrative law judge. The 
response shall state, with respect to each item or category, that 
inspection and related activities will be permitted as requested, unless 
the request is objected to, in

[[Page 130]]

(130which event the reasons for objection shall be stated. If objection 
is made to part of any item or category, the part shall be specified. 
The party submitting the request may move for an order under 
Sec. 210.33(a) with respect to any objection to or other failure to 
respond to the request or any part thereof, or any failure to permit 
inspection as requested. A party who produces documents for inspection 
shall produce them as they are kept in the usual course of business or 
shall organize and label them to correspond to the categories in the 
request.
    (c) Persons not parties. This section does not preclude issuance of 
an order against a person not a party to permit entry upon land.

Sec. 210.31   Requests for admission.

    (a) Form, content, and service of request for admission. Any party 
may serve on any other party a written request for admission of the 
truth of any matters relevant to the investigation and set forth in the 
request that relate to statements or opinions of fact or of the 
application of law to fact, including the genuineness of any documents 
described in the request. Copies of documents shall be served with the 
request unless they have been otherwise furnished or are known to be, 
and in the request are stated as being, in the possession of the other 
party. Each matter as to which an admission is requested shall be 
separately set forth. The request may be served upon a party whose 
complaint is the basis for the investigation after the date of 
publication in the Federal Register of the notice of investigation. The 
administrative law judge will determine the period within which a party 
may serve a request upon other parties.
    (b) Answers and objections to requests for admissions. A party 
answering a request for admission shall repeat the request for admission 
immediately preceding his answer. The matter may be deemed admitted 
unless, within the period specified by the administrative law judge, the 
party to whom the request is directed serves upon the party requesting 
the admission a sworn written answer or objection addressed to the 
matter. If objection is made, the reason therefor shall be stated. The 
answer shall specifically deny the matter or set forth in detail the 
reasons why the answering party cannot truthfully admit or deny the 
matter. A denial shall fairly meet the substance of the requested 
admission, and when good faith requires that a party qualify his answer 
or deny only a part of the matter as to which an admission is requested, 
he shall specify so much of it as is true and qualify or deny the 
remainder. An answering party may not give lack of information or 
knowledge as a reason for failure to admit or deny unless he states that 
he has made reasonable inquiry and that the information known to or 
readily obtainable by him is insufficient to enable him to admit or 
deny. A party who considers that a matter as to which an admission has 
been requested presents a genuine issue for a hearing may not object to 
the request on that ground alone; he may deny the matter or set forth 
reasons why he cannot admit or deny it.
    (c) Sufficiency of answers. The party who has requested the 
admissions may move to determine the sufficiency of the answers or 
objections. Unless the objecting party sustains his burden of showing 
that the objection is justified, the administrative law judge shall 
order that an answer be served. If the administrative law judge 
determines that an answer does not comply with the requirements of this 
section, he may order either that the matter is admitted or that an 
amended answer be served. The administrative law judge may, in lieu of 
these orders, determine that final disposition of the request be made at 
a prehearing conference or at a designated time prior to a hearing under 
this part.
    (d) Effect of admissions; withdrawal or amendment of admission. Any 
matter admitted under this section may be conclusively established 
unless the administrative law judge on motion permits withdrawal or 
amendment of the admission. The administrative law judge may permit 
withdrawal or amendment when the presentation of the issues of the 
investigation will be subserved thereby and the party who obtained the 
admission fails to satisfy the administrative law judge that withdrawal 
or amendment will prejudice him in maintaining his position on the issue

[[Page 131]]

(131of the investigation. Any admission made by a party under this 
section is for the purpose of the pending investigation only and is not 
an admission by him for any other purpose, nor may it be used against 
him in any other proceeding.

Sec. 210.32  Subpoenas.

    (a) Application for issuance of a subpoena--(1) Subpoena ad 
testificandum. An application for issuance of a subpoena requiring a 
person to appear and depose or testify at the taking of a deposition or 
at a hearing shall be made to the administrative law judge.
    (2) Subpoena duces tecum. An application for issuance of a subpoena 
requiring a person to appear and depose or testify and to produce 
specified documents, papers, books, or other physical exhibits at the 
taking of a deposition, at a prehearing conference, at a hearing, or 
under any other circumstances, shall be made in writing to the 
administrative law judge and shall specify the material to be produced 
as precisely as possible, showing the general relevancy of the material 
and the reasonableness of the scope of the subpoena.
    (3) The administrative law judge shall rule on all applications 
filed under paragraph (a)(1) or (a)(2) of this section and may issue 
subpoenas when warranted.
    (b) Use of subpoena for discovery. Subpoenas may be used by any 
party for purposes of discovery or for obtaining documents, papers, 
books or other physical exhibits for use in evidence, or for both 
purposes. When used for discovery purposes, a subpoena may require a 
person to produce and permit the inspection and copying of nonprivileged 
documents, papers, books, or other physical exhibits that constitute or 
contain evidence relevant to the subject matter involved and that are in 
the possession, custody, or control of such person.
    (c) Application for subpoenas for nonparty Commission records or 
personnel or for records and personnel of other Government agencies--(1) 
Procedure. An application for issuance of a subpoena requiring the 
production of nonparty documents, papers, books, physical exhibits, or 
other material in the records of the Commission, or requiring the 
production of records or personnel of other Government agencies shall 
specify as precisely as possible the material to be produced, the nature 
of the information to be disclosed, or the expected testimony of the 
official or employee, and shall contain a statement showing the general 
relevancy of the material, information, or testimony and the 
reasonableness of the scope of the application, together with a showing 
that such material, information, or testimony or their substantial 
equivalent could not be obtained without undue hardship or by 
alternative means.
    (2) Ruling. Such applications shall be ruled upon by the 
administrative law judge, and he may issue such subpoenas when 
warranted. To the extent that the motion is granted, the administrative 
law judge shall provide such terms and conditions for the production of 
the material, the disclosure of the information, or the appearance of 
the official or employee as may appear necessary and appropriate for the 
protection of the public interest.
    (3) Application for subpoena grounded upon the Freedom of 
Information Act. No application for a subpoena for production of 
documents grounded upon the Freedom of Information Act (5 U.S.C. 
Sec. 552) shall be entertained by the administrative law judge.
    (d) Motion to limit or quash. Any motion to limit or quash a 
subpoena shall be filed within such time as the administrative law judge 
may allow.
    (e) Ex parte rulings on applications for subpoenas. Applications for 
the issuance of the subpoenas pursuant to the provisions of this section 
may be made ex parte, and, if so made, such applications and rulings 
thereon shall remain ex parte unless otherwise ordered by the 
administrative law judge.
    (f) Witness Fees--(1) Deponents and witnesses. Any person compelled 
to appear in person to depose or testify in response to a subpoena shall 
be paid the same mileage as are paid witnesses with respect to 
proceedings in the courts of the United States; provided, that salaried 
employees of the United States summoned to depose or testify as to 
matters related to their public employment, irrespective of the party at 
whose instance they are summoned,

[[Page 132]]

(132shall be paid in accordance with the applicable Federal regulations.
    (2) Responsibility. The fees and mileage referred to in paragraph 
(f)(1) of this section shall be paid by the party at whose instance 
deponents or witnesses appear. Fees due under this paragraph shall be 
tendered no later than the date for compliance with the subpoena issued 
under this section. Failure to timely tender fees under this paragraph 
shall not invalidate any subpoena issued under this section.
    (g) Obtaining judicial enforcement. In order to obtain judicial 
enforcement of a subpoena issued under paragraphs (a)(3) or (c)(2) of 
this section, the administrative law judge shall certify to the 
Commission, on motion or sua sponte, a request for such enforcement. The 
request shall be accompanied by copies of relevant papers and a written 
report from the administrative law judge concerning the purpose, 
relevance, and reasonableness of the subpoena. The Commission will 
subsequently issue a notice stating whether it has granted the request 
and authorized its Office of the General Counsel to seek such 
enforcement.

Sec. 210.33  Failure to make or cooperate in discovery; sanctions.

    (a) Motion for order compelling discovery. A party may apply to the 
administrative law judge for an order compelling discovery upon 
reasonable notice to other parties and all persons affected thereby.
    (b) Non-monetary sanctions for failure to comply with an order 
compelling discovery. If a party or an officer or agent of a party fails 
to comply with an order including, but not limited to, an order for the 
taking of a deposition or the production of documents, an order to 
answer interrogatories, an order issued pursuant to a request for 
admissions, or an order to comply with a subpoena, the administrative 
law judge, for the purpose of permitting resolution of relevant issues 
and disposition of the investigation without unnecessary delay despite 
the failure to comply, may take such action in regard thereto as is 
just, including, but not limited to the following:
    (1) Infer that the admission, testimony, documents, or other 
evidence would have been adverse to the party;
    (2) Rule that for the purposes of the investigation the matter or 
matters concerning the order or subpoena issued be taken as established 
adversely to the party;
    (3) Rule that the party may not introduce into evidence or otherwise 
rely upon testimony by the party, officer, or agent, or documents, or 
other material in support of his position in the investigation;
    (4) Rule that the party may not be heard to object to introduction 
and use of secondary evidence to show what the withheld admission, 
testimony, documents, or other evidence would have shown;
    (5) Rule that a motion or other submission by the party concerning 
the order or subpoena issued be stricken or rule by initial 
determination that a determination in the investigation be rendered 
against the party, or both; or
    (6) Order any other non-monetary sanction available under Rule 37(b) 
of the Federal Rules of Civil Procedure. Any such action may be taken by 
written or oral order issued in the course of the investigation or by 
inclusion in the initial determination of the administrative law judge. 
It shall be the duty of the parties to seek, and that of the 
administrative law judge to grant, such of the foregoing means of relief 
or other appropriate relief as may be sufficient to compensate for the 
lack of withheld testimony, documents, or other evidence. If, in the 
administrative law judge's opinion such relief would not be sufficient, 
the administrative law judge shall certify to the Commission a request 
that court enforcement of the subpoena or other discovery order be 
sought.
    (c) Monetary sanctions for failure to make or cooperate in 
discovery. (1) If a party or an officer, director, or managing agent of 
the party or person designated to testify on behalf of a party fails to 
obey an order to provide or permit discovery, the administrative law 
judge or the Commission may make such orders in regard to the failure as 
are just. In lieu of or in addition to taking action listed in paragraph 
(b) of this section and to the extent provided

[[Page 133]]

(133in Rule 37(b)(2) of the Federal Rules of Civil Procedure, the 
administrative law judge or the Commission, upon motion or sua sponte 
under Sec. 210.25, may require the party failing to obey the order or 
the attorney advising that party or both to pay reasonable expenses, 
including attorney's fees, caused by the failure, unless the 
administrative law judge or the Commission finds that the failure was 
substantially justified or that other circumstances make an award of 
expenses unjust. Monetary sanctions shall not be imposed under this 
section against the United States, the Commission, or a Commission 
investigative attorney.
    (2) Monetary sanctions may be imposed under this section to 
reimburse the Commission for expenses incurred by a Commission 
investigative attorney or the Commission's Office of Unfair Import 
Investigations. Monetary sanctions will not be imposed under this 
section to reimburse the Commission for attorney's fees.

Sec. 210.34  Protective orders.

    (a) Issuance of protective order. Upon motion by a party or by the 
person from whom discovery is sought or by the administrative law judge 
on his own initiative, and for good cause shown, the administrative law 
judge may make any order that may appear necessary and appropriate for 
the protection of the public interest or that justice requires to 
protect a party or person from annoyance, embarrassment, oppression, or 
undue burden or expense, including one or more of the following:
    (1) That discovery not be had;
    (2) That the discovery may be had only on specified terms and 
conditions, including a designation of the time or place;
    (3) That discovery may be had only by a method of discovery other 
than that selected by the party seeking discovery;
    (4) That certain matters not be inquired into, or that the scope of 
discovery be limited to certain matters;
    (5) That discovery be conducted with no one present except persons 
designated by the administrative law judge;
    (6) That a deposition, after being sealed, be opened only by order 
of the Commission or the administrative law judge;
    (7) That a trade secret or other confidential research, development, 
or commercial information not be disclosed or be disclosed only in a 
designated way; and
    (8) That the parties simultaneously file specified documents or 
information enclosed in sealed envelopes to be opened as directed by the 
Commission or the administrative law judge. If the motion for a 
protective order is denied, in whole or in part, the Commission or the 
administrative law judge may, on such terms and conditions as are just, 
order that any party or person provide or permit discovery. The 
Commission also may, upon motion or sua sponte, issue protective orders 
or may continue or amend a protective order issued by the administrative 
law judge.
    (b) Unauthorized disclosure of information. If confidential business 
information submitted in accordance with the terms of a protective order 
is disclosed to any person other than in a manner authorized by the 
protective order, the party responsible for the disclosure must 
immediately bring all pertinent facts relating to such disclosure to the 
attention of the submitter of the information and the administrative law 
judge or the Commission, and, without prejudice to other rights and 
remedies of the submitter of the information, make every effort to 
prevent further disclosure of such information by the party or the 
recipient of such information.
    (c) Violation of protective order. Any individual who has agreed to 
be bound by the terms of a protective order issued pursuant to paragraph 
(a) of this section, and who is determined to have violated the terms of 
the protective order, may be subject to one or more of the following:
    (1) An official reprimand by the Commission;
    (2) Disqualification from or limitation of further participation in 
a pending investigation;
    (3) Temporary or permanent disqualification from practicing in any 
capacity before the Commission pursuant to Sec. 201.15(a) of this 
chapter;

[[Page 134]]

(134
    (4) Referral of the facts underlying the violation to the 
appropriate licensing authority in the jurisdiction in which the 
individual is licensed to practice;
    (5) Sanctions of the sort enumerated in Sec. 210.33(b), or such 
other action as may be appropriate.

The issue of whether sanctions should be imposed may be raised on a 
motion by a party, the administrative law judge's own motion, or the 
Commission's own initiative in accordance with Sec. 210.25(a)(2). The 
Commission or the administrative law judge shall allow the parties to 
make written submissions and, if warranted, to present oral argument 
bearing on the issues of violation of a protective order and sanctions 
therefor. When the motion is addressed to the administrative law judge, 
he shall grant or deny a motion for sanctions by issuing an order.
    (d) Reporting requests for confidential business information. (1) 
Reporting Requirement. Each person subject to protective order issued 
pursuant to paragraph (a) of this section shall report in writing to the 
Commission immediately upon learning that confidential business 
information disclosed to him or her pursuant to the protective order is 
the subject of a subpoena, court or administrative order (other than an 
order of a court reviewing a Commission decision), discovery request, 
agreement, or other written request seeking disclosure, by him or any 
other person, of that confidential business information to persons who 
are not, or may not be, permitted access to that information pursuant to 
either a Commission protective order or Sec. 210.5(b).
    (2) Sanctions and other actions. After providing notice and an 
opportunity to comment, the Commission may impose a sanction upon any 
person who willfully fails to comply with paragraph (d)(1) of this 
section, or it may take other action.



Subpart F--Prehearing Conferences and Hearings

Sec. 210.35  Prehearing conferences.

    (a) When appropriate. The administrative law judge in any 
investigation may direct counsel or other representatives for all 
parties to meet with him for one or more conferences to consider any or 
all of the following:
    (1) Simplification and clarification of the issues;
    (2) Scope of the hearing;
    (3) Necessity or desirability of amendments to pleadings subject, 
however, to the provisions of Sec. 210.14 (b) and (c);
    (4) Stipulations and admissions of either fact or the content and 
authenticity of documents;
    (5) Expedition in the discovery and presentation of evidence 
including, but not limited to, restriction of the number of expert, 
economic, or technical witnesses; and
    (6) Such other matters as may aid in the orderly and expeditious 
disposition of the investigation including disclosure of the names of 
witnesses and the exchange of documents or other physical exhibits that 
will be introduced in evidence in the course of the hearing.
    (b) Subpoenas. Prehearing conferences may be convened for the 
purpose of accepting returns on subpoenas duces tecum issued pursuant to 
Sec. 210.32(a)(3).
    (c) Reporting. In the discretion of the administrative law judge, 
prehearing conferences may or may not be stenographically reported and 
may or may not be public.
    (d) Order. The administrative law judge may enter in the record an 
order that recites the results of the conference. Such order shall 
include the administrative law judge's rulings upon matters considered 
at the conference, together with appropriate direction to the parties. 
The administrative law judge's order shall control the subsequent course 
of the hearing, unless the administrative law judge modifies the order.

Sec. 210.36  General provisions for hearings.

    (a) Purpose of hearings. (1) An opportunity for a hearing shall be 
provided in each investigation under this part, in accordance with the 
Administrative Procedure Act. At the hearing, the presiding 
administrative law judge will take evidence and hear argument for the 
purpose of determining whether there is a violation of section 337 of 
the Tariff Act of 1930, and for the purpose

[[Page 135]]

(135of making findings and recommendations, as described in 
Sec. 210.42(a)(1)(ii), concerning the appropriate remedy and the amount 
of the bond to be posted by respondents during Presidential review of 
the Commission's action, under section 337(j) of the Tariff Act.
    (2) An opportunity for a hearing in accordance with the 
Administrative Procedure Act shall also be provided in connection with 
every motion for temporary relief filed under this part.
    (b) Public hearings. All hearings in investigations under this part 
shall be public unless otherwise ordered by the administrative law 
judge.
    (c) Expedition. Hearings shall proceed with all reasonable 
expedition, and, insofar as practicable, shall be held at one place, 
continuing until completed unless otherwise ordered by the 
administrative law judge.
    (d) Rights of the parties. Every hearing under this section shall be 
conducted in accordance with the Administrative Procedure Act (i.e., 5 
U.S.C. Secs. 554 through 556). Hence, every party shall have the right 
of adequate notice, cross-examination, presentation of evidence, 
objection, motion, argument, and all other rights essential to a fair 
hearing.
    (e) Presiding official. An administrative law judge shall preside 
over each hearing unless the Commission shall otherwise order.

Sec. 210.37  Evidence.

    (a) Burden of proof. The proponent of any factual proposition shall 
be required to sustain the burden of proof with respect thereto.
    (b) Admissibility. Relevant, material, and reliable evidence shall 
be admitted. Irrelevant, immaterial, unreliable, or unduly repetitious 
evidence shall be excluded. Immaterial or irrelevant parts of an 
admissible document shall be segregated and excluded as far as 
practicable.
    (c) Information obtained in investigations. Any documents, papers, 
books, physical exhibits, or other materials or information obtained by 
the Commission under any of its powers may be disclosed by the 
Commission investigative attorney when necessary in connection with 
investigations and may be offered in evidence by the Commission 
investigative attorney.
    (d) Official notice. When any decision of the administrative law 
judge rests, in whole or in part, upon the taking of official notice of 
a material fact not appearing in evidence of record, opportunity to 
disprove such noticed fact shall be granted any party making timely 
motion therefor.
    (e) Objections. Objections to evidence shall be made in timely 
fashion and shall briefly state the grounds relied upon. Rulings on all 
objections shall appear on the record.
    (f) Exceptions. Formal exception to an adverse ruling is not 
required.
    (g) Excluded evidence. When an objection to a question propounded to 
a witness is sustained, the examining party may make a specific offer of 
what he expects to prove by the answer of the witness, or the 
administrative law judge may in his discretion receive and report the 
evidence in full. Rejected exhibits, adequately marked for 
identification, shall be retained with the record so as to be available 
for consideration by any reviewing authority.

Sec. 210.38  Record.

    (a) Definition of the record. The record shall consist of all 
pleadings, the notice of investigation, motions and responses, all 
briefs and written statements, and other documents and things properly 
filed with the Secretary, in addition to all orders, notices, and 
initial determinations of the administrative law judge, orders and 
notices of the Commission, hearing and conference transcripts, evidence 
admitted into the record, and any other items certified into the record 
by the administrative law judge or the Commission.
    (b) Reporting and transcription. Hearings shall be reported and 
transcribed by the official reporter of the Commission under the 
supervision of the administrative law judge, and the transcript shall be 
a part of the record.
    (c) Corrections. Changes in the official transcript may be made only 
when they involve errors affecting substance. A motion to correct a 
transcript shall be addressed to the administrative law

[[Page 136]]

(136judge, who may order that the transcript be changed to reflect such 
corrections as are warranted, after consideration of any objections that 
may be made. Such corrections shall be made by the official reporter by 
furnishing substitute typed pages, under the usual certificate of the 
reporter, for insertion in the transcript. The original uncorrected 
pages shall be retained in the files of the Commission.
    (d) Certification of record. The record shall be certified to the 
Commission by the administrative law judge upon his filing of an initial 
determination or at such earlier time as the Commission may order.

Sec. 210.39  In camera treatment of confidential information.

    (a) Definition. Except as hereinafter provided and consistent with 
Secs. 210.5 and 210.34, confidential documents and testimony made 
subject to protective orders or orders granting in camera treatment are 
not made part of the public record and are kept confidential in an in 
camera record. Only the persons identified in a protective order, 
persons identified in Sec. 210.5(b), and court personnel concerned with 
judicial review shall have access to confidential information in the in 
camera record. The right of the administrative law judge and the 
Commission to disclose confidential data under a protective order 
(pursuant to Sec. 210.34) to the extent necessary for the proper 
disposition of each proceeding is specifically reserved.
    (b) Transmission of certain Commission records to district court. In 
a civil action involving parties that are also parties to a proceeding 
before the Commission under section 337 of the Tariff Act of 1930, at 
the request of a party to the civil action that is also a respondent in 
the proceeding before the Commission, the district court may stay, until 
the determination of the Commission becomes final, proceedings in the 
civil action with respect to any claim that involves the same issues 
involved in the proceeding before the Commission under certain 
conditions. If such a stay is in effect, after the determination of the 
Commission becomes final, the Commission shall certify to the district 
court such portions of the record of its proceeding as the district 
court may request. Notwithstanding paragraph (a) of this section, the in 
camera record may be transmitted to a district court and be admissible 
in a civil action, subject to such protective order as the district 
court determines necessary, pursuant to 28 U.S.C. 1659.
    (c) In camera treatment of documents and testimony. The 
administrative law judge shall have authority to order documents or oral 
testimony offered in evidence, whether admitted or rejected, to be 
placed in camera.
    (d) Part of confidential record. In camera documents and testimony 
shall constitute a part of the confidential record of the Commission.
    (e) References to in camera information. In submitting proposed 
findings, briefs, or other papers, counsel for all parties shall make an 
attempt in good faith to refrain from disclosing the specific details of 
in camera documents and testimony. This shall not preclude references in 
such proposed findings, briefs, or other papers to such documents or 
testimony including generalized statements based on their contents. To 
the extent that counsel consider it necessary to include specific 
details of in camera data in their presentations, such data shall be 
incorporated in separate proposed findings, briefs, or other papers 
marked ``Business Confidential,'' which shall be placed in camera and 
become a part of the confidential record.

[59 FR 39039, Aug. 1, 1994, as amended at 59 FR 67627, Dec. 30, 1994]

Sec. 210.40  Proposed findings and conclusions and briefs.

    At the time a motion for summary determination under Sec. 210.18(a) 
or a motion for termination under Sec. 210.21(a) is made, or when it is 
found that a party is in default under Sec. 210.16, or at the close of 
the reception of evidence in any hearing held pursuant to this part 
(except as provided in Sec. 210.63), or within a reasonable time 
thereafter fixed by the administrative law judge, any party may file 
proposed findings of fact and conclusions of law, together with reasons 
therefor. When appropriate, briefs in support of the proposed findings 
of fact and conclusions of law may be filed with the administrative law

[[Page 137]]

(137judge for his consideration. Such proposals and briefs shall be in 
writing, shall be served upon all parties in accordance with 
Sec. 210.4(g), and shall contain adequate references to the record and 
the authorities on which the submitter is relying.



Subpart G--Determinations and Actions Taken

Sec. 210.41  Termination of investigation.

    Except as provided in Sec. 210.21 (b)(2), (c), and (d), an order of 
termination issued by the Commission shall constitute a determination of 
the Commission under Sec. 210.45(c). The Commission shall publish in the 
Federal Register notice of each Commission order that terminates an 
investigation in its entirety.

[60 FR 53120, Oct. 12, 1995]

Sec. 210.42  Initial determinations.

    (a)(1)(i) On issues concerning violation of section 337. Unless 
otherwise ordered by the Commission, the administrative law judge shall 
certify the record to the Commission and shall file an initial 
determination on whether there is a violation of section 337 of the 
Tariff Act of 1930 no later than 3 months before the target date set 
pursuant to Sec. 210.51(a) if the target date is 15 months or less from 
the date of institution, and no later than 4 months before the target 
date if the target date is more than 15 months from the date of 
institution.
    (ii) Recommended determination on issues concerning permanent relief 
and bonding. Unless the Commission orders otherwise, within 14 days 
after issuance of the initial determination on violation of section 337 
of the Tariff Act of 1930, the administrative law judge shall issue a 
recommended determination containing findings of fact and 
recommendations concerning--
    (A) The appropriate remedy in the event that the Commission finds a 
violation of section 337, and
    (B) The amount of the bond to be posted by the respondents during 
Presidential review of Commission action under section 337(j) of the 
Tariff Act.
    (2) On certain motions to declassify information. Following issuance 
of the public version of an initial determination under paragraph 
(a)(1)(i) of this section, the decision of an administrative law judge 
granting a motion to declassify information, in whole or in part, shall 
be in the form of an initial determination as provided in 
Sec. 210.20(b).
    (b) On issues concerning temporary relief or forfeiture of temporary 
relief bonds. Certification of the record and the disposition of an 
initial determination concerning a motion for temporary relief are 
governed by Secs. 210.65 and 210.66. The disposition of an initial 
determination concerning possible forfeiture or return of a 
complainant's temporary relief bond, in whole or in part, is governed by 
Sec. 210.70.
    (c) On other matters. The administrative law judge shall grant the 
following types of motions by issuing an initial determination or shall 
deny them by issuing an order: a motion to amend the complaint or notice 
of investigation pursuant to Sec. 210.14(b); a motion for a finding of 
default pursuant to Sec. 210.16; a motion for summary determination 
pursuant to Sec. 210.18; a motion for intervention pursuant to 
Sec. 210.19; a motion for termination pursuant to Sec. 210.21; a motion 
to suspend an investigation pursuant to Sec. 210.23; a motion for 
forfeiture or return of respondents' bonds pursuant to Sec. 210.50(d); a 
motion to set a target date exceeding 15 months pursuant to 
Sec. 210.51(a); or a motion for forfeiture or return of a complainant's 
temporary relief bond pursuant to Sec. 210.70.
    (d) Contents. The initial determination shall include: an opinion 
stating findings (with specific page references to principal supporting 
items of evidence in the record) and conclusions and the reasons or 
bases therefor necessary for the disposition of all material issues of 
fact, law, or discretion presented in the record; and a statement that, 
pursuant to Sec. 210.42(h), the initial determination shall become the 
determination of the Commission unless a party files a petition for 
review of the initial determination pursuant to Sec. 210.43(a) or the 
Commission, pursuant to Sec. 210.44, orders on its own motion a review 
of the initial determination or certain issues therein.
    (e) Notice to and advice from other departments and agencies. Notice 
of each

[[Page 138]]

(138initial determination granting a motion for termination of an 
investigation in whole or part on the basis of a consent order or a 
settlement, licensing, or other agreement pursuant to Sec. 210.21 of 
this part, and notice of such other initial determinations as the 
Commission may order, shall be provided to the U.S. Department of Health 
and Human Services, the U.S. Department of Justice, the Federal Trade 
Commission, the U.S. Customs Service, and such other departments and 
agencies as the Commission deems appropriate. The Commission shall 
consider comments, limited to issues raised by the record, the initial 
determination, and the petitions for review, received from such agencies 
when deciding whether to initiate review or the scope of review. The 
Commission shall allow such agencies 10 days after the service of an 
initial determination to submit their comments.
    (f) Initial determination made by the administrative law judge. An 
initial determination under this section shall be made and filed by the 
administrative law judge who presided over the investigation, except 
when that person is unavailable to the Commission and except as provided 
in Sec. 210.20(a).
    (g) Reopening of proceedings by the administrative law judge. At any 
time prior to the filing of the initial determination, the 
administrative law judge may reopen the proceedings for the reception of 
additional evidence.
    (h) Effect. (1) An initial determination filed pursuant to 
Sec. 210.42(a)(2) shall become the determination of the Commission 45 
days after the date of service of the initial determination, unless the 
Commission has ordered review of the initial determination or certain 
issues therein, or by order has changed the effective date of the 
initial determination.
    (2) An initial determination under Sec. 210.42(a)(1)(i) shall become 
the determination of the Commission 45 days after the date of service of 
the initial determination, unless the Commission, within 45 days after 
the date of such service shall have ordered review of the initial 
determination or certain issues therein or by order has changed the 
effective date of the initial determination. The findings and 
recommendations made by the administrative law judge in the recommended 
determination issued pursuant to Sec. 210.42(a)(1)(ii) will be 
considered by the Commission in reaching determinations on remedy and 
bonding by the respondents pursuant to Sec. 210.50(a).
    (3) An initial determination filed pursuant to Sec. 210.42(c) shall 
become the determination of the Commission 30 days after the date of 
service of the initial determination, except as provided in paragraph 
(h)(5) of this section, Sec. 210.50(d)(3) and Sec. 210.70(c), unless the 
Commission, within 30 days after the date of such service shall have 
ordered review of the initial determination or certain issues therein or 
by order has changed the effective date of the initial determination.
    (4) The disposition of an initial determination granting or denying 
a motion for temporary relief is governed by Sec. 210.66.
    (5) The disposition of an initial determination concerning possible 
forfeiture of a complainant's temporary relief bond is governed by 
Sec. 210.70(c).
    (i) Notice of determination. A notice stating the Commission's 
decision on whether to review an initial determination will be issued by 
the Secretary and served on the parties. Notice of the Commission's 
decision will be published in the Federal Register if the decision 
results in termination of the investigation in its entirety.

[59 FR 39039, Aug. 1, 1994, as amended at 59 FR 67628, Dec. 30, 1994; 60 
FR 53120, Oct. 12, 1995]

Sec. 210.43  Petitions for review of initial determinations on matters 
          other than temporary relief.

    (a) Filing of the petition. (1) Except as provided in paragraph 
(a)(2) of this section, any party to an investigation may request 
Commission review of an initial determination issued under 
Sec. 210.42(a)(1) or (c), Sec. 210.50(d)(3) or Sec. 210.70(c) by filing 
a petition with the Secretary. A petition for review of an initial 
determination issued under Sec. 210.42(a)(1) must be filed within 10 
days after service of the initial determination. A petition for review 
of an initial determination issued under Sec. 210.42(c) must be filed 
within five business days after issuance of the initial

[[Page 139]]

(139determination. A petition for review of an initial determination 
issued under Sec. 210.50(d)(3) or Sec. 210.70(c) must be filed within 10 
days after issuance of the initial determination.
    (2) A party may not petition for review of any issue as to which the 
party has been found to be in default. Similarly, a party or proposed 
respondent who did not file a response to the motion addressed in the 
initial determination may be deemed to have consented to the relief 
requested and may not petition for review of the issues raised in the 
motion.
    (b) Content of the petition. (1) A petition for review filed under 
this section shall identify the party seeking review and shall specify 
the issues upon which review of the initial determination is sought, and 
shall, with respect to each such issue, specify one or more of the 
following grounds upon which review is sought:
    (i) That a finding or conclusion of material fact is clearly 
erroneous;
    (ii) That a legal conclusion is erroneous, without governing 
precedent, rule or law, or constitutes an abuse of discretion; or
    (iii) That the determination is one affecting Commission policy.

The petition for review must set forth a concise statement of the facts 
material to the consideration of the stated issues, and must present a 
concise argument providing the reasons that review by the Commission is 
necessary or appropriate to resolve an important issue of fact, law, or 
policy.
    (2) Any issue not raised in a petition for review will be deemed to 
have been abandoned by the petitioning party and may be disregarded by 
the Commission in reviewing the initial determination (unless the 
Commission chooses to review the issue on its own initiative under 
Sec. 210.44).
    (3) Any petition designated by the petitioner as a ``contingent'' 
petition for review shall be deemed to be a petition under paragraph 
(a)(1) of this section and shall be processed accordingly.
    (4) A party's failure to file a petition for review of an initial 
determination shall constitute abandonment of all issues decided 
adversely to that party in the initial determination.
    (c) Responses to the petition. Any party may file a response to a 
petition for review within five business days after service of the 
petition, except that a party who has been found to be in default may 
not file a response to any issue as to which the party has defaulted.
    (d) Grant or denial of review. (1) The Commission shall decide 
whether to grant, in whole or in part, a petition for review of an 
initial determination filed pursuant to Sec. 210.42(a)(1), 
Sec. 210.50(d)(3) or Sec. 210.70(c) within 45 days of the service of the 
initial determination on the parties, or by such other time as the 
Commission may order. The Commission shall decide whether to grant, in 
whole or in part, a petition for review of an initial determination 
filed pursuant to Sec. 210.42(c) within 30 days of the service of the 
initial determination on the parties, or by such other time as the 
Commission may order.
    (2) The Commission shall decide whether to grant a petition for 
review, based upon the petition and response thereto, without oral 
argument or further written submissions unless the Commission shall 
order otherwise. A petition will be granted and review will be ordered 
if it appears that an error or abuse of the type described in paragraph 
(b)(1) of this section is present or if the petition raises a policy 
matter connected with the initial determination, which the Commission 
thinks it necessary or appropriate to address.
    (3) The Commission shall grant a petition for review and order 
review of an initial determination or certain issues therein when at 
least one of the participating Commissioners votes for ordering review. 
In its notice, the Commission shall establish the scope of the review 
and the issues that will be considered and make provisions for filing of 
briefs and oral argument if deemed appropriate by the Commission. If the 
notice solicits written submissions from interested persons on the 
issues of remedy, the public interest, and bonding in addition to 
announcing the Commission's decision to grant a petition for review of 
the initial determination, the notice shall be served by the Secretary 
on all parties, the U.S. Department of Health and Human Services,

[[Page 140]]

(140the U.S. Department of Justice, the Federal Trade Commission, the 
U.S. Customs Service, and such other departments and agencies as the 
Commission deems appropriate.

[59 FR 39039, Aug. 1, 1994, as amended at 59 FR 67628, Dec. 30, 1994; 60 
FR 53120, Oct. 12, 1995]

Sec. 210.44  Commission review on its own motion of initial 
          determinations on matters other than temporary relief.

    Within the time provided in Sec. 210.43(d)(1), the Commission on its 
own initiative may order review of an initial determination, or certain 
issues in the initial determination, when at least one of the 
participating Commissioners votes for ordering review. A self-initiated 
Commission review of an initial determination will be ordered if it 
appears that an error or abuse of the kind described in 
Sec. 210.43(b)(1) is present or the initial determination raises a 
policy matter which the Commission thinks is necessary or appropriate to 
address.

Sec. 210.45  Review of initial determinations on matters other than 
          temporary relief.

    (a) Briefs and oral argument. In the event the Commission orders 
review of an initial determination pertaining to issues other than 
temporary relief, the parties may be requested to file briefs on the 
issues under review at a time and of a size and nature specified in the 
notice of review. The parties, within the time provided for filing the 
review briefs, may submit a written request for a hearing to present 
oral argument before the Commission, which the Commission in its 
discretion may grant or deny. The Commission shall grant the request 
when at least one of the participating Commissioners votes in favor of 
granting the request.
    (b) Scope of review. Only the issues set forth in the notice of 
review, and all subsidiary issues therein, will be considered by the 
Commission.
    (c) Determination on review. On review, the Commission may affirm, 
reverse, modify, set aside or remand for further proceedings, in whole 
or in part, the initial determination of the administrative law judge. 
The Commission also may make any findings or conclusions that in its 
judgment are proper based on the record in the proceeding. If the 
Commission's determination on review terminates the investigation in its 
entirety, a notice will be published in the Federal Register.

[59 FR 39039, Aug. 1, 1994, as amended at 60 FR 53120, Oct. 12, 1995]

Sec. 210.46  Petitions for and sua sponte review of initial 
          determinations on violation of section 337 or temporary 
          relief.

    (a) Violation of section 337. An initial determination issued under 
Sec. 210.42(a)(1)(i) on whether respondents have violated section 337 of 
the Tariff Act of 1930 will be processed as provided in Sec. 210.42(e), 
(h)(2), and (i) and Secs. 210.43 through 210.45. The Commission will 
issue a notice setting deadlines for written submissions from the 
parties, other Federal agencies, and interested members of the public on 
the issues of remedy, the public interest, and bonding by the 
respondents. In those submissions, the parties may assert their 
arguments concerning the recommended determination issued by the 
administrative law judge pursuant to Sec. 210.42(a)(ii) on the issues of 
remedy and bonding by respondents.
    (b) Temporary relief. Commission action on an initial determination 
concerning temporary relief is governed by Sec. 210.66.

Sec. 210.47  Petitions for reconsideration.

    Within 14 days after service of a Commission determination, any 
party may file with the Commission a petition for reconsideration of 
such determination or any action ordered to be taken thereunder, setting 
forth the relief desired and the grounds in support thereof. Any 
petition filed under this section must be confined to new questions 
raised by the determination or action ordered to be taken thereunder and 
upon which the petitioner had no opportunity to submit arguments. Any 
party desiring to oppose such a petition shall file an answer thereto 
within five days after service of the petition upon such party. The 
filing of a petition for reconsideration shall not stay the effective 
date of the determination

[[Page 141]]

(141or action ordered to be taken thereunder or toll the running of any 
statutory time period affecting such determination or action ordered to 
be taken thereunder unless specifically so ordered by the Commission.

Sec. 210.48  Disposition of petitions for reconsideration.

    The Commission may affirm, set aside, or modify its determination, 
including any action ordered by it to be taken thereunder. When 
appropriate, the Commission may order the administrative law judge to 
take additional evidence.

Sec. 210.49  Implementation of Commission action.

    (a) Service of Commission determination upon the parties. A 
Commission determination pursuant to Sec. 210.45(c) or a termination on 
the basis of a licensing or other agreement, a consent order or an 
arbitration agreement pursuant to Sec. 210.21(b), (c) or (d), 
respectively, shall be served upon each party to the investigation.
    (b) Publication and transmittal to the President. A Commission 
determination that there is a violation of section 337 of the Tariff Act 
of 1930 or that there is reason to believe that there is such a 
violation, together with the action taken relative to such 
determination, or Commission action taken pursuant to subpart I of this 
part, shall promptly be published in the Federal Register and 
transmitted to the President, together with the record upon which the 
determination and the action are based.
    (c) Enforceability of Commission action. Unless otherwise specified, 
any Commission action other than an exclusion order or an order 
directing seizure and forfeiture of articles imported in violation of an 
outstanding exclusion order shall be enforceable upon receipt by the 
affected party of notice of such action. Exclusion orders and seizure 
and forfeiture orders shall be enforceable upon receipt of notice 
thereof by the Secretary of the Treasury.
    (d) Finality of affirmative Commission action. If the President does 
not disapprove the Commission's action within a 60-day period beginning 
the day after a copy of the Commission's action is delivered to the 
President, or if the President notifies the Commission before the close 
of the 60-day period that he approves the Commission's action, such 
action shall become final the day after the close of the 60-day period 
or the day the President notifies the Commission of his approval, as the 
case may be.
    (e) Duration. Final Commission action shall remain in effect as 
provided in subpart I of this part.

[59 FR 39039, Aug. 1, 1994, as amended at 59 FR 67628, Dec. 30, 1994]

Sec. 210.50  Commission action, the public interest, and bonding by 
          respondents.

    (a) During the course of each investigation under this part, the 
Commission shall--
    (1) Consider what action (general or limited exclusion of articles 
from entry or a cease and desist order, or exclusion of articles from 
entry under bond or a temporary cease and desist order), if any, it 
should take, and, when appropriate, take such action;
    (2) Consult with and seek advice and information from the U.S. 
Department of Health and Human Services, the U.S. Department of Justice, 
the Federal Trade Commission, the U.S. Customs Service, and such other 
departments and agencies as it considers appropriate, concerning the 
subject matter of the complaint and the effect its actions (general or 
limited exclusion of articles from entry or a cease and desist order, or 
exclusion of articles from entry under bond or a temporary cease and 
desist order) under section 337 of the Tariff Act of 1930 shall have 
upon the public health and welfare, competitive conditions in the U.S. 
economy, the production of like or directly competitive articles in the 
United States, and U.S. consumers;
    (3) Determine the amount of the bond to be posted by a respondent 
pursuant to section 337(j)(3) of the Tariff Act of 1930 following the 
issuance of temporary or permanent relief under section 337(d), (e), 
(f), or (g) of the Tariff Act of 1930, taking into account the 
requirement of section 337(e) and (j)(3) that the amount of the bond be 
sufficient to protect the complainant from any injury.

[[Page 142]]

(142
    (4) Receive submissions from the parties, interested persons, and 
other Government agencies and departments with respect to the subject 
matter of paragraphs (a)(1), (a)(2), and (a)(3), of this section.

When the matter under consideration pursuant to paragraph (a)(1) of this 
section is whether to grant some form of permanent relief, the 
submissions described in paragraph (a)(4) of this section shall be filed 
by the deadlines specified in the Commission notice issued pursuant to 
Sec. 210.46(a). When the matter under consideration is whether to grant 
some form of temporary relief, such submissions shall be filed by the 
deadlines specified in Sec. 210.67(b), unless the Commission orders 
otherwise. Any submission from a party shall be served upon the other 
parties in accordance with Sec. 210.4(g). The parties' submissions, as 
well as any filed by interested persons or other agencies shall be 
available for public inspection in the Office of the Secretary. The 
Commission will consider motions for oral argument or, when necessary, a 
hearing with respect to the subject matter of this section, except that 
no hearing or oral argument will be permitted in connection with a 
motion for temporary relief.
    (b)(1) With respect to an administrative law judge's ability to take 
evidence or other information and to hear arguments from the parties and 
other interested persons on the issues of appropriate Commission action, 
the public interest, and bonding by the respondents for purposes of an 
initial determination on temporary relief, see Secs. 210.61, 210.62, and 
210.66(a). For purposes of the recommended determination required by 
Sec. 210.42(a)(1)(ii), an administrative law judge shall take evidence 
or other information and hear arguments from the parties and other 
interested persons on the issues of appropriate Commission action and 
bonding by the respondents. Unless the Commission orders otherwise, and 
except as provided in paragraph (b)(2) of this section, an 
administrative law judge shall not address the issue of the public 
interest for purposes of an initial determination on violation of 
section 337 of the Tariff Act under Sec. 210.42(a)(1)(i).
    (2) Regarding terminations by settlement agreement, consent order, 
or arbitration agreement under Sec. 210.21 (b), (c) or (d), the parties 
may file statements regarding the impact of the proposed termination on 
the public interest, and the administrative law judge may hear argument, 
although no discovery may be compelled with respect to issues relating 
solely to the public interest. Thereafter, the administrative law judge 
shall consider and make appropriate findings in the initial 
determination regarding the effect of the proposed settlement on the 
public health and welfare, competitive conditions in the U.S. economy, 
the production of like or directly competitive articles in the United 
States, and U.S. consumers.
    (c) No general exclusion from entry of articles shall be ordered 
under paragraph (a)(1) of this section unless the Commission determines 
that--
    (1) Such exclusion is necessary to prevent circumvention of an 
exclusion order limited to products of named persons; or
    (2) There is a pattern of violation of section 337 of the Tariff Act 
of 1930 and it is difficult to identify the source of infringing 
products.
    (d) Forfeiture or return of respondents' bonds. (1)(i) If one or 
more respondents posts a bond pursuant to 19 U.S.C. 1337(e)(1) or 
1337(j)(3), proceedings to determine whether a respondent's bond should 
be forfeited to a complainant in whole or part may be initiated upon the 
filing of a motion by a complainant within 30 days after expiration of 
the Presidential review period under 19 U.S.C. 1337(j).
    (ii) A respondent may file a motion for the return of its bond.
    (2) Any nonmoving party may file a response to a motion filed under 
paragraph (d)(1) of this section within 15 days after filing of the 
motion, unless otherwise ordered by the administrative law judge.
    (3) A motion for forfeiture or return of a respondent's bond in 
whole or part will be adjudicated by the administrative law judge in an 
initial determination with a 45-day effective date, which shall be 
subject to review under the provisions of Secs. 210.42 through 210.45. 
In

[[Page 143]]

(143determining whether to grant the motion, the administrative law 
judge and the Commission will be guided by practice under Rule 65 of the 
Federal Rules of Civil Procedure (taking into account that the roles of 
the parties are reversed in this instance).
    (4) If the Commission determines that a respondent's bond should be 
forfeited to a complainant, and if the bond is being held by the 
Secretary of the Treasury, the Commission Secretary shall promptly 
notify the Secretary of the Treasury of the Commission's determination.

[59 FR 39039, Aug. 1, 1994, as amended at 59 FR 67628, Dec. 30, 1994]

Sec. 210.51  Period for concluding investigation.

    (a) Permanent relief. Within 45 days after institution of the 
investigation, the administrative law judge shall issue an order setting 
a target date for completion of the investigation. If the target date 
does not exceed 15 months from the date of institution of the 
investigation, the order of the administrative law judge shall be final 
and not subject to interlocutory review. If the target date exceeds 15 
months, the order of the administrative law judge shall constitute an 
initial determination. After the target date has been set, it can be 
modified by the administrative law judge for good cause shown before the 
investigation is certified to the Commission or by the Commission after 
the investigation is certified to the Commission. Any extension of the 
target date beyond 15 months, before the investigation is certified to 
the Commission, shall be by initial determination.
    (b) Temporary relief. The temporary relief phase of an investigation 
shall be concluded and a final order issued no later than 90 days after 
publication of the notice of investigation in the Federal Register, 
unless the temporary relief phase of the investigation has been 
designated ``more complicated'' by the Commission or the presiding 
administrative law judge pursuant to Sec. 210.22(c) and Sec. 210.60. If 
that designation has been made, the temporary relief phase of the 
investigation shall be concluded and a final order issued no later than 
150 days after publication of the notice of investigation in the Federal 
Register.
    (c) Computation of time. In computing the deadlines imposed in 
paragraph (b) of this section, there shall be excluded any period during 
which the investigation is suspended pursuant to Sec. 210.23.

[59 FR 39039, Aug. 1, 1994, as amended at 59 FR 67629, Dec. 30, 1994; 61 
FR 43432, Aug. 23, 1996]



Subpart H--Temporary Relief

Sec. 210.52  Motions for temporary relief.

    Requests for temporary relief under section 337 (e) or (f) of the 
Tariff Act of 1930 shall be made through a motion filed in accordance 
with the following provisions:
    (a) A complaint requesting temporary relief shall be accompanied by 
a motion setting forth the complainant's request for such relief. In 
determining whether to grant temporary relief, the Commission will apply 
the standards the U.S. Court of Appeals for the Federal Circuit uses in 
determining whether to affirm lower court decisions granting preliminary 
injunctions. The motion for temporary relief accordingly must contain a 
detailed statement of specific facts bearing on the factors the Federal 
Circuit has stated that a U.S. District Court must consider in granting 
a preliminary injunction.
    (b) The motion must also contain a detailed statement of facts 
bearing on:
    (1) Whether the complainant should be required to post a bond as a 
prerequisite to the issuance of temporary relief; and
    (2) The appropriate amount of the bond, if the Commission determines 
that a bond will be required.
    (c) In determining whether to require a bond as a prerequisite to 
the issuance of temporary relief, the Commission will be guided by 
practice under Rule 65 of the Federal Rules of Civil Procedure.
    (d) The following documents and information also shall be filed 
along with the motion for temporary relief:
    (1) A memorandum of points and authorities in support of the motion;
    (2) Affidavits executed by persons with knowledge of the facts 
asserted in the motion; and

[[Page 144]]

(144
    (3) All documents, information, and other evidence in complainant's 
possession that complainant intends to submit in support of the motion.
    (e) If the complaint, the motion for temporary relief, or the 
documentation supporting the motion for temporary relief contains 
confidential business information as defined in Sec. 201.6(a) of this 
chapter, the complainant must follow the procedure outlined in 
Secs. 210.4(a), 210.5(a), 201.6 (a) and (c), 210.8(a), and 210.55 of 
this part.

[59 FR 39039, Aug. 1, 1994, as amended at 59 FR 67629, Dec. 30, 1994; 60 
FR 32444, June 22, 1995]

Sec. 210.53  Motion filed after complaint.

    (a) A motion for temporary relief may be filed after the complaint, 
but must be filed prior to the Commission determination under 
Sec. 210.10 on whether to institute an investigation. A motion filed 
after the complaint shall contain the information, documents, and 
evidence described in Sec. 210.52 and must also make a showing that 
extraordinary circumstances exist that warrant temporary relief and that 
the moving party was not aware, and with due diligence could not have 
been aware, of those circumstances at the time the complaint was filed. 
When a motion for temporary relief is filed after the complaint but 
before the Commission has determined whether to institute an 
investigation based on the complaint, the 35-day period allotted under 
Sec. 210.58 for review of the complaint and informal investigatory 
activity will begin to run anew from the date on which the motion was 
filed.
    (b) A motion for temporary relief may not be filed after an 
investigation has been instituted.

Sec. 210.54  Service of motion by the complainant.

    Notwithstanding the provisions of Sec. 210.11 regarding service of 
the complaint and motion for temporary relief by the Commission upon 
institution of an investigation, on the day the complainant files a 
complaint and motion for temporary relief with the Commission (see 
Sec. 201.8(a) of this chapter), the complainant must serve 
nonconfidential copies of both documents (as well as nonconfidential 
copies of all materials or documents attached thereto) on all proposed 
respondents and on the embassy in Washington, DC of each country from 
which the allegedly unfair imports come. The complaint and motion shall 
be served by messenger, courier, express mail, or equivalent means. A 
signed certificate of service must accompany the complaint and motion 
for temporary relief. If the certificate does not accompany the 
complaint and the motion, the Secretary shall not accept the complaint 
or the motion and shall promptly notify the submitter. Actual proof of 
service on each respondent and embassy (e.g., certified mail return 
receipts, courier or overnight delivery receipts, or other proof of 
delivery)--or proof of a serious but unsuccessful effort to make such 
service--must be filed within 10 days after the filing of the complaint 
and motion. If the requirements of this section are not satisfied, the 
Commission may extend its 35-day deadline under Sec. 210.58 for 
determining whether to provisionally accept the motion for temporary 
relief and institute an investigation on the basis of the complaint.

Sec. 210.55  Content of service copies.

    (a) Any purported confidential business information that is deleted 
from the nonconfidential service copies of the complaint and motion for 
temporary relief must satisfy the requirements of Sec. 201.6(a) of this 
chapter (which defines confidential information for purposes of 
Commission proceedings). For attachments to the complaint or motion that 
are confidential in their entirety, the complainant must provide a 
nonconfidential summary of what each attachment contains. Despite the 
redaction of confidential material from the complaint and motion for 
temporary relief, the nonconfidential service copies must contain enough 
factual information about each element of the violation alleged in the 
complaint and the motion to enable each proposed respondent to 
comprehend the allegations against it.
    (b) If the Commission determines that the complaint, motion for 
temporary relief, or any exhibits or attachments thereto contain 
excessive designations of confidentiality that are not warranted under 
Sec. 201.6(a) of this

[[Page 145]]

(145chapter, the Commission may require the complainant to file and 
serve new nonconfidential versions of the aforesaid submissions and may 
determine that the 35-day period under Sec. 210.58 for deciding whether 
to institute an investigation and to provisionally accept the motion for 
temporary relief for further processing shall begin to run anew from the 
date the new nonconfidential versions are filed with the Commission and 
served on the proposed respondents.

Sec. 210.56  Notice accompanying service copies.

    (a) Each service copy of the complaint and motion for temporary 
relief shall be accompanied by a notice containing the following text:

    Notice is hereby given that the attached complaint and motion for 
temporary relief will be filed with the U.S. International Trade 
Commission in Washington, DC on __________, 19__. The filing of the 
complaint and motion will not institute an investigation on that date, 
however, nor will it begin the period for filing responses to the 
complaint and motion pursuant to 19 CFR 210.13 and 210.59.
    Upon receipt of the complaint, the Commission will examine the 
complaint for sufficiency and compliance with 19 CFR 201.8, 210.4, 
210.5, 210.8, and 210.12. The Commission's Office of Unfair Import 
Investigations will conduct informal investigatory activity pursuant to 
19 CFR 210.9 to identify sources of relevant information and to assure 
itself of the availability thereof. The motion for temporary relief will 
be examined for sufficiency and compliance with 19 CFR 201.8, 210.4, 
210.5, 210.52, 210.53(a) (if applicable), 210.54, 210.55, and 210.56, 
and will be subject to the same type of preliminary investigative 
activity as the complaint.
    The Commission generally will determine whether to institute an 
investigation on the basis of the complaint and whether to provisionally 
accept the motion for temporary relief within 35 days after the 
complaint and motion are filed or, if the motion is filed after the 
complaint, within 35 days after the motion is filed--unless the 35-day 
deadline is extended pursuant to 19 CFR 210.53, 210.54, 210.55(b), 
210.57, or 210.58. If the Commission determines to institute an 
investigation and provisionally accept the motion, the motion will be 
assigned to a Commission administrative law judge for issuance of an 
initial determination in accordance with 19 CFR 210.66. See 19 CFR 
210.10 and 210.58.
    If the Commission determines to conduct an investigation of the 
complaint and the motion for temporary relief, the investigation will be 
formally instituted on the date the Commission publishes a notice of 
investigation in the Federal Register pursuant to 19 CFR 210.10(b). If 
an investigation is instituted, copies of the complaint, the notice of 
investigation, the motion for temporary relief, and the Commission's 
Rules of Practice and Procedure (19 CFR Part 210) will be served on each 
respondent by the Commission pursuant to 19 CFR 210.11(a). Responses to 
the complaint, the notice of investigation, and the motion for temporary 
relief must be filed within 10 days after Commission service thereof, 
and must comply with 19 CFR 201.8, 210.4, 210.5, 210.13, and 210.59. See 
also 19 CFR 201.14 and 210.6 regarding computation of the 10-day 
response period.
    If, after reviewing the complaint and motion for temporary relief, 
the Commission determines not to institute an investigation, the 
complaint and motion will be dismissed and the Commission will provide 
written notice of that decision and the reasons therefor to the 
complainant and all proposed respondents pursuant to 19 CFR 210.10.
    For information concerning the filing and processing of the 
complaint and its treatment, and to ask general questions concerning 
section 337 practice and procedure, contact the Office of Unfair Import 
Investigations, U.S. International Trade Commission, 500 E Street SW., 
Room 401, Washington, DC 20436, telephone 202-205-2560. Such inquiries 
will be referred to the Commission investigative attorney assigned to 
the complaint. (See also the Commissions's Rules of Practice and 
Procedure set forth in 19 CFR Part 210.)
    To learn the date that the Commission will vote on whether to 
institute an investigation and the publication date of the notice of 
investigation (if the Commission decides to institute an investigation), 
contact the Office of the Secretary, U.S. International Trade 
Commission, 500 E Street SW., room 112, Washington, DC 20436, telephone 
202-205-2000.
    This notice is being provided pursuant to 19 CFR 210.56.

    (b) In the event that the complaint and motion for temporary relief 
are filed after the date specified in the above notice, the complainant 
must serve a supplementary notice to all proposed respondents and 
embassies stating the correct filing date. The supplementary notice 
shall be served by messenger, courier, express mail, or equivalent 
means. The complainant shall file a certificate of service and a copy of 
the supplementary notice with the Commission.

[[Page 146]]

(146

Sec. 210.57  Amendment of the motion.

    A motion for temporary relief may be amended at any time prior to 
the institution of an investigation. All material filed to amend the 
motion (or the complaint) must be served on all proposed respondents and 
on the embassies in Washington, DC, of the foreign governments that they 
represent, in accordance with Sec. 210.54. If the amendment expands the 
scope of the motion or changes the complainant's assertions on the issue 
of whether a bond is to be required as a prerequisite to the issuance of 
temporary relief or the appropriate amount of the bond, the 35-day 
period under Sec. 210.58 for determining whether to institute an 
investigation and provisionally accept the motion for temporary relief 
shall begin to run anew from the date the amendment is filed with the 
Commission. A motion for temporary relief may not be amended to expand 
the scope of the temporary relief inquiry after an investigation is 
instituted.

Sec. 210.58  Provisional acceptance of the motion.

    The Commission shall determine whether to accept a motion for 
temporary relief at the same time it determines whether to institute an 
investigation on the basis of the complaint. That determination shall be 
made within 35 days after the complaint and motion for temporary relief 
are filed, unless the 35-day period is restarted pursuant to 
Sec. 210.53(a), 210.54, 210.55, or 210.57, or exceptional circumstances 
exist which preclude adherence to the prescribed deadline. (See 
Sec. 210.10(a)(1).) Before the Commission determines whether to 
provisionally accept a motion for temporary relief, the motion will be 
examined for sufficiency and compliance with Secs. 210.52, 210.53(a) (if 
applicable), 210.54 through 210.56, as well as Secs. 201.8, 210.4, and 
210.5. The motion will be subject to the same type of preliminary 
investigatory activity as the complaint. (See Sec. 210.9(b).) Acceptance 
of a motion pursuant to this paragraph constitutes provisional 
acceptance for referral of the motion to the chief administrative law 
judge, who will assign the motion to a presiding administrative law 
judge for issuance of an initial determination under Sec. 210.66(a). 
Commission rejection of an insufficient or improperly filed complaint 
will preclude acceptance of a motion for temporary relief. Commission 
rejection of a motion for temporary relief will not preclude institution 
of an investigation of the complaint.

Sec. 210.59  Responses to the motion and the complaint.

    (a) Any party may file a response to a motion for temporary relief. 
Unless otherwise ordered by the administrative law judge, a response to 
a motion for temporary relief in an ordinary investigation must be filed 
not later than 10 days after service of the motion by the Commission. In 
a ``more complicated'' investigation, the response shall be due within 
20 days after such service, unless otherwise ordered by the presiding 
administrative law judge.
    (b) The response must comply with the requirements of Sec. 201.8 of 
this chapter, as well as Secs. 210.4 and 210.5 of this part, and shall 
contain the following information:
    (1) A statement that sets forth with particularity any objection to 
the motion for temporary relief;
    (2) A statement of specific facts concerning the factors the U.S. 
Court of Appeals for the Federal Circuit would consider in determining 
whether to affirm lower court decisions granting or denying preliminary 
injunctions;
    (3) A memorandum of points and authorities in support of the 
respondent's response to the motion;
    (4) Affidavits, where possible, executed by persons with knowledge 
of the facts specified in the response. Each response to the motion must 
address, to the extent possible, the complainant's assertions regarding 
whether a bond should be required and the appropriate amount of the 
bond. Responses to the motion for temporary relief also may contain 
counter-proposals concerning the amount of the bond or the manner in 
which the bond amount should be calculated.
    (c) Each response to the motion for temporary relief must also be 
accompanied by a response to the complaint and notice of investigation. 
Responses to the complaint and notice of investigation must comply with 
Sec. 201.8 of

[[Page 147]]

(147this chapter, Secs. 210.4 and 210.5 of this part, and any protective 
order issued by the administrative law judge under Sec. 210.34 of this 
part.

Sec. 210.60  Designating an investigation ``more complicated'' for the 
          purpose of adjudicating a motion for temporary relief.

    At the time the Commission determines to institute an investigation 
and provisionally accepts a motion for temporary relief pursuant to 
Sec. 210.58, the Commission may designate the investigation ``more 
complicated'' pursuant to Sec. 210.22(c) for the purpose of obtaining up 
to 60 additional days to adjudicate the motion for temporary relief. In 
the alternative, after the motion for temporary relief is referred to 
the administrative law judge for an initial determination under 
Sec. 210.66(a), the administrative law judge may issue an order, sua 
sponte or on motion, designating the investigation ``more complicated'' 
for the purpose of obtaining additional time to adjudicate the motion 
for temporary relief. Such order shall constitute a final determination 
of the Commission, and notice of the order shall be published in the 
Federal Register. As required by section 337(e)(2) of the Tariff Act of 
1930, the notice shall state the reasons that the temporary relief phase 
of the investigation was designated ``more complicated.'' The ``more 
complicated'' designation may be conferred by the Commission or the 
presiding administrative law judge pursuant to this paragraph on the 
basis of the complexity of the issues raised in the motion for temporary 
relief or the responses thereto, or for other good cause shown.

Sec. 210.61  Discovery and compulsory process.

    The presiding administrative law judge shall set all discovery 
deadlines. The administrative law judge's authority to compel discovery 
includes discovery relating to the following issues:
    (a) Any matter relevant to the motion for temporary relief and the 
responses thereto, including the issues of bonding by the complainant; 
and
    (b) The issues the Commission considers pursuant to sections 337 
(e)(1), (f)(1), and (j)(3) of the Tariff Act of 1930, viz.,
    (1) The appropriate form of relief (notwithstanding the form 
requested in the motion for temporary relief),
    (2) Whether the public interest precludes that form of relief, and
    (3) The amount of the bond to be posted by the respondents to secure 
importations or sales of the subject imported merchandise while the 
temporary relief order is in effect. The administrative law judge may, 
but is not required to, make findings on the issues specified in 
sections 337 (e)(1), (f)(1), or (j)(3) of the Tariff Act of 1930. 
Evidence and information obtained through discovery on those issues will 
be used by the parties and considered by the Commission in the context 
of the parties' written submissions on remedy, the public interest, and 
bonding by respondents, which are filed with the Commission pursuant to 
Sec. 210.67(b).

Sec. 210.62  Evidentiary hearing.

    An opportunity for a hearing in accordance with the Administrative 
Procedure Act and Sec. 210.36 of this part will be provided in 
connection with every motion for temporary relief. If a hearing is 
conducted, the presiding administrative law judge may, but is not 
required to, take evidence concerning the issues of remedy, the public 
interest, and bonding by respondents under section 337 (e)(1), (f)(1), 
and (j)(3) of the Tariff Act of 1930.

Sec. 210.63  Proposed findings and conclusions and briefs.

    The administrative law judge shall determine whether and, if so, to 
what extent the parties shall be permitted to file proposed findings of 
fact, proposed conclusions of law, or briefs under Sec. 210.40 
concerning the issues involved in adjudication of the motion for 
temporary relief.

Sec. 210.64  Interlocutory appeals.

    There will be no interlocutory appeals to the Commission under 
Sec. 210.24 on any matter connected with a motion for temporary relief 
that is decided by an administrative law judge

[[Page 148]]

(148prior to the issuance of the initial determination on the motion for 
temporary relief.

Sec. 210.65  Certification of the record.

    When the administrative law judge issues an initial determination 
concerning temporary relief pursuant to Sec. 210.66(a), he shall also 
certify to the Commission the record upon which the initial 
determination is based.

Sec. 210.66  Initial determination concerning temporary relief; 
          Commission action thereon.

    (a) On or before the 70th day after publication of the notice of 
investigation in an ordinary investigation, or on or before the 120th 
day after such publication in a ``more complicated'' investigation, the 
administrative law judge will issue an initial determination concerning 
the issues listed in Secs. 210.52 and 210.59. If the 70th day or the 
120th day is a Saturday, Sunday, or Federal holiday, the initial 
determination must be received in the Office of the Secretary no later 
than 12:00 noon on the first business day after the 70-day or 120-day 
deadline. The initial determination may, but is not required to, address 
the issues of remedy, the public interest, and bonding by the 
respondents pursuant under sections 337 (e)(1), (f)(1), and (j)(3) of 
the Tariff Act of 1930.
    (b) If the initial determination on temporary relief is issued on 
the 70-day or 120-day deadline imposed in paragraph (a) of this section, 
the initial determination will become the Commission's determination 20 
calendar days after issuance thereof in an ordinary case, and 30 
calendar days after issuance in a ``more complicated'' investigation, 
unless the Commission modifies, reverses, or sets aside the initial 
determination in whole or part within that period. If the initial 
determination on temporary relief is issued before the 70-day or 120-day 
deadline imposed in paragraph (a) of this section, the Commission will 
add the extra time to the 20-day or 30-day deadline to which it would 
otherwise have been held. In computing the deadlines imposed by this 
paragraph, intermediary Saturdays, Sundays, and Federal holidays shall 
be included. If the last day of the period is a Saturday, Sunday, or 
Federal holiday as defined in Sec. 201.14(a) of this chapter, the 
effective date of the initial determination shall be extended to the 
next business day.
    (c) The Commission will not modify, reverse, or set aside an initial 
determination concerning temporary relief unless the Commission finds 
that a finding of material fact is clearly erroneous, that the initial 
determination contains an error of law, or that there is a policy matter 
warranting discussion by the Commission. All parties may file written 
comments concerning any clear error of material fact, error of law, or 
policy matter warranting such action by the Commission. Such comments 
must be limited to 35 pages in an ordinary investigation and 45 pages in 
a ``more complicated'' investigation. The comments must be filed no 
later than seven calendar days after issuance of the initial 
determination in an ordinary case and 10 calendar days after issuance of 
the initial determination in a ``more complicated'' investigation. In 
computing the aforesaid 7-day and 10-day deadlines, intermediary 
Saturdays, Sundays, and Federal holidays shall be included. If the 
initial determination is issued on a Friday, however, the filing 
deadline for comments shall be measured from the first business day 
after issuance. If the last day of the filing period is a Saturday, 
Sunday, or Federal holiday as defined in Sec. 201.14(a) of this chapter, 
the filing deadline shall be extended to the next business day. The 
parties shall serve their comments on other parties by messenger, 
courier, express mail, or equivalent means.
    (d) Notice of the initial determination shall be served on the other 
agencies listed in Sec. 210.50(a)(2). Those agencies will be given 10 
calendar days from the date of service of the notice to file comments on 
the initial determination.
    (e) (1) Each party may file a response to each set of comments filed 
by another party. All such reply comments must be filed within 10 
calendar days after issuance of the initial determination in an ordinary 
case and within 14 calendar days after issuance of an initial 
determination in a ``more complicated'' investigation. The deadlines

[[Page 149]]

(149for filing reply comments shall be computed in the manner described 
in paragraph (c) of this section, except that in no case shall a party 
have fewer than two calendar days to file reply comments.
    (2) Each set of reply comments will be limited to 20 pages in an 
ordinary investigation and 30 pages in a ``more complicated'' case.
    (f) If the Commission determines to modify, reverse, or set aside 
the initial determination, the Commission will issue a notice and, if 
appropriate, a Commission opinion. If the Commission does not modify, 
reverse, or set aside the administrative law judge's initial 
determination within the time provided under paragraph (b) of this 
section, the initial determination will automatically become the 
determination of the Commission. Notice of the Commission's 
determination concerning the initial determination will be issued on the 
statutory deadline for determining whether to grant temporary relief, or 
as soon as possible thereafter, and will be served on the parties. 
Notice of the determination will be published in the Federal Register if 
the Commission's disposition of the initial determination has resulted 
in a determination that there is reason to believe that section 337 has 
been violated and a temporary remedial order is to be issued. If the 
Commission determines (either by reversing or modifying the 
administrative law judge's initial determination, or by adopting the 
initial determination) that the complainant must post a bond as a 
prerequisite to the issuance of temporary relief, the Commission may 
issue a supplemental notice setting forth conditions for the bond if any 
(in addition to those outlined in the initial determination) and the 
deadline for filing the bond with the Commission.

[59 FR 39039, Aug. 1, 1994, as amended at 60 FR 53121, Oct. 12, 1995]

Sec. 210.67  Remedy, the public interest, and bonding by respondents.

    The procedure for arriving at the Commission's determination of the 
issues of the appropriate form of temporary relief, whether the public 
interest factors enumerated in the statute preclude such relief, and the 
amount of the bond under which respondents' merchandise will be 
permitted to enter the United States during the pendency of any 
temporary relief order issued by the Commission, is as follows:
    (a) While the motion for temporary relief is before the 
administrative law judge, he may compel discovery on matters relating to 
remedy, the public interest, and bonding by respondents (as provided in 
Sec. 210.61). The administrative law judge also is authorized to make 
findings pertaining to the public interest, as provided in 
Sec. 210.66(a). Such findings may be superseded, however, by Commission 
findings on that issue as provided in paragraph (c) of this section.
    (b) On the 65th day after institution in an ordinary case or on the 
110th day after institution in a ``more complicated'' investigation, all 
parties shall file written submissions with the Commission addressing 
those issues. The submissions shall refer to information and evidence 
already on the record, but additional information and evidence germane 
to the issues of appropriate relief, the statutory public interest 
factors, and bonding by respondents may be provided along with the 
parties' submissions. Pursuant to Sec. 210.50(a)(4), interested persons 
may also file written comments, on the aforesaid dates, concerning the 
issues of remedy, the public interest, and bonding by the respondents.
    (c) On or before the 90-day or 150-day statutory deadline for 
determining whether to order temporary relief under section 337 (e)(1) 
and/or (f)(1) of the Tariff Act of 1930, the Commission will determine 
what relief is appropriate in light of any violation that appears to 
exist, whether the public interest factors enumerated in the statute 
preclude the issuance of such relief, and the amount of the bond under 
which the respondents' merchandise will be permitted to enter the United 
States during the pendency of any temporary relief order issued by the 
Commission. In the event that Commission's findings on the public 
interest pursuant to this paragraph are inconsistent with findings made 
by the administrative law judge in the initial determination pursuant to 
Sec. 210.66(a),

[[Page 150]]

(150the Commission's findings are controlling.

Sec. 210.68  Complainant's temporary relief bond.

    (a) In every investigation under this part involving a motion for 
temporary relief, the question of whether the complainant shall be 
required to post a bond as a prerequisite to the issuance of such relief 
shall be addressed by the parties, the presiding administrative law 
judge, and the Commission in the manner described in Secs. 210.52, 
210.59, 210.61, 210.62, and 210.66. If the Commission determines that a 
bond should be required, the bond may consist of one or more of the 
following:
    (1) The surety bond of a surety or guarantee corporation that is 
licensed to do business with the United States in accordance with 31 
U.S.C. 9304-9306 and 31 CFR Parts 223 and 224;
    (2) The surety bond of an individual, a trust, an estate, or a 
partnership, or a corporation, whose solvency and financial 
responsibility will be investigated and verified by the Commission; or
    (3) A certified check, a bank draft, a post office money order, 
cash, a United States bond, a Treasury note, or other Government 
obligation within the meaning of 31 U.S.C. 9301 and 31 CFR Part 225, 
which is owned by the complainant and tendered in lieu of a surety bond, 
pursuant to 31 U.S.C. 9303(c) and 31 CFR Part 225.

The same restrictions and requirements applicable to individual and 
corporate sureties on Customs bonds, which are set forth in 19 CFR Part 
113, shall apply with respect to sureties on bonds filed with the 
Commission by complainants as a prerequisite to a temporary relief under 
section 337 of the Tariff Act of 1930. If the surety is an individual, 
the individual must file an affidavit of the type shown in Appendix A to 
Sec. 210.68. Unless otherwise ordered by the Commission, while the bond 
of the individual surety is in effect, an updated affidavit must be 
filed every four months (computed from the date on which the bond was 
approved by the Secretary or the Commission).
    (b) The bond and accompanying documentation must be submitted to the 
Commission within the time specified in the Commission notice, order, 
determination, or opinion requiring the posting of a bond, or within 
such other time as the Commission may order. If the bond is not 
submitted within the specified period (and an extension of time has not 
been granted), temporary relief will not be issued.
    (c) The corporate or individual surety on a bond or the person 
posting a certified check, a bank draft, a post office money order, 
cash, a United States bond, a Treasury note, or other Government 
obligation in lieu of a surety bond must provide the following 
information on the face of the bond or in the instrument authorizing the 
Government to collect or sell the bond, certified check, bank draft, 
post office money order, cash, United States bond, Treasury note, or 
other Government obligation in response to a Commission order requiring 
forfeiture of the bond pursuant to Sec. 210.70:
    (1) The investigation caption and docket number;
    (2) The names, addresses, and seals (if appropriate) of the 
principal, the surety, the obligee, as well as the ``attorney in fact'' 
and the registered process agent (if applicable) (see Customs Service 
regulations in 19 CFR Part 113 and Treasury Department regulations in 31 
CFR Parts 223, 224, and 225);
    (3) The terms and conditions of the bond obligation, including the 
reason the bond is being posted, the amount of the bond, the effective 
date and duration of the bond (as prescribed by the Commission order, 
notice, determination, or opinion requiring the complainant to post a 
bond); and
    (4) A section at the bottom of the bond or other instrument for the 
date and authorized signature of the Secretary to reflect Commission 
approval of the bond.
    (d) Complainants who wish to post a certified check, a bank draft, a 
post office money order, cash, a United States bond, a Treasury note, or 
other Government obligation in lieu of a surety bond must notify the 
Commission in writing immediately upon receipt of the Commission 
document requiring the posting of a bond, and must contact the Secretary 
to make arrangements for Commission receipt, handling, management, and 
deposit of the

[[Page 151]]

(151certified check, bank draft, post office money order, cash, United 
States bond, Treasury note, or other Government obligation tendered in 
lieu of a surety bond, in accordance with 31 U.S.C. Sec. 9303, 31 CFR 
Parts 202, 206, and 225 and other governing Treasury regulations and 
circular(s). If required by the governing Treasury regulations and 
circular, a certified check, a bank draft, a post office money order, 
cash, a United States bond, a Treasury note, or other government 
obligation tendered in lieu of a surety bond may have to be 
collateralized. See, e.g., 31 CFR 202.6 and the appropriate Treasury 
Circular.

        Appendix A to Sec. 210.68 Affidavit by Individual Surety

  United States International Trade Commission Affidavit by Individual 
                          Surety 19 CFR 210.68

_______________________________________________________________________
State of

_______________________________________________________________________
County

SS:_____________________________________________________________________

    I, the undersigned, being duly sworn, depose and say that I am a 
citizen of the United States, and of full age and legally competent; 
that I am not a partner in any business of the principal on the bond or 
bonds on which I appear as surety; and that the information herein below 
furnished is true and complete to the best of my knowledge. This 
affidavit is made to induce the United States International Trade 
Commission to accept me as surety on the bond(s) filed or to be filed 
with the United States International Trade Commission pursuant to 19 CFR 
210.68. I agree to notify the Commission of any transfer or change in 
any of the assets herein enumerated.

_______________________________________________________________________
1. Name (First, Middle, Last)

_______________________________________________________________________
2. Home Address

_______________________________________________________________________
3. Type & Duration of Occupation

_______________________________________________________________________
4. Name of Employer (If Self-Employed)

_______________________________________________________________________
5. Business Address

_______________________________________________________________________
6. Telephone No.

Home____________________________________________________________________

Business________________________________________________________________

    7. The following is a true representation of my assets, liabilities, 
and net worth and does not include any financial interest I have in the 
assets of the principal on the bond(s) on which I appear as surety.


a. Fair value of solely owned real estate *...................  ........
b. All mortgages or other encumbrances on the real estate               
 included in Line a...........................................  ........
c. Real estate equity (subtract Line b from Line a)...........  ........
d. Fair value of all solely owned property other than real              
 estate.......................................................  ........
e. Total of the amounts on Lines c and d......................  ........
f. All other liabilities owing or incurred not included in              
 Line b.......................................................  ........
g. Net worth (subtract Line f from Line e)....................  ........
                                                                        


    *Do not include property exempt from execution and sale for any 
reason. Surety's interest in community property may be included if not 
so exempt.
_______________________________________________________________________
8. LOCATION AND DESCRIPTION OF REAL ESTATE OF WHICH I AM SOLE OWNER, THE 
          VALUE OF WHICH IS IN LINE a, ITEM 7 ABOVE \1\

    Amount of assessed value of above real estate for taxation purposes:

_______________________________________________________________________
9. DESCRIPTION OF PROPERTY INCLUDED IN LINE d, ITEM 7 ABOVE (List the 
          value of each category of property separately) \2\

_______________________________________________________________________
10. ALL OTHER BONDS ON WHICH I AM SURETY (State character and amount of 
          each bond; if none, so state) \3\

_______________________________________________________________________
11. SIGNATURE
_______________________________________________________________________
12. BOND AND COMMISSION INVESTIGATION TO WHICH THIS AFFIDAVIT RELATES

    SUBSCRIBED AND SWORN TO BEFORE ME AS FOLLOWS:
DATE OATH ADMINISTERED
MONTH        DAY        YEAR

CITY____________________________________________________________________
STATE (Or Other Jurisdiction)___________________________________________

_______________________________________________________________________
NAME & TITLE OF OFFICIAL
ADMINISTERING OATH______________________________________________________

SIGNATURE_______________________________________________________________

MY COMMISSION EXPIRES___________________________________________________

                              INSTRUCTIONS

    1. Here describe the property by giving the number of the lot and 
square or block, and addition or subdivision, if in a city, and, if in 
the country, after showing state, county, and township, locate the 
property by metes and

[[Page 152]]

(152bounds, or by part of section, township, and range, so that it may 
be identified.
    2. Here describe the property by name so that it can be identified--
for example ``Fifteen shares of the stock of the ``National Metropolitan 
Bank, New York City,'' or ``Am. T. & T. s. f.5's 60.''
    3. Here state what other bonds the affiant has already signed as 
surety, giving the name and address of the principal, the date, and the 
amount and character of the bond.

[59 FR 39039, Aug. 1, 1994; 59 FR 64286, Dec. 14, 1994]

Sec. 210.69  Approval of complainant's temporary relief bond.

    (a) In accordance with 31 U.S.C. Sec. 9304(b), all bonds posted by 
complainants must be approved by the Commission before the temporary 
relief sought by the complainant will be issued. See also 31 U.S.C. 
Sec. 9303(a) and 31 CFR 225.1 and 225.20. The Commission's bond approval 
officer for purposes of those provisions shall be the Secretary.
    (b) The bond approval process may entail investigation by the 
Secretary or the Commission's Office of Investigations to determine the 
veracity of all factual information set forth in the bond and the 
accompanying documentation (e.g., powers of attorney), as well as any 
additional verification required by 31 CFR Parts 223, 224, or 225. The 
Secretary may reject a bond on one or more of the following grounds:
    (1) Failure to comply with the instructions in the Commission 
determination, order, or notice directing the complainant to post a 
bond;
    (2) Failure of the surety or the bond to provide information or 
supporting documentation required by the Commission, the Secretary, 
Sec. 210.68 of this part, 31 CFR Parts 223 or 224, or other governing 
statutes, regulations, or Treasury circulars, or because of a limitation 
prescribed in a governing statute, regulation, or circular;
    (3) Failure of an individual surety to execute and file with the 
bond, an affidavit of the type shown in Appendix A to Sec. 210.68, which 
sets forth information about the surety's assets, liabilities, net 
worth, real estate and other property of which the initial surety is the 
sole owner, other bonds on which the individual surety is a surety (and 
which must be updated at 4-month intervals while the bond is in effect, 
measured from the date on which the bond is approved by the Secretary on 
behalf of the Commission or by the Commission);
    (4) Any question about the solvency or financial responsibility of 
the surety, or any question of fraud, misrepresentation, or perjury 
which comes to light as a result of the verification inquiry during the 
bond approval process; and
    (5) Any other reason deemed appropriate by the Secretary.
    (c) If the complainant believes that the Secretary's rejection of 
the bond was erroneous as a matter of law, the complainant may appeal 
the Secretary's rejection of the bond by filing a petition with the 
Commission in the form of a letter to the Chairman, within 10 days after 
service of the rejection letter.
    (d) After the bond is approved and temporary relief is issued, if 
any question concerning the continued solvency of the individual or the 
legality or enforceability of the bond or undertaking develops, the 
Commission may take the following action(s), sua sponte or on motion;
    (1) Revoke the Commission approval of the bond and require 
complainant to post a new bond; or
    (2) Revoke or vacate the temporary remedial order for public 
interest reasons or changed conditions of law or fact (criteria that are 
the basis for modification or rescission of final Commission action 
pursuant to Sec. 210.76(a)(1) and (b)); or
    (3) Notify the Treasury Department if the problem involves a 
corporate surety licensed to do business with the United States under 31 
U.S.C. Secs. 9303-9306 and 31 CFR Parts 223 and 224; or
    (4) Refer the matter to the U.S. Department of Justice if there is a 
suggestion of fraud, perjury, or related conduct.



Subpart I--Enforcement Procedures and Advisory Opinions

Sec. 210.70  Forfeiture or return of complainant's temporary relief 
          bond.

    (a)(1) If the Commission determines that one or more of the 
respondents whose merchandise was covered by the temporary relief order 
has not violated

[[Page 153]]

(153section 337 of the Tariff Act of 1930 to the extent alleged in the 
motion for temporary relief and provided for in the temporary relief 
order, proceedings to determine whether the complainant's bond should be 
forfeited to one or more respondents in whole or part may be initiated 
upon the filing of a motion by a respondent within 30 days after filing 
of the aforesaid Commission determination on violation.
    (2) A complainant may file a motion for the return of its bond.
    (b) Any nonmoving party may file a response to a motion filed under 
paragraph (a) of this section within 15 days after filing of the motion, 
unless otherwise ordered by the administrative law judge.
    (c) A motion for forfeiture or return of a complainant's temporary 
relief bond in whole or part will be adjudicated by the administrative 
law judge in an initial determination with a 45-day effective date, 
which shall be subject to review under the provisions of Secs. 210.42 
through 210.45. In determining whether to grant the motion, the 
administrative law judge and the Commission will be guided by practice 
under Rule 65 of the Federal Rules of Civil Procedure.

[59 FR 67629, Dec. 30, 1994]

Sec. 210.71  Information gathering.

    (a) Power to require information. (1) Whenever the Commission issues 
an exclusion order, the Commission may require any person to report 
facts available to that person that will help the Commission assist the 
U.S. Customs Service in determining whether and to what extent there is 
compliance with the order or whether and to what extent the conditions 
that led to the order are changed. Similarly, whenever the Commission 
issues a cease and desist order or a consent order, it may require any 
person to report facts available to that person that will aid the 
Commission in determining whether and to what extent there is compliance 
with the order or whether and to what extent the conditions that led to 
the order are changed.
    (2) The Commission may also include provisions that exercise any 
other information-gathering power available to the Commission by law, 
regardless of whether the order at issue is an exclusion order, a cease 
and desist order, or a consent order. The Commission may at any time 
request the cooperation of any person or agency in supplying it with 
information that will aid the Commission or the U.S. Customs Service in 
making the determinations described in paragraph (a)(1) of this section.
    (b) Form and detail of reports. Reports under paragraph (a) of this 
section are to be in writing, under oath, and in such detail and in such 
form as the Commission prescribes.
    (c) Power to enforce informational requirements. Terms and 
conditions of exclusion orders, cease and desist orders, and consent 
orders for reporting and information gathering shall be enforceable by 
the Commission by a civil action under 19 U.S.C. Sec. 1333, or, at the 
Commission's discretion, in the same manner as any other provision of 
the exclusion order, cease and desist order, or consent order is 
enforced.
    (d) Term of reporting requirement. An exclusion order, cease and 
desist order, or consent order may provide for the frequency of 
reporting or information gathering and the date on which these 
activities are to terminate. If no date for termination is provided, 
reporting and information gathering shall terminate when the exclusion 
order, cease and desist order, or consent order or any amendment to it 
expires by its own terms or is terminated.

Sec. 210.72  Confidentiality of information.

    Confidential information (as defined in Sec. 201.6(a) of this 
chapter) that is provided to the Commission pursuant to exclusion order, 
cease and desist order, or consent order will be received by the 
Commission in confidence. Requests for confidential treatment shall 
comply with Sec. 201.6 of this chapter. The restrictions on disclosure 
and the procedures for handling such information (which are set out in 
Secs. 210.5 and 210.39) shall apply and, in a proceeding under 
Secs. 210.75 or 210.76, the Commission or the presiding administrative 
law judge may, upon motion or sua sponte, issue or continue appropriate 
protective orders.

[[Page 154]]

(154

Sec. 210.73  Review of reports.

    (a) Review to insure compliance. The Commission, through the Office 
of Unfair Import Investigations, will review reports submitted pursuant 
to any exclusion order, cease and desist order, or consent order and 
conduct such further investigation as it deems necessary to insure 
compliance with its orders.
    (b) Extension of time. The Director of the Office of Unfair Import 
Investigations may, for good cause shown, extend the time in which 
reports required by exclusion orders, cease and desist orders, and 
consent orders may be filed. An extension of time within which a report 
may be filed, or the filing of a report that does not evidence full 
compliance with the order, does not in any circumstances suspend or 
relieve a respondent from its obligation under the law with respect to 
compliance with such order.

Sec. 210.74  Modification of reporting requirements.

    (a) Exclusion and cease and desist orders. The Commission may modify 
reporting requirements of exclusion and cease and desist orders as 
necessary:
    (1) To help the Commission assist the U.S. Customs Service in 
ascertaining that there has been compliance with an outstanding 
exclusion order;
    (2) To help the Commission ascertain that there has been compliance 
with a cease and desist order;
    (3) To take account of changed circumstances; or
    (4) To minimize the burden of reporting or informational access.

An order to modify reporting requirements shall identify the reports 
involved and state the reason or reasons for modification. No reporting 
requirement will be suspended during the pendency of such a modification 
unless the Commission so orders. The Commission may, if the public 
interest warrants, announce that a modification of reporting is under 
consideration and ask for comment, but it may also modify any reporting 
requirement at any time without notice, consistent with the standards of 
this section.
    (b) Consent orders. Consistent with the standards set forth in 
paragraph (a) of this section, the Commission may modify reporting 
requirements of consent orders. The Commission shall serve notice of any 
proposed change, together with the reporting requirements to be modified 
and the reasons therefor, on each party subject to the consent order. 
Such parties shall be given the opportunity to submit briefs to the 
Commission, and the Commission may hold a hearing on the matter. Notice 
of any proposed change in the reporting requirements will be published 
in the Federal Register if the Commission determines to solicit public 
comment on the proposed change.

[59 FR 39039, Aug. 1, 1994, as amended at 60 FR 53121, Oct. 12, 1995]

Sec. 210.75  Proceedings to enforce exclusion orders, cease and desist 
          orders, consent orders, and other Commission orders.

    (a) Informal enforcement proceedings. Informal enforcement 
proceedings may be conducted by the Commission, through the Office of 
Unfair Import Investigations, with respect to any act or omission by any 
person in possible violation of any provision of an exclusion order, 
cease and desist order, or consent order. Such matters may be handled by 
the Commission through correspondence or conference or in any other way 
that the Commission deems appropriate. The Commission may issue such 
orders as it deems appropriate to implement and insure compliance with 
the terms of an exclusion order, cease and desist order, or consent 
order, or any part thereof. Any matter not disposed of informally may be 
made the subject of a formal proceeding pursuant to this subpart.
    (b) Formal enforcement proceedings. (1) The Commission may institute 
an enforcement proceeding at the Commission level upon the filing by the 
complainant in the original investigation or his successor in interest, 
by the Office of Unfair Import Investigations, or by the Commission of a 
complaint setting forth alleged violations of any exclusion order, cease 
and desist order, or consent order. If a proceeding is instituted, the 
complaint shall be served upon the alleged violator and a notice of 
institution published in the Federal Register. Within 15 days after the 
date of service of such a complaint, the named respondent shall file a 
response

[[Page 155]]

(155to it. Responses shall fully advise the Commission as to the nature 
of any defense and shall admit or deny each allegation of the complaint 
specifically and in detail unless the respondent is without knowledge, 
in which case its answer shall so state and the statement shall operate 
as a denial. Allegations of fact not denied or controverted may be 
deemed admitted. Matters alleged as affirmative defenses shall be 
separately stated and numbered.
    (2) Upon the failure of a respondent to file and serve a response 
within the time and in the manner prescribed herein the Commission, in 
its discretion, may find the facts alleged in the complaint to be true 
and take such action as may be appropriate without notice or hearing, 
or, in its discretion, proceed without notice to take evidence on the 
allegations set forth in the complaint, provided that the Commission (or 
administrative law judge, if one is appointed) may permit late filings 
of an answer for good cause shown.
    (3) The Commission, in the course of a formal enforcement proceeding 
under this section may hold a public hearing and afford the parties to 
the enforcement proceeding the opportunity to appear and be heard. The 
hearing will not be subject to sections 554, 555, 556, 557, and 702 of 
title 5 of the United States Code. The Commission may delegate the 
hearing to the chief administrative law judge for designation of a 
presiding administrative law judge, who shall certify an initial 
determination to the Commission. That initial determination shall become 
the determination of the Commission 90 days after the date of service of 
the initial determination, unless the Commission, within 90 days after 
the date of such service shall have ordered review of the initial 
determination on certain issues therein, or by order shall have changed 
the effective date of the initial determination.
    (4) Upon conclusion of a formal enforcement proceeding under this 
section, the Commission may:
    (i) Modify a cease and desist order, consent order, and/or exclusion 
order in any manner necessary to prevent the unfair practices that were 
originally the basis for issuing such order;
    (ii) Bring civil actions in a United States district court pursuant 
to paragraph (c) of this section (and section 337(f)(2) of the Tariff 
Act of 1930) requesting the imposition of a civil penalty or the 
issuance of injunctions incorporating the relief sought by the 
Commission; or
    (iii) Revoke the cease and desist order or consent order and direct 
that the articles concerned be excluded from entry into the United 
States.
    (5) Prior to effecting any modification, revocation, or exclusion 
under this section, the Commission shall consider the effect of such 
action upon the public health and welfare, competitive conditions in the 
U.S. economy, the production of like or directly competitive articles in 
the United States, and U.S. consumers.
    (6) In lieu of or in addition to taking the action provided for in 
paragraph (b)(1) of this section, the Commission may issue, pursuant to 
section 337(i) of the Tariff Act of 1930, an order providing that any 
article imported in violation of the provisions of section 337 of the 
Tariff Act of 1930 and an outstanding final exclusion order issued 
pursuant to section 337(d) of the Tariff Act of 1930 be seized and 
forfeited to the United States, if the following conditions are 
satisfied:
    (i) The owner, importer, or consignee of the article (or the agent 
of such person) previously attempted to import the article into the 
United States;
    (ii) The article previously was denied entry into the United States 
by reason of a final exclusion order; and
    (iii) Upon such previous denial of entry, the Secretary of the 
Treasury provided the owner, importer, or consignee of the article (or 
the agent of such person) with written notice of the aforesaid exclusion 
order and the fact that seizure and forfeiture would result from any 
further attempt to import the article into the United States.
    (c) Court enforcement. To enforce an exclusion order, a cease and 
desist order, a consent order, or a sanctions order, the Commission may 
initiate a civil action in the U.S. district court

[[Page 156]]

(156pursuant to section 337(f)(2) of the Tariff Act of 1930, requesting 
the imposition of such civil penalty or the issuance of such injunctions 
as the Commission deems necessary to enforce its orders and protect the 
public interest. The Commission may initiate a proceeding to obtain 
judicial enforcement without any other type of proceeding otherwise 
available under section 337 or this subpart or without prior notice to 
any person, except as required by the court in which the civil action is 
initiated.

Sec. 210.76  Modification or rescission of exclusion orders, cease and 
          desist orders, and consent orders.

    (a) Petitions for modification or rescission of exclusion orders, 
cease and desist orders, and consent orders. (1) Whenever any person 
believes that changed conditions of fact or law, or the public interest, 
require that an exclusion order, cease and desist order, or consent 
order be modified or set aside, in whole or in part, such person may 
file with the Commission a petition requesting such relief. The 
Commission may also on its own initiative consider such action. The 
petition shall state the changes desired and the changed circumstances 
warranting such action, shall include materials and argument in support 
thereof, and shall be served on all parties to the investigation in 
which the exclusion order, cease and desist order, or consent order was 
issued. Any person may file an opposition to the petition within 10 days 
of service of the petition.
    (2) If the petitioner previously has been found by the Commission to 
be in violation of section 337 of the Tariff Act of 1930 and if its 
petition requests a Commission determination that the petitioner is no 
longer in violation of that section or requests modification or 
rescission of an order issued pursuant to section 337 (d), (e), (f), 
(g), or (i) of the Tariff Act of 1930, the burden of proof in any 
proceeding initiated in response to the petition pursuant to paragraph 
(b) of this section shall be on the petitioner. In accordance with 
section 337(k)(2) of the Tariff Act, relief may be granted by the 
Commission with respect to such petition on the basis of new evidence or 
evidence that could not have been presented at the prior proceeding or 
on grounds that would permit relief from a judgment or order under the 
Federal Rules of Civil Procedure.
    (b) Commission action upon receipt of petition. The Commission may 
thereafter institute a proceeding to modify or rescind the exclusion 
order, cease and desist order, or consent order by issuing a notice. The 
Commission may hold a public hearing and afford interested persons the 
opportunity to appear and be heard. After consideration of the petition, 
any responses thereto, and any information placed on the record at a 
public hearing or otherwise, the Commission shall take such action as it 
deems appropriate. The Commission may delegate any hearing under this 
section to the chief administrative law judge for designation of a 
presiding administrative law judge, who shall certify a recommended 
determination to the Commission.

[59 FR 39039, Aug. 1, 1994, as amended at 61 FR 43433, Aug. 23, 1996]

Sec. 210.77  Temporary emergency action.

    (a) Whenever the Commission determines, pending a formal enforcement 
proceeding under Sec. 210.75(b), that without immediate action a 
violation of an exclusion order, cease and desist order, or consent 
order will occur and that subsequent action by the Commission would not 
adequately repair substantial harm caused by such violation, the 
Commission may immediately and without hearing or notice modify or 
revoke such order and, if it is revoked, replace the order with an 
appropriate exclusion order.
    (b) Prior to taking any action under this section, the Commission 
shall consider the effect of such action upon the public health and 
welfare, competitive conditions in the U.S. economy, the production of 
like or directly competitive articles in the United States, and U.S. 
consumers. The Commission shall, if it has not already done so, 
institute a formal enforcement proceeding under Sec. 210.75(b) at the 
time of taking action

[[Page 157]]

(157under this section or as soon as possible thereafter, in order to 
give the alleged violator and other interested parties a full 
opportunity to present information and views regarding the continuation, 
modification, or revocation of Commission action taken under this 
section.

Sec. 210.78  Notice of enforcement action to Government agencies.

    (a) Consultation. The Commission may consult with or seek 
information from any Government agency when taking any action under this 
subpart.
    (b) Notification of Treasury. The Commission shall notify the 
Secretary of the Treasury of any action under this subpart that results 
in a permanent or temporary exclusion of articles from entry, or the 
revocation of an order to such effect, or the issuance of an order 
compelling seizure and forfeiture of imported articles.

Sec. 210.79  Advisory opinions.

    (a) Advisory opinions. Upon request of any person, the Commission 
may, upon such investigation as it deems necessary, issue an advisory 
opinion as to whether the person's proposed course of action or conduct 
would violate a Commission exclusion order, cease and desist order, or 
consent order. The Commission will consider whether the issuance of such 
an advisory opinion would facilitate the enforcement of section 337 of 
the Tariff Act of 1930, would be in the public interest, and would 
benefit consumers and competitive conditions in the United States, and 
whether the person has a compelling business need for the advice and has 
framed his request as fully and accurately as possible. Advisory opinion 
proceedings are not subject to sections 554, 555, 556, 557, and 702 of 
title 5 of the United States Code.
    (b) Revocation. The Commission may at any time reconsider any advice 
given under this section and, where the public interest requires, revoke 
its prior advice. In such event the person will be given notice of the 
Commission's intent to revoke as well as an opportunity to submit its 
views to the Commission. The Commission will not proceed against a 
person for violation of an exclusion order, cease and desist order, or 
consent order with respect to any action that was taken in good faith 
reliance upon the Commission's advice under this section, if all 
relevant facts were accurately presented to the Commission and such 
action was promptly discontinued upon notification of revocation of the 
Commission's advice.



PART 212--IMPLEMENTATION OF THE EQUAL ACCESS TO JUSTICE ACT--Table of Contents




                      Subpart A--General Provisions

Sec.
212.01  Purpose.
212.02  When the Act applies.
212.03  Proceedings covered.
212.04  Eligibility of applicants.
212.05  Standards for awards.
212.06  Allowable fees and expenses.
212.07  Rulemaking on maximum rates for attorney fees.

             Subpart B--Information Required From Applicants

212.10  Contents of application.
212.11  Net worth exhibit.
212.12  Documentation of fees and expenses.
212.13  When an application may be filed.

           Subpart C--Procedures for Considering Applications

212.20  Filing and service of documents.
212.21  Answer to application.
212.22  Reply.
212.23  Comments by other parties.
212.24  Settlement.
212.25  Further proceedings.
212.26  Determination.
212.27  Agency review.
212.28  Judicial review.
212.29  Payment of award.

    Authority: Sec. 203(a)(1), Pub. L. 96-481, 94 Stat. 2325 (5 U.S.C. 
504(c)(1)).

    Source: 47 FR 9391, Mar. 5, 1982, unless otherwise noted.

    Editorial Note: A nomenclature change to Sec. 212.29 appears at 52 
FR 48994, Dec. 29, 1987.



Subpart A--General Provisions

Sec. 212.01  Purpose.

    (a) The Equal Access to Justice Act, 5 U.S.C. 504 (called ``the 
Act'' in this part), provides for the award of attorney fees and other 
expenses to eligible individuals and entities who are parties

[[Page 158]]

(158to certain administrative proceedings (called ``adversary 
adjudications'') before an agency. Under the Act an eligible party may 
receive an award when it prevails over an agency, unless the agency's 
position in the proceeding was substantially justified or special 
circumstances make an award unjust. The rules in this part describe the 
parties eligible for awards and the Commission proceedings that are 
covered. They also explain how to apply for awards, and the procedures 
and standards that the Commission will use to make them.

Sec. 212.02  When the Act applies.

    The Act applies to any adversary adjudication pending before the 
Commission at any time between October 1, 1981 and September 30, 1984. 
This includes proceedings begun before October 1, 1981 if final 
Commission action has not been taken before that date, and proceedings 
pending on September 30, 1984, regardless of when they were initiated or 
when final Commission action occurs.

Sec. 212.03  Proceedings covered.

    (a) The Act applies to adversary adjudications conducted by the 
Commission. These are adjudications under 5 U.S.C. 554 in which the 
position of the Commission is presented by an attorney or other 
representative who enters an appearance and participates in the 
proceeding. The Commission proceedings covered are those conducted under 
section 337 of the Tariff Act of 1930, 19 U.S.C. 1337. No award shall be 
made, however, for fees and expenses related to those portions of the 
proceedings conducted for the consideration of relief, the public 
interest, and bonding pursuant to subsections 337 (d), (e), and (f) of 
the Tariff Act of 1930 and 19 CFR 210.14.
    (b) An award may be made against the Commission only in connection 
with a proceeding brought by the Commission upon its own complaint.
    (c) If a proceeding includes both matters covered by the Act and 
matters specifically excluded from coverage, any award made will include 
only fees and expenses related to covered issues.

Sec. 212.04  Eligibility of applicants.

    (a) To be eligible for an award of attorney fees and other expenses 
under the Act, the applicant must be a party to the adversary 
adjudication for which it seeks an award. The term party is defined in 5 
U.S.C. 551(3) and 19 CFR 210.04. The applicant must show that it meets 
all conditions of eligibility set out in this subpart and in subpart B.
    (b) The types of eligible applicants are as follows:
    (1) An individual with a net worth of not more than $1 million;
    (2) The sole owner of an unincorporated business who has a net worth 
of not more than $5 million, including both personal and business 
interests, and not more than 500 employees;
    (3) A charitable or other tax-exempt organization described in 
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) 
with not more than 500 employees;
    (4) A cooperative association as defined in section 15(a) of the 
Agricultural Marketing Act (12 U.S.C. 1144j(a)) with not more than 500 
employees; and
    (5) Any other partnership, corporation, association, or public or 
private organization with a net worth of not more than $5 million and 
not more than 500 employees.
    (c) For the purpose of eligibility, the net worth and number of 
employees of an applicant shall be determined as of the date the 
adversary adjudication was initiated.
    (d) An applicant who owns an unincorporated business will be 
considered to be an ``individual'' rather than a ``sole owner of an 
unincorporated business'' if the issues on which the applicant prevails 
are related primarily to personal interests rather than to business 
interests.
    (e) The employees of an applicant include all persons who regularly 
perform services for remuneration for the applicant under the 
applicant's direction and control. Part-time employees shall be included 
on a proportional basis.
    (f) The net worth and number of employees of the applicant and all 
of its affiliates shall be aggregated to determine eligibility. Any 
individual, corporation or other entity that directly

[[Page 159]]

(159or indirectly controls or owns a majority of the voting shares or 
other interest of the applicant, or any corporation or other entity of 
which the applicant directly or indirectly owns or controls a majority 
of the voting shares or other interest, will be considered an affiliate 
for purposes of this part, unless the presiding officer determines that 
such treatment would be unjust and contrary to the purposes of the Act 
in light of the actual relationship between the affiliated entities. In 
addition, the presiding officer may determine that financial 
relationships of the applicant other than those described in this 
paragraph constitute special circumstances that would make an award 
unjust.
    (g) An applicant that participates in a proceeding primarily on 
behalf of one or more other persons or entities that would be ineligible 
is not itself eligible for an award.

Sec. 212.05  Standards for awards.

    (a) The determination whether an applicant is a prevailing party 
shall be made on a case-by-case basis.
    (b) A prevailing applicant may receive an award for fees and 
expenses incurred in connection with an adversary adjudication, or in a 
significant and discrete substantive portion of the adversary 
adjudication, unless the position of the Commission investigative 
attorney was substantially justified. The burden of proof that an award 
should not be made to an eligible prevailing applicant is on the 
Commission investigative attorney. An award may be avoided by showing 
that the position of the Commission was reasonable in law and fact.
    (c) An award will be reduced or denied if the applicant has unduly 
or unreasonably protracted the adversary adjudication or if special 
circumstances make the award sought unjust. The burden of proof that an 
award should be reduced or denied for either of these reasons is on the 
Commission investigative attorney.

Sec. 212.06  Allowable fees and expenses.

    (a) Awards will be based on rates customarily charged by persons 
engaged in the business of acting as attorneys, agents and expert 
witnesses, even if the services were made available without charge or at 
a reduced rate to the applicant.
    (b) No award for the fee of an attorney or agent under these rules 
may exceed $75.00 per hour. No award to compensate an expert witness may 
exceed the highest rate at which the Commission pays expert witnesses. 
However, an award may include the reasonable expenses of the attorney, 
agent, or expert witness as a separate item if the attorney, agent or 
expert witness ordinarily charges clients separately for such expenses.
    (c) In determining the reasonableness of the fee sought for an 
attorney, agent or expert witness, the presiding officer shall consider 
the following:
    (1) If the attorney, agent or expert witness is in private practice, 
his or her customary fee for similar services, or, if an employee of the 
applicant, the fully allocated cost of the service;
    (2) The prevailing rate for similar services in the community in 
which the attorney, agent or expert witness ordinarily performs 
services;
    (3) The time actually spent in the representation of the applicant;
    (4) The time reasonably spent in light of the difficulty or 
complexity of the issues in the adversary adjudication; and
    (5) Such other factors as may bear on the value of the services 
provided.
    (d) The reasonable cost of any study, analysis, engineering report, 
test, project or similar matter prepared on behalf of a party may be 
awarded to the extent that the charge for the service does not exceed 
the prevailing rate for similar services and the study or other matter 
was necessary for preparation of the applicant's case.

Sec. 212.07  Rulemaking on maximum rates for attorney fees.

    (a) If warranted by an increase in the cost of living or by special 
circumstances (such as limited availability of attorneys qualified to 
handle certain types of proceedings), the Commission may adopt 
regulations providing that attorney fees may be awarded at a rate higher 
than $75 per hour in the proceedings covered by this part. The 
Commission will conduct any rulemaking proceedings for this purpose

[[Page 160]]

(160under the informal rulemaking procedures of the Administrative 
Procedure Act.
    (b) Any person may file with the Commission a petition for 
rulemaking to increase the maximum rate for attorney fees. The petition 
should identify the rate the petitioner believes the Commission should 
establish. It should also explain fully the reasons why the higher rate 
is warranted. The Commission will respond to the petition within 60 days 
after it is filed by initiating a rulemaking proceeding, denying the 
petition, or taking other appropriate action.



Subpart B--Information Required From Applicants

Sec. 212.10  Contents of application.

    (a) An application for an award of fees and expenses under the Act 
shall identify the applicant and the adversary adjudication for which an 
award is sought. The application shall show that the applicant has 
prevailed and identify the position of the Commission investigative 
attorney that the applicant alleges was not substantially justified. 
Unless the applicant is an individual, the application shall also state 
the number of employees of the applicant and describe briefly the type 
and purpose of its organization or business.
    (b) The application shall also include a statement that the 
applicant's net worth does not exceed $1 million (if an individual) or 
$5 million (for all other applicants, including their affiliates). 
However, an applicant may omit this statement if:
    (1) It attaches a copy of a ruling by the Internal Revenue Service 
that it qualifies as an organization described in section 501(c)(3) of 
the Internal Revenue Code (26 U.S.C. 501(c)(3)) or, in the case of a 
tax-exempt organization not required to obtain a ruling from the 
Internal Revenue Service on its exempt status, a statement that 
describes the basis for the applicant's belief that it qualifies under 
such section; or
    (2) It states that it is a cooperative association as defined in 
section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)).
    (c) The application shall state the amount of fees and expenses for 
which an award is sought.
    (d) The application may also include any other matters that the 
applicant wishes the Commission to consider in determining whether and 
in what amount an award should be made.
    (e) The application shall be signed by the applicant or an 
authorized officer or attorney of the applicant. It shall also contain 
or be accompanied by a written verification under oath or under penalty 
of perjury that the information provided in the application is true and 
correct.

Sec. 212.11  Net worth exhibit.

    (a) Each applicant except a qualified tax-exempt organization or 
cooperative association must provide with its application a detailed 
exhibit showing the net worth of the applicant and any affiliates (as 
defined in Sec. 212.04(f) of this part) when the proceeding was 
initiated. The exhibit may be in any form convenient to the applicant 
that provides full disclosure of the applicant's and its affiliates' 
assets and liabilities and is sufficient to determine whether the 
applicant qualifies under the standards in this part. The presiding 
officer may require an applicant to file additional information to 
determine its eligibility for an award.
    (b) Ordinarily, the net worth exhibit will be included in the public 
record of the proceeding. However, an applicant that objects to public 
disclosure of information in any portion of the exhibit and believes 
there are legal grounds for withholding it from disclosure may submit 
that portion of the exhibit directly to the presiding officer in a 
sealed envelope labeled ``Confidential Financial Information,'' 
accompanied by a motion to withhold the information from public 
disclosure. The motion shall describe the information sought to be 
withheld and explain in detail why it falls within one or more of the 
specific exemptions from mandatory disclosure under the Freedom of 
Information Act, 5 U.S.C. 552(b)(1)-(9), why public disclosure of the 
information would adversely affect the applicant, and why disclosure is 
not required in the public interest. The material in question shall be 
served on the

[[Page 161]]

(161Commission investigative attorney or counsel representing another 
agency against which the applicant seeks an award, but need not be 
served on any other party to the proceeding. If the presiding officer 
finds that the information should not be withheld from disclosure, it 
shall be placed in the public record of the proceeding. Otherwise, any 
request to inspect or copy the exhibit shall be disposed of in 
accordance with the Commission's established procedures under the 
Freedom of Information Act, 19 CFR 201.17--201.21.

Sec. 212.12  Documentation of fees and expenses.

    The application shall be accompanied by full documentation of the 
fees and expenses, including the cost of any study, analysis, 
engineering report, test, project or similar matter, for which an award 
is sought. A separate itemized statement shall be submitted for each 
professional firm or individual whose services are covered by the 
application, showing the hours spent in connection with the proceeding 
by each individual, a description of the specific services performed, 
the rate at which each fee has been computed, any expenses for which 
reimbursement is sought, the total amount claimed, and the total amount 
paid or payable by the applicant or by any other person or entity for 
the services provided. The presiding officer may require the applicant 
to provide vouchers, receipts, or other substantiation for any expenses 
claimed.

Sec. 212.13  When an application may be filed.

    (a) An application may be filed whenever the applicant has prevailed 
in the adversary adjudication or in a significant and discrete 
substantive portion of the adversary adjudication, but in no case later 
than 30 days after the Commission's final disposition of the adversary 
adjudication.
    (b) If review or reconsideration is sought or taken of a 
determination as to which an applicant believes it has prevailed, 
proceedings for the award of fees shall be stayed pending final 
disposition of the underlying controversy.



Subpart C--Procedures for Considering Applications

Sec. 212.20  Filing and service of documents.

    Any application for an award or other pleading or document related 
to an application shall be filed and served on all parties to the 
adversary adjudication in the same manner as other pleadings in the 
adversary adjudication, except as provided in Sec. 212.11(b) for 
confidential financial information.

Sec. 212.21  Answer to application.

    (a) Within 30 days after service of an application, the Commission 
investigative attorney shall file an answer to the application.
    (b) If the applicant and the Commission investigative attorney 
believe that the issues in the fee application can be settled, they may 
jointly file a statement of their intent to negotiate a settlement. The 
filing of this statement shall extend the time for filing an answer for 
an additional 30 days, and further extensions may be granted by the 
presiding officer upon request by the applicant and the Commission 
investigative attorney.
    (c) The answer shall explain in detail any objections to the award 
requested and identify the facts relied on in support of the position of 
the Commission. If the answer is based on any alleged facts not already 
in the record of the adversary adjudication, the Commission 
investigative attorney shall include with the answer supporting 
affidavits or a request for further proceedings under Sec. 212.25.

Sec. 212.22  Reply.

    Within 15 days after service of an answer, the applicant may file a 
reply. If the reply is based on any alleged facts not already in the 
record of the adversary adjudication, the applicant shall include with 
the reply either supporting affidavits or a request for further 
proceedings under Sec. 212.25.

Sec. 212.23  Comments by other parties.

    Any party to the adversary adjudication other than the applicant and 
the Commission investigative attorney may file comments on an 
application within 30 days after it is served or on

[[Page 162]]

(162an answer within 15 days after it is served. A commenting party may 
not participate further in proceedings on the application unless the 
presiding officer determines that the public interest requires such 
participation in order to permit full exploration of matters raised in 
the comments.

Sec. 212.24  Settlement.

    The applicant and the Commission may agree on a proposed settlement 
of the award before final action on the application, either in 
connection with a settlement of the underlying adversary adjudication, 
or after the underlying adversary adjudication has been concluded. If a 
prevailing party and the Commission investigative attorney agree on a 
proposed settlement of an award before an application has been filed, 
the application shall be filed with the proposed settlement.

Sec. 212.25  Further proceedings.

    (a) Ordinarily, the determination of an award will be made on the 
basis of the written record. However, on request of either the applicant 
or the Commission investigative attorney, or on his or her own 
initiative, the presiding officer may in his or her discretion order 
further proceedings, such as an informal conference, oral argument, 
additional written submissions or an evidentiary hearing. Such further 
proceedings shall be held only when necessary for full and fair 
resolution of the issues arising from the application, and shall be 
conducted as promptly as possible.
    (b) A request that the presiding officer order further proceedings 
under this section shall specifically identify the information sought or 
the disputed issues and shall explain why the additional proceedings are 
necessary to resolve the issues.

Sec. 212.26  Determination.

    The presiding officer shall issue a recommended determination on the 
application within 90 days after completion of proceedings on the 
application. The determination shall include written findings and 
conclusions on the applicant's eligibility and status as prevailing 
party, and an explanation of the reasons for any difference between the 
amount requested and the amount awarded. The determination shall also 
include, if at issue, findings on whether the position of the Commission 
investigative attorney was substantially justified, whether the 
applicant unduly protracted the proceedings, or whether special 
circumstances make an award unjust.

Sec. 212.27  Agency review.

    Except as otherwise authorized by the presiding officer, the parties 
shall be allowed ten (10) days from the date of service of the 
recommended determination to file exceptions to the recommended 
determination and alternative findings of fact and conclusions of law 
with the Commission. Upon receipt of the recommended determination, the 
Commission shall review the same and issue a final determination on the 
application or remand the application to the presiding officer for 
further proceedings.

Sec. 212.28  Judicial review.

    Judicial review of final Commission determinations on awards may be 
sought as provided in 5 U.S.C. 504(c)(2).

Sec. 212.29  Payment of award.

    An applicant seeking payment of an award shall submit to the Finance 
and Budget Division of the Commission a copy of the Commission's final 
determination granting the award, accompanied by a statement that the 
applicant will not seek review of the decision in the United States 
courts. The address for submission to the Commission is: United States 
International Trade Commission, Finance and Budget Division, 500 E 
Street SW., Washington, DC 20436. The Commission will pay the amount to 
the applicant within 60 days, unless judicial review of the award or of 
the underlying determination of the adversary adjudication has been 
sought by the applicant or any other party to the proceeding.



PART 213--TRADE REMEDY ASSISTANCE--Table of Contents




Sec.
213.1  Purpose and applicability of part.
213.2  Definitions.

[[Page 163]]

          (163
213.3  Determination of small business eligibility.
213.4  Disclosure of receipt of technical assistance.
213.5  Access to Commission resources.
213.6  Information concerning assistance.

    Authority: Sec. 339 of the Tariff Act of 1930 (19 U.S.C. 1339), as 
added by sec. 221, Trade and Tariff Act of 1984 (Pub. L. 98-573, 
approved Oct. 30, 1984; 90 Stat. 2989), and as amended by sec. 1614, 
Omnibus Trade and Competitiveness Act of 1988 (Pub. L. 100-418, approved 
Aug. 23, 1988; 102 Stat. 110); sec. 335, Tariff Act of 1930 (72 Stat 
680; 19 U.S.C. 1335).

    Source: 54 FR 33883, Aug. 17, 1989, unless otherwise noted.

Sec. 213.1  Purpose and applicability of part.

    (a) Section 339 of the Tariff Act of 1930, as amended, establishes 
in the Commission an office known as the Trade Remedy Assistance Office 
and directs the Commission to provide general information to the public, 
upon request, and, to the extent feasible, assistance and advice to 
interested parties concerning the remedies and benefits available under 
the trade laws identified in Sec. 213.2(b) and the procedures to be 
followed and appropriate filing dates in investigations under the trade 
laws. In coordination with other agencies administering the trade laws, 
the Trade Remedy Assistance Office also shall provide technical 
assistance, as defined in Sec. 213.2(d), to eligible small businesses 
seeking to obtain the remedies and benefits available under the trade 
laws.
    (b) The rules in this part govern the establishment of the Trade 
Remedy Assistance Office, its function, small business eligibility for 
technical assistance and procedures for obtaining such assistance. 
Members of the public seeking general information from the Trade Remedy 
Assistance Office are not subject to the application procedures set 
forth in this part.

Sec. 213.2  Definitions.

    (a) Office. The Trade Remedy Assistance Office (hereinafter Office) 
provides general information to the public, upon request, and, to the 
extent feasible, assistance and advice to interested parties concerning 
the remedies and benefits available under the trade laws identified in 
Sec. 213.2(b) and the procedures to be followed and appropriate filing 
dates in investigations under those trade laws. In coordination with 
other agencies responsible for administering the trade laws listed in 
Sec. 213.2(b), the Office also provides technical assistance, as defined 
in Sec. 213.2(d) to eligible small businesses that seek to obtain 
remedies and benefits under the trade laws. The Office's address is 
Trade Remedy Assistance Office, U.S. International Trade Commission, 500 
E Street SW., Washington, DC 20436.
    (b) Trade laws. The trade laws (with respect to which general 
information and technical assistance are available) are defined as:
    (1) Chapter 1 of title II of the Trade Act of 1974 (19 U.S.C. 2251 
et seq., relating to injury caused by import competition);
    (2) Chapters 2 and 3 of such title II (relating to adjustment 
assistance for workers and firms);
    (3) Chapter 1 of title III of the Trade Act of 1974 (19 U.S.C. 2411 
et seq., relating to relief from foreign import restrictions and export 
subsidies);
    (4) Title VII of the Tariff Act of 1930 (19 U.S.C. 1671 et seq., 
relating to the imposition of countervailing duties and antidumping 
duties);
    (5) Section 232 of the Trade Expansion Act of 1962 (19 U.S.C. 1862, 
relating to the safeguarding of national security);
    (6) Section 337 of the Tariff Act of 1930 (19 U.S.C. 1337, relating 
to unfair practices in import trade); and
    (7) Section 406 of the Trade Act of 1974 (19 U.S.C. 2436, relating 
to market disruption).
    (c) Administering agencies. Administering agency refers to the 
agency or agencies responsible for administering a particular trade law. 
The trade laws relating to injury caused by import competition, unfair 
practices in import trade and market disruption are administered by the 
Commission. The trade laws relating to countervailing and antidumping 
duties are jointly administered by the Commission and the Department of 
Commerce. The trade laws relating to adjustment assistance for firms and 
safeguarding national security are administered by the Department of 
Commerce. The trade law relating to adjustment assistance for

[[Page 164]]

(164workers is administered by the Department of Labor. The trade law 
relating to relief from foreign import restrictions and export subsidies 
is administered by the United States Trade Representative.
    (d) Technical Assistance. Technical assistance is informal advice 
and assistance, including informal legal advice, intended to enable 
eligible small businesses to determine the appropriateness of pursuing 
particular trade remedies, to prepare petitions and complaints (other 
than those which are frivolous in the opinion of the agency) and to seek 
to obtain the remedies and benefits available under the trade laws 
identified in Sec. 213.2(b). Technical assistance is available to 
eligible small businesses at any time until the completion of 
administrative review or of an appeal to the administering agency 
regarding proceedings under the trade laws listed in Sec. 213.2(b). 
Technical assistance does not include legal representation of an 
eligible small business or advocacy on its behalf and receipt of 
technical assistance does not ensure that the recipient will prevail in 
any trade remedy proceeding. The Office provides such technical 
assistance independently of other Commission staff but may consult with 
other staff as appropriate.
    (e) Applicant. An applicant is an individual, partnership, 
corporation, joint venture, trade or other association, cooperative, 
group of workers, or certified or recognized union, or other entity that 
applies for techincal assistance under this part.
    (f) Eligible small business. An eligible small business is an 
applicant that the Office has determined to be entitled to technical 
assistance in accordance with the SBA size standards and the procedures 
set forth in this part.
    (g) SBA size standards. SBA size standards are the small business 
size standards of the Small Business Administration set forth in 13 CFR 
121.2. The SBA size standards categorize business concerns according to 
the Standard Industrial Classification (``SIC'') code of the Bureau of 
the Census and base the size determination upon the number of employees 
or annual receipts of the business concern in the appropriate SIC 
category.

Sec. 213.3  Determination of small business eligibility.

    (a) Application for technical assistance from small businesses. An 
applicant for technical assistance must certify that it qualifies as a 
small business under the appropriate size standard(s) and that it is an 
independently owned and operated company. An application for technical 
assistance is available from the Office. The application must be signed 
under oath by an officer or principal of the applicant. The completed 
application should be submitted to the Office at the address set forth 
in Sec. 213.2(a).
    (b) Application for technical assistance from joint applicants, 
trade associations and unions. If several businesses jointly or 
simultaneously from the same industry apply for technical assistance, 
each business must meet the appropriate SBA size standard(s) and so 
certify. If a trade association applies for technical assistance, an 
officer of the trade association must certify that eighty (80) percent 
of the trade association's members are companies that meet the 
appropriate size standard(s) and provide a listing of members of the 
association. If a union applies for technical assistance, an officer of 
the union must certify that the union has less than ten thousand 
(10,000) members within the industry for which trade relief is being 
sought. Applications for trade associations or for unions to request 
technical assistance are available from the Office. Applications must be 
signed under oath by an officer of the association or union and 
completed applications should be submitted to the Office as set forth in 
Sec. 213.2(a).
    (c) Determination of eligibility and notification of determination. 
The Office shall determine whether the applicant is eligible for 
technical assistance and notify the applicant of the determination 
within ten (10) days of receipt of a properly completed application. 
Pursuant to 19 U.S.C. 1339(c)(1), the Office's determination of 
eligibility is not reviewable by any other agency or by any court.
    (d) Notification to administering agencies. When an applicant seeks 
technical assistance on matters involving the trade laws, and the Office 
determines

[[Page 165]]

(165that the applicant is eligible for technical assistance, the Office 
shall:
    (1) Promptly notify the appropriate administering agency or agencies 
of the Office's determination that the applicant is eligible to receive 
technical assistance; and
    (2) Consult with the administering agency or agencies as to the 
provision of technical assistance to that applicant.

Sec. 213.4  Disclosure of receipt of technical assistance.

    An eligible small business that has received technical assistance 
from the Office must state that it has received technical assistance 
from the Trade Remedy Assistance Office in any resulting petition, 
complaint or application which is filed with the Commission or any other 
agency which administers the trade law under which remedies or benefits 
are sought.

Sec. 213.5  Access to Commission resources.

    Commission resources, in addition to the Office's resources, are 
available to an eligible small business to the same extent as those 
resources are available to members of the general public. No special 
rights of access to Commission resources shall be accorded to an 
eligible small business.

Sec. 213.6  Information concerning assistance.

    Any person may contact the Office with questions regarding 
eligibility for technical assistance. Summaries of the trade laws and 
the SBA size standards can be obtained by writing to the Trade Remedy 
Assistance Office, U.S. International Trade Commission, 500 E Street 
SW., Washington, DC 20436.


[[Page 167]]



CHAPTER III--INTERNATIONAL TRADE ADMINISTRATION, DEPARTMENT OF COMMERCE




  --------------------------------------------------------------------
Part                                                                Page
353             Antidumping duties..........................         168
354             Procedures for imposing sanctions for 
                    violation of an antidumping or 
                    countervailing duty protective order....         212
355             Countervailing duties.......................         221
356             Procedures and rules for implementing 
                    Article 1904 of the North American Free 
                    Trade Agreement.........................         264
357             Short supply procedures.....................         284

[[Page 168]]

(168



PART 353--ANTIDUMPING DUTIES--Table of Contents




                    Subpart A--Scope and Definitions

Sec.
353.1  Scope.
353.2  Definitions.
353.3  Record of proceedings.
353.4  Public, proprietary, privileged, and classified information.
353.5  Trade and Tariff Act of 1984--effective date.
353.6  De minimis weighted-average dumping margins.

                 Subpart B--Antidumping Duty Procedures

353.11  Self-initiation.
353.12  Petition requirements.
353.13  Determination of sufficiency of petition.
353.14  Request for exclusion from antidumping duty order.
353.15  Preliminary determination.
353.16  Critical circumstances findings.
353.17  Termination of investigation.
353.18  Suspension of investigation.
353.19  Violation of agreement.
353.20  Final determination.
353.21  Antidumping duty order.
353.22  Administrative review of orders and suspension agreements.
353.23  Provisional measures deposit cap.
353.24  Interest on certain overpayments and underpayments.
353.25  Revocation of orders; termination of suspended investigation.
353.26  Reimbursement of antidumping duties.
353.27  Procedures for initiation of downstream product monitoring.
353.28  Procedures for the correction of ministerial errors.
353.29  Scope determination.

                   Subpart C--Information and Argument

353.31  Submission of factual information.
353.32  Request for proprietary treatment of information.
353.33  Information exempt from disclosure.
353.34  Disclosure of proprietary information under administrative 
          protective order.
353.35  Ex parte meeting.
353.36  Verification of information.
353.37  Best information available.
353.38  Written argument and hearings.

 Subpart D--Calculation of United States Price, Fair Value, and Foreign 
                              Market Value

353.41  Calculation of United States price.
353.42  Fair value.
353.43  Sales used in calculating foreign market value.
353.44  Sales at varying prices.
353.45  Transactions between related persons.
353.46  Calculation of foreign market value based on price in the home 
          market country.
353.47  Exportation from an intermediate country.
353.48  Calculation of foreign market value if sales in the home market 
          country are inadequate.
353.49  Calculation of foreign market value based on sales to a third 
          country.
353.50  Calculation of foreign market value based on constructed value.
353.51  Calculation of foreign market value if sales are made at less 
          than cost of production.
353.52  Calculation of foreign market value of merchandise from state-
          controlled-economy countries.
353.53  Calculation of foreign market value based on sales by a 
          multinational corporation.
353.54  Claims for adjustment to foreign market value.
353.55  Differences in quantities.
353.56  Differences in circumstances of sale.
353.57  Differences in physical characteristics.
353.58  Level of trade.
353.59  Disregarding insignificant adjustments; use of averaging and 
          sampling.
353.60  Conversion of currency.

                       Subpart E--Effective Dates

353.71  Effective dates of amendments to the Tariff Act of 1930 made by 
          the Omnibus Trade and Competitiveness Act of 1988.

Annex I--Time Limits for Submissions Specified in This Part

    Authority: 5 U.S.C. 301 and 19 U.S.C. 1671 et seq.

    Source: 54 FR 12769, Mar. 28, 1989; 54 FR 13294, Mar. 31, 1989, 
unless otherwise noted.



Subpart A--Scope and Definitions

Sec. 353.1  Scope.

    (a) This part sets forth procedures and rules applicable to 
proceedings under Title VII of the Tariff Act of 1930, as amended (19 
U.S.C. 1673 et seq.) (``the Act''), as amended by Title I of the Trade 
Agreements Act of 1979, Pub. L. 96-39, 93 Stat. 150, section 221 and 
Title VI of the Trade and Tariff Act of 1984, Pub. L. 98-573, 98 Stat. 
294, Title I, subtitle C, part II of the Omnibus Trade and 
Competitiveness Act of 1988, Pub. L. 100-418, 102 Stat. 1184, and Title 
II of the Uruguay Round Agreements Act, Pub. L. 103-465; 108 Stat. 4809 
(Dec.

[[Page 169]]

(1698, 1994), relating to the imposition of antidumping duties. In the 
event of a conflict between the provisions of this part and the 
provisions of the Act, the Act shall be controlling.
    (b) The following sections reflect amendments to the Act made by the 
Uruguay Round Agreements Act: Secs. 353.1, 353.12(b)(2), 353.13(a), 
353.15(a)(1), 353.15(b), 353.15(c), 353.22(c)(4), 353.22(c)(7), 
353.22(h), 353.31(a)(1), 353.31(c), and 353.38(i). These sections shall 
be applicable only to proceedings that have been self-initiated by the 
Secretary after, or initiated pursuant to petitions or requests filed 
after, January 1, 1995.

[60 FR 25133, May 11, 1995]

Sec. 353.2   Definitions.

     (a) Act. ``Act'' means the Tariff Act of 1930, as amended.
     (b) Commission. ``Commission'' means the United States 
International Trade Commission.
     (c) Country. ``Country'' means a foreign country or a political 
subdivision, dependent territory, or possession of a foreign country.
     (d) Customs Service. ``Customs Service'' means the United States 
Customs Service of the United States Department of the Treasury.
     (e) Department. ``Department'' means the United States Department 
of Commerce.
     (f) Dumping margin and weighted-average dumping margin.
     (1) Dumping margin means the amount by which the foreign market 
value exceeds the United States price of the merchandise.
     (2) The weighted-average dumping margin is the result of dividing 
the aggregated dumping margins by the aggregated United States prices.
     (g) Factual information. ``Factual information'' means:
     (1) Initial and supplemental questionnaire responses;
     (2) Data or statements of fact in support of allegations;
     (3) Other data or statements of facts; and
     (4) Documentary evidence.
     (h) Home market country. The ``home market country'' is the country 
in which the merchandise is produced.
     (i) Importer. ``Importer'' means the person by whom, or for whose 
account, the merchandise is imported.
     (j) Industry. ``Industry'' means the producers in the United States 
collectively of the like product, except those producers in the United 
States that the Secretary excludes under section 771(4)(B) of the Act on 
the grounds that they are also importers (or are related to importers, 
producers, or exporters) of the merchandise. Under section 771(4)(C) of 
the Act, an industry may mean producers in the United States, as defined 
above in this paragraph, in a particular market in the United States if 
such producers sell all or almost all of their production of the like 
product in that market and if the demand for the like product in that 
market is not supplied to any substantial degree by producers of the 
like product located elsewhere in the United States.
     (k) Interested party. ``Interested party'' means:
     (1) A producer, exporter, or United States importer of the 
merchandise, or a trade or business association a majority of the 
members of which are importers of the merchandise;
     (2) The government of the home market country;
     (3) A producer in the United States of the like product or seller 
(other than a retailer) in the United States of the like product 
produced in the United States;
     (4) A certified or recognized union or group of workers which is 
representative of the industry or of sellers (other than retailers) in 
the United States of the like product produced in the United States;
     (5) A trade or business association a majority of the members of 
which are producers in the United States of the like product or sellers 
(other than retailers) in the United States of the like product produced 
in the United States; or
     (6) An association a majority of the members of which are 
interested parties, as defined in paragraph (k)(3), (k)(4), or (k)(5) of 
this section.
     (l) Investigation. An ``investigation'' begins on the date of 
publication of notice of initiation of investigation and ends on the 
date of publication of the earliest of (1) notice of termination of

[[Page 170]]

(170investigation, (2) notice of rescission of investigation, (3) notice 
of a negative determination that has the effect of terminating the 
proceeding, or (4) an order.
     (m) The merchandise. ``The merchandise'' means the class or kind of 
merchandise imported or sold, or likely to be sold, for importation into 
the United States, that is the subject of the proceeding.
     (n) Order. An ``order'' is an order issued by the Secretary under 
Sec. 353.21 or a finding under the Antidumping Act, 1921.
     (o) Party to the proceeding. ``Party to the proceeding'' means any 
interested party, within the meaning of paragraph (k) of this section, 
which actively participates, through written submissions of factual 
information or written argument, in a particular decision by the 
Secretary subject to judicial review. Participation in a prior 
reviewable decision will not confer on any interested party party to the 
proceeding status in a subsequent decision by the Secretary subject to 
judicial review.
     (p) Person. ``Person'' includes any interested party as well as any 
other individual, enterprise, or entity, as appropriate.
     (q) Proceeding. A ``proceeding'' begins on the date of the filing 
of a petition or publication of a notice of initiation under 
Sec. 353.11, and ends on the date of publication of the earliest notice 
of (1) dismissal of petition, (2) rescission of initiation, (3) 
termination of investigation, (4) a negative determination that has the 
effect of terminating the proceeding, (5) revocation of an order, or (6) 
termination of a suspended investigation.
     (r) Producer; production. ``Producer'' means a manufacturer or 
producer. ``Production'' means manufacture or production.
     (s) Reseller. ``Reseller'' means any person (other than the 
producer) whose sales the Secretary uses to calculate foreign market 
value or U.S. price, including the foreign reseller or exporter.
     (t) Sale; likely sale. A ``sale'' includes a contract to sell and a 
lease that is equivalent to a sale. A ``likely sale'' means a person's 
irrevocable offer to sell.
     (u) Secretary. ``Secretary'' means the Secretary of Commerce or a 
designee. The Secretary has delegated to the Assistant Secretary for 
Import Administration the authority to make final determinations under 
Secs. 353.18(i) and 353.20 and final results of review under 
Sec. 353.22(c). The Deputy Assistant Secretaries for Import 
Administration, Investigations, and Compliance have other delegated 
authority relating to antidumping duties.

Sec. 353.3  Record of proceedings.

    (a) Official record. The Secretary will maintain in the Import 
Administration Central Records Unit, at the location stated in 
Sec. 353.31(d), an official record of each proceeding. The Secretary 
will include in the record all factual information, written argument, or 
other material developed by, presented to, or obtained by the Secretary 
during the course of the proceeding which pertains to the proceeding. 
The record will include government memoranda pertaining to the 
proceeding, memoranda of ex parte meetings, determinations, notices 
published in the Federal Register, and transcripts of hearings. The 
record will not include any factual information, written argument, or 
other material which is not timely filed or which the Secretary returns 
to the submitter under Sec. 353.31(b)(2), 353.32(d), 353.32(g), or 
353.34(c). The record will contain material that is public, proprietary, 
privileged, and classified. For purposes of section 516A(b)(2) of the 
Act, the record is the official record of each judicially reviewable 
segment of the proceeding.
    (b) Public record. The Secretary will maintain in the Central 
Records Unit a public record of each proceeding. The record will consist 
of all material described in paragraph (a) of this section that the 
Secretary decides is public information within the meaning of 
Sec. 353.4(a), government memoranda or portions of memoranda that the 
Secretary decides may be disclosed to the general public, plus public 
versions of all determinations, notices, and transcripts. The public 
record will be available to the public for inspection and copying in the 
Central Records Unit (see Sec. 353.31(d)). The Secretary will

[[Page 171]]

(171charge an appropriate fee for providing copies of documents.
    (c) Protection of records. Unless ordered by the Secretary or 
required by law, no record or portion of a record will be removed from 
the Department.

Sec. 353.4  Public, proprietary, privileged, and classified information.

    (a) Public information.The Secretary normally will consider the 
following to be public information:
    (1) Factual information of a type that has been published or 
otherwise made available to the public by the person submitting it;
    (2) Factual information that is not designated proprietary by the 
person submitting it;
    (3) Factual information which, although designated proprietary by 
the person submitting it, is in a form which cannot be associated with 
or otherwise used to identify activities of a particular person;
    (4) Publicly available laws, regulations, decrees, orders, and other 
official documents of a country, including English translations; and
    (5) Written argument relating to the proceeding that is not 
designated proprietary.
    (b) Proprietary information. The Secretary normally will consider 
the following factual information to be proprietary information, if so 
designated by the submitter:
    (1) Business or trade secrets concerning the nature of a product or 
production process;
    (2) Production costs (but not the identity of the production 
components unless a particular component is a trade secret);
    (3) Distribution costs (but not channels of distribution);
    (4) Terms of sale (but not terms of sale offered to the public);
    (5) Prices of individual sales, likely sales, or other offers (but 
not (i) components of prices, such as transportation, if based on 
published schedules, (ii) dates of sale, (iii) product descriptions 
except as described in paragraph (b)(1), or (iv) order numbers);
    (6) The names of particular customers, distributors, or suppliers 
(but not destination of sale or designation of type of customer, 
distributor, or supplier, unless the destination or designation would 
reveal the name);
    (7) The exact amount of the dumping margin on individual sales;
    (8) The names of particular persons from whom proprietary 
information was obtained; and
    (9) Any other specific business information the release of which to 
the public would cause substantial harm to the competitive position of 
the submitter.
    (c) Privileged information. The Secretary will consider information 
privileged if, based on principles of law concerning privileged 
information, the Secretary decides that the information should not be 
released to the public or to parties to the proceeding.
    (d) Classified information. Classified information is information 
that is classified under Executive Order No. 12356 of April 2, 1982 (43 
FR 28949) or successor executive order, if applicable.

Sec. 353.5  Trade and Tariff Act of 1984--effective date.

    In accordance with section 626 of the Trade and Tariff Act of 1984 
(Pub. L. No. 98-573) (for purposes of this subpart, referred to as ``the 
1984 Act''), the amendments to the Act made by Title VI of the 1984 Act 
are effective as follows:
    (a) Except as provided in paragraphs (b), (c), and (d) of this 
section, all amendments made by Title VI of the 1984 Act which affect 
authorities administered by the Secretary are effective on October 30, 
1984.
    (b) Amendments made by sections 602, 609, 611, 612, and 620 of the 
1984 Act which affect authorities administered by the Secretary take 
effect immediately with respect to all investigations and administrative 
reviews begun on or after October 30, 1984.
    (c) Amendments made by section 623 of the 1984 Act, regarding 
judicial review, apply with respect to civil actions pending on, or 
filed on or after, October 30, 1984.
    (d) Notwithstanding the provisions of paragraphs (a) and (b) of this 
section, the Secretary may implement the amendments of the 1984 Act at a 
date later than October 30, 1984, if the Secretary determines that 
implementation in accordance with paragraph (a) or (b) of this section 
would prevent the

[[Page 172]]

(172Department from complying with other requirements of law.

Sec. 353.6   De minimis weighted-average dumping margins.

    (a) Disregarding de minimis weighted-average dumping margins. Except 
as provided in paragraph (b), the Secretary will disregard any weighted-
average dumping margin that is less than 0.5% ad valorem, or the 
equivalent specific rate.
    (b) Assessment of de minimis margins. For purposes of assessment of 
an antidumping duty, the Secretary will not disregard any de minimis 
dumping margin.



Subpart B--Antidumping Duty Procedures

Sec. 353.11   Self-initiation.

    (a) In general. (1) If the Secretary determines from available 
information, including information obtained during a period of 
monitoring under paragraph (c) of this section, that an investigation is 
warranted with respect to the merchandise, the Secretary will initiate 
an investigation and publish in the Federal Register  notice of 
``Initiation of Antidumping Duty Investigation.''
    (2) The notice will include:
    (i) A description of the merchandise, after consultation as 
appropriate with the Commission;
    (ii) The name of the home market country and, if the merchandise is 
imported from a country other than the home market country, the name of 
the intermediate country (Sec. 353.47) or country through which the 
merchandise is transshipped (Sec. 353.46(c)); and
    (iii) A summary of the available information that would, if 
accurate, support the imposition of antidumping duties.
    (b) Information provided to the Commission. The Secretary will 
notify the Commission at the time of initiation of the investigation and 
will make available to it and to its employees directly involved in the 
proceeding all information upon which the Secretary based the initiation 
and which the Commission may consider relevant to its injury 
determinations.
    (c) Persistent dumping monitoring. (1) The Secretary may monitor, 
for a period not to exceed one year, imports from an additional supplier 
country of the same class or kind of merchandise as the merchandise 
which is subject to two or more orders under this part if the Secretary 
concludes from available information, including information in a request 
for monitoring under this paragraph, that:
    (i) There is reason to believe or suspect an extraordinary pattern 
of persistent injurious dumping exists with regard to shipments from one 
or more additional supplier countries; and
    (ii) This extraordinary pattern is causing a serious commercial 
problem for the industry.
    (2) For the purposes of this section, ``additional supplier 
country'' means a country regarding which no order is in effect and no 
investigation is pending under this part as to the class or kind of 
merchandise referred to in paragraph (c)(1) of this section.
    (3) To the extent practicable, the Secretary will expedite any 
investigation initiated under paragraph (a) of this section as a result 
of monitoring under paragraph (c)(1) of this section.

Sec. 353.12  Petition requirements.

    (a) In general. Any interested party, as defined in paragraph 
(k)(3), (k)(4), (k)(5), or (k)(6) of Sec. 353.2, may file on behalf of 
an industry a petition under this section requesting the imposition of 
antidumping duties equal to the alleged amount of the dumping margin, if 
that person has reason to believe that:
    (1) The merchandise is being, or is likely to be, sold at less than 
fair value; and
    (2) That industry is materially injured, is threatened with material 
injury, or its establishment is materially retarded by the merchandise.

Factual information in the petition shall be certified, as provided in 
Sec. 353.31(i).
    (b) Contents of petition. The petition shall contain the following, 
to the extent reasonably available to the petitioner:
    (1) The name and address of the petitioner and any person the 
petitioner represents;

[[Page 173]]

(173
    (2) The identity of the industry on behalf of which the petitioner 
is filing, including the names and addresses of other persons in the 
industry, and information relating to the degree of industry support for 
the petition;
    (3) A statement indicating whether the petitioner has filed for 
import relief under sections 337 or 702 of the Act (19 U.S.C. 1337, 
1671a), sections 201 or 301 of the Trade Act of 1974 (19 U.S.C. 2251 or 
2411), or section 232 of the Trade Expansion Act of 1962 (19 U.S.C. 
1862) with respect to the merchandise;
    (4) A detailed description of the merchandise that defines the 
requested scope of the investigation, including technical 
characteristics and uses of the merchandise, and its current U.S. tariff 
classification number.
    (5) The name of the home market country and, if the merchandise is 
imported from a country other than the home market country, the name of 
the intermediate country (Sec. 353.47) or the country through which the 
merchandise is transshipped (Sec. 353.46(c));
    (6) The names and addresses of each person the petitioner believes 
sells the merchandise at less than fair value and the proportion of 
total exports to the United States which each person accounted for 
during the most recent 12-month period (if numerous, provide information 
at least for persons that, based on publicly available information, 
individually accounted for two percent or more of the exports);
    (7) All factual information (particularly documentary evidence) 
relevant to the calculation of the United States price of the 
merchandise and the foreign market value of such or similar merchandise, 
in accordance with subpart D of this part (if unable to furnish 
information on foreign sales or costs, provide information on production 
costs in the United States, adjusted to reflect production costs in the 
home market country of the merchandise);
    (8) If the merchandise is from a country that the Secretary has 
found to be a state-controlled-economy country, factual information 
relevant to the calculation of foreign market value, as provided in 
subpart D of this part, using a method described in Sec. 353.52.
    (9) The volume and value of the merchandise during the most recent 
two-year period and any other recent period that the petitioner believes 
to be more representative or, if the merchandise was not imported during 
the two-year period, information as to the likelihood of its sale for 
importation;
    (10) The name and address of each person the petitioner believes 
imports or, if there were no importations, is likely to import the 
merchandise;
    (11) Factual information regarding material injury, threat of 
material injury, or material retardation, as described in 19 CFR 207.11 
and 207.26;
    (12) If the petitioner alleges ``critical circumstances'' under 
Sec. 353.16, factual information regarding:
    (i) Material injury which is difficult to repair;
    (ii) Massive imports in a relatively short period; and
    (iii) Either: (A) A history of dumping; or (B) The importer's 
knowledge that the producer or reseller was selling the merchandise at 
less than its foreign market value, as described in Sec. 353.16(a); and
    (13) Any other factual information on which the petitioner relies.
    (c) Simultaneous filing with Commission. The petitioner must file a 
copy of the petition with the Commission and the Secretary on the same 
day and so certify in submitting the petition to the Secretary.
    (d) Proprietary status of information. The Secretary will not 
consider any factual information for which the petitioner requests 
proprietary treatment unless the petitioner meets the requirements of 
Sec. 353.32.
    (e) Amendment of petition. The Secretary will allow timely amendment 
of the petition. The petitioner must file an amendment with the 
Commission and the Secretary on the same day and so certify in 
submitting the amendment to the Secretary. The timeliness of new 
allegations is controlled under Sec. 353.31.
    (f) Where to file; time of filing; format and number of copies. The 
requirements of Sec. 353.31 (d), (e), and (f) apply to this section.
    (g) Notification of representative of the home market country. Upon 
receipt of a petition, the Secretary will deliver a

[[Page 174]]

(174public version of the petition, as described in Sec. 353.31(e)(2), 
to a representative in Washington, DC, of the government of the home 
market country.
    (h) Assistance to small businesses; additional information.
    (1) The Secretary will provide technical assistance to eligible 
small businesses, as defined in section 339 of the Act, to enable them 
to prepare and file petitions. The Secretary may deny assistance if the 
Secretary concludes that the petition, if filed, could not satisfy the 
requirements of Sec. 353.13.
    (2) For additional information concerning petitions, contact the 
Deputy Assistant Secretary for Investigations, Import Administration, 
International Trade Administration, Room B099, U.S. Department of 
Commerce, Pennsylvania Avenue and 14th Street, NW., Washington, DC 
20230; (202) 377-5497.
    (i) Limitation of communication before initiation. Before the 
Secretary decides whether to initiate an investigation, the Secretary 
will not accept from an interested party, as defined in paragraph (k)(1) 
or (k)(2) of Sec. 353.2, oral or written communication regarding a 
petition except inquiries concerning the status of the proceeding.

(The information collection requirements in paragraph (b) of this 
section have been approved by the Office of Management and Budget under 
control number 0625-0105)

[54 FR 12769, Mar. 28, 1989, as amended at 60 FR 25134, May 11, 1995]

Sec. 353.13  Determination of sufficiency of petition.

    (a) Determination of sufficiency--(1) In general. Except as provided 
in paragraph (a)(2) of this section, not later than 20 days after a 
petition is filed under Sec. 353.12, the Secretary will determine 
whether the petition properly alleges the basis on which an antidumping 
duty may be imposed under section 731 of the Act, contains information 
reasonably available to the petitioner supporting the allegations, is 
filed by an interested party as defined in paragraph (k)(3), (k)(4), 
(k)(5), or (k)(6) of Sec. 353.2, and is filed by or on behalf of the 
domestic industry.
    (2) Extension where polling required. Where the Secretary is 
required to poll or otherwise determine support for the petition by the 
domestic industry under section 732(c)(4)(D) of the Act, the Secretary 
may, in exceptional circumstances, apply paragraph (a)(1) of this 
section by substituting ``a maximum of 40 days'' for ``20 days''.
    (b) Notice of initiation. If the Secretary determines that the 
petition is sufficient under paragraph (a), the Secretary will initiate 
an investigation and publish in the Federal Register notice of 
``Initiation of Antidumping Duty Investigation.'' The notice will 
include the information described in Sec. 353.11(a)(2). The Secretary 
will notify the Commission at the time of initiation of the 
investigation and will make available to it and to its employees 
directly involved in the proceeding all information upon which the 
Secretary based the initiation and which the Commission may consider 
relevant to its injury determinations.
    (c) Insufficiency of petition. If the Secretary determines that a 
petition is insufficient under paragraph (a) of this section, the 
Secretary will dismiss the petition in whole or in part and, if 
appropriate, terminate the proceeding. The Secretary will notify the 
petitioner in writing of the reasons for dismissal, notify the 
Commission of the dismissal and publish in the Federal Register notice 
of ``Dismissal of Antidumping Duty Petition,'' summarizing the reasons 
for dismissal.

[54 FR 12769, Mar. 28, 1989, as amended at 60 FR 25134, May 11, 1995]

Sec. 353.14  Request for exclusion from antidumping duty order.

    (a) Any producer or reseller that desires exclusion from an 
antidumping duty order must submit to the Secretary, not later than 30 
days after the date of publication of the notice of initiation under 
Sec. 353.11 or 353.13, an irrevocable written request for exclusion.
    (b) The person must submit with the request: (1) The person's 
certification that:
    (i) There is no dumping margin on the merchandise sold or likely to 
be sold, as defined in Sec. 353.2(t), by the person during the minimum 
period described in Sec. 353.42(b)(1); and
    (ii) The person will not in the future sell the merchandise at less 
than foreign market value; and

[[Page 175]]

(175
    (2) If the person is not the producer of the merchandise, the 
certification under paragraph (b)(1) of this section of the suppliers 
and producers of the merchandise.
    (c) The Secretary will investigate requests for exclusion to the 
extent practicable in each investigation.

Sec. 353.15  Preliminary determination.

    (a) In general. (1) Not later than 140 days after the date on which 
the Secretary initiates an investigation under Sec. 353.11 or 
Sec. 353.13, the Secretary will make a determination based on the 
available information at the time whether there is a reasonable basis to 
believe or suspect that the merchandise is being sold at less than fair 
value. The Secretary will not make the determination unless the 
Commission has made an affirmative preliminary determination.
    (2) The Secretary's determination will include:
    (i) The factual and legal conclusions on which the determination is 
based;
    (ii) The estimated weighted-average dumping margin, if any, for each 
person investigated and an appropriate rate for persons not 
investigated; and
    (iii) A preliminary finding on critical circumstances, if 
appropriate, under Sec. 353.16(b)(2)(i).
    (3) If affirmative, the Secretary's determination will also:
    (i) Order the suspension of liquidation of all entries of the 
merchandise entered, or withdrawn from warehouse, for consumption on or 
after the date of publication of the notice of the Secretary's 
preliminary determination; and
    (ii) Impose provisional measures by instructing the Customs Service 
to require for each entry of the merchandise suspended under this 
paragraph a cash deposit or bond equal to the estimated weighted-average 
dumping margin.
    (4) The Secretary will publish in the Federal Register notice of 
``Affirmative (Negative) Preliminary Antidumping Duty Determination,'' 
including the estimated weighted-average dumping margin, if any, and an 
invitation for argument consistent with Sec. 353.38.
    (5) The Secretary will notify all parties to the proceeding and the 
Commission.
    (b) Postponement in extraordinarily complicated investigation. If 
the Secretary decides the investigation is extraordinarily complicated, 
the Secretary may postpone the preliminary determination to not later 
than 190 days after the date on which the Secretary initiated the 
investigation. The Secretary will base the decision on express findings 
that:
    (1) The respondent parties to the proceeding are cooperating in the 
investigation;
    (2) The investigation is extraordinarily complicated by reason of:
    (i) The large number of complex nature of the transactions or 
adjustments under subpart D of this part;
    (ii) Novel issues raised; or
    (iii) The large number of producers and resellers; and
    (3) Additional time is needed to make the preliminary determination.
    (c) Postponement at the request of the petitioner. If the 
petitioner, not later than 25 days before the scheduled date for the 
Secretary's preliminary determination, requests a postponement and 
states the reasons for the request, the Secretary will postpone the 
preliminary determination to not later than 190 days after the date on 
which the Secretary initiated the investigation, unless the Secretary 
finds compelling reasons to deny the request.
    (d) Notice of postponement. If the Secretary decides to postpone the 
preliminary determination under paragraph (b) or (c) of this section, 
the Secretary will notify all parties to the proceeding not later than 
20 days before the scheduled date for the Secretary's preliminary 
determination and will publish in the Federal Register notice of 
``Postponement of Preliminary Antidumping Duty Determination,'' stating 
the reasons for the postponement.
    (e) Expedited preliminary determination. Not later than 75 days 
after the initiation of an investigation under Sec. 353.13, the 
Secretary will review the record of the first 60 days of the 
investigation. If the available information is sufficient for the 
Secretary to make a preliminary determination, the Secretary will 
disclose to the petitioner, and any party to the proceeding that has 
requested disclosure, all available public and proprietary information

[[Page 176]]

(176(subject to the requirements of Sec. 353.34). If, not later than 
three business days after disclosure, each party to whom disclosure was 
made furnishes an irrevocable written waiver of verification and agrees 
to a preliminary determination based on information in the record on the 
60th day of the investigation, the Secretary will make an expedited 
preliminary determination not later than 90 days after initiation of the 
investigation.
    (f) Commission access to information. The Secretary will make 
available to the Commission and to employees of the Commission directly 
involved in the proceeding all information upon which the Secretary 
based the determination and which the Commission may consider relevant 
to its injury determination.
    (g) Disclosure. Promptly after making the preliminary determination, 
the Secretary will provide to parties to the proceeding which request 
disclosure a further explanation of the calculation methodology used in 
making the determination.

[54 FR 12769, Mar. 28, 1989, as amended at 60 FR 25134, May 11, 1995]

Sec. 353.16  Critical circumstances findings.

    (a) In general. If a petitioner submits to the Secretary a written 
allegation of critical circumstances, with reasonably available factual 
information supporting the allegation, not later than 21 days before the 
scheduled date of the Secretary's final determination, or on the 
Secretary's own initiative in an investigation under Sec. 353.11, the 
Secretary will make a finding whether:
    (1) (i) There is a history of dumping in the United States or 
elsewhere of the same class or kind of merchandise as the merchandise 
subject to the investigation; or
    (ii) The importer knew or should have known that the producer or 
reseller was selling the merchandise at less than its foreign market 
value: and
    (2) There have been massive imports of the merchandise over a 
relatively short period.
    (b) Preliminary finding. (1) lf the petitioner submits the 
allegation of critical circumstances not later than 30 days before the 
scheduled date for the Secretary's final determination under 
Sec. 353.20, the Secretary, based on the available information, will 
make a preliminary finding whether there is a reasonable basis to 
believe or suspect that critical circumstances as described in paragraph 
(a) of this section exist.
    (2) The Secretary will issue the preliminary finding:
    (i) Not later than the Secretary's preliminary determination under 
Sec. 353.15, if the allegation is submitted not later thar 20 days 
before the scheduled date for the preliminary determination; or
    (ii) Not later than 30 days after the petitioner submits the 
allegation, if the allegation is submitted later than 20 days before the 
scheduled date for the  Secretary's preliminary determination.

    The Secretary will notify the Commission and publish in the Federal 
Register notice of the preliminary finding.

    (c) Suspension of liquidation. If the Secretary makes an affirmative 
preliminary finding of critical circumstances, either before or at the 
time of an affirmative preliminary determination under Sec. 353.15, any 
suspension of liquidation ordered under Sec. 353.15 will apply to all 
entries of the merchandise covered by the finding entered, or withdrawn 
from warehouse, for consumption on or after 90 days before the date of 
the order of suspension. If the Secretary makes an affirmative 
preliminary finding of critical circumstances after an affirmative 
preliminary determination under Sec. 353.15, the Secretary will amend 
the order suspending liquidation to apply to all entries of the 
merchandise covered by the finding entered, or withdrawn from warehouse, 
for consumption on or after 90 days before the date suspension of 
liquidation was first ordered.
    (d) Final finding. For any allegation submitted not later than 21 
days before the scheduled date for the Secretary's final determination 
under Sec. 353.20, the Secretary will make a final finding on critical 
circumstances. If the final finding is affirmative and if the Secretary 
did not make an affirmative preliminary finding of critical 
circumstances, the Secretary will order

[[Page 177]]

(177the suspension of liquidation of all entries of the merchandise 
entered, or withdrawn from warehouse, for consumption on or after 90 
days before the date the Secretary ordered suspension of liquidation 
either as part of an affirmative preliminary or final determination. If 
the final finding is negative and if the Secretary made an affirmative 
preliminary finding of critical circumstances, the Secretary will end 
the retroactive suspension of liquidation ordered under paragraph (c) of 
this section, and will instruct the Customs Service to release the cash 
deposit or bond.
    (e) Findings in self-initiated investigations. In investigations 
initiated under Sec. 353.11, the Secretary will make a preliminary and 
final finding on critical circumstances without regard to the time 
limits in paragraphs (b) and (d) of this section.
    (f) Massive imports. (1) In determining for the purpose of paragraph 
(a) of this section whether imports of the merchandise have been 
massive, the Secretary normally will examine:
    (i) The volume and value of the imports;
    (ii) Seasonal trends; and
    (iii) The share of domestic consumption accounted for by the 
imports.
    (2) In general, unless the imports during the period identified in 
paragraph (g) of this section have increased by at least 15 percent over 
the imports during an immediately preceding period of comparable 
duration, the Secretary will not consider the imports massive.
    (g) Relatively short period. For the purpose of paragraph (a) of 
this section, the Secretary normally will consider the period beginning 
on the date the proceeding begins and ending at least three months 
later. However, if the Secretary finds that importers, or exporting 
producers or resellers, had reason to believe, at some time prior to the 
beginning of the proceeding, that a proceeding was likely, then the 
Secretary may consider a period of not less than three months from that 
earlier time.

Sec. 353.17  Termination of investigation.

    (a) Withdrawal of petition. (1) Except as provided in paragraph (b) 
of this section, the Secretary may terminate an investigation upon 
withdrawal of the petition by the petitioner, or on the Secretary's own 
initiative in an investigation initiated under Sec. 353.11, after 
notifying all parties to the proceeding and after consultation with the 
Commission. The Secretary may not terminate an investigation unless the 
Secretary concludes the termination is in the public interest.
    (2) If the Secretary terminates an investigation, the Secretary will 
publish in the Federal Register notice of ``Termination of Antidumping 
Duty Investigation'' together with, when appropriate, a copy of any 
correspondence with the petitioner forming the basis of the withdrawal 
and the termination.
    (b) Withdrawal of petition based on acceptance of quantitative 
restriction agreements. (1) The Secretary may not terminate under 
paragraph (a) of this section an investigation by accepting an 
understanding or other kind of agreement with the government of the home 
market country to restrict the volume of the merchandise unless the 
Secretary, taking into account the factors listed in section 
734(a)(2)(B) of the Act, is satisfied that termination is in the public 
interest.
    (2) In deciding for the purpose of paragraph (b)(1) of this section 
whether termination is in the public interest, the Secretary, to the 
extent practicable, will consult with representatives of potentially 
affected United States consuming industries and potentially affected 
persons in the industry, including persons not parties to the 
proceeding.
    (c) Negative determination. An investigation terminates, without 
further comment or action, upon publication in the Federal Register of 
the Secretary's negative final determination or the Commission's 
negative preliminary or final determination.
    (d) End of suspension of liquidation. If the Secretary previously 
ordered suspension of liquidation, the Secretary will order the 
suspension ended on the date of publication of the notice of termination 
under paragraph (a) of this section or on the date of publication of a 
negative determination referred to in paragraph (c) of this section, and 
will

[[Page 178]]

(178instruct the Customs Service to release any cash deposit or bond.

Sec. 353.18  Suspension of investigation.

    (a) Agreement to eliminate completely sales at less than foreign 
market value or to cease exports. If the Secretary is satisfied that 
suspension is in the public interest, the Secretary may suspend an 
investigation at any time before the Secretary's final determination by 
accepting an agreement with exporters (producers and resellers) that 
account for substantially all of the merchandise:
    (1) To eliminate completely sales at less than foreign market value 
with respect to the merchandise, effective on the date of suspension of 
investigation; or
    (2) To cease exports of the merchandise not later than 180 days 
after the date of publication of the notice of suspension of 
investigation.
    (b) Agreement eliminating injurious effect. (1) As provided in this 
paragraph and paragraph (b)(2) of this section, the Secretary may 
suspend an investigation at any time before the Secretary's final 
determination if the Secretary:
    (i) Is satisfied that the proposed suspension is in the public 
interest;
    (ii) Finds that extraordinary circumstances are present; and
    (iii) Finds that the agreement will eliminate completely the 
injurious effect of the merchandise.
    (2) The Secretary may suspend an investigation under paragraph 
(b)(1) of this section by accepting an agreement with exporters 
(producers and resellers) that account for substantially all of the 
merchandise, if the Secretary finds that:
    (i) The agreement will prevent the suppression or undercutting by 
the merchandise of prices of like products produced in the United 
States; and
    (ii) The agreement will ensure that, for each entry of each 
exporter, the dumping margin will not exceed 15 percent of the weighted-
average dumping margin for that exporter stated in the Secretary's 
preliminary determination (or final determination in investigations 
continued under Sec. 353.18(i)).
    (c) Definition of ``substantially all.'' For purposes of paragraphs 
(a) and (b)(2) of this section, exporters which account for 
``substantially all'' of the merchandise means exporters (producers and 
resellers), that have accounted for not less than 85 percent by value or 
volume of the merchandise during the period for which the Department is 
measuring dumping in the investigation or such other period that the 
Secretary considers representative.
    (d) Definition of ``extraordinary circumstances.'' For purposes of 
paragraph (b) of this section, ``extraordinary circumstances'' means 
circumstances in which (1) suspension of the investigation will be more 
beneficial to the industry than continuation of the investigation, and 
(2) there are a large number of transactions or adjustments under 
subpart D of this part, the issues raised are novel, or the number of 
producers and resellers is large.
    (e) Monitoring. The Secretary will not accept an agreement unless 
effective monitoring of the agreement by the Secretary is practicable. 
In monitoring an agreement under paragraph (b) of this section, the 
Secretary will not be obliged to ascertain on a continuing basis the 
prices in the United States of the merchandise or of like products 
produced in the United States.
    (f) Exports not to increase during interim period. The Secretary 
will not accept an agreement under paragraph (a)(2) of this section 
unless the agreement ensures that the quantity of the merchandise 
exported during the interim period set forth in the agreement does not 
exceed the quantity of the merchandise exported during a period of 
comparable duration that the Secretary considers representative.
    (g) Procedure for suspension of investigation. (1) The exporters 
(producers and resellers) shall:
    (i) Submit to the Secretary a proposed agreement not later than 45 
days before the scheduled date for the Secretary's final determination 
under Sec. 353.20; and
    (ii) Serve a copy of an agreement preliminarily accepted by the 
Secretary on other parties to the proceeding not later than the day 
following the Secretary's preliminary acceptance.
    (2) The Secretary will:

[[Page 179]]

(179
    (i) Not later than 30 days before the date the Secretary suspends 
the investigation, notify all parties to the proceeding of the proposed 
suspension and provide to the petitioner a copy of the agreement 
preliminarily accepted by the Secretary (the agreement shall contain the 
procedures for monitoring compliance and a statement of the 
compatibility of the agreement with the requirements of this section); 
and
    (ii) Consult with the petitioner concerning the proposed suspension.
    (3) The Secretary will provide all interested parties and United 
States government agencies an opportunity to submit, not later than 10 
days before the scheduled date for the Secretary's final determination, 
written argument and factual information concerning the proposed 
suspension.
    (h) Acceptance of agreement. (1) If the Secretary accepts an 
agreement to suspend an investigation, the Secretary will publish in the 
Federal Register  notice of ``Suspension of Antidumping Duty 
Investigation,'' including the text of the agreement. If the Secretary 
has not already published notice of affirmative preliminary 
determination, the Secretary will include that notice. In accepting an 
agreement, the Secretary may rely on factual or legal conclusions the 
Secretary reached in or after the affirmative preliminary determination.
    (2) If the Secretary suspends an investigation based on an agreement 
under paragraph (a) of this section, the Secretary will not order the 
suspension of liquidation of entries of the merchandise. If the 
Secretary previously ordered suspension of liquidation, the Secretary 
will order the suspension of liquidation ended on the effective date of 
notice of suspension of investigation and will instruct the Customs 
Service to release any cash deposit or bond.
    (3) If the Secretary suspends an investigation based on an agreement 
under paragraph (b) of this section, the Secretary will order the 
suspension of liquidation to continue or to begin, as appropriate. The 
suspension of liquidation will not end until the Commission completes 
any requested review, under section 734(h) of the Act, of the agreement. 
If the Commission receives no request for review within 20 days after 
the date of publication of the notice of suspension of investigation, 
the Secretary will order the suspension of liquidation ended on the 21st 
day after the date of publication, and will instruct the Customs Service 
to release any cash deposit or bond.
    (4) If the Commission undertakes a review of an agreement under 
section 734(h) of the Act and determines that the agreement will not 
eliminate the injurious effect, the Secretary will resume the 
investigation on the date of publication of the Commission's 
determination as if the Secretary's affirmative preliminary 
determination had been made on that date. If the Commission determines 
that the agreement will eliminate the injurious effect, the Secretary 
will continue the suspension of investigation, order the suspension of 
liquidation ended on the date of publication of the Commission's 
determination, and instruct the Customs Service to release any cash 
deposit or bond.
    (i) Continuation of investigation. (1) Not later than 20 days after 
the date of publication of the notice of suspension of investigation, an 
exporter or exporters accounting for a significant proportion of exports 
of the merchandise or an interested party, as defined in paragraph 
(k)(3), (k)(4), (k)(5), or (k)(6) of Sec. 353.2, may request in writing 
that the Secretary continue the investigation. The party shall 
simultaneously file a request with the Commission to continue its 
investigation.
    (2) Upon receiving the request, the Secretary and the Commission 
will continue the investigation.
    (i) If the Secretary and the Commission make affirmative final 
determinations, the suspension agreement will remain in effect in 
accordance with the factual and legal conclusions in the Secretary's 
final determination. This paragraph does not affect the provisions of 
paragraph (h) of this section regarding suspension of liquidation.
    (ii) If the Secretary or the Commission makes a negative final 
determination, the agreement shall have no force or effect.
    (j) Merchandise imported in excess of allowed quantity. (1) The 
Secretary may

[[Page 180]]

(180instruct the Customs Service not to accept entries, or withdrawals 
from warehouse, for consumption of the merchandise in excess of any 
quantity allowed by paragraph (f) or by an agreement under paragraph (a) 
of this section.
    (2) Imports in excess of the quantity allowed by paragraph (f) or by 
an agreement under paragraph (a) of this section may be exported or 
destroyed under Customs service supervision.

Sec. 353.19  Violation of agreement.

    (a) Immediate determination. If the Secretary determines that a 
signatory exporter has violated a suspension agreement, the Secretary, 
without right of comment, will:
    (1) Order the suspension of liquidation of all entries of the 
merchandise entered, or withdrawn from warehouse, for consumption on or 
after the later of (i) 90 days before the date of publication of the 
notice of cancellation of agreement or (ii) the date of first entry, or 
withdrawal from warehouse, for consumption of the merchandise the sale 
or export of which was in violation of the agreement;
    (2) If the investigation was not completed under Sec. 353.18(i), 
resume the investigation as if the Secretary made an affirmative 
preliminary determination on the date of publication of the notice of 
cancellation and impose provisional measures by instructing the Customs 
Service to require for each entry of the merchandise suspended under 
paragraph (a)(1) of this section a cash deposit or bond equal to the 
estimated weighted-average dumping margin determined in the affirmative 
preliminary determination;
    (3) If the investigation was completed under Sec. 353.18(i), issue 
an antidumping duty order for all entries subject to suspension of 
liquidation under paragraph (a)(1) of this section and instruct the 
Customs Service to require for each entry of the merchandise suspended 
under this paragraph a cash deposit equal to the estimated weighted-
average dumping margin determined in the affirmative final 
determination;
    (4) Notify all persons who are or were parties to the proceeding, 
the Commission, and if the Secretary determines that the violation was 
intentional, the Commissioner of Customs; and
    (5) Publish in the Federal Register notice of ``Antidumping Duty 
Order (Resumption of Antidumping Duty Investigation); Cancellation of 
Suspension Agreement.''
    (b) Determination after notice and comment. (1) If the Secretary has 
reason to believe that a signatory exporter has violated an agreement or 
that an agreement no longer meets the requirements of section 734(d) of 
the Act, but does not have sufficient information to take action under 
paragraph (a) of this section, the Secretary will publish in the Federal 
Register notice of ``Invitation for Comment on Antidumping Duty 
Suspension Agreement.''
    (2) After publication of the notice inviting comment and after 
consideration of comments received the Secretary will:
    (i) If the Secretary determines that any signatory exporter has 
violated the agreement, take appropriate action as described in 
paragraphs (a)(1) through (a)(5) of this section; or
    (ii) If the Secretary determines that the agreement no longer meets 
the requirements of section 734(d) of the Act:
    (A) Take appropriate action as described in paragraphs (a)(1) 
through (a)(5) of this section, except that, for paragraph (a)(1)(ii) of 
this section, the date shall be the date of first entry, or withdrawal 
from warehouse, for consumption of the merchandise the sale or export of 
which does not meet the requirements of section 734(d) of the Act;
    (B) Continue the suspension of investigation by accepting a revised 
suspension agreement under Sec. 353.18(a) (whether or not the Secretary 
accepted the original agreement under that paragraph) that, at the time 
the Secretary accepts the revised agreement, meets the applicable 
requirements of section 734(d) of the Act, and publish in the Federal 
Register notice of ``Revision of Agreement Suspending Antidumping Duty 
Investigation;'' or
    (C) Continue the suspension of investigation by accepting a revised 
suspension agreement under Sec. 353.18(b) (whether or not the Secretary 
accepted the original agreement under that paragraph) that, at the time 
the Secretary

[[Page 181]]

(181accepts the revised agreement, meets the applicable requirements of 
section 734(d) of the Act, and publish in the Federal Register notice of 
``Revision of Agreement Suspending Antidumping Duty Investigation.'' If 
the Secretary continues to suspend an investigation based on a revised 
agreement accepted under Sec. 353.18(b), the Secretary will order 
suspension of liquidation to begin. The suspension will not end until 
the Commission completes any requested review of the agreement under 
section 734(h) of the Act. If the Commission receives no request for 
review within 20 days after the date of publication of the notice of the 
revision, the Secretary will order the suspension of liquidation ended 
on the 21st day after the date of publication, and will instruct the 
Customs Service to release any cash deposit or bond. If the Commission 
undertakes a review under section 734(h) of the Act, the provisions of 
Sec. 353.18(h)(4) will apply.
    (iii) If the Secretary decides neither to consider the order 
violated nor to revise the agreement, the Secretary will publish in the 
Federal Register notice of the Secretary's decision under paragraph 
(b)(2) of this section, including a statement of the factual and legal 
conclusions on which the decision is based.
    (c) Additional signatories. If the Secretary decides that the 
agreement no longer meets the requirements of Sec. 353.18(b)(1)(iii) or 
that the signatory exporters no longer account for substantially all of 
the merchandise, the Secretary may revise the agreement to include 
additional signatory exporters.
    (d) Definition of ``violation.'' For the purpose of this section, 
``violation'' means noncompliance with the terms of a suspension 
agreement caused by an act or omission of a signatory exporter, except, 
at the discretion of the Secretary, an act or omission which is 
inadvertent or inconsequential.

Sec. 353.20  Final determination.

    (a) In general. (1) Not later than 75 days after the date of the 
Secretary's preliminary determination, the Secretary will make a final 
determination whether the merchandise is being sold at less than fair 
value.
    (2) The Secretary's determination will include:
    (i) The factual and legal conclusions on which the determination is 
based;
    (ii) The estimated weighted-average dumping margin, if any, for each 
person investigated; and
    (iii) If appropriate, a final finding on critical circumstances 
under Sec. 353.16.
    (3) If affirmative, the Secretary's determination will also:
    (i) Unless previously ordered by the Secretary, order the suspension 
of liquidation of all entries of the merchandise entered, or withdrawn 
from warehouse, for consumption on or after the date of publication of 
the notice of the Secretary's final determination; and
    (ii) Instruct the Customs Service to require, for each suspended 
entry of the merchandise entered, or withdrawn from warehouse, for 
consumption on or after the date of publication of the Secretary's final 
determination, a cash deposit or bond equal to the estimated weighted-
average dumping margin determined under paragraph (a) of this section.
    (4) The Secrerary will publish in the Federal Register notice of 
``Affirmative (Negative) Final Antidumping Duty Determination,'' 
including the estimated weighted-average dumping margins, if any.
    (5) The Secretary will notify all parties to the proceeding and the 
Commission.
    (b) Postponement of final determination. (1) If, not later than the 
scheduled date for the Secretary's final determination, the petitioner 
in a proceeding in which the Secretary issued a negative preliminary 
determination, or the producers or resellers of a significant proportion 
of the merchandise in a proceeding in which the Secretary issued an 
affirmative preliminary determination, request in writing a postponement 
and state the reasons for the request, the Secretary will postpone the 
final determination to not later than 135 days after the date of 
publication of the preliminary determination, unless the Secretary finds 
compelling reasons to deny the request.
    (2) If the Secretary decides to postpone the final determination 
under paragraph (b)(1) of this section, the Secretary will notify all 
parties to the

[[Page 182]]

(182proceeding and will publish in the Federal Register notice of 
``Postponement of Final Antidumping Duty Determination,'' stating the 
reason for the postponement.
    (c) Commission access to information. The Secretary will make 
available to the Commission and to employees of the Commission directly 
involved in the proceeding all information upon which the Secretary 
based the final determination and which the Commission may consider 
relevant to its injury determination.
    (d) Effect of negative final determination. An investigation 
terminates, without further comment or action, upon publication in the 
Federal Register of the Secretary's or the Commission's negative final 
determination. If the Secretary previously ordered suspension of 
liquidation, the Secretary will order the suspension ended on the date 
of publication of the notice of negative final determination and will 
instruct the Customs Service to release any cash deposit or bond.
    (e) Disclosure. Promptly after making the final determination, the 
Secretary will provide to parties to the proceeding which request 
disclosure a further explanation of the calculation methodology used in 
making the determination.

Sec. 353.21  Antidumping duty order.

    Not later than seven days after receipt of notice of the 
Commission's affirmative final determination under section 735 of the 
Act, the Secretary will publish in the Federal Register an ``Antidumping 
Duty Order'' that:
    (a) Instructs the Customs Service to assess antidumping duties on 
the merchandise, in accordance with the Secretary's instructions at the 
completion of each administrative review requested under Sec. 353.22(a) 
or, if not requested, in accordance with the Secretary's instructions 
under Sec. 353.22(e);
    (b) For each entry of the merchandise entered, or withdrawn from 
warehouse, for consumption on or after the date of publication of the 
order, instructs the Customs Service to require a cash deposit of 
estimated antidumping duties equal to the amount of the estimated 
weighted-average dumping margin stated in the Secretary's final 
determination;
    (c) Excludes from the application of the order any producer or 
reseller for which the Secretary finds that there was no weighted-
average dumping margin during the period for which the Department 
measured dumping in the investigation; and
    (d) Orders the suspension of liquidation ended for all entries of 
the merchandise entered, or withdrawn from warehouse, for consumption 
before the date of publication of the Commission's final determination, 
and instructs the Customs Service to release the cash deposit or bond on 
those entries, if in its final determination, the Commission found a 
threat of material injury or material retardation of the establishment 
of an industry, unless the Commission in its final determination also 
found that, absent the suspension of liquidation ordered under 
Sec. 353.15(a), it would have found material injury.

Sec. 353.22  Administrative review of orders and suspension agreements.

    (a) Request for Administrative Review; Withdrawal of Request for 
Review. (1) Each year during the anniversary month of the publication of 
an order (the calendar month in which the anniversary of the date of 
publication of the order or finding occurs), an interested party, as 
defined in paragraph (k)(2), (k)(3), (k)(4), (k)(5), or (k)(6) of 
Sec. 353.2, may request in writing that the Secretary conduct an 
administrative review of specified individual producers or resellers 
covered by an order, if the requesting person states why the person 
desires the Secretary to review those particular producers or resellers.
    (2) During the same month, a producer or reseller covered by an 
order may request in writing that the Secretary conduct an 
administrative review of only that person.
    (3) During the same month, an importer of the merchandise may 
request in writing that the Secretary conduct an administrative review 
of only a producer or reseller of the merchandise imported by that 
importer.
    (4) Each year during the anniversary month of the publication of a 
suspension of investigation (the calendar

[[Page 183]]

(183month in which the anniversary of the date of publication of the 
suspension of investigation occurs), an interested party, as defined in 
Sec. 353.2(k), may request in writing that the Secretary conduct an 
administrative review of all producers or resellers covered by an 
agreement on which suspension of investigation was based.
    (5) The Secretary may permit a party that requests a review under 
paragraph (a) of this section to withdraw the request not later than 90 
days after the date of publication of notice of initiation of the 
requested review. The Secretary may extend this time limit if the 
Secretary decides that it is reasonable to do so. When a request for 
review is withdrawn, the Secretary will publish in the Federal Register 
notice of ``Termination of Antidumping Duty Administrative Review'' or, 
if appropriate, ``Partial Termination of Antidumping Duty Administrative 
Review.''
    (b) Period under review. (1) Except as provided in paragraph (b)(2) 
of this section, an administrative review under paragraph (a) of this 
section normally will cover, as appropriate, entries, exports, or sales 
of the merchandise during the 12 months immediately preceding the most 
recent anniversary month.
    (2) For requests received during the first anniversary month after 
publication of an order or suspension of investigation, the review under 
paragraph (a) of this section will cover, as appropriate, entries, 
exports, or sales during the period from the date of suspension of 
liquidation under this part or suspension of investigation to the end of 
the month immediately preceding the first anniversary month.
    (c) Procedures. After receipt of a timely request under paragraph 
(a) of this section, or on the Secretary's own initiative when 
appropriate, the Secretary will:
    (1) Not later than 15 days after the anniversary month, publish in 
the Federal Register notice of ``Initiation of Antidumping Duty 
Administrative Review;''
    (2) Normally not later than 30 days after the date of publication of 
the notice of initiation, send to appropriate interested parties or a 
sample of interested parties questionnaires requesting factual 
information for the review;
    (3) Conduct, if appropriate, a verification under Sec. 353.36;
    (4) Unless the Secretary extends the time limit pursuant to section 
751(a)(3)(A) of the Act, within 245 days after the last day of the 
anniversary month, issue preliminary results of review, based on the 
available information, that include:
    (i) The factual and legal conclusions on which the preliminary 
results are based;
    (ii) The weighted-average dumping margin, if any, during the period 
of review for each person reviewed; and
    (iii) For an agreement, the Secretary's preliminary conclusions with 
respect to the status of, and compliance with, the agreement;
    (5) Publish in the Federal Register notice of ``Preliminary Results 
of Antidumping Duty Administrative Review,'' including the weighted-
average dumping margins, if any, and an invitation for argument 
consistent with Sec. 353.38, and notify all parties to the proceeding;
    (6) Promptly after issuing the preliminary results, provide to 
parties to the proceeding which request disclosure a further explanation 
of the calculation methodology used in reaching the preliminary results;
    (7) Unless the Secretary extends the time limit pursuant to section 
751(a)(3)(A) of the Act, within 120 days after the date on which the 
preliminary results are published, issue final results of review that 
include:
    (i) The factual and legal conclusions on which the final results are 
based;
    (ii) The weighted-average dumping margin, if any, during the period 
of review for each person reviewed; and
    (iii) For an agreement, the Secretary's conclusions with respect to 
the status of, and compliance with, the agreement;
    (8) Publish in the Federal Register notice of ``Final Results of 
Antidumping Duty Administrative Review,'' including the weighted-average 
dumping margins, if any, and notify all parties to the proceeding;

[[Page 184]]

(184
    (9) Promptly after issuing the final results, provide to parties to 
the proceeding which request disclosure a further explanation of the 
calculation methodology used in reaching the final results; and
    (10) Promptly after publication of the notice of final results, 
instruct the Customs Service to assess antidumping duties on the 
merchandise described in paragraph (b) of this section and to collect a 
cash deposit of estimated antidumping duties on future entries.
    (d) Possible cancellation or revision of suspension agreement. If 
during an administrative review the Secretary determines or has reason 
to believe that a signatory exporter has violated a suspension agreement 
or that the agreement no longer meets the requirements of Sec. 353.18, 
the Secretary will take appropriate action under Sec. 353.19. The 
Secretary may suspend the time limit in paragraph (c)(7) of this section 
while taking action under Sec. 353.19(b).
    (e) Automatic assessment of duty. (1) For orders, if the Secretary 
does not receive a timely request under paragraph (a)(1), (a)(2), or 
(a)(3) of this section, the Secretary, without additional notice, will 
instruct the Customs Service to assess antidumping duties on the 
merchandise described in paragraph (b) of this section at rates equal to 
the cash deposit of, or bond for, estimated antidumping duties required 
on that merchandise at the time of entry, or withdrawal from warehouse, 
for consumption and to continue to collect the cash deposits previously 
ordered.
    (2) If the Secretary receives a timely request under paragraph 
(a)(1), (a)(2), or (a)(3) of this section, the Secretary in accordance 
with paragraph (e)(1) of this section will instruct the Customs Service 
to assess antidumping duties, and to continue to collect the cash 
deposits, on the merchandise not covered by the request.
    (f) Changed circumstances review. (1) If the Secretary concludes 
from available information, including information in a request under 
this paragraph for an administrative review, that changed circumstances 
sufficient to warrant a review exist, the Secretary will:
    (i) Publish in the Federal Register notice of ``Initiation of 
Changed Circumstances Antidumping Duty Administrative Review;''
    (ii) If necessary, send to appropriate interested parties, or a 
sample of interested parties, questionnaires requesting factual 
information for the review;
    (iii) Conduct, if appropriate, a verification under Sec. 353.36;
    (iv) Issue preliminary results of review based on the available 
information that include the factual and legal conclusions on which the 
preliminary results are based and any action the Secretary proposes 
based on the preliminary results;
    (v) Publish in the Federal Register notice of ``Preliminary Results 
of Changed Circumstances Antidumping Duty Administrative Review,'' 
including an invitation for argument consistent with Sec. 353.38;
    (vi) Notify all parties to the proceeding of the preliminary 
results;
    (vii) Promptly after issuing the preliminary results, provide to 
parties to the proceeding which request disclosure a further explanation 
of the preliminary results;
    (viii) Not later than 270 days after the date of the Secretary's 
initiation of the review, issue final results of review that include the 
factual and legal conclusions on which the final results are based and 
any action, including action under paragraph (c)(9) of this section and 
Sec. 353.25(d), that the Secretary will take based on the final results;
    (ix) Publish in the Federal Register notice of ``Final Results of 
Changed Circumstances Antidumping Duty Administrative Review;''
    (x) Notify all parties to the proceeding; and
     (xi) Promptly after issuing the final results, provide to parties 
to the proceeding which request disclosure a further explanation of the 
final results.
     (2) Changed circumstances reviews may be requested at any time, 
including periods other than anniversary months.
    (3) The Secretary will not initiate an administrative review under 
paragraph (f) of this section before the end of the second annual 
anniversary month (the calendar month in which the anniversary of the 
date of publication of the order or suspension occurs) after the date of 
publication of the Secretary's

[[Page 185]]

(185affirmative preliminary determination or suspension of 
investigation, unless the Secretary finds that good cause exists.
     (4) If the Secretary concludes that expedited action is warranted, 
the Secretary may combine the notices identified in paragraphs (f)(1)(i) 
and (f)(1)(v) of this section in a notice of ``Initiation and 
Preliminary Results of Changed Circumstances Antidumping Duty 
Administrative Review.'' In that event, the notification required in 
paragraph (f)(1)(vi) of this section will be given to all interested 
parties included on the Department's service list described in 
Sec. 353.31(h).
     (g) Expedited review. (1) Not later than seven days after 
publication of an antidumping duty order, a producer or reseller may 
request in writing that the Secretary conduct an expedited 
administrative review for that producer's or reseller's shipments of the 
merchandise entered, or withdrawn from warehouse, for consumption:
     (i) On or after the date of publication of the Secretary's 
affirmative preliminary determination or, if the Secretary's preliminary 
determination was negative, the Secretary's final determination, and
     (ii) Before the date of publication of the Commission's final 
determination.
     (2) The request must be accompanied by information the Secretary 
deems necessary to calculate the dumping margin, if any.
     (3) If, based upon the information submitted with the request, the 
Secretary concludes that the dumping margin may be determined not later 
than 90 days after the date of publication of the order, the Secretary 
may conduct an expedited administrative review of the requesting 
producer or reseller.
     (4) If the Secretary decides to conduct an expedited review, the 
Secretary will:
     (i) Publish in the Federal Register  notice of ``Initiation of 
Expedited Antidumping Duty Administrative Review,'' which will include 
an invitation for argument consistent with Sec. 353.38, and notify all 
parties to the proceeding;
     (ii) Instruct the Customs Service to accept, in lieu of the cash 
deposit of estimated antidumping duties under Sec. 353.21(b), a bond for 
each entry of the merchandise entered, or withdrawn from warehouse, for 
consumption on or after the date of publication of the notice of 
initiation and through the date not later than 90 days after the date of 
publication of the order;
     (iii) Conduct a verification under Sec. 353.36;
     (iv) Provide to parties to the proceeding which request disclosure 
an explanation of the calculation methodology used for the Secretary's 
analysis;
     (v) Issue final results of review that include:
     (A) The factual and legal conclusions on which the final results 
are based; and
     (B) The weighted-average dumping margin, if any, during the period 
of review for each person reviewed;
     (vi) Publish in the Federal Register  notice of ``Final Results of 
Expedited Antidumping Duty Administrative Review,'' including the 
weighted-average dumping margins, if any, and notify all parties to the 
proceeding;
     (vii) Promptly after issuing the final results, provide to parties 
to the proceeding which request disclosure an explanation of the 
calculation methodology used for the Secretary's analysis; and
     (viii) Promptly after publication of the notice of final results, 
instruct the Customs Service to assess antidumping duties on the 
merchandise described in paragraph (g)(1) of this section and to collect 
a cash deposit of estimated antidumping duties on future entries.
    (h) Determination of antidumping duties for new shippers--(1) In 
general. If the Secretary receives a request, accompanied by the 
information described in paragraph (h)(2) of this section, from an 
exporter or producer of the merchandise establishing that:
    (i) Such exporter or producer did not export the merchandise that 
was the subject of an antidumping duty order to the United States (or, 
in the case of an order described in section 736(d) of the Act, did not 
export the merchandise for sale in the region concerned) during the 
period of investigation;
    (ii) Such exporter or producer is not affiliated with (within the 
meaning of section 771(33) of the Act) any exporter

[[Page 186]]

(186or producer who exported the merchandise to the United States (or in 
the case of an order described in section 736(d) of the Act, who 
exported the merchandise for sale in the region concerned) during that 
period; and
    (iii) The Secretary has not previously established a weighted-
average dumping margin for such exporter or producer, the Secretary will 
conduct a review to establish a weighted-average dumping margin for such 
exporter or producer.
    (2) Certification of new shipper status. A request described in 
paragraph (h)(1) of this section shall include, with appropriate 
certifications:
    (i) The date on which subject merchandise of the exporter or 
producer making the request was first entered, or withdrawn from 
warehouse, for consumption, or, if the exporter or producer cannot 
certify as to the date of first entry, the date on which the exporter or 
producer first shipped the subject merchandise for export to the United 
States;
    (ii) A list of the firms with which the exporter or producer making 
the request is affiliated; and
    (iii) A statement from the exporter or producer making the request 
and from each firm with which the exporter or producer is affiliated 
that it did not, under its current or a former name, export the 
merchandise during the period of investigation.
    (3) Time for new shipper review--(i) In general. The Secretary will 
commence a review under paragraph (h)(1) of this section in the calendar 
month beginning after the semiannual anniversary month if the request 
for the review is made during the 6-month period ending with the end of 
the semiannual anniversary month.
    (ii) Semiannual anniversary month. The semiannual anniversary month 
is:
    (A) The calendar month in which the anniversary of the date of 
publication of the order occurs; or
    (B) The calendar month which is 6 months after the calendar month in 
which the anniversary of the date of publication of the order occurs.
    (4) Posting bond or security. The Secretary will, at the time a 
review under paragraph (h)(1) of this section is initiated, direct the 
Customs Service to allow, at the option of the importer, the posting, 
until the completion of the review, of a bond or security in lieu of a 
cash deposit for each entry of the merchandise.
    (5) Period under review. A review under paragraph (h)(1) of this 
section will cover, as appropriate, entries, exports, or sales during a 
period to be determined by the Secretary.
    (6) Procedures. After receipt of a request satisfying the 
requirements of paragraphs (h)(1), (h)(2) and (h)(3) of this section, 
the Secretary will:
    (i) Not later than 20 days after the semiannual anniversary month, 
issue a notice of ``Initiation of New Shipper Antidumping Duty Review;''
    (ii) Normally not later than 30 days after the date of issuance of 
the notice of initiation, send to appropriate interested parties or a 
sample of interested parties questionnaires requesting factual 
information for the review;
    (iii) Conduct, if appropriate, a verification under Sec. 353.36;
    (iv) Issue preliminary results of review, based on the available 
information, that include:
    (A) The factual and legal conclusions on which the preliminary 
results are based; and
    (B) The weighted-average dumping margin, if any, for each person 
reviewed;
    (v) Publish in the Federal Register notice of ``Preliminary Results 
of New Shipper Antidumping Duty Administrative Review,'' including the 
weighted-average dumping margins, if any, and an invitation for argument 
consistent with Sec. 353.38, and notify all parties to the proceeding;
    (vi) Promptly after issuing the preliminary results, provide to 
parties to the proceeding which request disclosure a further explanation 
of the calculation methodology used in reaching the preliminary results;
    (vii) Issue final results of review that include:
    (A) The factual and legal conclusions on which the final results are 
based;
    (B) The weighted-average dumping margins, if any, for each person 
reviewed;
    (viii) Publish in the Federal Register notice of ``Final Results of 
New

[[Page 187]]

(187Shipper Antidumping Duty Administrative Review,'' including the 
weighted-average dumping margins, if any, and notify all parties to the 
proceeding;
    (ix) Promptly after issuing the final results, provide to parties to 
the proceeding which request disclosure a further explanation of the 
calculation methodology used in reaching the final results; and
    (x) Promptly after publication of the notice of final results, 
instruct the Customs Service to assess antidumping duties on the 
merchandise described in paragraph (h)(4) of this section, and to 
collect a cash deposit of estimated antidumpting duties on future 
entries.
    (7) Time limits--(i) In general. The Secretary will issue 
preliminary results in a review conducted under paragraph (h)(1) of this 
section within 180 days after the date on which the review is initiated, 
and final results within 90 days after the date the preliminary results 
are issued.
    (ii) Exception. If the Secretary concludes that the case is 
extraordinarily complicated, the Secretary may extend the 180-day period 
to 300 days, and may extend the 90-day period to 150 days.
    (8) Results of reviews. The results of a review under paragraph 
(h)(1) of this section shall be the basis for the assessment of 
antidumping duties on entries of merchandise covered by the 
determination and for deposits of estimated duties.
    (9) Multiple reviews. Notwithstanding any other provision of this 
section, if a review (or a request for a review) under paragraph (a), 
(f), or (g) of this section covers merchandise of an exporter or 
producer subject to a review (or to a request for a review) under 
paragraph (h)(1) of this section, the Secretary may:
    (i) Terminate, in whole or in part, a review in progress under this 
section; or
    (ii) Decline to commence, in whole or in part, a review under this 
section.

[54 FR 12769, Mar. 28, 1989; 54 FR 13294, Mar. 31, 1989, as amended at 
60 FR 25134, May 11, 1995]

Sec. 353.23   Provisional measures deposit cap.

     This section applies to the merchandise entered, or withdrawn from 
warehouse, for consumption before the date of publication of the 
Commission's notice of affirmative final determination. If the cash 
deposit or bond required under the Secretary's affirmative preliminary 
or affirmative final determination is different from the dumping margin 
the Secretary calculates under Sec. 353.22, the Secretary will instruct 
the Customs Service to disregard the difference to the extent that the 
cash deposit or bond is less than the dumping margin, and to assess 
antidumping duties equal to the dumping margin calculated under 
Sec. 353.22 if the cash deposit or bond is more than the dumping margin.

Sec. 353.24   Interest on certain overpayments and underpayments.

     (a) In general. The Secretary will instruct the Customs Service to 
pay or collect, as appropriate, interest on the difference between the 
cash deposit of estimated antidumping duties and the assessed 
antidumping duties on entries of the merchandise entered, or withdrawn 
from warehouse, for consumption on or after the date of publication of 
an antidumping duty order.
     (b) Rate. The rate or rates of interest payable or collectible 
under paragraph (a) of this section for any period of time are the rates 
established under section 6621 of the Internal Revenue Code of 1954.
     (c) Period. The Secretary will instruct the Customs Service to 
calculate interest for each entry from the date that a cash deposit is 
required to be deposited for the entry through the date of liquidation 
of the entry.

Sec. 353.25   Revocation of orders; termination of suspended 
          investigation.

    (a) Revocation or termination based on absence of dumping. (1) The 
Secretary may revoke an order or terminate a suspended investigation if 
the Secretary concludes that:
     (i) All producers and resellers covered at the time of revocation 
by the order or the suspension agreement have sold the merchandise at 
not less

[[Page 188]]

(188than foreign market value for a period of at least three consecutive 
years; and
     (ii) It is not likely that those persons will in the future sell 
the merchandise at less than foreign market value.
     (2) The Secretary may revoke an order in part if the Secretary 
concludes that:
     (i) One or more producers or resellers covered by the order have 
sold the merchandise at not less than foreign market value for a period 
of at least three consecutive years;
     (ii) It is not likely that those persons will in the future sell 
the merchandise at less than foreign market value; and
     (iii) For producers or resellers that the Secretary previously has 
determined to have sold the merchandise at less than foreign market 
value, the producers or resellers agree in writing to their immediate 
reinstatement in the order, as long as any producer or reseller is 
subject to the order, if the Secretary concludes under Sec. 353.22(f) 
that the producer or reseller, subsequent to the revocation, sold the 
merchandise at less than foreign market value.
    (b) Request for revocation or termination. During the third and 
subsequent annual anniversary months of the publication of an order or 
suspension of investigation (the calendar month in which the anniversary 
of the date of publication of the order or suspension occurs), a 
producer or reseller may request in writing that the Secretary revoke an 
order or terminate a suspended investigation under paragraph (a) of this 
section with regard to that person if the person submits with the 
request:
    (1) The person's certification that the person sold the merchandise 
at not less than foreign market value during the period described in 
Sec. 353.22(b), and that in the future the person will not sell the 
merchandise at less than foreign market value; and
    (2) If applicable, the agreement described in paragraph (a)(2)(iii) 
of this section.
    (c) Procedures. (1) After receipt of a timely request under 
paragraph (b) of this section, the Secretary will consider the request 
as including a request for an administrative review and will conduct a 
review under Sec. 353.22(c).
    (2) In addition to the requirements of Sec. 353.22(c), the Secretary 
will:
    (i) Publish with the notice of initiation, under Sec. 353.22(c)(1), 
notice of ``Request for Revocation of Order (in part)'' or, if 
appropriate, ``Request for Termination of Suspended Investigation;''
    (ii) Conduct a verification under Sec. 353.36;
    (iii) Include in the preliminary results of review, under 
Sec. 353.22(c)(4), the Secretary's decision whether there is a 
reasonable basis to believe that the requirements for revocation or 
termination are met;
    (iv) If the Secretary's preliminary decision under paragraph 
(c)(2)(iii) of this section is affirmative, publish with the notice of 
preliminary results of review, under Sec. 353.22(c)(5), notice of 
``Intent to Revoke Order (in Part)'' or, if appropriate, ``Intent to 
Terminate Suspended Investigation;''
    (v) Include in the final results of review, under Sec. 353.22(c)(7), 
the Secretary's final decision whether the requirements for revocation 
or termination are met; and
    (vi) If the Secretary's final decision under paragraph (c)(2)(v) of 
this section is affirmative, publish with the notice of final results of 
review, under Sec. 353.22(c)(8), notice of ``Revocation of Order (in 
Part)'' or, if appropriate, ``Termination of Suspended Investigation.''
    (3) If the Secretary revokes an order or revokes an order in part, 
the Secretary will order the suspension of liquidation ended for the 
merchandise covered by the revocation on the first day after the period 
under review, and will instruct the Customs Service to release any cash 
deposit or bond.
    (d) Revocation or termination based on changed circumstances. (1) 
The Secretary may revoke an order, revoke an order in part, or terminate 
a suspended investigation if the Secretary concludes that:
    (i) The order or suspended investigation no longer is of interest to 
interested parties, as defined in paragraphs (k)(3), (k)(4), (k)(5), and 
(k)(6) of Sec. 353.2; or
    (ii) Other changed circumstances sufficient to warrant revocation or 
termination exist.

[[Page 189]]

(189
    (2) If at any time the Secretary concludes from the available 
information, including an affirmative statement of no interest from the 
petitioner in the proceeding, that changed circumstances sufficient to 
warrant revocation or termination may exist, the Secretary will conduct 
an administrative review under Sec. 353.22(f).
    (3) In addition to the requirements of Sec. 353.22(f), the Secretary 
will:
    (i) Publish with the notice of initiation, under 
Sec. 353.22(f)(1)(i), notice of ``Consideration of Revocation of Order 
(in Part)'' or, if appropriate, ``Consideration of Termination of 
Suspended Investigation;''
    (ii) If the Secretary's conclusion, as described in paragraph (d)(2) 
of this section, is not based on a request, the Secretary, not later 
than the date of publication of the notice described in paragraph 
(d)(3)(i) of this section, will serve written notice of the 
consideration of revocation or termination on each interested party 
listed on the Department's service list and on any other person which 
the Secretary has reason to believe is a producer or seller in the 
United States of the like product;
    (iii) Conduct a verification, if appropriate, under Sec. 353.36;
    (iv) Include in the preliminary results of review, under 
Sec. 353.22(f)(1)(iv), the Secretary's decision whether there is a 
reasonable basis to believe that the requirements for revocation or 
termination based on changed circumstances are met;
    (v) If the Secretary's preliminary decision under paragraph 
(d)(3)(iv) of this section is affirmative, publish with the notice of 
preliminary results of review, under Sec. 353.22(f)(1)(v), notice of 
``Intent to Revoke Order (in Part)'' or, if appropriate, ``Intent to 
Terminate Suspended Investigation;''
    (vi) Include in the final results of review, under 
Sec. 353.22(f)(1)(viii), the Secretary's final decision whether the 
requirements for revocation or termination based on changed 
circumstances are met; and
    (vii) If the Secretary's final decision under paragraph (d)(3)(vi) 
of this section is affirmative, publish with the notice of final results 
of review, under Sec. 353.22(f)(1)(ix), notice of ``Revocation of Order 
(in Part)'' or, if appropriate, ``Termination of Suspended 
Investigation.''
    (4)(i) If for four consecutive annual anniversary months no 
interested party has requested an administrative review, under 
Sec. 353.22(a), of an order or suspended investigation, not later than 
the first day of the fifth consecutive annual anniversary month, the 
Secretary will publish in the Federal Register notice of ``Intent to 
Revoke Order'' or, if appropriate, ``Intent to Terminate Suspended 
Investigation.''
    (ii) Not later than the date of publication of the notice described 
in paragraph (d)(4)(i) of this section, the Secretary will serve written 
notice of the intent to revoke or terminate on each interested party 
listed on the Department's service list and on any other person which 
the Secretary has reason to believe is a producer or seller in the 
United States of the like product.
    (iii) If by the last day of the fifth annual anniversary month no 
interested party objects, or requests an administrative review under 
Sec. 353.22(a), the Secretary at that time will conclude that the 
requirements of paragraph (d)(1)(i) for revocation or termination are 
met, revoke the order or terminate the suspended investigation, and 
publish in the Federal Register the notice described in paragraph 
(d)(3)(vii) of this section.
    (5) If the Secretary under paragraph (d) of this section revokes an 
order or revokes an order in part, the Secretary will order the 
suspension of liquidation ended for the merchandise covered by the 
revocation on the effective date of the notice of revocation, and will 
instruct the Customs Service to release any cash deposit or bond.
    (e) Revocation or termination based on injury reconsideration. If 
the Commission determines in an administrative review under section 
751(b) of the Act that an industry in the United States would not be 
materially injured, or would not be threatened with material injury, or 
the establishment of an industry in the United States would not be 
materially retarded, by reason of imports of the merchandise covered by 
an antidumping duty order or suspension agreement, the Secretary will 
revoke, in whole or in part, the order or

[[Page 190]]

(190terminate the suspended investigation, and will publish in the 
Federal Register notice of ``Revocation of Order (in Part)'' or, if 
appropriate, ``Termination of Suspended Investigation.''

Sec. 353.26   Reimbursement of antidumping duties.

    (a) In general. (1) In calculating the United States price, the 
Secretary will deduct the amount of any antidumping duty which the 
producer or reseller:
    (i) Paid directly on behalf of the importer; or
    (ii) Reimbursed to the importer.
    (2) The Secretary will not deduct the amount of the antidumping duty 
paid or reimbursed if the producer or reseller granted to the importer 
before initiation of the investigation a warranty of nonapplicability of 
antidumping duties with respect to the merchandise which was:
    (i) Sold before the date of publication of the Secretary's order 
suspending liquidation; and
    (ii) Exported before the date of publication of the Secretary's 
final determination.
    Ordinarily, the Secretary will deduct for reimbursement of 
antidumping duties only once in the calculation of the United States 
price.
    (b) Certificate. The importer shall file prior to liquidation a 
certificate in the following form with the appropriate District Director 
of Customs:

    I hereby certify that I (have) (have not) entered into any agreement 
or understanding for the payment or for the refunding to me, by the 
manufacturer, producer, seller, or exporter, of all or any part of the 
antidumping duties assessed upon the following importations of ________ 
(commodity) from ________ (country): (List entry numbers) which have 
been purchased on or after ________ (date of publication of notice 
suspending liquidation in the Federal Register) or purchased before 
________ (same date) but exported on or after ________ (date of final 
determination of sales at less than fair value).

    (c) Presumption. The Secretary may presume from an importer's 
failure to file the certificate required in paragraph (b) that the 
producer or reseller paid or reimbursed the antidumping duties.

Sec. 353.27  Procedures for initiation of downstream product monitoring.

    (a) In general. A domestic producer of an article that is like a 
component part or a downstream product may file an application pursuant 
to this section requesting that the Secretary designate a downstream 
product for monitoring.
    (b) Contents of application. The application shall contain the 
following information, to the extent reasonably available to the 
applicant:
    (1) The name and address of the person requesting the monitoring and 
a description of the article it produces which is the basis for filing 
its application;
    (2) A detailed description of the downstream product in question;
    (3) A detailed description of the component product incorporated 
into such downstream product, including the value of the component part 
in relation to the value of the downstream product, and the extent to 
which the component part has been substantially transformed as a result 
of its incorporation into the downstream product;
    (4) The name of the home market country of both the downstream and 
component products and the name of any intermediate country through 
which these products are transshipped;
    (5) The name and address of all known producers of component parts 
and downstream products in the relevant countries and a detailed 
description of any relationship between such producers;
    (6) Whether the component part is already subject to monitoring to 
aid in the enforcement of a bilateral arrangement within the meaning of 
Section 804 of the Trade and Tariff Act of 1984;
    (7) A list of all antidumping or countervailing duty investigations 
suspended under Sec. 353.18 or Sec. 355.18, or antidumping or 
countervailing duty orders issued under Sec. 353.21 or Sec. 355.21 on 
merchandise related to the component part and manufactured in the same 
foreign country in which the component part is manufactured;

[[Page 191]]

(191
    (8) A list of all antidumping or countervailing duty investigations 
suspended under Sec. 353.18 or Sec. 355.18 or antidumping or 
countervailing orders issued under Sec. 353.21 or Sec. 355.21 on 
merchandise manufactured or exported by the manufacturer or exporter of 
the component part that is similar in description and use to the 
component part; and
    (9) The reasons for suspecting that the imposition of antidumping or 
countervailing duties has resulted in a diversion of exports of the 
component parts into increased production and exportation to the United 
States of such downstream product.
    (c) Determination of sufficiency of application--(1) In general. 
Within 14 days after an application is filed under paragraph (b) of this 
section, the Secretary will determine the sufficiency of the 
application. An application is considered to be filed at the time it is 
received by the Secretary. In order to determine that an application is 
sufficient, the Secretary must find:
    (i) There is a reasonable likelihood that imports of the downstream 
product into the United States will increase as an indirect result of 
any diversion with respect to the component part; and
    (ii) That--
    (A) The component part is already subject to monitoring with respect 
to the enforcement of a bilateral arrangement within the meaning of 
Section 804 of the Trade and Tariff Act of 1984, or
    (B) Merchandise related to the component part and manufactured in 
the same foreign country in which the component part is manufactured has 
been the subject of a significant number of antidumping or 
countervailing duty investigations suspended under Sec. 353.18 or 
Sec. 355.18, or antidumping or countervailing duty orders issued under 
Sec. 353.21 or Sec. 355.21, or
    (C) Merchandise manufactured or exported by the manufacturer or 
exporter of the component part that is similar in description and use to 
the component part has been the subject of at least two antidumping or 
countervailing duty investigations suspended under Sec. 353.18 or 
Sec. 355.18, or antidumping or countervailing orders issued under 
Sec. 353.21 or Sec. 355.21.
    (2) In making a determination under paragraph (c)(1)(i) of this 
section, the Secretary will consider all factors the Secretary considers 
relevant and may, if appropriate, take into account such factors as:
    (i) The value of the component part in relation to the value of the 
downstream product;
    (ii) The extent to which the component part has been substantially 
transformed as a result of its incorporation into the downstream 
product; and
    (iii) The relationship between the producers of the component part 
and producers of the downstream product.
    (d) Notice of Determination. The Secretary will publish in the 
Federal Register notice of each affirmative or negative ``monitoring'' 
determination made under paragraph (c) of this section and if the 
determination under (c)(1)(i) and under any clause of (c)(1)(ii) are 
affirmative, will transmit to the Commission a copy of the determination 
and the application. The Secretary will make available to the 
Commission, and to its employees directly involved in the monitoring, 
all information upon which the Secretary based the initiation.
    (e) Action on basis of monitoring reports. The Secretary will review 
the information in any monitoring reports submitted to the Department by 
the Commission under section 780 of the Act and will:
    (1) Consider the information in determining whether to initiate an 
investigation under Sec. 353.11 regarding any downstream product; and
    (2) Request the Commission to cease monitoring any downstream 
product if the information indicates that imports into the United States 
are not increasing and there is no reasonable likelihood of diversion 
with respect to the component part.
    (f) Definitions--(1) Downstream product means any manufactured 
product imported into the United States into which a component part is 
incorporated.
    (2) Component part means any imported article which:
    (i) During the previous five-year period, ending on the date on 
which the application is filed under paragraph (b) of this section, has 
been subject to--

[[Page 192]]

(192
    (A) An antidumping or countervailing duty order issued under 
Sec. 353.21 or Sec. 355.21 that required the deposit of estimated 
antidumping or countervailing duties, applicable to the particular 
manufacturer or exporter, at a rate of at least 15 percent ad valorem 
or,
    (B) A suspension agreement entered into under Sec. 353.18 or 
Sec. 355.18 after a preliminary determination under Sec. 353.15 or 
Sec. 355.15 was made by the Secretary which included a determination 
that the estimated net antidumping margin or subsidy rate, applicable to 
the particular manufacturer or exporter, was at least 15 percent ad 
valorem; and
    (ii) Due to its inherent characteristics, is routinely used as a 
major part, material, component, assembly, or subassembly in a 
downstream product.
    (g) Where to file; time of filing; format and number of copies. The 
requirements of Sec. 353.31(d), (e), (f), and (g) apply to this section.

[55 FR 9047, Mar. 9, 1990]

Sec. 353.28  Procedures for the correction of ministerial errors.

    (a) In general. The Secretary will disclose the calculations 
performed in connection with a final antidumping duty determination 
pursuant to Sec. 353.20, or in a final results of an administrative 
review of an antidumping duty order pursuant to Sec. 353.22, to any 
party to the proceeding making a request in accordance with this 
section. A party to the proceeding must file such a request in writing 
with the Secretary within five business days of the date of publication 
of the relevant final determination or final results of administrative 
review. A party to whom the Secretary has disclosed final calculations 
may submit comments concerning any ministerial errors in such 
calculations.
    (b) Time limits. Comments must be filed within five business days 
after the date of disclosure unless the Secretary extends the time limit 
based upon a written request for extension that is filed within five 
business days after the date of disclosure and showing cause for such 
extension. Comments shall be submitted in writing to the Secretary and 
shall be served on all interested parties on the Department's service 
list. Interested parties may file replies to any comments submitted 
under paragraph (a) of this section. Any replies must be filed with the 
Secretary within five business days after the date the relevant comments 
under paragraph (a) of this section are received by that party and shall 
be served on all interested parties on the Department's service list. 
All service of interested parties on the Department's service list 
pursuant to this paragraph shall be in accordance with Sec. 353.31(g). 
Notwithstanding the provisions of Sec. 353.34(d), the Secretary may 
permit representatives to retain proprietary information released under 
administrative protective order under Sec. 353.34 until the expiration 
of the time for filing for judicial review of the Secretary's correction 
of any ministerial errors. If the Secretary determines there are no 
ministerial errors, proprietary information will be returned in 
accordance with the provisions of Sec. 353.34(d).
    (c) Corrections. The Secretary will analyze any comments received 
and, if appropriate, correct any ministerial errors by amending the 
final antidumping determination or final results of administrative 
review. Such corrections will be published in the Federal Register. A 
correction notice does not alter the anniversary month of an order or 
suspension of investigation for purposes of requesting an administrative 
review under Sec. 353.22.
    (d) Definition of ``ministerial error.'' For purposes of this 
section, ``ministerial error'' means an error in addition, subtraction, 
or other arithmetic function, clerical error resulting from inaccurate 
copying, duplication, or the like, and any other type of unintentional 
error which the Secretary considers ministerial.

[55 FR 9048, Mar. 9, 1990]

Sec. 353.29  Scope determination.

    (a) Self-initiation. If the Secretary determines from available 
information that an inquiry is warranted to determine whether a product 
is included within the scope of an antidumping order, the Secretary will 
initiate an inquiry and notify all interested parties on the 
Department's service lists of its initiation of a scope inquiry.
    (b) By application. Any interested party, as defined in 
Sec. 353.2(k), may file an application to determine whether a

[[Page 193]]

(193particular product is within the scope of an order. The application 
shall contain the following, to the extent reasonably available to the 
interested party:
    (1) A detailed description of the product, including technical 
characteristics and uses of the product, and its current U.S. Tariff 
Classification number;
    (2) A statement of the interested party's position as to whether the 
product is within the scope of an antidumping order, including--
    (i) A summary of the reasons for this conclusion,
    (ii) Citations to any applicable statutory authority, and
    (iii) Attachment of any factual support for this position, including 
applicable portions of the Secretary's or the Commission's 
investigation.

Where all of these conditions are met, the Secretary will evaluate the 
application. If the Secretary determines that no inquiry is warranted to 
determine whether a product is included within the scope of an order, 
the Secretary will issue a final ruling as to whether the merchandise 
which is the subject of the application is included in the existing 
order. The Secretary will, by mail, notify all interested parties on the 
Department's service lists of its determination. If, however, the 
Secretary determines that a scope inquiry is warranted, the Secretary 
will, by mail, notify all interested parties on the Department's service 
lists of the initiation of a scope inquiry.
    (c) Notice. Any initiation of a scope inquiry issued pursuant to 
paragraphs (a) or (b) of this section will include:
    (1) A description of the product that is the subject of the scope 
inquiry; and
    (2) An explanation of the reasons for the Secretary's decision to 
intiate a scope inquiry; and
    (3) A schedule for submission of comments.
    (d) Procedures for scope inquiry. Except as provided under paragraph 
(d)(6) of this section, the procedures for scope inquiries will be as 
follows:
    (1) Interested parties shall file any comments not later than twenty 
days after receipt of the notification described in paragraph (c) of 
this section, unless the Secretary alters this time limit;
    (2) Not later than the time limit stated in the notification 
described in paragraph (c) of this section (ordinarily five days after 
the time limit for filing the comments described in paragraph (d)(1) of 
this section), any interested party may submit rebuttal comments;
    (3) Whenever the Secretary determines that a scope inquiry presents 
an issue of significant difficulty, the Secretary will issue a 
preliminary scope ruling, based upon the available information at the 
time, as to whether there is a reasonable basis to believe or suspect 
that the product subject to a scope inquiry is included within the 
order. The Secretary will, by mail, notify all interested parties on the 
Department's service lists of its preliminary scope ruling and provide 
an invitation for comment. Unless otherwise specified, the Secretary 
will provide all interested parties thirty days from the date of receipt 
of the notification for comment;
    (4) The Secretary may issue questionnaries or verify submissions 
received, where appropriate;
    (5) The Secretary will issue a final ruling as to whether the 
product which is the subject of the scope inquiry is included in the 
existing order, including an explanation of the factual and legal 
conclusions on which the final ruling is based. The Secretary will, by 
certified mail, return receipt requested, notify all interested parties 
on the Department's service lists of its final scope ruling;
    (6) When a Sec. 353.22 review is in progress at the time the 
Secretary provides the notification outlined in paragraph (c) of this 
section, the scope inquiry, in the Secretary's discretion, may be 
conducted in conjunction with a Sec. 353.22(c) review;
    (7) Prior to issuing a ruling in accordance with paragraph (d) (3) 
or (5) of this section or Sec. 353.22(c)(4) or Sec. 353.22(c)(8) to 
include products within the scope of an order pursuant to--
    (i) Paragraph (e) of this section, other than operations in the 
United States involving minor completion or assembly,
    (ii) Paragraph (f) of this section, or
    (iii) Paragraph (h) of this section, with respect to later-developed 
products which incorporate a significant

[[Page 194]]

(194technological advance or significant alteration of an earlier 
product, the Secretary will notify the Commission in writing of the 
proposed inclusion of such products in the order. Upon the written 
request of the Commission, the Secretary will consult with the 
Commission regarding the proposed inclusion, and any such consultation 
will be completed within 15 days after the date of such request. If the 
Commission believes, after such consultation, that a significant injury 
issue is presented by the proposed inclusion, the Commission may provide 
written advice to the Secretary as to whether the inclusion would be 
inconsistent with the affirmative determination of the Commission on 
which the order is based; and
    (8) On a quarterly basis, the Secretary will publish in the Federal 
Register a list of scope rulings completed within the last three months. 
This list will include the case name, reference number, and a brief 
description of the ruling.
    (e) Products completed or assembled in the United States.
    (1) In General. If--
    (i) A product sold in the United States is of the same class or kind 
as merchandise that is the subject of an order, and
    (ii) Such product sold in the United States is completed or 
assembled in the United States from parts or components produced in the 
foreign country with respect to which such order applies, and
    (iii) The difference between the value of such product sold in the 
United States and the value of the imported parts and components 
referred to in paragraph (e)(1)(ii) is small,

the Secretary, after taking into account any advice provided by the 
Commission under paragraph (d)(7) of this section, may include within 
the scope of such order the imported parts or components referred to in 
paragraph (e)(1)(ii) that are used in the completion or assembly of the 
merchandise in the United States at any time such order is in effect.
    (2) Factors to consider. In determining whether to include parts or 
components in an order under paragraph (e)(1) of this section, the 
Secretary will take into account such factors as:
    (i) The pattern of trade;
    (ii) Whether the manufacturer or exporter of the parts or components 
is related to the person who assembles or completes the merchandise sold 
in the United States from the parts or components produced in the 
foreign country with respect to which the order described in paragraph 
(e)(1) of this section applies; and
    (iii) Whether imports into the United States of the parts or 
components produced in such foreign country have increased after the 
issuance of such order.
    (f) Products completed or assembled in other foreign countries--(1) 
In General. If--
    (i) A product imported into the United States is of the same class 
or kind as the merchandise that is the subject of an order,
    (ii) Before importation into the United States, such imported 
product is completed or assembled in another foreign country from 
merchandise which is subject to such order, or is produced in the 
foreign country with respect to which such order applies,
    (iii) The difference between the value of such imported product and 
the value of the merchandise described in paragraph (f)(1)(ii) is small, 
and
    (iv) The Secretary determines that action is appropriate under this 
paragraph to prevent evasion of such order,
the Secretary, after taking into account any advice provided by the 
Commission under paragraph (d)(7) of this section, may include such 
imported products within the scope of such order at any time such order 
is in effect.
    (2) Factors to consider. In determining whether to include a product 
in an order under paragraph (f)(1) of this section, the Secretary will 
take into account such factors as:
    (i) The pattern of trade;
    (ii) Whether the manufacturer or exporter of the product described 
in paragraph (f)(1)(ii) is related to the person who uses the 
merchandise described in paragraph (f)(1)(ii) to assemble or complete in 
the foreign country the product that is subsequently imported into the 
United States; and
    (iii) Whether imports into the foreign country of the product 
described in

[[Page 195]]

(195paragraph (f)(1)(ii) have increased after the issuance of such 
order.
    (g) Minor alterations of merchandise--(1) In general. The class or 
kind of merchandise subject to an investigation or order will include 
articles altered in form or appearance in minor respects (including raw 
agricultural products that have undergone minor processing), whether or 
not included in the same tariff classification.
    (2) Exception. Paragraph (g)(1) of this section will not apply with 
respect to altered merchandise if the Secretary determines that it would 
be unnecessary to consider the altered merchandise within the scope of 
the investigation or order.
    (h) Later-developed products--(1) In general. For purposes of 
determining whether a product developed after an antidumping 
investigation is initiated (hereafter in this paragraph referred to as 
the ``later-developed merchandise'') is within the scope of an order, 
the Secretary will consider whether:
    (i) The later-developed product has the same general physical 
characteristics as the merchandise with respect to which the order was 
originally issued (hereafter in this paragraph referred to as the 
``earlier merchandise'');
    (ii) The expectations of the ultimate purchasers of the later-
developed product are the same as for the earlier merchandise;
    (iii) The ultimate use of the earlier merchandise and the later-
developed product are the same;
    (iv) The later-developed product is sold through the same channels 
of trade as the earlier merchandise; and
    (v) The later-developed product is advertised and displayed in a 
manner similar to the earlier merchandise.
    The Secretary will take into account any advice provided by the 
Commission under paragraph (d)(7) of this section before making a 
determination under this paragraph.
    (2) Exclusion from orders. The Secretary may not exclude later-
developed products from an order merely because the products:
    (i) Are classified under a tariff classification other than that 
identified in the petition or the Secretary's prior notices during the 
proceeding; or
    (ii) Permit the purchaser to perform additional functions, unless 
such additional functions constitute the primary use of the products and 
the cost of the additional functions constitute more than a significant 
proportion of the total cost of production of the products.
    (i) Other scope determinations. With respect to those scope 
determinations that are not covered under paragraph (e) through (h) of 
this section, in considering whether a particular product is within the 
class or kind of merchandise described in an existing order, the 
Secretary will take into account the following:
    (1) The descriptions of the merchandise contained in the petition, 
the initial investigation, and the determinations of the Secretary and 
the Commission.
    (2) When the above criteria are not dispositive, the Secretary will 
further consider:
    (i) The physical characteristics of the product;
    (ii) The expectations of the ultimate purchasers;
    (iii) The ultimate use of the product; and
    (iv) The channels of trade.
    (j) Suspension of liquidation.
    (1) When the Secretary initiates a scope inquiry pursuant to 
paragraph (c) of this section, and the subject product is already 
subject to suspension of liquidation, that suspension of liquidation 
will be continued pending a preliminary or a final scope ruling. Any 
suspension of liquidation will be at the cash deposit of estimated duty 
rate that will apply if the subject product is ruled to be included 
within the scope of the order.
    (2) If the Secretary issues a preliminary scope ruling pursuant to 
paragraph (d)(3) of this section to the effect that the subject product 
is included within the scope of the order, any suspension of liquidation 
described in paragraph (j)(1) of this section will continue. Where there 
has been no suspension of liquidation, the Secretary will instruct the 
Customs Service to suspend liquidation and require a cash deposit of 
estimated duties, at the applicable rate, for each suspended entry of 
the product entered, or withdrawn

[[Page 196]]

(196from warehouse, for consumption on or after the date of the 
preliminary scope ruling. If the Secretary issues a preliminary scope 
ruling to the effect that the subject product is not included within the 
scope of the order, the Secretary will order any suspension of 
liquidation on the subject product ended and will instruct the Customs 
Service to refund any cash deposits or release any bonds relating to 
this product.
    (3) If the Secretary issues a final scope ruling, pursuant to either 
paragraph (b) or (d) (5) of this section, to the effect that the subject 
product is included within the scope of the order, any suspension of 
liquidation pursuant to paragraph (j)(1) or (j)(2) of this section will 
continue. Where there has been no suspension of liquidation, the 
Secretary will instruct the Customs Service to suspend liquidation and 
require a cash deposit of estimated duties, at the applicable rate, for 
each entry of the product entered, or withdrawn from warehouse, for 
consumption on or after the date of the final scope ruling. If the 
Secretary's final scope ruling is to the effect that the subject product 
is not included within the scope of the order, the Secretary will order 
any suspension of liquidation on the subject product ended and will 
instruct the Customs Service to refund any cash deposits or release any 
bonds relating to this product.
    (k) Where to file; time of filing; format and number of copies. The 
requirements of Sec. 353.31 (d), (e), (f), and (g) apply to this 
section.

[55 FR 9049, Mar. 9, 1990]



Subpart C--Information and Argument

Sec. 353.31   Submission of factual information.

    (a) Time limits in general. (1) Except as provided in Sec. 353.32(b) 
and paragraphs (a)(2) and (b) of this section, submissions of factual 
information for the Secretary's consideration shall be submitted not 
later than:
    (i) For the Secretary's final determination, seven days before the 
scheduled date on which the verification is to commence;
    (ii) For the Secretary's final results of an administrative review 
under Sec. 353.22 (c) or (f), the earlier of the date of publication of 
notice of preliminary results of review or 180 days after the date of 
publication of notice of initiation of the review;
    (iii) For the Secretary's final results of an administrative review 
under Sec. 353.22(h), the earlier of the date of publication of notice 
of preliminary results of review or 120 days after the date of 
publication of notice of initiation of the review; or
    (iv) For the Secretary's final results of an expedited review under 
Sec. 353.22(g), a date specified by the Secretary.
    (2) Any interested party, as defined in paragraphs (k)(3), (k)(4), 
(k)(5), and (k)(6) of Sec. 353.2, may submit factual information to 
rebut, clarify, or correct factual information submitted by an 
interested party, as defined in paragraph (k)(1) or (k)(2) of 
Sec. 353.2, at any time prior to the deadline provided in this section 
for submission of such factual information or, if later, 10 days after 
the date such factual information is served on the interested party or, 
if appropriate, made available under administrative protective order to 
the interested party.
    (3) The Secretary will not consider in the final determination or 
the final results, or retain in the record of the proceeding, any 
factual information submitted after the applicable time limit. The 
Secretary will return such information to the submitter with written 
notice stating the reasons for return of the information.
    (b) Questionnaire responses and other submissions on request. (1) 
Notwithstanding paragraph (a) of this section, the Secretary may request 
any person to submit factual information at any time during a 
proceeding.
    (2) In the Secretary's written request to an interested party for a 
response to a questionnaire or for other factual information, the 
Secretary will specify the time limit for response. The Secretary 
normally will not consider or retain in the record of the proceeding 
unsolicited questionnaire responses, and in no event will the Secretary 
consider unsolicited questionnaire responses submitted after the date of 
publication

[[Page 197]]

(197of the Secretary's preliminary determination. The Secretary will 
return to the submitter, with written notice stating the reasons for 
return of the document, any untimely or unsolicited questionnaire 
responses rejected by the Department.
    (3) Ordinarily, the Secretary will not extend the time limit stated 
in the questionnaire or request for other factual information. Before 
the time limit expires, the recipient of the Secretary's request may 
request an extension. The request must be in writing and state the 
reasons for the request. Only the following employees of the Department 
may approve an extension: the Assistant Secretary for Import 
Administration, the Deputy Assistant Secretary for Import 
Administration, the Deputy Assistant Secretary for Investigations, the 
Deputy Assistant Secretary for Compliance, and the office or division 
director responsible for the proceeding. An extension must be approved 
in writing.
    (4) Except as provided in Sec. 353.32(b) and subject to the other 
provisions of paragraph (b) of this section, questionnaire responses in 
administrative reviews must be submitted not later than 60 days after 
the date of receipt of the questionnaire.
    (c) Time limits for allegations of sales below cost of production. 
(1) The Secretary will not consider any allegation of sales below the 
cost of production that is submitted by the petitioner or other 
interested party, as defined in paragraph (k)(3), (k)(4), (k)(5), or 
(k)(6) of Sec. 353.2, later than:
    (i) In an investigation 45 days before the scheduled date for the 
Secretary's preliminary determination, unless a relevant response is, in 
the Secretary's view, untimely or incomplete, in which case the 
Secretary will determine the time limit;
    (ii) In an administrative review under Sec. 353.22 (c) or (f), 120 
days after the date of publication of the notice of initiation of the 
review, unless a relevant response is, in the Secretary's view, untimely 
or incomplete, in which case the Secretary will determine the time 
limit;
    (iii) In an administrative review under Sec. 353.22(h), 60 days 
after the date of publication of the notice of initiation of the review, 
unless a relevant response is, in the Secretary's view, untimely or 
incomplete, in which case the Secretary will determine the time limit; 
or
    (iv) In an expedited review under Sec. 353.22(g), 10 days after the 
date of publication of the notice of initiation of the review.
    (2) Any interested party may request in writing not later than the 
time limits specified in paragraph (c)(1) of this section an extension 
of those time limits. If the Assistant Secretary for Import 
Administration concludes that an extension would facilitate the proper 
administration of the law, the Assistant Secretary may grant an 
extension of not longer than 10 days in an investigation or 30 days in 
an administrative review.
    (d) Where to file; time of filing. Address and submit documents to 
the Secretary of Commerce, Attention: Import Administration, Central 
Records Unit, Room B-099, U.S. Department of Commerce, Pennsylvania 
Avenue and 14th St., NW., Washington, DC 20230, between the hours of 
8:30 a.m. and 5:00 p.m. on business days. For all time limits in this 
part, the Secretary will consider documents received when stamped by the 
Central Records Unit with the date and time of receipt. If the time 
limit expires on a non-business day, the Secretary will accept documents 
that are filed on the next following business day.
    (e) Format and number of copies--(1) In general. Unless the 
Secretary alters the requirements of this section, submitters shall make 
all submissions in the format specified in paragraph (e) of this 
section. The Secretary may refuse to accept for the record of the 
proceeding any submission that does not conform to the requirements of 
paragraph (e) of this section.
    (2) Documents. In an investigation, submit 10 copies of any 
document, except a computer printout, and, if a person has requested 
that the Secretary treat portions of the document as proprietary 
information, submit five copies of a public version of the document, 
including any public summaries required under Sec. 353.32(b) as 
substitutes for the portions for which the person has requested 
proprietary treatment;

[[Page 198]]

(198and if administrative protective order versions are required to be 
served pursuant to Sec. 353.31(g) (1) or (2), submit one copy of the 
cover page, marked as described in paragraph (e)(2)(v), together with 
only those pages that differ from the public or proprietary versions. In 
an administrative review, scope inquiry, or downstream product 
monitoring application, submit seven copies of any document, except a 
computer printout; and if a person has requested that the Secretary 
treat portions of the document as proprietary information, submit three 
copies of a public version of the document, as described above; and 
submit one copy of any administrative protective order versions required 
to be served pursuant to Sec. 353.31(g) (1) or (2), as described above. 
In an investigation, administrative review, scope inquiry, or downstream 
product monitoring application, submit documents, if prepared for that 
segment of the proceeding, on letter-size paper, single-sided and 
double-spaced. Securely bind each copy as a single document with any 
letter of transmittal as the first page of the document. Mark the first 
page of each document in the upper right-hand corner with the following 
information in the following format:
    (i) On the first line, except for a petition, the Department case 
number;
    (ii) On the second line, the total number of pages in the document 
including cover pages, appendices, and any unnumbered pages;
    (iii) On the third line, state whether the document is for an 
investigation, scope inquiry, downstream product monitoring application, 
or an administrative review and, if the latter, the inclusive dates of 
the review;
    (iv) On the fourth and subsequent lines, state whether any portion 
of the document contains classified, privileged, or proprietary 
information and, if so, list the applicable page numbers and state 
either ``Document May be Released Under APO'' or ``Document May Not be 
Released Under APO'' (see Secs. 353.32(c) and 353.34); and
    (v) For administrative protective order versions, described in 
Sec. 353.31(g) (1) or (2), complete the marking as required in 
paragraphs (i)-(iv) above for the proprietary document, but 
conspicuously mark the first page ``APO Version Prepared for [Name of 
party entitled to receive materials]''; and
    (vi) For public versions of proprietary documents, required by 
Sec. 353.32(b), complete the marking as required in paragraphs (e)(2) 
(i)-(iv) of this section for the proprietary document, but conspicuously 
mark the first page ``Public Version.''
    (3) Computer tapes and printouts. The Secretary may require 
submission of factual information on computer tape unless the Secretary 
decides that the submitter does not maintain records in computerized 
form and cannot supply the requested information on computer tape 
without unreasonable additional burden in time and expense. In an 
investigation or administrative review, the tape shall be accompanied by 
three copies of any computer printout and three copies of the public 
version of the printout.
    (f) Translation to English. Unless the Secretary waives in writing 
this requirement for an individual document, any document submitted 
which is in a foreign language must be accompanied by an English 
translation.
    (g) Service of copies on other parties. With the exception of 
petitions, proposed suspension agreements submitted under 
Sec. 353.18(g)(1)(i), and factual information submitted under 
Sec. 353.32(a) that is not required to be served on an interested party, 
the submitter of a document shall, at the same time, serve a copy of the 
document on all interested parties on the Department's service list by 
first class mail or personal service. In addition, where proprietary 
information is involved, the submitter shall serve the following 
administrative protective order versions.
    (1) With respect to parties to the proceeding that are subject to 
administrative protective orders under Sec. 353.34, the submitter of a 
document shall include that proprietary information that the interested 
party is entitled to receive under the terms of the administrative 
protective order, as well as the party's own proprietary information, 
but no other proprietary information;
    (2) With respect to interested parties that are not subject to an 
administrative protective order, but when the submission contains that 
interested

[[Page 199]]

(199party's proprietary information, the submitter of a document shall 
serve the interested party with a version that contains just the 
interested party's own proprietary information.
    The Secretary will not accept any document that is not accompanied 
by a certificate of service listing the parties served, the type of 
document served, and, for each, indicating the date and method of 
service.
    (h) Service list. The Central Records Unit will maintain and make 
available a service list for each proceeding. Each interested party 
which asks to be on the service list shall designate a person to receive 
service of documents filed in a proceeding.
    (i) Certifications. Any interested party which submits factual 
information to the Secretary must submit with the factual information 
the certification in paragraph (i)(1) and, if the party has legal 
counsel or another representative, the certification in paragraph (i)(2) 
of this section:
    (1) For the interested party's official responsible for presentation 
of the factual information:

    I, (name and title), currently employed by (interested party), 
certify that (1) I have read the attached submission, and (2) the 
information contained in this submission is, to the best of my 
knowledge, complete and accurate.

    (2) For interested party's legal counsel or other representative:

    I, (name), of (law or other firm), counsel or representative to 
(interested party), certify that (1) I have read the attached 
submission, and (2) based on the information made available to me by 
(interested party), I have no reason to believe that this submission 
contains any material misrepresentation or omission of fact.

[53 FR 12769, Mar. 28, 1988, as amended at 55 FR 9051, Mar. 9, 1990; 57 
FR 30902, July 13, 1992; 60 FR 25135, May 11, 1995]

Sec. 353.32  Request for proprietary treatment of information.

    (a) Submission and content of request. (1) Any person who submits 
factual information to the Secretary in connection with a proceeding may 
request that the Secretary treat that information, or any specified 
part, as proprietary.
    (2) The submitter shall identify proprietary information on each 
page by placing brackets around the proprietary information and clearly 
stating at the top of each page containing such information 
``Proprietary Treatment Requested'' and the warning ``Bracketing of 
proprietary information not final for one business day after date of 
filing.'' The bracketing becomes final one business day after the date 
of filing of the document, i.e., at the same time as the nonbusiness 
proprietary version of the document is due to be filed. Until the 
bracketing becomes final, recipients of the document may not divulge any 
part of the contents of the document to anyone not subject to the 
administrative protective order issued in the investigation. After the 
bracketing becomes final, recipients may divulge the pubic version of 
the document to anyone not subject to the administrative protective 
order. If the submitter discovers it has failed to bracket correctly, 
the submitter may file a corrected version or portion of the business 
proprietary document at the same time as the nonbusiness proprietary 
version is filed. No changes to the document other than bracketing and 
deletion of business proprietary information are permitted after the 
deadline. Failure to comply with this paragraph may result in the 
striking from the record of all or a portion of a submitter's document.
    (3) The submitter shall provide a full explanation why each piece of 
factual information subject to the request is entitled to proprietary 
treatment under Sec. 353.4. The request and explanation shall be a part 
of or securely bound with the document containing the information.
    (b) Public summary. Except as provided in paragraph (b)(3) of this 
section, not later than one business day after submitting information 
for which proprietary treatment is requested, any person who requests 
proprietary treatment shall provide to the Secretary.
    (1) An adequate public summary of all proprietary information, 
incorporated in the public version of the document (generally, numeric 
data are adequately summarized if grouped or presented in terms of 
indices, or figures

[[Page 200]]

(200within 10 percent of the actual figure, and if an individual portion 
of the data is voluminous, at least one percent representative of that 
portion is individually summarized in this manner); or
    (2) A statement itemizing those portions of the proprietary 
information which cannot be summarized adequately and all arguments 
supporting that conclusion for each portion.
    (3) All requests for proprietary treatment of information contained 
in petitions submitted under Sec. 353.12 and proposed suspension 
agreements submitted under Sec. 353.18(g)(1)(i) shall be accompanied by 
a public summary and statement described in paragraphs (b)(1) and (b)(2) 
of this section.
    (c) Agreement to release. All requests for proprietary treatment 
shall include either an agreement to permit disclosure under 
administrative protective order, or a statement itemizing which portions 
of the proprietary information should not be released under 
administrative protective order and all arguments supporting that 
conclusion for each portion. The Secretary ordinarily will not provide 
the submitter further opportunity for argument on whether to grant a 
request for disclosure under administrative protective order.
    (d) Return of information as a result of nonconforming request. The 
Secretary may return to the submitter any factual information for which 
the submitter requested proprietary treatment when the request does not 
conform to the requirements of this section and in any event will not 
consider the information. If the Secretary returns the information, the 
Secretary will provide a written explanation of the reasons why it does 
not conform and will not consider it unless it is resubmitted with a new 
request which complies with the requirements of this section not later 
than two business days after receipt of the Department's explanation for 
rejection of the information.
    (e) Status during consideration of request. While considering 
whether to grant a request for proprietary treatment, the Secretary will 
not disclose or make public the information. The Secretary normally will 
decide not later than 14 days after the Secretary receives the request.
    (f) Treatment of proprietary information. Unless the Secretary 
otherwise provides, the person to whom the Secretary discloses 
information shall not disclose the information to any other person. The 
Secretary may disclose factual information which the Secretary decides 
is proprietary only to:
    (1) A representative of an interested party who requests and is 
granted an administrative protective order under Sec. 353.34;
    (2) An employee of the Department directly involved in the 
proceeding for which the information is submitted;
    (3) An employee of the Commission directly involved in the 
proceeding for which the information is submitted;
    (4) An employee of the Customs Service directly involved in 
conducting a fraud investigation relating to an antidumping duty 
proceeding on the merchandise;
    (5) Any person to whom the submitter specifically authorizes (in 
writing) disclosure; and
    (6) A charged party or counsel for the charged party under part 354 
of this title (19 CFR Part 354).
    (g) Denial of request for proprietary treatment. If the Secretary 
decides that the factual information does not warrant proprietary 
treatment in whole or in part, the Secretary will notify the submitter. 
Unless the submitter agrees that the information be considered public, 
the Secretary will return the information to the submitter with written 
notice stating the reasons for return of the information and will not 
consider it in the proceeding.

[54 FR 12769, Mar. 28, 1989; 54 FR 13294, Mar. 31, 1989, as amended at 
57 FR 30903, July 13, 1992]

Sec. 353.33  Information exempt from disclosure.

    Privileged or classified information is exempt from disclosure to 
the public or to representatives of interested parties.

Sec. 353.34  Disclosure of proprietary information under administrative 
          protective order.

    (a) In general. Upon receipt of an application (before or after 
receipt of the information requested) which describes

[[Page 201]]

(201in general terms the information requested and sets forth the 
reasons for the request, the Secretary shall require all proprietary 
information presented to, or obtained by it, during a segment of a 
proceeding (except privileged information, classified information, and 
specific information of a type for which there is a clear and compelling 
need to withhold from disclosure) to be disclosed to interested parties 
who are parties to the proceeding under a protective order described in 
this section, regardless of when the information is submitted during the 
segment of the proceeding.
    (b) Request for disclosure. (1) A representative must file a request 
for disclosure under administrative protective order not later than the 
later of:
    (i) 30 days after the date of publication in the Federal Register of 
the notice of initiation under Sec. 353.11 or Sec. 353.13, or the notice 
of initiation of administrative review under Sec. 353.22; or
    (ii) 30 days after the initiation of a scope inquiry pursuant to 
Sec. 353.29(a) or (b); or
    (iii) 10 days after the date the representative's client or employer 
becomes a party to the proceeding, but in no event later than the date 
the case briefs, under Sec. 353.38 are due.
    (2) The representative must file the request for disclosure on the 
standard form provided by the Secretary (Form ITA-367). The standard 
form will require only such particularity in the description of the 
requested information as is consistent with both the criteria the 
Secretary uses to decide whether to disclose, and with the fact that a 
request may be made for factual information not yet submitted.
    (3) The request shall obligate the representative:
    (i) Not to disclose the proprietary information to anyone other than 
the submitter and other persons authorized by an administrative 
protective order to have access to the information;
    (ii) To use the information solely for the segment of the proceeding 
in which it was submitted;
    (iii) To ensure the security of the proprietary information at all 
times; and
    (iv) To report promptly to the Secretary any apparent violation of 
the terms of the protective order.
    (4) The request shall contain an acknowledgment by the 
representative that:
    (i) A representative determined to have violated a protective order 
may be subject to any or all of the sanctions listed in part 354 of this 
title; and
    (ii) The firm of which a person determined to have violated a 
protective order is a partner, associate, or employee, and any partner, 
associate, employer, or employee of such person, may be subject to any 
or all of the sanctions listed in part 354 of this title.
    (5) The Secretary will decide whether to disclose information under 
administrative protective order:
    (i) Not later than 14 days after the date on which the information 
is submitted; or
    (ii) If--
    (A) The person who submitted the information raises objection to its 
release, or
    (B) The information is usually voluminous or complex,

not later than 30 days after the date on which the information is 
submitted.
    (6) If the Secretary decides that disclosure of information under 
administrative protective order is proper under paragraph (5), above:
    (i) With respect to proprietary information submitted to the 
Secretary on or before the date of the decision to disclose, the 
submitting party shall, within two business days of the date of 
decision, serve the party which requested such disclosure, in accordance 
with Sec. 353.31(g); and
    (ii) The submitting party shall serve all future submissions of 
proprietary information directly on the requesting party as required by 
Sec. 353.31(g).
    (c) Opportunity to withdraw proprietary information. If the 
Secretary decides to require disclosure of proprietary information under 
administrative protective order without the consent of the submitter, 
the Secretary will provide to the submitter written notice of the 
decision and the reasons therefor and will permit the submitter to 
withdraw the information from the official record within two business 
days. The Secretary will not consider

[[Page 202]]

(202withdrawn information. Furthermore, if the submitter does not 
withdraw the information but fails to serve the party requesting such 
information, in accordance with Sec. 353.34(b)(6), the Secretary will 
not consider such information.
    (d) Disposition of proprietary information disclosed under 
administrative protective order. (1) At the expiration of the time for 
filing for judicial review of a decision by the Secretary, if there is 
no filing by any party to the proceeding, or at an earlier date the 
Secretary decides appropriate, the representative must return or destroy 
all proprietary information released under this section and all other 
materials containing the proprietary information (such as notes or 
memoranda). The representative at that time must certify to the 
Secretary full compliance with the terms of the protective order and the 
return or destruction of all proprietary information.
    (2) The representative of a party to the proceeding that files for 
judicial review or intervenes in the judicial review may retain the 
proprietary information, provided that the party applies for a court 
protective order for the information not later than 15 days after the 
Secretary files the administrative record with the court. If the court 
denies the party's application for a court protective order, the 
representative must return or destroy the proprietary information and 
all other materials containing the proprietary information not later 
than 48 hours after the court's decision and certify to the Secretary as 
provided under paragraph (d)(1) of this section.
    (e) Violation of administrative protective order. The procedures for 
investigating any alleged violation of an administrative protective 
order issued under this section and for imposing sanctions for a 
violation of such order are set forth in part 354 of this title (19 CFR 
Part 354).

[53 FR 12769, Mar. 28, 1988, as amended at 55 FR 9052, Mar. 9, 1990]

Sec. 353.35  Ex parte meeting.

    The Secretary will prepare for the official record a written 
memorandum of any ex parte meeting between any person providing factual 
information in connection with a proceeding and the person to whom the 
Secretary has delegated the authority to make the decision in question 
or the person making a final recommendation to that person. The 
memorandum will include the date, time, and place of the meeting, the 
identity and affiliation of all persons present, and a public summary of 
the factual information submitted.

Sec. 353.36  Verification of information.

    (a) In general. (1) The Secretary will verify all factual 
information the Secretary relies on in:
    (i) A final determination under Sec. 353.18(i) or Sec. 353.20;
    (ii) The final results of an expedited review under Sec. 353.22(g);
    (iii) A revocation under Sec. 353.25;
    (iv) The final results of an administrative review under Sec. 353.22 
(c) or (f) if the Secretary decides that good cause for verification 
exists; and
    (v) The final results of an administrative review under 
Sec. 353.22(c) if:
    (A) An interested party, as defined in paragraph (k)(3), (k)(4), 
(k)(5), or (k)(6) of Sec. 353.2, not later than 120 days after the date 
of publication of the notice of initiation of review, submits a written 
request for verification; and
    (B) The Secretary conducted no verification under this paragraph 
during either of the two immediately preceding administrative reviews.
    (2) If the Secretary decides that, because of the large number of 
producers and resellers included in an investigation or administrative 
review, it is impractical to verify relevant factual information for 
each person, the Secretary may select and verify a sample. The Secretary 
will apply the results of the verification of the sample to all 
producers and resellers included in the investigation or review.
    (b) Notice of verification. In publishing a notice of final 
determination, revocation, or final results of administrative review, 
the Secretary will report the methods and procedures used to verify 
under this section.
    (c) Procedures for verification. In verifying under this section, 
the Secretary will notify the government of the foreign country in which 
verification takes place that employees of the Department will visit 
with producers or

[[Page 203]]

(203resellers in order to verify the accuracy and completeness of 
submitted factual information. As part of the verification, employees of 
the Department will request access to all files, records, and personnel 
of the producers, resellers, importers, or unrelated purchasers which 
the Secretary considers relevant to factual information submitted.

Sec. 353.37  Best information available.

    (a) Use of best information available. The Secretary will use the 
best information available whenever the Secretary:
    (1) Does not receive a complete, accurate, and timely response to 
the Secretary's request for factual information; or
    (2) Is unable to verify, within the time specified, the accuracy and 
completeness of the factual information submitted.
    (b) What is best information available. The best information 
available may include the factual information submitted in support of 
the petition or subsequently submitted by interested parties, as defined 
in paragraph (k)(3), (k)(4), (k)(5), or (k)(6) of Sec. 353.2. If an 
interested party refuses to provide factual information requested by the 
Secretary or otherwise impedes the proceeding, the Secretary may take 
that into account in determining what is the best information available.

Sec. 353.38   Written argument and hearings.

    (a) Written argument. The Secretary will consider in making the 
final determination under Sec. 353.18(i) or Sec. 353.20 or the final 
results under Sec. 353.22 only written arguments in case or rebuttal 
briefs filed within the time limits in this section. The Secretary will 
not consider or retain in the record of the proceeding any written 
argument, unless requested by the Secretary (and received within the 
time limit specified by the Secretary), that is submitted after the time 
limits specified in this section. At any time during the proceeding, the 
Secretary may request written argument on any issue from any interested 
party or United States government agency. The Secretary will return to 
the submitter, with written notice stating the reasons for return of the 
document, any written argument submitted after the time limits specified 
in this section or by the Secretary.
    (b) Request for hearing. Not later than 10 days after the date of 
publication of the Secretary's preliminary determination or preliminary 
results of administrative review, unless the Secretary alters this time 
limit, any interested party may request that the Secretary hold a public 
hearing on arguments to be raised in case or rebuttal briefs. To the 
extent practicable, a party requesting a hearing shall identify 
arguments to be raised at the hearing. At the hearing, an interested 
party may make an affirmative presentation only on arguments included in 
that party's case brief and may make a rebuttal presentation only on 
arguments included in that party's rebuttal brief.
    (c) Case brief. (1) Any interested party or U.S. Government agency 
may submit a ``case brief'':
    (i) Not later than 50 days after the date of publication of the 
Secretary's preliminary determination in an investigation, unless the 
Secretary alters this time limit;
    (ii) Not later than 30 days after the date of publication of the 
preliminary results of administrative review under Sec. 353.22 (c) or 
(f); or
    (iii) At any time specified by the Secretary in an expedited review 
under Sec. 353.22(g).
    (2) The case brief shall separately present in full all arguments 
that continue in the submitter's view to be relevant to the Secretary's 
final determination or final results, including any arguments presented 
before the date of publication of the preliminary determination or 
preliminary results.
    (d) Rebuttal brief. Not later than the time limit stated in the 
notice of the Secretary's preliminary determination or preliminary 
results (or otherwise specified by the Secretary for an expedited review 
under Sec. 353.22(g)), ordinarily five days in an investigation and 
seven days in an administrative review after the time limit for filing 
the case brief, any interested party or U.S. Government agency may 
submit a ``rebuttal brief.'' The rebuttal brief shall separately present 
in full all rebuttal arguments, responding only to arguments raised in 
case briefs.

[[Page 204]]

(204
    (e) Service of briefs. The submitter of either a case or rebuttal 
brief shall serve a copy of that brief on any interested party on the 
Department's service list and on any U.S. Government agency that has 
submitted in the segment of the proceeding a case or rebuttal brief. If 
the party has designated under Sec. 353.31(h) an agent in the United 
States, service shall be either by personal service on the same day the 
brief is filed with the Secretary or by overnight mail or courier on the 
next day and, if the party has designated an agent outside the United 
States, service shall be by first class airmail. The submitter shall 
attach to each brief a certificate of service listing the parties 
(including agents) served and, for each, the date and method of service.
    (f) Hearings. If an interested party submits a request under 
paragraph (b) of this section, the Secretary will hold a public hearing 
on the date stated in the notice of the Secretary's preliminary 
determination or preliminary results of administrative review (or 
otherwise specified by the Secretary in an expedited review under 
Sec. 353.22(g)), unless the Secretary alters the date. Ordinarily, the 
hearing will be held, in an investigation, two days after the scheduled 
date for submission of rebuttal briefs and, in an administrative review, 
seven days after the scheduled date for submission of rebuttal briefs.
    (1) The Secretary will place a verbatim transcript of the hearing in 
the public and official records of the proceeding and will announce at 
the hearing how interested parties may obtain copies of the transcript.
    (2) One of the following employees of the Department will chair the 
hearing: the Assistant Secretary for Import Administration; the Deputy 
Assistant Secretary for Import Administration; the Deputy Assistant 
Secretary for Investigations; the Deputy Assistant Secretary for 
Compliance; or the office or division director responsible for the 
proceeding.
    (3) The hearing is not subject to the Administrative Procedure Act. 
Witness testimony, if any, shall not be under oath or subject to cross-
examination by another interested party or witness. During the hearing, 
the chair may question any interested party or witness and may request 
interested parties to present additional written argument.
    (g) Where to file; time of filing. The requirements in 
Sec. 353.31(d) apply to this section.
    (h) Format and number of copies. The requirements in Sec. 353.31(e) 
apply to this section, except that in an administrative review submit 10 
copies of each brief and five copies of the public version, including 
the public summary required under Sec. 353.32(b).
    (i) Public comment on information. In any investigation or review 
under this part, the Secretary will specify a date on which the 
Secretary will cease collecting information and on which the Secretary 
will release to parties that have participated in the investigation or 
review all information on which the parties have not previously had an 
opportunity to comment. Any such information that is business 
proprietary information will be released to persons authorized to obtain 
such information pursuant to Sec. 353.34. Parties shall have an 
opportunity to file written comments on any information released to 
them, and the date on which such comments must be filed will be 
specified by the Secretary. The Secretary will disregard comments 
containing new factual information.

[54 FR 12769, Mar. 28, 1989, as amended at 60 FR 25136, May 11, 1995]



Subpart D--Calculation of United States Price, Fair Value, and Foreign Market Value

Sec. 353.41  Calculation of United States price.

    (a) In general. United States price means the purchase price or the 
exporter's sales price of the merchandise, as appropriate. In 
calculating the United States price, the Secretary will use sales or, in 
the absence of sales, likely sales, as defined in Sec. 353.2(t).
    (b) Purchase price. ``Purchase price'' means the price at which the 
merchandise is sold or likely to be sold prior to the date of 
importation, by a producer or reseller of the merchandise for 
exportation to the United States. The Secretary will make appropriate 
adjustments for costs and expenses under

[[Page 205]]

(205paragraph (d) of this section if they are not reflected in the sales 
price to the importer. Whenever purchase price is used and there is 
reason to believe that the sales price to the importer does not reflect 
the cost and expenses incident to bringing the merchandise from the 
country of exportation, then the Secretary will make appropriate 
adjustments for such cost and expenses under paragraph (d) of this 
section.
    (c) Exporter's sales price. ``Exporter's sales price'' means the 
price at which merchandise is sold or likely to be sold in the United 
States, before or after the time of importation, by or for the account 
of the exporter (defined in section 771(13) of the Act), as adjusted 
under paragraphs (d) and (e).
    (d) Adjustments to United States price. (1) The Secretary will 
increase the United States price by:
    (i) When not included in the price, the cost of containers, 
coverings, and other expenses incident to placing the merchandise in 
condition packed ready for shipment to the United States;
    (ii) The amount of any import duties imposed by the country of 
exportation which have been rebated, or which have not been collected, 
by reason of exportation of the merchandise;
    (iii) The amount of any taxes imposed in the country of exportation 
directly on the exported merchandise or components thereof, which have 
been rebated, or which have not been collected, by reason of the 
exportation of the merchandise, but only to the extent that such taxes 
are added to or included in the price of such or similar merchandise 
sold in the country of exportation; and
    (iv) The amount of any countervailing duty imposed on the 
merchandise to offset an export subsidy.
    (2) The Secretary will reduce the United States price by the amount, 
if included in the price, of:
    (i) Except as provided in paragraph (d)(1)(iv), any cost and 
expenses, and United States import duties incident to bringing the 
merchandise from the place of shipment in the country of exportation to 
the place of delivery in the United States; and
    (ii) Any export tax, duty, or other charge imposed by the country of 
exportation on the exportation of the merchandise, other than an export 
tax, duty, or other charge described in section 771(6)(C) of the Act.
    (e) Additional adjustments to exporter's sales price. The Secretary 
also will reduce the exporter's sales price by the amount of:
    (1) Commissions for selling in the United States the merchandise;
    (2) Expenses generally incurred by or for the account of the 
exporter in selling the merchandise, or attributable under generally 
accepted accounting principles to the merchandise; and
    (3) Any increased value resulting from a process of production or 
assembly performed on the merchandise after importation and before sale 
to a person who is not the exporter of the merchandise, which value the 
Secretary generally will determine from the cost of material, 
fabrication, and other expenses incurred in such production or assembly.

Sec. 353.42  Fair value.

    (a) Relationship to foreign market value. Fair value, used during 
the investigation, is an estimate of foreign market value. Except as 
otherwise specifically noted, a reference in this subpart to ``foreign 
market value'' applies to ``fair value,'' but a reference to ``fair 
value'' in this subpart does not necessarily apply to ``foreign market 
value.''
    (b) Sales examined. (1) The Secretary normally will examine not less 
than 60 percent of the dollar value or volume of the merchandise sold 
during a period of at least 150 days prior to and 30 days after the 
first day of the month during which the petition was filed or the 
Secretary initiated the investigation under Sec. 353.11, but the 
Secretary may examine the merchandise for any additional or alternative 
period the Secretary concludes is appropriate.
    (2) If the Secretary examines less than 85 percent of the dollar 
value or volume of the merchandise sold during the period described in 
paragraph (b)(1), the Secretary will notify the affected foreign 
government what percentage of total sales are being examined.

[[Page 206]]

(206

Sec. 353.43  Sales used in calculating foreign market value.

    (a) Sales and offers for sale. In calculating foreign market value, 
the Secretary will use sales, as defined in Sec. 353.2(t), and offers 
for sale, but the Secretary normally will consider offers only in the 
absence of sales and only if the Secretary concludes that acceptance of 
the offer can be reasonably expected.
    (b) Fictitious sales and offers. In calculating foreign market 
value, the Secretary will reject any fictitious sale or offer.
    (c) Restricted sales. When sales used to calculate foreign market 
value are restricted, the Secretary will adjust the price, as 
appropriate, to compensate for restrictions that affect the value of the 
merchandise to the purchasers.

Sec. 353.44  Sales at varying prices.

    (a) Weighted-average price or prices. If the sales which the 
Secretary may use to calculate foreign market value vary in price (after 
allowances provided for in Secs. 353.55, 353.56, 353.57, and 353.58), 
the Secretary normally will calculate foreign market value based on the 
weighted average of those prices.
    (b) Preponderant price. If not less than 80 percent of the sales 
which the Secretary may use to calculate foreign market value during the 
period under examination were made at the same price, the Secretary will 
calculate foreign market value based on the sales at that price.
    (c) Other reasonable method. If the Secretary decides that paragraph 
(b) does not apply and that paragraph (a) is inappropriate, the 
Secretary will use any other method for calculating foreign market value 
which the Secretary deems appropriate.
    (d) Sales below cost of production. For purposes of paragraph (a) or 
(b), the Secretary will not use sales disregarded under Sec. 353.51.

Sec. 353.45  Transactions between related persons.

    (a) Sales to a related person. If a producer or reseller sold such 
or similar merchandise to a person related as described in section 
771(13) of the Act, the Secretary ordinarily will calculate foreign 
market value based on that sale only if satisfied that the price is 
comparable to the price at which the producer or reseller sold such or 
similar merchandise to a person not related to the seller.
    (b) Sales through a related person. If a producer or reseller sold 
such or similar merchandise through a person related as described in 
section 771(13) of the Act, the Secretary may calculate foreign market 
value based on the sale by such related person.

Sec. 353.46  Calculation of foreign market value based on price in the 
          home market country.

    (a) In general. (1) The Secretary ordinarily will calculate the 
foreign market value of the merchandise based on the price at which such 
or similar merchandise is sold or offered for sale in the principal 
markets of the home market country, in the usual commercial quantities 
and in the ordinary course of trade for home consumption, plus, when not 
included in the price, the cost of containers, coverings, and other 
expenses incident to placing the merchandise in condition packed ready 
for shipment to the United States.
    (2) When United States price is based on purchase price, under 
Sec. 353.41(b), the Secretary will calculate foreign market value, under 
paragraph (a)(1), based on the price at the time the producer or 
reseller sells the merchandise for exportation to the United States.
    (3) When United States price is based on exporter's sales price, 
under Sec. 353.41(c), the Secretary will calculate foreign market value, 
under paragraph (a)(1), based on the price at the time the importer 
sells the merchandise in the United States to a person not related under 
section 773(e)(4) of the Act.
    (b) Ordinary course of trade. In determining the ordinary course of 
trade, the Secretary will consider the conditions and practices which, 
for a reasonable period prior to the time described in paragraph (a), 
have been normal in the trade of merchandise of the same class or kind 
in the home market country.
    (c) Transshipments. If the merchandise is not imported directly from 
the home market country but is merely transshipped through another 
country, the Secretary will not, except under

[[Page 207]]

(207Sec. 353.47, calculate foreign market value based on the price at 
which such or similar merchandise is sold in the country of 
transshipment.

Sec. 353.47  Exportation from an intermediate country.

    The Secretary will calculate the foreign market value of such or 
similar merchandise based on sales in the intermediate country rather 
than sales in the home market country if:
    (a) A reseller in an intermediate country purchases the merchandise 
from the producer;
    (b) The producer of the merchandise does not know (at the time of 
the sale to that reseller) the country to which such reseller intends to 
export the merchandise;
    (c) The merchandise enters the commerce of the intermediate country 
but is not substantially transformed in that country; and
    (d) The merchandise subsequently is exported to the United States.

Sec. 353.48  Calculation of foreign market value if sales in the home 
          market country are inadequate.

    (a) In general. Except as provided in Sec. 353.53, if the quantity 
of such or similar merchandise sold during the period being examined for 
consumption in the home market country is so small in relation to the 
quantity sold for exportation to third countries (normally, less than 
five percent of the amount sold to third countries) that it is an 
inadequate basis for the foreign market value of the merchandise, the 
Secretary will calculate the foreign market value of the merchandise 
under either Sec. 353.49 or Sec. 353.50.
    (b) Preference for third country sales. The Secretary normally will 
prefer foreign market value based on sales to a third country rather 
than on constructed value if adequate information is available and can 
be verified, if a verification is conducted, within the time required.
    (c) Definition of ``third country.'' For purposes of this section 
and of Sec. 353.49, a third country means any country other than the 
home market country or the United States.

Sec. 353.49  Calculation of foreign market value based on sales to a 
          third country.

    (a) In general. (1) If foreign market value is based on sales to a 
third country, the Secretary will calculate the foreign market value 
based on the price at which such or similar merchandise is sold or 
offered for sale to a third country, plus, when not included in the 
price, the cost of containers, coverings, and other expenses incident to 
placing the merchandise in condition packed ready for shipment to the 
United States.
    (2) When United States price is based on purchase price, under 
Sec. 353.41(b), the Secretary will calculate foreign market value, under 
paragraph (a)(1), based on the price at the time the producer or a 
reseller sells the merchandise for exportation to the United States.
    (3) When United States price is based on exporter's sales price, 
under Sec. 353.41(c), the Secretary will calculate foreign market value, 
under paragraph (a)(1), based on the price at the time the importer 
sells the merchandise in the United States to a person not related under 
section 773(e)(4) of the Act.
    (b) Selection of third country. The Secretary generally will select 
the third country based on the following criteria:
    (1) Such or similar merchandise exported to the country is more 
similar to the merchandise exported to the United States than is such or 
similar merchandise exported to other countries, and the Secretary 
decides that the volume of sales to the country is adequate;
    (2) The volume of sales to the country is the largest to any country 
other than the home market country or the United States; and
    (3) The market in the country, in terms of organization and 
development, is most like the United States market.
    (c) Selection of more than one third country. In order to find 
adequate sales under paragraph (b), the Secretary may aggregate sales to 
more than a single third country.

[[Page 208]]

(208

Sec. 353.50  Calculation of foreign market value based on constructed 
          value.

    (a) Method of calculating constructed value. If foreign market value 
is based on constructed value, the Secretary will calculate the foreign 
market value by adding:
    (1) The cost of materials used in producing such or similar 
merchandise (exclusive of any internal tax in the home market country 
applied directly to the materials or their disposition, but remitted or 
refunded upon exportation) and the cost of fabrication or other 
processing of any kind used in producing such or similar merchandise, at 
a time specified in paragraph (b) which would ordinarily permit the 
production of that particular merchandise in the ordinary course of 
business;
    (2) General expenses and profit usually reflected in sales of 
merchandise of the same class or kind as the merchandise by producers in 
the home market country, in the usual commercial quantities and in the 
ordinary course of trade, except that the amount for general expenses 
shall not be less than 10 percent of the cost under paragraph (a)(1) and 
the amount for profit shall not be less than 8 percent of the sum of the 
amount for general expenses and the cost under paragraph (a)(1); and
    (3) The cost of containers, coverings, and other expenses incident 
to placing the merchandise in condition packed ready for shipment to the 
United States.
    (b) Time for calculating constructed value. (1) When United States 
price is based on purchase price, under Sec. 353.41(b), the Secretary 
will calculate constructed value, under paragraph (a), based on the 
relevant costs and expenses at a time preceding the time the producer or 
a reseller sells the merchandise for exportation to the United States.
    (2) When United States price is based on exporter's sales price, 
under Sec. 353.41(c), the Secretary will calculate constructed value, 
under paragraph (a), based on the relevant costs and expenses at a time 
preceding the time the importer sells the merchandise in the United 
States to a person not related under section 773(e)(4) of the Act.
    (c) Transactions with related parties. In calculating constructed 
value under paragraph (a), the Secretary may disregard any direct or 
indirect transaction between persons related under section 773(e)(4) of 
the Act for any element of value required to be considered under 
paragraph (a) that does not fairly reflect the usual amount for sales in 
that market of that element. If the Secretary disregards a transaction 
and there are no other transactions available for consideration, the 
Secretary will calculate the amount based on available information as to 
what the amount would have been if the transaction had occurred between 
persons not related.

Sec. 353.51  Calculation of foreign market value if sales are made at 
          less than cost of production.

    (a) Disregarding sales at less than cost. If the Secretary has 
reasonable grounds to believe or suspect that the sales on which the 
Secretary could base the calculation of foreign market value under 
Sec. 353.46, Sec. 353.49, or Sec. 353.53 are at prices less than the 
cost of production, the Secretary, in calculating foreign market value, 
will disregard such sales if they:
    (1) Have been made over an extended period and in substantial 
quantities; and
    (2) Are not at prices which permit recovery of all costs within a 
reasonable period in the normal course of trade.
    (b) Use of constructed value if above-cost sales are inadequate. If 
the Secretary disregards sales under paragraph (a), and concludes that 
the remaining sales at not less than the cost of production are 
inadequate for calculating foreign market value, the Secretary will 
calculate foreign market value based on constructed value under 
Sec. 353.50.
    (c) Calculation of cost of production. The Secretary will calculate 
the cost of production based on the cost of materials, fabrication, and 
general expenses, but excluding profit, incurred in producing such or 
similar merchandise.

[[Page 209]]

(209

Sec. 353.52  Calculation of foreign market value of merchandise from 
          state-controlled-economy countries.

    (a) In general. If the Secretary determines that the economy of the 
home market country is state-controlled to the extent that sales or 
offers for sale of such or similar merchandise in that country or to a 
third country do not permit calculation of foreign market value under 
Sec. 353.46, Sec. 353.49, or Sec. 353.53, the Secretary will calculate 
foreign market value based on, in order of preference:
    (1) The prices, calculated in accordance with Sec. 353.46 or 
Sec. 353.49, at which such or similar merchandise produced in a non-
state-controlled-economy country is sold either:
    (i) For consumption in that country; or
    (ii) To another country, including the United States; or
    (2) The constructed value of such or similar merchandise in a non-
state-controlled-economy country, calculated in accordance with 
Sec. 353.50.
    (b) Comparability of economies. For purposes of paragraph (a), the 
Secretary will select, in order of preference, prices or costs in:
    (1) A non-state-controlled-economy country other than the United 
States at a stage of economic development that the Secretary concludes 
is comparable to that of the home market country, based on generally 
recognized criteria, including per capita gross national product and 
infrastructure development (particularly in the industry producing such 
or similar merchandise);
    (2) A non-state-controlled-economy country other than the United 
States that is not at a stage of economic development comparable to that 
of the home market country (in which case the Secretary will adjust the 
foreign market value for known differences in the costs of material and 
fabrication); or
    (3) The United States.
    (c) Use of factors of production. If such or similar merchandise is 
not produced in a non-state-controlled-economy country which the 
Secretary concludes to be comparable in terms of economic development to 
the home market country, the Secretary may calculate the foreign market 
value using constructed value based on factors of production incurred in 
the home market country in producing the merchandise, including, but not 
limited to, hours of labor required, quantities of raw materials 
employed, and amounts of energy consumed, if the Secretary obtains and 
verifies such information from the producer of the merchandise in the 
home market country. The Secretary will value the factors of production 
in a non-state-controlled-economy country which the Secretary considers 
comparable in economic development to the home market country. The 
Secretary will include in this calculation of constructed value an 
amount for general expenses and profit, as required by section 
773(e)(1)(B) of the Act, and the cost of containers, coverings, and 
other expenses, as required by section 773(e)(1)(C) of the Act.

Sec. 353.53  Calculation of foreign market value based on sales by a 
          multinational corporation.

    The Secretary will calculate the foreign market value of merchandise 
sold by certain multinational corporations described in section 773(d) 
of the Act in accordance with provisions of that section.

Sec. 353.54  Claims for adjustment to foreign market value.

    Any interested party that claims an adjustment under Secs. 353.55 
through 353.58 must establish the claim to the satisfaction of the 
Secretary.

Sec. 353.55  Differences in quantities.

    (a) In general. In comparing the United States price with foreign 
market value, the Secretary normally will use sales of comparable 
quantities of merchandise. The Secretary will make a reasonable 
allowance for any difference in quantities, to the extent that the 
Secretary is satisfied that the amount of any price differential is 
wholly or partly due to that difference in quantities. In making the 
allowance, the Secretary will consider, among other things, the practice 
of the industry in the relevant country with respect to affording 
quantity discounts to those which purchase in the ordinary course of 
trade.

[[Page 210]]

(210
    (b) Sales with quantity discount in calculating foreign market 
value. The Secretary will calculate foreign market value based on sales 
with quantity discounts if:
    (1) During the period examined or during a more representative 
period, the producer or reseller granted quantity discounts of at least 
the same magnitude on 20 percent or more of sales of such or similar 
merchandise for the relevant country; or
    (2) The producer demonstrates to the Secretary's satisfaction that 
the discounts reflect savings specifically attributable to the 
production of the different quantities.
    (c) Sales with quantity discounts in calculating weighted-average 
foreign market value. If the producer or reseller does not satisfy the 
conditions in paragraph (b), the Secretary will calculate foreign market 
value based on a weighted-average price or prices that include sales at 
a discount.
    (d) In determining whether a discount has been given, the existence 
of a published price list reflecting such a discount will not be 
controlling. A price list ordinarily will be accepted only if, in the 
line of trade and market under consideration, the producer or reseller 
demonstrates that it has adhered to its price list.

Sec. 353.56  Differences in circumstances of sale.

    (a) In general. (1) In calculating foreign market value, the 
Secretary will make a reasonable allowance for a bona fide difference in 
the circumstances of the sales compared if the Secretary is satisfied 
that the amount of any price differential is wholly or partly due to 
such difference. In general, the Secretary will limit allowances to 
those circumstances which bear a direct relationship to the sales 
compared.
    (2) Differences in circumstances of sale for which the Secretary 
will make reasonable allowances normally are those involving differences 
in commissions, credit terms, guarantees, warranties, technical 
assistance, and servicing. The Secretary also will make reasonable 
allowances for differences in selling costs (such as advertising) 
incurred by the producer or reseller but normally only to the extent 
that such costs are assumed by the producer or reseller on behalf of the 
purchaser from that producer or reseller.
    (b) Special rule. (1) Notwithstanding paragraph (a), the Secretary 
normally will make a reasonable allowance for other selling expenses if 
the Secretary makes a reasonable allowance for commissions in one of the 
markets under consideration and no commission is paid in the other 
market under consideration, but the Secretary will limit the amount of 
such allowance to the amount of the other selling expenses incurred in 
the one market or the commissions allowed in the other market, whichever 
is less.
    (2) In comparisons with exporter's sales price, the Secretary will 
make a reasonable deduction from foreign market value for all expenses, 
other than those described in paragraph (a)(1) or (a)(2), incurred in 
selling such or similar merchandise up to the amount of the expenses, 
other that those described in paragraph (a)(1) or (a)(2), incurred in 
selling the merchandise.
    (c) Reasonable allowance. In deciding what is a reasonable allowance 
for any difference in circumstances of sale, the Secretary normally will 
consider the cost of such difference to the producer or reseller but, if 
appropriate, may also consider the effect of such difference on the 
market value of the merchandise.

Sec. 353.57  Differences in physical characteristics.

     (a) In general. In calculating foreign market value, the Secretary 
will make a reasonable allowance for differences in the physical 
characteristics of merchandise compared to the extent that the Secretary 
is satisfied that the amount of any price differential is wholly or 
partly due to such difference.
     (b) Reasonable allowance. In deciding what is a reasonable 
allowance for any difference in physical characteristics, the Secretary 
normally will consider differences in the cost of production but, where 
appropriate, may also consider differences in the market value. The 
Secretary will not consider differences in cost of production when 
compared merchandise has identical physical characteristics.

[[Page 211]]

(211

Sec. 353.58  Level of trade.

     The Secretary normally will calculate foreign market value and 
United States price based on sales at the same commercial level of 
trade. If sales at the same commercial level of trade are insufficient 
in number to permit an adequate comparison, the Secretary will calculate 
foreign market value based on sales of such or similar merchandise at 
the most comparable commercial level of trade as sales of the 
merchandise and make appropriate adjustments for differences affecting 
price comparability.

Sec. 353.59  Disregarding insignificant adjustments; use of averaging 
          and sampling.

     (a) Insignificant adjustments. The Secretary may disregard 
adjustments to foreign market value which are insignificant. Ordinarily, 
the Secretary will disregard individual adjustments having an ad valorem 
effect of less than 0.33 percent, or any group of adjustments having an 
ad valorem effect of less than 1.0 percent, of the foreign market value. 
Groups of adjustments are differences in circumstances of sale, 
differences in the physical characteristics of the merchandise, and 
differences in the levels of trade.
     (b) Averaging or sampling. (1) In calculating United States price 
or foreign market value, the Secretary may use averaging or generally 
recognized sampling techniques whenever a significant volume of sales or 
number of adjustments are involved.
     (2) The Secretary will select the appropriate representative 
samples.

Sec. 353.60  Conversion of currency.

     (a) Rule for conversion. The Secretary will convert, under section 
522 of the Act (31 U.S.C. 5151(c)), a foreign currency into the 
equivalent amount of United States currency at the rates in effect on 
the dates described in Sec. 353.46, Sec. 353.49, or Sec. 353.50, as 
appropriate.
     (b) Special rules for investigations. For purposes of 
investigations, producers, resellers, and importers will be expected to 
act within a reasonable period of time to take into account price 
differences resulting from sustained changes in prevailing exchange 
rates. When the price of the merchandise is affected by temporary 
exchange rate fluctuations, the Secretary will not take into account in 
fair value comparisons any difference between United States price and 
foreign market value resulting solely from such exchange rate 
fluctuation.



Subpart E--Effective Dates

Sec. 353.71  Effective dates of amendments to the Tariff Act of 1930 
          made by the Omnibus Trade and Competitiveness Act of 1988.

    In accordance with section 1337 of the Omnibus Trade and 
Competitiveness Act of 1988 (Pub. L. No. 100-418) (``the 1988 Act''), 
the amendments to the Tariff Act of 1930 made by the 1988 Act are deemed 
effective as follows:
    (a) Except as provided in paragraphs (b), (c), (d), (e), and (f) of 
this section, all amendments made by Title I, Subtitle C, Part II of the 
1988 Act which affect authorities administered by the Secretary are 
deemed effective as of August 23, 1988.
    (b) Amendments made by sections 1312, 1315, 1316, 1318, 1325, 1326, 
1327, 1331, and 1332 of the 1988 Act which affect authorities 
administered by the Secretary are deemed to take effect immediately with 
respect to all investigations, section 736(c) reviews, or section 751 
reviews initiated after August 23, 1988.
    (c) The amendment made by section 1324 of the 1988 Act which affects 
authorities administered by the Secretary is deemed to apply only to 
investigations initiated after August 23, 1988.
    (d) The amendments made by sections 1321(a) and 1334 of the 1988 Act 
which affect authorities administered by the Secretary are deemed to be 
effective with respect to articles entered, or withdrawn from warehouse 
for consumption, on or after August 23, 1988.
    (e) The amendments made by sections 1321(b) and 1335 of the 1988 Act 
which affect authorities administered by the Secretary are deemed to be 
effective with respect to entries, and withdrawals from warehouse for 
consumption, that are liquidated on or after August 23, 1988.
    (f) The amendment made by section 1319 is deemed effective with 
respect to

[[Page 212]]

(212all section 736(c) and section 751 reviews initiated on or after 
August 23, 1988, as well as to all section 736(c) and section 751 
reviews for which there is a request for revocation pending on August 
23, 1988.
    (g) Notwithstanding the provisions of paragraphs (a) through (f) of 
this section, the Secretary may implement the amendments of the 1988 Act 
at a date later than August 23, 1988, if the Secretary determines that 
implementation in accordance with paragraphs (a) through (f) of this 
section would prevent the Department from complying with other 
requirements of law.

[55 FR 9052, Mar. 9, 1990]

       Annex I--Time Limits for Submissions Specified in This Part

------------------------------------------------------------------------
       Description of time limit \1\                   Section          
------------------------------------------------------------------------
Administrative protective order:                                        
  Request for disclosure under.............  353.34(b)                  
  Return of information released under.....  353.34(d)                  
  Withdrawal of information subject to.....  353.34(c)                  
Administrative review:                                                  
  Request for changed circumstances review.  353.22(f)                  
  Request for review of all exporters                                   
   covered by suspension agreement.........  353.22(a)                  
  Request for review of specified producers                             
   or resellers............................  353.22(a)                  
  Withdrawal of request for review.........  353.22(a)                  
Commission:                                                             
  Filing of petition with..................  353.12(c)                  
  Request for review of revised suspension                              
   agreement...............................  353.19(b)                  
  Request for review of suspension                                      
   agreement...............................  353.18(i)                  
Critical circumstances findings:                                        
  Request for..............................  353.16(a)                  
  Request for final finding only...........  353.16(d)                  
  Request for preliminary and final finding  353.16(b)                  
Exclusion from order:                                                   
  Request for..............................  353.14(a)                  
Factual information:                                                    
  Questionnaire responses in administrative                             
   reviews.................................  353.31(b)                  
  Request for disclosure of, under                                      
   protective order........................  353.34(b)                  
  Request for extension of time limits to                               
   submit..................................  353.31(b)                  
  Request for extension of time limits to                               
   submit allegations......................  353.31(c)                  
  Submission of, regarding preliminarily                                
   accepted suspension agreements..........  353.18(q)                  
  Submission of allegations regardinq sales                             
   below the cost of production............  353.31(c)                  
  Submission of standing allegations.......  353.31(c)                  
  Submissions of, in general...............  353.31(a)                  
  Withdrawal of, subject to disclosure                                  
   under protective order..................  353.34(c)                  
Final determination:                                                    
  Request to postpone......................  353.20(b)                  
Hearings:                                                               
  Requests for.............................  353.38(b)                  
Petition:                                                               
  Amendment to.............................  353.12(e)                  
  Filing with the Commission...............  353.12(c)                  
Postponement of determinations:                                         
  Request to postpone final................  353.20(b)                  
  Petitioner's request to postpone                                      
   preliminary.............................  353.15(c)                  
Preliminary determination:                                              
  Petitioner's request to postpone.........  353.15(c)                  
  Waiver of verification...................  353.15(e)                  
Proprietary information:                                                
  Request for treatment as.................  353.32(a)                  
  Resubmission of, in proper form..........  353.32(d)                  
  Submission of agreement to release under                              
   protective order........................  353.32(c)                  
  Submission of public summary.............  353.32(b)                  
Revocation of order:                                                    
  Request for..............................  353.25(b)                  
  Objections to, in the absence of requests                             
   for review..............................  353.25(d)                  
Sales below cost of production:                                         
  Allegation of............................  353.31(c)                  
Service:                                                                
  Preliminarily accepted suspension                                     
   agreements..............................  353.18(g)                  
  Case and rebuttal briefs.................  353.38(e)                  
Standing:                                                               
  Allegation of lack of....................  353.31(c)                  
Suspension of investigation:                                            
  Request for Commission review of                                      
   agreement...............................  353.18(i)                  
  Request for Commission review of revised                              
   agreement...............................  353.19(b)                  
  Request for termination of...............  353.25(b)                  
  Request to continue investigation........  353.18(i)                  
  Service of preliminarily accepted                                     
   agreement...............................  353.18(g)                  
  Submission of factual information........  353.18(g)                  
  Submission of proposed agreement.........  353.18(g)                  
  Submission of written argument...........  353.18(g)                  
Termination of suspended investigation:                                 
  Request for..............................  353.25(b)                  
  Objections to, in the absence of requests                             
   for review..............................  353.25(d)                  
Verification:                                                           
  Request for in administrative reviews....  353.36(a)                  
  Waiver of................................  353.15(e)                  
Written argument:                                                       
  Submission of case brief.................  353.38(c)                  
  Submission of rebuttal brief.............  353.38(d)                  
  Service of case and rebuttal briefs......  353.38(e)                  
  Submission of, regarding preliminarily                                
   accepted suspension agreements..........  353.18(g)                  
------------------------------------------------------------------------
\1\ Documents are filed when stamped by the Central Records Unit of the 
  Department of Commerce. See Sec.  353.31(d) for hours of operation.   



PART 354--PROCEDURES FOR IMPOSING SANCTIONS FOR VIOLATION OF AN ANTIDUMPING OR COUNTERVAILING DUTY PROTECTIVE ORDER--Table of Contents




Sec.
354.1  Scope.
354.2  Definitions.
354.3  Sanctions.
354.4  Suspension of rules.
354.5  Report of violation and investigation.
354.6  Initiation of proceedings.
354.7  Charging letter.
354.8  Interim sanctions.
354.9  Request for a hearing.
354.10  Discovery.

[[Page 213]]

          (213
354.11  Prehearing conference.
354.12  Hearing.
354.13  Proceeding without a hearing.
354.14  Initial decision.
354.15  Final decision.
354.16  Reconsideration.
354.17  Confidentiality.

    Authority: 5 U.S.C. 301, and sec. 777 of the Tariff Act of 1930, as 
amended by sec. 619 of The Trade and Tariff Act of 1984, Pub. L. 93-573, 
98 Stat. 2948, 3038, and sec. 1886(a)(13) of the Tax Reform Act of 1986, 
Pub. L. 99-514, 100 Stat. 2085.

    Source: 53 FR 47920, Nov. 28, 1988, unless otherwise noted.

Sec. 354.1  Scope.

    This part sets forth the procedures for imposing sanctions for 
violation of an administrative protective order issued under 19 CFR 
353.30 or 355.20, or successor regulations, as authorized by 19 U.S.C. 
1677f(c).

Sec. 354.2  Definitions.

    For purposes of this part:
    (a) Affected party means a party against whom sanctions have been 
proposed but who is not a charged party;
    (b) APO Sanctions Board means the Administrative Protective Order 
Sanctions Board;
    (c) Charged party means a person who is charged by the Deputy Under 
Secretary with violating a protective order;
    (d) Chief Counsel means Chief Counsel for Import Administration, or 
designee;
    (e) Date of service means the day a document is deposited in the 
mail or delivered in person;
    (f) Days means calendar days, except that a deadline which falls on 
a weekend or holiday shall be extended to the next working day;
    (g) Department means Department of Commerce;
    (h) Deputy Under Secretary means Deputy Under Secretary for 
International Trade, or designee;
    (i) Director means an Office Director under the Deputy Assistant 
Secretary for Investigations, International Trade Administration, or 
designee, who shall be responsible for conducting an investigation of an 
alleged violation of an administrative protective order if the incident 
is discovered during an administrative review, or an Office Director 
under the Deputy Assistant Secretary for Compliance, International Trade 
Administration, or designee, if the incident is discovered during any 
other time;
    (j) Lesser included sanction means a sanction of the same type but 
of more limited scope than the proposed sanction; thus a one-year bar on 
representations before the International Trade Administration is a 
lesser included sanction of a proposed seven-year bar;
    (k) Parties means the Department and the charged party or affected 
party in an action under this part;
    (l) Person means an individual, partnership, corporation, 
association, organization, or other entity;
    (m) Presiding official means the person authorized to conduct 
hearings in administrative proceedings or to rule on any motion or make 
any determination under this part, who may be an Administrative Law 
Judge, a Hearing Commissioner, or such other person who is not under the 
supervision or control of the Assistant Secretary for Import 
Administration, the Deputy Under Secretary for International Trade, the 
Chief Counsel for Import Administration, or a member of the APO 
Sanctions Board;
    (n) Proprietary information means information the disclosure of 
which the Secretary has decided is limited under 19 CFR 353.29 or 
355.19, including business or trade secrets; production costs; 
distribution costs; terms of sale; prices of individual sales, likely 
sales, or offers; names of customers, distributors, or suppliers; exact 
amounts of the gross net subsidies received and used by a person; names 
of particular persons from whom proprietary information was obtained; 
and any other business information the release of which to the public 
would cause substantial harm to the competitive position of the 
submitter;
    (o) Protective order means an administrative protective order issued 
by the Secretary under 19 CFR 353.30 or 355.20; and
    (p) Under Secretary means Under Secretary for International Trade, 
or designee.

Sec. 354.3  Sanctions.

    (a) A person determined under this part to have violated a 
protective order

[[Page 214]]

(214may be subjected to any or all of the following sanctions:
    (1) Barring such person from appearing before the International 
Trade Administration to represent another for a designated time period 
from the date of publication in the Federal Register of a notice that a 
violation has been determined to exist;
    (2) Denying the person access to proprietary information for a 
designated time period from the date of publication in the Federal 
Register of a notice that a violation has been determined to exist;
    (3) Other appropriate administrative sanctions, including striking 
from the record any information or argument submitted by, or on behalf 
of, the violating party or the party represented by the violating party; 
terminating any proceeding then in progress; or revoking any order then 
in effect; and
    (4) Requiring the person to return material previously provided by 
the Department and all other materials containing the proprietary 
information, such as briefs, notes, or charts based on any such 
information received under an administrative protective order.
    (b) (1) The firm of which a person determined to have violated a 
protective order is a partner, associate or employee; any partner, 
associate, employer, or employee of such person; and any person 
represented by such person may be barred from appearing before the 
International Trade Administration for a designated time period from the 
date of publication in the Federal Register of notice that a violation 
has been determined to exist or may be subjected to the sanctions set 
forth in paragraph (a) of this section, as appropriate.
    (2) Each person against whom sanctions are proposed under paragraph 
(b)(1) of this section is entitled to all the administrative rights set 
forth in this part separately and apart from rights provided to a person 
subject to sanctions under paragraph (a) of this section, including the 
right to a charging letter, right to representation, and right to a 
hearing, but subject to joinder or consolidation by a presiding official 
under Sec. 354.12(b).

Sec. 354.4  Suspension of rules.

    Upon request by the Deputy Under Secretary, a charged or affected 
party, or the APO Sanctions Board, a presiding official may modify or 
waive any rule in the part upon determining that no party will be unduly 
prejudiced and the ends of justice will thereby be served and upon 
notice to all parties.

Sec. 354.5  Report of violation and investigation.

    (a) An employee of the Department of Commerce who has information 
indicating that the terms of an administrative protective order have 
been violated will provide the information to the appropriate Director 
or the Chief Counsel.
    (b) Upon receiving information which indicates that a person may 
have violated the terms of an administrative protective order, from an 
employee of the Department of Commerce or any other person, the 
appropriate Director will conduct an investigation concerning whether 
there was a violation of a protective order, and who was responsible for 
the violation, if any. For purposes of this part, the Director will be 
supervised by the Deputy Under Secretary for International Trade with 
guidance from the Chief Counsel. The Director will conduct an 
investigation only if the information is received within 30 days after 
the alleged violation occurred or, as determined by the Director, could 
have been discovered through the exercise of reasonable and ordinary 
care.
    (c) The appropriate Director will provide a report of the 
investigation to the Deputy Under Secretary, after review by the Chief 
Counsel, no later than 180 days after receiving information concerning a 
violation. Upon the appropriate Director's request, and if extraordinary 
circumstances exist, the Deputy Under Secretary may grant the 
appropriate Director up to an additional 180 days to conduct the 
investigation and submit the report.
    (d) The following examples of actions that constitute violations of 
an administrative protective order shall serve as guidelines to each 
person subject to a protective order. These examples do not represent an 
exhaustive list. Evidence that one of the acts described in

[[Page 215]]

(215the guidelines has been committed, however, shall be considered by 
the Deputy Under Secretary as reasonable cause to believe a person has 
violated a protective order, within the meaning of Sec. 354.6.
    (1) Disclosure of proprietary information to any person not granted 
access to that information by protective order, including an employee of 
the Department not directly concerned with carrying out the 
investigation in connection with which the information is submitted, an 
employee of any other United States Government agency, or a member of 
Congress.
    (2) Failure to follow the detailed procedures outlined in the 
protective order for safeguarding proprietary information, including 
maintaining a log showing when each proprietary document is used, and by 
whom, and requiring all employees who obtain access to proprietary 
information (under the terms of a protective order granted their 
employer) to sign and date a copy of that protective order.
    (3) Loss of proprietary information.
    (4) Failure to return or destroy all copies of the original 
documents and all notes, memoranda, and submissions containing 
proprietary information at the close of the proceeding for which the 
data were obtained by burning or shredding of the documents or by 
erasing electronic memory, computer disk, or tape memory, as set forth 
in the administrative protective order.
    (5) Failure to delete proprietary information from the public 
version of a brief or other correspondence filed with the Department.
    (6) Disclosure of proprietary information during a public hearing.
    (7) Use of proprietary information submitted for one investigation 
or administrative review during a different investigation or 
administrative review.
    (8) Use of proprietary information submitted in one investigation or 
administrative review in a separate investigation or administrative 
review of a product from the same or different country.
    (9) Use of proprietary information submitted for a countervailing 
duty investigation or administrative review during an antidumping duty 
investigation or administrative review, or vice versa.

Sec. 354.6  Initiation of proceedings.

    If the Deputy Under Secretary concludes, after an investigation and 
report by the appropriate Director under Sec. 354.5(c) and consultation 
with the Chief Counsel, that there is reasonable cause to believe that a 
person has violated a protective order and that sanctions are 
appropriate for the violation, the Deputy Under Secretary will initiate 
a proceeding under this part by issuing a charging letter as set forth 
in Sec. 354.7. In determining whether sanctions are appropriate and, if 
so, what sanctions to impose, the Deputy Under Secretary will consider 
the nature of the violation, the resulting harm, and other relevant 
circumstances of the case. The Deputy Under Secretary will decide 
whether to initiate a proceeding no later than 60 days after receiving a 
report of the investigation.

Sec. 354.7  Charging letter.

    (a) Contents of Letter. The Deputy Under Secretary will initiate 
proceedings by issuing a charging letter to each charged party and 
affected party which includes:
    (1) A statement of the allegation that a protective order has been 
violated and the basis thereof;
    (2) A statement of the proposed sanctions;
    (3) A statement that the charged or affected party is entitled to 
review the documents or other physical evidence upon which the charge is 
based and the method for requesting access to, or copies of, such 
documents;
    (4) A statement that the charged or affected party is entitled to a 
hearing before a presiding official if requested within 30 days of the 
date of service of the charging letter and the procedure for requesting 
a hearing, including the name, address, and telephone number of the 
person to contact if there are further questions;
    (5) A statement that the charged or affected party has a right, if a 
hearing is not requested, to submit documentary evidence to the Deputy 
Under Secretary and an explanation of the method for submitting evidence 
and the date by which it must be received; and

[[Page 216]]

(216
    (6) A statement that the charged or affected party has a right to 
retain counsel at the party's own expense for purposes of 
representation.
    (b) Settlement and amending the charging letter. The Deputy Under 
Secretary may amend, supplement, or withdraw the charging letter at any 
time with the approval of a presiding official if the interests of 
justice would thereby be served. If a hearing has not been requested, 
the Deputy Under Secretary will ask the Under Secretary to appoint a 
presiding official to make this determination. If a charging letter is 
withdrawn after a request for a hearing, the presiding official will 
determine whether the withdrawal will bar the Deputy Under Secretary 
from seeking sanctions at a later date for the same alleged violation. 
If there has been no request for a hearing, or if supporting information 
has not been submitted under Sec. 354.13, the withdrawal will not bar 
future actions on the same alleged violation. The Deputy Under Secretary 
and a charged or affected party may settle a charge brought under this 
part by mutual agreement at any time after service of the charging 
letter; approval of the presiding official or the APO Sanctions Board is 
not necessary.
    (c) Service of charging letter on a resident of the United States. 
(1) Service of a charging letter on a United States resident will be 
made by:
    (i) Mailing a copy by registered or certified mail addressed to the 
charged or affected party at the party's last known address;
    (ii) Leaving a copy with the charged or affected party or with an 
officer, a managing or general agent, or any other agent authorized by 
appointment or by law to receive service for the party; or
    (iii) Leaving a copy with a person of suitable age and discretion 
who resides at the party's last known dwelling.
    (2) Service made in the manner described in paragraph (c) (ii) or 
(iii) of this section shall be evidenced by a certificate of service 
signed by the person making such service, stating the method of service 
and the identity of the person with whom the charging letter was left.
    (d) Service of charging letter on a non-resident. If applicable laws 
or intergovernmental agreements or understandings make the methods of 
service set forth in paragraph (c) of this section inappropriate or 
ineffective, service of the charging letter on a person who is not a 
resident of the United States may be made by any method that is 
permitted by the country in which the person resides and that satisfies 
the due process requirements under United States law with respect to 
notice in administrative proceedings.

Sec. 354.8  Interim sanctions.

    (a) If the Deputy Under Secretary concludes, after issuing a 
charging letter under Sec. 354.7 and before a final decision is 
rendered, that interim sanctions are necessary to protect the interests 
of the Department or others, including the protection of proprietary 
information, the Deputy Under Secretary may petition a presiding 
official to impose such sanctions.
    (b) The presiding official may impose interim sanctions against a 
person upon determining that:
    (1) There is probable cause to believe that there was a violation of 
a protective order and the Department is likely to prevail in obtaining 
sanctions under this part,
    (2) The Department or others are likely to suffer irreparable harm 
if the interim sanctions are not imposed, and
    (3) The interim sanctions are a reasonable means for protecting the 
rights of the Department or others while preserving to the greatest 
extent possible the rights of the person against whom the interim 
sanctions are proposed.
    (c) Interim sanctions which may be imposed include any sanctions 
that are necessary to protect the rights of the Department or others, 
including, but not limited to:
    (1) Denying a person further access to proprietary information.
    (2) Barring a person from representing another person before the 
International Trade Administration.
    (3) Barring a person from appearing before the International Trade 
Administration, and
    (4) Requiring the person to return material previously provided by 
the Department and all other materials

[[Page 217]]

(217containing the proprietary information, such as briefs, notes, or 
charts based on any such information received under an administrative 
protective order.
    (d) The Deputy Under Secretary will notify the person against whom 
interim sanctions are sought of the request for interim sanctions and 
provide to that person the material submitted to the presiding official 
to support the request. The notice will include a reference to the 
procedures of this section.
    (e) A person against whom interim sanctions are proposed has a right 
to oppose the request through submission of material to the presiding 
official. The presiding official has discretion to permit oral 
presentations and to allow further submissions.
    (f) The presiding official will notify the parties of the decision 
on interim sanctions and the basis therefor within five days of the 
conclusion of oral presentations or the date of final written 
submissions.
    (g) If interim sanctions have been imposed, the investigation and 
any proceedings under this part will be conducted on an expedited basis.
    (h) An order imposing interim sanctions may be revoked at any time 
by the presiding official and expires automatically upon the issuance of 
a final order.
    (i) The presiding official may reconsider imposition of interim 
sanctions on the basis of new and material evidence or other good cause 
shown. The Deputy Under Secretary or a person against whom interim 
sanctions have been imposed may appeal a decision on interim sanctions 
to the APO Sanctions Board, if such an appeal is certified by the 
presiding official as necessary to prevent undue harm to the Department, 
a person against whom interim sanctions have been imposed or others, or 
is otherwise in the interests of justice. Interim sanctions which have 
been imposed remain in effect while an appeal is pending, unless the 
presiding official determines otherwise.
    (j) The Deputy Under Secretary may request a presiding official to 
impose emergency interim sanctions to preserve the status quo. Emergency 
interim sanctions may last no longer than 48 hours, excluding weekends 
and holidays. The person against whom such emergency interim sanctions 
are proposed need not be given prior notice or an opportunity to oppose 
the request for sanctions. The presiding official may impose emergency 
interim sanctions upon determining that the Department is, or others 
are, likely to suffer irreparable harm if such sanctions are not imposed 
and that the interests of justice would thereby be served. The presiding 
official will promptly notify a person against whom emergency sanctions 
have been imposed of the sanctions and their duration.
    (k) If a hearing has not been requested, the Deputy Under Secretary 
will ask the Under Secretary to appoint a presiding official for making 
determinations under this section.

Sec. 354.9  Request for a hearing.

    (a) Any party may request a hearing by submitted a written request 
to the Under Secretary within 30 days after the date of service of the 
charging letter. However, the Deputy Under Secretary may request a 
hearing only if the interests of justice would thereby be served.
    (b) Upon timely receipt of a request for a hearing, the Under 
Secretary will appoint a presiding official to conduct the hearing and 
render an initial decision.

Sec. 354.10  Discovery.

    (a) Voluntary discovery. All parties are encouraged to engage in 
voluntary discovery procedures regarding any matter, not privileged, 
which is relevant to the subject matter of the pending proceeding.
    (b) Interrogatories and requests for admissions or production of 
documents. A party may serve on any other party interrogatories, 
requests for admissions, or requests for production of documents for 
inspection and copying, and a party concerned may then apply to the 
presiding official for such enforcement or protective order as that 
party deems warranted concerning such discovery. The party will serve a 
discovery request at least 20 days before the scheduled date of a 
hearing, if a hearing has been requested and scheduled,

[[Page 218]]

(218unless the presiding official specifies a shorter time period. 
Copies of interrogatories, requests for admissions, and requests for 
production of documents and responses thereto will be served on all 
parties. Matters of fact or law of which admission is requested will be 
deemed admitted unless, within a period designated in the request (at 
least 10 days after the date of service of the request, or within such 
further time as the presiding official may allow), the party to whom the 
request is directed serves upon the requesting party a sworn statement 
either admitting or denying specifically the matters of which admission 
is requested or setting forth in detail the reasons why the party cannot 
truthfully either admit or deny such matters.
    (c) Depositions. Upon application of a party and for good cause 
shown, the presiding official may order the taking of the testimony of 
any person who is a party, or under the control or authority of a party, 
by deposition and the production of specified documents or materials by 
the person at the deposition. The application shall state the purpose of 
the deposition and shall set forth the facts sought to be established 
through the deposition.
    (d) Enforcement. The presiding official may order a party to answer 
designated questions, to produce specified documents or items, or to 
take any other action in response to a proper discovery request. If a 
party does not comply with such an order, the presiding official may 
make any determination or enter any order in the proceedings as he or 
she deems reasonable and appropriate. The presiding official may strike 
related charges or defenses in whole or in part, or may take particular 
facts relating to the discovery request to which the party failed or 
refused to respond as being established for purposes of the proceeding 
in accordance with the contentions of the party seeking discovery. In 
issuing a discovery order, the presiding official will consider the 
necessity to protect proprietary information and will not order the 
release of information in circumstances where it is reasonable to 
conclude that such release will lead to unauthorized dissemination of 
such information.
    (e) Role of the Under Secretary. If a hearing has not been 
requested, the party seeking enforcement will ask the Under Secretary to 
appoint a presiding official to rule on motions under this section.

Sec. 354.11  Prehearing conference.

    (a)(1) If an administrative hearing has been requested, the 
presiding official will direct the parties to attend a prehearing 
conference to consider:
    (i) Simplification of issues;
    (ii) Obtaining stipulations of fact and of documents to avoid 
unnecessary proof;
    (iii) Settlement of the matter;
    (iv) Discovery; and
    (v) Such other matters as may expedite the disposition of the 
proceedings.
    (2) Any relevant and significant stipulations or admissions will be 
incorporated into the initial decision.
    (b) If a prehearing conference is impractical, the presiding 
official will direct the parties to correspond with each other or to 
confer by telephone or otherwise to achieve the purposes of such a 
conference.

Sec. 354.12  Hearing.

    (a) Scheduling of hearing. The presiding official will schedule the 
hearing at a reasonable time, date, and place, which will be in 
Washington, DC, unless the presiding official determines otherwise based 
upon good cause shown that another location would better serve the 
interests of justice. In setting the date, the presiding official will 
give due regard to the need for the parties adequately to prepare for 
the hearing and the importance of expeditiously resolving the matter.
    (b) Joinder or consolidation. The presiding official may order 
joinder or consolidation if sanctions are proposed against more than one 
party or if violations of more than one protective order are alleged if 
to do so would expedite processing of the cases and not adversely affect 
the interests of the parties.
    (c) Hearing procedures. Hearings will be conducted in a fair and 
impartial manner by the presiding official, who may limit attendance at 
any hearing

[[Page 219]]

(219or portion thereof if necessary or advisable in order to protect 
proprietary information from improper disclosure. The rules of evidence 
prevailing in courts of law shall not apply, and all evidentiary 
material the presiding official determines to be relevant and material 
to the proceeding and not unduly repetitious may be received into 
evidence and given appropriate weight. The presiding official may make 
such orders and determinations regarding the admissibility of evidence, 
conduct of examination and cross-examination, and similar matters as are 
necessary or appropriate to ensure orderliness in the proceedings. The 
presiding official will ensure that a record of the hearing be taken by 
reporter or by electronic recording, and will order such part of the 
record to be sealed as is necessary to protect proprietary information.
    (d) Rights of parties. At a hearing each party shall have the right 
to:
    (1) Introduce and examine witnesses and submit physical evidence,
    (2) Confront and cross-examine adverse witnesses,
    (3) Present oral argument, and
    (4) Receive a transcript or recording of the proceedings, upon 
request, subject to the presiding official's orders regarding sealing 
the record.
    (e) Representation. Each charged or affected party has a right to 
represent himself or herself or to retain private counsel for that 
purpose. The Chief Counsel will represent the Department, unless the 
General Counsel determines otherwise. The presiding official may 
disallow a representative if such representation constitutes a conflict 
of interest or is otherwise not in the interests of justice and may 
debar a representative for contumacious conduct relating to the 
proceedings.
    (f) Ex parte communications. The parties and their representatives 
may not make any ex parte communications to the presiding official 
concerning the merits of the allegations or any matters at issue, except 
as provided in Sec. 354.8 regarding emergency interim sanctions.

Sec. 354.13  Proceeding without a hearing.

    If no party has requested a hearing, the Deputy Under Secretary, 
within 40 days after the date of service of a charging letter, will 
submit for inclusion into the record and provide each charged or 
affected party information supporting the allegations in the charging 
letter. Each charged or affected party has the right to file a written 
response to the information and supporting documentation within 30 days 
after the date of service of the information provided by the Deputy 
Under Secretary unless the Deputy Under Secretary alters the time period 
for good cause. The Deputy Under Secretary may allow the parties to 
submit further information and argument.

Sec. 354.14  Initial decision.

    (a) Initial decision. The presiding official, if a hearing was 
requested, or the Deputy Under Secretary will submit an initial decision 
to the APO Sanctions Board, providing copies to the parties. The 
presiding official or Deputy Under Secretary will ordinarily issue the 
decision within 20 days of the conclusion of the hearing, if one was 
held, or within 15 days of the date of service of final written 
submissions. The initial decision will be based solely on evidence 
received into the record, and the pleadings of the parties.
    (b) Findings and conclusions. The initial decision will state 
findings and conclusions as to whether a person has violated a 
protective order; the basis for those findings and conclusions; and 
whether the sanctions proposed in the charging letter, or lesser 
included sanctions, should be imposed against the charged or affected 
party. The presiding official or Deputy Under Secretary may impose 
sanctions only upon determining that the preponderance of the evidence 
supports a finding of violation of a protective order and that the 
sanctions are warranted against the charged or affected party. In 
determining whether sanctions are appropriate and, if so, what sanctions 
to impose, the presiding official or the Deputy Under Secretary will 
consider the nature of the violation, the resulting harm, and other 
relevant circumstances of the case.
    (c) Finality of decision. If the APO Sanctions Board has not issued 
a decision on the matter within 60 days after

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(220issuance of the initial decision, the initial decision becomes the 
final decision of the Department.

Sec. 354.15  Final decision.

    (a) APO Sanctions Board. Upon request of a party, the initial 
decision will be reviewed by the members of the APO Sanctions Board. The 
Board consists of the Under Secretary for International Trade, who shall 
serve as Chairperson, the Under Secretary for Economic Affairs, and the 
General Counsel.
    (b) Comments on initial decision. Within 30 days after issuance of 
the initial decision, a party may submit written comments to the APO 
Sanctions Board on the initial decision, which the Board will consider 
when reviewing the initial decision. The parties have no right to an 
oral presentation, although the Board may allow oral argument in its 
discretion.
    (c) Final decision by the APO Sanctions Board. Within 60 days but 
not sooner than 30 days after issuance of an initial decision, the APO 
Sanctions Board may issue a final decision which adopts the initial 
decision in its entirety; differs in whole or in part from the initial 
decision, including the imposition of lesser included sanctions; or 
remands the matter to the presiding official or Deputy Under Secretary 
for further consideration. The only sanctions that the Board can impose 
are those sanctions proposed in the charging letter or lesser included 
sanctions.
    (d) Contents of final decision. If the final decision of the APO 
Sanctions Board does not remand the matter and differs from the initial 
decision, it will state findings and conclusions which differ from the 
initial decision, if any, the basis for those findings and conclusions, 
and the sanctions which are to be imposed, to the extent they differ 
from the sanctions in the initial decision.
    (e) Public notice of sanctions. If the final decision is that there 
has been a violation of a protective order and that sanctions are to be 
imposed, notice of the Department's decision will be published in the 
Federal Register. Such publication will be no sooner than 30 days after 
issuance of a final decision or after a motion to reconsider has been 
denied, if such a motion was filed. The Deputy Under Secretary will also 
provide such information to the ethics panel or other disciplinary body 
of the appropriate bar associations or other professional associations 
whenever the Deputy Under Secretary subjects a charged or affected party 
to a sanction under paragraph (a)(1) of Sec. 354.3 and to any Federal 
agency likely to have an interest in the matter and will cooperate in 
any disciplinary actions by any association or agency.

Sec. 354.16  Reconsideration.

    Any party may file a motion for reconsideration with the APO 
Sanctions Board. The party must state with particularity the grounds for 
the motion, including any facts or points of law which the party claims 
the APO Sanctions Board has overlooked or misapplied. The party may file 
the motion within 30 days of the issuance of the final decision or the 
adoption of the initial decision as the final decision, except that if 
the motion is based on the discovery of new and material evidence which 
was not known, and could not reasonably have been discovered through due 
diligence prior to the close of the record, the party shall file the 
motion within 15 days of the discovery of the new and material evidence. 
The party shall provide a copy of the motion to all other parties. 
Opposing parties may file a response within 30 days of the date of 
service of the motion. The response shall be considered as part of the 
record. The parties have no right to an oral presentation on a motion 
for reconsideration, but the Board may permit oral argument at its 
discretion. If the motion to reconsider is granted, the Board will 
review the record and affirm, modify, or reverse the original decision 
or remand the matter for further consideration to a presiding official 
or the Deputy Under Secretary, as warranted.

Sec. 354.17  Confidentiality.

    (a) All proceedings involving allegations of a violation of a 
protective order shall be kept confidential until such time as the 
Department makes a final decision under these regulations, no longer 
subject to reconsideration, imposing a sanction.

[[Page 221]]

(221
    (b) The charged party or counsel for the charged party will be 
granted access to proprietary information in these proceedings, as 
necessary, under administrative protective order, consistent with the 
provisions of 19 CFR 353.30 and Sec. 355.20, or their successor 
regulations.



PART 355--COUNTERVAILING DUTIES--Table of Contents




                    Subpart A--Scope and Definitions

Sec.
355.1  Scope.
355.2  Definitions.
355.3  Record of proceedings.
355.4  Public, proprietary, privileged, and classified information.
355.5  Library of foreign subsidy practices and countervailing measures.
355.6  Trade and Tariff Act of 1984--effective date.
355.7  De minimis net subsidies disregarded.

                Subpart B--Countervailing Duty Procedures

355.11  Self-initiation.
355.12  Petition requirements.
355.13  Determination of sufficiency of petition.
355.14  Request for exclusion from countervailing duty order.
355.15  Preliminary determination.
355.16  Critical circumstances findings.
355.17  Termination of investigation.
355.18  Suspension of investigation.
355.19  Violation of agreement.
355.20  Final determination.
355.21  Countervailing duty order.
355.22  Administrative review of orders and suspension agreements.
355.23  Provisional measures deposit cap.
355.24  Interest on certain overpayments and underpayments.
355.25  Revocation of orders; termination of suspended investigation.
355.27  Procedures for initiation of downstream product monitoring.
355.28  Procedures for the correction of ministerial errors.
355.29  Scope determination.

                   Subpart C--Information and Argument

355.31  Submission of factual information.
355.32  Request for proprietary treatment of information.
355.33  Information exempt from disclosure.
355.34  Disclosure of proprietary information under administrative 
          protective order.
355.35  Ex parte meeting.
355.36  Verification of information.
355.37  Best information available.
355.38  Written argument and hearings.
355.39  Subsidy practice discovered during investigation or review.
355.40  Likelihood of continued subsidization; revocation under section 
          753 of the Act.

             Subpart D--Quota Cheese Subsidy Determinations

355.41  Definition of subsidy.
355.42  Annual list and quarterly update.
355.43  Determination upon request.
355.44  Complaint of price-undercutting by subsidized imports.
355.45  Access to information.

                       Subpart E--Effective Dates

355.51  Effective dates of amendments to the Tariff Act of 1930 made by 
          the Omnibus Trade and Competitiveness Act of 1988.

Annex I--List of Countries Under the Agreement
Annex II--Time Limits for Submissions Specified in This Part

    Authority: 5 U.S.C. 301 and 19 U.S.C. 1671 et seq.

    Source: 53 FR 52344, Dec. 27, 1988, unless otherwise noted.



Subpart A--Scope and Definitions

Sec. 355.1  Scope.

    (a) This part sets forth procedures and rules applicable to 
proceedings under Title VII of the Tariff Act of 1930, as amended (19 
U.S.C. 1671 et seq.) (``the Act''), relating to the imposition of 
countervailing duties, as amended by Title I of the Trade Agreements Act 
of 1979, Pub. L. 96-39, 93 Stat. 150, section 221 and Title VI of the 
Trade and Tariff Act of 1984, Pub. L. 98-573, 98 Stat. 294, Title I, 
subtitle C, part II of the Omnibus Trade and Competitiveness Act of 
1988, Pub. L. 100-418, 102 Stat. 1184, and Title II of the Uruguay Round 
Agreements Act, Pub. L. 103-465; 108 Stat, 4809 (Dec. 8, 1994) and under 
section 702 of the Trade Agreements Act of 1979 (19 U.S.C. 1202 note) 
(``Trade Agreements Act''), relating to subsidies on quota cheese. In 
the event of a conflict between the provisions of this part and the 
provisions of the Act, the Act shall be controlling.
    (b) The following sections reflect amendments to the Act made by the 
Uruguay Round Agreements Act: Secs. 355.1, 355.12(b)(2), 355.13(a), 
355.15(a)(1), 355.15(a)(2)(ii), 355.15(a)(4),

[[Page 222]]

(222355.15(b), 355.15(c), 355.20(a)(2)(ii), 355.20(a)(4), 355.20(d), 
355.20(e), 355.22(a), 355.22(c), 355.22(d), 355.22(f), 355.22(i)(5)(ii), 
355.22(j), 355.31(a)(1), 355.31(c), 355.38(i), 355.40. These sections 
shall be applicable only to proceedings that have been self-initiated by 
the Secretary after, or initiated pursuant to petitions or requests 
filed after, January 1, 1995.

[60 FR 25136, May 11, 1995]

Sec. 355.2  Definitions.

    (a) Act. Act means the Tariff Act of 1930, as amended.
    (b) Agreement. Agreement means the Agreement on Interpretation and 
Application of Articles VI, XVI, and XXIII of the General Agreement on 
Tariffs and Trade, that is, the Subsidies Code, and any amendments 
accepted by the United States.
    (c) Commission. Commission means the United States International 
Trade Commission.
    (d) Country. Country means a foreign country or a political 
subdivision, dependent territory, or possession of a foreign country, 
and may include an association of two or more foreign countries, 
political subdivisions, dependent territories, or possessions of foreign 
countries in a customs union outside the United States.
    (e) Customs Service. Customs Service means the United States Customs 
Service of the United States Department of the Treasury.
    (f) Department. Department means the United States Department of 
Commerce.
    (g) Factual information. Factual information means:
    (1) Initial and supplemental questionnaire responses;
    (2) Data or statements of facts in support of allegations;
    (3) Other data or statements of facts; and
    (4) Documentary evidence.
    (h) Industry. ``Industry'' means the producers in the United States 
collectively of the like product, except those producers in the United 
States that the Secretary excludes under section 771(4)(B) of the Act on 
the grounds that they are also importers (or are related to importers, 
producers, or exporters) of the merchandise. Under section 771(4)(C) of 
the Act, an industry may mean producers in the United States, as defined 
above in this paragraph, in a particular market in the United States if 
such producers sell all or almost all of their production of the like 
product in that market and if the demand for the like product in that 
market is not supplied to any substantial degree by producers of the 
like product located elsewhere in the United States.
    (i) Interested party. ``Interested party'' means:
    (1) A producer, exporter, or United States importer of the 
merchandise, or a trade or business association a majority of the 
members of which are importers of the merchandise;
    (2) The government of the country in which the merchandise is 
produced (the affected country);
    (3) A producer in the United States of the like product or seller 
(other than a retailer) in the United States of the like product 
produced in the United States;
    (4) A certified or recognized union or group of workers which is 
representative of the industry or of sellers (other than retailers) in 
the United States of the like product produced in the United States;
    (5) A trade or business association a majority of the members of 
which are producers in the United States of the like product or sellers 
(other than retailers) in the United States of the like product produced 
in the United States; or
    (6) An association a majority of the members of which are interested 
parties, as defined in paragraph (i)(3), (i)(4), or (i)(5) of this 
section.
    (j) Investigation. An ``investigation'' begins on the date of 
publication of notice of initiation of investigation and ends on the 
date of publication of the earliest of (1) notice of termination of 
investigation, (2) notice of rescission of investigation, (3) notice of 
a negative determination that has the effect of terminating the 
proceeding, or (4) an order.
    (k) The merchandise. ``The merchandise'' means the class or kind of 
merchandise imported or sold, or likely to be sold, for importation into 
the United States, that is the subject of the proceeding.

[[Page 223]]

(223
    (l) Party to the proceeding. ``Party to the proceeding'' means any 
interested party, within the meaning of paragraph (i) of this section, 
which actively participates, through written submissions of factual 
information or written argument, in a particular decision by the 
Secretary subject to judicial review. Participation in a prior 
reviewable decision will not confer on any interested party party to the 
proceeding status in a subsequent decision by the Secretary subject to 
judicial review.
    (m) Person. Person includes any interested party as well as any 
other individual, enterprise, or entity, as appropriate.
    (n) Proceeding. A proceeding begins on the date of the filing of a 
petition, publication of notice of initiation under Sec. 355.11, or 
publication of notice of initiation under Sec. 355.22(i) if the review 
is of the merchandise subject to an understanding or other kind of 
agreement accepted Sec. 355.17(b), and ends on the date of publication 
of the earliest of notice of (1) dismissal of petition, (2) rescission 
of initiation, (3) termination of investigation, (4) a negative 
determination that has the effect of terminating the proceeding, (5) 
revocation of an order, or (6) termination of a suspended investigation.
    (o) Producer; production. ``Producer'' means a manufacturer or 
producer. ``Production'' means manufacture or production.
    (p) Sale; likely sale. A ``sale'' includes a contract to sell and a 
lease that is equivalent to a sale. A ``likely sale'' means a person's 
irrevocable offer to sell.
    (q) Secretary. ``Secretary'' means the Secretary of Commerce or a 
designee. The Secretary has delegated to the Assistant Secretary for 
Import Administration the authority to make final determinations under 
Secs. 355.18(i), 355.20, and 355.22(i). The Deputy Assistant Secretaries 
for Import Administration, Investigations, and Compliance have other 
delegated authority relating to countervailing duties.

Sec. 355.3  Record of proceedings.

    (a) Official record. The Secretary will maintain in the Import 
Administration Central Records Unit, at the location stated in 
Sec. 355.31(d), an official record of each proceeding. The Secretary 
will include in the record all factual information, written argument, or 
other material developed by, presented to, or obtained by the Secretary 
during the course of the proceeding which pertains to the proceeding. 
The record will include government memoranda pertaining to the 
proceeding, memoranda of ex parte meetings, determinations, notices 
published in the Federal Register, and transcripts of hearings. The 
record will not include any factual information, written argument, or 
other material which is not timely filed or which the Secretary returns 
to the submitter under Secs. 355.31(b)(2), 355.32(d), 355.32(g), or 
355.34(c). The record will contain material that is public, proprietary, 
privileged, and classified. For purposes of section 516A(b)(2) of the 
Act, the record is the official record of each judicially reviewable 
segment of the proceeding.
    (b) Public record. The Secretary will maintain in the Central 
Records Unit a public record of each proceeding. The record will consist 
of all material described in paragraph (a) of this section that the 
Secretary decides is public information within the meaning of 
Sec. 355.4(a), governmental memoranda or portions of memoranda that the 
Secretary decides may be disclosed to the general public, plus public 
versions of all determinations, notices, and transcripts. The public 
record will be available to the public for inspection and copying in the 
Central Records Unit (see Sec. 355.31(d)). The Secretary will charge an 
appropriate fee for providing copies of documents.
    (c) Protection of records. Unless ordered by the Secretary or 
required by law, no record or portion of a record will be removed from 
the Department.

Sec. 355.4  Public, proprietary, privileged, and classified information.

    (a) Public information. The Secretary normally will consider the 
following to be public information:
    (1) Factual information of a type that has been published or 
otherwise made available to the public by the person submitting it;
    (2) Factual information that is not designated proprietary by the 
person submitting it;

[[Page 224]]

(224
    (3) Factual information which, although designated proprietary by 
the person submitting it, is in a form which cannot be associated with 
or otherwise used to identify activities of a particular person;
    (4) Publicly available laws, regulations, decrees, orders, and other 
official documents of a country, including English translations; and
    (5) Written argument relating to the proceeding that is not 
designated proprietary.
    (b) Proprietary information. The Secretary normally will consider 
the following factual information to be proprietary information, if so 
designated by the submitter:
    (1) Business or trade secrets concerning the nature of a product or 
production process;
    (2) Production costs (but not the identity of the production 
components unless a particular component is a trade secret);
    (3) Distribution costs (but not channels of distribution);
    (4) Terms of sale (but not terms of sale offered to the public);
    (5) Prices of individual sales, likely sales, or other offers (but 
not (i) components of prices, such as transportation, if based on 
published schedules, (ii) dates of sale, (iii) product descriptions 
except as described in paragraph (b)(1), or (iv) order numbers);
    (6) The names of particular customers, distributors, or suppliers 
(but not destination of sale or designation of type of customer, 
distributor, or supplier, unless the destination or designation would 
reveal the name);
    (7) The exact amounts of the gross or net subsidies received and 
used by a person (but not descriptions of the operations of the 
subsidies, or the amount if included in official public statements or 
published documents);
    (8) The names of particular persons from whom proprietary 
information was obtained; and
    (9) Any other specific business information the release of which to 
the public would cause substantial harm to the competitive position of 
the submitter.
    (c) Privileged information. The Secretary will consider information 
privileged if, based on principles of law concerning privileged 
information, the Secretary decides that the information should not be 
released to the public or to parties to the proceeding.
    (d) Classified information. Classified information is information 
that is classified under Executive Order No. 12356 of April 2, 1982 (43 
FR 28949) or successor executive order, if applicable.

Sec. 355.5  Library of foreign subsidy practices and countervailing 
          measures.

    The Secretary will maintain in the Central Records Unit a library of 
public information relating to all foreign subsidy practices and 
countervailing measures that are known to the Secretary, whether or not 
the subject of a proceeding. The Secretary will make documents in the 
library available to the public and will charge an appropriate fee for 
providing copies of documents. For further information, contact the 
Central Records Unit at the location stated in Sec. 355.31(d).

Sec. 355.6  Trade and Tariff Act of 1984--effective date.

    In accordance with section 626 of the Trade and Tariff Act of 1984 
(Pub. L. No. 98-573) (for purposes of this subpart, referred to as ``the 
1984 Act''), the amendments to the Act made by Title VI of the 1984 Act 
are deemed effective as follows:
    (a) Except as provided in paragraphs (b), (c), and (d) of this 
section, all amendments made by Title VI of the 1984 Act which affect 
authorities administered by the Secretary are effective on October 30, 
1984.
    (b) Amendments made by sections 602, 611, 612, and 620 of the 1984 
Act which affect authorities administered by the Secretary take effect 
immediately with respect to all investigations and administrative 
reviews begun on or after October 30, 1984.
    (c) Amendments made by section 623 of the 1984 Act, regarding 
judicial review, apply with respect to civil actions pending on, or 
filed on or after, October 30, 1984.
    (d) Notwithstanding the provisions of paragraphs (a) and (b) of this 
section, the Secretary may implement the amendments of the 1984 Act at a 
date later than October 30, 1984, if the Secretary determines that 
implementation in accordance with paragraphs (a)

[[Page 225]]

(225or (b) of this section would prevent the Department from complying 
with other requirements of law.

Sec. 355.7  De minimis net subsidies disregarded.

    For purposes of this part, the Secretary will disregard any 
aggregate net subsidy that the Secretary determines is less than 0.5% ad 
valorem, or the equivalent specific rate.



Subpart B--Countervailing Duty Procedures

Sec. 355.11  Self-initiation.

    (a) In general. (1) If the Secretary determines from available 
information that an investigation is warranted with respect to the 
merchandise, the Secretary will initiate an investigation and publish in 
the Federal Register notice of ``Initiation of Countervailing Duty 
Investigation.'' The Secretary will publish the notice only after 
providing the government of the affected country an opportunity for 
consultation to the extent required by Article 3(1) of the Agreement or 
by a substantially equivalent obligation.
    (2) The notice will include:
    (i) A description of the merchandise, after consultation as 
appropriate with the Commission;
    (ii) The name of the country in which the merchandise is produced 
and, if the merchandise is imported from a country other than that in 
which it is produced, the name of the intermediate country; and
    (iii) A summary of the available information that would, if 
accurate, support the imposition of countervailing duties.
    (b) Information provided to the commission. If the merchandise is 
from a country entitled to an injury test for the merchandise, the 
Secretary will notify the Commission at the time of initiation of the 
investigation and will make available to it and to its employees 
directly involved in the proceeding all information upon which the 
Secretary based the initiation and which the Commission may consider 
relevant to its injury determinations.

Sec. 355.12  Petition requirements.

    (a) In general. Any interested party, as defined in paragraph 
(i)(3), (i)(4), (i)(5), or (i)(6) of Sec. 355.2, may file on behalf of 
an industry a petition under this section requesting the imposition of 
countervailing duties equal to the alleged subsidy, if that person has 
reason to believe that:
    (1) A subsidy is being provided with respect to the merchandise, and
    (2) If the merchandise is from a country entitled to an injury test 
for the merchandise, an industry is materially injured, is threatened 
with material injury, or its establishment is materially retarded by the 
merchandise.
    Factual information in the petition shall be certified, as provided 
in Sec. 355.31(i).
    (b) Contents of petition. The petition shall contain the following, 
to the extent reasonably available to the petitioner:
    (1) The name and address of the petitioner and any person the 
petitioner represents;
    (2) The identity of the industry on behalf of which the petitioner 
is filing, including the names and addresses of other persons in the 
industry, and information relating to the degree of industry support for 
the petition;
    (3) A statement indicating whether the petitioner has filed for 
import relief under sections 337 or 732 of the Act (19 U.S.C. 1337 or 
1673a), sections 201 or 301 of the Trade Act of 1974 (19 U.S.C. 2251 or 
2411), or section 232 of the Trade Expansion Act of 1962 (19 U.S.C. 
1862) with respect to the merchandise;
    (4) A detailed description of the merchandise that defines the 
requested scope of the investigation, including technical 
characteristics and uses of the merchandise, and its current U.S. tariff 
classification number;
    (5) The name of the country in which the merchandise is produced 
and, if the merchandise is imported from a country other than that in 
which it is produced, the name of the intermediate country;
    (6) The names and addresses of each person the petitioner believes 
benefits from the subsidy and exports the merchandise to the United 
States and the proportion of total exports to the United States which 
each person accounted

[[Page 226]]

(226for during the most recent 12-month period (if numerous, provide 
information at least for persons that, based on publicly available 
information, individually accounted for two percent or more of the 
exports);
    (7) The alleged subsidy and factual information (particularly 
documentary evidence) relevant to the alleged subsidy, including the 
authority under which it is provided, the manner in which it is paid, 
and the value of the subsidy to producers or exporters of the 
merchandise;
    (8) If the petitioner alleges an upstream subsidy under section 771A 
of the Act, factual information regarding:
    (i) Domestic subsidies described in section 771(5) of the Act that 
the government of the affected country provides to the upstream 
supplier;
    (ii) The competitive benefit the subsidies bestow on the 
merchandise; and
    (iii) The significant effect the subsidies have on the cost of 
producing the merchandise;
    (9) The volume and value of the merchandise during the most recent 
two-year period and any other recent period that the petitioner believes 
to be more representative or, if the merchandise was not imported during 
the two-year period, information as to the likelihood of its sale for 
importation;
    (10) The name and address of each person the petitioner believes 
imports or, if there were no importations, is likely to import the 
merchandise;
    (11) If the merchandise is from a country entitled to an injury test 
for the merchandise, factual information regarding material injury, 
threat of material injury, or material retardation, as described in 19 
CFR Secs. 207.11 and 207.26;
    (12) If the petitioner alleges ``critical circumstances'' under 
Sec. 355.16, factual information regarding:
    (i) Material injury which is difficult to repair;
    (ii) Massive imports in a relatively short period; and
    (iii) An export subsidy inconsistent with the Agreement; and
    (13) Any other factual information on which the petitioner relies.
    (c) Simultaneous filing with the Commission. If the merchandise is 
from a country entitled to an injury test for the merchandise, the 
petitioner must file a copy of the petition with the Commission and the 
Secretary on the same day and so certify in submitting the petition to 
the Secretary.
    (d) Proprietary status of information. The Secretary will not 
consider any factual information for which the petitioner requests 
proprietary treatment unless the petitioner meets the requirements of 
Sec. 355.32.
    (e) Amendment of petition. The Secretary will allow timely amendment 
of the petition. If the merchandise is from a country entitled to an 
injury test for the merchandise, the petitioner must file an amendment 
with the Commission and the Secretary on the same day and so certify in 
submitting the amendment to the Secretary. The timeliness of new 
allegations is controlled under Sec. 355.31.
    (f) Where to file; time of filing; format and number of copies. The 
requirements of Sec. 355.31(d), (e), and (f) apply to this section.
    (g) Notification of affected country's representative. Upon receipt 
of a petition, the Secretary will deliver a public version of the 
petition, as described in Sec. 355.31(e)(2), to a representative in 
Washington, DC, of the government of the affected country.
    (h) Petition based upon derogation of an international undertaking 
on official export credits. In addition to the other requirements of 
this section, if the sole basis of a petition is the derogation of an 
international undertaking on official export credits, the Secretary will 
immediately notify the Secretary of the Treasury of the filing. The 
petitioner shall file a copy of the petition with the Secretary of the 
Treasury and the Secretary on the same day and so certify in submitting 
the petition to the Secretary.
    (i) Assistance to small businesses; additional information. (1) The 
Secretary will provide technical assistance to eligible small 
businesses, as defined in section 339 of the Act, to enable them to 
prepare and file petitions. The Secretary may deny assistance if the 
Secretary concludes that the petition, if filed, could not satisfy the 
requirements of Sec. 355.13.
    (2) For additional information concerning petitions, contact the 
Deputy

[[Page 227]]

(227Assistant Secretary for Investigations, Import Administration, 
International Trade Administration, Room B099, U.S. Department of 
Commerce, Pennsylvania Avenue and 14th Street, N.W., Washington, DC 
20230; (202) 377-5497.
    (j) Limitation on communication before initiation. (1) Except as 
provided in paragraph (j)(2) of this section, before the Secretary 
decides whether to initiate an investigation, the Secretary will not 
accept from an interested party, as defined in paragraph (i)(1) or 
(i)(2) of Sec. 355.2, oral or written communication regarding a petition 
except inquiries concerning the status of the proceeding.
    (2) The Secretary will provide the government of the affected 
country an opportunity for consultation to the extent required by 
Article 3(1) of the Agreement or by a substantially equivalent 
obligation.

(The information collection requirements contained in paragraph (b) have 
been approved by the Office of Management and Budget under control 
number 0625-0148)

[53 FR 52344, Dec. 27, 1988, as amended at 60 FR 25136, May 11, 1995]

Sec. 355.13  Determination of sufficiency of petition.

    (a) Determination of sufficiency--(1) In general. Except as provided 
in paragraph (a)(2) of this section, not later than 20 days after a 
petition is filed under Sec. 355.12, the Secretary will determine 
whether the petition properly alleges the basis on which a 
countervailing duty may be imposed under section 701(a) of the Act, 
contains information reasonably available to the petitioner supporting 
the allegations, is filed by an interested party as defined in paragraph 
(i)(3), (i)(4), (i)(5), or (i)(6) of Sec. 355.2, and is filed by or on 
behalf of the domestic industry.
    (2) Extension where polling required. Where the Secretary is 
required to poll or otherwise determine support for the petition by the 
domestic industry under section 702(c)(4)(D) of the Act, the Secretary 
may, in exceptional circumstances, apply paragraph (a)(1) of this 
section by substituting ``a maximum of 40 days'' for ``20 days''.
    (b) Notice of initiation. If the Secretary determines that the 
petition is sufficient under paragraph (a) of this section, the 
Secretary will initiate an investigation and publish in the Federal 
Register notice of ``Initiation of Countervailing Duty Investigation.'' 
The notice will include the information described in Sec. 355.11(a)(2). 
If the merchandise is from a country entitled to an injury test for the 
merchandise, the Secretary will notify the Commission at the time of 
initiation of the investigation and will make available to it and to its 
employees directly involved in the proceeding all information upon which 
the Secretary based the initiation and which the Commission may consider 
relevant to its injury determinations.
    (c) Insufficiency of petition. If the Secretary determines that a 
petition is insufficient under paragraph (a) of this section, the 
Secretary will dismiss the petition in whole or in part and, if 
appropriate, terminate the proceeding. The Secretary will notify the 
petitioner in writing of the reasons for dismissal, notify the 
Commission of the dismissal, if appropriate, and publish in the Federal 
Register notice of ``Dismissal of Countervailing Duty Petition,'' 
summarizing the reasons for dismissal.

[53 FR 52344, Dec. 27, 1988, as amended at 60 FR 25136, May 11, 1995]

Sec. 355.14  Request for exclusion from countervailing duty order.

    (a) Any producer or exporter which exported the merchandise to the 
United States during the period described in paragraph (b)(1) of this 
section and which desires exclusion from a countervailing duty order 
must submit to the Secretary, not later than 30 days after the date of 
publication of the notice of initiation under Sec. 355.11 or 
Sec. 355.13, an irrevocable written request for exclusion.
    (b) The person must submit with the request:
    (1) The person's certification that the person did not apply for or 
receive any net subsidy on the merchandise, during the period from the 
beginning of the last fiscal year for which the person has records to 
the date of filing of the petition, from any program listed in the 
Secretary's notice of initiation (except programs that the Secretary has 
previously found, in a notice published

[[Page 228]]

(228under Sec. 355.20 or Sec. 355.22(c)(8), not to be countervailable) 
and will not apply for or receive any subsidy on the merchandise in the 
future;
    (2) The certification of the government of the affected country that 
the government did not provide to that person any net subsidy during the 
period described in paragraph (b)(1) of this section; and
    (3) If the person is not the producer of the merchandise, the 
certification under paragraph (b)(1) of this section of the suppliers 
and producers of the merchandise and the certification under paragraph 
(b)(2) of this section of the government regarding those suppliers and 
producers.
    (c) The Secretary will investigate requests for exclusion to the 
extent practicable in each investigation.

Sec. 355.15  Preliminary determination.

    (a) In general. (1) Not later than 65 days after the date on which 
the Secretary initiates an investigation under Sec. 355.11 or 
Sec. 355.13, the Secretary will make a determination based on the 
available information at the time whether there is a reasonable basis to 
believe or suspect that a subsidy is being provided with respect to the 
merchandise. If the merchandise is from a country entitled to an injury 
test for the merchandise, the Secretary will not make the determination 
unless the Commission has made an affirmative preliminary determination.
    (2) The Secretary's determination will include:
    (i) The factual and legal conclusions on which the determination is 
based;
    (ii) The individual countervailing duty rate for each person 
investigated and an all-others rate, if any, or, if section 
777A(e)(2)(B) of the Act applies, a single estimated country-wide 
subsidy rate; and
    (iii) A preliminary finding on critical circumstances, if 
appropriate, under Sec. 355.16(b)(2)(i).
    (3) If affirmative, the Secretary's determination will also:
    (i) Order the suspension of liquidation of all entries of the 
merchandise entered, or withdrawn from warehouse, for consumption on or 
after the date of publication of the notice of the Secretary's 
preliminary determination; and
    (ii) Impose provisional measures by instructing the Customs Service 
to require for each entry of the merchandise suspended under this 
paragraph a cash deposit or bond equal to the estimated net subsidy.
    (4) The Secretary will publish in the Federal Register notice of 
``Affirmative (Negative) Preliminary Countervailing Duty 
Determination,'' including the estimated individual countervailing duty 
rates, all-others rate, or country-wide subsidy rate, if any, and an 
invitation for argument consistent with Sec. 355.38.
    (5) The Secretary will notify all parties to the proceeding. If the 
merchandise is from a country entitled to an injury test for the 
merchandise, the Secretary also will notify the Commission.
    (b) Postponement in extraordinarily complicated investigation. If 
the Secretary decides the investigation is extraordinarily complicated, 
the Secretary may postpone the preliminary determination to not later 
than 130 days after the date on which the Secretary initiated the 
investigation. The Secretary will base the decision on express findings 
that:
    (1) The respondent parties to the proceeding are cooperating in the 
investigation;
    (2) The investigation is extraordinarily complicated by reason of:
    (i) The large number or complex nature of the alleged subsidies;
    (ii) Novel issues raised;
    (iii) The need to determine the extent to which particular subsidies 
are used by individual producers or exporters; or
    (iv) Large number of producers and exporters; and
    (3) Additional time is needed to make the preliminary determination.
    (c) Postponement at the request of the petitioner. If the 
petitioner, not later than 25 days before the scheduled date for the 
Secretary's preliminary determination, requests a postponement and 
states the reasons for the request, the Secretary will postpone the 
preliminary determination to not later than 130 days after the date on 
which the Secretary initiated the investigation,

[[Page 229]]

(229unless the Secretary finds compelling reasons to deny the request.
    (d) Postponement to investigate upstream subsidies. (1) Any 
interested party shall submit in writing any allegation of upstream 
subsidies not later than 10 days before the scheduled date for the 
Secretary's preliminary determination under this part.
    (2) If the Secretary decides to investigate an upstream subsidy 
allegation and concludes that additional time is needed to investigate 
the allegation, the Secretary may postpone the preliminary determination 
to not later than 250 days after the proceeding begins (up to 310 days 
if also postponed under paragraph (b) or (c) of this section).
    (e) Notice of postponement. (1) If the Secretary decides to postpone 
the preliminary determination under paragraph (b) or (c) of this 
section, the Secretary will notify all parties to the proceeding not 
later than 20 days before the scheduled date for the Secretary's 
preliminary determination and will publish in the Federal Register 
notice of ``Postponement of Preliminary Countervailing Duty 
Determination,'' stating the reasons for the postponement.
    (2) If the Secretary decides to postpone the preliminary 
determination under paragraph (d)(2) of this section, the Secretary will 
notify all parties to the proceeding not later than the scheduled date 
for the Secretary's preliminary determination and will publish in the 
Federal Register notice of ``Postponement of Preliminary Countervailing 
Duty Determination'' stating the reasons for the postponement.
    (f) Expedited preliminary determination. Not later than 55 days 
after the initiation of an investigation under Sec. 355.13, the 
Secretary will review the record of the first 50 days of the 
investigation. If the available information is sufficient for the 
Secretary to make a preliminary determination, the Secretary will 
disclose to the petitioner, and any interested party that has requested 
disclosure, all available public and proprietary information (subject to 
the requirements of Sec. 355.34). If, not later than three business days 
after disclosure, each party to whom disclosure was made furnishes an 
irrevocable written waiver of verification and agrees to a preliminary 
determination based on information in the record on the 50th day of the 
investigation, the Secretary will make an expedited preliminary 
determination.
    (g) Commission access to information. If the merchandise is from a 
country entitled to an injury test for the merchandise, the Secretary 
will make available to the Commission and to employees of the Commission 
directly involved in the proceeding all information upon which the 
Secretary based the determination and which the Commission may consider 
relevant to its injury determination.
    (h) Disclosure. Promptly after making the preliminary determination, 
the Secretary will provide to parties to the proceeding which request 
disclosure a further explanation of the calculation methodology used in 
making the determination.

[53 FR 52344, Dec. 27, 1988, as amended at 60 FR 25136, May 11, 1995]

Sec. 355.16  Critical circumstances findings.

    (a) In general. If the merchandise is from a country entitled to an 
injury test for the merchandise and if a petitioner submits to the 
Secretary a written allegation of critical circumstances, with 
reasonably available factual information supporting the allegation, not 
later than 21 days before the scheduled date of the Secretary's final 
determination, or on the Secretary's own initiative in an investigation 
under Sec. 355.11, the Secretary will make a finding whether:
    (1) Any alleged export subsidy that benefits the merchandise is 
inconsistent with the Agreement; and
    (2) There have been massive imports of the merchandise over a 
relatively short period.
    (b) Preliminary finding. (1) If the petitioner submits the 
allegation of critical circumstances not later than 30 days before the 
scheduled date for the Secretary's final determination under 
Sec. 355.20, the Secretary, based on the available information, will 
make a preliminary finding whether there is a reasonable basis to 
believe or suspect

[[Page 230]]

(230that critical circumstances as described in paragraph (a) of this 
section exist.
    (2) The Secretary will issue the preliminary finding:
    (i) Not later than the Secretary's preliminary determination under 
Sec. 355.15, if the allegation is submitted not later than 20 days 
before the scheduled date for the preliminary determination; or
    (ii) Not later than 30 days after the petitioner submits the 
allegation, if the allegation is submitted later than 20 days before the 
scheduled date for the Secretary's preliminary determination.
    The Secretary will notify the Commission and publish in the Federal 
Register notice of the preliminary finding.
    (c) Suspension of liquidation. If the Secretary makes an affirmative 
preliminary finding of critical circumstances, either before or at the 
time of an affirmative preliminary determination under Sec. 355.15, any 
suspension of liquidation ordered under Sec. 355.15 will apply to all 
entries of the merchandise covered by the finding entered, or withdrawn 
from warehouse, for consumption on or after 90 days before the date of 
the order of suspension of liquidation. If the Secretary makes an 
affirmative preliminary finding of critical circumstances after an 
affirmative preliminary determination under Sec. 355.15, the Secretary 
will amend the order suspending liquidation to apply to all entries of 
the merchandise covered by the finding entered, or withdrawn from 
warehouse, for consumption on or after 90 days before the date 
suspension of liquidation was first ordered.
    (d) Final finding. For any allegation submitted not later than 21 
days before the scheduled date for the Secretary's final determination 
under Sec. 355.20, the Secretary will make a final finding on critical 
circumstances. If the final finding is affirmative and if the Secretary 
did not make an affirmative preliminary finding of critical 
circumstances, the Secretary will order the suspension of liquidation of 
all entries of the merchandise entered, or withdrawn from warehouse, for 
consumption on or after 90 days before the date the Secretary ordered 
suspension of liquidation either as part of an affirmative preliminary 
or final determination. If the final finding is negative and if the 
Secretary made an affirmative preliminary finding of critical 
circumstances, the Secretary will end the retroactive suspension of 
liquidation ordered under paragraph (c) of this section, and will 
instruct the Customs Service to release the cash deposit or bond.
    (e) Findings in self-initiated investigations. In investigations 
initiated under Sec. 355.11, the Secretary will make a preliminary and 
final finding on critical circumstances without regard to the time 
limits in paragraphs (b) and (d) of this section.
    (f) Massive imports. (1) In determining for the purpose of paragraph 
(a) of this section whether imports of the merchandise have been 
massive, the Secretary normally will examine:
    (i) The volume and value of the imports;
    (ii) Seasonal trends; and
    (iii) The share of domestic consumption accounted for by the 
imports.
    (2) In general, unless the imports during the period identified in 
paragraph (g) of this section have increased by at least 15 percent over 
the imports during an immediately preceding period of comparable 
duration, the Secretary will not consider the imports massive.
    (g) Relatively short period. For the purpose of paragraph (a) of 
this section, the Secretary normally will consider the period beginning 
on the date the proceeding begins and ending approximately three months 
later. However, if the Secretary finds that importers or exporters had 
reason to believe, at some time prior to the beginning of the 
proceeding, that a proceeding was likely, then the Secretary may 
consider a period of not less than three months from that earlier time.

Sec. 355.17  Termination of investigation.

    (a) Withdrawal of petition. (1) Except as provided in paragraph (b) 
of this section, the Secretary may terminate an investigation upon 
withdrawal of the petition by the petitioner, or on the Secretary's own 
initiative in an investigation initiated under Sec. 355.11, after 
notifying all parties to the proceeding

[[Page 231]]

(231and, if the merchandise is from a country entitled to an injury test 
on the merchandise, after consultation with the Commission. The 
Secretary may not terminate an investigation unless the Secretary 
concludes the termination is in the public interest.
    (2) If the Secretary terminates an investigation, the Secretary will 
publish in the Federal Register notice of ``Termination of 
Countervailing Duty Investigation'' together with, when appropriate, a 
copy of any correspondence with the petitioner forming the basis of the 
withdrawal and the termination.
    (b) Withdrawal of petition based on acceptance of quantitative 
restriction agreements. (1) The Secretary may not terminate under 
paragraph (a) of this section an investigation by accepting an 
understanding or other kind of agreement with the government of the 
affected country to restrict the volume of the merchandise unless the 
Secretary, taking into account the factors listed in section 
704(a)(2)(B) of the Act, is satisfied that termination is in the public 
interest.
    (2) In deciding for the purpose of paragraph (b)(1) of this section 
whether termination is in the public interest, the Secretary, to the 
extent practicable, will consult with representatives of potentially 
affected United States consuming industries and potentially affected 
persons in the industry, including persons not parties to the 
proceeding.
    (3) At the direction of the President of the United States or a 
designee, the Secretary will modify any understanding or other kind of 
quantitative restriction agreement accepted under paragraph (b)(1) of 
this section as a result of consultations entered into under section 
761(a) of the Act.
    (c) Negative determination. An investigation terminates, without 
further comment or action, upon publication in the Federal Register of 
the Secretary's negative final determination or the Commission's 
negative preliminary or final determination.
    (d) End of suspension of liquidation. If the Secretary previously 
ordered suspension of liquidation, the Secretary will order the 
suspension ended on the date of publication of the notice of termination 
under paragraph (a) of this section or on the date of publication of a 
negative determination referred to in paragraph (c) of this section, and 
will instruct the Customs Service to release any cash deposit or bond.

Sec. 355.18  Suspension of investigation.

    (a) Agreement to eliminate or offset completely a subsidy or to 
cease exports. If the Secretary is satisfied that suspension is in the 
public interest, the Secretary may suspend an investigation at any time 
before the Secretary's final determination by accepting an agreement 
with the government of the affected country or exporters that account 
for substantially all of the merchandise:
    (1) To eliminate or to offset completely the net subsidy with 
respect to the merchandise; or
    (2) To cease exports of the merchandise not later than 180 days 
after the date of publication of the notice of suspension of 
investigation.
    (b) Agreement eliminating injurious effect. (1) As provided in this 
paragraph and paragraph (b)(2) or (b)(3), the Secretary may suspend an 
investigation at any time before the Secretary's final determination if 
the merchandise is from a country entitled to an injury test for the 
merchandise and if the Secretary:
    (i) Is satisfied that the proposed suspension is in the public 
interest;
    (ii) Finds that extraordinary circumstances are present; and
    (iii) Finds that the agreement will eliminate completely the 
injurious effect of the merchandise.
    (2) The Secretary may suspend an investigation under paragraph 
(b)(1) of this section by accepting an agreement with the government of 
the affected country or exporters that account for substantially all of 
the merchandise, if the Secretary finds that:
    (i) The agreement will prevent the suppression or undercutting by 
the merchandise of prices of like products produced in the United 
States; and
    (ii) The agreement will eliminate or offset completely at least 85 
percent of the net subsidy.
    (3) The Secretary may suspend an investigation under paragraph 
(b)(1) of this section by accepting an agreement

[[Page 232]]

(232with the government of the affected country to restrict the volume 
of the merchandise. In considering for the purpose of this paragraph 
whether suspension is in the public interest, the Secretary will take 
into account, in addition to other factors the Secretary considers 
appropriate, the factors listed in section 704(a)(2)(B) of the Act. To 
the extent practicable, the Secretary will consult with representatives 
of potentially affected United States consuming industries and 
potentially affected persons in the industry, including persons not 
party to the proceeding.
    (c) Definition of ``substantially all.'' For purposes of paragraphs 
(a) and (b)(2) of this section, exporters which account for 
``substantially all'' of the merchandise means exporters that have 
accounted for not less than 85 percent by value or volume of the 
merchandise during the period for which the Department is measuring 
benefits in the investigation or such other period that the Secretary 
considers representative.
    (d) Definition of ``extraordinary circumstances.'' For purposes of 
paragraph (b) of this section, extraordinary circumstances means 
circumstances in which (1) suspension of the investigation will be more 
beneficial to the industry than continuation of the investigation and 
(2) there are a large number of alleged subsidy practices which are 
complicated, the issues raised are novel, or the number of exporters is 
large.
    (e) Monitoring. The Secretary will not accept an agreement unless 
effective monitoring of the agreement by the Secretary is practicable. 
In monitoring an agreement under paragraph (b) of this section, the 
Secretary will not be obliged to ascertain on a continuing basis the 
prices in the United States of the merchandise or of like products 
produced in the United States.
    (f) Exports not to increase during interim period. The Secretary 
will not accept an agreement under paragraph (a) of this section unless 
the agreement ensures that the quantity of the merchandise exported 
during the interim period set forth in the agreement does not exceed the 
quantity of the merchandise exported during a period of comparable 
duration that the Secretary considers representative.
    (g) Procedure for suspension of investigation. (1) The government of 
the affected country or the exporters, as appropriate, shall:
    (i) Submit to the Secretary a proposed agreement not later than 45 
days before the scheduled date for the Secretary's final determination 
under Sec. 355.20; and
    (ii) Serve a copy of an agreement preliminarily accepted by the 
Secretary on other parties to the proceeding not later than the day 
following the Secretary's preliminary acceptance.
    (2) The Secretary will:
    (i) Not later than 30 days before the date the Secretary suspends 
the investigation, notify all parties to the proceeding of the proposed 
suspension and provide to the petitioner a copy of the agreement 
preliminarily accepted by the Secretary (the agreement shall contain the 
procedures for monitoring compliance and a statement of the 
compatibility of the agreement with the requirements of this section); 
and
    (ii) Consult with the petitioner concerning the proposed suspension.
    (3) The Secretary will provide all interested parties and United 
States Government agencies an opportunity to submit, not later than 10 
days before the scheduled date for the Secretary's final determination, 
written argument and factual information concerning the proposed 
suspension.
    (h) Acceptance of agreement. (1) If the Secretary accepts an 
agreement to suspend an investigation, the Secretary will publish in the 
Federal Register notice of ``Suspension of Countervailing Duty 
Investigation,'' including the text of the agreement. If the Secretary 
has not already published notice of affirmative preliminary 
determination, the Secretary will include that notice. In accepting an 
agreement, the Secretary may rely on factual or legal conclusions the 
Secretary reached in or after the affirmative preliminary determination.
    (2) If the Secretary suspends an investigation based on an agreement 
under paragraph (a) of this section, the Secretary will not order the 
suspension of liquidation of entries of the merchandise. If the 
Secretary previously

[[Page 233]]

(233ordered suspension of liquidation, the Secretary will order the 
suspension of liquidation ended on the effective date of notice of 
suspension of investigation and will instruct the Customs Service to 
release any cash deposit or bond.
    (3) If the Secretary suspends an investigation based on an agreement 
under paragraph (b) of this section, the Secretary will order the 
suspension of liquidation to continue or to begin, as appropriate. The 
suspension of liquidation will not end until the Commission completes 
any requested review, under section 704(h) of the Act, of the agreement. 
If the Commission receives no request for review within 20 days after 
the date of publication of the notice of suspension of investigation, 
the Secretary will order the suspension of liquidation ended on the 21st 
day after the date of publication and will instruct the Customs Service 
to release any cash deposit or bond.
    (4) If the Commission undertakes a review of an agreement under 
section 704(h) of the Act and determines that the agreement will not 
eliminate the injurious effect, the Secretary will resume the 
investigation on the date of publication of the Commission's 
determination as if the Secretary's affirmative preliminary 
determination had been made on that date. If the Commission determines 
that the agreement will eliminate the injurious effect, the Secretary 
will continue the suspension of investigation, order the suspension of 
liquidation ended on the date of publication of the Commission's 
determination, and instruct the Customs Service to release any cash 
deposit or bond.
    (i) Continuation of investigation. (1) An interested party, as 
defined in paragraph (i)(2), (i)(3), (i)(4), (i)(5), or (i)(6) of 
Sec. 355.2, not later than 20 days after the date of publication of the 
notice of suspension of investigation, may request in writing that the 
Secretary continue the investigation. If the merchandise is from a 
country entitled to an injury test for the merchandise, the party shall 
simultaneously file a request with the Commission to continue its 
investigation.
    (2) Upon receiving the request, the Secretary and, if appropriate, 
the Commission will continue the investigation.
    (i) If the Secretary and the Commission make affirmative final 
determinations, the suspension agreement will remain in effect in 
accordance with the factual and legal conclusions in the Secretary's 
final determination. This paragraph does not affect the provisions of 
paragraph (h) of this section regarding suspension of liquidation.
    (ii) If the Secretary or the Commission makes a negative final 
determination, the agreement shall have no force or effect.
    (j) Merchandise imported in excess of allowed quantity. (1) The 
Secretary may instruct the Customs Service not to accept entries, or 
withdrawals from warehouse, for consumption of the merchandise in excess 
of any quantity allowed by paragraph (f) or by an agreement under 
paragraph (a) or (b) of this section.
    (2) Imports in excess of the quantity allowed by an agreement may be 
exported or destroyed under Customs Service supervision, except that if 
the agreement is under paragraph (b)(3) of this section, the excess 
merchandise may be held for future opening under the agreement by 
placing it in a foreign trade zone or by entering it for warehouse.
    (k) Modification of quantitative restriction agreements. At the 
direction of the President or a designee, the Secretary will modify an 
agreement accepted under paragraph (b)(2) of this section as a result of 
consultation under section 761(a) of the Act.

Sec. 355.19  Violation of agreement.

    (a) Immediate determination. If the Secretary determines that the 
signatory foreign government or exporters have violated a suspension 
agreement, the Secretary, without right of comment, will:
    (1) Order the suspension of liquidation of all entries of the 
merchandise entered, or withdrawn from warehouse, for consumption on or 
after the later of (i) 90-days before the date of publication of the 
notice of cancellation of agreement or (ii) the date of first entry, or 
withdrawal from warehouse, for consumption of the merchandise

[[Page 234]]

(234the sale or export of which was in violation of the agreement;
    (2) If the investigation was not completed under Sec. 355.18(i), 
resume the investigation as if the Secretary made an affirmative 
preliminary determination on the date of publication of the notice of 
cancellation and impose provisional measures by instructing the Customs 
Service to require for each entry of the merchandise suspended under 
paragraph (a)(1) of this section a cash deposit or bond equal to the 
estimated net subsidy determined in the affirmative preliminary 
determination;
    (3) If the investigation was completed under Sec. 355.18(i), issue a 
countervailing duty order for all entries subject to suspension of 
liquidation under paragraph (a)(1) of this section and instruct the 
Customs Service to require for each entry of the merchandise suspended 
under this paragraph a cash deposit equal to the estimated net subsidy 
determined in the affirmative final determination;
    (4) Notify all persons who are or were parties to the proceeding, 
the Commission if appropriate, and if the Secretary determines that the 
violation was intentional, the Commissioner of Customs; and
    (5) Publish in the Federal Register notice of ``Countervailing Duty 
Order (Resumption of Countervailing Duty Investigation); Cancellation of 
Suspension Agreement.''
    (b) Determination after notice and comment. (1) Notwithstanding 
paragraph (a) of this section, if the Secretary has reason to believe 
that the signatory government or exporters have violated an agreement or 
that an agreement no longer meets the requirements of section 704(d)(1) 
of the Act, the Secretary will publish in the Federal Register notice of 
``Invitation for Comment on Countervailing Duty Suspension Agreement.''
    (2) After publication of the notice inviting comment and after 
consideration of comments received the Secretary will:
    (i) If the Secretary determines that the signatory government or 
exporters have violated the agreement, take appropriate action as 
described in paragraphs (a)(1) through (a)(5) of this section; or
    (ii) If the Secretary determines that the agreement no longer meets 
the requirements of section 704(d)(1) of the Act:
    (A) Take appropriate action as described in paragraphs (a)(1) 
through (a)(5) of this section, except that, for paragraph (a)(1)(ii) of 
this section, the date shall be the date of first entry, or withdrawal 
from warehouse, for consumption of the merchandise the sale or export of 
which does not meet the requirements of section 704(d)(1) of the Act;
    (B) Continue the suspension of investigation by accepting a revised 
suspension agreement under Sec. 355.18(a) (whether or not the Secretary 
accepted the original agreement under that paragraph) that, at the time 
the Secretary accepts the revised agreement, meets the applicable 
requirements of section 704(d)(1) of the Act, and publish in the Federal 
Register notice of ``Revision of Agreement Suspending Countervailing 
Duty Investigation;'' or
    (C) Continue the suspension of investigation by accepting a revised 
suspension agreement under Sec. 355.18(b) (whether or not the Secretary 
accepted the original agreement under that paragraph) that, at the time 
the Secretary accepts the revised agreement, meets the applicable 
requirements of section 704(d)(1) of the Act, and publish in the Federal 
Register notice of ``Revision of Agreement Suspending Countervailing 
Duty Investigation.'' If the Secretary continues to suspend an 
investigation based on a revised agreement accepted under 
Sec. 355.18(b), the Secretary will order suspension of liquidation to 
begin. The suspension will not end until the Commission completes any 
requested review of the agreement under section 704(h) of the Act. If 
the Commission receives no request for review within 20 days after the 
date of publication of the notice of the revision, the Secretary will 
order the suspension of liquidation ended on the 21st day after the date 
of publication, and will instruct the Customs Service to release any 
cash deposit or bond. If the Commission undertakes a review under 
section 704(h) of the Act, the provisions of Sec. 355.18(h)(4) will 
apply.
    (iii) If the Secretary decides neither to consider the order 
violated nor to

[[Page 235]]

(235revise the agreement, the Secretary will publish in the Federal 
Register notice of the Secretary's decision under paragraph (b)(2) of 
this section, including a statement of the factual and legal conclusions 
on which the decision is based.
    (c) Additional signatories. If the Secretary decides that the 
agreement no longer meets the requirements of Sec. 355.18(b)(1)(iii) or 
that the signatory exporters no longer account for substantially all of 
the merchandise, the Secretary may revise the agreement to include 
additional signatory exporters.
    (d) Definition of ``violation.'' For the purpose of this section, 
violation means noncompliance with the terms of a suspension agreement 
caused by an act or omission of a signatory foreign government or 
exporter, except, at the discretion of the Secretary, an act or omission 
which is inadvertent or inconsequential.

Sec. 355.20  Final determination.

    (a) In general. (1) Not later than 75 days after the date of the 
Secretary's preliminary determination, the Secretary will make a final 
determination whether a net subsidy is being provided with respect to 
the merchandise.
    (2) The Secretary's determination will include:
    (i) The factual and legal conclusions on which the determination is 
based;
    (ii) The estimated individual countervailing duty rate for each 
person investigated and an estimated all-others rate, if any, or, if 
section 777A(e)(2)(B) of the Act applies, a single estimated country-
wide subsidy rate; and
    (iii) If appropriate, a final finding on critical circumstances 
under Sec. 355.16.
    (3) If affirmative, the Secretary's determination will also:
    (i) Unless previously ordered by the Secretary, order the suspension 
of liquidation of all entries of the merchandise entered, or withdrawn 
from warehouse, for consumption on or after the date of publication of 
the notice of the Secretary's final determination; and
    (ii) If the merchandise is from a country not entitled to an injury 
test for the merchandise, instruct the Customs Service to require a cash 
deposit, as provided in Sec. 355.21(b), for each suspended entry of the 
merchandise entered, or withdrawn from warehouse, for consumption on or 
after the date of publication of the countervailing duty order under 
Sec. 355.21; or
    (iii) If the merchandise is from a country entitled to an injury 
test for the merchandise, instruct the Customs Service to require, for 
each suspended entry of the merchandise entered, or withdrawn from 
warehouse, for consumption on or after the date of publication of the 
Secretary's final determination, a cash deposit or bond equal to the 
estimated net subsidy determined under paragraph (a) of this section.
    (4) The Secretary will publish in the Federal Register notice of 
``Affirmative (Negative) Final Countervailing Duty Determination,'' 
including the estimated individual countervailing duty rates, all-others 
rate, or country-wide subsidy rate, if any.
    (5) The Secretary will notify all parties to the proceeding. If the 
merchandise is from a country entitled to an injury test for the 
merchandise, the Secretary will also notify the Commission.
    (b) Postponement to investigate upstream subsidies. (1) Any 
interested party shall submit in writing any allegation of upstream 
subsidies not later than 15 days before the scheduled date for the 
Secretary's final determination under this part.
    (2) If the Secretary decides to investigate an upstream subsidy 
allegation and concludes that additional time is needed to investigate 
the allegation, the Secretary may:
    (i) If the Secretary's preliminary determination was negative, 
postpone the final determination under this section to not later than 
165 days after the preliminary determination;
    (ii) If the Secretary's preliminary determination was affirmative:
    (A) Postpone the final decision concerning upstream subsidization 
until the conclusion of the first administrative review of a 
countervailing duty order, if any; or
    (B) At the written request of the petitioner:
    (i) Make the decision concerning upstream subsidization in the final 
determination under this section;

[[Page 236]]

(236
    (ii) Postpone the final determination to not later than 165 days 
after the preliminary determination; and
    (iii) End the suspension of liquidation ordered in the preliminary 
determination not later than 120 days after the date of publication of 
the preliminary determination, and not resume it unless and until the 
Secretary publishes a countervailing duty order.
    (3) If the Secretary decides to postpone the final determination 
under paragraph (b)(2)(i) or (b)(2)(ii)(B) of this section, the 
Secretary will notify all parties to the proceeding not later than the 
scheduled date for the Secretary's final determination and will publish 
in the Federal Register notice of ``Postponement of Final Countervailing 
Duty Determination'' stating the reason for the postponement.
    (c) Postponement for simultaneous investigations. (1) If the 
Secretary simultaneously initiated antidumping and countervailing duty 
investigations on the merchandise (from the same or other countries), 
the Secretary will:
    (i) At the petitioner's request, postpone the final determination 
under this part to the date of the final determination under part 353, 
unless the Secretary's final determination under this part is due on a 
later date as the result of postponement under paragraph (b) of this 
section or Sec. 355.15; and
    (ii) If the Secretary postpones the final determination, end any 
suspension of liquidation ordered in the preliminary determination not 
later than 120 days after the date of publication of the preliminary 
determination, and not resume it unless and until the Secretary 
publishes a countervailing duty order.
    (2) The petitioner shall submit any such request in writing not 
later than 10 days before the scheduled date for the Secretary's final 
determination under this part.
    (3) If the Secretary decides to postpone the final determination 
under paragraph (c)(1) of this section, the Secretary will notify all 
parties to the proceeding not later than the scheduled date for the 
Secretary's final determination and will publish in the Federal Register 
notice of ``Postponement of Final Countervailing Duty Determination'' 
stating the reason for the postponement.
    (d) [Reserved]
    (e) Effect of decision not to exclude from order. If the Secretary 
finds that a person requesting exclusion under Sec. 355.14 received, 
during the period for which the Department measured benefits in the 
investigation, any net subsidy from any program that the Secretary 
determines countervailable in the affirmative final determination, the 
Secretary will state in the affirmative final determination an 
individual rate for that person, and that rate will be the basis for the 
cash deposit or bond, as appropriate, of estimated countervailing duties 
for that person. The individual rate will be either the individual rate 
calculated for that person, the all-others rate, or, if section 
777A(e)(2)(B) of the Act applies, the country-wide subsidy rate.
    (f) Commission access to information. If the merchandise is from a 
country entitled to an injury test for the merchandise, the Secretary 
will make available to the Commission and to employees of the Commission 
directly involved in the proceeding all information upon which the 
Secretary based the final determination and which the Commission may 
consider relevant to its injury determination.
    (g) Effect of negative final determination. An investigation 
terminates, without further comment or action, upon publication in the 
Federal Register of the Secretary's or the Commission's negative final 
determination. If the Secretary previously ordered suspension of 
liquidation, the Secretary will order the suspension ended on the date 
of publication of the notice of negative final determination and will 
instruct the Customs Service to release any cash deposit or bond.
    (h) Disclosure. Promptly after making the final determination, the 
Secretary will provide to parties to the proceeding which request 
disclosure a further explanation of the calculation methodology used in 
making the determination.

[53 FR 52344, Dec. 27, 1988, as amended at 60 FR 25136, May 11, 1995]

[[Page 237]]

(237

Sec. 355.21  Countervailing duty order.

    Not later than seven days after receipt of notice of the 
Commission's affirmative final determination under section 705 of the 
Act, or simultaneously with publication of the Secretary's affirmative 
final determination if the merchandise is from a country not entitled to 
an injury test for the merchandise, the Secretary will publish in the 
Federal Register a ``Countervailing Duty Order'' that:
    (a) Instructs the Customs Service to assess countervailing duties on 
the merchandise, in accordance with the Secretary's instructions at the 
completion of each administrative review requested under Sec. 355.22(a) 
or, if not requested, in accordance with the Secretary's instructions 
under Sec. 355.22(g);
    (b) For each entry of the merchandise entered, or withdrawn from 
warehouse, for consumption on or after the date of publication of the 
order, instructs the Customs Service to require a cash deposit of 
estimated countervailing duties equal to the net subsidy stated in the 
Secretary's final determination;
    (c) Excludes from the application of the order any producer or 
exporter that the Secretary finds did not receive directly or 
indirectly, during the period for which the Department measured benefits 
in the investigation, any net subsidy on the merchandise from any 
program that the Secretary determined countervailable in the affirmative 
final determination; and
    (d) Orders the suspension of liquidation ended for all entries of 
the merchandise entered, or withdrawn from warehouse, for consumption 
before the date of publication of the Commission's final determination, 
and instructs the Customs Service to release the cash deposit or bond on 
those entries, if in its final determination, the Commission found a 
threat of material injury or material retardation of the establishment 
of an industry, unless the Commission in its final determination also 
found that, absent the suspension of liquidation ordered under 
Sec. 355.15(a), it would have found material injury.

Sec. 355.22  Administrative review of orders and suspension agreements.

    (a) Request for administrative review; withdrawal of request for 
review. (1) Each year during the anniversary month of the publication of 
an order (the calendar month in which the anniversary of the date of 
publication of the order occurs), an interested party, as defined in 
paragraph (i)(2), (i)(3), (i)(4), (i)(5), or (i)(6) of Sec. 355.2, may 
request in writing that the Secretary conduct an administrative review 
of specified individual producers or exporters covered by an order, if 
the requesting person states why the person desires the Secretary to 
review those particular producers or exporters.
    (2) During the same month, a producer or exporter covered by an 
order may request in writing that the Secretary conduct an 
administrative review of only that person.
    (3) During the same month, an importer of the merchandise may 
request in writing that the Secretary conduct an administrative review 
of only a producer or exporter of the merchandise imported by that 
importer.
    (4) Each year during the anniversary month of the publication of a 
suspension of investigation (the calendar month in which the anniversary 
of the date of publication of the suspension of investigation occurs), 
an interested party, as defined in Sec. 355.2(i), may request in writing 
that the Secretary conduct an administrative review of all producers or 
exporters covered by an agreement on which suspension of investigation 
was based.
    (5) The Secretary may permit a party that requests a review under 
paragraph (a) of this section to withdraw the request not later than 90 
days after the date of publication of notice of initiation of the 
requested review. The Secretary may extend this time limit if the 
Secretary decides that it is reasonable to do so. When a request for 
review is withdrawn, the Secretary will publish in the Federal Register 
notice of ``Termination of Countervailing Duty Administrative Review'' 
or, if appropriate, ``Partial Termination of Countervailing Duty 
Administrative Review.''

[[Page 238]]

(238
    (b) Period under review. (1) Except as provided in paragraph (b)(2), 
an administrative review under paragraph (a) of this section normally 
will cover entries or exports of the merchandise during the most 
recently completed reporting year of the government of the affected 
country.
    (2) For requests received during the first anniversary month after 
publication of an order or suspension of investigation, the review under 
paragraph (a) of this section will cover entries or exports, as 
appropriate, during the period from the date of suspension of 
liquidation under this part or suspension of investigation to the end of 
the most recently completed reporting year of the government of the 
affected country.
    (c) Procedures. After receipt of a timely request under paragraph 
(a) of this section, or on the Secretary's own initiative when 
appropriate, the Secretary will:
    (1) Not later than 15 days after the anniversary month, publish in 
the Federal Register notice of ``Initiation of Countervailing Duty 
Administrative Review;''
    (2) Normally not later than 30 days after the date of publication of 
the notice of initiation, send to appropriate interested parties or a 
sample of interested parties questionnaires requesting factual 
information for the review;
    (3) Conduct, if appropriate, a verification under Sec. 355.36;
    (4) Unless the Secretary extends the time limit pursuant to section 
751(a)(3)(A) of the Act, within 245 days after the last day of the 
anniversary month, issue preliminary results of review, based on the 
available information, that include:
    (i) The factual and legal conclusions on which the preliminary 
results are based;
    (ii) The countervailing duty rate for each person reviewed or, if 
section 777A(e)(2)(B) of the Act applies, a single country-wide subsidy 
rate during the period of review;
    (iii) A description of official changes in the subsidy programs made 
by the government of the affected country that affect the cash deposit 
of estimated countervailing duties; and
    (iv) For an agreement, the Secretary's preliminary conclusions with 
respect to the status of, and compliance with, the agreement;
    (5) Publish in the Federal Register notice of ``Preliminary Results 
of Countervailing Duty Administrative Review,'' including the 
countervailing duty rates or country-wide subsidy rate, if any, the 
estimated net subsidy for cash deposit purposes, and an invitation for 
argument consistent with Sec. 355.38, and notify all parties to the 
proceeding;
    (6) Promptly after issuing the preliminary results, provide to 
parties to the proceeding which request disclosure a further explanation 
of the calculation methodology used in reaching the preliminary results;
    (7) Unless the Secretary extends the time limit pursuant to section 
751(a)(3)(A) of the Act, within 120 days after the date on which the 
preliminary results are published, issue final results of review that 
include:
    (i) The factual and legal conclusions on which the final results are 
based;
    (ii) The countervailing duty rate for each person reviewed or, if 
section 777A(e)(2)(B) of the Act applies, a single country-wide subsidy 
rate during the period of review;
    (iii) A description of official changes in the subsidy programs, 
made by the government of the affected country not later than the date 
of publication of the notice of preliminary results, that affect the 
cash deposit of estimated countervailing duties; and
    (iv) For an agreement, the Secretary's conclusions with respect to 
the status of, and compliance with, the agreement;
    (8) Publish in the Federal Register notice of ``Final Results of 
Countervailing Duty Administrative Review,'' including the 
countervailing duty rates or country-wide subsidy rate, if any, and the 
estimated net subsidy for cash deposit purposes, and notify all parties 
to the proceeding;
    (9) Promptly after issuing the final results, provide to parties to 
the proceeding which request disclosure a further explanation of the 
calculation methodology used in reaching the final results; and

[[Page 239]]

(239
    (10) Promptly after publication of the notice of final results, 
instruct the Customs Service to assess countervailing duties on the 
merchandise described in paragraph (b) of this section and to collect a 
cash deposit of estimated countervailing duties on future entries. Both 
the assessment and the cash deposit will be at the rates found in the 
final results of review.
    (d) [Reserved]
    (e) Possible cancellation or revision of suspension agreement. If 
during an administrative review the Secretary determines or has reason 
to believe that the signatory foreign government or exporters have 
violated a suspension agreement or that the agreement no longer meets 
the requirements of Sec. 355.18, the Secretary will take appropriate 
action under Sec. 355.19. The Secretary may suspend the time limit in 
paragraph (c)(7) of this section while taking action under 
Sec. 355.19(b).
    (f) [Reserved]
    (g) Automatic assessment of duty. (1) For orders, if the Secretary 
does not receive a timely request under paragraph (a)(1) or (a)(2) of 
this section, the Secretary, without additional notice, will instruct 
the Customs Service to assess countervailing duties on the merchandise 
described in paragraph (b) of this section at rates equal to the cash 
deposit of or bond for estimated countervailing duties required on that 
merchandise at the time of entry, or withdrawal from warehouse, for 
consumption and to continue to collect the cash deposit previously 
ordered.
    (2) If the Secretary receives a timely request under paragraph 
(a)(2) of this section and no request under paragraph (a)(1) of this 
section, the Secretary in accordance with paragraph (g)(1) of this 
section will instruct the Customs Service to assess countervailing 
duties, and to continue to collect the cash deposits, on the merchandise 
not covered by the request.
    (h) Changed circumstances review. (1) If the Secretary concludes 
from available information, including information in a request under 
this paragraph for an administrative review, that changed circumstances 
sufficient to warrant a review exist, the Secretary will:
    (i) Publish in the Federal Register notice of ``Initiation of 
Changed Circumstances Countervailing Duty Administrative Review;''
    (ii) If necessary, send to appropriate interested parties or a 
sample of interested parties questionnaires requesting factual 
information for the review;
    (iii) Conduct, if appropriate, a verification under Sec. 355.36;
    (iv) Issue preliminary results of review based on the available 
information that include the factual and legal conclusions on which the 
preliminary results are based and any action the Secretary proposes 
based on the preliminary results;
    (v) Publish in the Federal Register notice of ``Preliminary Results 
of Changed Circumstances Countervailing Duty Administrative Review,'' 
including an invitation for argument consistent with Sec. 355.38;
    (vi) Notify all parties to the proceeding of the preliminary 
results;
    (vii) Promptly after issuing the preliminary results, provide to 
parties to the proceeding which request disclosure a further explanation 
of the preliminary results;
    (viii) Not later than 270 days after the date of the Secretary's 
initiation of the review, issue final results of review that include the 
factual and legal conclusions on which the final results are based and 
any action, including action under paragraph (c)(9) of this section and 
Sec. 355.25(d), that the Secretary will take based on the final results;
    (ix) Publish in the Federal Register notice of ``Final Results of 
Changed Circumstances Countervailing Duty Administrative Review;'' and
    (x) Notify all parties to the proceeding; and
    (xi) Promptly after issuing the final results, provide to the 
parties to the proceeding which request disclosure a further explanation 
of the final results.
    (2) Changed circumstances reviews may be requested at any time, 
including periods other than anniversary months.
    (3) The Secretary will not initiate an administrative review under 
paragraph (h) of this section before the end of the second annual 
anniversary month (the calendar month in which the anniversary of the 
date of publication of the

[[Page 240]]

(240order or suspension occurs) after the date of publication of the 
Secretary's affirmative preliminary determination or suspension of 
investigation, unless the Secretary finds that good cause exists.
    (4) If the Secretary concludes that expedited action is warranted, 
the Secretary may combine the notices identified in paragraphs (h)(1)(i) 
and (h)(1)(v) of this section in a notice of ``Initiation and 
Preliminary Results of Changed Circumstances Countervailing Duty 
Administrative Review.'' In that event, the notification required in 
paragraph (h)(1)(vi) of this section will be given to all interested 
parties included on the Department's service list described in 
Sec. 355.31(h).
    (i) Review at the direction of the president. At the direction of 
the President or a designee, the Secretary will conduct an 
administrative review to determine if a net subsidy is being provided 
with respect to the merchandise subject to an understanding or other 
kind of quantitative restriction agreement accepted under Sec. 355.17(b) 
or Sec. 355.18(b)(3). The Secretary will:
    (1) Publish in the Federal Register notice of ``Initiation of 
Countervailing Duty Administrative Review at the Direction of the 
President,'' which will include a description of the merchandise, the 
period under review, and a summary of the available information which 
would, if accurate, support the imposition of countervailing duties;
    (2) Notify the Commission;
    (3) Send to appropriate interested parties or a sample of interested 
parties, normally not later than 30 days after the date of publication 
of the notice of initiation, questionnaires requesting factual 
information for the review;
    (4) Conduct, if appropriate, a verification under Sec. 355.36;
    (5) Issue preliminary results of review, based on the available 
information, that include:
    (i) The factual and legal conclusions on which the preliminary 
results are based;
    (ii) The countervailing duty rates, or, if section 777A(e)(2)(B) of 
the Act applies, the country-wide subsidy rate, if any, during the 
period of review; and
    (iii) A description of official changes in the subsidy programs made 
by the government of the affected country that affect the estimated net 
subsidy;
    (6) Publish in the Federal Register notice of ``Preliminary Results 
of Countervailing Duty Administrative Review at the Direction of the 
President,'' including the countervailing duty rates or country-wide 
subsidy rate, if any, the estimated net subsidy for cash deposit 
purposes, and an invitation for argument consistent with Sec. 355.38;
    (7) Notify the Commission and all parties to the proceeding;
    (8) Promptly after issuing the preliminary results, provide to 
parties to the proceeding which request disclosure a further explanation 
of the preliminary results;
    (9) Issue final results of review that include:
    (i) The factual and legal conclusions on which the final results are 
based;
    (ii) The countervailing duty rates, or, if section 777A(e)(2)(B) of 
the Act applies, the country-wide subsidy rate, if any, during the 
period of review; and
    (iii) A description of official changes in the subsidy programs, 
made by the government of the affected country not later than the date 
of publication of the notice of preliminary results, that affect the 
estimated net subsidy;
    (10) Publish in the Federal Register notice of ``Final Results of 
Countervailing Duty Administrative Review at the Direction of the 
President,'' including the countervailing duty rates or country-wide 
subsidy rate, if any, and the estimated net subsidy for cash deposit 
purposes; and
    (11) Notify all parties to the proceeding;
    (12) Promptly after issuing the final results, provide to parties to 
the proceeding which request disclosure a further explanation of the 
final results; and
    (13) If the Secretary's final results of administrative review under 
paragraph (i)(9) of this section and the Commission's final results of 
review under section 762(a)(2) of the Act are affirmative:
    (i) Publish in the Federal Register a ``Countervailing Duty Order'' 
under Sec. 355.21 on or promptly after the date the agreement 
terminates; and

[[Page 241]]

(241
    (ii) Order the suspension of liquidation of entries of the 
merchandise entered, or withdrawn from warehouse, for consumption on or 
after the date of publication of the countervailing duty order.
    (j) Determination of countervailing duties for new shippers--(1) In 
general. If the Secretary receives a request, accompanied by the 
information described in paragraph (j)(2) of this section, from an 
exporter or producer of the merchandise establishing that:
    (i) Such exporter or producer did not export the merchandise that 
was the subject of a countervailing duty order to the United States (or, 
in the case of an order described in section 706(c) of the Act, did not 
export the merchandise for sale in the region concerned) during the 
period of investigation;
    (ii) Such exporter or producer is not affiliated with (within the 
meaning of section 771(33) of the Act) any exporter or producer who 
exported the merchandise to the United States (or in the case of an 
order described in section 706(c) of the Act, who exported the 
merchandise for sale in the region concerned) during that period; and
    (iii) The Secretary has not previously established a countervailing 
duty rate for such exporter or producer, the Secretary will conduct a 
review to establish a countervailing duty rate for such exporter or 
producer.
    (2) Certification of new shipper status. A request described in 
paragraph (j)(1) of this section shall include, with appropriate 
certifications:
    (i) The date on which subject merchandise of the exporter or 
producer making the request was first entered, or withdrawn from 
warehouse, for consumption, or, if the exporter or producer cannot 
certify as to the date of first entry, the date on which the exporter or 
producer first shipped the subject merchandise for export to the United 
States;
    (ii) A list of the firms with which the exporter or producer making 
the request is affiliated; and
    (iii) A statement from the exporter or producer making the request 
and from each firm with which the exporter or producer is affiliated 
that it did not, under its current or a former name, export the 
merchandise during the period of investigation.
    (3) Time for new shipper review--(i) In general. The Secretary will 
commence a review under paragraph (j)(1) of this section in the calendar 
month beginning after the semiannual anniversary month if the request 
for the review is made during the 6-month period ending with the end of 
the semiannual anniversary month.
    (ii) Semiannual anniversary month. The semiannual anniversary month 
is:
    (A) the calendar month in which the anniversary of the date of 
publication of the order occurs; or
    (B) the calendar month which is 6 months after the calendar month in 
which the anniversary of the date of publication of the order occurs.
    (4) Posting bond or security. The Secretary will, at the time a 
review under paragraph (j)(1) of this section is initiated, direct the 
Customs Service to allow, at the option of the importer, the posting, 
until the completion of the review, of a bond or security in lieu of a 
cash deposit for each entry of the merchandise.
    (5) Period under review. A review under paragraph (h)(1) of this 
section will cover, as appropriate, entries, exports, or sales during a 
period to be determined by the Secretary.
    (6) Procedures. After receipt of a request satisfying the 
requirements of paragraphs (j)(1), (j)(2), and (j)(3) of this section, 
the Secretary will:
    (i) Not later than 20 days after the semiannual anniversary month, 
issue a notice of ``Initiation of New Shipper Countervailing Duty 
Review;''
    (ii) Normally not later than 30 days after the date of issuance of 
the notice of initiation, send to appropriate interested parties or a 
sample of interested parties questionnaires requesting factual 
information for the review;
    (iii) Conduct, if appropriate, a certification under Sec. 355.36;
    (iv) Issue preliminary results of review, based on the available 
information, that include:
    (A) The factual and legal conclusions on which the preliminary 
results are based; and
    (B) The countervailing duty rate, if any, for each person reviewed, 
or, if section 777A(e)(2)(B) of the Act applies,

[[Page 242]]

(242a single estimated country-wide subsidy rate;
    (v) Publish in the Federal Register notice of ``Preliminary Results 
of New Shipper Countervailing Duty Administrative Review,'' including 
the countervailing duty rates or country-wide subsidy rate, if any, and 
an invitation for argument consistent with Sec. 355.38, and notify all 
parties to the proceeding;
    (vi) Promptly after issuing the preliminary results, provide to 
parties to the proceeding which request disclosure a further explanation 
of the calculation methodology used in reaching the preliminary results;
    (vii) Issue final results of review that include:
    (A) The factual and legal conclusions on which the final results are 
based;
    (B) The countervailing duty rate, if any, for each person reviewed 
or, if section 777A(e)(2)(B) of the Act applies, a single estimated 
country-wide subsidy rate;
    (viii) Publish in the Federal Register notice of ``Final Results of 
New Shipper Countervailing Duty Administrative Review,'' including the 
countervailing duty rates or country-wide subsidy rate, if any, and 
notify all parties to the proceeding;
    (ix) Promptly after issuing the final results, provide to parties to 
the proceeding which request disclosure of a further explanation of the 
calculation methodology used in reaching the final results; and
    (x) Promptly after publication of the notice of final results, 
instruct the Customs Service to assess countervailing duties on the 
merchandise described in paragraph (j)(4) of this section, and to 
collect a cash deposit of estimated countervailing duties on future 
entries.
    (7) Time limits--(i) In general. The Secretary will issue 
preliminary results in a review conducted under paragraph (j)(1) of this 
section within 180 days after the date on which the review is initiated, 
and final results within 90 days after the date the preliminary results 
are issued.
    (ii) Exception. If the Secretary concludes that the case is 
extraordinarily complicated, the Secretary may extend the 180-day period 
to 300 days, and may extend the 90-day period to 150 days.
    (8) Results of reviews. The results of a review under paragraph 
(j)(1) of this section shall be the basis for the assessment of 
countervailing duties on entries of merchandise covered by the 
determination and for deposits of estimated duties.
    (9) Multiple reviews. Notwithstanding any other provision of this 
section, if a review (or a request for a review) under paragraph (a), 
(f), or (g) of this section covers merchandise of an exporter or 
producer subject to a review (or to a request for a review) under 
paragraph (j)(1) of this section, the Secretary may:
    (i) Terminate, in whole or in part, a review in progress under this 
section; or
    (ii) Decline to commence, in whole or in part, a review under this 
section.

[53 FR 52344, Dec. 27, 1988, as amended at 60 FR 25137, May 11, 1995]

Sec. 355.23  Provisional measures deposit cap.

    This section applies to the merchandise entered, or withdrawn from 
warehouse, for consumption before the date of publication of the 
Commission's notice of affirmative final determination or, if the 
merchandise is from a country not entitled to an injury test for the 
merchandise, the date of the Secretary's notice of affirmative final 
determination. If the cash deposit or bond required under the 
Secretary's affirmative preliminary or affirmative final determination 
is different from the net subsidy the Secretary calculates under 
Sec. 355.22, the Secretary will instruct the Customs Service to 
disregard the difference to the extent that the cash deposit or bond is 
less than the net subsidy, and to assess countervailing duties equal to 
the net subsidy calculated under Sec. 355.22 if the cash deposit or bond 
is more than the net subsidy.

Sec. 355.24  Interest on certain overpayments and underpayments.

    (a) In general. The Secretary will instruct the Customs Service to 
pay or collect, as appropriate, interest on the difference between the 
cash deposit of estimated countervailing duties and the assessed 
countervailing duties on entries of the merchandise entered, or

[[Page 243]]

(243withdrawn from warehouse, for consumption on or after the date of 
publication of a countervailing duty order.
    (b) Rate. The rate or rates of interest payable or collectible under 
paragraph (a) of this section for any period of time are the rates 
established under section 6621 of the Internal Revenue Code of 1954.
    (c) Period. The Secretary will instruct the Customs Service to 
calculate interest for each entry from the date that a cash deposit is 
required to be deposited for the entry through the date of liquidation 
of the entry.

Sec. 355.25  Revocation of orders; termination of suspended 
          investigation.

    (a) Revocation or termination based on absence of subsidy. (1) The 
Secretary may revoke an order or terminate a suspended investigation if 
the Secretary concludes that:
    (i) The government of the affected country has eliminated all 
subsidies on the merchandise by abolishing for the merchandise, for a 
period of at least three consecutive years, all programs that the 
Secretary has found countervailable; and
    (ii) It is not likely that the government of the affected country 
will in the future reinstate for the merchandise those programs or 
substitute other countervailable programs.
    (2) The Secretary may revoke an order or terminate a suspended 
investigation if the Secretary concludes that:
    (i) All producers and exporters covered at the time of revocation by 
the order or the suspension agreement have not applied for or received 
any net subsidy on the merchandise for a period of at least five 
consecutive years; and
    (ii) It is not likely that those persons will in the future apply 
for or receive any net subsidy on the merchandise from those programs 
the Secretary has found countervailable in any proceeding involving the 
affected country or from other countervailable programs.
    (3) The Secretary may revoke an order in part if the Secretary 
concludes that:
    (i) One or more producers or exporters covered by the order have not 
applied for or received any net subsidy on the merchandise for a period 
of at least five consecutive years;
    (ii) It is not likely that those persons will in the future apply 
for or receive any net subsidy on the merchandise from those programs 
the Secretary has found countervailable in any proceeding involving the 
affected country or from other countervailable programs; and
    (iii) Except for producers or exporters that the Secretary 
previously has determined have not received any net subsidy on the 
merchandise, the producers or exporters agree in writing to their 
immediate reinstatement in the order, as long as any producer or 
exporter is subject to the order, if the Secretary concludes under 
Sec. 355.22(h) that the producer or exporter, subsequent to the 
revocation, has received any net subsidy on the merchandise.
    (b) Request for revocation or termination. (1) During the third and 
subsequent annual anniversary months of the publication of an order or 
suspension of investigation (the calendar month in which the anniversary 
of the date of publication of the order or suspension occurs), the 
government of the affected country may request in writing that the 
Secretary revoke an order or terminate a suspended investigation under 
paragraph (a)(1) of this section if the government submits with the 
request its certification that it has satisfied, during the period 
described in Sec. 355.22(b)(1), the requirements of paragraph (a)(1)(i) 
of this section and that it shall not reinstate for the merchandise 
those programs or substitute other countervailable programs; or
    (2) During the fifth and subsequent annual anniversary months of the 
publication of an order or suspended investigation, the government of 
the affected country may request in writing that the Secretary revoke an 
order or terminate a suspended investigation under paragraph (a)(2) of 
this section if the government submits with the request:
    (i) The certifications required under Sec. 355.22(a)(2) for all 
producers and exporters covered by the order or suspension agreement; 
and
    (ii) Those producers' and exporters' certifications that they shall 
not apply for or receive any net subsidy on the

[[Page 244]]

(244merchandise from any program described in paragraph (a)(2)(ii) of 
this section.
    (3) During the fifth and subsequent annual anniversary months of 
publication of an order or suspension of investigation, a producer or 
exporter may request in writing that the Secretary revoke an order with 
regard to that person if the person submits with the request:
    (i) The certifications required under Sec. 355.22(a)(2);
    (ii) The certifications described in paragraph (b)(2)(ii) of this 
section for the merchandise covered by the request; and
    (iii) The agreement described in paragraph (a)(3)(iii) of this 
section.
    (c) Procedures. (1) After receipt of a timely request under 
paragraph (b) of this section, the Secretary will consider the request 
as including a request for an administrative review and will conduct a 
review under Sec. 355.22(c).
    (2) In addition to the requirements of Sec. 355.22(c), the Secretary 
will:
    (i) Publish with the notice of initiation, under Sec. 355.22(c)(1), 
notice of ``Request for Revocation of Order (in Part)'' or, if 
appropriate, ``Request for Termination of Suspended Investigation;''
    (ii) Conduct a verification under Sec. 355.36;
    (iii) Include in the preliminary results of review, under 
Sec. 355.22(c)(4), the Secretary's decision whether there is a 
reasonable basis to believe that the requirements for revocation or 
termination are met;
    (iv) If the Secretary's preliminary decision under paragraph 
(c)(2)(iii) of this section is affirmative, publish with the notice of 
preliminary results of review, under Sec. 355.22(c)(5), notice of 
``Intent to Revoke Order (in Part)'' or, if appropriate, ``Intent to 
Terminate Suspended Investigation;''
    (v) Include in the final results of review, under Sec. 355.22(c)(7), 
the Secretary's final decision whether the requirements for revocation 
or termination are met; and
    (vi) If the Secretary's final decision under paragraph (c)(2)(v) of 
this section is affirmative, publish with the notice of final results of 
review, under Sec. 355.22(c)(8), notice of ``Revocation of Order (in 
Part)'' or, if appropriate, ``Termination of Suspended Investigation.''
    (3) If the Secretary revokes an order or revokes an order in part, 
the Secretary will order the suspension of liquidation ended for the 
merchandise covered by the revocation on the first day after the period 
under review, and will instruct the Customs Service to release any cash 
deposit or bond.
    (d) Revocation or termination based on changed circumstances. (1) 
The Secretary may revoke an order or terminate a suspended investigation 
if the Secretary concludes that:
    (i) The order or suspended investigation no longer is of interest to 
interested parties, as defined in paragraphs (i)(3), (i)(4), (i)(5), and 
(i)(6) of Sec. 355.2; or
    (ii) Other changed circumstances sufficient to warrant revocation or 
termination exist.
    (2) If at any time the Secretary concludes from the available 
information, including an affirmative statement of no interest from the 
petitioner in the proceeding, that changed circumstances sufficient to 
warrant revocation or termination may exist, the Secretary will conduct 
an administrative review under Sec. 355.22(h).
    (3) In addition to the requirements of Sec. 355.22(h), the Secretary 
will:
    (i) Publish with the notice of initiation, under 
Sec. 355.22(h)(1)(i), notice of ``Consideration of Revocation of Order 
(in Part)'' or, if appropriate, ``Consideration of Termination of 
Suspended Investigation;''
    (ii) If the Secretary's conclusion, as described in paragraph (d)(2) 
of this section, is not based on a request, the Secretary, not later 
than the date of publication of the notice described in paragraph 
(d)(3)(i) of this section, will serve written notice of the 
consideration of revocation or termination on each interested party 
listed on the Department's service list and on any other person which 
the Secretary has reason to believe is a producer or seller in the 
United States of the like product;
    (iii) Conduct a verification, if appropriate, under Sec. 355.36;
    (iv) Include in the preliminary results of review, under 
Sec. 355.22(h)(1)(iv), the Secretary's decision whether there

[[Page 245]]

(245is a reasonable basis to believe that the requirements for 
revocation or termination based on changed circumstances are met;
    (v) If the Secretary's preliminary decision under paragraph 
(d)(3)(iv) of this section is affirmative, publish with the notice of 
preliminary results of review, under Sec. 355.22(h)(1)(v), notice of 
``Intent to Revoke Order (in Part)'' or, if appropriate, ``Intent to 
Terminate Suspended Investigation;''
    (vi) Include in the final results of review, under 
Sec. 355.22(h)(1)(viii), the Secretary's final decision whether the 
requirements for revocation or termination based on changed 
circumstances are met; and
    (vii) If the Secretary's final decision under paragraph (d)(3)(vi) 
of this section is affirmative, publish with the notice of final results 
of review, under Sec. 355.22(h)(1)(ix), a notice of ``Revocation of 
Order (in Part)'' or, if appropriate, ``Termination of Suspended 
Investigation.''
    (4)(i) If for four consecutive annual anniversary months no 
interested party has requested an administrative review, under 
Sec. 355.22(a), of an order or suspended investigation, not later than 
the first day of the fifth consecutive annual anniversary month, the 
Secretary will publish in the Federal Register notice of ``Intent to 
Revoke Order'' or, if appropriate, ``Intent to Terminate Suspended 
Investigation.''
    (ii) Not later than the date of publication of the notice described 
in paragraph (d)(4)(i) of this section, the Secretary will serve written 
notice of the intent to revoke or terminate on each interested party 
listed on the Department's service list and on any other person which 
the Secretary has reason to believe is a producer or seller in the 
United States of the like product.
    (iii) If by the last day of the fifth annual anniversary month no 
interested party objects, or requests an administrative review under 
Sec. 355.22(a), the Secretary at that time will conclude that the 
requirements of paragraph (d)(1)(i) of this section for revocation or 
termination are met, revoke the order or terminate the suspended 
investigation, and publish in the Federal Register the notice described 
in paragraph (d)(3)(vii) of this section.
    (5) If the Secretary under paragraph (d) of this section revokes an 
order or revokes an order in part, the Secretary will order the 
suspension of liquidation ended for the merchandise covered by the 
revocation on the effective date of the notice of revocation, and will 
instruct the Customs Service to release any cash deposit or bond.
    (e) Revocation or termination based on injury reconsideration. If 
the Commission determines in an administrative review under section 
751(b) of the Act that an industry in the United States would not be 
materially injured, or would not be threatened with material injury, or 
the establishment of an industry in the United States would not be 
materially retarded, by reason of imports of the merchandise covered by 
a countervailing duty order or suspension agreement, the Secretary will 
revoke, in whole or in part, the order or terminate the suspended 
investigation, and will publish in the Federal Register notice of 
``Revocation of Order (in Part)'' or, if appropriate, ``Termination of 
Suspended Investigation.''

Sec. 355.27  Procedures for initiation of downstream product monitoring.

    (a) In general. A domestic producer of an article that is like a 
component part or a downstream product may file an application pursuant 
to this section requesting that the Secretary designate a downstream 
product for monitoring.
    (b) Contents of application. The application shall contain the 
following information, to the extent reasonably available to the 
applicant:
    (1) The name and address of the person requesting the monitoring and 
a description of the article it produces which is the basis for filing 
its application;
    (2) A detailed description of the downstream product in question;
    (3) A detailed description of the component product incorporated 
into such downstream product, including the value of the component part 
in relation to the value of the downstream product, and the extent to 
which the component part has been substantially transformed as a result 
of its incorporation into the downstream product;

[[Page 246]]

(246
    (4) The name of the home market country of both the downstream and 
component products and the name of any intermediate country through 
which these products are transshipped;
    (5) The name and address of all known producers of the component 
part and downstream product in the relevant countries and a detailed 
description of any relationship between such producers;
    (6) Whether the component part is already subject to monitoring to 
aid in the enforcement of a bilateral arrangement within the meaning of 
Section 804 of the Trade and Tariff Act of 1984;
    (7) A list of all antidumping or countervailing duty investigations 
suspended under Sec. 353.18 or Sec. 355.18, or antidumping or 
countervailing duty orders issued under Sec. 353.21 or Sec. 355.21 on 
merchandise related to the component part and manufactured in the same 
foreign country in which the component part is manufactured;
    (8) A list of all antidumping or countervailing duty investigations 
suspended under Sec. 353.18 or Sec. 355.18, or antidumping or 
countervailing orders issued under Sec. 353.21 or Sec. 355.21 on 
merchandise manufactured or exported by the manufacturer or exporter of 
the component part that is similar in description and use to the 
component part; and
    (9) The reasons for suspecting that the imposition of antidumping or 
countervailing duties has resulted in a diversion of exports of the 
component part into increased production and exportation to the United 
Sates of such downstream product.
    (c) Determination of sufficiency of application--(1) In general. 
Within 14 days after an application is filed under paragraph (b) of this 
section the Secretary will determine the sufficiency of the application. 
An application is considered to be filed at the time it is received by 
the Secretary. In order to determine that an application is sufficient, 
the Secretary must find:
    (i) There is a reasonable likelihood that imports of the downstream 
product into the United States will increase as an indirect result of 
any diversion with respect to the component part; and
    (ii) That--
    (A) The component part is already subject to monitoring with respect 
to the enforcement of a bilateral arrangement within the meaning of 
Section 804 of the Trade and Tariff Act of 1984, or
    (B) Merchandise related to the component part and manufactured in 
the same foreign country in which the component part is manufactured has 
been the subject of a significant number of antidumping or 
countervailing duty investigations suspended under Sec. 353.18 or 
Sec. 355.18, or antidumping or countervailing duty orders issued under 
Sec. 353.21 or Sec. 355.21, or
    (C) Merchandise manufactured or exported by the manufacturer or 
exporter of the component part that is similar in description and use to 
the component part has been the subject of at least two antidumping or 
countervailing duty investigations suspended under Sec. 353.18 or 
Sec. 355.18, or antidumping or countervailing duty orders issued under 
Sec. 353.21 or Sec. 355.21.
    (2) In making a determination under paragraph (c)(1)(i) of this 
section, the Secretary will consider all factors the Secretary considers 
relevant and may, if appropriate, take into account such factors as:
    (i) The value of the component part in relation to the value of the 
downstream product;
    (ii) The extent to which the component part has been substantially 
transformed as a result of its incorporation into the downstream 
product; and
    (iii) The relationship between the producers of the component part 
and producers of the downstream product.
    (d) Notice of determination. The Secretary will publish in the 
Federal Register notice of each affirmative or negative ``monitoring'' 
determination made under paragraph (c) of his section and if the 
determination under (c)(1)(i) and under any clause of (c)(1)(ii) are 
affirmative, will transmit to the Commission a copy of the determination 
and the application. The Secretary will make available to the Commission 
and to its employees directly involved in the monitoring all information 
upon which the Secretary based the initiation.
    (e) Action on basis of monitoring reports. The Secretary will review 
the information in any monitoring reports

[[Page 247]]

(247submitted to the Department by the Commission under Section 780 of 
the Act and will:
    (1) Consider the information in determining whether to initiate an 
investigation under Sec. 355.11 regarding any downstream product; and
    (2) Request the Commission to cease monitoring any downstream 
product if the information indicates that imports into the United States 
are not increasing and there is no reasonable likelihood of diversion 
with respect to the component part.
    (f) Definitions--(1) Downstream product means any manufactured 
product imported into the United States into which a component part is 
incorporated.
    (2) Component part means any imported article which:
    (i) During the previous five-year period, ending on the date on 
which the application is filed under paragraph (b) of this section, has 
been subject to--
    (A) An antidumping or countervailing duty order issued under 
Sec. 353.21 or Sec. 355.21 that required the deposit of estimated 
antidumping or countervailing duties, applicable to the particular 
manufacturer or exporter, at a rate of at least 15 percent ad valorem 
or,
    (B) A suspension agreement entered into under Sec. 353.18 or 
Sec. 355.18 after a preliminary determination under Sec. 353.15 or 
Sec. 355.15 was made by the Secretary which included a determination 
that the estimated net antidumping margin or subsidy rate, applicable to 
the particular manufacturer or exporter, was at least 15 percent ad 
valorem; and
    (ii) Due to its inherent characteristics, is routinely used as a 
major part, material, component, assembly, or subassembly in a 
downstream product.
    (g) Where to file; time of filing; format and number of copies. The 
requirements of Sec. 355.31 (d), (e), (f), and (g) apply to this 
section.

[55 FR 9052, Mar. 9, 1990]

Sec. 355.28  Procedures for the correction of ministerial errors.

    (a) In general. The Secretary will disclose the calculations 
performed in connection with a final countervailing duty determination 
pursuant to Sec. 355.20, or in a final results of an administrative 
review of a countervailing duty order pursuant to Sec. 355.22, to any 
party to the proceeding making a request in accordance with this 
section. A party to the proceeding must file such a request in writing 
with the Secretary within five business days of the date of publication 
of the relevant final determination or final results of administrative 
review. A party to whom the Secretary has disclosed final calculations 
may submit comments concerning any ministerial errors in such 
calculations.
    (b) Time limits. Comments must be filed within five business days 
after the date of disclosure unless the Secretary extends the time limit 
based upon a written request for extension that is filed within five 
business days after the date of disclosure and showing cause for such 
extension. Comments shall be submitted in writing to the Secretary and 
shall be served on all interested parties on the Department's service 
list. Interested parties may file replies to any comments submitted 
under paragraph (a) of this section. Any replies must be filed with the 
Secretary within five business days after the date the relevant comments 
under paragraph (a) are received by that party and shall be served on 
all interested parties on the Department's service list. All service of 
interested parties on the Department's service list pursuant to this 
paragraph shall be in accordance with Sec. 355.31(g). Notwithstanding 
the provisions of Sec. 355.34(d), the Secretary may permit 
representatives to retain proprietary information released under 
administrative protective order under Sec. 355.34 until the expiration 
of the time for filing for judicial review of the Secretary's correction 
of any ministerial errors. If the Secretary determines there are no 
ministerial errors, proprietary information will be returned in 
accordance with the provisions of Sec. 355.34(d).
    (c) Corrections. The Secretary will analyze any comments received 
and will correct any ministerial errors by amending the final 
countervailing duty determination or final results of administrative 
review. Such corrections will be published in the Federal Register. A 
correction notice does not alter the anniversary month of an order or 
suspension of investigation for

[[Page 248]]

(248purposes of requesting an administrative review under Sec. 355.22.
    (d) Definition of ``ministerial error''. For purposes of this 
section, ministerial error means an error in addition, subtraction, or 
other arithmetic function, clerical error resulting from inaccurate 
copying, duplication, or the like, and any other type of unintentional 
error which the Secretary considers ministerial.

[55 FR 9053, Mar. 9, 1990]

Sec. 355.29  Scope determination.

    (a) Self-initiation. If the Secretary determines from available 
information that an inquiry is warranted to determine whether a product 
is included within the scope of a countervailing duty order, the 
Secretary will initiate an inquiry and notify all interested parties on 
the Department's service lists of its initiation of a scope inquiry.
    (b) By application. Any interested party, as defined in 
Sec. 355.2(i), may file an application to determine whether a particular 
product is within the scope of an order. The application shall contain 
the following, to the extent reasonably available to the interested 
party:
    (1) A detailed description of the product, including technical 
characteristics and uses of the product, and its current U.S. Tariff 
Classification number;
    (2) A statement of the interested party's position as to whether the 
product is within the scope of an order, including--
    (i) A summary of the reasons for this conclusion,
    (ii) Citations to any applicable statutory authority, and
    (iii) Attachment of any factual support for this position, including 
applicable portions of the Secretary's or the Commission's 
investigation.
    Where all of these conditions are met, the Secretary will evaluate 
the application. If the Secretary determines that no inquiry is 
warranted to determine whether a product is included within the scope of 
an order, the Secretary will issue a final ruling as to whether the 
merchandise which is the subject of the application is included in the 
existing order. The Secretary will, by mail, notify all interested 
parties on the Department's service lists of its determination. If, 
however, the Secretary determines that a scope inquiry is warranted, the 
Secretary will, by mail, notify all interested parties on the 
Department's service lists of the initiation of a scope inquiry.
    (c) Notice. Any initiation of a scope inquiry issued pursuant to 
paragraphs (a) or (b) of this section will include:
    (1) A description of the product that is the subject of the scope 
inquiry; and
    (2) An explanation of the reasons for the Secretary's decision to 
initiate a scope inquiry; and
    (3) A schedule for submission of comments.
    (d) Procedures for scope inquiry. Except as provided under paragraph 
(d)(6) of this section, the procedures for scope inquiries will be as 
follows:
    (1) Interested parties shall file any comments not later than twenty 
days after receipt of the notification described in paragraph (c) of 
this section, unless the Secretary alters this time limit;
    (2) Not later than the time limit stated in the notification 
described in paragraph (c) of this section (ordinarily five days after 
the time limit for filing the comments described in paragraph (d)(1) of 
this section), any interested party may submit rebuttal comments;
    (3) Whenever the Secretary determines that a scope inquiry presents 
an issue of significant difficulty, the Secretary will issue a 
preliminary scope ruling based upon the available information at the 
time, as to whether there is a reasonable basis to believe or suspect 
that the product subject to a scope inquiry is included within the 
order. The Secretary will, by mail, notify all interested parties on the 
Department's service lists of its preliminary scope ruling and provide 
an invitation for comment. Unless otherwise specified, the Secretary 
will provide all interested parties thirty days from the date of receipt 
of the notification for comment;
    (4) The Secretary may issue questionnaires or verify submissions 
received, where appropriate;
    (5) The Secretary will issue a final ruling as to whether the 
product which is the subject of the scope inquiry is included in the 
existing order, including an explanation of the factual and legal

[[Page 249]]

(249conclusions on which the final ruling is based. The Secretary will, 
by certified mail, return receipt requested, notify all interested 
parties on the Department's service lists of its final scope ruling;
    (6) When a Sec. 355.22 review is in progress at the time the 
Secretary provides the notification outlined in paragraph (c) of this 
section, the scope investigation, in the Secretary's discretion, may be 
conducted in conjunction with a Sec. 355.22(c) review;
    (7) With respect to countervailing duty proceedings in which the 
Commission made an affirmative injury determination, prior to issuing a 
ruling in accordance with paragraph (3) or (5) of this section or 
Sec. 355.22(c)(4) or Sec. 355.22(c)(8) to include products within the 
scope of an order pursuant to--
    (i) Paragraph (e) of this section, other than operations in the 
United States involving minor completion or assembly,
    (ii) Paragraph (f) of this section, or
    (iii) Paragraph (h) of this section, with respect to later-developed 
products which incorporate a signficant technological advance or 
significant alteration of an earlier product,

 the Secretary will notify the Commission in writing of the proposed 
inclusion of such products in the order. Upon the written request of the 
Commission, the Secretary will consult with the Commission regarding the 
proposed inclusion and any such consultation will be completed within 15 
days after the date of such request. If the Commission believes, after 
such consultation, that a significant injury issue is presented by the 
proposed inclusion, the Commission may provide written advice to the 
Secretary as to whether the inclusion would be inconsistent with the 
affirmative determination of the Commission on which the order is based; 
and
    (8) On a quarterly basis, the Secretary will publish in the Federal 
Register a list of scope rulings completed within the last three months. 
This list will include the case name, reference number and a brief 
description of the ruling.
    (e) Products completed or assembled in the United States--(1) In 
General. If--
    (i) A product sold in the United States is of the same class or kind 
as merchandise that is the subject of an order, and
    (ii) Such product sold in the United States is completed or 
assembled in the United States from parts or components produced in the 
foreign country with respect to which such order applies, and
    (iii) The difference between the value of such product sold in the 
United States and the value of the imported parts and components 
referred to in paragraph (e)(1)(ii) is small,

the Secretary, after taking into account any advice provided by the 
Commission under paragraph (d)(7) of this section, may include within 
the scope of such order the imported parts or components referred to in 
paragraph (e)(1)(ii) that are used in the completion or assembly of the 
merchandise in the United States at any time such order is in effect.
    (2) Factors to consider. In determining whether to include parts or 
components in an order under paragraph (e)(1) of this section, the 
Secretary will take into account such factors as:
    (i) The pattern of trade;
    (ii) Whether the manufacturer or exporter of the parts or components 
is related to the person who assembles or completes the merchandise sold 
in the United States from the parts or components produced in the 
foreign country with respect to which the order described in paragraph 
(e)(1) of this section applies; and
    (iii) Whether imports into the United States of the parts or 
components produced in such foreign country have increased after the 
issuance of such order or finding.
    (f) Products completed or assembled in other foreign countries--(1) 
In General. If--
    (i) A product sold in the United States is of the same class or kind 
as the merchandise that is the subject of an order,
    (ii) Before importation into the United States, such imported 
product is completed or assembled in another foreign country from 
merchandise which is subject to such order, or is produced in the 
foreign country with respect to which such order applies,

[[Page 250]]

(250
    (iii) The difference between the value of such imported products and 
the value of the merchandise described in paragraph (f)(1)(ii) is small, 
and
    (iv) The Secretary determines that action is appropriate under this 
paragraph to prevent evasion of such order,

the Secretary, after taking into account any advice provided by the 
Commission under paragraph (d)(7) of this section, may include such 
imported products within the scope of such order at any time such order 
is in effect.
    (2) Factors to consider. In determining whether to include a product 
in an order under paragraph (f)(1) of this section, the Secretary will 
take into account such factors as:
    (i) The pattern of trade;
    (ii) Whether the manufacturer or exporter of the product described 
in paragraph (f)(1)(ii) is related to the person who uses the 
merchandise described in paragraph (f)(1)(ii) to assemble or complete in 
the foreign country the product that is subsequently imported into the 
United States; and
    (iii) Whether imports into the foreign country of the product 
described in paragraph (f)(1)(ii) have increased after the issuance of 
such order.
    (g) Minor alterations of merchandise--(1) In general. The class or 
kind of merchandise subject to an investigation or order will include 
articles altered in form or appearance in minor respects (including raw 
agricultural products that have undergone minor processing), whether or 
not included in the same tariff classification.
    (2) Exception. Paragraph (g)(1) of this section will not apply with 
respect to altered merchandise if the Secretary determines that it would 
be unnecessary to consider the altered merchandise within the scope of 
the investigation or order.
    (h) Later-developed products--(1) In general. For purposes of 
determining whether a product developed after a countervailing duty 
investigation is initiated (hereafter in this paragraph referred to as 
the ``later-developed merchandise'') is within the scope of an order, 
the Secretary will consider whether:
    (i) The later-developed product has the same general physical 
characteristics as the merchandise with respect to which the order was 
originally issued (hereafter in this paragraph referred to as the 
``earlier merchandise'');
    (ii) The expectations of the ultimate purchasers of the later-
developed product are the same as for the earlier merchandise;
    (iii) The ultimate use of the earlier merchandise and the later-
developed product are the same;
    (iv) The later-developed product is sold through the same channels 
of trade as the earlier merchandise; and
    (v) The later-developed product is advertised and displayed in a 
manner similar to the earlier merchandise.

    The Secretary will take into account any advice provided by the 
Commission under paragraph (d)(7) of this section before making a 
determination under this paragraph.
    (2) Exclusion from orders. The Secretary may not exclude later-
developed products from an order merely because the products:
    (i) Are classified under the tariff classification other than that 
identified in the petition or the Secretary's prior notices during the 
proceeding; or
    (ii) Permit the purchaser to perform additional functions, unless 
such additional functions constitute the primary use of the products and 
the cost of the additional functions constitute more than a significant 
proportion of the total cost of production of the products.
    (i) Other scope determinations. With respect to those scope 
determinations that are not covered under paragraphs (e) through (h) of 
this section, in considering whether a particular product is within the 
class or kind of merchandise described in an existing order, the 
Secretary will take into account the following:
    (1) The descriptions of the product contained in the petition, the 
initial investigation, and the determinations of the Secretary and the 
Commission.
    (2) When the above criteria are not dispositive, the Secretary will 
further consider:
    (i) The physical characteristics of the product;
    (ii) The expectations of the ultimate purchasers;
    (iii) The ultimate use of the product; and

[[Page 251]]

(251
    (iv) The channels of trade.
    (j) Suspension of liquidation. (1) When the Secretary initiates a 
scope inquiry pursuant to paragraph (c) of this section, and the subject 
product is already subject to suspension of liquidation, that suspension 
of liquidation will be continued pending a preliminary or a final scope 
ruling. Any suspension of liquidation will be at the cash desposit of 
estimated duty rate that will apply if the subject product is ruled to 
be included within the scope of the order.
    (2) If the Secretary issues a preliminary scope ruling pursuant to 
paragraph (d)(3) of this section to the effect that the subject product 
is included within the scope of the order, any suspension of liquidation 
described in paragraph (j)(1) of this section will continue. Where there 
has been no suspension of liquidation, the Secretary will instruct the 
Customs Service to suspend liquidation and require a cash deposit of 
estimated duties, at the applicable rate, for each suspended entry of 
the product entered, or withdrawn from warehouse, for consumption on or 
after the date of the preliminary scope ruling. If the Secretary issues 
a preliminary scope ruling to the effect that the subject product is not 
included within the scope of the order, the Secretary will order any 
suspension of liquidation on the subject product ended and will instruct 
the Customs Service to refund any cash deposits or release any bonds 
relating to this product.
    (3) If the Secretary issues a final scope ruling, pursuant to either 
paragraph (b) or (d)(5) of this section, to the effect that the subject 
product is included within the scope of the order, any suspension of 
liquidation pursuant to paragraph (j)(1) or (j)(2) of this section will 
continue. Where there has been no suspension of liquidation, the 
Secretary will instruct the Customs Service to suspend liquidation and 
require a cash deposit of estimated duties, at the applicable rate, for 
each entry of the product entered, or withdrawn from warehouse, for 
consumption on or after the date of the final scope ruling. If the 
Secretary's final scope ruling is to the effect that the subject product 
is not included within the scope of the order, the Secretary will order 
any suspension of liquidation on the subject product ended and will 
instruct the Customs Service to refund any cash deposits or release any 
bonds relating to this product.
    (k) Where to file; time of filing; format and number of copies. The 
requirements of Sec. 355.31 (d), (e), (f), and (g) apply to this 
section.

[55 FR 9054, Mar. 9, 1990]



Subpart C--Information and Argument

Sec. 355.31  Submission of factual information.

    (a) Time limits in general. (1) Except as provided in paragraphs 
(a)(2) and (b) of this section, submissions of factual information for 
the Secretary's consideration shall be submitted not later than:
    (i) For the Secretary's final determination, the day before the 
scheduled date on which the verification is to commence;
    (ii) For the Secretary's final results of an administrative review 
other than a review under Sec. 355.22(j), the earlier of the date of 
publication of notice of preliminary results of review or 180 days after 
the date of publication of notice of initiation of the review; or
    (iii) For the Secretary's final results of an administrative review 
under Sec. 355.22(j), the earlier of the date of publication of notice 
of preliminary results of review or 120 days after the date of 
publication of notice of initiation of the review.
    (2) Any interested party, as defined in paragraphs (i)(3), (i)(4), 
(i)(5), and (i)(6) of Sec. 355.2, may submit factual information to 
rebut, clarify, or correct factual information submitted by an 
interested party, as defined in paragraph (i)(1) or (i)(2) of 
Sec. 355.2, at any time prior to the deadline provided in this section 
for submission of such factual information or, if later, 10 days after 
the date such factual information is served on the interested party, or, 
if appropriate, made available under administrative protective order to 
the interested party.

[[Page 252]]

(252
    (3) The Secretary will not consider in the final determination or 
the final results, or retain in the record of the proceeding, any 
factual information submitted after the applicable time limit. The 
Secretary will return such information to the submitter with written 
notice stating the reasons for return of the information.
    (b) Questionaire responses and other submissions on request. (1) 
Notwithstanding paragraph (a) of this section, the Secretary may request 
any person to submit factual information at any time during a 
proceeding.
    (2) In the Secretary's written request to an interested party for a 
response to a questionnaire or for other factual information, the 
Secretary will specify the time limit for response. The Secretary 
normally will not consider or retain in the record of the proceeding 
unsolicited questionnaire responses, and in no event will the Secretary 
consider unsolicited questionnaire responses submitted after the date of 
publication of the Secretary's preliminary determination. The Secretary 
will return to the submitter, with written notice stating the reasons 
for return of the document, any untimely or unsolicited questionnaire 
responses rejected by the Department.
    (3) Ordinarily, the Secretary will not extend the time limit stated 
in the questionnnaire or request for other factual information. Before 
the time limit expires, the recipient of the Secretary's request may 
request an extension. The request must be in writing and state the 
reasons for the request. Only the following employees of the Department 
may approve an extension: the Assistant Secretary for Import 
Administration, the Deputy Assistant Secretary for Import 
Administration, the Deputy Assistant Secretary for Investigations, the 
Deputy Assistant Secretary for Compliance, and the office or division 
director responsible for the proceeding. An extension must be approved 
in writing.
    (4) Except as provided in Sec. 355.32(b) and subject to the other 
provisions of paragraph (b) of this section, questionnaire responses in 
administrative reviews must be submitted not later than 60 days after 
the date of receipt of the questionnaire.
    (c) Time limits for allegations of subsidies. (1) Except for an 
allegation of upstream subsidies submitted in an investigation (see 
Secs. 355.15(d) and 355.20(b)), the Secretary will not consider any 
subsidy allegation submitted by the petitioner or other interested 
party, as defined in paragraph (i)(3), (i)(4), (i)(5), or (i)(6) of 
Sec. 355.2, later than:
    (i) In an investigation, 40 days before the scheduled date for the 
Secretary's preliminary determination;
    (ii) In an administrative review other than a review under 
Sec. 355.22(j), 120 days after the date of publication of the notice of 
initiation of the review; or
    (iii) In an administrative review under Sec. 355.22(j), 60 days 
after the date of publication of the notice of initiation of the review.
    (2) Any interested party may request in writing not later than the 
time limits specified in paragraph (c)(1) of this section an extension 
of those time limits. If the Assistant Secretary for Import 
Administration concludes that an extension would facilitate the proper 
administration of the law, the Assistant Secretary may grant an 
extension of not longer than 10 days in an investigation or 30 days in 
an administrative review.
    (d) Where to file; time of filing. Address and submit documents to 
the Secretary of Commerce, Attention: Import Administration, Central 
Records Unit, Room B-099, U.S. Department of Commerce, Pennsylvania 
Avenue and 14th St., NW., Washington, DC 20230, between the hours of 
8:30 a.m. and 5:00 p.m. on business days. For all time limits in this 
part, the Secretary will consider documents received when stamped by the 
Central Records Unit with the date and time of receipt. If the time 
limit expires on a non-business day, the Secretary will accept documents 
that are filed on the next following business day.
    (e) Format and number of copies. (1) In general. Unless the 
Secretary alters the requirements of this section, submitters shall make 
all submissions in the format specified in paragraph (e) of this 
section. The Secretary may refuse

[[Page 253]]

(253to accept for the record of the proceeding any submission that does 
not conform to the requirements of paragraph (e) of this section.
    (2) Documents. In an investigation, submit 10 copies of any 
document, except a computer printout, and, if a person has requested 
that the Secretary treat portions of the document as proprietary 
information, submit five copies of a public version of the document, 
including any public summaries required under Sec. 355.32(b) as 
substitutes for the portions for which the person has requested 
proprietary treatment; and if administrative protective order versions 
are required to be served pursuant to Sec. 355.31(g) (1) or (2), submit 
one copy of the cover page, marked as described in paragraph (e)(2)(v), 
together with only those pages that differ from the public or 
proprietary versions. In an administrative review, scope inquiry, or 
downstream product monitoring application, submit seven copies of any 
document, except a computer printout; and if a person has requested that 
the Secretary treat portions of the document as proprietary information, 
submit three copies of a public version of the document, as described 
above; and submit one copy of any administrative protective order 
versions required to be served pursuant to Sec. 355.31(g) (1) or (2), as 
described above. In an investigation, administrative review, scope 
inquiry, or downstream product monitoring application, submit documents, 
if prepared for that segment of the proceeding, on letter-size paper, 
single-sided and double-spaced. Securely bind each copy as a single 
document with any letter of transmittal as the first page of the 
document. Mark the first page of each document in the upper right-hand 
corner with the following information in the following format:
    (i) On the first line, except for a petition, the Department case 
number;
    (ii) On the second line, the total number of pages in the document 
including cover pages, appendices, and any unnumbered pages;
    (iii) On the third line, state whether the document is for an 
investigation, scope inquiry, downstream product monitoring application, 
or an administrative review and, if the latter, the inclusive dates of 
the review;
    (iv) On the fourth and subsequent lines, state whether any portion 
of the document contains classified, privileged, or proprietary 
information and, if so, list the applicable page numbers and state 
either ``Document May be Released Under APO'' or ``Document May Not be 
Released Under APO'' (see Secs. 355.32(c) and 355.34);
    (v) For administrative protective order versions, described in 
Sec. 355.31(g) (1) or (2), complete the marking as required in 
paragraphs (i)-(iv) above for the proprietary document, but 
conspicuously mark the first page ``APO Version Prepared for [Name of 
party entitled to receive materials]''; and
    (vi) For public versions of proprietary documents, required by 
Sec. 355.32(b), complete the marking as required in paragraphs (e)(2) 
(i) through (iv) of this section for the proprietary document, but 
conspicuously mark the first page ``Public Version.''
    (3) Computer tapes and printouts. The Secretary may require 
submission of factual information on computer tape unless the Secretary 
decides that the submitter does not maintain records in computerized 
form and cannot supply the requested information on computer tape 
without unreasonable additional burden in time and expense. In an 
investigation or administrative review, the tape shall be accompanied by 
three copies of any computer printout and three copies of the public 
version of the printout.
    (f) Translation to English. Unless the Secretary waives in writing 
this requirement for an individual document, any document submitted 
which is in a foreign language must be accompanied by an English 
translation.
    (g) Service of copies on other parties. With the exception of 
petitions, proposed suspension agreements submitted under 
Sec. 355.18(g)(1)(i), and factual information submitted under 
Sec. 355.32(a) that is not required to be served on an interested party, 
the submitter of a document shall, at the same time, serve a copy of the 
document, on all interested parties on the Department's service list by 
first class mail or personal service. In addition, where proprietary 
information is involved, the

[[Page 254]]

(254submitter shall serve the following administrative protective order 
versions:
    (1) With respect to parties to the proceeding that are subject to 
administrative protective orders under Sec. 355.34, the submitter of a 
document shall include that proprietary information that the interested 
party is entitled to receive under the terms of the administrative 
protective order, as well as the party's own proprietary information, 
but no other proprietary information;
    (2) With respect to interested parties that are not subject to an 
administrative protective order, but when the submission contains that 
interested party's proprietary information, the submitter of a document 
shall serve the interested party with a version that contains just the 
interested party's own proprietary information.
    The Secretary will not accept any document that is not accompanied 
by a certificate of service listing the parties served, the type of 
document served, and, for each, indicating the date and method of 
service.
    (h) Service list. The Central Records Unit will maintain and make 
available a service list for each proceeding. Each interested party 
which asks to be on the service list shall designate a person to receive 
service of documents filed in a proceeding.
    (i) Certifications. Any interested party which submits factual 
information to the Secretary must submit with the factual information 
the certification in paragraph (i)(1) and, if the party has legal 
counsel or another representative, the certification in paragraph (i)(2) 
of this section:
    (1) For the interested party's official responsible for presentation 
of the factual information: ``I, (name and title), currently employed by 
(interested party), certify that (1) I have read the attached 
submission, and (2) the information contained in this submission is, to 
the best of my knowledge, complete and accurate.''
    (2) For interested party's legal counsel or other representative: 
``I, (name), of (law or other firm), counsel or representative to 
(interested party), certify that (i) I have read the attached 
submission, and (ii) based on the information made available to me by 
(interested party), I have no reason to believe that this submission 
contains any material misrepresentation or omission of fact.''

[53 FR 52344, Dec. 27, 1988, as amended at 55 FR 9056, Mar. 9, 1990; 57 
FR 30903, July 13, 1992; 60 FR 25139, May 11, 1995]

Sec. 355.32  Request for proprietary treatment of information.

    (a) Submission and content of request. (1) Any person who submits 
factual information to the Secretary in connection with a proceeding may 
request that the Secretary treat that information, or any specified 
part, as proprietary.
    (2) The submitter shall identify proprietary information on each 
page by placing brackets around the proprietary information and clearly 
stating at the top of each page containing such information 
``Proprietary Treatment Requested'' and the warning ``Bracketing of 
proprietary information not final for one business day after date of 
filing.'' The bracketing becomes final one business day after the date 
of filing of the document, i.e., at the same time as the nonbusiness 
proprietary version of the document is due to be filed. Until the 
bracketing becomes final, recipients of the document may not divulge any 
part of the contents of the document to anyone not subject to the 
administrative protective order issued in the investigation. After the 
bracketing becomes final, recipients may divulge the public version of 
the document to anyone not subject to the administrative protective 
order. If the submitter discovers it has failed to bracket correctly, 
the submitter may file a corrected version or portion of the business 
proprietary document at the same time as the nonbusiness proprietary 
version is filed. No changes to the document other than bracketing and 
deletion of business proprietary information are permitted after the 
deadline. Failure to comply with this paragraph may result in the 
striking from the record of all or a portion of a submitter's document.
    (3) The submitter shall provide a full explanation why each piece of 
factual information subject to the request is entitled to proprietary 
treatment under Sec. 355.4. The request and explanation shall be a part 
of or securely

[[Page 255]]

(255bound with the document containing the information.
    (b) Public Summary. Except as provided in paragraph (b)(3) of this 
section, not later than one business day after submitting information 
for which proprietary treatment is requested, any person who requests 
proprietary treatment shall provide to the Secretary:
    (1) An adequate public summary of all proprietary information, 
incorporated in the public version of the document (generally, numeric 
data are adequately summarized if grouped or presented in terms of 
indices, or figures within 10 percent of the actual figure, and if an 
individual portion of the data is voluminous, at least one percent 
representative of that portion is individually summarized in this 
manner); or
    (2) A statement itemizing those portions of the proprietary 
information which cannot be summarized adequately and all arguments 
supporting that conclusion for each portion.
    (3) All requests for proprietary treatment of information contained 
in petitions submitted under Sec. 355.12 and proposed suspension 
agreements submitted under Sec. 355.18(g)(1)(i) shall be accompanied by 
a pubic summary and statement described in paragraphs (b)(1) and (b)(2) 
of this section.
    (c) Agreement to release. All requests for proprietary treatment 
shall include either an agreement to permit disclosure under 
administrative protective order, or a statement itemizing which portions 
of the proprietary information should not be released under 
administrative protective order and all arguments supporting that 
conclusion for each portion. The Secretary ordinarily will not provide 
the submitter further opportunity for argument on whether to grant a 
request for disclosure under administrative protective order.
    (d) Return of information as a result of nonconforming request. The 
Secretary may return to the submitter any factual information for which 
the submitter requested proprietary treatment when the request does not 
conform to the requirements of this section and in any event will not 
consider the information. If the Secretary returns the information, the 
Secretary will provide a written explanation of the reasons why it does 
not conform and will not consider it unless it is resubmitted with a new 
request which complies with the requirements of this section not later 
than two business days after receipt of the Department's explanation for 
rejection of the information.
    (e) Status during consideration of request. While considering 
whether to grant a request for proprietary treatment, the Secretary will 
not disclose or make public the information. The Secretary normally will 
decide not later than 14 days after the Secretary receives the request.
    (f) Treatment of proprietary information. Unless the Secretary 
otherwise provides, the person to whom the Secretary discloses 
information shall not disclose the information to any other person. The 
Secretary may disclose factual information which the Secretary decides 
is proprietary only to:
    (1) A representative of an interested party who requests and is 
granted an administrative protective order under Sec. 355.34;
    (2) An employee of the Department directly involved in the 
proceeding for which the information is submitted;
    (3) An employee of the Commission directly involved in the 
proceeding for which the information is submitted;
    (4) An employee of the Customs Service directly involved in 
conducting a fraud investigation relating to a countervailing duty 
proceeding on the merchandise;
    (5) Any person to whom the submitter specifically authorizes (in 
writing) disclosure; and
    (6) A charged party or counsel for the charged party under Part 354 
of this title (19 CFR part 354).
    (g) Denial of request for proprietary treatment. If the Secretary 
decides that the factual information does not warrant proprietary 
treatment in whole or in part, the Secretary will notify the submitter. 
Unless the submitter agrees that the information be considered public, 
the Secretary will return the information to the submitter with written 
notice stating the reasons for return of the information and will not 
consider it in the proceeding.

[53 FR 52344, Dec. 27, 1988, as amended at 57 FR 30903, July 13, 1992]

[[Page 256]]

(256

Sec. 355.33  Information exempt from disclosure.

    Privileged or classified information is exempt from disclosure to 
the public or to representatives of interested parties.

Sec. 355.34  Disclosure of proprietary information under administrative 
          protective order.

    (a) In general. Upon receipt of an application (before or after 
receipt of the information requested) which describes in general terms 
the information requested and sets forth the reasons for the request, 
the Secretary shall require all proprietary information presented to, or 
obtained by it, during a segment of a proceeding (except privileged 
information, classified information, and specific information of a type 
for which there is a clear and compelling need to withhold from 
disclosure) to be disclosed to interested parties who are parties to the 
proceeding under a protective order described in this section, 
regardless of when the information is submitted during the segment of 
the proceeding.
    (b) Request for disclosure. (1) A representative must file a request 
for disclosure under administrative protective order not later than the 
later of:
    (i) 30 days after the date of publication in the Federal Register of 
the notice of initiation under Sec. 355.11 or Sec. 355.13, or the notice 
of initiation of administrative review under Sec. 355.22; or
    (ii) 30 days after the initiation of a scope inquiry pursuant to 
Sec. 355.29 (a) or (b); or
    (iii) 10 days after the date the representative's client or employer 
becomes a party to the proceeding, but in no event later than the date 
the case briefs, under Sec. 355.38 are due.
    (2) The representative must file the request for disclosure on the 
standard form provided by the Secretary (Form ITA-367). The standard 
form will require only such particularity in the description of the 
requested information as is consistent with both the criteria the 
Secretary uses to decide whether to disclose, and with the fact that a 
request may be made for factual information not yet submitted.
    (3) The request shall obligate the representative:
    (i) Not to disclose the proprietary information to anyone other than 
the submitter and other persons authorized by an administrative 
protective order to have access to the information;
    (ii) To use the information solely for the segment of the proceeding 
in which it was submitted;
    (iii) To ensure the security of the proprietary information at all 
times; and
    (iv) To report promptly to the Secretary any apparent violation of 
the terms of the protective order.
    (4) The request shall contain an acknowledgement by the 
representative that:
    (i) A representative determined to have violated a protective order 
may be subject to any or all of the sanctions listed in part 354 of this 
title; and
    (ii) The firm of which a person determined to have violated a 
protective order is a partner, associate, or employee, and any partner, 
associate, employer, or employee of such person, may be subject to any 
or all of the sanctions listed in part 354 of this title.
    (5) The Secretary will decide whether to disclose information under 
administrative protective order:
    (i) Not later than 14 days after the date on which the information 
is submitted; or
    (ii) If--
    (A) The person who submitted the information raises objection to its 
release, or
    (B) The information is unusually voluminous or complex,

not later than 30 days after the date on which the information is 
submitted.
    (6) If the Secretary decides that disclosure of information under 
administrative protective order is proper under paragraph (b)(5) of this 
section:
    (i) With respect to proprietary information submitted to the 
Secretary on or before the date of the decision to disclose, the 
submitting party shall, within two business days of the date of 
decision, serve the party which requested such disclosure, in accordance 
with Sec. 355.31(g); and
    (ii) The submitting party shall serve all future submissions of 
proprietary information directly on the requesting party as required by 
Sec. 355.31(g).

[[Page 257]]

(257
    (c) Opportunity to withdraw proprietary information. If the 
Secretary decides to require disclosure of proprietary information under 
administrative protective order without the consent of the submitter, 
the Secretary will provide to the submitter written notice of the 
decision and the reasons therefor and will permit the submitter to 
withdraw the information from the official record within two business 
days. The Secretary will not consider withdrawn information. 
Furthermore, if the submitter does not withdraw the information but 
fails to serve the party requesting such information, in accordance with 
Sec. 355.34(b)(6), the Secretary will not consider such information.
    (d) Disposition of proprietary information disclosed under 
administrative protective order. (1) At the expiration of the time for 
filing for judicial review of a decision by the Secretary, if there is 
no filing by any party to the proceeding, or at an earlier date the 
Secretary decides appropriate, the representative must return or destroy 
all proprietary information released under this section and all other 
materials containing the proprietary information (such as notes or 
memoranda). The representative at that time must certify to the 
Secretary full compliance with the terms of the protective order and the 
return or destruction of all proprietary information.
    (2) The representative of a party to the proceeding that files for 
judicial review or intervenes in the judicial review may retain the 
proprietary information, provided that the party applies for a court 
protective order for the information not later than 15 days after the 
Secretary files the administrative record with the court. If the court 
denies the party's application for a court protective order, the 
representative must return or destroy the proprietary information and 
all other materials containing the proprietary information not later 
than 48 hours after the court's decision and certify to the Secretary as 
provided under paragraph (d)(1) of this section.
    (e) Violation of administrative protective order. The procedures for 
investigating any alleged violation of an administrative protective 
order issued under this section and for imposing sanctions for a 
violation of such order are set forth in part 354 of this title (19 CFR 
part 354).

[53 FR 52344, Dec. 27, 1988, as amended at 55 FR 9056, Mar. 9, 1990]

Sec. 355.35  Ex parte meeting.

    The Secretary will prepare for the official record a written 
memorandum of any ex parte meeting between any person providing factual 
information in connection with a proceeding and the person to whom the 
Secretary has delegated the authority to make the decision in question 
or the person making a final recommendation to that person. The 
memorandum will include the date, time, and place of the meeting, the 
identity and affiliation of all persons present, and a public summary of 
the factual information submitted.

Sec. 355.36  Verification of information.

    (a) In general. (1) The Secretary will verify all factual 
information the Secretary relies on in:
    (i) A final determination under Sec. 355.18(i) or Sec. 355.20;
    (ii) A revocation under Sec. 355.25;
    (iii) The final results of an administrative review under 
Sec. 355.22(c), (h), or (i) if the Secretary decides that good cause for 
verification exists; and
    (iv) The final results of an administrative review under 
Sec. 355.22(c) if:
    (A) An interested party, as defined in paragraph (i)(3), (i)(4), 
(i)(5), or (i)(6) of Sec. 355.2, not later than 120 days after the date 
of publication of the notice of initiation of review, submits a written 
request for verification; and
    (B) The Secretary conducted no verification under this paragraph 
during either of the two immediately preceding administrative reviews.
    (2) If the Secretary decides that, because of the large number of 
producers and exporters included in an investigation or administrative 
review, it is impractical to verify relevant factual information for 
each person, the Secretary may select and verify a sample. The Secretary 
will apply the results of the verification of the sample to all 
producers and exporters included in the investigation or review.
    (b) Notice of verification. In publishing a notice of final 
determination, revocation, or final results of administrative

[[Page 258]]

(258review, the Secretary will report the methods and procedures used to 
verify under this section.
    (c) Procedures for verification. In verifying under this section, 
the Secretary will notify the government of the affected country in 
which verification takes place that employees of the Department will 
visit with producers, exporters, or government agencies in order to 
verify the accuracy and completeness of submitted factual information. 
As part of the verification, employees of the Department will request 
access to all files, records, and personnel of the producers, exporters, 
or the government agencies which the Secretary considers relevant to 
factual information submitted by those persons.

Sec. 355.37  Best information available.

    (a) Use of best information available. The Secretary may use the 
best information available whenever the Secretary:
    (1) Does not receive a complete, accurate, and timely response to 
the Secretary's request for factual information; or
    (2) Is unable to verify, within the time specified, the accuracy and 
completeness of the factual information submitted.
    (b) What is best information available. The best information 
available may include the factual information submitted in support of 
the petition or subsequently submitted by interested parties, as defined 
in paragraph (i)(3), (i)(4), (i)(5), or (i)(6) of Sec. 355.2. If an 
interested party refuses to provide factual information requested by the 
Secretary or otherwise impedes the proceeding, the Secretary may take 
that into account in determining what is the best information available.

Sec. 355.38  Written argument and hearings.

    (a) Written argument. The Secretary will consider in making the 
final determination under Sec. 355.18(i) or Sec. 355.20 or the final 
results under Sec. 355.22 only written arguments in case or rebuttal 
briefs filed within the time limits in this section. The Secretary will 
not consider or retain in the record of the proceeding any written 
argument, unless requested by the Secretary (and received within the 
time limit specified by the Secretary), that is submitted after the time 
limits specified in this section. At any time during the proceeding, the 
Secretary may request written argument on any issue from any interested 
party or United States Government agency. The Secretary will return to 
the submitter, with written notice stating the reasons for return of the 
document, any written argument submitted after the time limits specified 
in this section or by the Secretary.
    (b) Request for hearing. Not later than 10 days after the date of 
publication of the Secretary's preliminary determination or preliminary 
results of administrative review, unless the Secretary alters this time 
limit, any interested party may request that the Secretary hold a public 
hearing on arguments to be raised in case or rebuttal briefs. To the 
extent practicable, a party requesting a hearing shall identify 
arguments to be raised at the hearing. At the hearing, an interested 
party may make an affirmative presentation only on arguments included in 
that party's case brief and may make a rebuttal presentation only on 
arguments included in that party's rebuttal brief.
    (c) Case brief. (1) Any interested party or U.S. Government agency 
may submit a ``case brief'':
    (i) Not later than 50 days after the date of publication of the 
Secretary's preliminary determination in an investigation, unless the 
Secretary alters this time limit; or
    (ii) Not later than 30 days after the date of publication of the 
preliminary results of administrative review.
    (2) The case brief shall separately present in full all arguments 
that continue in the submitter's view to be relevant to the Secretary's 
final determination or final results, including any arguments presented 
before the date of publication of the preliminary determination or 
preliminary results.
    (d) Rebuttal brief. Not later than the time limit stated in the 
notice of the Secretary's preliminary determination or preliminary 
results, ordinarily five days in an investigation and seven days in an 
administrative review after the time limit for filing the case brief, 
any interested party or U.S. Government

[[Page 259]]

(259agency may submit a ``rebuttal brief.'' The rebuttal brief shall 
separately present in full all rebuttal arguments, responding only to 
arguments raised in case briefs.
    (e) Service of briefs. The submitter of either a case or rebuttal 
brief shall serve a copy of that brief on the government of the affected 
country, on any interested party on the Department's service list, and 
on any U.S. Government agency that has submitted in the segment of the 
proceeding a case or rebuttal brief. If the party has designated under 
Sec. 355.31(h) an agent in the United States, service shall be either by 
personal service on the same day the brief is filed with the Secretary 
or by overnight mail or courier on the next day and, if the party has 
designated an agent outside the United States, service shall be by first 
class airmail. The submitter shall attach to each brief a certificate of 
service listing the parties (including agents) served and, for each, the 
date and method of service.
    (f) Hearings. If an interested party submits a request under 
paragraph (b) of this section, the Secretary will hold a public hearing 
on the date stated in the notice of the Secretary's preliminary 
determination or preliminary results of administrative review, unless 
the Secretary alters the date. Ordinarily, the hearing will be held, in 
an investigation, two days after the scheduled date for submission of 
rebuttal briefs and, in an administrative review, seven days after the 
scheduled date for submission of rebuttal briefs.
    (1) The Secretary will place a verbatim transcript of the hearing in 
the public and official records of the proceeding and will announce at 
the hearing how interested parties may obtain copies of the transcript.
    (2) One of the following employees of the Department will chair the 
hearing: the Assistant Secretary for Import Administration, the Deputy 
Assistant Secretary for Import Administration, the Deputy Assistant 
Secretary for Investigations, the Deputy Assistant Secretary for 
Compliance, or the office or division director responsible for the 
proceeding.
    (3) The hearing is not subject to the Administrative Procedure Act. 
Witness testimony, if any, shall not be under oath or subject to cross-
examination by another interested party or witness. During the hearing, 
the chair may question any interested party or witness and may request 
interested parties to present additional written argument.
    (g) Where to file; time of filing. The requirements in 
Sec. 355.31(d) apply to this section.
    (h) Format and number of copies. The requirements in Sec. 355.31(e) 
apply to this section, except that in an administrative review submit 10 
copies of each brief and five copies of the public version, including 
the public summary required under Sec. 355.32(b).
    (i) Public comment on information. In any investigation or review 
under this part, the Secretary will specify a date on which the 
Secretary will cease collecting information and on which the Secretary 
will release to parties that have participated in the investigation or 
review all information on which the parties have not previously had an 
opportunity to comment. Any such information that is business 
proprietary information will be released to persons authorized to obtain 
such information pursuant to Sec. 355.34. Parties shall have an 
opportunity to file written comments on any information released to 
them, and the date on which such comments must be filed will be 
specified by the Secretary. The Secretary will disregard comments 
containing new factual information.

[53 FR 52344, Dec. 27, 1988, as amended at 60 FR 25139, May 11, 1995]

Sec. 355.39  Subsidy practice discovered during investigation or review.

    (a) Inclusion in proceeding. If during an investigation or an 
administrative review the Secretary discovers a practice which appears 
to provide a subsidy with respect to the merchandise and the practice 
was not alleged or examined in the proceeding, the Secretary will 
examine the practice if the Secretary concludes that sufficient time 
remains before the scheduled date for the Secretary's final 
determination or final results of review.
    (b) Deferral of examination. If the Secretary concludes that 
insufficient time remains, before the scheduled date for

[[Page 260]]

(260the Secretary's final determination or final results of review, to 
examine the practice described in paragraph (a) of this section, the 
Secretary will:
    (1) During an investigation, allow the petitioner to withdraw the 
petition without prejudice and resubmit it with an allegation with 
regard to the newly discovered practice; or
    (2) During an investigation or review, defer consideration of the 
newly discovered practice until the next review under Sec. 355.22(c).
    (c) Notice. The Secretary will notify the parties to the proceeding 
of any practice the Secretary discovered and whether or not it will be 
included in the then ongoing proceeding.

Sec. 355.40  Likelihood of continued subsidization; revocation under 
          section 753 of the Act.

    (a) Notification of domestic interested parties. (1) As soon as 
possible after the opportunity arises for requesting an investigation 
under section 753 of the Act, the Secretary will:
    (i) Notify domestic interested parties on the Department's service 
list by first class mail or personal service of the opportunity to 
request an injury investigation by the Commission; and
    (ii) Publish in the Federal Register a notice informing domestic 
interested parties of the opportunity to request an injury investigation 
by the Commission.
    (2) The notification provided for in paragraph (a)(1) of this 
section will inform domestic interested parties of the opportunity to 
request that reviews of outstanding antidumping orders or findings and 
countervailing duty orders under section 751(c) of the Act involving the 
same or comparable merchandise be expedited.
    (3) For purposes of paragraph (a) of this section, ``domestic 
interested parties'' means interested parties described in paragraphs 
(i)(3), (i)(4), (i)(5), or (i)(6) of Sec. 355.2, or in section 771(9)(G) 
of the Act.
    (b) Suspension of liquidation. (1) The Secretary will instruct the 
Customs Service to suspend liquidation with respect to entries of 
subject merchandise made on or after:
    (i) In the case of an order described in section 753(a)(1(B)(i) of 
the Act, the date on which the country described in section 753(a)(1)(A) 
of the Act becomes a Subsidies Agreement country within the meaning of 
section 701(b) of the Act; or
    (ii) In the case of an order described in section 753(a)(1)(B)(ii) 
of the Act, the date on which such order is issued.
    (2) Liquidation shall be suspended under paragraph (b)(1) of this 
section at the cash deposit rate in effect on the date described in 
paragraph (b)(1)(i) or (b)(1)(ii) of this section, whichever is 
applicable.
    (c) Net countervailable subsidy; nature of subsidy. The Secretary 
will provide to the Commission the net countervailable subsidy that is 
likely to prevail if the order is revoked. The Secretary will normally 
choose a net countervailable subsidy that was determined under section 
705 or subsection (a) or (b)(1) of section 751 of the Act. At the same 
time, the Secretary also will inform the Commission of the nature of the 
countervailable subsidy and whether the countervailable subsidy is a 
subsidy described in Article 3 or Article 6.1 of the Subsidies 
Agreement, as defined in section 771(8)(A) of the Act.
    (d) Initiation and conduct of review.--(1) In general. Where the 
Secretary deems it necessary in order to provide to the Commission the 
information described in paragraph (c) of this section, the Secretary 
will initiate a review of the countervailing duty order in question.
    (2) Notice of initiation of review. Where the Secretary initiates a 
review under paragraph (d)(1) of this section, the Secretary will 
publish in the Federal Register a notice of ``Initiation of 
Countervailing Duty Section 753 Review.''
    (3) Conduct of review. Following the initiation of a review under 
paragraph (d)(1) of this section, the Secretary will:
    (i) If the Secretary considers it appropriate, send to interested 
parties and other persons, or a sample of interested parties and other 
persons, questionnaires requesting factual information for the review;
    (ii) If the Secretary considers it appropriate, conduct a 
verification under Sec. 355.36;

[[Page 261]]

(261
    (iii) Issue, based on available information, preliminary results of 
review that include the factual and legal conclusions on which the 
preliminary results are based;
    (iv) Publish in the Federal Register notice of ``Preliminary Results 
of Countervailing Duty Section 753 Review,'' including an invitation for 
argument consistent with Sec. 355.38;
    (v) Promptly notify all parties to the proceeding of the preliminary 
results, and provide to such parties which request disclosure a future 
explanation of the calculation methodology used in reaching the 
preliminary results;
    (vi) Issue final results of review that include the factual and 
legal conclusions on which the final results are based;
    (vii) Publish in the Federal Register notice of ``Final Results of 
Countervailing Duty Section 753 Review;'' and
    (viii) Promptly notify all parties to the proceeding and the 
Commission of the final results, and provide such parties which request 
disclosure a further explanation of the calculation methodology used in 
reaching the final results.
    (e) Effect of affirmative Commission determination. Upon being 
notified by the Commission that it has made an affirmative determination 
under section 753(a)(1) of the Act:
    (1) The Secretary will order the termination of the suspension of 
liquidation required pursuant to paragraph (b) of this section; and
    (2) The countervailing duty order shall remain in effect until 
revoked, in whole or in part.
    (f) Effect of negative Commission determination. Upon being notified 
by the Commission that it has made a negative determination under 
section 753(a)(1) of the Act, the Secretary will revoke the 
countervailing duty order and refund, with interest, any estimated 
countervailing duty collected during the period liquidation was 
suspended pursuant to paragraph (b) of this section.

[60 FR 25139, May 11, 1995]



Subpart D--Quota Cheese Subsidy Determinations

Sec. 355.41  Definition of subsidy.

    For purposes of this subpart, subsidy means both ``subsidy'' and 
``net subsidy'' as defined in sections 771(5) and 771(6) of the Act.

Sec. 355.42  Annual list and quarterly update.

    (a) Annual list. Not later than January 1st of each year, the 
Secretary, in consultation with the Secretary of Agriculture, will 
determine based on the available information whether any foreign 
government is providing a subsidy, as defined in Sec. 355.41, with 
respect to any article of quota cheese, as defined in section 701(c)(1) 
of the Trade Agreements Act, and will publish in the Federal Register a 
list of the type and amount of each subsidy. The Secretary will 
incorporate in each annual list any changes and additional subsidies for 
the preceding calendar year determined under paragraph (b) of this 
section or under Sec. 355.43(b).
    (b) Quarterly update. Not later than April 1st, July 1st, and 
October 1st of each year, the Secretary, in consultation with the 
Secretary of Agriculture, will determine based on the available 
information whether there have been any changes in or additions to the 
latest annual list, and will publish in the Federal Register a quarterly 
update of those changes and additions.

Sec. 355.43  Determination upon request.

    (a) Request for determination. Any person, including the Secretary 
of Agriculture, who has reason to believe there have been changes in or 
additions to the latest annual list may request in writing that the 
Secretary determine whether there are any changes or additions. The 
person shall file the request at the time and place specified in 
Sec. 355.31(d). The request shall allege either a change in the type or 
amount of any subsidy included in the latest annual list or quarterly 
update or an additional subsidy not included in that list or update 
provided by a foreign government, and shall contain the following, to 
the extent reasonably available to the requesting person:

[[Page 262]]

(262
    (1) The name and address of the person;
    (2) The article of quota cheese allegedly benefitting from the 
changed or additional subsidy;
    (3) The country of origin of the article of quota cheese; and
    (4) The alleged subsidy or changed subsidy and relevant factual 
information (particularly documentary evidence) regarding the alleged 
changed or additional subsidy including the authority under which it is 
provided, the manner in which it is paid, and the value of the subsidy 
to producers or exporters of the article.
    The requirements of Sec. 355.31(d) and (f) apply to this section.
    (b) Determination. Not later than 30 days after receiving an 
acceptable request, the Secretary will:
    (1) In consultation with the Secretary of Agriculture, determine 
based on the available information whether there has been any change in 
the type or amount of any subsidy included in the latest annual list or 
quarterly update or an additional subsidy not included in that list or 
update is being provided by a foreign government;
    (2) Notify the Secretary of Agriculture and the person making the 
request of the determination; and
    (3) Promptly publish in the Federal Register notice of any changes 
or additions.

Sec. 355.44  Complaint of price-undercutting by subsidized imports.

    Upon receipt of a complaint filed with the Secretary of Agriculture 
under section 702(b) of the Trade Agreements Act concerning price-
undercutting by subsidized imports, the Secretary will promptly 
determine, under Sec. 355.43(b), whether or not the alleged subsidies 
are included in or should be added to the latest annual list or 
quarterly update. The Department of Agriculture regulations concerning 
complaints of price-cutting by subsidized imports of quota cheese are 
published in 7 CFR part 6.

Sec. 355.45  Access to information.

    Subpart C of this part applies to factual information submitted in 
connection with this subpart.



Subpart E--Effective Dates

Sec. 355.51  Effective dates of amendments to the Tariff Act of 1930 
          made by the Omnibus Trade and Competitiveness Act of 1988.

    In accordance with section 1337 of the Omnibus Trade and 
Competitiveness Act of 1988 (Pub. L. No. 100-418) (``the 1988 Act''), 
the amendments to the Tariff Act of 1930 made by the 1988 Act are deemed 
effective as follows:
    (a) Except as provided in paragraphs (b), (c), (d), (e), and (f) of 
this section, all amendments made by Title I, Subtitle C, Part II of the 
1988 Act which affect authorities administered by the Secretary are 
deemed effective as of August 23, 1988.
    (b) Amendments made by sections 1312, 1315, 1316, 1318, 1325, 1327, 
1331, and 1332 of the 1988 Act which affect authorities administered by 
the Secretary are deemed to take effect immediately with respect to all 
investigations, section 736(c) reviews, or section 751 reviews initiated 
after August 23, 1988.
    (c) The amendment made by section 1324 of the 1988 Act which affects 
authorities administered by the Secretary is deemed to apply only to 
investigations initiated after August 23, 1988.
    (d) The amendments made by sections 1321(a) and 1334 of the 1988 Act 
which affect authorities administered by the Secretary are deemed to be 
effective with respect to articles entered, or withdrawn from warehouse 
for consumption, on or after August 23, 1988.
    (e) The amendments made by section 1321(b) and 1335 of the 1988 Act 
which affect authorities administered by the Secretary are deemed to be 
effective with respect to entries, and withdrawals from warehouse for 
consumption that are liquidated on or after August 23, 1988.
    (f) The amendment made by section 1319 is deemed effective with 
respect to all section 736(c) and section 751 reviews initiated on or 
after August 23, 1988, as well as to all section 736(c) and section 751 
reviews for which there is a request for revocation pending on August 
23, 1988.

[[Page 263]]

(263
    (g) Notwithstanding the provisions of paragraphs (a) through (f) of 
this section, the Secretary may implement the amendments of the 1988 Act 
at a date later than August 23, 1988, if the Secretary determines that 
implementation in accordance with paragraphs (a) through (f) of this 
section would prevent the Department from complying with other 
requirements of law.

[55 FR 9057, Mar. 9, 1990]

             Annex I--List of Countries Under the Agreement

    1. As of the date of publication of this part, the Agreement applies 
between the United States and the following countries, as determined 
under section 2(b) of the Trade Agreements Act of 1979: Australia, 
Austria, Brazil, Canada, Chile, Egypt, European Economic Community 
(accepted for member states), Finland, United Kingdom for Hong Kong, 
India, Indonesia, Israel, Japan, Korea, Norway, Pakistan, Philippines, 
Sweden, Switzerland, Turkey, and Uruguay. See section 701(b)(1) of the 
Act.
    2. Taiwan and Mexico have assumed obligations with respect to the 
United States which the President has determined are substantially 
equivalent to obligations under the Agreement. See section 701(b)(2) of 
the Act.
    3. The following countries are entitled to an injury test under 
section 701(b)(3) of the Act: Venezuela, Honduras, Nepal, North Yemen, 
El Salvador, Paraguay, and Liberia.
    For further information, contact the Office of Policy, Import 
Administration, at the address stated in Sec. 355.31(d).

      Annex II--Time Limits for Submissions Specified in this part

------------------------------------------------------------------------
                Description of time limit \1\                   Section 
------------------------------------------------------------------------
Administrative protective order:                                        
  Request for disclosure under..............................   355.34(b)
  Return of information released under......................   355.34(d)
  Withdrawal of information subject to......................   355.34(c)
Administrative review:                                                  
  Request for review of all producers or exporters..........   355.22(a)
  Request for changed circumstances review..................   355.22(h)
  Request for review of individual producers or exporters...   355.22(a)
  Withdrawal of request for review..........................   355.22(a)
Commission:                                                             
  Filing of petition with...................................   355.12(c)
  Request for review of revised suspension agreement........   355.19(b)
  Request for review of suspension agreement................   355.18(i)
Critical circumstances findings:                                        
  Request for...............................................   355.16(a)
  Request for final finding only............................   355.16(d)
  Request for preliminary and final finding.................   355.16(b)
Exclusion from order:                                                   
  Request for...............................................   355.14(a)
Factual information:                                                    
  Questionnaire responses in administrative reviews.........   355.31(b)
  Request for disclosure of, under protective order.........   355.34(b)
  Request for extension of time limits to submit............   355.31(b)
  Request for extension of time limits to submit allegations   355.31(c)
  Submission of, regarding preliminarily accepted suspension            
   agreements...............................................   355.18(g)
  Submission of subsidy allegations.........................   355.31(c)
  Submission of standing allegations........................   355.31(c)
  Submissions of, in general................................   355.31(a)
  Withdrawal of, subject to disclosure under protective                 
   order....................................................   355.34(c)
Final determination:                                                    
  Petitioner's request to postpone in simultaneous                      
   investigations...........................................   355.20(c)
  Request to investigate upstream subsidy...................   355.20(b)
Hearings:                                                               
  Requests for..............................................   355.38(b)
Petition:                                                               
  Amendment to..............................................   355.12(e)
  Filing with the Commission................................   355.12(c)
  Filing with the Secretary of the Treasury.................   355.12(h)
Postponement of determinations:                                         
  Petitioner's request to postpone final--simultaneous                  
   investigations...........................................   355.20(c)
  Petitioner's request to postpone preliminary..............   355.15(c)
Preliminary determination:                                              
  Petitioner's request to postpone..........................   355.15(c)
  Request to investigate upstream subsidy...................   355.15(d)
  Waiver of verification....................................   355.15(f)
Proprietary information:                                                
  Request for treatment as..................................   355.32(a)
  Resubmission of, in proper form...........................   355.32(d)
  Submission of agreement to release under protective order.   355.32(c)
  Submission of public summary..............................   355.32(b)
Revocation of order:                                                    
  Request for...............................................   355.25(b)
  Objections to, in the absence of requests for review......   355.25(d)
Service:                                                                
  Preliminarily accepted suspension agreements..............   355.18(g)
  Case and rebuttal briefs..................................   355.38(e)
Standing:                                                               
  Allegation of lack of.....................................   355.31(c)
Suspension of investigation:                                            
  Request for Commission review of agreement................   355.18(i)
  Request for Commission review of revised agreement........   355.19(b)
  Request for termination of................................   355.25(b)
  Request to continue investigation.........................   355.18(i)
  Service of preliminarily accepted agreement...............   355.18(g)
  Submission of factual information.........................   355.18(g)
  Submission of proposed agreement..........................   355.18(g)
  Submission of written argument............................   355.18(g)
Subsidy allegations:                                                    
  Request to investigate additional subsidy.................   355.31(c)
  Request to investigate upstream subsidy...................   355.15(d)
    ........................................................   355.20(b)
Termination of suspended investigation:                                 
  Request for...............................................   355.25(b)
  Objections to, in the absence of requests for review......   355.25(d)

[[Page 264]]

                                                                        
z264Verification:                                                       
  Request for in administrative reviews.....................   355.36(a)
  Waiver of.................................................   355.15(f)
Written argument:                                                       
  Submission of case brief..................................   355.38(c)
  Submission of rebuttal brief..............................   355.38(d)
  Service of case and rebuttal briefs.......................   355.38(e)
  Submission of, regarding preliminarily accepted suspension            
   agreements...............................................   355.18(g)
------------------------------------------------------------------------
\1\ Documents are filed when stamped by the Central Records Unit of the 
  Department of Commerce. See Sec.   355.31(d) for hours of operation.  



PART 356--PROCEDURES AND RULES FOR IMPLEMENTING ARTICLE 1904 OF THE NORTH AMERICAN FREE TRADE AGREEMENT--Table of Contents




                    Subpart A--Scope and Definitions

Sec.
356.1  Scope.
356.2  Definitions.

   Subpart B--Procedures for Commencing Review of Final Determinations

356.3  Notice of intent to commence judicial review.
356.4  Request for panel review.
356.5  [Reserved]
356.6  Receipt of notice of a scope determination by the Government of a 
          FTA country.
356.7  Request to determine when the Government of a FTA country 
          received notice of a scope determination.
356.8 Continued suspension of liquidation.

            Subpart C--Proprietary and Privileged Information

356.9  Persons authorized to receive proprietary information.
356.10  Procedures for obtaining access to proprietary information.
356.11  Procedures for obtaining access to privileged information.

 Subpart D--Violation of a Protective Order or a Disclosure Undertaking

356.12  Sanctions for violation of a protective order or disclosure 
          undertaking.
356.13  Suspension of rules.
356.14  Report of violation and investigation.
356.15  Initiation of proceedings.
356.16  Charging letter.
356.17  Request to charge.
356.18  Interim sanctions.
356.19  Request for a hearing.
356.20  Discovery.
356.21  Subpoenas.
356.22  Prehearing conference.
356.23  Hearing.
356.24  Proceeding without a hearing.
356.25  Witnesses.
356.26  Initial decision.
356.27  Final decision.
356.28  Reconsideration.
356.29  Confidentiality.
356.30  Sanctions for violations of a protective order for privileged 
          information.

    Authority: 19 U.S.C. 1516a and 1677f(f), unless otherwise noted.

    Source: 59 FR 229, Jan. 3, 1994, unless otherwise noted.



Subpart A--Scope and Definitions

Sec. 356.1  Scope.

    This part sets forth procedures and rules for the implementation of 
Article 1904 of the North American Free Trade Agreement under the Tariff 
Act of 1930, as amended by title IV of the North American Free Trade 
Agreement Implementation Act of 1993 (19 U.S.C. 1516a and 1677f(f)). 
This part is authorized by section 402(g) of the North American Free 
Trade Agreement Implementation Act of 1993.

Sec. 356.2  Definitions.

    For purposes of this part:
    (a) Act means the Tariff Act of 1930, as amended;
    (b) Administrative law judge means the person appointed under 5 
U.S.C. 3105 who presides over the taking of evidence as provided by 
subpart D of this part;
    (c) Affected party means a person against whom sanctions have been 
proposed for alleged violation of a protective order or disclosure 
undertaking but who is not a charged party;
    (d) Agreement means the North American Free Trade Agreement between 
Canada, the United Mexican States and the United States, signed on 
December 17, 1992; or, with respect to binational panel or extraordinary 
challenge proceedings underway as of such date, or any binational panel 
or extraordinary challenge proceedings that may proceed between Canada 
and the United States following any withdrawal from the Agreement by 
Canada or the United States, the United States-Canada Free Trade 
Agreement between Canada and the United States, which came into force on 
January 1, 1989;

[[Page 265]]

    (e) APO Sanctions Board means the Administrative Protective Order 
Sanctions Board;
    (f) Article 1904 Panel Rules means the NAFTA Article 1904 Panel 
Rules, negotiated pursuant to Article 1904 of the North American Free 
Trade Agreement between Canada, the United Mexican States and the United 
States, and any subsequent amendments; or, with respect to binational 
panel proceedings underway as of such date, or any binational panel 
proceedings that may proceed between the Canada and the United States 
following any withdrawal from the Agreement by Canada or the United 
States, the Article 1904 Panel Rules, as amended, which came into force 
on January 1, 1989;
    (g) Authorized agency of a free trade area country means:
    (1) In the case of Canada, any Canadian government agency that is 
authorized by Canadian law to request the Department to initiate 
proceedings to impose sanctions for an alleged violation of a disclosure 
undertaking; and
    (2) In the case of Mexico, any Mexican government agency that is 
authorized by Mexican law to request the Department to initiate 
proceedings to impose sanctions for an alleged violation of a disclosure 
undertaking;
    (h) Binational panel means a binational panel established pursuant 
to Annex 1901.2 to Chapter Nineteen of the Agreement for the purpose of 
reviewing a final determination;
    (i) Charged party means a person who is charged by the Deputy Under 
Secretary with violating a protective order or a disclosure undertaking;
    (j) Chief Counsel means the Chief Counsel for Import Administration, 
U.S. Department of Commerce, or designee;
    (k) Days means calendar days, except that a deadline which falls on 
a weekend or holiday shall be extended to the next working day;
    (l) Department means the U.S. Department of Commerce;
    (m) Deputy Under Secretary means the Deputy Under Secretary for 
International Trade, U.S. Department of Commerce;
    (n) Director means an Office Director under the Deputy Assistant 
Secretary for Investigations, U.S. Department of Commerce, or designee, 
if the panel review is of a final determination by the Department under 
section 751 of the Act, or an Office Director under the Deputy Assistant 
Secretary for Compliance, or designee, if the panel review is of a final 
determination by the Department under section 705(a) or 735(a) of the 
Act;
    (o) Disclosure undertaking means:
    (1) In the case of Canada, the Canadian mechanism for protecting 
proprietary or privileged information during proceedings pursuant to 
Article 1904 of the Agreement, as prescribed by subsection 77.21(2) of 
the Special Import Measures Act, as amended; and
    (2) In the case of Mexico, the Mexican mechanism for protecting 
proprietary or privileged information during proceedings pursuant to 
Article 1904 of the Agreement, as prescribed by the Ley de Comercio 
Exterior and its regulations;
    (p) Extraordinary challenge committee means the committee 
established pursuant to Annex 1904.13 to Chapter Nineteen of the 
Agreement to review decisions of a panel or conduct of a panelist;
    (q) Final determination means ``final determination'' as defined by 
Article 1911 of the Agreement;
    (r) Free trade area country or FTA country means ``free trade area 
country'' as defined by section 516A(f)(10) of the Act (19 U.S.C. 
1516a(f)(10));
    (s) Investigating authority means the competent investigating 
authority that issued the final determination subject to review and 
includes, in respect of the issuance, amendment, modification or 
revocation of a protective order or disclosure undertaking, any person 
authorized by the investigating authority;
    (t) Lesser-included sanction means a sanction of the same type but 
of more limited scope than the proposed sanction for violation of a 
protective order or disclosure undertaking; thus, a one-year bar on 
representation before the Department is a lesser-included sanction of a 
proposed seven-year bar;
    (u) Letter of transmittal means a document marked according to the 
requirements of 19 CFR 353.31(e)(2)(i)-(v) or 355.31(e)(2)(i)-(v);
    (v) Official publication means:

[[Page 266]]

    (1) In the case of Canada, the Canada Gazette;
    (2) In the case of Mexico, the Diario Oficial de la Federacion; and
    (3) In the case of the United States, the Federal Register;
    (w) Panel review means review of a final determination pursuant to 
Chapter Nineteen of the Agreement;
    (x) Party to the proceeding means a person that would be entitled, 
under section 516A of the Act (19 U.S.C. 1516a), to commence proceedings 
for judicial review of a final determination;
    (y) Participant means a party to the proceeding that files a 
Complaint or a Notice of Appearance in a panel review, and the 
Department;
    (z) Parties means, in an action under subpart D of this part, the 
Department and the charged party or affected party;
    (aa) Person means, an individual, partnership, corporation, 
association, organization, or other entity;
    (bb) Privileged information means:
    (1) With respect to a panel review of a final determination made in 
Canada, information of the investigating authority that is subject to 
the solicitor-client privilege under the laws of Canada, or that 
constitutes part of the deliberative process with respect to the final 
determination, and with respect to which the privilege has not been 
waived;
    (2) With respect to a panel review of a final determination made in 
Mexico:
    (i) Information of the investigating authority that is subject to 
attorney-client privilege under the laws of Mexico; or
    (ii) Internal communications between officials of the Secretaria de 
Comercio y Fomento Industrial in charge of antidumping and 
countervailing duty investigations or communications between those 
officials and other government officials, where those communications 
constitute part of the deliberative process with respect to the final 
determination; and
    (3) With respect to a panel review of a final determination made in 
the United States, information of the investigating authority that is 
subject to the attorney-client, attorney work product or government 
deliberative process privilege under the laws of the United States and 
with respect to which the privilege has not been waived;
    (cc) Proprietary information means:
    (1) With respect to a panel review of a final determination made in 
Canada, information referred to in subsection 84(3) of the Special 
Import Measures Act, as amended, or subsection 45(3) of the Canadian 
International Trade Tribunal Act, as amended, with respect to which the 
person who designated or submitted the information has not withdrawn the 
person's claim as to the confidentiality of the information;
    (2) With respect to a panel review of a final determination made in 
Mexico, informacion confidencial, as defined under article 80 of the Ley 
de Comercio Exterior and its regulations; and
    (3) With respect to a panel review of a final determination made in 
the United States, business proprietary information under section 777(f) 
of the Act (19 U.S.C. 1677f(f)) and information the disclosure of which 
the Department has decided is limited under the procedures adopted 
pursuant to Article 1904.14 of the Agreement, including business or 
trade secrets; production costs; terms of sale; prices of individual 
sales, likely sales, or offers; names of customers, distributors, or 
suppliers; exact amounts of the subsidies received and used by a person; 
names of particular persons from whom proprietary information was 
obtained; and any other business information the release of which to the 
public would cause substantial harm to the competitive position of the 
submitter;
    (dd) Protective order means a protective order issued by the 
Department under 19 CFR 356.10(c) or 356.11(c);
    (ee) Scope determination means a determination by the Department, 
reviewable under section 516A(a)(2)(B)(vi) of the Act (19 U.S.C. 
1516a(a)(2)(B)(vi), as to whether a particular type of merchandise is 
within the class or kind of merchandise described in an existing finding 
of dumping or an antidumping or countervailing duty order covering free 
trade area country merchandise;
    (ff) Secretariat means the Secretariat established pursuant to 
Article 2002 of

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the Agreement and includes the Secretariat sections located in Canada, 
Mexico and the United States;
    (gg) Secretary means the Secretary of the Canadian section of the 
Secretariat, the Secretary of the Mexican section of the Secretariat, or 
the Secretary of the United States section of the Secretariat and 
includes any person authorized to act on behalf of the Secretary;
    (hh) Service address means the address of the counsel of record for 
a person, including any facsimile number submitted with that address, 
or, where a person is not represented by counsel, the address set out by 
the person in a Request for Panel Review, Complaint or Notice of 
Appearance as the address at which the person may be served, including 
any facsimile number submitted with that address, or where a Change of 
Service Address has been filed by a person, the new service address set 
out as the service address in that form, including any facsimile number 
submitted with that address;
    (ii) Service list means, with respect to a panel review of a final 
determination made in the United States, the list maintained by the 
investigating authority of persons who have been served in the 
proceeding leading to the final determination;
    (jj) Under Secretary means the Under Secretary for International 
Trade, U.S. Department of Commerce, or designee;
    (kk) United States section of the Secretariat means, for the 
purposes of filing, United States Secretary, NAFTA Secretariat, room 
2061, U.S. Department of Commerce, 14th and Constitution Avenue, NW., 
Washington, DC 20230.



Subpart B--Procedures for Commencing Review of Final Determinations

Sec. 356.3  Notice of intent to commence judicial review.

    A party to a proceeding who intends to commence judicial review of a 
final determination made in the United States shall file a Notice of 
Intent to Commence Judicial Review, which shall contain such 
information, and be in such form, manner, and style, including service 
requirements, as prescribed by the Article 1904 Panel Rules, within 20 
days after:
    (a) The date of publication in the Federal Register of the final 
determination; or
    (b) The date on which the notice of the final determination was 
received by the Government of the FTA country if the final determination 
was not published in the Federal Register.

Sec. 356.4  Request for panel review.

    A party to a proceeding who seeks panel review of a final 
determination shall file a Request for Panel Review, which shall contain 
such information, and be in such form, manner, and style, including 
service requirements, as prescribed by the Article 1904 Panel Rules, 
within 30 days after:
    (a) The date of publication in the official publication of the final 
determination; or
    (b) The date on which the notice of the final determination was 
received by the United States Government or the Government of the FTA 
country if the final determination was not published in the official 
publication.
Sec. 356.5  [Reserved]

Sec. 356.6  Receipt of notice of a scope determination by the Government 
          of a FTA country.

    (a) Where the Department has made a scope determination, notice of 
such determination shall be deemed received by the Government of a FTA 
country when a certified copy of the determination is delivered to the 
chancery of the Embassy of the FTA country during its normal business 
hours.
    (b) Where feasible, the Department, or an agent therefor, will 
obtain a certificate of receipt signed by a person authorized to accept 
delivery of documents to the Embassy of the FTA country acknowledging 
receipt of the scope determination. The certificate will describe 
briefly the document being delivered to the Embassy of the FTA country, 
state the date and time of receipt, and include the name and title of 
the person who signs the certificate. The certificate will be retained 
by the Department in its public files pertaining to the scope 
determination at issue.

[[Page 268]]

Sec. 356.7  Request to determine when the Government of a FTA country 
          received notice of a scope determination.

    (a) Pursuant to section 516A(g)(10) of the Act (19 U.S.C. 
1516a(g)(10)), any party to the proceeding may request in writing from 
the Department the date on which the Government of a FTA country 
received notice of a scope determination made by the Department.
    (b) A request shall be made by filing a written request and the 
correct number of copies in accordance with the requirements set forth 
in 19 CFR 353.31(d) and (e)(2) or 355.31(d) and (e)(2) with the 
Secretary of Commerce, Attention: Import Administration, Central Records 
Unit, room B-099, U.S. Department of Commerce, 14th and Constitution 
Avenue, NW., Washington, DC 20230. A letter of transmittal must be bound 
to the original and each copy as the first page of the request.
    (c) The requesting party shall serve a copy of the Request to 
Determine When the Government of [insert name of applicable FTA country] 
Received Notice of a Scope Determination by first class mail or personal 
service on any interested party on the Department's service list in 
accordance with the service requirements listed in 19 CFR 353.31(g) or 
355.31(g).
    (d) The Department will respond to the request referred to in 
paragraph (b) of this section within five business days of receipt.

Sec. 356.8  Continued suspension of liquidation.

    (a) In general. In the case of an administrative determination 
specified in clause (iii) or (vi) of section 516A(a)(2)(B) of the Act 
(19 U.S.C. 1516a(a)(2)(B)(iii) and (vi)) and involving free trade area 
country merchandise, the Department shall not order liquidation of 
entries of merchandise covered by such a determination until the forty-
first day after the date of publication of the notice described in 
clause (iii) or receipt of the determination described in clause (vi), 
as appropriate. If requested, the Department will order the continued 
suspension of liquidation of such entries in accordance with the terms 
of paragraphs (b), (c), and (d) of this section.
    (b) Eligibility to request continued suspension of liquidation. (1) 
A participant in a binational panel review that was a domestic party to 
the proceeding, as described in section 771(9)(C), (D), (E), (F), or (G) 
of the Act (19 U.S.C. 1677(9)(C), (D), (E), (F) and (G)), may request 
continued suspension of liquidation of entries of merchandise covered by 
the administrative determination under review by the panel and that 
would be affected by the panel review.
    (2) A participant in a binational panel review that was a party to 
the proceeding, as described in section 771(9)(A) of the Act (19 U.S.C. 
1677(9)(A)), may request continued suspension of liquidation of the 
merchandise which it manufactured, produced, exported, or imported and 
which is covered by the administrative determination under review by the 
panel.
    (c) Request for continued suspension of liquidation. A request for 
continued suspension of liquidation must include:
    (1) The name of the final determination subject to binational panel 
review and the case number assigned by the Department;
    (2) The caption of the binational panel proceeding;
    (3) The name of the requesting participant;
    (4) The requestor's status as a party to the proceeding and as a 
participant in the binational panel review; and
    (5) The specific entries to be suspended by name of manufacturer, 
producer, exporter, or U.S. importer.
    (d) Filing and service. (1) A request for Continued Suspension of 
Liquidation must be filed with the Assistant Secretary for Import 
Administration, room B-099, 14th and Constitution Avenue, NW., 
Washington, DC 20230, in accordance with the requirements set forth in 
19 CFR 353.31(d) and (e)(2) or 355.31(d) and (e)(2). A letter of 
transmittal must be bound to the original and each copy as the first 
page of the request. The envelope and the first page of the request must 
be marked: Panel Review--Request for Continued Suspension of 
Liquidation. The request may be made no earlier than the date on which 
the first request for binational panel review is filed.

[[Page 269]]

    (2) The requesting party shall serve a copy of the Request for 
Continued Suspension of Liquidation on the United States Secretary and 
all parties to the proceeding in accordance with the requirements of 19 
CFR 353.31(g) or 19 CFR 355.31(g).
    (e) Termination of Continued Suspension. Upon completion of the 
panel review, including any panel review of remand determinations and 
any review by an extraordinary challenge committee, the Department will 
order liquidation of entries, the suspension of which was continued 
pursuant to this section.



Subpart C--Proprietary and Privileged Information

Sec. 356.9  Persons authorized to receive proprietary information.

    Persons described in paragraphs (a), (d), (e), (f) and (g) of this 
section shall, and persons described in paragraphs (b) and (c) of this 
section may, be authorized by the Department to receive access to 
proprietary information if they comply with this subpart and such other 
conditions imposed upon them by the Department:
    (a) The members of, and appropriate staff of, a binational panel or 
extraordinary challenge committee;
    (b) Counsel to participants in panel reviews and professionals 
retained by, or under the direction or control of such counsel, provided 
that the counsel or professional does not participate in competitive 
decision-making activity (such as advice on production, sales, 
operations, or investments, but not legal advice) for the participant 
represented or for any person who would gain competitive advantage 
through knowledge of the proprietary information sought;
    (c) Other persons who are retained or employed by and under the 
direction or control of a counsel or professional, panelist, or 
committee member who has been issued a protective order, such as 
paralegals, law clerks, and secretaries, if such other persons are:
    (1) Not involved in the competitive decision-making of a participant 
to the panel review or for any person who would gain competitive 
advantage through knowledge of the proprietary information sought; and
    (2) Have agreed to be bound by the terms set forth on the 
application for protective order of the counsel or professional, 
panelist, or committee member;
    (d) Each Secretary and every member of the staff of the Secretariat;
    (e) Such officials of the United States Government (other than an 
officer or employee of the investigating authority that issued the final 
determination subject to review) as the United States Trade 
Representative informs the Department require access to proprietary 
information for the purpose of evaluating whether the United States 
should seek an extraordinary challenge committee review of a panel 
determination;
    (f) Such officials of the Government of a FTA country as an 
authorized agency of the FTA country informs the Department require 
access to proprietary information for the purpose of evaluating whether 
the FTA country should seek an extraordinary challenge committee review 
of a panel determination; and
    (g) Every court reporter, interpreter and translator employed in a 
panel or extraordinary challenge committee review.

Sec. 356.10  Procedures for obtaining access to proprietary information.

    (a) Persons who must file an application for disclosure under 
protective order. In order to be permitted access to proprietary 
information in the administrative record of a final determination under 
review by a panel, all persons described in Secs. 356.9 (a), (b), (d), 
(e), (f) and (g) shall file an application for a protective order. The 
procedures for applying for a protective order described in paragraph 
(b) of this section apply as well to amendments or modifications filed 
by persons described in Sec. 356.9.
    (b) Procedures for applying for a protective order--(1) Contents of 
applications. (i) The Department has adopted application forms for 
disclosure of proprietary information which are available from the 
United States section of the Secretariat or the Central Records Unit, 
room B-099, U.S. Department of Commerce, 14th and Constitution Avenue, 
NW., Washington, DC 20230. The

[[Page 270]]

application forms may be amended from time to time.
    (ii) Such forms require the applicant to submit a personal sworn 
statement stating, in addition to such other terms as the Department may 
require, that the applicant shall:
    (A) Not disclose any proprietary information obtained under 
protective order and not otherwise available to the applicant, to any 
person other than:
    (1) An official of the Department involved in the particular panel 
review in which the proprietary information is part of the 
administrative record;
    (2) The person from whom the information was obtained;
    (3) A person who has been granted access to the proprietary 
information at issue under Sec. 356.9; and
    (4) A person employed by and under the direction or control of a 
counsel or professional, panelist, or committee member who has been 
issued a protective order, such as a paralegal, law clerk, or secretary 
if such person:
    (i) Is not involved in competitive decision-making for a participant 
in the panel review or for any person that would gain competitive 
advantage through knowledge of the proprietary information sought; and
    (ii) Has agreed to be bound by the terms set forth in the 
application for protective order by the counsel, professional, panelist, 
or committee member;
    (B) Not use any of the proprietary information not otherwise 
available to the applicant for purposes other than proceedings pursuant 
to Article 1904 of the Agreement;
    (C) Upon completion of the panel review, or at such earlier date as 
may be determined by the Department, return to the Department or certify 
to the Department the destruction of all documents released under the 
protective order and all other documents containing the proprietary 
information (such as briefs, notes, or charts based on any such 
information received under the protective order); and
    (D) Acknowledge that breach thereof may subject the signatory to 
sanctions under Sec. 356.12.
    (2) Timing of application for disclosure under protective order--(i) 
Persons described in Sec. 356.9(a) (panelists, etc.). A person described 
in Sec. 356.9(a) may file an application after a Notice of Request for 
Panel Review has been filed with the Secretariat.
    (ii) Persons described in Sec. 356.9(b) (counsel, etc.). A person 
described in Sec. 356.9(b) may file an application at any time but not 
before that person files a Complaint or a Notice of Appearance.
    (iii) Persons described in Sec. 356.9(d) (Secretaries, etc.). A 
person described in Sec. 356.9(d) shall file an application immediately 
upon assuming official responsibilities in the Secretariat.
    (iv) Persons described in Sec. 356.9 (e), (f) or (g) (designated 
Government officials or court reporters, etc.). A person described in 
Sec. 356.9 (e), (f) or (g) shall file an application before seeking or 
obtaining access to proprietary information.
    (3) Filing of applications. A person described in Sec. 356.9 (a), 
(b), (d), (e), (f) or (g) shall file the completed original and five 
copies of an application with the United States section of the 
Secretariat which, in turn, shall submit the original and one copy of 
the application to the Department. A letter of transmittal must be bound 
to the original and each copy as the first page of the document.
    (4) Service of applications--(i) Persons described in Secs. 356.9(b) 
(counsel, etc.). A person described in Sec. 356.9(b) who files an 
application before the expiration of the time period fixed under the 
Article 1904 Panel Rules for filing a Notice of Appearance in the panel 
review shall serve one copy of the application on each person listed on 
the service list in accordance with paragraphs (b)(4) (ii) and (iii) of 
this section. In any other case, such person shall serve one copy of the 
application on each participant, other than the investigating authority, 
in accordance with paragraphs (b)(4) (ii) and (iii) of this section.
    (ii) Method of service. A document may be served by:
    (A) Delivering a copy of the document to the service address of the 
participant;
    (B) Sending a copy of the document to the service address of the 
participant by facsimile transmission or by expedited delivery courier 
or expedited mail service; or
    (C) Personal service on the participant.

[[Page 271]]

    (iii) Proof and date of service. A proof of service shall appear on, 
or be affixed to, the document. Where a document is served by expedited 
delivery courier or expedited mail service, the date of service set out 
in the affidavit of service or certificate of service shall be the day 
on which the document is consigned to the expedited delivery courier 
service or expedited mail service.
    (5) Release to employees of panelists, committee members, and 
counsel or professionals. A person described in Sec. 356.9(c), including 
a paralegal, law clerk, or secretary, may be permitted access to 
proprietary information disclosed under protective order by the counsel, 
professional, panelist, or extraordinary challenge committee member who 
retains or employs such person, if such person has agreed to the terms 
of the protective order issued to the counsel, professional, panelist, 
or extraordinary challenge committee member, by signing and dating a 
completed copy of the application for protective order of the 
representative counsel, professional, panelist or extraordinary 
challenge committee member in the location indicated in that 
application.
    (6) Counsel or professional who retains access to proprietary 
information under a protective order issued during the administrative 
proceeding. A person described in Sec. 356.9(b) who has been granted 
access to proprietary information under protective order during an 
administrative proceeding that resulted in a final determination that 
becomes the subject of panel review may, if permitted by the terms of 
the protective order previously issued by the Department, retain such 
information until the applicant receives a protective order under this 
part.
    (c) Issuance and service of protective orders--(1) Persons described 
in Sec. 356.9(a) (panelists, etc.). (i) Upon receipt by the Department 
of an application from a person described in Sec. 356.9(a), the 
Department will issue a protective order authorizing disclosure of 
proprietary information included in the administrative record of the 
final determination that is the subject of the panel review at issue. 
The Department shall transmit the original and four copies of the 
protective order to the United States section of the Secretariat which, 
in turn, shall transmit the original to the applicant and serve one copy 
of the order on each participant, other than the investigating 
authority, in accordance with paragraphs (b)(4) (ii) and (iii) of this 
section.
    (ii) A member of a binational panel or extraordinary challenge 
committee proceeding initiated under the United States-Canada Free Trade 
Agreement to whom the Department issues a protective order must 
countersign the protective order and return one copy of the 
countersigned protective order to the United States section of the 
Secretariat.
    (2) Persons described in Secs. 356.9 (b) or (c) (counsel, etc., or 
paralegals, etc.)--(i) Opportunity to object to disclosure. The 
Department will not rule on an application filed by a person described 
in Sec. 356.9(b) until at least ten days after the request is filed, 
unless there is compelling need to rule more expeditiously. Unless the 
Department has indicated otherwise, any person may file an objection to 
the application within seven days of filing of the application. Any such 
objection shall state the specific reasons in the view of such person 
why the application should not be granted. One copy of the objection 
shall be served on the applicant and on all persons who were served with 
the application. Service shall be made in accordance with paragraphs 
(b)(4) (ii) and (iii) of this section. Any reply to an objection will be 
considered if it is filed before the Department renders a decision.
    (ii) Timing of decisions on applications. Normally, the Department 
will render a decision to approve or deny an application within 14 days. 
If any person files an objection, the Department will normally render 
the decision within 30 days.
    (iii) Approval of applications. If appropriate, the Department will 
issue a protective order permitting the release of proprietary 
information to the applicant.
    (iv) Denial of applications. If the Department denies an 
application, it shall issue a letter notifying the applicant of its 
decision and the reasons therefor.
    (v) Issuance of protective orders. If the Department issues a 
protective order to a person described in Sec. 356.9(b), that

[[Page 272]]

person shall immediately file four copies of the protective order with 
the United States section of the Secretariat and shall serve one copy of 
the order on each participant, other than the investigating authority, 
in accordance with paragraphs (b)(4) (ii) and (iii) of this section.
    (3) Persons described in Sec. 356.9 (d) or (g) (Secretaries, etc., 
or court reporters, etc.). Upon receipt by the Department of an 
application from a person described in Sec. 356.9 (d) or (g), the 
Department will issue a protective order authorizing disclosure of 
proprietary information to the applicant. The Department shall transmit 
the original and four copies of the protective order to the United 
States section of the Secretariat.
    (4) Persons described in Sec. 356.9 (e) or (f) (designated 
Government officials). (i) Upon receipt by the Department of an 
application from a person described in Sec. 356.9 (e) or (f), the 
Department will issue a protective order authorizing disclosure of 
proprietary information included in the record of the panel review at 
issue. The Department shall transmit the original and four copies of the 
protective order to the United States section of the Secretariat which, 
in turn, shall transmit the original to the applicant and serve one copy 
of the document on each participant, other than the investigating 
authority, in accordance with paragraphs (b)(4) (ii) and (iii) of this 
section.
    (d) Modification or revocation of protective orders--(1) 
Notification. If any person believes that changed conditions of fact or 
law, or the public interest, may require that a protective order issued 
pursuant to paragraph (c) of this section be modified or revoked, in 
whole or in part, such person may notify the Department in writing. The 
notification shall state the changes desired and the changed 
circumstances warranting such action and shall include materials and 
argument in support thereof. Such notification shall be served by the 
person submitting it upon the person to whom the protective order was 
issued. Responses to the notification may be filed within 20 days after 
the notification is filed unless the Department indicates otherwise. The 
Department may also consider such action on its own initiative.
    (2) Issuance of modification or revocation. If the Department 
modifies or revokes a protective order pursuant to paragraph (d) of this 
section, the Department shall transmit the original and four copies of 
the modification or Notice of Revocation to the United States section of 
the Secretariat which, in turn, shall transmit the original to the 
person to whom the protective order was issued and serve one copy on 
each participant, other than the investigating authority, in accordance 
with paragraphs (b)(4) (ii) and (iii) of this section.

Sec. 356.11  Procedures for obtaining access to privileged information.

    (a) Persons who may apply for access to privileged information under 
protective order and filing of applications--(1) Panelists. (i) If a 
panel decides that in camera examination of a document containing 
privileged information in an administrative record is necessary in order 
for the panel to determine whether the document, or portions thereof, 
should be disclosed under a Protective Order for Privileged Information, 
each panelist who is to conduct the in camera review, pursuant to the 
rules of procedure adopted by the United States and the free trade area 
countries to implement Article 1904 of the Agreement, shall submit an 
application for disclosure of the privileged information under 
Protective Order for Privileged Information to the United States section 
of the Secretariat for filing with the Department; and
    (ii) If a panel orders disclosure of a document containing 
privileged information, any panelist who has not filed an application 
pursuant to paragraph (a)(1)(i) of this section shall submit an 
application for disclosure of the privileged information under a 
Protective Order for Privileged Information to the United States section 
of the Secretariat for filing with the Department.
    (2) Designated officials of the United States Government. Where, in 
the course of a panel review, the panel has reviewed privileged 
information under a Protective Order for Privileged Information, and the 
issue to which such information pertains is relevant to the evaluation 
of whether the United States should request an extraordinary

[[Page 273]]

challenge committee, each official of the United States Government 
(other than an officer or employee of the investigating authority that 
issued the final determination subject to review) whom the United States 
Trade Representative informs the Department requires access for the 
purpose of such evaluation shall file the completed original and five 
copies of an application for a Protective Order for Privileged 
Information with the United States section of the Secretariat which, in 
turn, shall submit the original and one copy of the application to the 
Department.
    (3) Designated officials of the government of a FTA country. Where, 
in the course of a panel review, the panel has reviewed privileged 
information under a Protective Order for Privileged Information, and the 
issue to which such information pertains is relevant to the evaluation 
of whether the Government of an involved FTA country should request an 
extraordinary challenge committee, each official of the Government of 
the involved FTA country whom an authorized agency of the involved FTA 
country informs the Department requires access for the purpose of such 
evaluation shall file the completed original and five copies of an 
application for a Protective Order for Privileged Information with the 
United States section of the Secretariat which, in turn, shall submit 
the original and one copy of the application to the Department.
    (4) Members of an extraordinary challenge committee. Where an 
extraordinary challenge record contains privileged information and a 
Protective Order for Privileged Information was issued to counsel or 
professionals representing participants in the panel review at issue, 
each member of the extraordinary challenge committee shall submit an 
application for a Protective Order for Privileged Information to the 
United States section of the Secretariat for filing with the Department.
    (5) Counsel or a professional under the direction or control of 
counsel. If the panel decides, in accordance with the Article 1904 
Rules, that disclosure of a document containing privileged information 
is appropriate, a counsel or a professional under the direction or 
control of counsel identified in such a decision as entitled to release 
of information under a Protective Order for Privileged Information shall 
submit an application for a Protective Order for Privileged Information. 
Any such person shall:
    (i) File the completed original and five copies of an application 
with the United States section of the Secretariat which, in turn, shall 
submit the original and one copy of the application to the Department; 
and
    (ii) As soon as the deadline fixed under the Article 1904 Panel 
Rules for filing a Notice of Appearance in the panel review has passed, 
shall serve a copy of the application on each participant, other than 
the investigating authority, in accordance with paragraphs (b)(4) (ii) 
and (iii) of this section.
    (6) Other designated persons. If the panel decides, in accordance 
with the Article 1904 Panel Rules, that disclosure of a document 
containing privileged information is appropriate, any person identified 
in such a decision as entitled to release of information under a 
Protective Order for Privileged Information, e.g., a Secretary, 
Secretariat staff, court reporters, interpreters and translators, or a 
member of the staff of a panelist or extraordinary challenge committee 
member, shall submit an application for release under Protective Order 
for Privileged Information to the United States section of the 
Secretariat for filing with the Department.
    (b) Contents of applications for release under protective order for 
privileged information. (1) The Department has adopted application forms 
for disclosure of privileged information which are available from the 
United States section of the Secretariat and the Central Records Unit, 
room B-099, U.S. Department of Commerce, 14th and Constitution Avenue 
NW., Washington, DC 20230. These forms may be amended from time to time.
    (2) Such forms require the applicant for release of privileged 
information under Protective Order for Privileged Information to submit 
a personal sworn statement stating, in addition to such other conditions 
as the Department may require, that the applicant shall:

[[Page 274]]

    (i) Not disclose any privileged information obtained under 
protective order to any person other than:
    (A) An official of the Department involved in the particular panel 
review in which the privileged information is part of the record;
    (B) A person who has furnished a similar application and who has 
been issued a Protective Order for Privileged Information concerning the 
privileged information at issue; and
    (C) A person retained or employed by counsel, a professional, a 
panelist or extraordinary challenge committee member who has been issued 
a Protective Order for Privileged Information, such as a paralegal, law 
clerk, or secretary, if such person has agreed to be bound by the terms 
set forth in the application for Protective Order for Privileged 
Information of the counsel, professional, panelist or extraordinary 
challenge committee member by signing and dating the completed 
application at the location indicated in such application;
    (ii) Use such information solely for purposes of the proceedings 
under Article 1904 of the Agreement;
    (iii) Upon completion of the panel review, or at such earlier date 
as may be determined by the Department, return to the Department or 
certify to the Department the destruction of all documents released 
under the Protective Order for Privileged Information and all other 
documents containing the privileged information (such as briefs, notes, 
or charts based on any such information received under the Protective 
Order for Privileged Information); and
    (iv) Acknowledge that breach thereof may subject the signatory to 
sanctions under Secs. 356.12 and 356.30.
    (c) Issuance of protective orders for privileged information--(1) 
Panelists, designated government officials and members of an 
extraordinary challenge committee. (i) Upon receipt of an application 
for protective order under this section from a panelist, designated 
government official or member of an extraordinary challenge committee, 
the Department shall issue a Protective Order for Privileged 
Information. The Department shall transmit the original and four copies 
of the protective order to the United States section of the Secretariat 
which, in turn, shall transmit the original to the applicant and serve 
one copy of the order on each participant, other than the investigating 
authority, in accordance with Secs. 356.10(b)(4) (ii) and (iii).
    (ii) If the Department issues a Protective Order for Privileged 
Information to a member of a binational panel or extraordinary challenge 
proceeding initiated under the United States-Canada Free Trade 
Agreement, that person must countersign the protective order and return 
one copy of the countersigned protective order to the United States 
section of the Secretariat.
    (2) Counsel or a professional under the direction or control of 
counsel. Upon receipt of an application for protective order under this 
section from a counsel or a professional under the direction or control 
of counsel, the Department shall issue a Protective Order for Privileged 
Information. If the Department issues a protective order to such person, 
that person shall immediately file four copies of the protective order 
with the United States section of the Secretariat and shall serve one 
copy of the order on each participant, other than the investigating 
authority, in accordance with Secs. 356.10(b)(4) (ii) and (iii).
    (3) Other designated persons described paragraph (a)(6) of this 
section. Upon receipt of an application for protective order under this 
section from a designated person described in paragraph (a)(6) of this 
section, the Department shall issue a Protective Order for Privileged 
Information. The Department shall transmit the original and four copies 
of the protective order to the United States section of the Secretariat.
    (d) Modification or revocation of protective order for privileged 
information--(1) Notification. If any person believes that changed 
conditions of fact or law, or the public interest, may require that a 
Protective Order for Privileged Information be modified or revoked, in 
whole or in part, such person may notify the Department in writing. The 
notification shall state the changes desired and the changed 
circumstances

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warranting such action and shall include materials and argument in 
support thereof. Such notification shall be served by the person 
submitting it upon the person to whom the Protective Order for 
Privileged Information was issued. Responses to the notification may be 
filed within 20 days after the notification is filed unless the 
Department indicates otherwise. The Department may also consider such 
action on its own initiative.
    (2) Issuance of modification or revocation. If the Department 
modifies or revokes a Protective Order for Privileged Information 
pursuant to paragraph (d) of this section, the Department shall transmit 
the original and four copies of the modification or Notice of Revocation 
to the United States section of the Secretariat which, in turn, shall 
transmit the original to the person to whom the protective order was 
issued and serve one copy on each participant, other than the 
investigating authority, in accordance with Secs. 356.10(b)(4) (ii) and 
(iii).



Subpart D--Violation of a Protective Order or a Disclosure Undertaking

Sec. 356.12  Sanctions for violation of a protective order or disclosure 
          undertaking.

    (a) A person, other than a person exempted from this part by the 
provisions of section 777f(f)(4) of the Act (19 U.S.C. 1677f(f)(4)), 
determined under this part to have violated a protective order or a 
disclosure undertaking may be subjected to any or all or the following 
sanctions:
    (1) Liable to the United States for a civil penalty not to exceed 
$100,000 for each violation;
    (2) Barred from appearing before the Department to represent another 
for a designated time period from the date of publication in an official 
publication of a notice that a violation has been determined to exist;
    (3) Denied access to proprietary information for a designated time 
period from the date of publication in an official publication of a 
notice that a violation has been determined to exist;
    (4) Other appropriate administrative sanctions, including striking 
from the record of the panel review any information or argument 
submitted by, or on behalf of, the violating party or the party 
represented by the violating party; terminating any proceeding then in 
progress; or revoking any order then in effect; and
    (5) Required to return material previously provided by the 
investigating authority, and all other materials containing the 
proprietary information, such as briefs, notes, or charts based on any 
such information received under a protective order or a disclosure 
undertaking.
    (b) (1) The firm of which a person determined to have violated a 
protective order or a disclosure undertaking is a partner, associate, or 
employee; any partner, associate, employer, or employee of such person; 
and any person represented by such person may be barred from appearing 
before the Department for a designated time period from the date of 
publication in an official publication of notice that a violation has 
been determined to exist or may be subjected to the sanctions set forth 
in paragraph (a) of this section, as appropriate.
    (2) Each person against whom sanctions are proposed under paragraph 
(b)(1) of this section is entitled to all the administrative rights set 
forth in this subpart separately and apart from rights provided to a 
person subject to sanctions under paragraph (a) of this section, 
including the right to a charging letter, right to representation, and 
right to a hearing, but subject to joinder or consolidation by the 
administrative law judge under Sec. 356.23(b).

Sec. 356.13  Suspension of rules.

    Upon request by the Deputy Under Secretary, a charged or affected 
party, or the APO Sanctions Board, the administrative law judge may 
modify or waive any rule in this subpart upon determining that no party 
will be unduly prejudiced and the ends of justice will thereby be served 
and upon notice to all parties.

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Sec. 356.14  Report of violation and investigation.

    (a) An employee of the Department or any other person who has 
information indicating that the terms of a protective order or a 
disclosure undertaking have been violated will provide the information 
to a Director or the Chief Counsel.
    (b) Upon receiving information which indicates that a person may 
have violated the terms of a protective order or an undertaking, the 
Director will conduct an investigation concerning whether there was a 
violation of a protective order or a disclosure undertaking, and who was 
responsible for the violation, if any. For purposes of this subpart, the 
Director will be supervised by the Deputy Under Secretary with guidance 
from the Chief Counsel. The Director will conduct an investigation only 
if the information is received within 30 days after the alleged 
violation occurred or, as determined by the Director, could have been 
discovered through the exercise of reasonable and ordinary care.
    (c) The Director will provide a report of the investigation to the 
Deputy Under Secretary, after review by the Chief Counsel, no later than 
180 days after receiving information concerning a violation. Upon the 
Director's request, and if extraordinary circumstances exist, the Deputy 
Under Secretary may grant the Director up to an additional 180 days to 
conduct the investigation and submit the report.
    (d) The following examples of actions that constitute violations of 
an administrative protective order shall serve as guidelines to each 
person subject to a protective order. These examples do not represent an 
exhaustive list. Evidence that one of the acts described in the 
guidelines has been committed, however, shall be considered by the 
Director as reasonable cause to believe a person has violated a 
protective order within the meaning of Sec. 356.15.
    (1) Disclosure of proprietary information to any person not granted 
access to that information by protective order, including an official of 
the Department or member of the Secretariat staff not directly involved 
with the panel review pursuant to which the proprietary information was 
released, an employee of any other United States, foreign government or 
international agency, or a member of the United States Congress, the 
Canadian Parliament, or the Mexican Congress.
    (2) Failure to follow the detailed procedures outlined in the 
protective order for safeguarding proprietary information, including 
maintaining a log showing when each proprietary document is used, and by 
whom, and requiring all employees who obtain access to proprietary 
information (under the terms of a protective order granted their 
employer) to sign and date a copy of that protective order.
    (3) Loss of proprietary information.
    (4) Failure to return or destroy all copies of the original 
documents and all notes, memoranda, and submissions containing 
proprietary information at the close of the proceeding for which the 
data were obtained by burning or shredding of the documents or by 
erasing electronic memory, computer disk, or tape memory, as set forth 
in the protective order.
    (5) Failure to delete proprietary information from the public 
version of a brief or other correspondence filed with the Secretariat.
    (6) Disclosure of proprietary information during a public hearing.
    (e) Each day of a continuing violation shall constitute a separate 
violation.

Sec. 356.15  Initiation of proceedings.

    (a) If the Deputy Under Secretary concludes, after an investigation 
and report by the Director under Sec. 356.14(c) and consultation with 
the Chief Counsel, that there is reasonable cause to believe that a 
person has violated a protective order or a disclosure undertaking and 
that sanctions are appropriate for the violation, the Deputy Under 
Secretary will, at the Deputy Under Secretary's discretion, either 
initiate a proceeding under this subpart by issuing a charging letter as 
set forth in Sec. 356.16 or request that the authorized agency of the 
involved FTA country initiate a proceeding by issuing a request to 
charge as set forth in Sec. 356.17. In determining whether sanctions are 
appropriate and, if so, what sanctions to impose, the Deputy Under 
Secretary will consider the nature of

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the violation, the resulting harm, and other relevant circumstances of 
the case. The Deputy Under Secretary will decide whether to initiate a 
proceeding no later than 60 days after receiving a report of the 
investigation.
    (b) If the Department receives a request to charge from an 
authorized agency of a FTA country, the Deputy Under Secretary will 
promptly initiate proceedings under this part by issuing a charging 
letter as set forth in Sec. 356.16.

Sec. 356.16  Charging letter.

    (a) Contents of letter. The Deputy Under Secretary will initiate 
proceedings by issuing a charging letter to each charged party and 
affected party which includes:
    (1) A statement of the allegation that a protective order or a 
disclosure undertaking has been violated and the basis thereof;
    (2) A statement of the proposed sanctions;
    (3) A statement that the charged or affected party is entitled to 
review the documents or other physical evidence upon which the charge is 
based and the method for requesting access to, or copies of, such 
documents;
    (4) A statement that the charged or affected party is entitled to a 
hearing before an administrative law judge if requested within 30 days 
of the date of service of the charging letter and the procedure for 
requesting a hearing, including the name, address, and telephone number 
of the person to contact if there are further questions;
    (5) A statement that the charged or affected party has a right, if a 
hearing is not requested, to submit documentary evidence to the Deputy 
Under Secretary and an explanation of the method for submitting evidence 
and the date by which it must be received; and
    (6) A statement that the charged or affected party has a right to 
retain counsel at the party's own expense for purposes of 
representation.
    (b) Settlement and amendment of the charging letter. The Deputy 
Under Secretary may amend, supplement, or withdraw the charging letter 
at any time with the approval of an administrative law judge if the 
interests of justice would thereby be served. If a hearing has not been 
requested, the Deputy Under Secretary will ask the Under Secretary to 
appoint an administrative law judge to make this determination. If a 
charging letter is withdrawn after a request for a hearing, the 
administrative law judge will determine whether the withdrawal will bar 
the Deputy Under Secretary from seeking sanctions at a later date for 
the same alleged violation. If there has been no request for a hearing, 
or if supporting information has not been submitted under Sec. 356.28, 
the withdrawal will not bar future actions on the same alleged 
violation. The Deputy Under Secretary and a charged or affected party 
may settle a charge brought under this subpart by mutual agreement at 
any time after service of the charging letter; approval of the 
administrative law judge or the APO Sanctions Board is not necessary.
    (c) Service of charging letter on a resident of the United States. 
(1) Service of a charging letter on a United States resident will be 
made by:
    (i) Mailing a copy by registered or certified mail addressed to the 
charged or affected party at the party's last known address;
    (ii) Leaving a copy with the charged or affected party or with an 
officer, a managing or general agent, or any other agent authorized by 
appointment or by law to receive service for the party; or
    (iii) Leaving a copy with a person of suitable age and discretion 
who resides at the party's last known dwelling.
    (2) Service made in the manner described in paragraph (c)(1) (ii) or 
(iii) of this section shall be evidenced by a certificate of service 
signed by the person making such service, stating the method of service 
and the identity of the person with whom the charging letter was left.
    (d) Service of charging letter on a non-resident. If applicable laws 
or intergovernmental agreements or understandings make the methods of 
service set forth in paragraph (c) of this section inappropriate or 
ineffective, service of the charging letter on a person who is not a 
resident of the United States may be made by any method that is 
permitted by the country in which the person resides and that, in the 
opinion

[[Page 278]]

of the Deputy Under Secretary, satisfies due process requirements under 
United States law with respect to notice in administrative proceedings.

Sec. 356.17  Request to charge.

    Upon deciding to initiate a proceeding pursuant to Sec. 356.15, the 
Deputy Under Secretary will request the authorized agency of the 
involved FTA country to initiate a proceeding for imposing sanctions for 
violation of a protective order or a disclosure undertaking by issuing a 
letter of request to charge that includes a statement of the allegation 
that a protective order or a disclosure undertaking has been violated 
and the basis thereof.

Sec. 356.18  Interim sanctions.

    (a) If the Deputy Under Secretary concludes, after issuing a 
charging letter under Sec. 356.16 and before a final decision is 
rendered, that interim sanctions are necessary to protect the interests 
of the Department, an authorized agency of the involved FTA country, or 
others, including the protection of proprietary information, the Deputy 
Under Secretary may petition an administrative law judge to impose such 
sanctions.
    (b) The administrative law judge may impose interim sanctions 
against a person upon determining that:
    (1) There is probable cause to believe that there was a violation of 
a protective order or a disclosure undertaking and the Department is 
likely to prevail in obtaining sanctions under this subpart;
    (2) The Department, authorized agency of the involved FTA country, 
or others are likely to suffer irreparable harm if the interim sanctions 
are not imposed; and
    (3) The interim sanctions are a reasonable means for protecting the 
rights of the Department, authorized agency of the involved FTA country, 
or others while preserving to the greatest extent possible the rights of 
the person against whom the interim sanctions are proposed.
    (c) Interim sanctions which may be imposed include any sanctions 
that are necessary to protect the rights of the Department, authorized 
agency of the involved FTA country, or others, including, but not 
limited to:
    (1) Denying a person further access to proprietary information;
    (2) Barring a person from representing another person before the 
Department;
    (3) Barring a person from appearing before the Department; and
    (4) Requiring the person to return material previously provided by 
the Department or the investigating authority of the involved FTA 
country, and all other materials containing the proprietary information, 
such as briefs, notes, or charts based on any such information received 
under a protective order or disclosure undertaking.
    (d) The Deputy Under Secretary will notify the person against whom 
interim sanctions are sought of the request for interim sanctions and 
provide to that person the material submitted to the administrative law 
judge to support the request. The notice will include a reference to the 
procedures of this section.
    (e) A person against whom interim sanctions are proposed has a right 
to oppose the request through submission of material to the 
administrative law judge. The administrative law judge has discretion to 
permit oral presentations and to allow further submissions.
    (f) The administrative law judge will notify the parties of the 
decision on interim sanctions and the basis therefor within five days of 
the conclusion of oral presentations or the date of final written 
submissions.
    (g) If interim sanctions have been imposed, the investigation and 
any proceedings under this subpart will be conducted on an expedited 
basis.
    (h) An order imposing interim sanctions may be revoked at any time 
by the administrative law judge and expires automatically upon the 
issuance of a final order.
    (i) The administrative law judge may reconsider imposition of 
interim sanctions on the basis of new and material evidence or other 
good cause shown. The Deputy Under Secretary or a person against whom 
interim sanctions have been imposed may appeal a decision on interim 
sanctions to the APO Sanctions Board, if such an appeal is

[[Page 279]]

certified by the administrative law judge as necessary to prevent undue 
harm to the Department or authorized agency of the involved FTA country, 
a person against whom interim sanctions have been imposed or others, or 
is otherwise in the interests of justice. Interim sanctions which have 
been imposed remain in effect while an appeal is pending, unless the 
administrative law judge determines otherwise.
    (j) The Deputy Under Secretary may request an administrative law 
judge to impose emergency interim sanctions to preserve the status quo. 
Emergency interim sanctions may last no longer than 48 hours, excluding 
weekends and holidays. The person against whom such emergency interim 
sanctions are proposed need not be given prior notice or an opportunity 
to oppose the request for sanctions. The administrative law judge may 
impose emergency interim sanctions upon determining that the Department 
or authorized agency of the involved FTA country is, or others are, 
likely to suffer irreparable harm if such sanctions are not imposed and 
that the interests of justice would thereby be served. The 
administrative law judge will promptly notify a person against whom 
emergency sanctions have been imposed of the sanctions and their 
duration.
    (k) If a hearing has not been requested, the Deputy Under Secretary 
will request that the Under Secretary appoint an administrative law 
judge for making determinations under this section.
    (l) The Deputy Under Secretary will notify the Secretariat 
concerning the imposition or revocation of interim sanctions or 
emergency interim sanctions.

Sec. 356.19  Request for a hearing.

    (a) Any party may request a hearing by submitting a written request 
to the Under Secretary within 30 days after the date of service of the 
charging letter. However, the Deputy Under Secretary may request a 
hearing only if the interests of justice would thereby be served.
    (b) Upon timely receipt of a request for a hearing, the Under 
Secretary will appoint an administrative law judge to conduct the 
hearing and render an initial decision.

Sec. 356.20  Discovery.

    (a) Voluntary discovery. All parties are encouraged to engage in 
voluntary discovery procedures regarding any matter, not privileged, 
which is relevant to the subject matter of the pending sanctions 
proceeding.
    (b) Limitations on discovery. The administrative law judge shall 
place such limits upon the kind or amount of discovery to be had or the 
period of time during which discovery may be carried out as shall be 
consistent with the time limitations set forth in this Part.
    (c) Interrogatories and requests for admissions or production of 
documents. A party may serve on any other party interrogatories, 
requests for admissions, or requests for production of documents for 
inspection and copying, and the party may then apply to the 
administrative law judge for such enforcement or protective order as 
that party deems warranted concerning such discovery. The party will 
serve a discovery request at least 20 days before the scheduled date of 
a hearing, if a hearing has been requested and scheduled, unless the 
administrative law judge specifies a shorter time period. Copies of 
interrogatories, requests for admissions, and requests for production of 
documents and responses thereto will be served on all parties. Matters 
of fact or law of which admission is requested will be deemed admitted 
unless, within a period designated in the request (at least 10 days 
after the date of service of the request, or within such further time as 
the administrative law judge may allow), the party to whom the request 
is directed serves upon the requesting party a sworn statement either 
admitting or denying specifically the matters of which admission is 
requested or setting forth in detail the reasons why the party cannot 
truthfully either admit or deny such matters.
    (d) Depositions. Upon application of a party and for good cause 
shown, the administrative law judge may order the taking of the 
testimony of any person who is a party, or under the control or 
authority of a party, by deposition and the production of specified 
documents

[[Page 280]]

or materials by the person at the deposition. The application shall 
state the purpose of the deposition and shall set forth the facts sought 
to be established through the deposition.
    (e) Supplementation of responses. A party who has responded to a 
request for discovery with a response that was complete when made is 
under no duty to supplement the party's response to include information 
thereafter acquired, except as follows:
    (1) A party is under a duty to seasonably supplement the party's 
response with respect to any question directly addressed to:
    (i) The identity and location of persons having knowledge of 
discoverable matters; and
    (ii) The identity of each person expected to be called as an expert 
witness at a hearing, the subject matter on which the witness is 
expected to testify, and the substance of the testimony.
    (2) A party is under a duty to seasonably amend a prior response if 
the party obtains information upon the basis of which the party:
    (i) Knows the response was incorrect when made; or
    (ii) Knows that the response, though correct when made, is no longer 
true, and the circumstances are such that a failure to amend the 
response is in substance a knowing concealment.
    (3) A duty to supplement responses may be imposed by order of the 
administrative law judge, agreement of the parties, or at any time prior 
to a hearing through new requests for supplementation of prior 
responses.
    (f) Enforcement. The administrative law judge may order a party to 
answer designated questions, to produce specified documents or items, or 
to take any other action in response to a proper discovery request. If a 
party does not comply with such an order, the administrative law judge 
may make any determination or enter any order in the proceedings as the 
administrative law judge deems reasonable and appropriate. The 
administrative law judge may strike related charges or defenses in whole 
or in part, or may take particular facts relating to the discovery 
request to which the party failed or refused to respond as being 
established for purpose of the proceeding in accordance with the 
contentions of the party seeking discovery. In issuing a discovery 
order, the administrative law judge will consider the necessity to 
protect proprietary information and will not order the release of 
information in circumstances where it is reasonable to conclude that 
such release will lead to unauthorized dissemination of such 
information.

Sec. 356.21  Subpoenas.

    (a) Application for issuance of a subpoena. An application for 
issuance of a subpoena requiring a person to appear and depose or 
testify at the taking of a deposition or at a hearing shall be made to 
the administrative law judge. An application for issuance of a subpoena 
requiring a person to appear and depose or testify and to produce 
specified documents, papers, books, or other physical exhibits at the 
taking of a deposition, at a prehearing conference, at a hearing, or 
under any other circumstances, shall be made in writing to the 
administrative law judge and shall specify the material to be produced 
as precisely as possible, showing the general relevancy of the material 
and the reasonableness of the scope of the subpoena.
    (b) Use of subpoena for discovery. Subpoenas may be used by any 
party for purposes of discovery or for obtaining documents, papers, 
books, or other physical exhibits for use in evidence, or for both 
purposes. When used for discovery purposes, a subpoena may require a 
person to produce and permit the inspection and copying of nonprivileged 
documents, papers, books, or other physical exhibits which constitute or 
contain evidence relevant to the subject matter involved and which are 
in the possession, custody, or control of such person.
    (c) Application for subpoenas for nonparty department records or 
personnel or for records or personnel of other Government agencies. (1) 
An application for issuance of a subpoena requiring the production of 
nonparty documents, papers, books, physical exhibits, or other material 
in the records of the Department, or requiring the appearance of an 
official or employee of the Department, or requiring the production of

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records or personnel of other Government agencies shall specify as 
precisely as possible the material to be produced, the nature of the 
information to be disclosed, or the expected testimony of the official 
or employee, and shall contain a statement showing the general relevancy 
of the material, information, or testimony and the reasonableness of the 
scope of the application, together with a showing that such material, 
information, or testimony or their substantial equivalent could not be 
obtained without undue hardship by alternative means.
    (2) Such applications shall be ruled upon by the administrative law 
judge. To the extent that the motion is granted, the administrative law 
judge shall provide such terms and conditions for the production of the 
material, the disclosure of the information, or the appearance of the 
official or employee as may appear necessary and appropriate for the 
protection of the public interest.
    (3) No application for a subpoena for production of documents 
grounded upon the Freedom of Information Act (5 U.S.C. 552) shall be 
entertained by the administrative law judge.
    (d) Motion to limit or quash. Any motion to limit or quash a 
subpoena shall be filed within 10 days after service thereof, or within 
such other time as the administrative law judge may allow.
    (e) Ex parte rulings on applications for subpoenas. Applications for 
the issuance of subpoenas pursuant to this section may be made ex parte, 
and, if so made, such applications and rulings thereon shall remain ex 
parte unless otherwise ordered by the administrative law judge.
    (f) Role of the Under Secretary. If a hearing has not been 
requested, the party seeking enforcement will ask the Under Secretary to 
appoint an administrative law judge to rule on applications for issuance 
of a subpoena under this section.

Sec. 356.22  Prehearing conference.

    (a)(1) If an administrative hearing has been requested, the 
administrative law judge will direct the parties to attend a prehearing 
conference to consider:
    (i) Simplification of issues;
    (ii) Obtaining stipulations of fact and of documents to avoid 
unnecessary proof;
    (iii) Settlement of the matter;
    (iv) Discovery; and
    (v) Such other matters as may expedite the disposition of the 
proceedings.
    (2) Any relevant and significant stipulations or admissions will be 
incorporated into the initial decision.
    (b) If a prehearing conference is impractical, the administrative 
law judge will direct the parties to correspond with each other or to 
confer by telephone or otherwise to achieve the purposes of such a 
conference.

Sec. 356.23  Hearing.

    (a) Scheduling of hearing. The administrative law judge will 
schedule the hearing at a reasonable time, date, and place, which will 
be in Washington, DC, unless the administrative law judge determines 
otherwise based upon good cause shown, that another location would 
better serve the interests of justice. In setting the date, the 
administrative law judge will give due regard to the need for the 
parties adequately to prepare for the hearing and the importance of 
expeditiously resolving the matter.
    (b) Joinder or consolidation. The administrative law judge may order 
joinder or consolidation if sanctions are proposed against more than one 
party or if violations of more than one protective order or disclosure 
undertaking are alleged if to do so would expedite processing of the 
cases and not adversely affect the interests of the parties.
    (c) Hearing procedures. Hearings will be conducted in a fair and 
impartial manner by the administrative law judge, who may limit 
attendance at any hearing or portion thereof if necessary or advisable 
in order to protect proprietary information from improper disclosure. 
The rules of evidence prevailing in courts of law shall not apply, and 
all evidentiary material the administrative law judge determines to be 
relevant and material to the proceeding and not unduly repetitious may 
be received into evidence and

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given appropriate weight. The administrative law judge may make such 
orders and determinations regarding the admissibility of evidence, 
conduct of examination and cross-examination, and similar matters as are 
necessary or appropriate to ensure orderliness in the proceedings. The 
administrative law judge will ensure that a record of the hearing will 
be taken by reporter or by electronic recording, and will order such 
part of the record to be sealed as is necessary to protect proprietary 
information.
    (d) Rights of parties. At a hearing each party shall have the right 
to:
    (1) Introduce and examine witnesses and submit physical evidence;
    (2) Confront and cross-examine adverse witnesses;
    (3) Present oral argument; and
    (4) Receive a transcript or recording of the proceedings, upon 
request, subject to the administrative law judge's orders regarding 
sealing the record.
    (e) Representation. Each charged or affected party has a right to 
represent himself or herself or to retain private counsel for that 
purpose. The Chief Counsel will represent the Department, unless the 
General Counsel of the Department determines otherwise. The 
administrative law judge may disallow a representative if such 
representation constitutes a conflict of interest or is otherwise not in 
the interests of justice and may debar a representative for contumacious 
conduct relating to the proceedings.
    (f) Ex parte communications. The parties and their representatives 
may not make any ex parte communications to the administrative law judge 
concerning the merits of the allegations or any matters at issue, except 
as provided in Sec. 356.18(j) regarding emergency interim sanctions.

Sec. 356.24  Proceeding without a hearing.

    If no party has requested a hearing, the Deputy Under Secretary, 
within 40 days after the date of service of a charging letter, will 
submit for inclusion into the record and provide each charged or 
affected party information supporting the allegations in the charging 
letter. Each charged or affected party has the right to file a written 
response to the information and supporting documentation within 30 days 
after the date of service of the information provided by the Deputy 
Under Secretary unless the Deputy Under Secretary alters the time period 
for good cause. The Deputy Under Secretary may allow the parties to 
submit further information and argument.

Sec. 356.25  Witnesses.

    Witnesses summoned before the Department shall be paid the same fees 
and mileage that are paid witnesses in the courts of the United States.

Sec. 356.26  Initial decision.

    (a) Initial decision. The administrative law judge, if a hearing was 
requested, or the Deputy Under Secretary will submit an initial decision 
to the APO Sanctions Board, providing copies to the parties. The 
administrative law judge or the Deputy Under Secretary will ordinarily 
issue the decision within 20 days of the conclusion of the hearing, if 
one was held, or within 15 days of the date of service of final written 
submissions. The initial decision will be based solely on evidence 
received into the record and the pleadings of the parties.
    (b) Findings and conclusions. The initial decision will state 
findings and conclusions as to whether a person has violated a 
protective order or a disclosure undertaking; the basis for those 
findings and conclusions; and whether the sanctions proposed in the 
charging letter, or lesser included sanctions, should be imposed against 
the charged or affected party. The administrative law judge or the 
Deputy Under Secretary may impose sanctions only upon determining that 
the preponderance of the evidence supports a finding of violation of a 
protective order or a disclosure undertaking and that the sanctions are 
warranted against the charged or affected party.
    (c) Finality of decision. If the APO Sanctions Board has not issued 
a decision on the matter within 60 days after issuance of the initial 
decision, the initial decision becomes the final decision of the 
Department.

Sec. 356.27  Final decision.

    (a) APO Sanctions Board. Upon request of a party, the initial 
decision

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will be reviewed by the members of the APO Sanctions Board. The Board 
consists of the Under Secretary for International Trade, who shall serve 
as Chairperson, the Under Secretary for Economic Affairs, and the 
General Counsel.
    (b) Comments on initial decision. Within 30 days after issuance of 
the initial decision, a party may submit written comments to the APO 
Sanctions Board on the initial decision, which the Board will consider 
when reviewing the initial decision. The parties have no right to an 
oral presentation, although the Board may allow oral argument in its 
discretion.
    (c) Final decision by the APO Sanctions Board. Within 60 days but 
not sooner than 30 days after issuance of an initial decision, the APO 
Sanctions Board may issue a final decision which adopts the initial 
decision in its entirety; differs in whole or in part from the initial 
decision, including the imposition of lesser included sanctions; or 
remands the matter to the administrative law judge or the Deputy Under 
Secretary for further consideration. The only sanctions that the Board 
can impose are those sanctions proposed in the charging letter or lesser 
included sanctions.
    (d) Content's of final decision. If the final decision of the APO 
Sanctions Board does not remand the matter and differs from the initial 
decision, it will state findings and conclusions which differ from the 
initial decision, if any, the basis for those findings and conclusions, 
and the sanctions which are to be imposed, to the extent they differ 
from the sanctions in the initial decision.
    (e) Public notice of sanctions. If the final decision is that there 
has been a violation of a protective order or a disclosure undertaking 
and that sanctions are to be imposed, notice of the decision will be 
published in the Federal Register and forwarded to the United States 
section of the Secretariat. Such publication will be no sooner than 30 
days after issuance of a final decision or after a motion to reconsider 
has been denied, if such a motion was filed. If the final decision is 
made in a proceeding based upon a request to charge by an authorized 
agency of an FTA country, the decision will be forwarded to the 
Secretariat of the involved FTA country for transmittal to the 
authorized agency of the FTA country for publication in the official 
publication or other appropriate action. The Deputy Under Secretary will 
also provide such information to the ethics panel or other disciplinary 
body of the appropriate bar associations or other professional 
associations whenever the Deputy Under Secretary subjects a charged or 
affected party to a sanction under Sec. 356.12(a)(2) and to any Federal 
agency likely to have an interest in the matter and will cooperate in 
any disciplinary actions by any association or agency.

Sec. 356.28  Reconsideration.

    Any party may file a motion for reconsideration with the APO 
Sanctions Board. The party must state with particularity the grounds for 
the motion, including any facts or points of law which the party claims 
the APO Sanctions Board has overlooked or misapplied. The party may file 
the motion within 30 days of the issuance of the final decision or the 
adoption of the initial decision as the final decision, except that if 
the motion is based on the discovery of new and material evidence which 
was not known, and could not reasonably have been discovered through due 
diligence prior to the close of the record, the party shall file the 
motion within 15 days of the discovery of the new and material evidence. 
The party shall provide a copy of the motion to all other parties. 
Opposing parties may file a response within 30 days of the date of 
service of the motion. The response shall be considered as part of the 
record. The parties have no right to an oral presentation on a motion 
for reconsideration, but the Board may permit oral argument at its 
discretion. If the motion to reconsider is granted, the Board will 
review the record and affirm, modify, or reverse the original decision 
or remand the matter for further consideration to an administrative law 
judge or the Deputy Under Secretary, as warranted.

Sec. 356.29  Confidentiality.

    (a) All proceedings involving allegations of a violation of a 
protective order or a disclosure undertaking shall

[[Page 284]]

be kept confidential until such time as the Department makes a final 
decision under these regulations, which is no longer subject to 
reconsideration, imposing a sanction.
    (b) The charged party or counsel for the charged party will be, to 
the extent possible, granted access to proprietary information in these 
proceedings, as necessary, under administrative protective order, 
consistent with the provisions of Sec. 356.10.

Sec. 356.30  Sanctions for violations of a protective order for 
          privileged information.

    The provisions of this subpart shall apply to persons who are 
alleged to have violated a Protective Order for Privileged Information.



PART 357--SHORT SUPPLY PROCEDURES--Table of Contents




Sec.
357.101  Definitions.
357.102  Short supply allowances.
357.103  Petitions for short supply allowances.
357.104  Determination of adequacy of petition, notice of review, and 
          opportunity for comment.
357.105  Questionnaires.
357.106  Time limits.
357.107  Publication of determinations and notification of foreign 
          governments.
357.108  Disclosure of information.
357.109  Request for reconsideration.
357.110  Record of review.
357.111  Public and proprietary information.

    Authority: Sec. 4(b) of the Steel Trade Liberalization Program 
Implementation Act, Pub. L. No. 101-221, 103 Stat. 1886 (1989).

    Source: 55 FR 1349, Jan. 12, 1990, unless otherwise noted:

Sec. 357.101   Definitions.

    (a) Arrangement means an arrangement between the United States 
Government and a foreign government whereby the foreign government 
agrees to restrain voluntarily certain steel exports to, or destined for 
consumption in, the United States for the period of October 1, 1989, 
through March 31, 1992.
    (b) Aberration means a domestic price which is out of the ordinary 
and present course of normal pricing trends.
    (c) Interested party means (1) A U.S. producer or consumer of the 
product; (2) a U.S. importer/distributor of the product; or (3) a 
foreign producer of the product (through its government, if such 
government is a party to the arrangement under which a short supply 
allowance is requested).
    (d) Prevailing domestic market prices means current prices in the 
United States market for domestically produced and imported product, as 
reflected in actual purchases and sales (but does not include import 
prices which the Secretary decides are likely to be significantly 
affected by dumping or subsidy practices).
    (e) The product means the steel product for which a short supply 
allowance is requested or material that possesses the same physical and 
mechanical characteristics, and which can be used for the same 
applications without imposing any significant retooling costs on the 
consumer.
    (f) The Secretary means the Secretary of Commerce and the person to 
whom the authority to make the short supply determination has been 
delegated (the Assistant Secretary for Import Administration) or the 
person making a final recommendation for decision to that person (the 
Deputy Assistant Secretary for Compliance.)
    (g) Short supply exists for a product when there is not a sufficient 
supply of that product available to meet market demand in the United 
States. In determining whether short supply exists, the Secretary will 
not consider one factor alone to be dispositive, but will consider all 
relevant factors, including:
    (1) To the extent information is available, the recent levels of 
capacity utilization for domestic facilities producing the product or 
product sector;
    (2) The quantity of additional imports of the product requested by 
the petitioner and the ability of domestic producers to supply the 
product in such quantity;
    (3) The willingness of the producers of the product to supply the 
product at a price that is not an aberration from prevailing domestic 
market prices;
    (4) Reasonable specifications requested by the purchaser or any end 
user, such as metallurgical, dimensional, quality, service requirements, 
and supply only by a qualified supplier

[[Page 285]]

if such qualification is required by the purchaser's customers, and
    (5) Delivery times to the purchaser and to end users of the product.
    (h) A short supply allowance means an authorization to import into 
the United States a quantity of the product in excess of the aggregate 
quantitative import limitation under an arrangement.

Sec. 357.102   Short supply allowances.

    (a) The Secretary will authorize a short supply allowance if:
    (1) The product is covered by an arrangement that provides for the 
authorization of a short supply allowance;
    (2) An adequate petition is filed with the Secretary requesting a 
short supply allowance with respect to the product; and
    (3) The Secretary determines that short supply exists with respect 
to the product.

The Secretary's short supply determination will be based only on 
information included in the official record. Any determination by the 
Secretary that is found to be based on inaccurate information will be 
reconsidered immediately.
    (b) Address and submit petitions and all other documents concerning 
a short supply review (accompanied by four copies) to the Secretary of 
Commerce, Attention: Import Administration, Room 7866, U.S. Department 
of Commerce, Pennsylvania Avenue and 14th Street NW., Washington, DC 
20230. All documents submitted must reference the name or number of the 
particular short supply review.
    (c) The Secretary generally will consider petitions for short supply 
allowances for up to one calendar year. For annual requests for products 
that are produced domestically, but for which the domestic industry has 
minimal available production capacity, the Secretary may grant a short 
supply allowance for less than a full year, if the Secretary believes 
that the situation may be significantly altered prior to the end of one 
year.
    (d) If the Secretary grants only a portion of the short supply 
request, or grants a short supply allowance for less than a full year, 
the petitioner must file a new petition to receive an allowance for any 
subsequent period in the same year. The petitioner must file a new 
petition if it subsequently modifies its request to the extent that the 
modification represents a substantial change in its request.

Sec. 357.103   Petitions for short supply allowances.

    An interested party may file a petition with the Secretary 
requesting a short supply allowance.
    (a) All short supply petitions shall contain, at a minimum, the 
following information:
    (1) The exact specifications of the product for which the request is 
made, including dimensions, metallurgical specifications, and unique 
characteristics;
    (2) A detailed explanation of how the product will be used;
    (3) An explanation of why the petitioner believes the product is in 
short supply;
    (4) The exact quantity of the short supply allowance requested and 
justification for the tonnage level. If the request is for more than one 
type and size of a product, specific quantity information for each type 
and size. If petitioner's request would represent an increase over 
previous consumption levels, a full explanation for the increase;
    (5) The period of time for which a short supply allowance is 
requested; and
    (6) A certification that the factual information contained in the 
petition is accurate and complete to the best of the petitioner's 
knowledge.
    (b) If the petitioner is a U.S. company that processes the product 
in some manner, the petition shall contain, in addition to the 
information required under paragraph (a), the following information:
    (1) A list of all U.S. and foreign producers of the product that 
have refused to sell the product to the petitioner during the past three 
years, indicating when they were contacted and the reason for their 
refusal;
    (2) A list of all offers to sell the product to the petitioner by 
U.S. and foreign producers in the past three years

[[Page 286]]

that have been rejected by the petitioner, indicating the reasons for 
the rejection;
    (3) A list of all domestic and foreign suppliers from whom the 
petitioner has purchased the product during the past three years, 
including the quantity purchased from each mill during this period;
    (4) A list of potential foreign suppliers of the product; and
    (5) Documentation indicating that petitioner has made efforts to 
purchase the product domestically.
    (c) If the petitioner is a U.S. importer/distributor, the petition 
shall contain, in addition to the information required under paragraph 
(a), the following information:
    (1) A list of all U.S. customers which have purchased the product 
from the petitioner during the past three years, along with 
documentation from these customers demonstrating that they support the 
request and have been unable to buy the product domestically;
    (2) A list of all of petitioner's sales (by quantity) to U.S. 
customers of the product in each of the last three years;
    (3) A list of all domestic and foreign firms that have supplied the 
product to the petitioner during the past three years, with the total 
quantity purchased from each supplier annually.
    (4) A list of potential foreign suppliers of the product;
    (d) If the petitioner is a foreign producer of the product applying 
through its government, the petition shall contain, in addition to the 
information required under paragraph (a), the following information:
    (1) A list of all U.S. customers that have purchased the product 
from the foreign company during the past three years, along with 
documentation from these customers demonstrating that they support the 
petition and have been unable to purchase the product domestically;
    (2) A list of all the foreign company's sales (by quantity) to U.S. 
customers of the product in each of the last three years.

Sec. 357.104  Determination of adequacy of petition, notice of review 
          and opportunity for comment.

    (a) Within 24 hours after a petition is filed, excluding weekends 
and holidays, the Secretary will determine whether the petition is 
adequate.
    (b) If the Secretary determines that the petition is adequate, the 
Secretary promptly will cause to be published in the Federal Register a 
notice that a petition with respect to the product is under review and 
provide interested parties with the opportunity to submit written 
comments on the petition. Comments will be accepted for a period of 
seven days from the date notice of the review of the petition is 
published in the Federal Register. Interested parties may file replies 
to any comments submitted under this section. Any replies must be filed 
with the Secretary within five days after the closing date of the 
comment period. Interested parties shall certify that the factual 
information contained in any submission they make is accurate and 
complete to the best of their knowledge.
    (c) If the Secretary determines that the petition is inadequate, the 
Secretary immediately will return the petition to the petitioner along 
with an explanation of why it is inadequate.

Sec. 357.105  Questionnaires.

    For reviews conducted under section 106(b)(2), the Secretary 
normally will send questionnaires to potential producers/suppliers of 
the product to determine whether it is in short supply. Questionnaires 
shall be completed and delivered to the Secretary within 8 days after 
being sent by the Secretary. Questionnaire responses not received within 
this period will be deemed favorable to the petition.

Sec. 357.106  Time limits.

    (a) The Secretary will determine, no later than the day specified in 
paragraph (b) of this section--
    (1) Whether short supply exists with respect to the product; and
    (2) If short supply is determined to exist, the quantity of the 
short supply allowance.

[[Page 287]]

    (b) The Secretary will make a short supply determination not later 
than--
    (1) The 15th day after the day on which an adequate petition is 
received if--
    (i) A twelve week moving average of raw steel making capacity 
utilization in the United States, as published by the American Iron and 
Steel Institute, equals or exceeds 90 percent, or
    (ii) The Secretary has granted short supply allowances for the 
product during each of the two immediately preceding years. This 
requirement will be satisfied by a full or partial grant of a short 
supply allowance for the product for a one-year period during each of 
the two immediately preceding years, or for a six-month period during 
each of the two immediately preceding years, provided that there was not 
within the two immediately preceding years a formal negative 
determination by the Secretary as to the existence of short supply for 
the product; or
    (iii) The Secretary, on the basis of available information (and 
whether or not in the context of a determination under section 102 of 
this part), finds that the product is not produced in the United States.
    In making a determination with respect to which section 106(b)(1) of 
this part applies, the Secretary will apply a rebuttable presumption 
that the product is in short supply. The burden of proof will lie on a 
domestic steel producer to prove that it can and will produce and supply 
the product within the requested period of time provided it represents a 
normal order to delivery period. Unless such proof is provided, the 
Secretary will issue a short supply allowance within 15 days of receipt 
of an adequate petition.
    (2) In all other circumstances, the Secretary will make a 
determination within 30 days after the day on which an adequate petition 
is received.

Sec. 357.107  Publication of determinations and notification of foreign 
          governments.

    The Secretary will publish in the Federal Register a notice of each 
short supply determination setting forth the basis for that 
determination. If the determination authorizes a short supply allowance, 
the Secretary will notify a representative of the appropriate foreign 
government and issue to the petitioner the necessary documentation to 
permit the importation.

Sec. 357.108  Disclosure of information.

    Promptly after making a short supply determination, the Secretary 
will disclose to each interested party which requests such disclosure 
the rationale for the determination, along with all non-proprietary 
information forming the basis of the determination.

Sec. 357.109  Request for reconsideration.

    Interested parties may file a request for reconsideration with the 
Secretary. The interested party must state with particularity the 
grounds for the request, including any alleged inaccurate information 
upon which the short supply determination was based, or facts or points 
of law which the interested party claims the Secretary has overlooked or 
misapplied. The interested party shall file the request for 
reconsideration within 5 days after the publication of the short supply 
determination in the Federal Register. If the request for 
reconsideration is granted, the Secretary will review and affirm, 
modify, or reverse the original determination and publish such decision 
in the Federal Register.

Sec. 357.110  Record of review.

    (a) The Secretary will maintain in the Import Administration Central 
Records Unit an official record of each short supply review. The 
Secretary will include in the record all relevant factual information, 
written argument, or other material developed or obtained by the 
Secretary during the course of the proceeding. The record will include 
governmental memoranda pertaining to the proceeding, memoranda of ex 
parte meetings, determinations, notices published in the Federal 
Register. The official record will include both public and proprietary 
information.
    (b) Examination and copying of information. In general, all public 
information in the official record will be available for inspection or 
copying at the Import Administration Central Records Unit, Room B-099, 
by any person during business hours. With respect to documents prepared 
by an officer or

[[Page 288]]

employee of the United States Government, facts (as distinguished from 
advice, recommendations, opinions and evaluations) contained in any such 
documents will be made available by summary or otherwise on the same 
basis as information contained in documents submitted by other persons.
    (c) Ex Parte meetings. Written memoranda will be prepared as 
expeditiously as possible of any ex parte meeting between the Secretary 
and any interested party or other person providing factual information 
relating to the short supply determination. A memorandum of an ex parte 
meeting will include the date, time, and place of the meeting, the 
identity of all the persons present, and a non-proprietary summary of 
the matters discussed and/or facts submitted.

Sec. 357.111  Public and proprietary information.

    (a) Any person who submits information in connection with a short 
supply review may designate that information, or any part thereof, as 
proprietary, thereby requesting that the Secretary treat that 
information as proprietary. The Secretary normally will not treat as 
proprietary any information not designated as proprietary by the 
submitter. The submitter must file four copies of a public version of 
the proprietary information, including any public summaries as 
substitutes for the portions for which the person has requested 
proprietary treatment. The submitter must conspicuously mark in the 
upper right corner of both versions, the words ``proprietary document'' 
or ``public version of proprietary document'', as appropriate. Each 
separate designation of information as proprietary shall be accompanied 
by:
    (1) A full statement of the reason or reasons why the submitter 
believes that the information is entitled to proprietary treatment; and
    (2) Either (i) A full public summary or approximated presentation of 
all proprietary information, incorporated in the public version of the 
document (generally data in numerical form relating to prices and costs, 
operating rates, and deliveries of individual firms shall be presented 
in figures ranged within 10 percent of the actual figure); or,
    (ii) A statement that the information is not susceptible to such a 
summary or presentation, accompanied by a full statement of the reasons 
supporting this conclusion.
    (b) Proprietary treatment. The Secretary normally will consider the 
following factual information to be business proprietary, if so 
designated by the submitter:
    (1) Business or trade secrets concerning the nature of a product or 
production process, if unique or not known to the industry;
    (2) Price information;
    (3) Operating rates;
    (4) The names or identifiers of particular customers, distributors, 
or suppliers;
    (5) Normal and current order-to-delivery periods; and
    (6) Any other specific business information which the submitter can 
reasonably demonstrate would be likely to cause substantial harm to the 
submitter's competitive position if released.
    (c) Confidentiality maintained. Information that the Secretary 
designates as proprietary will not be disclosed to any person (other 
than officers or employees of the United States Government who are 
directly concerned with the short supply determination) without the 
consent of the submitter unless disclosure is ordered by a court of 
competent jurisdiction.
    (d) Public information. The Secretary normally will consider the 
following to be public information:
    (1) Factual information and written argument that is not designated 
business proprietary by the submitter;
    (2) Exact tonnages sought or offered for each product included in a 
request, if applicable;
    (3) Physical and mechanical properties of products offered as 
substitutes;
    (4) Product specifications;
    (5) End use(s) to which the product(s) will be put;
    (6) Suppliers contacted, when they were contacted, and the reasons 
they cannot supply the product, and
    (7) Offers by U.S. and foreign producers for the product that have 
been rejected.

[[Page 289]]

    (e) Treatment of information where request for proprietary treatment 
is denied. If the Secretary denies a request for proprietary treatment 
of information submitted in connection with a request for a short supply 
allowance, or determines that information claimed not susceptible to a 
non-proprietary summary is in fact capable of such summary, the 
Secretary promptly will notify the submitter of that determination. 
Unless the submitter thereafter agrees that the information (including 
any summarized or approximated presented thereof) may be treated as 
public information, or provides a summary of matters found to be capable 
of such summary, such information (including any summarized approximated 
presentation thereof) will be returned to the submitter and not 
considered in the short supply determination.
[[Page 291]]



                              FINDING AIDS




  --------------------------------------------------------------------

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected



[[Page 293]]



                    Table of CFR Titles and Chapters




                      (Revised as of April 1, 1997)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
        IV  Miscellaneous Agencies (Parts 400--500)

                          Title 2--[Reserved]

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  General Accounting Office (Parts 1--99)
        II  Federal Claims Collection Standards (General 
                Accounting Office--Department of Justice) (Parts 
                100--299)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
        IV  Advisory Committee on Federal Pay (Parts 1400--1499)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
       VII  Advisory Commission on Intergovernmental Relations 
                (Parts 1700--1799)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Part 2100)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
        XV  Office of Administration, Executive Office of the 
                President (Parts 2500--2599)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Part 3201)
     XXIII  Department of Energy (Part 3301)

[[Page 294]]

      XXIV  Federal Energy Regulatory Commission (Part 3401)
      XXVI  Department of Defense (Part 3601)
    XXVIII  Department of Justice (Part 3801)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  Overseas Private Investment Corporation (Part 4301)
      XXXV  Office of Personnel Management (Part 4501)
        XL  Interstate Commerce Commission (Part 5001)
       XLI  Commodity Futures Trading Commission (Part 5101)
      XLII  Department of Labor (Part 5201)
     XLIII  National Science Foundation (Part 5301)
       XLV  Department of Health and Human Services (Part 5501)
      XLVI  Postal Rate Commission (Part 5601)
     XLVII  Federal Trade Commission (Part 5701)
    XLVIII  Nuclear Regulatory Commission (Part 5801)
         L  Department of Transportation (Part 6001)
       LII  Export-Import Bank of the United States (Part 6201)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Part 6401)
      LVII  General Services Administration (Part 6701)
     LVIII  Board of Governors of the Federal Reserve System (Part 
                6801)
       LIX  National Aeronautics and Space Administration (Part 
                6901)
        LX  United States Postal Service (Part 7001)
       LXI  National Labor Relations Board (Part 7101)
      LXII  Equal Employment Opportunity Commission (Part 7201)
     LXIII  Inter-American Foundation (Part 7301)
       LXV  Department of Housing and Urban Development (Part 
                7501)
      LXVI  National Archives and Records Administration (Part 
                7601)
      LXIX  Tennessee Valley Authority (Part 7901)
      LXXI  Consumer Product Safety Commission (Part 8101)
     LXXIV  Federal Mine Safety and Health Review Commission (Part 
                8401)
     LXXVI  Federal Retirement Thrift Investment Board (Part 8601)
    LXXVII  Office of Management and Budget (Part 8701)

                          Title 6--[Reserved]

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Consumer Service, Department of Agriculture 
                (Parts 210--299)

[[Page 295]]

       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy, Department of Agriculture (Parts 
                2900--2999)
       XXX  Office of Finance and Management, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  [Reserved]
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  Cooperative State Research, Education, and Extension 
                Service, Department of Agriculture (Parts 3400--
                3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)

[[Page 296]]

     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

                    Title 8--Aliens and Nationality

         I  Immigration and Naturalization Service, Department of 
                Justice (Parts 1--499)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--299)
       III  Food Safety and Inspection Service, Meat and Poultry 
                Inspection, Department of Agriculture (Parts 300--
                599)

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
        XI  United States Enrichment Corporation (Parts 1100--
                1199)
        XV  Office of the Federal Inspector for the Alaska Natural 
                Gas Transportation System (Parts 1500--1599)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
        VI  Farm Credit Administration (Parts 600--699)

[[Page 297]]

       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Thrift Depositor Protection Oversight Board (Parts 
                1500--1599)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700-1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--499)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Export Administration, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)

[[Page 298]]

       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399)

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  United States Customs Service, Department of the 
                Treasury (Parts 1--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees' Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Employment Standards Administration, Department of 
                Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)

[[Page 299]]

      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training, Department of Labor 
                (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development, International 
                Development Cooperation Agency (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  United States Information Agency (Parts 500--599)
        VI  United States Arms Control and Disarmament Agency 
                (Parts 600--699)
       VII  Overseas Private Investment Corporation, International 
                Development Cooperation Agency (Parts 700--799)
        IX  Foreign Service Grievance Board Regulations (Parts 
                900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
      XIII  Board for International Broadcasting (Parts 1300--
                1399)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

[[Page 300]]

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs and Section 202 Direct Loan Program) 
                (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--999)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--799)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900)
        VI  Office of the Assistant Secretary-Indian Affairs, 
                Department of the Interior (Part 1001)

[[Page 301]]

       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Parts 1200--1299)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--799)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Bureau of Alcohol, Tobacco and Firearms, Department of 
                the Treasury (Parts 1--299)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--199)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Pension and Welfare Benefits Administration, 
                Department of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

[[Page 302]]

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Minerals Management Service, Department of the 
                Interior (Parts 200--299)
       III  Board of Surface Mining and Reclamation Appeals, 
                Department of the Interior (Parts 300--399)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
        VI  Bureau of Mines, Department of the Interior (Parts 
                600--699)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)
      XXIX  Presidential Commission on the Assignment of Women in 
                the Armed Forces (Part 2900)

[[Page 303]]

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Transportation (Parts 1--
                199)
        II  Corps of Engineers, Department of the Army (Parts 
                200--399)
        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
       VII  Office of Educational Research and Improvement, 
                Department of Education (Parts 700--799)
        XI  National Institute for Literacy (Parts 1100-1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

                        Title 35--Panama Canal

         I  Panama Canal Regulations (Parts 1--299)

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
       XIV  Assassination Records Review Board (Parts 1400-1499)

[[Page 304]]

             Title 37--Patents, Trademarks, and Copyrights

         I  Patent and Trademark Office, Department of Commerce 
                (Parts 1--199)
        II  Copyright Office, Library of Congress (Parts 200--299)
        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--499)
         V  Under Secretary for Technology, Department of Commerce 
                (Parts 500--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--99)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Rate Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--799)
         V  Council on Environmental Quality (Parts 1500--1599)

          Title 41--Public Contracts and Property Management

            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans 
                Employment and Training, Department of Labor 
                (Parts 61-1--61-999)
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System
       201  Federal Information Resources Management Regulation 
                (Parts 201-1--201-99) [Reserved]
            Subtitle F--Federal Travel Regulation System
       301  Travel Allowances (Parts 301-1--301-99)
       302  Relocation Allowances (Parts 302-1--302-99)

[[Page 305]]

       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Parts 303-1--303-2)
       304  Payment from a Non-Federal Source for Travel Expenses 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
        IV  Health Care Financing Administration, Department of 
                Health and Human Services (Parts 400--499)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1999)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 200--499)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10005)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services, 
                General Administration (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)

[[Page 306]]

         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  ACTION (Parts 1200--1299)
      XIII  Office of Human Development Services, Department of 
                Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission on Fine Arts (Parts 2100--2199)
      XXII  Christopher Columbus Quincentenary Jubilee Commission 
                (Parts 2200--2299)
     XXIII  Arctic Research Commission (Part 2301)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Transportation (Parts 1--
                199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Department of Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  Agency for International Development (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)

[[Page 307]]

        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  United States Information Agency (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        35  Panama Canal Commission (Parts 3500--3599)
        44  Federal Emergency Management Agency (Parts 4400--4499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399)
        54  Defense Logistics Agency, Department of Defense (Part 
                5452)
        57  African Development Foundation (Parts 5700--5799)
        61  General Services Administration Board of Contract 
                Appeals (Parts 6100--6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts 6300--6399)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Research and Special Programs Administration, 
                Department of Transportation (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)

[[Page 308]]

       III  Federal Highway Administration, Department of 
                Transportation (Parts 300--399)
        IV  Coast Guard, Department of Transportation (Parts 400--
                499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board, Department of 
                Transportation (Parts 1000--1399)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)
        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

                      CFR Index and Finding Aids

            Subject/Agency Index
            List of Agency Prepared Indexes
            Parallel Tables of Statutory Authorities and Rules
            Acts Requiring Publication in the Federal Register
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR



[[Page 309]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of April 1, 1997)

                                                  CFR Title, Subtitle or
                     Agency                               Chapter

ACTION                                            45, XII
Administrative Committee of the Federal Register  1, I
Advanced Research Projects Agency                 32, I
Advisory Commission on Intergovernmental          5, VII
     Relations
Advisory Committee on Federal Pay                 5, IV
Advisory Council on Historic Preservation         36, VIII
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development              22, II
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Commodity Credit Corporation                    7, XIV
  Cooperative State Research, Education, and      7, XXXIV
       Extension Service
  Economic Research Service                       7, XXXVII
  Energy, Office of                               7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Finance and Management, Office of               7, XXX
  Food and Consumer Service                       7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Grain Inspection, Packers and Stockyards        7, VIII; 9, II
       Administration
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Rural Business-Cooperative Service              7, XVIII, XLII
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force Department                              32, VII
  Federal Acquisition Regulation Supplement       48, 53
Alaska Natural Gas Transportation System, Office  10, XV
     of the Federal Inspector
Alcohol, Tobacco and Firearms, Bureau of          27, I
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
Animal and Plant Health Inspection Service        7, III; 9, I

[[Page 310]]

Appalachian Regional Commission                   5, IX
Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Arms Control and Disarmament Agency, United       22, VI
     States
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Assassination Records Review Board                36, XIV
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase From People Who Are
Board for International Broadcasting              22, XIII
Census Bureau                                     15, I
Central Intelligence Agency                       32, XIX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Christopher Columbus Quincentenary Jubilee        45, XXII
     Commission
Civil Rights, Commission on                       45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Commerce Department                               44, IV
  Census Bureau                                   15, I`
  Economic Affairs, Under Secretary               37, V
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Export Administration, Bureau of                15, VII
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office                     37, I
  Productivity, Technology and Innovation,        37, IV
       Assistant Secretary for
  Secretary of Commerce, Office of                15, Subtitle A
  Technology, Under Secretary for                 37, V
  Technology Administration                       15, XI
  Technology Policy, Assistant Secretary for      37, IV
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Product Safety Commission                5, LXXI; 16, II
Cooperative State Research, Education, and        7, XXXIV
     Extension Service
Copyright Office                                  37, II
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Customs Service, United States                    19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A
  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Intelligence Agency                     32, I

[[Page 311]]

  Defense Logistics Agency                        32, I, XII; 48, 54
  Defense Mapping Agency                          32, I
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 2
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Mapping Agency                            32, I
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Under Secretary                 37, V
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
  Vocational and Adult Education, Office of       34, IV
Educational Research and Improvement, Office of   34, VII
Elementary and Secondary Education, Office of     34, II
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             5, XXIII; 10, II, III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Enrichment Corporation, United States             10, XI
Environmental Protection Agency                   5, LIV; 40, I
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Administration, Office of                       5, XV
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                25, III, LXXVII; 48, 99
  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
       States
Export Administration, Bureau of                  15, VII
Export-Import Bank of the United States           5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III

[[Page 312]]

Federal Claims Collection Standards               4, II
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       11, I
Federal Emergency Management Agency               44, I
  Federal Acquisition Regulation                  48, 44
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II; 49, III
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Board                     12, IX
Federal Inspector for the Alaska Natural Gas      10, XV
     Transportation System, Office of
Federal Labor Relations Authority, and General    5, XIV; 22, XIV
     Counsel of the Federal Labor Relations 
     Authority
Federal Law Enforcement Training Center           31, VII
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Pay, Advisory Committee on                5, IV
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Property Management Regulations System    41, Subtitle C
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Finance and Management, Office of                 7, XXX
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Fishery Conservation and Management               50, VI
Food and Drug Administration                      21, I
Food and Consumer Service                         7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Accounting Office                         4, I, II
General Services Administration                   5, LVII
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Property Management Regulations System  41, 101, 105
  Federal Travel Regulation System                41, Subtitle F
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Travel Allowances                               41, 301

[[Page 313]]

Geological Survey                                 30, IV
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Great Lakes Pilotage                              46, III
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          5, XLV; 45, Subtitle A
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Health Care Financing Administration            42, IV
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Health Care Financing Administration              42, IV
Housing and Urban Development, Department of      5, LXV; 24, Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Human Development Services, Office of             45, XIII
Immigration and Naturalization Service            8, I
Independent Counsel, Office of                    28, VII
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V
Information Agency, United States                 22, V
  Federal Acquisition Regulation                  48, 19
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Intergovernmental Relations, Advisory Commission  5, VII
     on
Interior Department
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  Minerals Management Service                     30, II
  Mines, Bureau of                                30, VI
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Reclamation, Bureau of                          43, I

[[Page 314]]

  Secretary of the Interior, Office of            43, Subtitle A
  Surface Mining and Reclamation Appeals, Board   30, III
       of
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, Agency for             22, II
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
  International Development, Agency for           22, II; 48, 7
  Overseas Private Investment Corporation         5, XXXIII; 22, VII
International Fishing and Related Activities      50, III
International Investment, Office of               31, VIII
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice Department                                5, XXVIII; 28, I
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             4, II
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration and Naturalization Service          8, I
  Offices of Independent Counsel                  28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor Department                                  5, XLII
  Benefits Review Board                           20, VII
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29
  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Relations and Cooperative      29, II
       Programs, Bureau of
  Labor-Management Programs, Office of            29, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Pension and Welfare Benefits Administration     29, XXV
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training, Office of    41, 61; 20, IX
       the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Relations and Cooperative        29, II
     Programs, Bureau of
Labor-Management Programs, Office of              29, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
Management and Budget, Office of                  5, III, LXXVII; 48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II
Micronesian Status Negotiations, Office for       32, XXVII
Mine Safety and Health Administration             30, I
Minerals Management Service                       30, II
Mines, Bureau of                                  30, VI

[[Page 315]]

Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
National Aeronautics and Space Administration     5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National Archives and Records Administration      5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Bureau of Standards                      15, II
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National and Community Service, Corporation for   45, XXV
National Council on Disability                    34, XII
National Credit Union Administration              12, VII
National Drug Control Policy, Office of           21, III
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 49, V
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Standards and Technology    15, II
National Labor Relations Board                    29, I
National Marine Fisheries Service                 50, II, IV
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI
National Security Council and Office of Science   47, II
     and Technology Policy
National Telecommunications and Information       15, XXIII; 47, III
     Administration
National Transportation Safety Board              49, VIII
National Weather Service                          15, IX
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Nuclear Regulatory Commission                     5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Offices of Independent Counsel                    28, VI
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Panama Canal Commission                           48, 35
Panama Canal Regulations                          35, I
Patent and Trademark Office                       37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension and Welfare Benefits Administration       29, XXV
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Postal Rate Commission                            5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI

[[Page 316]]

President's Commission on White House             1, IV
     Fellowships
Presidential Commission on the Assignment of      32, XXIX
     Women in the Armed Forces
Presidential Documents                            3
Prisons, Bureau of                                28, V
Productivity, Technology and Innovation,          37, IV
     Assistant Secretary
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Regional Action Planning Commissions              13, V
Relocation Allowances                             41, 302
Research and Special Programs Administration      49, I
Rural Business-Cooperative Service                7, XVIII, XLII
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                17, II
Selective Service System                          32, XVI
Small Business Administration                     13, I
Smithsonian Institution                           36, V
Social Security Administration                    20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
Special Trustee for American Indians, Office of   25, VII
State Department                                  22, I
  Federal Acquisition Regulation                  48, 6
Surface Mining and Reclamation Appeals, Board of  30, III
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Technology Administration                         15, XI
Technology Policy, Assistant Secretary for        37, IV
Technology, Under Secretary for                   37, V
Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Depositor Protection Oversight Board       12, XV
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     5, L
  Coast Guard                                     33, I; 46, I; 49, IV
  Commercial Space Transportation                 14, III
  Contract Appeals, Board of                      48, 63
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II; 49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 49, V
  Research and Special Programs Administration    49, I
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Surface Transportation Board                    49, X
Transportation, Office of                         7, XXXIII
Travel Allowances                                 41, 301
Treasury Department                               5, XXI; 17, IV
  Alcohol, Tobacco and Firearms, Bureau of        27, I

[[Page 317]]

  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs Service, United States                  19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Law Enforcement Training Center         31, VII
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  International Investment, Office of             31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
United States Enrichment Corporation              10, XI
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training, Office of the  41, 61; 20, IX
     Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Vocational and Adult Education, Office of         34, IV
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I
World Agricultural Outlook Board                  7, XXXVIII

[[Page 319]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations which were 
made by documents published in the Federal Register since January 1, 
1986, are enumerated in the following list. Entries indicate the nature 
of the changes effected. Page numbers refer to Federal Register pages. 
The user should consult the entries for chapters and parts as well as 
sections for revisions.
For the period before January 1, 1986, see the ``List of CFR Sections 
Affected, 1949-1963, 1964-1972, and 1973-1985'' published in seven 
separate volumes.

                                  1986

19 CFR
                                                                   51 FR
                                                                    Page
Chapter II
201.3a  Added......................................................25195
201.101--201.170 (Subpart G)  Added; eff. 4-7-86..............4575, 4579
201.103  Corrected..................................................7543
201.150  (c) corrected..............................................7543
201.170  (c) revised................................................4576
213  Added.........................................................26000
    Effective date correctly added.................................27169
Chapter III
353.53  (e) removed................................................25197

                                  1987

19 CFR
                                                                   52 FR
                                                                    Page
Chapter II
201  Nomenclature changes..........................................48994
201.3  (a) and (b) amended.........................................48994
201.6  (b), (e), and (f) amended...................................48994
201.17  (a) amended................................................48994
201.19  (a) amended................................................48994
201.23  (e) amended................................................48994
201.24  (a) amended................................................48994
201.25  (b) amended................................................48994
201.28  (a) amended................................................48994
201.29  (a) amended................................................48994
201.41  (b) amended................................................48994
201.170  (c) amended...............................................48994
212  Nomenclature changes..........................................48994
212.29  Amended....................................................48994
213  Nomenclature changes..........................................48994
213.4  (a) amended.................................................48994
213.7  Amended.....................................................48994
Chapter III
353.24  Added......................................................30662
355.8  Added.......................................................30662

                                  1988

19 CFR
                                                                   53 FR
                                                                    Page
Chapter II
206  Revised; interim..............................................33036
207  Authority citation revised....................................33041
207.2  (h) removed; (i) redesignated as (h); interim...............33041
207.3  Revised; interim............................................33041
207.7  (a), (b), (d), and (e) revised; (f), (g), and (h) added; 
        interim....................................................33041
207.10  (b) revised; (c) added; interim............................33042
207.11  Amended; interim...........................................33042
207.26  Removed; new 207.26 added; interim.........................33042
207.27  Removed; interim...........................................33042
207.90--207.121 (Subpart G)  Added; interim........................53253
210  Revised; interim..............................................33055
    Authority citation revised.....................................49129
210.1  Revised; interim............................................49129
210.24  (e) introductory text, (1), (7), and (9) through (18) 
        revised; interim...........................................49129

[[Page 320]]

210.41  (a) introductory text republished; (a)(2) revised; interim
                                                                   49133
210.53  (b) revised; (j) added; interim............................49133
210.54  (a)(1) and (b)(1) amended; interim.........................49133
210.56  (d) revised; interim.......................................49133
210.58  (b) revised; (c) and Appendix A added; interim......49133, 49136
210.59  (b) revised; interim.......................................49138
211  Revised; interim..............................................33073
Chapter III
353  Authority citation revised....................................47920
353.30  (e)(2) revised.............................................47920
354  Added.........................................................47920
355  Authority citation revised....................................47925
    Revised........................................................52344
355.20  (e)(2) revised.............................................47925
356  Added; interim................................................53236

                                  1989

19 CFR
                                                                   54 FR
                                                                    Page
Chapter II
201  Authority citation revised....................................13678
201.6  (a) amended; (e)(3) added...................................13678
201.13  (l) added..................................................13678
201.17--201.21 (Subpart C)  Heading and authority citation revised
                                                                   13672
    Authority citation revised.....................................13678
201.18  Heading revised; existing text designated as (a); (b) 
        through (e) redesignated from 201.19 (a) through (d).......13678
201.19  Revised; (a) through (d) redesignated as 201.18 (b) 
        through (e)................................................13678
201.20  Revised....................................................13673
201.21  (c) added..................................................13676
207.3  Revised; interim.............................................5222
207.7  (a)(1), (2) and (3), (b), (c), and (f) revised; interim......5222
207.10  (b) revised; interim........................................5223
207.90--207.121 (Subpart G)  Regulation at 53 FR 53253 confirmed 
                                                                    5077
207.90--207.120 (Subpart G)  Revised; interim......................36295
213  Revised.......................................................33883
Chapter III
353  Revised; eff. 4-27-89.........................................12769
    Effective date correctly added.................................13294
353.22  (a) and (c) effective 6-1--89..............................12742
    Effective date correctly added.................................13294
353.22  Effective date corrected...................................13977
356  Regulation at 53 FR 53236 confirmed............................5930

                                  1990

19 CFR
                                                                   55 FR
                                                                    Page
Chapter II
201.32  (d) and (e) added..........................................40379
Chapter III
353  Authority citation revised.....................................9047
353.27  Added; interim..............................................9047
    Effective date corrected................................11109, 11719
    Regulation at 55 FR 9047 comment time extended.................20453
353.28  Added; interim..............................................9048
    Effective date corrected................................11109, 11719
    Regulation at 55 FR 9048 comment time extended.................20453
353.29  Added; interim..............................................9049
    Effective date corrected................................11109, 11719
    Regulation at 55 FR 9049 comment time extended.................20453
353.31  (e)(2) and (g) revised; interim.............................9051
    Effective date corrected................................11109, 11719
    Regulation at 55 FR 9051 comment time extended.................20453
353.34  (a), (b)(1), (5), and (c) revised; (b)(6) added; interim 
                                                                    9051
    Effective date corrected................................11109, 11719
    Regulation at 55 FR 9051 comment time extended.................20453
353.71 (Subpart E)  Added; interim..................................9052
    Effective date corrected................................11109, 11719
    Regulation at 55 FR 9052 comment time extended.................20453
355  Authority citation revised.....................................9052
355.27  Added; interim..............................................9052
    Effective date corrected................................11109, 11719

[[Page 321]]

    Regulation at 55 FR 9052 comment time extended.................20453
355.28  Added; interim..............................................9053
    Effective date corrected................................11109, 11719
    Regulation at 55 FR 9053 comment time extended.................20453
355.29  Added; interim..............................................9054
    Effective date corrected................................11109, 11719
    Regulation at 55 FR 9054 comment time extended.................20453
355.31  (e)(2) and (g) revised; interim.............................9056
    Effective date corrected................................11109, 11719
    Regulation at 55 FR 9056 comment time extended.................20453
355.34  (a), (b)(1), (5), and (c) revised; (b)(6) added; interim 
                                                                    9056
    Effective date corrected................................11109, 11719
    Regulation at 55 FR 9056 comment time extended.................20453
355.51 (Subpart E)  Added; interim..................................9057
    Effective date corrected................................11109, 11719
    Regulation at 55 FR 9057 comment time extended.................20453
357  Added; interim.................................................1349

                                  1991

19 CFR
                                                                   56 FR
                                                                    Page
Chapter II
200  Authority citation revised....................................36726
200.735-102  (g) removed...........................................36726
200.735-103  (a) and (c) introductory text amended; (b) and (c)(2) 
        revised....................................................36726
200.735-114  Nomenclature change...................................36726
200.735-115  Nomenclature change...................................36726
200.735-116  (b) revised...........................................36726
200.735-121  Nomenclature change...................................36726
201.2  Revised; eff. 4-22-91.......................................11922
201.8  (d) revised; eff. 4-22-91...................................11922
201.11  Revised; eff. 4-22-91......................................11922
201.14  (b) revised; eff. 4-22-91..................................11923
201.15  (a) revised; eff. 4-22-91..................................11923
207  Authority citation revised....................................11923
207.1  Revised; eff. 4-22-91.......................................11923
207.2--207.8 (Subpart A)  Revised; eff. 4-22-91....................11923
207.10--207.18 (Subpart B)  Revised; eff. 4-22-91..................11927
207.20--207.28 (Subpart C)  Revised; eff. 4-22-91..................11928
207.40--207.45 (Subpart D)  Revised; eff. 4-22-91..................11929
207.50--207.51 (Subpart E)  Revised; eff. 4-22-91..................11930
207.50--207.51 (Subpart F)  Removed; eff. 4-22-91..................11930
Chapter III
356  Revised.......................................................37804

                                  1992

19 CFR
                                                                   57 FR
                                                                    Page
Chapter II
207.90  Revised....................................................34825
207.91  Revised....................................................34825
    Amended........................................................56259
207.93  Revised....................................................34825
    (b)(3)(i), (c)(2)(ii)(A)(4), (c)(3), (5)(i), (ii) introductory 
text, (d)(2)(ii), (iii) and (iv) revised; (c)(5)(iii) added........56259
207.94  Revised.............................................34827, 56260
207.100  Revised...................................................34828
207.101  Revised...................................................34828
207.102  (a)(1) introductory text, (2) introductory text, (c), 
        (d), (e) and (g) revised...................................34828
    (e) and (g) revised............................................56260
207.103  (a)(1), (2), (4), (5) and (d) revised.....................34828
    (a)(2) revised.................................................56260
207.105  Revised...................................................34829
    (b) revised....................................................56260
207.106  (a) amended; (b), (c), (d) and (e) revised................34829
    (d) revised....................................................56260
207.107  (a)(1) and (d) revised....................................34829
207.108  Revised...................................................34829
    Amended........................................................56260
207.109  Revised...................................................34829
207.110  (a) amended...............................................34829
207.111  Introductory text revised.................................34829
207.112  (a) and (b) revised.......................................34830
207.113  (a)(1) revised............................................34830
207.114  (a) through (c) revised...................................34830
207.115  (a)(2), (3)(ii), and (4) revised..........................34830
207.116  Revised...................................................34830

[[Page 322]]

207.117  Amended...................................................34830
207.118  Revised...................................................34830
207.119  Revised...................................................34830
207.120  Revised...................................................34830
Chapter III
353.31  (a)(1) introductory text, (b)(4) and (g) introductory text 
        revised; interim...........................................30902
353.32  (a)(2) and (b) introductory text revised; (a)(3) and 
        (b)(3) added; interim......................................30903
355.31  (a)(1), (b)(4) and (g) introductory text revised; interim 
                                                                   30903
355.32  (a)(2) and (b) introductory text revised; (a)(3) and 
        (b)(3) added; interim......................................30903

                                  1993

19 CFR
                                                                   58 FR
                                                                    Page
Chapter II
201.35  (a) and (c) revised........................................64121

                                  1994

19 CFR
                                                                   59 FR
                                                                    Page
Chapter II
201.13  (m) added..................................................66722
206  Revised; interim...............................................5091
    Regulation at 59 FR 5091 confirmed.............................19638
207.7  (a)(3)(ii), (b)(10), (d), (e) heading, (1), (f)(1), (2) and 
        (g) revised................................................66723
207.22  Revised....................................................66724
207.23  (a) and (b) revised; (d) added.............................66724
207.90--207.120 (Subpart G)  Revised; interim.......................5097
    Regulation at 59 FR 5097 confirmed.............................19638
210  Revised.......................................................39039
    Authority citation revised.....................................67626
210.3  Amended; interim............................................67626
210.4  (d)(3) corrected............................................64286
    (d)(2)(iii) revised; interim...................................67626
210.5  (b)(2) and (4) revised; (c) and (d) redesignated as (d) and 
        (e); new (c) added; interim................................67626
210.12  (a)(9)(i) corrected........................................64286
210.14  Heading revised; (e) added; interim........................67627
210.16  (c)(2) amended; interim....................................67627
210.21  (a)(2) revised; (d) redesignated as (e); new (d) added; 
        interim....................................................67627
210.22  (b) removed; (c) redesignated as (b); interim..............67627
210.23  Amended; interim...........................................67627
210.24  (a)(1) and (b)(2) revised; (a)(2) removed; (a)(3) 
        redesignated as (a)(2); interim............................67627
210.39  (b), (c) and (d) redesignated as (c), (d) and (e); new (b) 
        added; interim.............................................67627
210.41  Revised; interim...........................................67628
210.42  (a)(1)(i), (b), (c) and (h)(3) revised; interim............67628
210.43  (a)(1) and (d)(1) amended; interim.........................67628
210.49  (a) revised; interim.......................................67628
210.50  (a)(3) revised; (b)(2) amended; (c) and (d) added; interim
                                                                   67628
210.51  (b) and (c) revised; interim...............................67629
210.52  (c) revised; (e) removed; (f) redesignated as (e); interim
                                                                   67629
210.68  Appendix A corrected.......................................64286
210.70  Heading and text revised; interim..........................67629
211  Removed.......................................................39039
Chapter III
356  Revised; interim................................................229

                                  1995

19 CFR
                                                                   60 FR
                                                                    Page
Chapter II
201.2  (b) through (i) redesignated as (c) through (j); new (b) 
        added......................................................37336
201.18  (a) revised................................................37336
201.24  (d) revised................................................37336
201.28  (b) revised................................................37336
201.29  Revised....................................................37336
201.30  (b) revised................................................37336
206  Authority citation revised.......................................10
206.2--206.8 (Subpart A)  Revised; interim............................10
    Regulation at 60 FR 10 confirmed...............................46500
206.11--206.19 (Subpart B)  Revised; interim..........................12

[[Page 323]]

    Regulation at 60 FR 12 confirmed...............................46500
206.34  Revised; interim..............................................16
    Regulation at 60 FR 16 confirmed...............................46500
206.35  Revised; interim..............................................17
    Regulation at 60 FR 17 confirmed...............................46500
206.51--206.55 (Subpart F)  Revised; interim..........................17
    Regulation at 60 FR 17 confirmed...............................46500
207  Authority citation revised.......................................21
207.1  Revised; interim...............................................21
207.2  (e) revised; interim...........................................21
207.8  Revised; interim...............................................21
207.10  (a) and (c)(2) revised; (d) removed; interim..................22
207.11  Revised; interim..............................................22
207.21  (b) revised; interim..........................................22
207.23  (c)(2) revised; interim.......................................22
207.29  Added; interim................................................22
207.40  (a) and (b) revised; interim..................................22
207.46  Added; interim................................................23
210.4  (f)(3) revised..............................................32443
210.5  (a) revised.................................................32444
210.7  Revised.....................................................53119
210.8  (a) revised.................................................32444
210.11  (a) revised................................................53119
210.21  (b)(2), (c)(2)(i), (ii) and (d) revised....................53120
210.41  Revised....................................................53120
210.42  (e) and (i) revised........................................53120
210.43  (d)(3) revised.............................................53120
210.45  (c) revised................................................53120
210.52  (e) revised................................................32444
210.66  (d) and (f) revised........................................53121
210.74  (b) revised................................................53121
Chapter III
353  Authority citation revised....................................25133
353.1  Revised; interim............................................25133
353.12  (b)(2) revised; interim....................................25134
353.13  (a) revised; interim.......................................25134
353.15  (a)(1), (b) and (c) revised; interim.......................25134
353.22  (c)(4) and (7) revised; (h) added; interim.................25134
353.31  (a)(1) and (c) revised; interim............................25135
353.38  (i) added; interim.........................................25136
355  Authority citation revised....................................25136
355.1  Revised; interim............................................25136
355.12  (b)(2) revised; interim....................................25136
355.13  (a) revised; interim.......................................25136
355.15  (a)(1), (2)(ii), (4), (b) and (c) revised; interim.........25136
355.20  (a)(2)(ii), (4) and (e) revised; (d) removed; interim......25136
355.22  (a), (c), (i)(5)(ii), (6), (9)(ii) and (10) revised; (d) 
        and (f) removed; (j) added; interim........................25137
355.31  (a)(1) and (c) revised; interim............................25139
355.38  (i) added; interim.........................................25139
355.40  Added; interim.............................................25139

                                  1996

19 CFR
                                                                   61 FR
                                                                    Page
Chapter II
201.6  (a), (b) and (f) revised....................................37827
201.11  (a) and (b) revised........................................37828
201.13  (m) revised................................................37829
207  Authority citation revised....................................37829
207.1  Revised.....................................................37829
207.2  Regulation at 60 FR 21 confirmed............................37829
207.3  (b) and (c) revised.........................................37829
207.4  (a) revised.................................................37829
207.7  (a), (f)(2), (3) and (g) revised............................37829
207.8  Revised.....................................................37831
207.10  Revised....................................................37831
207.11  Revised....................................................37831
207.12  Revised....................................................37832
207.13  Revised....................................................37832
207.14  Revised....................................................37832
207.18  Revised....................................................37832
207.20  Redesignated as 207.21; new 207.20 added...................37832
207.21  Redesignated as 2