[Title 19 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2005 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

          19


          Part 200 to End

                         Revised as of April 1, 2005


          Customs Duties
          
          


________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of April 1, 2005
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

[[Page ii]]

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                            Table of Contents



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

  Title 19:
          Chapter II--United States International Trade 
          Commission                                                 3
          Chapter III--International Trade Administration, 
          Department of Commerce                                   189
          CHAPTER IV--Bureau of Immigration and Customs 
          Enforcement, Department of Homeland Security             333
  Finding Aids:
      Table of CFR Titles and Chapters........................     337
      Alphabetical List of Agencies Appearing in the CFR......     355
      List of CFR Sections Affected...........................     365

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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.

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

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                               EXPLANATION

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Title 1 through Title 16.................................as of January 1
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Title 28 through Title 41...................................as of July 1
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[[Page vi]]

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                          Office of the Federal Register.

April 1, 2005.

[[Page ix]]



                               THIS TITLE

    Title 19--Customs Duties is composed of three volumes. The first two 
volumes, parts 0 to 140 and parts 141 to 199 contain the regulations in 
Chapter I--Bureau of Customs and Border Protection, Department of 
Homeland Security; Department of the Treasury. The third volume, part 
200 to end, contains the regulations in Chapter II--United States 
International Trade Commission; Chapter III--International Trade 
Administration, Department of Commerce; and Chapter IV--Bureau of 
Immigration and Customs Enforcement, Department of Homeland Security. 
The contents of these volumes represent all current regulations issued 
under this title of the CFR as of April 1, 2005.

    A Subject Index to Chapter I--Bureau of Customs and Border 
Protection, Department of Homeland Security; Department of the Treasury 
appears in the Finding Aids section of the first two volumes.

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

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                         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

                                                                   351

chapter iv_Bureau of Immigration and Customs Enforcement, Department of 
Homeland Security

                                                                   400

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        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.......          67
204             Investigations of effects of imports on 
                    agricultural programs...................          68
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............          69
206             Investigations relating to global and 
                    bilateral safeguard actions, market 
                    disruption, trade diversion, and review 
                    of relief actions.......................          71
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............          94
    SUBCHAPTER C--INVESTIGATIONS OF UNFAIR PRACTICES IN IMPORT TRADE
210             Adjudication and enforcement................         128
212             Implementation of the Equal Access to 
                    Justice Act.............................         180
213             Trade remedy assistance.....................         185

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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]]

other 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]]

of 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 engage 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]]

ideas 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]]



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]]

level 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]]

in 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 Sec. Sec. 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 Sec. Sec. 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]]



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]]



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]]

    (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]]

participate 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]]



                          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 Requests for correction or amendment of records.
201.29 Commission disclosure of individual records, accounting of record 
          disclosures, and requests for accounting of record 
          disclosures.
201.30 Commission review of requests for access to records, for 
          correction or amendment to records, and for accounting of 
          record disclosures.
201.31 Fees and employee conduct.
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.

[[Page 17]]

201.151 Program accessibility: New construction and alterations.
201.152-201.159 [Reserved]
201.160 Communications.
201.161-201.169 [Reserved]
201.170 Compliance procedures.
201.171-201.999 [Reserved]

                        Subpart H_Debt Collection

201.201 Definitions.
201.202 Purpose and scope of salary and administrative offset rules.
201.203 Delegation of authority.
201.204 Salary offset.
201.205 Salary adjustments.
201.206 Administrative offset.
201.207 Administrative offset against amounts payable from Civil Service 
          Retirement and Disability Fund.
201.208 Tax refund offset.

    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.



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, and parts 210, 212 and 213, of this chapter. In case of 
inconsistency between a rule of general application and a rule of 
special application, the latter is controlling.

[68 FR 32973, June 3, 2003]



                         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, 
1677m-n;
    (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; 
68 FR 32973, June 3, 2003]

[[Page 18]]



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 business 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. Any document filed with the Secretary of the 
Commission after 5:15 p.m. will be considered filed the next business 
day. If filing on that day would be untimely, the filing may not be 
accepted unless a request is made for acceptance of a late filing for 
good cause shown pursuant to 201.14(b)(2).

[45 FR 80276, Dec. 4, 1980, as amended at 68 FR 32973, June 3, 2003]



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 Commission's Office of Facilities Management, 
telephone 202-205-2741, 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, as amended at 68 FR 32974, June 3, 2003]



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 202 of the Trade Act of 1974 (19 
U.S.C. 2252), 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 et seq.) or the countervailing duty provisions (19 
U.S.C. 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 
Secretary shall promptly thereafter publish notice of the filing of such 
suggestion and information,

[[Page 19]]

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; 68 
FR 32974, June 3, 2003]



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 as 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. 206.17 and 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;

[[Page 20]]

    (iii) A certification in writing under oath that substantially 
identical information is not available to the public;
    (iv) A copy of the document
    (A) Clearly marked on its cover as to the pages on which 
confidential information can be found;
    (B) With information for which confidential treatment is requested 
clearly identified by means of brackets; and
    (C) With information for which nondisclosable confidential treatment 
is requested clearly identified by means of triple brackets (except when 
submission of such document is withheld in accord with paragraph (b)(4) 
of this section); and
    (v) A nonconfidential copy of the documents as required by Sec. 
201.8(d).
    (4) The submission of the documents itemized in paragraph (b)(3) of 
this section will provide the basis for rulings on the confidentiality 
of submissions, including rulings on the confidentiality of submissions 
offered to the Commission which have not yet been placed under the 
possession, control, or custody of the Commission. The submitter has the 
option of providing the business information for which confidential 
treatment is sought at the time the documents itemized in paragraph 
(b)(3) of this section are provided or of withholding them until a 
ruling on their confidentiality has been issued.
    (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. An approval or a denial of a request for confidential 
treatment shall be in writing. A denial 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 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

[[Page 21]]

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 submitted to the Commission is not 
entitled to confidential treatment, the submitter will be permitted to 
withdraw the tender within five days of its denial of confidential 
treatment unless it is the subject of a request under the Freedom of 
Information Act or of judicial discovery proceedings. After such five 
day period, the business information deemed not entitled to confidential 
treatment, and not withdrawn, will be treated as public information.
    (h) Scope of provisions. The provisions of Sec. Sec. 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; 68 FR 32974, June 
3, 2003]



           Subpart B_Initiation and Conduct of Investigations



Sec. 201.7  Investigative authority and initiation of investigations.

    (a) Investigative authority. In order to expedite the performance of 
its functions, the Commission may engage in investigative activities 
preliminary to and in aid of any authorized investigation, consolidate 
proceedings before it, and determine the scope and manner of its 
proceedings;
    (b) Initiation of investigations. Investigations may be initiated by 
the Commission on the Commission's own motion, upon request of the 
President or the United States Trade Representative, upon resolution of 
the Committee on Ways and Means of the House of Representatives or the 
Committee of Finance of the Senate, upon resolution of either branch of 
Congress, or upon application, petition, complaint, or request of 
private parties, as required or provided for in the pertinent statute, 
Presidential proclamation, Executive Order, or in this chapter.

[44 FR 76476, Dec. 26, 1979, as amended at 63 FR 29351, May 29, 1998]



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 within the hours of operation specified in 
Sec. 201.3(c), 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 double-spaced, clear and legible, except that a 
document of two pages or less in length need not be double-spaced.

[[Page 22]]

    (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 shall 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.'' In the event that 
confidential treatment is not requested, the document shall be 
conspicuously marked ``No confidential version filed.'' 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.
    (f) Electronic filing. Notwithstanding the relevant provisions of 
Sec. Sec. 201.8, 201.12, 201.13, 201.16, 206.8, 207.3, 207.10, 207.15, 
207.25, 207.30, 207.62, 207.67, 207.68, 207.93, 210.4, and 210.8 of the 
Commission's rules of practice and procedure (19 CFR 201.8, 201.12, 
201.13, 201.16, 206.8, 207.25, 207.3, 207.10, 207.15, 207.30, 207.62, 
207.67, 207.68, 207.93, 210.4, and 210.8) governing the filing of 
documents in paper form with the Commission, a person may instead or in 
addition choose to file electronically certain documents at http://
edis.usitc.gov.A person so choosing shall comply with the procedures set 
forth in the Commission's Handbook on Electronic Filing Procedures, 
which is available at the Office of the Secretary and at http://
edis.usitc.gov. The Commission's Handbook on Electronic Filing 
Procedures will include a description of documents that are permitted to 
be filed with the Commission in electronic form.
    (g) Cover Sheet. When making a paper filing, parties must complete 
the cover sheet on-line at http://edis.usitc.gov and print out the cover 
sheet for submission to the Office of the Secretary with the paper 
filing. For documents that are filed electronically, parties must 
complete the cover sheet for such filing on-line at http://
edis.usitc.gov at the time of the electronic filing. The party 
submitting the cover sheet is responsible for the accuracy of all 
information contained in the cover sheet, including, but not limited to, 
the security status and the investigation number, and must comply with 
applicable limitations on disclosure of business proprietary information 
or confidential information under Sec. 201.6 and Sec. Sec. 206.8, 
206.17, 207.3, and 207.7 of this chapter.

[41 FR 17710, Apr. 27, 1976, as amended at 49 FR 32571, Aug. 15, 1984; 
56 FR 11922, Mar. 21, 1991; 67 FR 68037, Nov. 8, 2002; 68 FR 32974, June 
3, 2003]



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]

[[Page 23]]



Sec. 201.10  Public notices.

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

[63 FR 29347, May 29, 1998]



Sec. 201.11  Appearance in an investigation as a party.

    (a) Who may appear as a party. Any person may apply to appear in an 
investigation as a party, either in person or by representative, by 
filing an entry of appearance with the Secretary. Each entry of 
appearance shall state briefly the nature of the person's reason for 
participating in the investigation and state the person's intent to file 
briefs with the Commission regarding the subject matter of the 
investigation. The Secretary shall promptly determine whether the person 
submitting the entry of appearance has a proper reason for participating 
in the investigation. In any investigation conducted under part 207 of 
this chapter, industrial users, and if the merchandise under 
investigation is sold at the retail level, representative consumer 
organizations, will be deemed to have a proper reason for participating 
in the investigation. If it is found that a person does not have a 
proper reason for participating in the investigation, that person shall 
be so notified by the Secretary and shall not be entitled to appear in 
the investigation as a party. A person found to have a proper reason for 
participating in the investigation shall be permitted to appear in the 
investigation as a party, and acceptance of such person's entry of 
appearance shall be signified by the Secretary's inclusion of such 
person on the service list established pursuant to paragraph (d) of this 
section.
    (b) Time for filing. (1) Except in the case of investigations 
conducted under part 207 of this chapter, each entry of appearance shall 
be filed with the Secretary not later than twenty-one (21) days after 
publication of the Commission's notice of investigation in the Federal 
Register.
    (2) In the case of investigations conducted under subpart B of part 
207 of this chapter, each entry of appearance shall be filed with the 
Secretary not later than seven (7) days after publication of the 
Commission's notice of investigation in the Federal Register. A party 
that files a notice of appearance during such time need not file an 
additional notice of appearance during the portion of the investigation 
conducted under subpart C of part 207 of this chapter.
    (3) Notwithstanding paragraph (b)(2) of this section, a party may 
file an entry of appearance during the final phase of an investigation 
conducted under part 207 of this chapter no later than twenty-one (21) 
days prior to the hearing date listed in the Federal Register notice 
published pursuant to Sec. 207.24(b) of this chapter.
    (4) In the case of reviews conducted under subpart F of part 207 of 
this chapter, each entry of appearance shall be filed with the Secretary 
not later than twenty-one (21) days after publication in the Federal 
Register of the notice of institution described in Sec. 207.60(d) of 
this chapter.
    (5) Notwithstanding paragraph (b)(4) of this section, a party may 
file an entry of appearance in a review conducted under subpart F of 
part 207 of this chapter within the period specified in the notice 
issued under Sec. 207.62(c) of this chapter. This period shall be at 
least 45 days.
    (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

[[Page 24]]

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; 
63 FR 30607, June 5, 1998]



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.
    (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. A party to the investigation may file 
with the Secretary supplementary material,

[[Page 25]]

other than remarks read into the record, for acceptance into the record. 
The party shall file any such material with the Secretary at the 
hearing. Supplementary materials must be marked with the name of the 
organization submitting it. 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. 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.
    (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; 68 FR 32975, June 3, 2003]

[[Page 26]]



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. In the event of an early or all-day 
closing of the Commission on a business day, the Secretary is authorized 
to accept on the next full business day filings due the day of the early 
or all-day closing, without requiring the granting of an extension of 
time by the Chairman of the Commission, or such other person designated 
to conduct the investigation.
    (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; 
68 FR 32975, June 3, 2003]



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.
    (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

[[Page 27]]

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.
    (e) Electronic Service. With the prior consent of the Secretary, 
parties may serve documents by electronic means in all matters before 
the Commission, except for proceedings conducted under section 337 of 
the Tariff Act of 1930 that are before an administrative law judge. In 
the case of proceedings under section 337 of the Tariff Act of 1930, 
parties may serve documents by electronic means with the prior consent 
of the presiding administrative law judge while the proceeding is before 
an administrative law judge. Parties may only effect electronic service 
on recipients who have provided written consent thereto to the Secretary 
or the presiding administrative law judge. If electronic service is 
permitted, paragraphs (a), (b) and (d) of this section shall not apply. 
However, any dispute that arises among parties regarding electronic 
service must be resolved by the parties themselves, without the 
Commission's involvement.
    A party may, upon notice to all parties, withdraw its consent to 
electronic service and require service under paragraphs (a) and (b) of 
this section.

(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; 67 FR 68037, Nov. 8, 
2002]



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.

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



Sec. 201.17  Procedures for requesting access to records.

    (a) Requests for records. (1) A request for any information or 
record shall be

[[Page 28]]

addressed to the Secretary, United States International Trade 
Commission, 500 E Street SW., Washington, DC 20436 and shall indicate 
clearly in the request, and if the request is in paper form on the 
envelope, that it is a ``Freedom of Information Act Request.'' A written 
request may be made either (1) in paper form, or (2) electronically by 
contacting the Commission at http://www.usitc.gov/foia.htm.
    (2) Any request shall reasonably describe the requested record to 
facilitate location of the record. If the request pertains to a record 
that is part of the Commission's file in an investigation, the request 
should identify the investigation by number and name. A clear 
description of the requested record(s) should reduce the time required 
by the Commission to locate and disclose releasable responsive record(s) 
and minimize any applicable search and copying charges.
    (3) Except as provided in paragraph (b) of this section, requests 
will be processed in the order in which they are filed.
    (4) Requests for transcripts of hearings should 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.
    (5) Copies of public Commission reports and other publications can 
be requested by calling or writing the Publications Office in the Office 
of the Secretary. Generally, such publications can be obtained more 
quickly from this office. Certain Commission publications are sold by 
the Superintendent of Documents, U.S. Government Printing Office, and 
are available from that agency at the price set by that agency.
    (6) A day-to-day, composite record will be kept by the Secretary of 
each request with the disposition thereof.
    (b) Expedited processing. (1) Requests for records under paragraph 
(a)(1) of this section will be taken out of order and given expedited 
treatment whenever it is determined that they involve:
    (i) Circumstances in which the lack of expedited treatment could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual;
    (ii) An urgency to inform the public about an actual or alleged 
federal government activity, if made by a person primarily engaged in 
disseminating information;
    (iii) The loss of substantial due process rights; or
    (iv) A matter of widespread and exceptional media interest in which 
there exist possible questions about the government's integrity which 
affect public confidence.
    (2) A request for expedited processing may be made at the time of 
the initial request for records or at any later time.
    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct to the best of that person's 
knowledge and belief, explaining in detail the basis for requesting 
expedited processing. For example, a requester within paragraph 
(b)(1)(ii) of this section, if not a full-time member of the news media, 
must establish that he or she is a person whose main professional 
activity or occupation is information dissemination, though it need not 
be his or her sole occupation. A requester within paragraph (b)(1)(ii) 
of this section also must establish a particular urgency to inform the 
public about the government activity involved in the request, beyond the 
public's right to know about government activity generally. The 
formality of certification may be waived as a matter of administrative 
discretion.
    (4) Within ten calendar days of receipt of a request for expedited 
processing, the Secretary will decide whether to grant it and will 
notify the requester of the decision. If a request for expedited 
treatment is granted, the request will be given priority and will be 
processed as soon as practicable. If a request for expedited processing 
is denied, any appeal of that decision will be acted on expeditiously.
    (c) Public reading room. The Commission maintains a public reading 
room in the Office of the Secretary for access to the records that the 
FOIA requires to be made regularly available for public inspection and 
copying. Reading room records created by the Commission on or after 
November 1, 1996, are available electronically. This includes

[[Page 29]]

a current subject-matter index of reading room records, which will 
indicate which records are available electronically.

[63 FR 29347, May 29, 1998, as amended at 68 FR 32975, June 3, 2003]



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 must be received within 
sixty days of the date of the letter of denial and shall be made to the 
Commission and addressed to the Chairman, United States International 
Trade Commission, 500 E Street SW., Washington, DC 20436. Any such 
appeal shall be in writing, and shall indicate clearly in the appeal, 
and if the appeal is in paper form on the envelope, that it is a 
``Freedom of Information Act Appeal.'' An appeal may be made either in 
paper form, or electronically by contacting the Commission at http://
www.usitc.gov/foia.htm.
    (c) Except when expedited treatment is requested and granted, 
appeals will be decided in the order in which they are filed, but in any 
case within twenty days (excepting Saturdays, Sundays, and legal 
holidays) unless an extension, noticed in writing with the reasons 
therefor, has been provided to the person making the request. Notice of 
the decision on appeal and the reasons therefor will be made promptly 
after a decision. Requests for expedited treatment should conform with 
the requirements in Sec. 201.17(c) of this part.
    (d) The extensions of time mentioned in paragraph (c) 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 paragraph (c) 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; 63 FR 29348, May 29, 1998; 68 FR 32975, June 3, 
2003]



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.
    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 federal governments, as well as others who have 
an administrative relationship with the Commission such as contractors, 
bidders and vendors.
    (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

[[Page 30]]

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, as amended at 68 FR 32975, June 3, 2003]



Sec. 201.20  Fees.

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

[[Page 31]]

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 $4.00. When the time of agency personnel in 
salary grades GS-11 and above is required, the fee shall be $6.50 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 $6.50 per quarter hour of time so spent).
    (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 $6.50.
    (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--
    (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

[[Page 32]]

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 significant 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:

[[Page 33]]

    (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 clearly 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.

[[Page 34]]

    (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.
    (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.

[[Page 35]]

    (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 record 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

[[Page 36]]

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, as amended at 63 FR 29348, May 29, 1998]



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. Much of the information described above also is available 
on the Commission's World Wide Web site. The Commission's home page is 
at http://www.usitc.gov. The Web site also includes information subject 
to repeated Freedom of Information Act requests. Persons accessing the 
Web site can find instructions on how to locate Commission information 
by following the ``Freedom of Information Act'' link on the home page.
    (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 37]]

that 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 38]]

for 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; 68 
FR 32975, June 3, 2003]



   Subpart D_Safeguarding Individual Privacy Pursuant to 5 U.S.C. 552a

    Source: 63 FR 29348, May 29, 1998, unless otherwise noted.



Sec. 201.22  Purpose and scope.

    This subpart contains the rules that the Commission follows under 
the Privacy Act of 1974, 5 U.S.C. 552a. The rules in this subpart apply 
to all records in systems of records maintained by the Commission that 
are retrieved by an individual's name or other personal identifier. They 
describe the procedures by which individuals may request access to 
records about themselves, request amendment or correction of those 
records, and request an accounting of disclosures of those records by 
the Commission.



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 or her education, financial 
transactions, medical history, and criminal or employment history and 
that contains his or her 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 Privacy Act Officer refers to the Director, Office of 
Administration, 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(s) or to any information pertaining to him or her which is 
contained in a system of records maintained by the Commission shall be 
addressed to the Privacy Act Officer, 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, whenever 
possible, the request of the individual shall name the system(s) of 
records maintained by the Commission which he or she believes contain 
records pertaining to him or her, shall reasonably describe the 
requested records, and identify the time period in which the records 
were compiled.
    (c) The Privacy Act Officer 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 in writing.
    (d) The Privacy Act Officer, or, the Inspector General, if such 
records are maintained by the Inspector General, shall ascertain whether 
the systems of records maintained by the Commission

[[Page 39]]

contain records pertaining to the individual, and whether access will be 
granted. Thereupon the Privacy Act Officer shall:
    (1) Notify the individual whether or not the requested record is 
contained in any system of records maintained by the Commission; and
    (2) Notify the individual of the procedures as prescribed in Secs. 
201.25 and 201.26 of this part 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).



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

    (a) If an individual wishes to examine his or her records in person, 
it shall be the responsibility of the individual requester to arrange an 
appointment with the Privacy Act Officer 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 Privacy Act Officer shall inform the 
individual requester of the specific room wherein inspection will take 
place.
    (c) An individual may also request the Privacy Act Officer to 
provide the individual with a copy of his or her records by certified 
mail.
    (d) 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 Privacy Act Officer. Adequate identification may 
include, but is not limited to, a government identification card, a 
driver's license, Medicare card, a birth certificate, or a passport. If 
requesting records by mail, an individual must provide full name, 
current address, and date and place of birth. The request must be signed 
and either notarized or submitted under 28 U.S.C. 1746, which permits 
statements to be made under penalty of perjury as a substitute for 
notarization. In order to help the identification and location of 
requested records, a requestor may also, at his or her option, include 
the individual's social security number.



Sec. 201.26  Disclosure of requested information to individuals.

    (a) Once the Privacy Act Officer has made a determination to grant a 
request for access to individual records, in whole or in part, the 
Privacy Act Officer shall inform the requesting individual in writing 
and permit the individual to review the pertinent records and to have a 
copy made of all or any portion of them. Where redactions due to 
exemptions pursuant to Sec. 201.32 would render such records or 
portions thereof incomprehensible, the Privacy Act Officer shall furnish 
an abstract in addition to an actual copy.
    (b) An 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 Privacy 
Act Officer shall permit a person of the individual requester's choosing 
to accompany the individual during inspection.
    (c) When the individual requests the Privacy Act Officer to permit a 
person of the individual's choosing to accompany him or her during the 
inspection of his or her records, the Privacy Act Officer shall require 
the individual requester to furnish a written statement authorizing 
discussion of the records in the accompanying person's presence.
    (d) The Privacy Act Officer 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 Privacy Act Officer shall accompany the individual 
as representative of the Commission during the inspection of the 
individual's records. The Privacy Act Officer shall be authorized to 
discuss the pertinent records with the individual.

[[Page 40]]



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, in 
those instances where an individual is requesting 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 Privacy Act Officer as called for 
in Sec. 201.24(a) of this part, 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 or her Privacy Act request to the 
Privacy Act Officer as called for in Sec. 201.24(a) of this part and 
the Privacy Act Officer shall provide access to or transmit such records 
directly to the individual.



Sec. 201.28  Requests for correction or amendment of records.

    (a) If, upon viewing his or her records, an 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 and 
should identify each particular record in question, the system[s] of 
records wherein the records are located, specify the amendment 
requested, and specify the reasons why the records are not correct, 
relevant timely or complete. The individual may submit any documentation 
that would be helpful. The request for amendment of records shall be 
addressed to the Privacy Act Officer, 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 (excluding Saturdays, Sundays and legal 
public holidays) after the date of receipt of a Privacy Act request for 
amendment of records, the Privacy Act Officer shall acknowledge such 
receipt in writing. Such a request for amendment will be granted or 
denied by the Privacy Act Officer or, for records maintained by the 
Inspector General. If the request is granted, the Privacy Act Officer, 
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 Privacy Act Officer 
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 Privacy Act Officer 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. 
201.30 of this part for the individual to request a review of that 
refusal by the full Commission or by an officer designated by the 
Commission.



Sec. 201.29  Commission disclosure of individual records, accounting 
of record disclosures, and requests for accounting of record disclosures.

    (a) It is the policy of the Commission not to disclose, except as 
permitted under 5 U.S.C. 552a(b), 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 Privacy Act Officer's judgment, as appropriate, 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

[[Page 41]]

Privacy Act Officer 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 Privacy Act Officer shall retain the accounting required by 
paragraph (b) of this section 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 
Privacy Act Officer shall make any accounting made under paragraph (b) 
of this section available to the individual named in the record at the 
individual's request.
    (e) An individual requesting an accounting of disclosure of his or 
her records should make the request in writing to the Privacy Act 
Officer, United States International Trade Commission, 500 E Street SW., 
Washington, DC 20436. The request should identify each particular record 
in question and, whenever possible, the system[s] of records wherein the 
requested records are located, and clearly indicate both on the envelope 
and in the letter that it is a Privacy Act request for an accounting of 
disclosure of records.
    (f) Where the Commission has provided any person or other agency 
with an individual record and such accounting as required by paragraph 
(b) of this section has been made, the Privacy Act Officer shall inform 
all such persons or other agencies of any correction, amendment, or 
notation of dispute concerning said record.



Sec. 201.30  Commission review of requests for access to records, for
correction or amendment to records, and for accounting of record disclosures.

    (a) The individual who disagrees with the refusal of the Privacy Act 
Officer or the Inspector General for access to a record, to amend a 
record, or to obtain an accounting of any record disclosure, may request 
a review of such refusal by the Commission within 60 days of receipt of 
the denial of his or her request. A request for review of such a refusal 
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 (excluding Saturdays, Sundays, and legal 
public holidays) from the date on which the Commission receives a 
request for review of the Privacy Act Officer's or the Inspector 
General's refusal to grant access to a record, to amend a record, or to 
provide an accounting of a record disclosure, 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 has been reviewed by the 
Commission, if the Commission agrees with the Privacy Act Officer's or 
the Inspector General's refusal to grant access to a record, to amend a 
record, or to provide an accounting of a record disclosure, in 
accordance with the individual's request, the Commission shall:
    (1) Notify the individual in writing of the Commission's decision;
    (2) For requests to amend or correct records, 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 grant the individual's request; 
and
    (3) Notify the individual of his or her legal right, if any, 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 regarding an amendment 
of an individual's record, the Privacy Act Officer, 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

[[Page 42]]

or other agencies to whom the disputed record has been disclosed.



Sec. 201.31  Fees and employee conduct.

    (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 $0.10 per page. There shall be no 
charge, however, when the total amount does not exceed $25.00.
    (c) The Privacy Act Officer shall establish rules of conduct for 
persons involved in the design, development, operation, or maintenance 
of any system of records, or in maintaining any record, and periodically 
instruct each such person with respect to such rules and the 
requirements of the Privacy Act including the penalties for 
noncompliance.

[63 FR 29348, May 29, 1998, as amended at 68 FR 32975, June 3, 2003]



Sec. 201.32  Specific exemptions.

    (a) 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 Investigative 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 the 
Privacy Act. However, 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 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.
    (b) 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.
    (c) Pursuant to 5 U.S.C. 552a(k)(1), (5) and (6), records contained 
in the system entitled ``Personnel Security Investigative Files'' have 
been exempted from subsections (c)(3), (d), (e)(1), (e)(1)(G) through 
(I) and (f) of the Privacy Act. Pursuant to section 552a(k)(1) of the 
Privacy Act, the Commission exempts records that contain properly 
classified information that pertains to national defense or foreign 
policy and is obtained from other systems of records or another Federal 
agency. Application of exemption (k)(1) may be necessary to preclude the 
data subject's access to and amendment of such classified information 
under 5 U.S.C. 552a(d). All information about individuals in these 
records that meets the criteria stated in 5 U.S.C. 552a(k)(5) is also 
exempted because this system contains investigatory material compiled 
solely for determining suitability, eligibility, and qualifications for 
Federal civilian employment, Federal contracts or access to classified 
information. To the extent that the disclosure of such material would 
reveal the identity of a source who furnished information to the 
Government 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, the application of exemption (k)(5) will be required to 
honor such a promise should an individual request access to the 
accounting of disclosure, or access to or amendment of the record, that 
would reveal the identity of a confidential source. All information in 
these records that meets the

[[Page 43]]

criteria stated in 5 U.S.C. 552a(k)(6) is also exempt because portions 
of a case file record may relate to testing and examining material used 
solely to determine individual qualifications for appointment or 
promotion in the Federal service. Access to or amendment of this 
information by the data subject would compromise the objectivity and 
fairness of the testing or examining process.



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 (Sec. Sec. 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.
    (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

[[Page 44]]

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 vote 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

[[Page 45]]

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.
    (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

[[Page 46]]

    (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.
    (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

[[Page 47]]

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 deliberations 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

[[Page 48]]

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 
offices 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

[[Page 49]]

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.



 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.

[[Page 50]]

    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:
    (1) 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 the 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]

[[Page 51]]



Sec. Sec. 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.



Sec. Sec. 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;
    (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

[[Page 52]]

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.



Sec. Sec. 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.



Sec. Sec. 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
    (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

[[Page 53]]

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.



Sec. Sec. 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

[[Page 54]]

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.



Sec. Sec. 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) The Director, Office of Equal Employment Opportunity, shall be 
responsible for coordinating implementation of this section. Complaints 
may be sent to the Director, Office of Equal Employment Opportunity, 
United States International Trade Commission, 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 facility 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; 
68 FR 32975, June 3, 2003]

[[Page 55]]



Sec. Sec. 201.171-201.999  [Reserved]



                        Subpart H_Debt Collection

    Authority: 19 U.S.C. 1335; 5 U.S.C. 5514(b)(1); 31 U.S.C. 3716(b); 
31 U.S.C. 3720A(b)(4); 31 CFR chapter IX; 26 CFR 301.6402-6(b).

    Source: 62 FR 38019, July 16, 1997, unless otherwise noted.



Sec. 201.201  Definitions.

    Except where the context clearly indicates otherwise or where the 
term is defined elsewhere in this section, the following definitions 
shall apply to this subpart.
    (a) Agency means a department, agency, court, court administrative 
office, or instrumentality in the executive, judicial, or legislative 
branch of Government, including government corporations.
    (b) Certification means a written statement received by a paying 
agency from a creditor agency that requests the paying agency to offset 
the salary of an employee and specifies that required procedural 
protections have been afforded the employee.
    (c) Chairman means the Chairman of the Commission.
    (d) Compromise means the settlement or forgiveness of a debt.
    (e) Creditor agency means an agency of the Federal government to 
which the debt is owed.
    (f) Director means the Director, Office of Finance of the Commission 
or an official designated to act on the Director's behalf.
    (g) Disposable pay means that part of current basic pay, special 
pay, incentive pay, retired pay, retainer pay, and, in the case of an 
employee not entitled to basic pay, other authorized pay, remaining for 
each pay period after the deduction of any amount required by law to be 
withheld. The Commission shall allow the following deductions in 
determining the amount of disposable pay that is subject to salary 
offset:
    (1) Federal employment taxes;
    (2) Amounts mandatorily withheld for the United States Soldiers' and 
Airmen's Home;
    (3) Fines and forfeiture ordered by a court-martial or by a 
commanding officer;
    (4) Amounts deducted for Medicare;
    (5) Federal, state, or local income taxes to the extent authorized 
or required by law, but no greater than would be the case if the 
employee claimed all dependents to which he or she is entitled and such 
additional amounts for which the employee presents evidence of a tax 
obligation supporting the additional withholding;
    (6) Health insurance premiums;
    (7) Normal retirement contributions, including employee 
contributions to the Thrift Savings Plan;
    (8) Normal life insurance premiums (e.g., Serviceman's Group Life 
Insurance and ``Basic Life'' Federal Employee's Group Life Insurance 
premiums), not including amounts deducted for supplementary coverage.
    (h) Employee means a current employee of the Commission or other 
agency, including a current member of the Armed Forces or a Reserve of 
the Armed Forces of the United States.
    (i) Federal Claims Collection Standards (FCCS) means standards 
published at 31 CFR chapter IX.
    (j) Hearing official means an individual responsible for conducting 
any hearing with respect to the existence or amount of a debt claimed 
and for rendering a decision on the basis of such hearing. A hearing 
official may not be under the supervision or control of the Chairman 
when the Commission is the creditor agency but may be an administrative 
law judge.
    (k) Notice of Intent to Offset or Notice of Intent means a written 
notice from a creditor agency to an employee, organization, or entity 
stating that the debtor is indebted to the creditor agency and apprising 
the debtor of certain procedural rights.
    (l) Notice of Salary Offset means a written notice from the paying 
agency to an employee after a certification has been issued by a 
creditor agency, informing the employee that salary offset will begin at 
the next officially established pay interval.
    (m) Office of Finance means the Office of Finance of the Commission.
    (n) Paying agency means the agency of the Federal government that 
employs the individual who owes a debt to an agency of the Federal 
government. In some cases, the Commission may be

[[Page 56]]

both the creditor agency and the paying agency.

[62 FR 38019, July 16, 1997, as amended at 68 FR 32976, June 3, 2003]



Sec. 201.202  Purpose and scope of salary and administrative offset
rules.

    (a) Purpose. The purpose of sections 201.201 through 201.207 is to 
implement 5 U.S.C. 5514, 31 U.S.C. 3716, and 31 U.S.C. 3720A which 
authorize the collection by salary offset, administrative offset, or tax 
refund offset of debts owed by persons, organizations, or entities to 
the Federal government. Generally, however, a debt may not be collected 
by such means if it has been outstanding for more than ten years after 
the agency's right to collect the debt first accrued. These proposed 
regulations are consistent with the Office of Personnel Management 
regulations on salary offset, codified at 5 CFR Part 550, subpart K, and 
with regulations on administrative offset codified at 31 CFR part 901.
    (b) Scope. (1) Sections 201.201 through 201.207 establish agency 
procedures for the collection of certain debts owed the Government.
    (2) Sections 201.201 through 201.207 apply to collections by the 
Commission from:
    (i) Federal employees who are indebted to the Commission;
    (ii) Employees of the Commission who are indebted to other agencies; 
and
    (iii) Other persons, organizations, or entities that are indebted to 
the Commission.
    (3) Sections 201.201 through 201.207 do not apply:
    (i) To debts or claims arising under the Internal Revenue Code of 
1986 (26 U.S.C. et seq.), the Social Security Act (42 U.S.C. 301 et 
seq.), or the tariff laws of the United States;
    (ii) To a situation to which the Contract Disputes Act (41 U.S.C. 
601 et seq.) applies; or
    (iii) In any case where collection of a debt is explicitly provided 
for or prohibited by another statute (e.g., travel advances in 5 U.S.C. 
4108).
    (4) Nothing in Sections 201.201 through 201.207 precludes the 
compromise, suspension, or termination of collection actions where 
appropriate under the standards implementing the Federal Claims 
Collection Act (31 U.S.C. 3711 et seq.), namely, 31 CFR chapter IX.

[62 FR 38019, July 16, 1997, as amended at 68 FR 32976, June 3, 2003]



Sec. 201.203  Delegation of authority.

    Authority to conduct the following activities is hereby delegated to 
the Director:
    (a) Initiate and effectuate the administrative collection process;
    (b) Accept or reject compromise offers and suspend or terminate 
collection actions where the claim does not exceed $100,000 or such 
higher amount as the Chairman may from time to time prescribe, exclusive 
of interest, administrative costs, and penalties as provided herein, as 
set forth in 31 U.S.C. 3711(a)(2);
    (c) Report to consumer reporting agencies certain data pertaining to 
delinquent debts;
    (d) Use offset procedures to effectuate collection; and
    (e) Take any other action necessary to facilitate and augment 
collection in accordance with the policies contained herein and as 
otherwise provided by law.



Sec. 201.204  Salary offset.

    (a) Notice requirements before offset where the Commission is the 
creditor agency. Deductions under the authority of 5 U.S.C. 5514 will 
not be made unless the Commission provides the employee with a written 
Notice of Intent to Offset a minimum of 30 calendar days before salary 
offset is initiated. The Notice of Intent shall state:
    (1) That the Director has reviewed the records relating to the claim 
and has determined that a debt is owed;
    (2) The Director's intention to collect the debt by means of 
deduction from the employee's current disposable pay account until the 
debt and all accumulated interest is paid in full;
    (3) The amount of the debt and the facts giving rise to the debt;
    (4) A repayment schedule that includes the amount, frequency, 
proposed beginning date, and duration of the intended deductions;
    (5) The opportunity for the employee to propose an alternative 
written schedule for the voluntary repayment

[[Page 57]]

of the debt, in lieu of offset, on terms acceptable to the Commission. 
The employee shall include a justification in the request for the 
alternative schedule. The schedule shall be agreed to and signed by both 
the employee and the Director;
    (6) An explanation of the Commission's policy concerning interest, 
penalties, and administrative costs, including a statement that such 
assessments must be made unless excused in accordance with the Federal 
Claims Collection Standards;
    (7) The employee's right to inspect and copy all records of the 
Commission not exempt from disclosure pertaining to the debt claimed or 
to receive copies of such records if the debtor is unable personally to 
inspect the records, due to geographical or other constraints;
    (8) The name, address, and telephone number of the Director to whom 
requests for access to records relating to the debt must be sent;
    (9) The employee's right to a hearing conducted by an impartial 
hearing official (an administrative law judge or other hearing official 
not under the supervision or control of the Chairman) with respect to 
the existence and amount of the debt claimed or the repayment schedule 
(i.e., the percentage of disposable pay to be deducted each pay period), 
so long as a request is filed by the employee as prescribed in paragraph 
(c)(1) of this section;
    (10) The name, address, and telephone number of the Director to whom 
a proposal for voluntary repayment must be sent and who may be contacted 
concerning procedures for requesting a hearing;
    (11) The method and deadline for requesting a hearing;
    (12) That the timely filing of a request for a hearing on or before 
the 15th calendar day following receipt of the Notice of Intent will 
stay the commencement of collection proceedings;
    (13) The name and address of the office to which the request should 
be sent;
    (14) That the Commission will initiate certification procedures to 
implement a salary offset not less than 30 days from the date of receipt 
of the Notice of Intent to Offset, unless the employee files a timely 
request for a hearing;
    (15) That a final decision on whether a hearing will be held (if one 
is requested) will be issued at the earliest practical date;
    (16) That any knowingly false or frivolous statements, 
representations, or evidence may subject the employee to:
    (i) Disciplinary procedures appropriate under 5 U.S.C. Chapter 75, 5 
CFR part 752, or any other applicable statutes or regulations;
    (ii) Penalties under the False Claims Act, 31 U.S.C. 3729-3733, or 
under any other applicable statutory authority; or
    (iii) Criminal penalties under 18 U.S.C. 286, 287, 1001, and 1002 or 
under any other applicable statutory authority;
    (17) Any other rights and remedies available to the employee under 
statutes or regulations governing the program for which the collection 
is being made;
    (18) That unless there are applicable contractual or statutory 
provisions to the contrary, amounts paid on or deducted from debts that 
are later waived or found not to be owed to the United States will be 
promptly refunded to the employee; and
    (19) That proceedings with respect to such debt are governed by 5 
U.S.C. 5514.
    (b) Review of Commission records related to the debt. (1) An 
employee who desires to inspect or copy Commission records related to a 
debt owed to the Commission must send a letter to the Director as 
designated in the Notice of Intent requesting access to the relevant 
records. The letter must be received in the office of the Director 
within 15 calendar days after the employee's receipt of the Notice of 
Intent.
    (2) In response to a timely request submitted by the debtor, the 
Director will notify the employee of the location and time when the 
employee may inspect and copy records related to the debt.
    (3) If the employee is unable personally to inspect the records, due 
to geographical or other constraints, the Director shall arrange to send 
copies of such records to the employee.

[[Page 58]]

    (c) Opportunity for a hearing where the Commission is the creditor 
agency--(1) Request for a hearing. (i) An employee who requests a 
hearing on the existence or amount of the debt held by the Commission or 
on the offset schedule proposed by the Commission must send such request 
to the Director. The request for a hearing must be received by the 
Director on or before the 15th calendar day following receipt by the 
employee of the notice.
    (ii) The employee must specify whether an oral hearing is requested. 
If an oral hearing is desired, the request should explain why the matter 
cannot be resolved by review of the documentary evidence alone. The 
request must be signed by the employee and must fully identify and 
explain with reasonable specificity all the facts, evidence, and 
witnesses, if any, that the employee believes support his or her 
position.
    (2) Failure to timely submit. If the employee files a request for 
hearing after the expiration of the 15-calendar-day period provided for 
in paragraph (c)(1) of this section, the Director may accept the request 
if the employee can show that the delay was the result of circumstances 
beyond his or her control or that he or she failed to receive actual 
notice of the filing deadline.
    (3) Obtaining the services of a hearing official. (i) When the 
debtor is not a Commission employee and the Commission cannot provide a 
prompt and appropriate hearing before an administrative law judge or 
other hearing official, the Commission may request a hearing official 
from an agent of the paying agency, as designated in 5 CFR part 581, 
appendix A, or as otherwise designated by the paying agency.
    (ii) When the debtor is a Commission employee, the Commission may 
contact any agent of another agency, as designated in 5 CFR part 581, 
appendix A, or as otherwise designated by the agency, to request a 
hearing official.
    (4) Procedure--(i) Notice. After the employee requests a hearing, 
the hearing official shall notify the employee of the form of the 
hearing to be provided. If the hearing will be oral, the notice shall 
set forth the date, time, and location of the hearing, which must occur 
no more than 30 calendar days after the request is received, unless the 
employee requests that the hearing be delayed. If the hearing will be 
conducted by examination of documents, the employee shall be notified 
within 30 calendar days that he or she should submit evidence and 
arguments in writing to the hearing official.
    (ii) Oral hearing. An employee who requests an oral hearing shall be 
provided an oral hearing if the hearing official determines that the 
matter cannot be resolved by review of documentary evidence alone (e.g., 
when an issue of credibility or veracity is involved). The hearing need 
not be an adversarial adjudication, and rules of evidence need not 
apply. Witnesses who testify in oral hearings shall do so under oath or 
affirmation. Oral hearings may take the form of, but are not limited to:
    (A) Informal conferences with the hearing official in which the 
employee and agency representative are given full opportunity to present 
evidence, witnesses, and argument;
    (B) Informal meetings in which the hearing examiner interviews the 
employee; or
    (C) Formal written submissions followed by an opportunity for oral 
presentation.
    (iii) Documentary hearing. If the hearing official determines that 
an oral hearing is not necessary, he or she shall make the determination 
based upon a review of the written record.
    (iv) Record. The hearing official shall maintain a summary record of 
any hearing conducted under this section.
    (5) Date of decision. The hearing official shall issue a written 
opinion stating his or her decision, based upon all evidence and 
information developed at the hearing, as soon as practicable after the 
hearing, but not later than 60 calendar days after the date on which the 
request was received by the Commission, unless the hearing was delayed 
at the request of the employee, in which case the 60 day decision period 
shall be extended by the number of days by which the hearing was 
postponed. The decision of the hearing official shall be final.
    (6) Content of decision. The written decision shall include:

[[Page 59]]

    (i) A summary of the facts concerning the origin, nature, and amount 
of the debt;
    (ii) The hearing official's findings, analysis, and conclusions; and
    (iii) The terms of any repayment schedules, if applicable.
    (7) Failure to appear. If, in the absence of good cause shown (e.g., 
illness), the employee or the representative of the Commission fails to 
appear, the hearing official shall proceed with the hearing as 
scheduled, and make his or her determination based upon the oral 
testimony presented and the documentation submitted by both parties. At 
the request of both parties, the hearing official may schedule a new 
hearing date. Both parties shall be given reasonable notice of the time 
and place of this new hearing.
    (d) Certification where the Commission is the creditor agency. (1) 
The Director shall issue a certification in all cases where:
    (i) The hearing official determines that a debt exists; or
    (ii) The employee admits the existence and amount of the debt, for 
example, by failing to request a hearing.
    (2) The certification must be in writing and must state:
    (i) That the employee owes the debt;
    (ii) The amount and basis of the debt;
    (iii) The date the Government's right to collect the debt first 
accrued;
    (iv) That the Commission's regulations have been approved by OPM 
pursuant to 5 CFR part 550, subpart K;
    (v) If the collection is to be made by lump-sum payment, the amount 
and date such payment will be collected;
    (vi) If the collection is to be made in installments, the number of 
installments to be collected, the amount of each installment, and the 
date of the first installment, if a date other than the next officially 
established pay period; and
    (vii) The date the employee was notified of the debt, the action(s) 
taken pursuant to the Commission's regulations, and the dates such 
actions were taken.
    (e) Voluntary repayment agreements as alternative to salary offset 
where the Commission is the creditor agency. (1) In response to a Notice 
of Intent, an employee may propose to repay the debt in accordance with 
scheduled installment payments. Any employee who wishes to repay a debt 
without salary offset shall submit in writing a proposed agreement to 
repay the debt. The proposal shall set forth a proposed repayment 
schedule. Any proposal under paragraph (e) of this section must be 
received by the Director within 15 calendar days after receipt of the 
Notice of Intent.
    (2) In response to a timely proposal by the debtor, the Director 
shall notify the employee whether the employee's proposed written 
agreement for repayment is acceptable. It is within the discretion of 
the Director to accept, reject, or propose to the debtor a modification 
of the proposed repayment agreement.
    (3) If the Director decides that the proposed repayment agreement is 
unacceptable, the employee shall have 15 calendar days from the date he 
or she received notice of the decision in which to file a request for a 
hearing.
    (4) If the Director decides that the proposed repayment agreement is 
acceptable or the debtor agrees to a modification proposed by the 
Director, the agreement shall be put in writing and signed by both the 
employee and the Director.
    (f) Special review where the Commission is the creditor agency. (1) 
An employee subject to salary offset or a voluntary repayment agreement 
may, at any time, request a special review by the Director of the amount 
of the salary offset or voluntary payment, based on materially changed 
circumstances, including, but not limited to, catastrophic illness, 
divorce, death, or disability.
    (2) In determining whether, as a result of materially changed 
circumstances, an offset would prevent the employee from meeting 
essential subsistence expenses (costs incurred for food, housing, 
clothing, transportation, and medical care), the employee shall submit 
to the Director a detailed statement and supporting documents for the 
employee, his or her spouse, and dependents indicating:
    (i) Income from all sources;
    (ii) Assets;
    (iii) Liabilities;
    (iv) Number of dependents;

[[Page 60]]

    (v) Expenses for food, housing, clothing, and transportation;
    (vi) Medical expenses; and
    (vii) Exceptional expenses, if any.
    (3) If the employee requests a special review under paragraph (f) of 
this section, the employee shall file an alternative proposed offset or 
payment schedule and a statement, with supporting documents, showing why 
the current salary offset or payments result in extreme financial 
hardship to the employee.
    (4) The Director shall evaluate the statement and supporting 
documents and determine whether the original offset or repayment 
schedule imposes extreme financial hardship on the employee. The 
Director shall notify the employee in writing within 30 calendar days of 
such determination, including, if appropriate, his or her acceptance of 
a revised offset or payment schedule.
    (5) If the special review results in a revised offset or repayment 
schedule, the Director shall provide a new certification to the paying 
agency.
    (g) Notice of salary offset where the Commission is the paying 
agency. (1) Upon issuance of a proper certification by the Director (for 
debts owed to the Commission) or upon receipt of a proper certification 
from another creditor agency, the Office of Finance shall send the 
employee a written notice of salary offset. Such notice shall advise the 
employee:
    (i) Of the certification that has been issued by the Director or 
received from another creditor agency;
    (ii) Of the amount of the debt and of the deductions to be made; and
    (iii) Of the initiation of salary offset at the next officially 
established pay interval or as otherwise provided for in the 
certification.
    (2) The Office of Finance shall provide a copy of the notice to the 
creditor agency and advise such agency of the dollar amount to be offset 
and the pay period when the offset will begin.
    (h) Procedures for salary offset where the Commission is the paying 
agency--(1) Generally. (i) The Director shall coordinate salary 
deductions under this section.
    (ii) The Director shall determine the amount of an employee's 
disposable pay and the amount of the salary offset subject to the 
requirements in this paragraph.
    (iii) Deductions shall begin the pay period following the issuance 
of the certification by the Director or the receipt by the Office of 
Finance of the certification from another agency or as soon thereafter 
as possible.
    (2) Types of collection--(i) Lump-sum payment. If the amount of the 
debt is equal to or less than 15 percent of the employee's disposable 
pay, such debt ordinarily will be collected in one lump-sum payment.
    (ii) Installment deductions. Installment deductions will be made 
over a period not greater than the anticipated period of employment. The 
size and frequency of installment deductions will bear a reasonable 
relation to the size of the debt and the employee's ability to pay. 
However, the amount deducted for any pay period will not exceed 15 
percent of the disposable pay from which the deduction is made unless 
the employee has agreed in writing to the deduction of a greater amount. 
The installment payment should normally be sufficient in size and 
frequency to liquidate the debt in no more than three years. Installment 
payments of less than $50 should be accepted only in the most unusual 
circumstances.
    (iii) Lump-sum deductions from final check. In order to liquidate a 
debt, a lump-sum deduction exceeding 15 percent of disposable pay may be 
made pursuant to 31 U.S.C. 3716 and 5 U.S.C. 5514(a)(1) from any final 
salary payment due a former employee, whether the former employee was 
separated voluntarily or involuntarily.
    (iv) Lump-sum deductions from other sources. Whenever an employee 
subject to salary offset is separated from the Commission, and the 
balance of the debt cannot be liquidated by offset of the final salary 
check, the Commission, pursuant to 31 U.S.C. 3716, may offset any later 
payments of any kind to the former employee to collect the balance of 
the debt.
    (3) Multiple debts. Where two or more creditor agencies are seeking 
salary offset, or where two or more debts are owed to a single creditor 
agency, the Office of Finance may, at its discretion, determine whether 
one or more

[[Page 61]]

debts should be offset simultaneously within the 15 percent limitation.
    (4) Order of precedence for recovery of debts owed the Government. 
(i) For Commission employees, subject to paragraph (h)(3) of this 
section and (paragraph (h)(4)(ii) of this section, offsets to recover 
debts owed the United States Government shall be made from disposable 
pay in the following order of precedence:
    (A) Indebtedness due the Commission;
    (B) Indebtedness due other agencies.
    (ii) In the event that a debt to the Commission is certified while 
an employee is subject to salary offset to repay another agency, the 
Office of Finance may, at its discretion, determine whether the debt to 
the Commission should be repaid before the debt to the other agency, 
repaid simultaneously, or repaid after the debt to the other agency.
    (iii) A levy pursuant to the Internal Revenue Code of 1986 shall 
take precedence over other deductions under this section, as provided in 
5 U.S.C. 5514(d).
    (i) Coordinating salary offset with other agencies--(1) 
Responsibility of the Commission as the creditor agency. (i) The 
Director shall be responsible for:
    (A) Arranging for a hearing upon proper request by a Federal 
employee;
    (B) Preparing the Notice of Intent to Offset consistent with the 
requirements of paragraph (a) of this section;
    (C) Obtaining hearing officials from other agencies pursuant to 
paragraph (c)(3) of this section; and
    (D) Ensuring that each certification of debt is sent to a paying 
agency pursuant to paragraph (d)(2) of this section.
    (ii) Upon completion of the procedures established in paragraphs (a) 
through (f) of this section, the Director shall submit a certified debt 
claim and an installment agreement or other instruction on the payment 
schedule, if applicable, to the employee's paying agency.
    (iii) If the employee is in the process of separating from 
Government employment, the Commission shall submit its debt claim to the 
employee's paying agency for collection by lump-sum deduction from the 
employee's final check. The paying agency shall certify the total amount 
of its collection and furnish a copy of the certification to the 
Commission and to the employee.
    (iv) If the employee is already separated and all payments due from 
his or her former paying agency have been paid, the Commission may, 
unless otherwise prohibited, request that money due and payable to the 
employee from the Federal Government be administratively offset to 
collect the debt.
    (v) When an employee transfers to another paying agency, the 
Commission shall not repeat the procedures described in paragraphs (a) 
through (f) of this section in order to resume collecting the debt. 
Instead, the Commission shall review the debt upon receiving the former 
paying agency's notice of the employee's transfer and shall ensure that 
collection is resumed by the new paying agency.
    (2) Responsibility of the Commission as the paying agency--(i) 
Complete claim. When the Commission receives a certified claim from a 
creditor agency, the employee shall be given written notice of the 
certification, the date salary offset will begin, and the amount of the 
periodic deductions. Deductions shall be scheduled to begin at the next 
officially established pay interval or as otherwise provided for in the 
certification.
    (ii) Incomplete claim. When the Commission receives an incomplete 
certification of debt from a creditor agency, the Commission shall 
return the debt claim with notice that procedures under 5 U.S.C. 5514 
and 5 CFR 550.1104 must be followed and that a properly certified debt 
claim must be received before action will be taken to collect from the 
employee's current pay account.
    (iii) Review. The Commission is not authorized to review the merits 
of the creditor agency's determination with respect to the amount or 
validity of the debt certified by the creditor agency.
    (iv) Employees who transfer from one paying agency to another 
agency. If, after the creditor agency has submitted the debt claim to 
the Commission, the employee transfers to an agency outside the 
Commission before

[[Page 62]]

the debt is collected in full, the Commission must certify the total 
amount collected on the debt. One copy of the certification shall be 
furnished to the employee and one copy shall be sent to the creditor 
agency along with notice of the employee's transfer. If the Commission 
is aware that the employee is entitled to payments from the Civil 
Service Retirement and Disability Fund, or other similar payments, it 
must provide written notification to the agency responsible for making 
such payments that the debtor owes a debt (including the amount) and 
that the requirements set forth herein and in the Office of Personnel 
Management's regulation (5 CFR part 550) have been fully met.
    (j) Interest, Penalties, and Administrative Costs. Where the 
Commission is the creditor agency, it shall assess interest, penalties, 
and administrative costs pursuant to 31 U.S.C. 3717 and 31 CFR 901.9.
    (k) Refunds. (1) Where the Commission is the creditor agency, it 
shall promptly refund any amount deducted under the authority of 5 
U.S.C. 5514 when:
    (i) The debt is compromised or otherwise found not to be owing to 
the United States; or
    (ii) An administrative or judicial order directs the Commission to 
make a refund.
    (2) Unless required by law or contract, refunds under this paragraph 
(k) shall not bear interest.
    (l) Request from a creditor agency for the services of a hearing 
official. (1) The Commission may provide a hearing official upon request 
of the creditor agency when the debtor is employed by the Commission and 
the creditor agency cannot provide a prompt and appropriate hearing 
before a hearing official furnished pursuant to another lawful 
arrangement.
    (2) The Commission may provide a hearing official upon request of a 
creditor agency when the debtor works for the creditor agency and that 
agency cannot arrange for a hearing official.
    (3) The Director shall arrange for qualified personnel to serve as 
hearing officials.
    (4) Services rendered under this paragraph (l) shall be provided on 
a fully reimbursable basis pursuant to 31 U.S.C. 1535.
    (m) Non-waiver of rights by payments. A debtor's payment, whether 
voluntary or involuntary, of all or any portion of a debt being 
collected pursuant to this section shall not be construed as a waiver of 
any rights that the debtor may have under any statute, regulation, or 
contract except as otherwise provided by law or contract.
    (n) Exception to due process procedures. The procedures set forth in 
this section shall not apply to adjustments described in 5 U.S.C. 
5514(a)(3) and 5 CFR 550.1104(c).

[62 FR 38019, July 16, 1997, as amended at 68 FR 32976, June 3, 2003]



Sec. 201.205  Salary adjustments.

    Any negative adjustment to pay arising out of an employee's election 
of coverage, or a change in coverage, under a Federal benefits program 
requiring periodic deductions from pay shall not be considered 
collection of a ``debt'' for the purposes of this section if the amount 
to be recovered was accumulated over four pay periods or less. In such 
cases, the Commission need not comply with Sec. 201.204, but it will 
provide a clear and concise statement in the employee's earnings 
statement advising the employee of the previous overpayment at the time 
the adjustment is made.



Sec. 201.206  Administrative offset.

    (a) Collection. The Director may collect a claim pursuant to 31 
U.S.C. 3716 from a person, organization, or entity other than an agency 
of the United States Government by administrative offset of monies 
payable by the Government. Collection by administrative offset shall be 
undertaken where the claim is certain in amount, where offset is 
feasible and desirable and not otherwise prohibited, where the 
applicable statute of limitations has not expired, and where the offset 
is in the best interest of the United States.
    (b) Offset prior to completion of procedures. Prior to the 
completion of the procedures described in paragraph (c) of this section, 
the Commission may effect offset if:

[[Page 63]]

    (1) Failure to offset would substantially prejudice the Commission's 
ability to collect the debt; and
    (2) The time before the payment is to be made does not reasonably 
permit completion of the procedures described in paragraph (c) of this 
section. Such prior offsetting shall be followed promptly by the 
completion of the procedures described in paragraph (c) of this section.
    (c) Debtor's rights. (1) Unless the procedures described in 
paragraph (b) of this section are used, prior to collecting any claim by 
administrative offset or referring such claim to another agency for 
collection through administrative offset, the Director shall provide the 
debtor with the following:
    (i) Written notification of the nature and amount of the claim, the 
intention of the Director to collect the claim through administrative 
offset, and a statement of the rights of the debtor under this 
paragraph;
    (ii) An opportunity to inspect and copy the records of the 
Commission not exempt from disclosure with respect to the claim;
    (iii) An opportunity to have the Commission's determination of 
indebtedness reviewed by the Director. Any request for review by the 
debtor shall be in writing and be submitted to the Commission within 30 
calendar days of the date of the notice of the offset. The Director may 
waive the time limit for requesting review for good cause shown by the 
debtor. The Commission shall provide the debtor with a reasonable 
opportunity for an oral hearing when:
    (A) An applicable statute authorizes or requires the Commission to 
consider waiver of the indebtedness involved, the debtor requests waiver 
of the indebtedness, and the waiver determination turns on an issue of 
credibility or veracity; or
    (B) The debtor requests reconsideration of the debt and the 
Commission determines that the question of the indebtedness cannot be 
resolved by review of the documentary evidence, for example, when the 
validity of the debt turns on an issue of credibility or veracity. 
Unless otherwise required by law, an oral hearing under this section is 
not required to be a formal evidentiary hearing, although the Commission 
shall document all significant matters discussed at the hearing. In 
those cases where an oral hearing is not required by this section, the 
Commission shall nevertheless accord the debtor a ``paper hearing,'' 
(i.e., the Commission will make its determination on the request for 
waiver or reconsideration based upon a review of the written record); 
and
    (iv) An opportunity to enter into a written agreement for the 
repayment of the amount of the claim at the discretion of the 
Commission.
    (2) If the procedures described in paragraph (b) of this section are 
employed, the procedures described in this paragraph shall be effected 
after offset.
    (d) Interest. Pursuant to 31 U.S.C. 3717 and 31 CFR 901.9, the 
Commission shall assess interest, penalties and administrative costs on 
debts owed to the United States. The Commission is authorized to assess 
interest and related charges on debts that are not subject to 31 U.S.C. 
3717 to the extent authorized under the common law or other applicable 
statutory authority.
    (e) Refunds. Amounts recovered by offset but later found not to be 
owed to the Government shall be promptly refunded.
    (f) Requests for offset to other Federal agencies. The Director may 
request that a debt owed to the Commission be administratively offset 
against funds due and payable to a debtor by another Federal agency. In 
requesting administrative offset, the Commission, as creditor, will 
certify in writing to the Federal agency holding funds of the debtor:
    (1) That the debtor owes the debt;
    (2) The amount and basis of the debt; and
    (3) That the Commission has complied with the requirements of its 
own administrative offset regulations and the applicable provisions of 
31 CFR part 901 with respect to providing the debtor with due process.
    (g) Requests for offset from other Federal agencies. Any Federal 
agency may request that funds due and payable to its debtor by the 
Commission be administratively offset in order to collect a debt owed to 
such Federal agency by the debtor. The Commission shall initiate the 
requested offset only upon:

[[Page 64]]

    (1) Receipt of written certification from the creditor agency:
    (i) That the debtor owes the debt;
    (ii) The amount and basis of the debt;
    (iii) That the agency has prescribed regulations for the exercise of 
administrative offset; and
    (iv) That the agency has complied with its own administrative offset 
regulations and with the applicable provisions of 31 CFR part 901, 
including providing any required hearing or review.
    (2) A determination by the Commission that collection by offset 
against funds payable by the Commission would be in the best interest of 
the United States as determined by the facts and circumstances of the 
particular case and that such offset would not otherwise be contrary to 
law.

[62 FR 38019, July 16, 1997, as amended at 68 FR 32976, June 3, 2003]



Sec. 201.207  Administrative offset against amounts payable from Civil
Service Retirement and Disability Fund

    (a) Unless otherwise prohibited by law, the Commission may request 
that moneys which are due and payable to a debtor from the Civil Service 
Retirement and Disability Fund be administratively offset in reasonable 
amounts in order to collect in one full payment or a minimal number of 
payments debt owed to the Commission by the debtor. Such requests shall 
be made to the appropriate officials of the Office of Personnel 
Management in accordance with such regulations as may be prescribed by 
the Director of that Office.
    (b) When making a request for administrative offset under paragraph 
(a) of this section, the Commission shall include a written 
certification that:
    (1) The debtor owes the Commission a debt, including the amount of 
the debt;
    (2) The Commission has complied with the applicable statutes, 
regulations, and procedures of the Office of Personnel Management; and
    (3) The Commission has complied with the requirements of 31 CFR 
901.3, including any required hearing or review.
    (c) Once the Commission decides to request administrative offset 
under paragraph (a) of this section, it shall make the request as soon 
as practical after completion of the applicable procedures. This will 
satisfy any requirement that offset be initiated prior to expiration of 
the applicable statute of limitations. At such time as the debtor makes 
a claim for payments from the Fund, if at least a year has elapsed since 
the offset request was originally made, the debtor shall be permitted to 
offer a satisfactory repayment plan in lieu of offset upon establishing 
that changed financial circumstances would render the offset unjust.
    (d) If the Commission collects part or all of the debt by other 
means before deductions are made or completed pursuant to paragraph (a) 
of this section, the Commission shall act promptly to modify or 
terminate its request for offset under paragraph (a) of this section.

[62 FR 38019, July 16, 1997, as amended at 68 FR 32976, June 3, 2003]



Sec. 201.208  Tax refund offset.

    (a) Scope. The provisions of 26 U.S.C. 6402(d) and 31 U.S.C. 3720A 
authorize the Secretary of the Treasury to offset a delinquent debt owed 
to the United States Government from the tax refund due a taxpayer when 
other collection efforts have failed to recover the amount due.
    (b) Definitions--(1) Debt. Debt means money owed by an individual, 
organization or entity from sources which include loans insured or 
guaranteed by the United States and all other amounts due the United 
States from fees, leases, services, overpayments, civil and criminal 
penalties, damages, interest, fines, administrative costs, and all other 
similar sources. A debt becomes eligible for tax refund offset 
procedures if:
    (i) It cannot currently be collected pursuant to the salary offset 
procedures of 5 U.S.C. 5514(a)(1);
    (ii) The debt is ineligible for administrative offset under 31 
U.S.C. 3716(a) by reason of 31 U.S.C. 3716(c)(2) or cannot currently be 
collected by administrative offset under 31 U.S.C. 3716(a); and
    (iii) The requirements of this section are otherwise satisfied.
    (2) Dispute. A dispute is a written statement supported by 
documentation or other evidence that all or part of an alleged debt is 
not past due or legally enforceable, that the amount is not the

[[Page 65]]

amount currently owed, that the outstanding debt has been satisfied, or, 
in the case of a debt reduced to judgment, that the judgment has been 
satisfied or stayed.
    (3) Notice. Notice means the information sent to the debtor pursuant 
to Sec. 201.208(d). The date of the notice is the date shown on the 
notice letter as its date of issuance.
    (4) Past due. All judgment debts are past due for purposes of this 
section. Such debts remain past due until paid in full.
    (c) The Commission may refer any past due, legally enforceable non-
judgment debt of an individual, organization or entity to Treasury for 
offset if the Commission's or the referring agency's rights of action 
accrued more than three months but less than ten years before the offset 
is made. Debts reduced to judgment may be referred at any time. Debts in 
amounts lower than $25.00 are not subject to referral.
    (d) The Commission will provide the debtor with written notice of 
its intent to offset before initiating the offset. Notice will be mailed 
to the debtor at the current address of the debtor, as determined from 
information obtained from the IRS pursuant to 26 U.S.C. 6103(m)(2), (4), 
(5) or from information regarding the debt maintained by the Commission. 
The notice sent to the debtor will state the amount of the debt and 
inform the debtor that:
    (1) The debt is past due;
    (2) The Commission intends to refer the debt to Treasury for offset 
from tax refunds that may be due to the taxpayer;
    (3) The Commission intends to provide information concerning the 
delinquent debt exceeding $100 to a consumer reporting bureau unless 
such debt has already been disclosed; and
    (4) The debtor has 65 calendar days from the date of notice in which 
to present evidence that all or part of the debt is not past due, that 
the amount is not the amount currently owed, that the outstanding debt 
has been satisfied, or, if a judgment debt, that the debt has been 
satisfied, or stayed, before the debt is reported to a consumer 
reporting agency, if applicable, and referred to Treasury for offset 
from tax refunds.
    (e) If the debtor neither pays the amount due nor presents evidence 
that the amount is not past due or is satisfied or stayed, the 
Commission will report the debt to a consumer reporting agency at the 
end of the notice period, if applicable, and refer the debt to Treasury 
for offset from the taxpayer's federal tax refund. The Commission shall 
certify to Treasury that reasonable efforts have been made by the 
Commission to obtain payment of such debt.
    (f) A debtor may request a review by the Commission if the debtor 
believes that all or part of the debt is not past due or is not legally 
enforceable, or, in the case of a judgment debt, that the debt has been 
stayed or the amount satisfied, as follows:
    (1) The debtor must send a written request for review to the 
Director at the address provided in the notice.
    (2) The request must state the amount disputed and the reasons why 
the debtor believes that the debt is not past due, is not legally 
enforceable, has been satisfied, or, if a judgment debt, has been 
satisfied or stayed.
    (3) The request must include any documents that the debtor wishes to 
be considered or state that additional information will be submitted 
within the time permitted.
    (4) If the debtor wishes to inspect records establishing the nature 
and amount of the debt, the debtor must make a written request to the 
Director for an opportunity for such an inspection. The office holding 
the relevant records not exempt from disclosure shall make them 
available for inspection during normal business hours within one week 
from the date of receipt of the request.
    (5) The request for review and any additional information submitted 
pursuant to the request must be received by the Director at the address 
stated in the notice within 65 calendar days of the date of issuance of 
the notice.
    (6) The Commission will review disputes and shall consider its 
records and any documentation and arguments submitted by the debtor. The 
Commission's decision to refer to Treasury any disputed portion of the 
debt shall be made by the Chairman. The Commission shall send a written 
notice of its

[[Page 66]]

decision to the debtor. There is no administrative appeal of this 
decision.
    (7) If the evidence presented by the debtor is considered by a non-
Commission agent or other entities or persons acting on the Commission's 
behalf, the debtor will be accorded at least 30 calendar days from the 
date the agent or other entity or person determines that all or part of 
the debt is past-due and legally enforceable to request review by an 
officer or employee of the Commission of any unresolved dispute.
    (8) Any debt that previously has been reviewed pursuant to this 
section or any other section of this subpart, or that has been reduced 
to a judgment, may not be disputed except on the grounds of payments 
made or events occurring subsequent to the previous review or judgment.
    (g) The Commission will notify Treasury of any change in the amount 
due promptly after receipt of payments or notice of other reductions.
    (h) In the event that more than one debt is owed, the tax refund 
offset procedure will be applied in the order in which the debts became 
past due.

[[Page 67]]



               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 68]]

by 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: 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).1 For other applicable rules see part 201 of this 
chapter.
---------------------------------------------------------------------------

    \1\ 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.

[27 FR 12121, Dec. 7, 1962, as amended at 68 FR 32977, June 3, 2003]



Sec. 204.2  Investigations.

    The Commission will make an investigation for the purposes of 
section 22(a) of the Agricultural Adjustment

[[Page 69]]

Act, as amended, only upon request of the President.2
---------------------------------------------------------------------------

    \2\ 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).

[27 FR 12121, Dec. 7, 1962, as amended at 68 FR 32977, June 3, 2003]



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.

[[Page 70]]



 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



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 President or from the 
United States Trade Representative 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 United States Trade Representative 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 United States Trade Representative 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 United 
States Trade Representative.

[42 FR 40426, Aug. 10, 1977, as amended at 63 FR 29351, May 29, 1998]



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 Elimination of Unjustifiable or Unreasonable Foreign Acts or 
                  Policies Which Restrict U.S. Commerce



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

[[Page 71]]

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 no 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 Sec. Sec. 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, TRADE DIVERSION, 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; and 
          availability 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.

[[Page 72]]

       Subpart E_Investigations for Relief From Market Disruption

206.41 Applicability of subpart.
206.42 Who may file a petition.
206.43 Contents of a petition under section 406(a) of the Trade Act.
206.44 Contents of a petition under section 421(b) or (o) of the Trade 
          Act.
206.44a Special rules for conducting investigations under section 421(b) 
          of the Trade Act.
206.45 Time for reporting.
206.46 Public report.
206.47 Limited disclosure of certain confidential business information 
          under administrative protective order.

   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.

  Subpart G_Investigations For Action in Response to Trade Diversion; 
                         Reviews of Action Taken

206.61 Applicability of subpart.
206.62 Who may file a petition.
206.63 Contents of petition.
206.64 Institution of investigation or review; publication of notice; 
          and availability for public inspection.
206.65 Public hearing.
206.66 Limited disclosure of certain confidential business information 
          under administrative protective order.
206.67 Time for determination and report.
206.68 Public report.

    Authority: 19 U.S.C. 1335, 2251-2254, 2451-2451a, 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, 406, and 421-422 of the Trade 
Act of 1974, as amended (19 U.S.C. 2251, 2252, 2254, 2436, 2451-2451a) 
(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 or 421 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 G sets forth rules applicable to 
functions and duties under section 422 of the Trade Act.

[67 FR 8190, Feb. 22, 2002]



                            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 as provided in section 
202(a)(1), 204(c)(1), 406(a)(1), 421(b) or (o), or 422(b) 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), 406, 421(b) or 
(o), or 422(b) 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, F, or G] of part 206 of the rules of practice and procedure of 
the United States International Trade Commission.''

[67 FR 8190, Feb. 22, 2002]

[[Page 73]]



Sec. 206.3  Institution of investigations; publication of notice; and
availability 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. The Commission also will institute an investigation 
and publish a notice following receipt of a resolution or on the 
Commission's own motion under part 206.
    (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, 
limits on page lengths for posthearing briefs, 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. The 
Commission will provide the same sort of information in its notice when 
the investigation was instituted following receipt of a resolution or on 
the Commission's own motion.
    (c) Availability for public inspection. The Commission will promptly 
make each petition, request, resolution, or Commission motion available 
for public inspection (with the exception of confidential business 
information).

[60 FR 10, Jan. 3, 1995, as amended at 67 FR 8190, Feb. 22, 2002; 68 FR 
32977, June 3, 2003]



Sec. 206.4  Notification of other agencies.

    For each investigation subject to provisions of part 206, the 
Commission will transmit copies of the petition, request, resolution, or 
Commission motion as required by the relevant statute, along with a copy 
of the notice of investigation.

[67 FR 8190, Feb. 22, 2002]



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 subpart C, D, E, or G of this part. A 
public hearing on the subject of injury and remedy will be held in 
connection with each investigation instituted under subpart C or D of 
this part or section 406(a) of the Trade Act and subpart E of this part, 
after reasonable notice thereof has been published in the Federal 
Register. The Commission also will conduct a public hearing in each 
investigation instituted under section 421(b) or (o) of the Trade Act 
and subpart E of this part or section 422(b) of the Act and subpart G. 
The Federal Register notice announcing the institution of such an 
investigation will list the date, time, and location of the hearing, the 
subjects to be addressed, and the procedures to be followed.
    (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

[[Page 74]]

to cross-question interested parties making presentations at the 
hearing.

[60 FR 10, Jan. 3, 1995, as amended at 67 FR 8190, Feb. 22, 2002]



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--or in the case of an 
investigation under section 421(b) or 422(b) of the Trade Act, if the 
President or the United States Trade Representative may consider the 
Commission's determination to be affirmative under section 421(e) or 
(i)(1) or section 422(e)(1) of the Act--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.
    (3) In the case of a determination made under section 421(b) or 
422(b) of the Trade Act, the Commission will also include in its report 
a description of--
    (i) The short- and long-term effects that implementation of the 
action recommended is likely to have on the petitioning domestic 
industry, on other domestic industries, and on consumers; and
    (ii) The short- and long-term effects of not taking the recommended 
action on the petitioning domestic industry, its workers, and the 
communities where production facilities of such industry are located, 
and on other domestic industries.

[60 FR 10, Jan. 3, 1995, as amended at 67 FR 8190, Feb. 22, 2002]



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, F, or G 
of this part or an investigation under section 422 of the Trade Act and 
subpart E 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 of this chapter 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.

[[Page 75]]

    (b) Nonconfidential summaries. Except as the Commission may 
otherwise provide, a party submitting confidential business information 
shall also submit to 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.

[60 FR 10, Jan. 3, 1995, as amended at 67 FR 8190, Feb. 22, 2002]



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). The Secretary shall promptly notify a petitioner when, 
before the establishment of a service list under Sec. 206.17(a)(4), an 
application under Sec. 206.17(a) is approved. When practicable, this 
notification shall be made by facsimile transmission. A copy of the 
petition including all confidential business information shall then be 
served by petitioner on those approved applicants in accordance with 
this section within two (2) calendar days of the time notification is 
made by the Secretary. 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

[[Page 76]]

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.

[59 FR 5091, Feb. 3, 1994, as amended at 68 FR 32977, June 3, 2003]



      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

[[Page 77]]

    (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:
    (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.

[[Page 78]]

    (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 President 
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. A signed application and five (5) 
copies thereof shall be filed. 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.

[[Page 79]]

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 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;
    (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.

[[Page 80]]

    (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 the applicant to submit to the Secretary a 
personal sworn statement that, in addition to such other conditions as 
the Secretary may require, the applicant shall:
    (1) Not divulge any of the confidential business information 
obtained under the administrative protective order and not otherwise 
available to the applicant, 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 signed a statement in a form 
approved by the Secretary that they agree to be bound by the 
administrative protective order (the authorized applicant shall be 
responsible for retention and accuracy of such forms and shall be deemed 
responsible for such persons' compliance with the administrative 
protective order);
    (2) Use such confidential business information solely for the 
purposes of representing an interested party in 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

[[Page 81]]

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 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 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

[[Page 82]]

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 shall 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 nondisclosable confidential 
business information. As defined in Sec. 201.6(a)(2) of this chapter, 
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.
    (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 
nondisclosable confidential business information in question. One 
version shall contain all confidential business information, bracketed 
in accordance with Sec. 201.6 of this chapter and Sec. 206.8(c), with 
the specific information as to which exemption from disclosure was 
granted enclosed in triple brackets. This version shall have the 
following warning marked on every page: ``CBI exempted from disclosure 
under APO enclosed in triple brackets.'' The other two versions shall 
conform to and be filed in accordance with the requirements of Sec. 
201.6 of this chapter and Sec. 206.8(c), except that the specific 
information as to which exemption from disclosure was granted shall be 
redacted from those versions of the submission.

[[Page 83]]

    (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.

[60 FR 12, Jan. 3, 1995, as amended at 68 FR 32977, June 3, 2003; 70 FR 
8511, Feb. 22, 2005]



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 is 
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;

[[Page 84]]

    (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.



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

[[Page 85]]

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 concerned 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

[[Page 86]]

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 regarding 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) or 421(b) or (o) of the Trade Act. For other applicable rules, 
see subpart A of this part and part 201 of this chapter.

[59 FR 5091, Feb. 3, 1994, as amended at 67 FR 8190, Feb. 22, 2002]



Sec. 206.42  Who may file a petition.

    (a) A petition under section 406(a) of the Trade Act 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 material injury, or the threat thereof, to such 
domestic industry.
    (b) A petition under section 421(b) or (o) of the Trade Act may be 
filed by an entity, including a trade association, firm, certified or 
recognized union, or group of workers, which is representative of an 
industry.

[67 FR 8191, Feb. 22, 2002]



Sec. 206.43  Contents of a petition under section 406(a) of the 
Trade Act.

    A petition for relief under section 406(a) of the Trade Act 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

[[Page 87]]

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 (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.

[59 FR 5091, Feb. 3, 1994, as amended at 67 FR 8191, Feb. 22, 2002]



Sec. 206.44  Contents of a petition under section 421(b) or (o) of 
the Trade Act.

    (a) Petitions under section 421(b). (1) A petition for relief under 
section 421(b) of the Trade Act shall provide specific information in 
support of the claim that products of the People's Republic of China are 
being imported into the United States in such increased quantities or 
under such conditions as to cause or threaten to cause market disruption 
to the domestic producers of like or directly competitive products. In 
addition, such petition shall include the information described in 
paragraphs (b) through (j) of this section. The petition shall provide 
the information required by this paragraph and paragraphs (b) through 
(j) of this section to the extent that such information is reasonably 
available to the petitioner with due diligence.
    (2) If the petition fails to provide any item of information 
specified in paragraphs (b) through (j) of this section, the petition 
shall include a certification that such information was not reasonably 
available to the petitioner.
    (b) Product description. Each petition shall include the name and 
description of the imported product concerned, specifying the United 
States tariff provision under which such product is

[[Page 88]]

classified and the current tariff treatment thereof, and the name and 
description of the like or directly competitive domestic product 
concerned.
    (c) Representativeness. Each petition shall include:
    (1) The names and street addresses of the firms represented in the 
petition and/or the firms employing or previously employing the workers 
represented in the petition, the locations of the establishments in 
which each such firm produces the domestic product, and the telephone 
number and contact person(s) for each such firm;
    (2) The percentage of domestic production of the like or directly 
competitive domestic product 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 street addresses of all other producers of the 
domestic product known to the petitioner, and the telephone number and 
contact person(s) for each such producer.
    (d) Import data. Each petition shall include import data for at 
least each of the most recent 5 full years which form the basis of the 
claim that imports from the People's Republic of China of a product like 
or directly competitive with the product produced by the domestic 
industry concerned are increasing rapidly, either absolutely or 
relatively.
    (e) Domestic production data. Each petition shall include data on 
total U.S. production of the domestic product for each full year for 
which data are provided pursuant to paragraph (d) of this section.
    (f) Data showing injury and/or threat of injury. Each petition shall 
include the following quantitative data indicating the nature and extent 
of injury to the domestic industry concerned:
    (1) With respect to material injury, information, including data on 
production, capacity, capacity utilization, shipments, net sales, 
profits, employment, productivity, inventories, and expenditures on 
capital and research and development, 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) Declines in sales or market share, increases in inventory 
(whether maintained by domestic producers, importers, wholesalers, 
retailers, or producers or exporters in the People's Republic of China), 
and/or 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;
    (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
    (iv) Data regarding productive capacity in the People's Republic of 
China, any unused productive capacity, and any potential for product 
shifting in the People's Republic of China.
    (g) Cause of injury. Each petition shall enumerate and describe the 
causes believed to be resulting in the material injury, or threat 
thereof, described in paragraph (f) of this section. The petition shall 
provide information relating to the effect of imports of the subject 
merchandise on prices in the United States for like or directly 
competitive articles. The petition shall also include a statement 
regarding the extent to which increased imports, either actual or 
relative, of the imported product are believed to be such a cause, 
supported by pertinent data.
    (h) Critical circumstances. If the petition alleges that critical 
circumstances exist within the meaning of section 421(i)(1) of the Trade 
Act, the petition shall provide detailed information supporting that 
claim as well as detailed information demonstrating that delay in taking 
action under section 421 of

[[Page 89]]

the Act would cause damage to the relevant domestic industry that would 
be difficult to repair.
    (i) Relief sought and purpose thereof. The petition shall include a 
statement describing the import relief sought under section 421(i)(4) 
and/or section 421(a) of the Trade Act and the purpose thereof.
    (j) Additional information. The petition shall include:
    (1) The names of all U.S. importers and all producers in China of 
the subject merchandise known to petitioner, and the street address, 
telephone and fax number, and primary contact person(s) for each such 
importer and producer in China;
    (2) A detailed description of each product for which the petitioner 
requests the Commission to seek pricing information in its 
questionnaires, and an explanation of why the petitioner believes the 
Commission should collect pricing information for each such product;
    (3) For each domestic producer represented by petitioner, the 
company names of its 10 largest purchasers, and the street address, 
telephone number, and primary contact person(s) for each such purchaser;
    (4) For each allegation of lost sales and/or lost revenues, 
supporting information with regard to each such alleged loss, including 
the name of the company represented by petitioner that lost the sale or 
revenue, the name of the company that captured the sale or whose 
competition resulted in lost revenue (including company street address, 
company contact person, and telephone and fax numbers for each contact 
person), the date and total value of the lost sale or lost revenue, and 
the total quantity of product involved (by weight or number of units).
    (k) Petitions under section 421(o). A petition under section 421(o) 
of the Trade Act shall include evidence of representativeness, as 
described in paragraph (b) of this section, as well as specific 
information in support of the claim that action under section 421 of the 
Act continues to be necessary to prevent or remedy market disruption. 
The information provided in support of that claim should take into 
account factors such as those specified in paragraphs (c) through (g) of 
this section. To comply with this paragraph, the petition should contain 
all relevant information that is reasonably available to the petitioner 
with due diligence.

[67 FR 8191, Feb. 22, 2002, as amended at 68 FR 65167, Nov. 19, 2003]



Sec. 206.44a  Special rules for conducting investigations under 
section 421(b) of the Trade Act.

    (a) Service of the petition. (1)(i) The Secretary shall promptly 
notify a petitioner when, before the establishment of a service list 
under Sec. 206.17(a)(4) of this part, he or she approves an application 
under Sec. 206.17(a)(2) of this part pursuant to Sec. 206.47. When 
practicable, this notification shall be made by facsimile transmission. 
The petitioner shall then serve a copy of the petition, including all 
confidential business information, on the approved lead authorized 
applicants in accord with Sec. 206.17(f) within 2 calendar days of the 
time notification is made by the Secretary.
    (ii) Upon establishment and issuance of the service list, the 
petitioner shall serve the lead authorized applicants enumerated on the 
list established by the Secretary pursuant to Sec. 206.17(a)(4) that 
have not been served pursuant to paragraph (a)(1)(i) of this section 
within 2 calendar days of the establishment and issuance of the 
Secretary's list.
    (2) As the Secretary adds new authorized applicants to the service 
list described in paragraph (a)(1) of this section, the Secretary shall 
notify the petitioner and issue an amended list, and the petitioner 
shall serve new lead authorized applicants with a copy of the petition 
in the same manner as under paragraph (a)(1)(i) of this section.
    (3) The petitioner shall serve a copy of the non-confidential 
version of the petition on those persons enumerated on the list 
established by the Secretary pursuant to Sec. 201.11(d) of this chapter 
within 2 calendar days of the establishment and issuance of the 
Secretary's list, and on any additional persons within 2 calendar days 
of receiving notification from the Secretary of an amended list.
    (4) The petitioner shall attest service of the petition by filing a 
certificate of service with the Commission.

[[Page 90]]

    (b) Comment on information. The parties shall have an opportunity to 
file comments on any information disclosed to them after they have filed 
their posthearing brief. Comments shall concern only such information, 
and shall not exceed 15 pages of textual material, double-spaced and on 
single-sided stationery measuring 8\1/2\x11 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. New factual information and arguments based on 
that 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. The record shall close on the 
date such comments are due, except with respect to changes in bracketing 
of confidential business information permitted by Sec. 206.8(c) of this 
part.

[68 FR 65168, Nov. 19, 2003]



Sec. 206.45  Time for reporting.

    (a) In an investigation under section 406(a) of the Trade Act, 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.
    (b) In an investigation under section 421(b) of the Trade Act, the 
Commission will transmit to the President and the United States Trade 
Representative its determination at the earliest practicable time, but 
in no case later than 60 days (or 90 days in the case of a petition 
requesting provisional relief under section 421(i) of the Act) after the 
date on which the petition is filed, the request or resolution is 
received, or the motion is adopted. The Commission will transmit its 
report to the President and the Trade Representative no later than 20 
days after the transmittal of the determination.
    (c) In an investigation under section 421(b) of the Trade Act in 
which the petition requests provisional relief under section 421(i) of 
the Act, the Commission will transmit to the President and the Trade 
Representative its determination and report with respect to section 
421(i) of the Act no later than 45 days after the petition is filed.
    (d) In an investigation under section 421(o) of the Trade Act, the 
Commission shall transmit to the President a report on its investigation 
and determination not later than 60 days before the action under section 
421(m) of the Trade Act is to terminate.
    (e) Date of filing. Any petition under this subpart E that is filed 
after 12:00 noon shall be deemed to be filed on the next business day.

[67 FR 8192, Feb. 22, 2002, as amended at 70 FR 8511, Feb. 22, 2005]



Sec. 206.46  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.

[59 FR 5091, Feb. 3, 1994. Redesignated at 67 FR 8191, Feb. 22, 2002]



Sec. 206.47  Limited disclosure of certain confidential business 
information under administrative protective order.

    In an investigation under section 421(b) or (o) of the Trade Act, 
the Secretary shall make confidential business information available to 
authorized applicants, subject to the provisions of Sec. 206.17.

[67 FR 8192, Feb. 22, 2002]



   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.

[[Page 91]]



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.
    (c) 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.

[60 FR 10, Jan. 3, 1995, as amended at 66 FR 32218, June 14, 2001]



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.



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

[[Page 92]]

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.
    (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.



  Subpart G_Investigations For Action in Response to Trade Diversion; 
                         Reviews of Action Taken

    Source: 67 FR 8192, Feb. 22, 2002, unless otherwise noted.

[[Page 93]]



Sec. 206.61  Applicability of subpart.

    The provisions of this subpart G apply to investigations under 
section 422(b) and/or reviews under section 422(j) of the Trade Act. For 
other applicable rules, see subpart A of this part and part 201 of this 
chapter.



Sec. 206.62  Who may file a petition.

    A petition for an investigation under section 422(b) of the Trade 
Act may be filed by an entity, including a trade association, firm, 
certified or recognized union, or group of workers, which is 
representative of an industry.



Sec. 206.63  Contents of petition.

    A petition under section 422(b) of the Trade Act shall include 
specific information in support of the claim that an action described in 
section 422(c) of the Trade Act has caused, or threatens to cause, a 
significant diversion of trade into the domestic market of the United 
States. To comply with that requirement and the requirements in 
paragraphs (a) through (f) of this section, the petition shall include 
all relevant information that is reasonably available to the petitioner 
with due diligence. The petition shall include the following 
information:
    (a) Product description. The name and description of the imported 
product 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 domestic product 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 product is produced;
    (2) The percentage of domestic production of the domestic product 
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 
product known to the petitioner;
    (c) Description of the action. A description of the action or 
actions, as defined in section 422(c) of the Trade Act, that allegedly 
has caused or threatens to cause a significant diversion of trade into 
the domestic market of the United States;
    (d) Trade diversion data. (1) The actual or imminent increase in 
United States market share held by such imports from the People's 
Republic of China;
    (2) The actual or imminent increase in volume of such imports into 
the United States;
    (3) The nature and extent of the action taken or proposed by the WTO 
member concerned;
    (4) The extent of exports from the People's Republic of China to 
that WTO member and to the United States;
    (5) The actual or imminent changes in exports to that WTO member due 
to the action taken or proposed;
    (6) The actual or imminent diversion of exports from the People's 
Republic of China to countries other than the United States;
    (7) Cyclical or seasonal trends in import volumes into the United 
States of the products at issue; and
    (8) Conditions of demand and supply in the United States market for 
the products at issue;
    (e) Import data. Any import data available to the petitioner that 
will aid the Commission in examining, pursuant to section 422(d)(2) of 
the Trade Act, the changes in imports into the United States from the 
People's Republic of China since the time that the WTO member commenced 
the investigation that led to a request for consultations described in 
section 422(a) of the Act; and
    (f) Relief sought and purpose thereof. A statement describing the 
import relief sought under section 422(h) of the Trade Act and the 
purpose thereof.



Sec. 206.64  Institution of investigation or review; publication of 
notice; and availability for public inspection.

    (a) Paragraphs (a) and (b) in Sec. 206.3 govern the institution of 
an investigation under section 422(b) of the Act and the publication of 
a Federal Register notice concerning the investigation. Following 
receipt of notification that the WTO member or members involved have 
notified the Committee on Safeguards of the WTO of a modification in

[[Page 94]]

the action taken by them against the People's Republic of China pursuant 
to consultation referred to in section 422(a) of the Act, the Commission 
will promptly conduct a review under section 422(j) of the Act regarding 
the continued need for action taken under section 422(h) of the Act. The 
Commission also will publish notice of the review in the Federal 
Register.
    (b) The Commission will make available for public inspection the 
notification document that prompted a review under paragraph (a) of this 
section, excluding any confidential business information in the 
document. Paragraph (c) in Sec. 206.3 governs the availability for 
public inspection of a petition, request, resolution, or motion that 
prompted the Commission to institute an investigation under section 
422(b) of the Act.



Sec. 206.65  Public hearing.

    Public hearings in investigations under section 422(b) of the Act 
are provided for in Sec. 206.5(b).



Sec. 206.66  Limited disclosure of certain confidential business 
information under administrative protective order.

    In an investigation under section 422(b) of the Trade Act, the 
Secretary shall make confidential business information available to 
authorized applicants, subject to the provisions of Sec. 206.17.



Sec. 206.67  Time for determination and report.

    (a) In an investigation under section 422(b) of the Trade Act, the 
Commission will transmit its determination under that section of the Act 
to the President and the Trade Representative at the earliest practical 
time, but not later than 45 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. The Commission shall issue and transmit its report 
on the determination not later than 10 days after the determination is 
issued.
    (b) In a review under section 422(j) of the Trade Act, the 
Commission will report its determination to the President not later than 
60 days after the notification described in that section of the Act.



Sec. 206.68  Public report.

    Upon making a report to the President of the results of an 
investigation under section 422(b) or a review under section 422(j) of 
the Trade Act, 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.



  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 [Reserved]
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.

[[Page 95]]

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_Five-Year Reviews

207.60 Definitions.
207.61 Responses to notice of institution.
207.62 Rulings on adequacy and nature of Commission review.
207.63 Circulation of draft questionnaires.
207.64 Staff reports.
207.65 Prehearing briefs.
207.66 Hearing.
207.67 Posthearing briefs and statements.
207.68 Final comments on information.
207.69 Publication of determinations.

  Subpart G_Implementing Regulations for the North American Free Trade 
                                Agreement

207.90 Scope.
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.

[[Page 96]]

    (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 is 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, 
requests to close a portion of the hearing, comments on requests to 
close a portion of the hearing, and testimony filed by parties pursuant 
to Sec. Sec. 207.10, 207.15, 207.23, 207.24, 207.25, 207.65, 207.66, 
and 207.67, 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

[[Page 97]]

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; 
63 FR 30607, June 5, 1998; 70 FR 8511, Feb. 22, 2005]



Sec. 207.4  The record.

    (a) Maintenance of the record. The Secretary shall maintain the 
record of each investigation conducted by the Commission pursuant to 
title VII of the Act. The record shall be maintained contemporaneously 
with each actual filing in the record. It shall be divided into public 
and nonpublic sections. The Secretary shall also maintain a 
contemporaneous index of all materials filed in the record. All material 
properly filed with the Secretary shall be placed in the record. The 
Commission need not consider in its determinations or include in the 
record any material that is not filed with the Secretary. All material 
which is placed in the record shall be maintained in the public record, 
with the exception of material which is privileged, or which is business 
proprietary information submitted in accordance with Sec. 201.6 of this 
chapter. Privileged and business proprietary material shall be 
maintained in the nonpublic record.
    (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  [Reserved]



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

[[Page 98]]

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. A signed application and five (5) 
copies thereof shall be filed. An application on behalf of a petitioner, 
a respondent, or another party must be made no later than the time that 
entries of appearance are due pursuant to Sec. 201.11 of this chapter. 
In the event that two or more authorized applicants represent one 
interested party who is a party to the investigation, the authorized 
applicants must select one of their number to be lead authorized 
applicant. The lead authorized applicant's application must be filed no 
later than the time that entries of appearance are due. Provided that 
the application is accepted, the lead authorized applicant shall be 
served with business proprietary information pursuant to paragraph (f) 
of this section. The other authorized applicants representing the same 
party may file their applications after the deadline for entries of 
appearance but at least five days before the deadline for filing 
posthearing briefs in the investigation, or the deadline for filing 
briefs in the preliminary phase of an investigation, or the deadline for 
filing submissions in a remanded 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

[[Page 99]]

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 which information is made available to the authorized 
applicant shall require the applicant to submit to the Secretary a 
personal sworn statement that, in addition to such other conditions as 
the Secretary may require, the applicant shall:
    (1) Not divulge any of the business proprietary information obtained 
under the administrative protective order and not otherwise available to 
the applicant, 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 decision making for an interested party which is a party to 
the investigation; and who have signed a statement in a form approved by 
the Secretary that they agree to be bound by the administrative 
protective order (the authorized applicant shall be responsible for 
retention and accuracy of such forms and shall be deemed responsible for 
such persons' compliance with the administrative protective order);
    (2) Use such business proprietary information solely for the 
purposes of representing an interested party in the Commission 
investigation then in progress or during 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

[[Page 100]]

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;
    (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

[[Page 101]]

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 such information in accordance with the 
requirements of Sec. 207.3(b) and paragraph (f)(1) of this section, 
with the information redacted from the copies served.
    (3) The Secretary shall not accept for filing into the record of an 
investigation submissions filed without a proper certificate of service. 
Failure to comply with paragraph (f) of this section may result in 
denial of party status and such sanctions as the Commission deems 
appropriate. Business proprietary information in submissions must be 
dealt with as required by Sec. 207.3(c).
    (g) Exemption from disclosure--(1) In general. Any person may 
request exemption from the disclosure of business proprietary 
information under administrative protective order, whether the person 
desires to include such information in a petition filed under Sec. 
207.10, or any other submission to the Commission during the course of 
an investigation. Such a request shall only be granted if the Secretary 
finds that such information is nondisclosable confidential business 
information. As defined in Sec. 201.6(a)(2) of this chapter, 
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. 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

[[Page 102]]

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; 68 FR 32978, June 3, 2003; 70 FR 8512, Feb. 
22, 2005]



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

    Any questionnaire issued by the Commission in connection with any 
investigation under title VII of the Act may be issued as a subpoena and 
subscribed by a Commissioner, after which it shall have the force and 
effect of a subpoena authorized by the Commission. Whenever any party or 
any other person fails to respond adequately to such a subpoena or 
whenever a party or any other person refuses or is unable to produce 
information requested in a timely manner and in the form required, or 
otherwise significantly impedes an investigation, the Commission may:
    (a) Use the facts otherwise available in making its determination;
    (b) Seek judicial enforcement of the subpoena pursuant to 19 U.S.C. 
1333;
    (c) Make inferences adverse to such person's position, if such 
person is an interested party that has failed to cooperate by not acting 
to the best of its ability to comply with a request for information; and
    (d) Take such other actions as necessary to obtain needed 
information.

[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, provided that, if 
the petition is filed with the Secretary after 12:00 noon, the petition 
shall be deemed filed on the next business day. 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.

[[Page 103]]

    (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, as amended at 70 FR 8512, Feb. 22, 2005]



Sec. 207.11  Contents of petition.

    (a) The petition shall be signed by the petitioner or its duly 
authorized officer, attorney, or agent, and shall set forth the name, 
address, and telephone number of the petitioner and any such officer, 
attorney, or agent, and the names of all representatives of petitioner 
who will appear in the investigation.
    (b)(1) The petition shall allege the elements necessary for the 
imposition of a duty under section 701(a) or section 731(a) of the Act 
and contain information reasonably available to the petitioner 
supporting the allegations.
    (2) The petition shall also include the following specific 
information, to the extent reasonably available to the petitioner:
    (i) Identification of the domestic like product(s) proposed by 
petitioner;
    (ii) A listing of all U.S. producers of the proposed domestic like 
product(s), including a street address, phone number, and contact 
person(s) for each producer;
    (iii) A listing of all U.S. importers of the subject merchandise, 
including street addresses and phone numbers for each importer;
    (iv) Identification of each product on which the petitioner requests 
the Commission to seek pricing information in its questionnaires; and
    (v) A listing of all sales or revenues lost by each petitioning firm 
by reason of the subject merchandise during the 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,

[[Page 104]]

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 Sec. Sec. 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\x11 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, except 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

[[Page 105]]

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]



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 five (5) 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.

[70 FR 8512, Feb. 22, 2005]

[[Page 106]]



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) business days prior to the date of 
the hearing that identifies the subjects to be discussed, specifies the 
amount of time requested, and justifies the need for a closed session 
with respect to each subject to be discussed, the Commission may close a 
portion of a hearing to persons not authorized under Sec. 207.7 to have 
access to business proprietary information in order to allow such party 
to address business proprietary information during the course of its 
presentation. If any party wishes to comment on the request to close a 
portion of the hearing, such comments must be filed within two (2) 
business days after the filing of the request. 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 Sec. 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, as amended at 70 FR 8512, Feb. 22, 2005]



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]

[[Page 107]]



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) double 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

[[Page 108]]

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 Determinations

    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 a 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.

[[Page 109]]



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(b) 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.

[56 FR 11929, Mar. 21, 1991, as amended at 63 FR 30607, June 5, 1998]



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,

[[Page 110]]

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 101(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 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 a review under 
section 751(c) of the Act of a countervailing or antidumping duty order 
involving the same or comparable subject merchandise.
    (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. Any such consolidated review shall be conducted under the 
applicable procedures set forth in subparts A and F of this part.
    (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, as amended at 63 FR 30607, June 5, 1998]



                        Subpart E_Judicial Review

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

[[Page 111]]



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



                       Subpart F_Five-Year Reviews

    Source: 63 FR 30608, June 5, 1998, unless otherwise noted.



Sec. 207.60  Definitions.

    For purposes of this subpart:
    (a) The term five-year review means a five-year review conducted 
pursuant to section 751(c) of the Act. The provisions of part 201 of 
this chapter and subpart A of this part pertaining to ``investigations'' 
are generally applicable to five-year reviews, unless superseded by a 
provision in this subpart of more specific application.
    (b) The term expedited review means a five-year review conducted by 
the Commission pursuant to section 751(c)(3)(B) of the Act.
    (c) The term full review means a five-year review that has not been 
expedited by the Commission or terminated pursuant to section 751(c)(3) 
of the Act.
    (d) The term notice of institution shall refer to the notice of 
institution of five-year review that the Commission shall publish in the 
Federal Register requesting that interested parties provide information 
to the Commission upon initiation of a five-year review.



Sec. 207.61  Responses to notice of institution.

    (a) When information must be filed. Responses to the notice of 
institution shall be submitted to the Commission no later than 50 days 
after its publication in the Federal Register.
    (b) Information to be filed with the Secretary. The notice of 
institution shall direct each interested party to make a filing pursuant 
to Sec. Sec. 201.6, 201.8 and 207.3 of this chapter containing the 
following:
    (1) A statement expressing its willingness to participate in the 
review by providing information requested by the Commission;
    (2) A statement regarding the likely effects of revocation of the 
order(s) or termination of the suspended investigation(s) under review;
    (3) Such information or industry data as the Commission may specify 
in the notice of institution.

[[Page 112]]

    (c) When requested information cannot be supplied. Any interested 
party that cannot furnish the information requested by the notice of 
institution in the requested form and manner shall, promptly after 
issuance of the notice, notify the Commission, provide a full 
explanation of why it cannot furnish the requested information, and 
indicate alternative forms in which it can provide equivalent 
information. The Commission may modify its requests to the extent 
necessary to avoid posing an unreasonable burden on that party.
    (d) Submissions by persons other than interested parties. Any person 
who is not an interested party may submit to the Commission, in a filing 
satisfying the requirements of Sec. 201.8 of this chapter, information 
relevant to the Commission's review no later than 50 days after 
publication of the notice of institution in the Federal Register.



Sec. 207.62  Rulings on adequacy and nature of Commission review.

    (a) Basis for rulings on adequacy. The Commission will assess the 
adequacy of aggregate interested party responses to the notice of 
institution with respect to each order or suspension agreement under 
review and, where the underlying affirmative Commission determination 
found multiple domestic like products, on the basis of each domestic 
like product.
    (b) Comments to the Commission. (1) Comments to the Commission 
concerning whether the Commission should conduct an expedited review may 
be submitted by:
    (i) Any interested party that is a party to the five-year review and 
that has responded to the notice of institution; and
    (ii) Any party, other than an interested party, that is a party to 
the five-year review.
    (2) Comments shall be submitted within the time specified in the 
notice of institution. In a grouped review, only one set of comments 
shall be filed per party. Comments shall not exceed fifteen (15) pages 
of textual material, double spaced and single sided, on stationery 
measuring 8\1/2\x11 inches. Comments containing new factual information 
shall be disregarded.
    (c) Notice of scheduling of full review. If the Commission concludes 
that interested parties' responses to the notice of institution are 
adequate, or otherwise determines that a full review should proceed, 
investigative activities pertaining to that review will continue. The 
Commission will publish in the Federal Register a notice of scheduling 
pertaining to subsequent procedures in the review.
    (d) Procedures for expedited reviews. (1) If the Commission 
concludes that interested parties' responses to the notice of 
institution are inadequate, it may decide to conduct an expedited 
review. In that event, the Commission shall direct the Secretary to 
issue a notice stating that the Commission has decided to conduct an 
expedited review and inviting those parties to the review described in 
paragraph (d)(2) of this section to file written comments with the 
Secretary on what determination the Commission should reach in the 
review. The date on which such comments must be filed will be specified 
in the notice to be issued by the Secretary. Comments containing new 
factual information shall be disregarded.
    (2) The following parties may file the comments described in 
paragraph (d)(1) of this section:
    (i) Any interested party that is a party to the five-year review and 
that has filed an adequate response to the notice of institution; and
    (ii) Any party, other than an interested party, that is a party to 
the five-year review.
    (3) Any person that is neither a party to the five-year review nor 
an interested party may submit a brief written statement (which shall 
not contain any new factual information) pertinent to the review within 
the time specified for the filing of written comments.
    (4) The Director shall prepare and place in the record, prior to the 
date on which the comments described in paragraph (d)(1) of this section 
must be filed, a staff report containing information concerning the 
subject matter of the review. 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

[[Page 113]]

nonbusiness proprietary version of the staff report shall be placed in 
the public record.
    (e) Use of facts available. The Commission's determination in an 
expedited review will be based on the facts available, in accordance 
with section 776 of the Act.

[63 FR 30608, June 5, 1998, as amended at 68 FR 32978, June 3, 2003]



Sec. 207.63  Circulation of draft questionnaires.

    (a) The Director shall circulate draft questionnaires to the parties 
for comment in each full review.
    (b) Any party desiring to comment on the draft questionnaires shall 
submit such comments in writing to the Commission within a time 
specified by the Director. All requests for collecting new information 
should be presented at this time. The Commission will disregard 
subsequent requests for collection of new information absent a showing 
that there is a compelling need for the information and that the 
information could not have been requested in the comments on the draft 
questionnaires.



Sec. 207.64  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 five-year review. 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 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. The Director shall place the 
final staff report in the record. 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 Sec. 207.7.

[63 FR 30608, June 5, 1998, as amended at 68 FR 32978, June 3, 2003]



Sec. 207.65  Prehearing briefs.

    Each party to a five-year review may submit a prehearing brief to 
the Commission on the date specified in the scheduling notice. A 
prehearing brief 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.



Sec. 207.66  Hearing.

    (a) In general. The Commission shall hold a hearing in each full 
review. The date of the hearing shall be specified in the scheduling 
notice.
    (b) Procedures. Hearing procedures in five-year reviews will conform 
to those for final phase antidumping and countervailing duty 
investigations set forth in Sec. 207.24.



Sec. 207.67  Posthearing briefs and statements.

    (a) Briefs from parties. Any party to a five-year review may file 
with the Secretary a posthearing brief concerning the information 
adduced at or after the hearing within a time specified in the 
scheduling notice 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\x11 
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.
    (b) Statements from nonparties. Any person other than a party may 
submit a brief written statement of information pertinent to the review 
within the time specified for the filing of posthearing briefs.

[[Page 114]]



Sec. 207.68  Final comments on information.

    (a) The Commission shall specify a date after the filing of 
posthearing briefs on which it will disclose to all parties to the five-
year review 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.
    (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. 207.67. 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\x11 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 
changes in bracketing of business proprietary information in the 
comments permitted by Sec. 207.3(c).



Sec. 207.69  Publication of determinations.

    Whenever the Commission makes a determination concluding a five-year 
review, the Secretary shall serve copies of the determination and, when 
applicable, the nonbusiness proprietary version of the final staff 
report on all parties to the review, and on the administering authority. 
The Secretary shall publish notice of such determination in the Federal 
Register.



  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

[[Page 115]]

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-Canada 
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

[[Page 116]]

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.



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 Economia, as the case may be, informs the Commission 
Secretary needs access to proprietary information to

[[Page 117]]

make recommendations regarding the convening of extraordinary challenge 
committees; and
    (7) Counsel representing, and other staff providing support to, the 
investigating authority, the Commission.
    (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), (6), 
or (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
    (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, provided to the 
Commission Secretary upon request, 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 (the authorized applicant shall be responsible for 
retention and accuracy of such forms and shall be deemed responsible for 
such persons' compliance with the administrative protective order);
    (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

[[Page 118]]

Economia, 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, 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 file the completed original of the form (NAFTA APO 
Form C) 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 described 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 NAFTA 
APO 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 the completed original of the form (NAFTA APO Form C) and 
three (3) copies with the Commission Secretary; and
    (B) File four (4) copies of the completed NAFTA APO Form C with the 
United States Secretary.
    (iii) Any person described in paragraph (c)(5)(i) of this section 
must 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

[[Page 119]]

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 a 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; service list. 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. The Secretary shall establish a 
list of persons authorized to receive proprietary information in a 
review, including parties whose applications have been granted.
    (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

[[Page 120]]

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.

[59 FR 5097, Feb. 3, 1994, as amended at 70 FR 8512, Feb. 22, 2005]



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 determined 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

[[Page 121]]

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
    (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

[[Page 122]]

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 party 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.

[[Page 123]]

    (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 information 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.

[[Page 124]]

    (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.
    (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

[[Page 125]]

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 at 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:

[[Page 126]]

    (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.
    (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.

[[Page 127]]



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 and 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 128]]



     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.
210.61 Discovery and compulsory process.

[[Page 129]]

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 complainant'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. Sec. Sec. 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 post insti tution 
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 
remedial order

[[Page 130]]

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 Sec. Sec. 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 131]]

frivolous 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 132]]

objections, and motions that are subject to provisions of Sec. Sec. 
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 this part specifically states 
otherwise,
    (i) 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
    (ii) The original and 12 true copies of each submission shall be 
filed if the investigation or related proceeding is before the 
Commission, except that a submitter shall file the original and 6 copies 
of any exhibits filed with a request or petition for related 
proceedings.
    (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

[[Page 133]]

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; 68 FR 32978, June 
3, 2003]



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

[[Page 134]]

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 
treatment. 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 
Sec. Sec. 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 
Sec. Sec. 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 pre insti tu tion 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 12 
confidential copies of the complaint along with 6 copies

[[Page 135]]

of any exhibits filed with the complaint, 12 nonconfidential copies of 
the complaint along with 6 copies of any exhibits filed with the 
complaint, plus one confidential copy and one nonconfidential copy of 
the complaint and exhibits 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 the complainant is seeking temporary relief, the 
complainant must file 12 confidential copies of the motion along with 6 
copies of any exhibits filed with the motion, 12 nonconfidential copies 
along with 6 copies of any exhibits filed with the motion, plus one 
additional confidential copy and one additional nonconfidential copy of 
the motion and exhibits 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; 68 
FR 32978, June 3, 2003]



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

[[Page 136]]

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 with 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 Sec. Sec. 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

[[Page 137]]

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;
    (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

[[Page 138]]

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 under 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

[[Page 139]]

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 and 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 Sec. Sec. 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

[[Page 140]]

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 or 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]

[[Page 141]]



                            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 to 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

[[Page 142]]

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 substantial, 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

[[Page 143]]

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 may 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

[[Page 144]]

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 Tariff 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

[[Page 145]]

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 before 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 
Sec. Sec. 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.

[[Page 146]]

    (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 termination 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

[[Page 147]]

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 staying 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 Sec. Sec. 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

[[Page 148]]

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 an 
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 
(Sec. Sec. 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 
(Sec. Sec. 210.35 through 210.40). Motions for temporary relief shall 
be filed as provided in subpart H of this part (see Sec. Sec. 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

[[Page 149]]

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 books, 
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

[[Page 150]]

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 this 
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

[[Page 151]]

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.
    (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

[[Page 152]]

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.



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

[[Page 153]]

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 which 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

[[Page 154]]

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 
of 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

[[Page 155]]

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, shall 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

[[Page 156]]

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 in 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

[[Page 157]]

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;
    (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

[[Page 158]]

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 of 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. Sec. Sec. 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

[[Page 159]]

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 judge, 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 
Sec. Sec. 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

[[Page 160]]

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 judge 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 Sec. Sec. 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

[[Page 161]]

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 initial 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]

[[Page 162]]



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 determination. 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

[[Page 163]]

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, 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.

[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 Sec. Sec. 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.

[[Page 164]]



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 or 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

[[Page 165]]

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.
    (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 Sec. Sec. 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

[[Page 166]]

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 Sec. Sec. 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 (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:

[[Page 167]]

    (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
    (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 
Sec. Sec. 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

[[Page 168]]

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 chapter, 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

[[Page 169]]

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.



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 Sec. Sec. 210.52, 210.53(a) (if 
applicable), 210.54 through 210.56, as well as Sec. Sec. 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 Sec. Sec. 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;

[[Page 170]]

    (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 this chapter, Sec. Sec. 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.

[[Page 171]]



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 prior 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 Sec. Sec. 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

[[Page 172]]

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 for 
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

[[Page 173]]

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), the 
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 Sec. Sec. 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

[[Page 174]]

    (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 certified 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______________________________________________________


[[Page 175]]

________________________________________________________________________
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 bounds, 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. Sec. Sec. 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.

[[Page 176]]



         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 section 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 Sec. Sec. 
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

[[Page 177]]

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 Sec. Sec. 210.5 and 210.39) 
shall apply and, in a proceeding under Sec. Sec. 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.



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

[[Page 178]]

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 to 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

[[Page 179]]

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 pursuant 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

[[Page 180]]

a formal enforcement proceeding under Sec. 210.75(b) at the time of 
taking action under 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.



                      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 181]]

to 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 182]]

or 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

[[Page 183]]

rulemaking proceedings for this purpose under 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 184]]

Commission 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 185]]

an 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 Office 
of Finance 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, Office of Finance, 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.

[68 FR 32979, June 3, 2003]



PART 213_TRADE REMEDY ASSISTANCE--Table of Contents




Sec.
213.1 Purpose and applicability of part.

[[Page 186]]

213.2 Definitions.
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

[[Page 187]]

for firms and safeguarding national security are administered by the 
Department of Commerce. The trade law relating to adjustment assistance 
for workers 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.

[[Page 188]]

    (d) Notification to administering agencies. When an applicant seeks 
technical assistance on matters involving the trade laws, and the Office 
determines that 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 189]]



 CHAPTER III--INTERNATIONAL TRADE ADMINISTRATION, DEPARTMENT OF COMMERCE




  --------------------------------------------------------------------
Part                                                                Page
351             Antidumping and countervailing duties.......         191
354             Procedures for imposing sanctions for 
                    violation of an antidumping or 
                    countervailing duty administrative 
                    protective order........................         295
356             Procedures and rules for implementing 
                    Article 1904 of the North American Free 
                    Trade Agreement.........................         304
357             Short supply procedures.....................         324
360             Steel import monitoring and analysis system.         329

[[Page 191]]



PART 351_ANTIDUMPING AND COUNTERVAILING DUTIES--Table of Contents




                     Subpart A_Scope and Definitions

Sec.
351.101 Scope.
351.102 Definitions.
351.103 Central Records Unit and Administrative Protective Order Unit.
351.104 Record of proceedings.
351.105 Public, business proprietary, privileged, and classified 
          information.
351.106 De minimis net countervailable subsidies and weighted-average 
          dumping margins disregarded.
351.107 Cash deposit rates for nonproducing exporters; rates in 
          antidumping proceedings involving a nonmarket economy country.

        Subpart B_Antidumping and Countervailing Duty Procedures

351.201 Self-initiation.
351.202 Petition requirements.
351.203 Determination of sufficiency of petition.
351.204 Time periods and persons examined; voluntary respondents; 
          exclusions.
351.205 Preliminary determination.
351.206 Critical circumstances.
351.207 Termination of investigation.
351.208 Suspension of investigation.
351.209 Violation of suspension agreement.
351.210 Final determination.
351.211 Antidumping order and countervailing duty order.
351.212 Assessment of antidumping and countervailing duties; provisional 
          measures deposit cap; interest on certain overpayments and 
          underpayments
351.213 Administrative review of orders and suspension agreements under 
          section 751(a)(1) of the Act.
351.214 New shipper reviews under section 751(a)(2)(B) of the Act.
351.215 Expedited antidumping review and security in lieu of estimated 
          duty under section 736(c) of the Act.
351.216 Changed circumstances review under section 751(b) of the Act.
351.217 Reviews to implement results of subsidies enforcement proceeding 
          under section 751(g) of the Act.
351.218 Sunset reviews under section 751(c) of the Act.
351.219 Reviews of countervailing duty orders in connection with an 
          investigation under section 753 of the Act.
351.220 Countervailing duty review at the direction of the President 
          under section 762 of the Act.
351.221 Review procedures.
351.222 Revocation of orders; termination of suspended investigations.
351.223 Procedures for initiation of downstream product monitoring.
351.224 Disclosure of calculations and procedures for the correction of 
          ministerial errors.
351.225 Scope rulings.

                   Subpart C_Information and Argument

351.301 Time limits for submission of factual information.
351.302 Extension of time limits; return of untimely filed or 
          unsolicited material.
351.303 Filing, format, translation, service, and certification of 
          documents.
351.304 Establishing business proprietary treatment of information.
351.305 Access to business proprietary information.
351.306 Use of business proprietary information.
351.307 Verification of information.
351.308 Determinations on the basis of the facts available.
351.309 Written argument.
351.310 Hearings.
351.311 Countervailable subsidy practice discovered during investigation 
          or review.
351.312 Industrial users and consumer organizations.

 Subpart D_Calculation of Export Price, Constructed Export Price, Fair 
                         Value, and Normal Value

351.401 In general.
351.402 Calculation of export price and constructed export price; 
          reimbursement of antidumping and countervailing duties.
351.403 Sales used in calculating normal value; transactions between 
          affiliated parties.
351.404 Selection of the market to be used as the basis for normal 
          value.
351.405 Calculation of normal value based on constructed value.
351.406 Calculation of normal value if sales are made at less than cost 
          of production.
351.407 Calculation of constructed value and cost of production.
351.408 Calculation of normal value of merchandise from nonmarket 
          economy countries.
351.409 Differences in quantities.
351.410 Differences in circumstances of sale.
351.411 Differences in physical characteristics.
351.412 Levels of trade; adjustment for difference in level of trade; 
          constructed export price offset.
351.413 Disregarding insignificant adjustments.
351.414 Comparison of normal value with export price (constructed export 
          price).
351.415 Conversion of currency.

[[Page 192]]

  Subpart E_Identification and Measurement of Countervailable Subsidies

351.501 Scope.
351.502 Specificity of domestic subsidies.
351.503 Benefit.
351.504 Grants.
351.505 Loans.
351.506 Loan guarantees.
351.507 Equity.
351.508 Debt forgiveness.
351.509 Direct taxes.
351.510 Indirect taxes and import charges (other than export programs).
351.511 Provision of goods or services.
351.512 Purchase of goods. [Reserved]
351.513 Worker-related subsidies.
351.514 Export subsidies.
351.515 Internal transport and freight charges for export shipments.
351.516 Price preferences for inputs used in the production of goods for 
          export.
351.517 Exemption or remission upon export of indirect taxes.
351.518 Exemption, remission, or deferral upon export of prior-stage 
          cumulative indirect taxes.
351.519 Remission or drawback of import charges upon export.
351.520 Export insurance.
351.521 Import substitution subsidies. [Reserved]
351.522 Green light and green box subsidies.
351.523 Upstream subsidies.
351.524 Allocation of benefit to a particular time period.
351.525 Calculation of ad valorem subsidy rate and attribution of 
          subsidy to a product.
351.526 Program-wide changes.
351.527 Transnational subsidies.

Subpart F_Subsidy Determinations Regarding Cheese Subject to an In-Quota 
                              Rate of Duty

351.601 Annual list and quarterly update of subsidies.
351.602 Determination upon request.
351.603 Complaint of price-undercutting by subsidized imports.
351.604 Access to information.

                      Subpart G_Applicability Dates

351.701 Applicability dates.
351.702 Applicability dates for countervailing duty regulations.

Annex I to Part 351--Deadlines for Parties in Countervailing 
          Investigations
Annex II to Part 351--Deadlines for Parties in Countervailing 
          Administrative Reviews
Annex III to Part 351--Deadlines for Parties in Antidumping 
          Investigations
Annex IV to Part 351--Deadlines for Parties in Antidumping 
          Administrative Reviews
Annex V to Part 351--Comparison of Prior and New Regulations
Annex VI to Part 351--Countervailing Investigations Timeline
Annex VII to Part 351--Antidumping Investigations Timeline
Annex VIII-A to Part 351--Schedule for 90-Day Sunset Reviews
Annex VIII-B to Part 351--Schedule for Expedited Sunset Reviews
Annex VIII-C to Part 351--Schedule for Full Sunset Reviews

    Authority: 5 U.S.C. 301; 19 U.S.C. 1202 note; 19 U.S.C. 1303 note; 
19 U.S.C. 1671 et seq.; and 19 U.S.C. 3538.

    Source: 62 FR 27379, May 19, 1997, unless otherwise noted.



                     Subpart A_Scope and Definitions



Sec. 351.101  Scope.

    (a) In general. This part contains procedures and rules applicable 
to antidumping and countervailing duty proceedings under title VII of 
the Act (19 U.S.C. 1671 et seq.), and also determinations regarding 
cheese subject to an in-quota rate of duty under section 702 of the 
Trade Agreements Act of 1979 (19 U.S.C. 1202 note). This part reflects 
statutory amendments made by titles I, II, and IV of the Uruguay Round 
Agreements Act, Pub. L. 103-465, which, in turn, implement into United 
States law the provisions of the following agreements annexed to the 
Agreement Establishing the World Trade Organization: Agreement on 
Implementation of Article VI of the General Agreement on Tariffs and 
Trade 1994; Agreement on Subsidies and Countervailing Measures; and 
Agreement on Agriculture.
    (b) Countervailing duty investigations involving imports not 
entitled to a material injury determination. Under section 701(c) of the 
Act, certain provisions of the Act do not apply to countervailing duty 
proceedings involving imports from a country that is not a Subsidies 
Agreement country and is not entitled to a material injury determination 
by the Commission. Accordingly, certain provisions of this part 
referring to the Commission may not apply to such proceedings.
    (c) Application to governmental importations. To the extent 
authorized by

[[Page 193]]

section 771(20) of the Act, merchandise imported by, or for the use of, 
a department or agency of the United States Government is subject to the 
imposition of countervailing duties or antidumping duties under this 
part.



Sec. 351.102  Definitions.

    (a) Introduction. The Act contains many technical terms applicable 
to antidumping and countervailing duty proceedings. In the case of terms 
that are not defined in this section or other sections of this part, 
readers should refer to the relevant provisions of the Act. This 
section:
    (1) Defines terms that appear in the Act but are not defined in the 
Act;
    (2) Defines terms that appear in this Part but do not appear in the 
Act; and
    (3) Elaborates on the meaning of certain terms that are defined in 
the Act.
    (b) Definitions.
    Act. ``Act'' means the Tariff Act of 1930, as amended.
    Administrative review. ``Administrative review'' means a review 
under section 751(a)(1) of the Act.
    Affiliated persons; affiliated parties. ``Affiliated persons'' and 
``affiliated parties'' have the same meaning as in section 771(33) of 
the Act. In determining whether control over another person exists, 
within the meaning of section 771(33) of the Act, the Secretary will 
consider the following factors, among others: corporate or family 
groupings; franchise or joint venture agreements; debt financing; and 
close supplier relationships. The Secretary will not find that control 
exists on the basis of these factors unless the relationship has the 
potential to impact decisions concerning the production, pricing, or 
cost of the subject merchandise or foreign like product. The Secretary 
will consider the temporal aspect of a relationship in determining 
whether control exists; normally, temporary circumstances will not 
suffice as evidence of control.
    Aggregate basis. ``Aggregate basis'' means the calculation of a 
country-wide subsidy rate based principally on information provided by 
the foreign government.
    Anniversary month. ``Anniversary month'' means the calendar month in 
which the anniversary of the date of publication of an order or 
suspension of investigation occurs.
    APO. ``APO'' means an administrative protective order described in 
section 777(c)(1) of the Act.
    Applicant. ``Applicant'' means a representative of an interested 
party that has applied for access to business proprietary information 
under an administrative protective order.
    Article 4/Article 7 Review. ``Article 4/Article 7 review'' means a 
review under section 751(g)(2) of the Act.
    Article 8 violation review. ``Article 8 violation review'' means a 
review under section 751(g)(1) of the Act.
    Authorized applicant. ``Authorized applicant'' means an applicant 
that the Secretary has authorized to receive business proprietary 
information under an APO under section 777(c)(1) of the Act.
    Changed circumstances review. ``Changed circumstances review'' means 
a review under section 751(b) of the Act.
    Consumed in the production process. Inputs ``consumed in the 
production process'' are inputs physically incorporated, energy, fuels 
and oil used in the production process and catalysts which are consumed 
in the course of their use to obtain the product.
    Cumulative indirect tax. ``Cumulative indirect tax'' means a multi-
staged tax levied where there is no mechanism for subsequent crediting 
of the tax if the goods or services subject to tax at one stage of 
production are used in a succeeding stage of production.
    Customs Service. ``Customs Service'' means the United States Customs 
Service of the United States Department of the Treasury.
    Department. ``Department'' means the United States Department of 
Commerce.
    Direct tax. ``Direct tax'' means a tax on wages, profits, interests, 
rents, royalties, and all other forms of income, a tax on the ownership 
of real property, or a social welfare charge.
    Domestic interested party. ``Domestic interested party'' means an 
interested party described in subparagraph (C), (D), (E), (F), or (G) of 
section 771(9) of the Act.

[[Page 194]]

    Expedited antidumping review. ``Expedited antidumping review'' means 
a review under section 736(c) of the Act.
    Expedited sunset review. ``Expedited sunset review'' means an 
expedited sunset review conducted by the Department where respondent 
interested parties provide inadequate responses to a notice of 
initiation under section 751(c)(3)(B) of the Act and Sec. 
351.218(e)(1)(ii).
    Export insurance. ``Export insurance'' includes, but is not limited 
to, insurance against increases in the cost of exported products, 
nonpayment by the customer, inflation, or exchange rate risks.
    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.
    Fair value. ``Fair value'' is a term used during an antidumping 
investigation, and is an estimate of normal value.
    Firm. For purposes of subpart E (Identification and Measurement of 
Countervailable Subsidies), ``firm'' is used to refer to the recipient 
of an alleged countervailable subsidy, including any individual, 
company, partnership, corporation, joint venture, association, 
organization, or other entity.
    Full sunset review. ``Full sunset review'' means a full sunset 
review conducted by the Department under section 751(c)(5) of the Act 
where both domestic interested parties and respondent interested parties 
provide adequate response to a notice of initiation under section 
751(c)(3)(B) of the Act and Sec. Sec. 351.218(e)(1)(i) and 
351.218(e)(1)(ii).
    Government-provided. ``Government-provided'' is a shorthand 
expression for an act or practice that is alleged to be a 
countervailable subsidy. The use of the term ``government-provided'' is 
not intended to preclude the possibility that a government may provide a 
countervailable subsidy indirectly in a manner described in section 
771(5)(B)(iii) of the Act (indirect financial contribution).
    Import charge. ``Import charge'' means a tariff, duty, or other 
fiscal charge that is levied on imports, other than an indirect tax.
    Importer. ``Importer'' means the person by whom, or for whose 
account, subject merchandise is imported.
    Indirect tax. ``Indirect tax'' means a sales, excise, turnover, 
value added, franchise, stamp, transfer, inventory, or equipment tax, a 
border tax, or any other tax other than a direct tax or an import 
charge.
    Investigation. Under the Act and this Part, there is a distinction 
between an antidumping or countervailing duty investigation and a 
proceeding. An ``investigation'' is that segment of a proceeding that 
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.
    Loan. ``Loan'' means a loan or other form of debt financing, such as 
a bond.
    Long-term loan. ``Long-term loan'' means a loan, the terms of 
repayment for which are greater than one year.
    New shipper review. ``New shipper review'' means a review under 
section 751(a)(2) of the Act.
    Order. An ``order'' is an order issued by the Secretary under 
section 303, section 706, or section 736 of the Act or a finding under 
the Antidumping Act, 1921.
    Ordinary course of trade. ``Ordinary course of trade'' has the same 
meaning as in section 771(15) of the Act. The Secretary may consider 
sales or transactions to be outside the ordinary course of trade if the 
Secretary determines, based on an evaluation of all of the circumstances 
particular to the sales in question, that such sales or transactions 
have characteristics that are extraordinary for the market in question. 
Examples of sales that the Secretary might consider as being outside the 
ordinary course of trade are sales or transactions involving off-quality 
merchandise or merchandise

[[Page 195]]

produced according to unusual product specifications, merchandise sold 
at aberrational prices or with abnormally high profits, merchandise sold 
pursuant to unusual terms of sale, or merchandise sold to an affiliated 
party at a non-arm's length price.
    Party to the proceeding. ``Party to the proceeding'' means any 
interested party that actively participates, through written submissions 
of factual information or written argument, in a segment of a 
proceeding. Participation in a prior segment of a proceeding will not 
confer on any interested party ``party to the proceeding'' status in a 
subsequent segment.
    Person. ``Person'' includes any interested party as well as any 
other individual, enterprise, or entity, as appropriate.
    Price adjustment. ``Price adjustment'' means any change in the price 
charged for subject merchandise or the foreign like product, such as 
discounts, rebates and post-sale price adjustments, that are reflected 
in the purchaser's net outlay.
    Prior-stage indirect tax. ``Prior-stage indirect tax'' means an 
indirect tax levied on goods or services used directly or indirectly in 
making a product.
    Proceeding. A ``proceeding'' begins on the date of the filing of a 
petition under section 702(b) or section 732(b) of the Act or the 
publication of a notice of initiation in a self-initiated investigation 
under section 702(a) or section 732(a) of the Act, 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.
    Rates. ``Rates'' means the individual weighted-average dumping 
margins, the individual countervailable subsidy rates, the country-wide 
subsidy rate, or the all-others rate, as applicable.
    Respondent interested party. ``Respondent interested party'' means 
an interested party described in subparagraph (A) or (B) of section 
771(9) of the Act.
    Sale. A ``sale'' includes a contract to sell and a lease that is 
equivalent to a sale.
    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 determinations under title 
VII of the Act and this Part.
    Section 753 review. ``Section 753 review'' means a review under 
section 753 of the Act.
    Section 762 review. ``Section 762 review'' means a review under 
section 762 of the Act.
    Segment of proceeding.
    (1) In general. An antidumping or countervailing duty proceeding 
consists of one or more segments. ``Segment of a proceeding'' or 
``segment of the proceeding'' refers to a portion of the proceeding that 
is reviewable under section 516A of the Act.
    (2) Examples. An antidumping or countervailing duty investigation or 
a review of an order or suspended investigation, or a scope inquiry 
under Sec. 351.225, each would constitute a segment of a proceeding.
    Short-term loan. ``Short-term loan'' means a loan, the terms of 
repayment for which are one year or less.
    Sunset review. ``Sunset review'' means a review under section 751(c) 
of the Act.
    Suspension of liquidation. ``Suspension of liquidation'' refers to a 
suspension of liquidation ordered by the Secretary under the authority 
of title VII of the Act, the provisions of this Part, or section 
516a(g)(5)(C) of the Act, or by a court of the United States in a 
lawsuit involving action taken, or not taken, by the Secretary under 
title VII of the Act or the provisions of this Part.
    Third country. For purposes of subpart D, ``third country'' means a 
country other than the exporting country and the United States. Under 
section 773(a) of the Act and subpart D, in certain circumstances the 
Secretary may determine normal value on the basis of sales to a third 
country.

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    URAA. ``URAA'' means the Uruguay Round Agreements Act.

[62 FR 27379, May 19, 1997, as amended at 63 FR 13520, Mar. 20, 1998; 63 
FR 65407, Nov. 25, 1998]



Sec. 351.103  Central Records Unit and Administrative Protective Order
Unit.

    (a) Import Administration's Central Records Unit maintains a Public 
File Room in Room B-099 and a Dockets Center in Room 1870, U.S. 
Department of Commerce, Pennsylvania Avenue and 14th Street, NW., 
Washington, D.C. 20230. The office hours of the Public File Room and 
Dockets Center are between 8:30 a.m. and 5:00 p.m. on business days. 
Among other things, the Central Records Unit is responsible for 
maintaining an official and public record for each antidumping and 
countervailing duty proceeding (see Sec. 351.104), the Subsidies 
Library (see section 775(2) and section 777(a)(1) of the Act), and the 
service list for each proceeding (see paragraph (c) of this section).
    (b) Filing of documents with the Department. While persons are free 
to provide Department officials with courtesy copies of documents, no 
document will be considered as having been received by the Secretary 
unless it is submitted to the Import Administration Dockets Center in 
Room 1870 and is stamped with the date and time of receipt.
    (c) Service list. The Central Records Unit will maintain and make 
available a service list for each segment of a proceeding. Each 
interested party that asks to be included on the service list for a 
segment of a proceeding must designate a person to receive service of 
documents filed in that segment. The service list for an application for 
a scope ruling is described in Sec. 351.225(n).
    (d) Import Administration's Administrative Protective Order Unit 
(APO Unit) is located in Room 1870, U.S. Department of Commerce, 
Pennsylvania Avenue and 14th Street, N.W., Washington, D.C. 20230. The 
office hours of the APO Unit are between 8:30 a.m. and 5:00 p.m. on 
business days. Among other things, the APO Unit is responsible for 
issuing administrative protective orders (APOs), maintaining the APO 
service list, releasing business proprietary information under APO, and 
APO violation investigations. The APO Unit also is the contact point for 
questions and concerns regarding claims for business proprietary 
treatment of information and proper public versions of submissions under 
Sec. 351.105 and Sec. 351.304.

[63 FR 24401, May 4, 1998]



Sec. 351.104  Record of proceedings.

    (a) Official record--(1) In general. The Secretary will maintain in 
the Central Records Unit an official record of each antidumping and 
countervailing duty proceeding. The Secretary will include in the 
official record all factual information, written argument, or other 
material developed by, presented to, or obtained by the Secretary during 
the course of a proceeding that pertains to the proceeding. The official 
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 official record will 
contain material that is public, business proprietary, privileged, and 
classified. For purposes of section 516A(b)(2) of the Act, the record is 
the official record of each segment of the proceeding.
    (2) Material returned. (i) The Secretary, in making any 
determination under this part, will not use factual information, written 
argument, or other material that the Secretary returns to the submitter.
    (ii) The official record will include a copy of a returned document, 
solely for purposes of establishing and documenting the basis for 
returning the document to the submitter, if the document was returned 
because:
    (A) The document, although otherwise timely, contains untimely filed 
new factual information (see Sec. 351.301(b));
    (B) The submitter made a nonconforming request for business 
proprietary treatment of factual information (see Sec. 351.304);
    (C) The Secretary denied a request for business proprietary 
treatment of factual information (see Sec. 351.304);

[[Page 197]]

    (D) The submitter is unwilling to permit the disclosure of business 
proprietary information under APO (see Sec. 351.304).
    (iii) In no case will the official record include any document that 
the Secretary returns to the submitter as untimely filed, or any 
unsolicited questionnaire response unless the response is a voluntary 
response accepted under Sec. 351.204(d) (see Sec. 351.302(d)).
    (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 contained in the official record (see paragraph (a) of 
this section) that the Secretary decides is public information under 
Sec. 351.105(b), government memoranda or portions of memoranda that the 
Secretary decides may be disclosed to the general public, and 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. 351.103). 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. 351.105  Public, business proprietary, privileged, and 
classified information.

    (a) Introduction. There are four categories of information in an 
antidumping or countervailing duty proceeding: public, business 
proprietary, privileged, and classified. In general, public information 
is information that may be made available to the public, whereas 
business proprietary information may be disclosed (if at all) only to 
authorized applicants under an APO. Privileged and classified 
information may not be disclosed at all, even under an APO. This section 
describes the four categories of information.
    (b) 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 as business 
proprietary by the person submitting it;
    (3) Factual information that, although designated as business 
proprietary by the person submitting it, is in a form that cannot be 
associated with or otherwise used to identify activities of a particular 
person or that the Secretary determines is not properly designated as 
business proprietary;
    (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 as business proprietary.
    (c) Business proprietary information. The Secretary normally will 
consider the following factual information to be business 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 components of prices, such as transportation, if based on published 
schedules, dates of sale, product descriptions (other than business or 
trade secrets described in paragraph (c)(1) of this section), or order 
numbers);
    (6) 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) In an antidumping proceeding, the exact amount of the dumping 
margin on individual sales;
    (8) In a countervailing duty proceeding, the exact amount of the 
benefit applied for or received by a person from each of the programs 
under investigation or review (but not descriptions of the operations of 
the programs, or

[[Page 198]]

the amount if included in official public statements or documents or 
publications, or the ad valorem countervailable subsidy rate calculated 
for each person under a program);
    (9) The names of particular persons from whom business proprietary 
information was obtained;
    (10) The position of a domestic producer or workers regarding a 
petition; and
    (11) Any other specific business information the release of which to 
the public would cause substantial harm to the competitive position of 
the submitter.
    (d) 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. Privileged 
information is exempt from disclosure to the public or to 
representatives of interested parties.
    (e) Classified information. Classified information is information 
that is classified under Executive Order No. 12356 of April 2, 1982 (47 
FR 14874 and 15557, 3 CFR 1982 Comp. p. 166) or successor executive 
order, if applicable. Classified information is exempt from disclosure 
to the public or to representatives of interested parties.



Sec. 351.106  De minimis net countervailable subsidies and 
weighted-average dumping margins disregarded.

    (a) Introduction. Prior to the enactment of the URAA, the Department 
had a well-established and judicially sanctioned practice of 
disregarding net countervailable subsidies or weighted-average dumping 
margins that were de minimis. The URAA codified in the Act the 
particular de minimis standards to be used in antidumping and 
countervailing duty investigations. This section discussed the 
application of the de minimis standards in antidumping or countervailing 
duty proceedings.
    (b) Investigations--(1) In general. In making a preliminary or final 
antidumping or countervailing duty determination in an investigation 
(see sections 703(b), 733(b), 705(a), and 735(a) of the Act), the 
Secretary will apply the de minimis standard set forth in section 
703(b)(4) or section 733(b)(3) of the Act (whichever is applicable).
    (2) Transition rule. (i) If:
    (A) The Secretary resumes an investigation that has been suspended 
(see section 704(i)(1)(B) or section 734(i)(1)(B) of the Act); and
    (B) The investigation was initiated before January 1, 1995, then
    (ii) The Secretary will apply the de minimis standard in effect at 
the time that the investigation was initiated.
    (c) Reviews and other determinations--(1) In general. In making any 
determination other than a preliminary or final antidumping or 
countervailing duty determination in an investigation (see paragraph (b) 
of this section), the Secretary will treat as de minimis any weighted-
average dumping margin or countervailable subsidy rate that is less than 
0.5 percent ad valorem, or the equivalent specific rate.
    (2) Assessment of antidumping duties. The Secretary will instruct 
the Customs Service to liquidate without regard to antidumping duties 
all entries of subject merchandise during the relevant period of review 
made by any person for which the Secretary calculates an assessment rate 
under Sec. 351.212(b)(1) that is less than 0.5 percent ad valorem, or 
the equivalent specific rate.



Sec. 351.107  Cash deposit rates for nonproducing exporters; rates in
antidumping proceedings involving a nonmarket economy country.

    (a) Introduction. This section deals with the establishment of cash 
deposit rates in situations where the exporter is not the producer of 
subject merchandise, the selection of the appropriate cash deposit rate 
in situations where entry documents do not indicate the producer of 
subject merchandise, and the calculation of dumping margins in 
antidumping proceedings involving imports from a nonmarket economy 
country.
    (b) Cash deposit rates for nonproducing exporters--(1) Use of 
combination rates--(i) In general. In the case of subject merchandise 
that is exported to the United States by a company that is not the 
producer of the merchandise, the

[[Page 199]]

Secretary may establish a ``combination'' cash deposit rate for each 
combination of the exporter and its supplying producer(s).
    (ii) Example. A nonproducing exporter (Exporter A) exports to the 
United States subject merchandise produced by Producers X, Y, and Z. In 
such a situation, the Secretary may establish cash deposit rates for 
Exporter A/Producer X, Exporter A/Producer Y, and Exporter A/Producer Z.
    (2) New supplier. In the case of subject merchandise that is 
exported to the United States by a company that is not the producer of 
the merchandise, if the Secretary has not established previously a 
combination cash deposit rate under paragraph (b)(1)(i) of this section 
for the exporter and producer in question or a noncombination rate for 
the exporter in question, the Secretary will apply the cash deposit rate 
established for the producer. If the Secretary has not previously 
established a cash deposit rate for the producer, the Secretary will 
apply the ``all-others rate'' described in section 705(c)(5) or section 
735(c)(5) of the Act, as the case may be.
    (c) Producer not identified--(1) In general. In situations where 
entry documents do not identify the producer of subject merchandise, if 
the Secretary has not established previously a noncombination rate for 
the exporter, the Secretary may instruct the Customs Service to apply as 
the cash deposit rate the higher of:
    (i) the highest of any combination cash deposit rate established for 
the exporter under paragraph (b)(1)(i) of this section;
    (ii) the highest cash deposit rate established for any producer 
other than a producer for which the Secretary established a combination 
rate involving the exporter in question under paragraph (b)(1)(i) of 
this section; or
    (iii) the ``all-others rate'' described in section 705(c)(5) or 
section 735(c)(5) of the Act, as the case may be.
    (2) [Reserved]
    (d) Rates in antidumping proceedings involving nonmarket economy 
countries. In an antidumping proceeding involving imports from a 
nonmarket economy country, ``rates'' may consist of a single dumping 
margin applicable to all exporters and producers.



        Subpart B_Antidumping and Countervailing Duty Procedures



Sec. 351.201  Self-initiation.

    (a) Introduction. Antidumping and countervailing duty investigations 
may be initiated as the result of a petition filed by a domestic 
interested party or at the Secretary's own initiative. This section 
contains rules regarding the actions the Secretary will take when the 
Secretary self-initiates an investigation.
    (b) In general. When the Secretary self-initiates an investigation 
under section 702(a) or section 732(a) of the Act, the Secretary will 
publish in the Federal Register notice of ``Initiation of Antidumping 
(Countervailing Duty) Investigation.'' In addition, the Secretary will 
notify the Commission at the time of initiation of the investigation, 
and will make available to employees of the Commission directly involved 
in the proceeding the information upon which the Secretary based the 
initiation and which the Commission may consider relevant to its injury 
determination.
    (c) Persistent dumping monitoring. To the extent practicable, the 
Secretary will expedite any antidumping investigation initiated as the 
result of a monitoring program established under section 732(a)(2) of 
the Act.



Sec. 351.202  Petition requirements.

    (a) Introduction. The Secretary normally initiates antidumping and 
countervailing duty investigations based on petitions filed by a 
domestic interested party. This section contains rules concerning the 
contents of a petition, filing requirements, notification of foreign 
governments, pre-initiation communications with the Secretary, and 
assistance to small businesses in preparing petitions. Petitioners are 
also advised to refer to the Commission's regulations concerning the 
contents of petitions, currently 19 CFR 207.11.
    (b) Contents of petition. A petition requesting the imposition of 
antidumping or countervailing duties must contain the following, to the 
extent reasonably available to the petitioner:

[[Page 200]]

    (1) The name, address, and telephone number 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, addresses, and telephone numbers of all 
other known persons in the industry;
    (3) Information relating to the degree of industry support for the 
petition, including:
    (i) The total volume and value of U.S. production of the domestic 
like product; and
    (ii) The volume and value of the domestic like product produced by 
the petitioner and each domestic producer identified;
    (4) A statement indicating whether the petitioner has filed for 
relief from imports of the subject merchandise under section 337 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);
    (5) A detailed description of the subject merchandise that defines 
the requested scope of the investigation, including the technical 
characteristics and uses of the merchandise and its current U.S. tariff 
classification number;
    (6) The name of the country in which the subject merchandise is 
manufactured or produced and, if the merchandise is imported from a 
country other than the country of manufacture or production, the name of 
any intermediate country from which the merchandise is imported;
    (7) (i) In the case of an antidumping proceeding:
    (A) The names and addresses of each person the petitioner believes 
sells the subject merchandise at less than fair value and the proportion 
of total exports to the United States that 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);
    (B) All factual information (particularly documentary evidence) 
relevant to the calculation of the export price and the constructed 
export price of the subject merchandise and the normal value of the 
foreign like product (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 country of production of the 
subject merchandise);
    (C) If the merchandise is from a country that the Secretary has 
found to be a nonmarket economy country, factual information relevant to 
the calculation of normal value, using a method described in Sec. 
351.408; or
    (ii) In the case of a countervailing duty proceeding:
    (A) The names and addresses of each person the petitioner believes 
benefits from a countervailable subsidy and exports the subject 
merchandise to the United States and the proportion of total exports to 
the United States that 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);
    (B) The alleged countervailable subsidy and factual information 
(particularly documentary evidence) relevant to the alleged 
countervailable subsidy, including any law, regulation, or decree under 
which it is provided, the manner in which it is paid, and the value of 
the subsidy to exporters or producers of the subject merchandise;
    (C) If the petitioner alleges an upstream subsidy under section 771A 
of the Act, factual information regarding:
    (1) Countervailable subsidies, other than an export subsidy, that an 
authority of the affected country provides to the upstream supplier;
    (2) The competitive benefit the countervailable subsidies bestow on 
the subject merchandise; and
    (3) The significant effect the countervailable subsidies have on the 
cost of producing the subject merchandise;
    (8) The volume and value of the subject merchandise imported during 
the most recent two-year period and any other recent period that the 
petitioner believes to be more representative or,

[[Page 201]]

if the subject merchandise was not imported during the two-year period, 
information as to the likelihood of its sale for importation;
    (9) The name, address, and telephone number of each person the 
petitioner believes imports or, if there were no importations, is likely 
to import the subject merchandise;
    (10) Factual information regarding material injury, threat of 
material injury, or material retardation, and causation;
    (11) If the petitioner alleges ``critical circumstances'' under 
section 703(e)(1) or section 733(e)(1) of the Act and Sec. 351.206, 
factual information regarding:
    (i) Whether imports of the subject merchandise are likely to 
undermine seriously the remedial effect of any order issued under 
section 706(a) or section 736(a) of the Act;
    (ii) Massive imports of the subject merchandise in a relatively 
short period; and
    (iii) (A) In an antidumping proceeding, either:
    (1) A history of dumping; or
    (2) The importer's knowledge that the exporter was selling the 
subject merchandise at less than its fair value, and that there would be 
material injury by reason of such sales; or
    (B) In a countervailing duty proceeding, whether the countervailable 
subsidy is inconsistent with the Subsidies Agreement; and
    (12) Any other factual information on which the petitioner relies.
    (c) Simultaneous filing and certification. 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. Factual 
information in the petition must be certified, as provided in Sec. 
351.303(g). Other filing requirements are set forth in Sec. 351.303.
    (d) Business proprietary status of information. The Secretary will 
treat as business proprietary any factual information for which the 
petitioner requests business proprietary treatment and which meets the 
requirements of Sec. 351.304.
    (e) Amendment of petition. The Secretary may 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. If the amendment consists of 
new allegations, the timeliness of the new allegations will be governed 
by Sec. 351.301.
    (f) Notification of representative of the exporting country. Upon 
receipt of a petition, the Secretary will deliver a public version of 
the petition (see Sec. 351.304(c)) to a representative in Washington, 
DC, of the government of any exporting country named in the petition.
    (g) Petition based upon derogation of an international undertaking 
on official export credits. In the case of a petition described in 
section 702(b)(3) of the Act, the petitioner must file a copy of the 
petition with the Secretary of the Treasury, as well as with the 
Secretary and the Commission, and must so certify in submitting the 
petition to the Secretary.
    (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 section 702(c)(1)(A) or section 732(c)(1)(A) of the Act 
(whichever is applicable) (see Sec. 351.203).
    (2) For additional information concerning petitions, contact the 
Director for Policy and Analysis, Import Administration, International 
Trade Administration, Room 3093, U.S. Department of Commerce, 
Pennsylvania Avenue and 14th Street, NW, Washington, DC 20230; (202) 
482-1768.
    (i) Pre-initiation communications--(1) In general. During the period 
before the Secretary's decision whether to initiate an investigation, 
the Secretary will not consider the filing of a notice of appearance to 
constitute a communication for purposes of section 702(b)(4)(B) or 
section 732(b)(3)(B) of the Act.
    (2) Consultations with foreign governments in countervailing duty 
proceedings. In a countervailing duty proceeding, the Secretary will 
invite the government of any exporting country named in the petition for 
consultations with

[[Page 202]]

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



Sec. 351.203  Determination of sufficiency of petition.

    (a) Introduction. When a petition is filed under Sec. 351.202, the 
Secretary must determine that the petition satisfies the relevant 
statutory requirements before initiating an antidumping or 
countervailing duty investigation. This section sets forth rules 
regarding a determination as to the sufficiency of a petition (including 
the determination that a petition is supported by the domestic 
industry), the deadline for making the determination, and the actions to 
be taken once the Secretary has made the determination.
    (b) Determination of sufficiency--(1) In general. Normally, not 
later than 20 days after a petition is filed, the Secretary, on the 
basis of sources readily available to the Secretary, will examine the 
accuracy and adequacy of the evidence provided in the petition and 
determine whether to initiate an investigation under section 
702(c)(1)(A) or section 732(c)(1)(A) of the Act (whichever is 
applicable).
    (2) Extension where polling required. If the Secretary is required 
to poll or otherwise determine support for the petition under section 
702(c)(4)(D) or section 732(c)(4)(D) of the Act, the Secretary may, in 
exceptional circumstances, extend the 20-day period by the amount of 
time necessary to collect and analyze the required information. In no 
case will the period between the filing of a petition and the 
determination whether to initiate an investigation exceed 40 days.
    (c) Notice of initiation and distribution of petition--(1) Notice of 
initiation. If the initiation determination of the Secretary under 
section 702(c)(1)(A) or section 732(c)(1)(A) of the Act is affirmative, 
the Secretary will initiate an investigation and publish in the Federal 
Register notice of ``Initiation of Antidumping (Countervailing Duty) 
Investigation.'' The Secretary will notify the Commission at the time of 
initiation of the investigation and will make available to employees of 
the Commission directly involved in the proceeding the information upon 
which the Secretary based the initiation and which the Commission may 
consider relevant to its injury determinations.
    (2) Distribution of petition. As soon as practicable after 
initiation of an investigation, the Secretary will provide a public 
version of the petition to all known exporters (including producers who 
sell for export to the United States) of the subject merchandise. If the 
Secretary determines that there is a particularly large number of 
exporters involved, instead of providing the public version to all known 
exporters, the Secretary may provide the public version to a trade 
association of the exporters or, alternatively, may consider the 
requirement of the preceding sentence to have been satisfied by the 
delivery of a public version of the petition to the government of the 
exporting country under Sec. 351.202(f).
    (d) Insufficiency of petition. If an initiation determination of the 
Secretary under section 702(c)(1)(A) or section 732(c)(1)(A) of the Act 
is negative, the Secretary will dismiss the petition, terminate the 
proceeding, notify the petitioner in writing of the reasons for the 
determination, and publish in the Federal Register notice of ``Dismissal 
of Antidumping (Countervailing Duty) Petition.''
    (e) Determination of industry support. In determining industry 
support for a petition under section 702(c)(4) or section 732(c)(4) of 
the Act, the following rules will apply:
    (1) Measuring production. The Secretary normally will measure 
production over a twelve-month period specified by the Secretary, and 
may measure production based on either value or volume. Where a party to 
the proceeding establishes that production data for the relevant period, 
as specified by the Secretary, is unavailable, production levels may be 
established by reference to alternative data that the Secretary 
determines to be indicative of production levels.
    (2) Positions treated as business proprietary information. Upon 
request, the Secretary may treat the position of a

[[Page 203]]

domestic producer or workers regarding the petition and any production 
information supplied by the producer or workers as business proprietary 
information under Sec. 351.105(c)(10).
    (3) Positions expressed by workers. The Secretary will consider the 
positions of workers and management regarding the petition to be of 
equal weight. The Secretary will assign a single weight to the positions 
of both workers and management according to the production of the 
domestic like product of the firm in which the workers and management 
are employed. If the management of a firm expresses a position in direct 
opposition to the position of the workers in that firm, the Secretary 
will treat the production of that firm as representing neither support 
for, nor opposition to, the petition.
    (4) Certain positions disregarded. (i) The Secretary will disregard 
the position of a domestic producer that opposes the petition if such 
producer is related to a foreign producer or to a foreign exporter under 
section 771(4)(B)(ii) of the Act, unless such domestic producer 
demonstrates to the Secretary's satisfaction that its interests as a 
domestic producer would be adversely affected by the imposition of an 
antidumping order or a countervailing duty order, as the case may be; 
and
    (ii) The Secretary may disregard the position of a domestic producer 
that is an importer of the subject merchandise, or that is related to 
such an importer, under section 771(4)(B)(ii) of the Act.
    (5) Polling the industry. In conducting a poll of the industry under 
section 702(c)(4)(D)(i) or section 732(c)(4)(D)(i) of the Act, the 
Secretary will include unions, groups of workers, and trade or business 
associations described in paragraphs (9)(D) and (9)(E) of section 771 of 
the Act.
    (f) Time limits where petition involves same merchandise as that 
covered by an order that has been revoked. Under section 702(c)(1)(C) or 
section 732(c)(1)(C) of the Act, and in expediting an investigation 
involving subject merchandise for which a prior order was revoked or a 
suspended investigation was terminated, the Secretary will consider 
``section 751(d)'' as including a predecessor provision.



Sec. 351.204  Time periods and persons examined; voluntary respondents;
exclusions.

    (a) Introduction. Because the Act does not specify the precise 
period of time that the Secretary should examine in an antidumping or 
countervailing duty investigation, this section sets forth rules 
regarding the period of investigation (``POI''). In addition, this 
section includes rules regarding the selection of persons to be 
examined, the treatment of voluntary respondents that are not selected 
for individual examination, and the exclusion of persons that the 
Secretary ultimately finds are not dumping or are not receiving 
countervailable subsidies.
    (b) Period of investigation--(1) Antidumping investigation. In an 
antidumping investigation, the Secretary normally will examine 
merchandise sold during the four most recently completed fiscal quarters 
(or, in an investigation involving merchandise imported from a nonmarket 
economy country, the two most recently completed fiscal quarters) as of 
the month preceding the month in which the petition was filed or in 
which the Secretary self-initiated an investigation. However, the 
Secretary may examine merchandise sold during any additional or 
alternate period that the Secretary concludes is appropriate.
    (2) Countervailing duty investigation. In a countervailing duty 
investigation, the Secretary normally will rely on information 
pertaining to the most recently completed fiscal year for the government 
and exporters or producers in question. If the exporters or producers 
have different fiscal years, the Secretary normally will rely on 
information pertaining to the most recently completed calendar year. If 
the investigation is conducted on an aggregate basis under section 
777A(e)(2)(B) of the Act, the Secretary normally will rely on 
information pertaining to the most recently completed fiscal year for 
the government in question. However, the Secretary may rely on 
information for any additional or alternate period that the Secretary 
concludes is appropriate.

[[Page 204]]

    (c) Exporters and producers examined--(1) In general. In an 
investigation, the Secretary will attempt to determine an individual 
weighted-average dumping margin or individual countervailable subsidy 
rate for each known exporter or producer of the subject merchandise. 
However, the Secretary may decline to examine a particular exporter or 
producer if that exporter or producer and the petitioner agree.
    (2) Limited investigation. Notwithstanding paragraph (c)(1) of this 
section, the Secretary may limit the investigation by using a method 
described in subsection (a), (c), or (e) of section 777A of the Act.
    (d) Voluntary respondents--(1) In general. If the Secretary limits 
the number of exporters or producers to be individually examined under 
section 777A(c)(2) or section 777A(e)(2)(A) of the Act, the Secretary 
will examine voluntary respondents (exporters or producers, other than 
those initially selected for individual examination) in accordance with 
section 782(a) of the Act.
    (2) Acceptance of voluntary respondents. The Secretary will 
determine, as soon as practicable, whether to examine a voluntary 
respondent individually. A voluntary respondent accepted for individual 
examination under subparagraph (d)(1) of this section will be subject to 
the same requirements as an exporter or producer initially selected by 
the Secretary for individual examination under section 777A(c)(2) or 
section 777A(e)(2)(A) of the Act, including the requirements of section 
782(a) of the Act and, where applicable, the use of the facts available 
under section 776 of the Act and Sec. 351.308.
    (3) Exclusion of voluntary respondents' rates from all-others rate. 
In calculating an all-others rate under section 705(c)(5) or section 
735(c)(5) of the Act, the Secretary will exclude weighted-average 
dumping margins or countervailable subsidy rates calculated for 
voluntary respondents.
    (e) Exclusions--(1) In general. The Secretary will exclude from an 
affirmative final determination under section 705(a) or section 735(a) 
of the Act or an order under section 706(a) or section 736(a) of the 
Act, any exporter or producer for which the Secretary determines an 
individual weighted-average dumping margin or individual net 
countervailable subsidy rate of zero or de minimis.
    (2) Preliminary determinations. In an affirmative preliminary 
determination under section 703(b) or section 733(b) of the Act, an 
exporter or producer for which the Secretary preliminarily determines an 
individual weighted-average dumping margin or individual net 
countervailable subsidy of zero or de minimis will not be excluded from 
the preliminary determination or the investigation. However, the 
exporter or producer will not be subject to provisional measures under 
section 703(d) or section 733(d) of the Act.
    (3) Exclusion of nonproducing exporter--(i) In general. In the case 
of an exporter that is not the producer of subject merchandise, the 
Secretary normally will limit an exclusion of the exporter to subject 
merchandise of those producers that supplied the exporter during the 
period of investigation.
    (ii) Example. During the period of investigation, Exporter A exports 
to the United States subject merchandise produced by Producer X. Based 
on an examination of Exporter A, the Secretary determines that the 
dumping margins with respect to these exports are de minimis, and the 
Secretary excludes Exporter A. Normally, the exclusion of Exporter A 
would be limited to subject merchandise produced by Producer X. If 
Exporter A began to export subject merchandise produced by Producer Y, 
this merchandise would be subject to the antidumping duty order, if any.
    (4) Countervailing duty investigations conducted on an aggregate 
basis and requests for exclusion from countervailing duty order. Where 
the Secretary conducts a countervailing duty investigation on an 
aggregate basis under section 777A(e)(2)(B) of the Act, the Secretary 
will consider and investigate requests for exclusion to the extent 
practicable. An exporter or producer that desires exclusion from an 
order must submit:
    (i) A certification by the exporter or producer that it received 
zero or de minimis net countervailable subsidies during the period of 
investigation;

[[Page 205]]

    (ii) If the exporter or producer received a countervailable subsidy, 
calculations demonstrating that the amount of net countervailable 
subsidies received was de minimis during the period of investigation;
    (iii) If the exporter is not the producer of the subject 
merchandise, certifications from the suppliers and producers of the 
subject merchandise that those persons received zero or de minimis net 
countervailable subsidies during the period of the investigation; and
    (iv) A certification from the government of the affected country 
that the government did not provide the exporter (or the exporter's 
supplier) or producer with more than de minimis net countervailable 
subsidies during the period of investigation.



Sec. 351.205  Preliminary determination.

    (a) Introduction. A preliminary determination in an antidumping or 
countervailing duty investigation constitutes the first point at which 
the Secretary may provide a remedy if the Secretary preliminarily finds 
that dumping or countervailable subsidization has occurred. The remedy 
(sometimes referred to as ``provisional measures'') usually takes the 
form of a bonding requirement to ensure payment if antidumping or 
countervailing duties ultimately are imposed. Whether the Secretary's 
preliminary determination is affirmative or negative, the investigation 
continues. This section contains rules regarding deadlines for 
preliminary determinations, postponement of preliminary determinations, 
notices of preliminary determinations, and the effects of affirmative 
preliminary determinations.
    (b) Deadline for preliminary determination. The deadline for a 
preliminary determination under section 703(b) or section 733(b) of the 
Act will be:
    (1) Normally not later than 140 days in an antidumping investigation 
(65 days in a countervailing duty investigation) after the date on which 
the Secretary initiated the investigation (see section 703(b)(1) or 
section 733(b)(1)(A) of the Act);
    (2) Not later than 190 days in an antidumping investigation (130 
days in a countervailing duty investigation) after the date on which the 
Secretary initiated the investigation if the Secretary postpones the 
preliminary determination at petitioner's request or because the 
Secretary determines that the investigation is extraordinarily 
complicated (see section 703(c)(1) or section 733(c)(1) of the Act);
    (3) In a countervailing duty investigation, not later than 250 days 
after the date on which the proceeding began if the Secretary postpones 
the preliminary determination due to an upstream subsidy allegation (up 
to 310 days if the Secretary also postponed the preliminary 
determination at the request of the petitioner or because the Secretary 
determined that the investigation is extraordinarily complicated) (see 
section 703(c)(1) and section 703(g)(1) of the Act);
    (4) Within 90 days after initiation in an antidumping investigation, 
and on an expedited basis in a countervailing duty investigation, where 
verification has been waived (see section 703(b)(3) or section 733(b)(2) 
of the Act);
    (5) In a countervailing duty investigation, on an expedited basis 
and within 65 days after the date on which the Secretary initiated the 
investigation if the sole subsidy alleged in the petition was the 
derogation of an international undertaking on official export credits 
(see section 702(b)(3) and section 703(b)(2) of the Act);
    (6) In a countervailing duty investigation, not later than 60 days 
after the date on which the Secretary initiated the investigation if the 
only subsidy under investigation is a subsidy with respect to which the 
Secretary received notice from the United States Trade Representative of 
a violation of Article 8 of the Subsidies Agreement (see section 
703(b)(5) of the Act); and
    (7) In an antidumping investigation, within the deadlines set forth 
in section 733(b)(1)(B) of the Act if the investigation involves short 
life cycle merchandise (see section 733(b)(1)(B) and section 739 of the 
Act).
    (c) Contents of preliminary determination and publication of notice. 
A preliminary determination will include a preliminary finding on 
critical circumstances, if appropriate, under section 703(e)(1) or 
section 733(e)(1) of the Act (whichever is applicable). The Secretary 
will publish in the Federal

[[Page 206]]

Register notice of ``Affirmative (Negative) Preliminary Antidumping 
(Countervailing Duty) Determination,'' including the rates, if any, and 
an invitation for argument consistent with Sec. 351.309.
    (d) Effect of affirmative preliminary determination. If the 
preliminary determination is affirmative, the Secretary will take the 
actions described in section 703(d) or section 733(d) of the Act 
(whichever is applicable). In making information available to the 
Commission under section 703(d)(3) or section 733(d)(3) of the Act, the 
Secretary will make available to the Commission and to employees of the 
Commission directly involved in the proceeding the information upon 
which the Secretary based the preliminary determination and which the 
Commission may consider relevant to its injury determination.
    (e) Postponement at the request of the petitioner. A petitioner must 
submit a request for postponement of the preliminary determination (see 
section 703(c)(1)(A) or section 733(c)(1)(A) of the Act) 25 days or more 
before the scheduled date of the preliminary determination, and must 
state the reasons for the request. The Secretary will grant the request, 
unless the Secretary finds compelling reasons to deny the request.
    (f) Notice of postponement. (1) If the Secretary decides to postpone 
the preliminary determination at the request of the petitioner or 
because the investigation is extraordinarily complicated, the Secretary 
will notify all parties to the proceeding not later than 20 days before 
the scheduled date of the preliminary determination, and will publish in 
the Federal Register notice of ``Postponement of Preliminary Antidumping 
(Countervailing Duty) Determination,'' stating the reasons for the 
postponement (see section 703(c)(2) or section 733(c)(2) of the Act).
    (2) If the Secretary decides to postpone the preliminary 
determination due to an allegation of upstream subsidies, the Secretary 
will notify all parties to the proceeding not later than the scheduled 
date of the preliminary determination and will publish in the Federal 
Register notice of ``Postponement of Preliminary Countervailing Duty 
Determination,'' stating the reasons for the postponement.



Sec. 351.206  Critical circumstances.

    (a) Introduction. Generally, antidumping or countervailing duties 
are imposed on entries of merchandise made on or after the date on which 
the Secretary first imposes provisional measures (most often the date on 
which notice of an affirmative preliminary determination is published in 
the Federal Register). However, if the Secretary finds that ``critical 
circumstances'' exist, duties may be imposed retroactively on 
merchandise entered up to 90 days before the imposition of provisional 
measures. This section contains procedural and substantive rules 
regarding allegations and findings of critical circumstances.
    (b) In general. If a petitioner submits to the Secretary a written 
allegation of critical circumstances, with reasonably available factual 
information supporting the allegation, 21 days or more before the 
scheduled date of the Secretary's final determination, or on the 
Secretary's own initiative in a self-initiated investigation, the 
Secretary will make a finding whether critical circumstances exist, as 
defined in section 705(a)(2) or section 735(a)(3) of the Act (whichever 
is applicable).
    (c) Preliminary finding. (1) If the petitioner submits an allegation 
of critical circumstances 30 days or more before the scheduled date of 
the Secretary's final determination, 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 
exist, as defined in section 703(e)(1) or section 733(e)(1) of the Act 
(whichever is applicable).
    (2) The Secretary will issue the preliminary finding:
    (i) Not later than the preliminary determination, if the allegation 
is submitted 20 days or more before the scheduled date of the 
preliminary determination; or
    (ii) Within 30 days after the petitioner submits the allegation, if 
the allegation is submitted later than 20 days before the scheduled date 
of the preliminary determination; or

[[Page 207]]

    (iii) If, pursuant to paragraph (i) of this section, the period 
examined for purposes of determining whether critical circumstances 
exists is earlier than normal, the Secretary will issue the preliminary 
finding as early as possible after initiation of the investigation, but 
normally not less than 45 days after the petition was filed. The 
Secretary will notify the Commission and publish in the Federal Register 
notice of the preliminary finding.
    (d) Suspension of liquidation. If the Secretary makes an affirmative 
preliminary finding of critical circumstances, the provisions of section 
703(e)(2) or section 733(e)(2) of the Act (whichever is applicable) 
regarding the retroactive suspension of liquidation will apply.
    (e) Final finding. For any allegation of critical circumstances 
submitted 21 days or more before the scheduled date of the Secretary's 
final determination, the Secretary will make a final finding on critical 
circumstances, and will take appropriate action under section 705(c)(4) 
or section 735(c)(4) of the Act (whichever is applicable).
    (f) Findings in self-initiated investigations. In a self-initiated 
investigation, the Secretary will make preliminary and final findings on 
critical circumstances without regard to the time limits in paragraphs 
(c) and (e) of this section.
    (g) Information regarding critical circumstances. The Secretary may 
request the Commissioner of Customs to compile information on an 
expedited basis regarding entries of the subject merchandise if, at any 
time after the initiation of an investigation, the Secretary makes the 
findings described in section 702(e) or section 732(e) of the Act 
(whichever is applicable) regarding the possible existence of critical 
circumstances.
    (h) Massive imports. (1) In determining whether imports of the 
subject merchandise have been massive under section 705(a)(2)(B) or 
section 735(a)(3)(B) of the Act, 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 ``relatively short 
period'' (see paragraph (i) 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.
    (i) Relatively short period. Under section 705(a)(2)(B) or section 
735(a)(3)(B) of the Act, the Secretary normally will consider a 
``relatively short period'' as the period beginning on the date the 
proceeding begins and ending at least three months later. However, if 
the Secretary finds that importers, or exporters or producers, 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.

[62 FR 27379, May 19, 1997, as amended at 64 FR 48707, Sept. 8, 1999]



Sec. 351.207  Termination of investigation.

    (a) Introduction. ``Termination'' is a term of art that refers to 
the end of an antidumping or countervailing duty proceeding in which an 
order has not yet been issued. The Act establishes a variety of 
mechanisms by which an investigation may be terminated, most of which 
are dealt with in this section. For rules regarding the termination of a 
suspended investigation following a review under section 751 of the Act, 
see Sec. 351.222.
    (b) Withdrawal of petition; self-initiated investigations--(1) In 
general. The Secretary may terminate an investigation under section 
704(a)(1)(A) or section 734(a)(1)(A) (withdrawal of petition) or under 
section 704(k) or section 734(k) (self-initiated investigation) of the 
Act, provided that the Secretary concludes that termination is in the 
public interest. If the Secretary terminates an investigation, the 
Secretary will publish in the Federal Register notice of ``Termination 
of Antidumping (Countervailing Duty) Investigation,'' together with, 
when appropriate, a copy of any correspondence with the petitioner 
forming the basis of the withdrawal and the termination. (For the 
treatment in a subsequent investigation of records compiled in an 
investigation in which the petition was

[[Page 208]]

withdrawn, see section 704(a)(1)(B) or section 734(a)(1)(B) of the Act.)
    (2) Withdrawal of petition based on acceptance of quantitative 
restriction agreements. In addition to the requirements of paragraph 
(b)(1) of this section, if a termination is based on the acceptance of 
an understanding or other kind of agreement to limit the volume of 
imports into the United States of the subject merchandise, the Secretary 
will apply the provisions of section 704(a)(2) or section 734(a)(2) of 
the Act (whichever is applicable) regarding public interest and 
consultations with consuming industries and producers and workers.
    (c) Lack of interest. The Secretary may terminate an investigation 
based upon lack of interest (see section 782(h)(1) of the Act). Where 
the Secretary terminates an investigation under this paragraph, the 
Secretary will publish the notice described in paragraph (b)(1) of this 
section.
    (d) Negative determination. An investigation terminates 
automatically upon publication in the Federal Register of the 
Secretary's negative final determination or the Commission's negative 
preliminary or final determination.
    (e) End of suspension of liquidation. When an investigation 
terminates, 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 referred to in paragraph (b) 
of this section or on the date of publication of a negative 
determination referred to in paragraph (d) of this section, and will 
instruct the Customs Service to release any cash deposit or bond.



Sec. 351.208  Suspension of investigation.

    (a) Introduction. In addition to the imposition of duties, the Act 
also permits the Secretary to suspend an antidumping or countervailing 
duty investigation by accepting a suspension agreement (referred to in 
the WTO Agreements as an ``undertaking''). Briefly, in a suspension 
agreement, the exporters and producers or the foreign government agree 
to modify their behavior so as to eliminate dumping or subsidization or 
the injury caused thereby. If the Secretary accepts a suspension 
agreement, the Secretary will ``suspend'' the investigation and 
thereafter will monitor compliance with the agreement. This section 
contains rules for entering into suspension agreements and procedures 
for suspending an investigation.
    (b) In general. The Secretary may suspend an investigation under 
section 704 or section 734 of the Act and this section.
    (c) Definition of ``substantially all.'' Under section 704 and 
section 734 of the Act, exporters that account for ``substantially all'' 
of the merchandise means exporters and producers that have accounted for 
not less than 85 percent by value or volume of the subject merchandise 
during the period for which the Secretary is measuring dumping or 
countervailable subsidization in the investigation or such other period 
that the Secretary considers representative.
    (d) Monitoring. In monitoring a suspension agreement under section 
704(c), section 734(c), or section 734(l) of the Act (agreements to 
eliminate injurious effects or to restrict the volume of imports), the 
Secretary will not be obliged to ascertain on a continuing basis the 
prices in the United States of the subject merchandise or of domestic 
like products.
    (e) Exports not to increase during interim period. The Secretary 
will not accept a suspension agreement under section 704(b)(2) or 
section 734(b)(1) of the Act (the cessation of exports) unless the 
agreement ensures that the quantity of the subject 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.
    (f) Procedure for suspension of investigation--(1) Submission of 
proposed suspension agreement--(i) In general. As appropriate, the 
exporters and producers or, in an antidumping investigation involving a 
nonmarket economy country or a countervailing duty investigation, the 
government, must submit to the Secretary a proposed suspension agreement 
within:

[[Page 209]]

    (A) In an antidumping investigation, 15 days after the date of 
issuance of the preliminary determination, or
    (B) In a countervailing duty investigation, 7 days after the date of 
issuance of the preliminary determination.
    (ii) Postponement of final determination. Where a proposed 
suspension agreement is submitted in an antidumping investigation, an 
exporter or producer or, in an investigation involving a nonmarket 
economy country, the government, may request postponement of the final 
determination under section 735(a)(2) of the Act (see Sec. 351.210(e)). 
Where the final determination in a countervailing duty investigation is 
postponed under section 703(g)(2) or section 705(a)(1) of the Act (see 
Sec. 351.210(b)(3) and Sec. 351.210(i)), the time limits in paragraphs 
(f)(1)(i), (f)(2)(i), (f)(3), and (g)(1) of this section applicable to 
countervailing duty investigations will be extended to coincide with the 
time limits in such paragraphs applicable to antidumping investigations.
    (iii) Special rule for regional industry determination. If the 
Commission makes a regional industry determination in its final 
affirmative determination under section 705(b) or section 735(b) of the 
Act but not in its preliminary affirmative determination under section 
703(a) or section 733(a) of the Act, the exporters and producers or, in 
an antidumping investigation involving a nonmarket economy country or a 
countervailing duty investigation, the government, must submit to the 
Secretary any proposed suspension agreement within 15 days of the 
publication in the Federal Register of the antidumping or countervailing 
duty order.
    (2) Notification and consultation. In fulfilling the requirements of 
section 704 or section 734 of the Act (whichever is applicable), the 
Secretary will take the following actions:
    (i) In general. The Secretary will notify all parties to the 
proceeding of the proposed suspension of an investigation and provide to 
the petitioner a copy of the suspension agreement preliminarily accepted 
by the Secretary (the agreement must contain the procedures for 
monitoring compliance and a statement of the compatibility of the 
agreement with the requirements of section 704 or section 734 of the 
Act) within:
    (A) In an antidumping investigation, 30 days after the date of 
issuance of the preliminary determination, or
    (B) In a countervailing duty investigation, 15 days after the date 
of issuance of the preliminary determination; or
    (ii) Special rule for regional industry determination. If the 
Commission makes a regional industry determination in its final 
affirmative determination under section 705(b) or section 735(b) of the 
Act but not in its preliminary affirmative determination under section 
703(a) or section 733(a) of the Act, the Secretary, within 15 days of 
the submission of a proposed suspension agreement under paragraph 
(f)(1)(iii) of this section, will notify all parties to the proceeding 
of the proposed suspension agreement and provide to the petitioner a 
copy of the agreement preliminarily accepted by the Secretary (such 
agreement must contain the procedures for monitoring compliance and a 
statement of the compatibility of the agreement with the requirements of 
section 704 or section 734 of the Act); and
    (iii) Consultation. The Secretary will consult with the petitioner 
concerning the proposed suspension of the investigation.
    (3) Opportunity for comment. The Secretary will provide all 
interested parties, an industrial user of the subject merchandise or a 
representative consumer organization, as described in section 777(h) of 
the Act, and United States government agencies an opportunity to submit 
written argument and factual information concerning the proposed 
suspension of the investigation within:
    (i) In an antidumping investigation, 50 days after the date of 
issuance of the preliminary determination,
    (ii) In a countervailing duty investigation, 35 days after the date 
of issuance of the preliminary determination, or
    (iii) In a regional industry case described in paragraph (f)(1)(iii) 
of this section, 35 days after the date of issuance of an order.

[[Page 210]]

    (g) Acceptance of suspension agreement. (1) The Secretary may accept 
an agreement to suspend an investigation within:
    (i) In an antidumping investigation, 60 days after the date of 
issuance of the preliminary determination,
    (ii) In a countervailing duty investigation, 45 days after the date 
of issuance of the preliminary determination, or
    (iii) In a regional industry case described in paragraph (f)(1)(iii) 
of this section, 45 days after the date of issuance of an order.
    (2) If the Secretary accepts an agreement to suspend an 
investigation, the Secretary will take the actions described in section 
704(f), section 704(m)(3), section 734(f), or section 734(l)(3) of the 
Act (whichever is applicable), and will publish in the Federal Register 
notice of ``Suspension of Antidumping (Countervailing Duty) 
Investigation,'' including the text of the agreement. If the Secretary 
has not already published notice of an 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.
    (h) Continuation of investigation. (1) A request to the Secretary 
under section 704(g) or section 734(g) of the Act for the continuation 
of the investigation must be made in writing. In addition, the request 
must be simultaneously filed with the Commission, and the requester must 
so certify in submitting the request to the Secretary.
    (2) If the Secretary and the Commission make affirmative final 
determinations in an investigation that has been continued, the 
suspension agreement will remain in effect in accordance with the 
factual and legal conclusions in the Secretary's final determination. If 
either the Secretary or the Commission makes a negative final 
determination, the agreement will have no force or effect.
    (i) 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 subject merchandise in 
excess of any quantity allowed by a suspension agreement under section 
704 or section 734 of the Act, including any quantity allowed during the 
interim period (see paragraph (e) of this section).
    (2) Imports in excess of the quantity allowed by a suspension 
agreement, including any quantity allowed during the interim period (see 
paragraph (e) of this section), may be exported or destroyed under 
Customs Service supervision, except that if the agreement is under 
section 704(c)(3) or section 734(l) of the Act (restrictions on the 
volume of imports), the excess merchandise, with the approval of the 
Secretary, may be held for future opening under the agreement by placing 
it in a foreign trade zone or by entering it for warehouse.



Sec. 351.209  Violation of suspension agreement.

    (a) Introduction. A suspension agreement remains in effect until the 
underlying investigation is terminated (see Sec. Sec. 351.207 and 
351.222). However, if the Secretary finds that a suspension agreement 
has been violated or no longer meets the requirements of the Act, the 
Secretary may either cancel or revise the agreement. This section 
contains rules regarding cancellation and revision of suspension 
agreements.
    (b) Immediate determination. If the Secretary determines that a 
signatory has violated a suspension agreement, the Secretary, without 
providing interested parties an opportunity to comment, will:
    (1) Order the suspension of liquidation in accordance with section 
704(i)(1)(A) or section 734(i)(1)(A) of the Act (whichever is 
applicable) of all entries of the subject 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 the 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 section 704(g) or 
section

[[Page 211]]

734(g) of the Act, resume the investigation as if the Secretary had 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 subject 
merchandise suspended under paragraph (b)(1) of this section a cash 
deposit or bond at the rates determined in the affirmative preliminary 
determination;
    (3) If the investigation was completed under section 704(g) or 
section 734(g) of the Act, issue an antidumping order or countervailing 
duty order (whichever is applicable) and, for all entries subject to 
suspension of liquidation under paragraph (b)(1) of this section, 
instruct the Customs Service to require for each entry of the 
merchandise suspended under this paragraph a cash deposit at the rates 
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 
(Countervailing Duty) Order (Resumption of Antidumping (Countervailing 
Duty) Investigation); Cancellation of Suspension Agreement.''
    (c) Determination after notice and comment. (1) If the Secretary has 
reason to believe that a signatory has violated a suspension agreement, 
or that an agreement no longer meets the requirements of section 
704(d)(1) or section 734(d) of the Act, but the Secretary does not have 
sufficient information to determine that a signatory has violated the 
agreement (see paragraph (b) of this section), the Secretary will 
publish in the Federal Register notice of ``Invitation for Comment on 
Antidumping (Countervailing Duty) Suspension Agreement.''
    (2) After publication of the notice inviting comment and after 
consideration of comments received the Secretary will:
    (i) Determine whether any signatory has violated the suspension 
agreement; or
    (ii) Determine whether the suspension agreement no longer meets the 
requirements of section 704(d)(1) or section 734(d) of the Act.
    (3) If the Secretary determines that a signatory has violated the 
suspension agreement, the Secretary will take appropriate action as 
described in paragraphs (b)(1) through (b)(5) of this section.
    (4) If the Secretary determines that a suspension agreement no 
longer meets the requirements of section 704(d)(1) or section 734(d) of 
the Act, the Secretary will:
    (i) Take appropriate action as described in paragraphs (b)(1) 
through (b)(5) of this section; except that, under paragraph (b)(1)(ii) 
of this section, the Secretary will order the suspension of liquidation 
of all entries of the subject merchandise entered, or withdrawn from 
warehouse, for consumption on or after the later of:
    (A) 90 days before the date of publication of the notice of 
suspension of liquidation; or
    (B) 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;
    (ii) Continue the suspension of investigation by accepting a revised 
suspension agreement under section 704(b) or section 734(b) of the Act 
(whether or not the Secretary accepted the original agreement under such 
section) that, at the time the Secretary accepts the revised agreement, 
meets the applicable requirements of section 704(d)(1) or section 734(d) 
of the Act, and publish in the Federal Register notice of ``Revision of 
Agreement Suspending Antidumping (Countervailing Duty) Investigation''; 
or
    (iii) Continue the suspension of investigation by accepting a 
revised suspension agreement under section 704(c), section 734(c), or 
section 734(l) of the Act (whether or not the Secretary accepted the 
original agreement under such section) that, at the time the Secretary 
accepts the revised agreement, meets the applicable requirements of 
section 704(d)(1) or section 734(d) of the Act, and publish in the 
Federal Register notice of ``Revision of Agreement Suspending 
Antidumping (Countervailing Duty) Investigation.'' If the

[[Page 212]]

Secretary continues to suspend an investigation based on a revised 
agreement accepted under section 704(c), section 734(c), or section 
734(l) of the Act, the Secretary will order suspension of liquidation to 
begin. The suspension will not end until the Commission completes any 
requested review of the revised agreement under section 704(h) or 
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 704(h) or section 734(h) of the Act, 
the provisions of sections 704(h)(2) and (3) and sections 734(h)(2) and 
(3) of the Act will apply.
    (5) If the Secretary decides neither to consider the suspension 
agreement violated nor to revise the agreement, the Secretary will 
publish in the Federal Register notice of the Secretary's decision under 
paragraph (c)(2) of this section, including a statement of the factual 
and legal conclusions on which the decision is based.
    (d) Additional signatories. If the Secretary decides that a 
suspension agreement no longer will completely eliminate the injurious 
effect of exports to the United States of subject merchandise under 
section 704(c)(1) or section 734(c)(1) of the Act, or that the signatory 
exporters no longer account for substantially all of the subject 
merchandise, the Secretary may revise the agreement to include 
additional signatory exporters.
    (e) Definition of ``violation.'' Under this section, ``violation'' 
means noncompliance with the terms of a suspension agreement caused by 
an act or omission of a signatory, except, at the discretion of the 
Secretary, an act or omission which is inadvertent or inconsequential.



Sec. 351.210  Final determination.

    (a) Introduction. A ``final determination'' in an antidumping or 
countervailing duty investigation constitutes a final decision by the 
Secretary as to whether dumping or countervailable subsidization is 
occurring. If the Secretary's final determination is affirmative, in 
most instances the Commission will issue a final injury determination 
(except in certain countervailing duty investigations). Also, if the 
Secretary's preliminary determination was negative but the final 
determination is affirmative, the Secretary will impose provisional 
measures. If the Secretary's final determination is negative, the 
proceeding, including the injury investigation conducted by the 
Commission, terminates. This section contains rules regarding deadlines 
for, and postponement of, final determinations, contents of final 
determinations, and the effects of final determinations.
    (b) Deadline for final determination. The deadline for a final 
determination under section 705(a)(1) or section 735(a)(1) of the Act 
will be:
    (1) Normally, not later than 75 days after the date of the 
Secretary's preliminary determination (see section 705(a)(1) or section 
735(a)(1) of the Act);
    (2) In an antidumping investigation, not later than 135 days after 
the date of publication of the preliminary determination if the 
Secretary postpones the final determination at the request of:
    (i) The petitioner, if the preliminary determination was negative 
(see section 735(a)(2)(B) of the Act); or
    (ii) Exporters or producers who account for a significant proportion 
of exports of the subject merchandise, if the preliminary determination 
was affirmative (see section 735(a)(2)(A) of the Act);
    (3) In a countervailing duty investigation, not later than 165 days 
after the preliminary determination, if, after the preliminary 
determination, the Secretary decides to investigate an upstream subsidy 
allegation and concludes that additional time is needed to investigate 
the allegation (see section 703(g)(2) of the Act); or
    (4) In a countervailing duty investigation, the same date as the 
date of the final antidumping determination, if:
    (i) In a situation where the Secretary simultaneously initiated 
antidumping and countervailing duty investigations on the subject 
merchandise (from the

[[Page 213]]

same or other countries), the petitioner requests that the final 
countervailing duty determination be postponed to the date of the final 
antidumping determination; and
    (ii) If the final countervailing duty determination is not due on a 
later date because of postponement due to an allegation of upstream 
subsidies under section 703(g) of the Act (see section 705(a)(1) of the 
Act).
    (c) Contents of final determination and publication of notice. The 
final determination will include, if appropriate, a final finding on 
critical circumstances under section 705(a)(2) or section 735(a)(3) of 
the Act (whichever is applicable). The Secretary will publish in the 
Federal Register notice of ``Affirmative (Negative) Final Antidumping 
(Countervailing Duty) Determination,'' including the rates, if any.
    (d) Effect of affirmative final determination. If the final 
determination is affirmative, the Secretary will take the actions 
described in section 705(c)(1) or section 735(c)(1) of the Act 
(whichever is applicable). In addition, in the case of a countervailing 
duty investigation involving subject merchandise from a country that is 
not a Subsidies Agreement country, the Secretary will instruct the 
Customs Service to require a cash deposit, as provided in section 
706(a)(3) of the Act, for each entry of the subject merchandise entered, 
or withdrawn from warehouse, for consumption on or after the date of 
publication of the order under section 706(a) of the Act.
    (e) Request for postponement of final antidumping determination--(1) 
In general. A request to postpone a final antidumping determination 
under section 735(a)(2) of the Act (see paragraph (b)(2) of this 
section) must be submitted in writing within the scheduled date of the 
final determination. The Secretary may grant the request, unless the 
Secretary finds compelling reasons to deny the request.
    (2) Requests by exporters. In the case of a request submitted under 
paragraph (e)(1) of this section by exporters who account for a 
significant proportion of exports of subject merchandise (see section 
735(a)(2)(A) of the Act), the Secretary will not grant the request 
unless those exporters also submit a request described in the last 
sentence of section 733(d) of the Act (extension of provisional measures 
from a 4-month period to not more than 6 months).
    (f) Deferral of decision concerning upstream subsidization to 
review. Notwithstanding paragraph (b)(3) of this section, if the 
petitioner so requests in writing and the preliminary countervailing 
duty determination was affirmative, the Secretary, instead of postponing 
the final determination, may defer a decision concerning upstream 
subsidization until the conclusion of the first administrative review of 
a countervailing duty order, if any (see section 703(g)(2)(B)(i) of the 
Act).
    (g) Notification of postponement. If the Secretary postpones a final 
determination under paragraph (b)(2), (b)(3), or (b)(4) of this section, 
the Secretary will notify promptly all parties to the proceeding of the 
postponement, and will publish in the Federal Register notice of 
``Postponement of Final Antidumping (Countervailing Duty) 
Determination,'' stating the reasons for the postponement.
    (h) Termination of suspension of liquidation in a countervailing 
duty investigation. If the Secretary postpones a final countervailing 
duty determination, the Secretary will 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 will not 
resume it unless and until the Secretary publishes a countervailing duty 
order.
    (i) Postponement of final countervailing duty determination for 
simultaneous investigations. A request by the petitioner to postpone a 
final countervailing duty determination to the date of the final 
antidumping determination must be submitted in writing within five days 
of the date of publication of the preliminary countervailing duty 
determination (see section 705(a)(1) and paragraph (b)(4) of this 
section).
    (j) Commission access to information. If the final determination is 
affirmative, the Secretary will make available to the Commission and to 
employees of the Commission directly involved in the proceeding the 
information upon which the Secretary based the final determination and 
that the Commission

[[Page 214]]

may consider relevant to its injury determination (see section 
705(c)(1)(A) or section 735(c)(1)(A) of the Act).
    (k) Effect of negative final determination. An investigation 
terminates upon publication in the Federal Register of the Secretary's 
or the Commission's negative final determination, and the Secretary will 
take the relevant actions described in section 705(c)(2) or section 
735(c)(2) of the Act (whichever is applicable).



Sec. 351.211  Antidumping order and countervailing duty order.

    (a) Introduction. The Secretary issues an order when both the 
Secretary and the Commission (except in certain countervailing duty 
investigations) have made final affirmative determinations. The issuance 
of an order ends the investigative phase of a proceeding. Generally, 
upon the issuance of an order, importers no longer may post bonds as 
security for antidumping or countervailing duties, but instead must make 
a cash deposit of estimated duties. An order remains in effect until it 
is revoked. This section contains rules regarding the issuance of orders 
in general, as well as special rules for orders where the Commission has 
found a regional industry to exist.
    (b) In general. Not later than seven days after receipt of notice of 
an affirmative final injury determination by the Commission under 
section 705(b) or section 735(b) of the Act, or, in a countervailing 
duty proceeding involving subject merchandise from a country not 
entitled to an injury test (see Sec. 351.101(b)), simultaneously with 
publication of an affirmative final countervailing duty determination by 
the Secretary, the Secretary will publish in the Federal Register an 
``Antidumping Order'' or ``Countervailing Duty Order'' that:
    (1) Instructs the Customs Service to assess antidumping duties or 
countervailing duties (whichever is applicable) on the subject 
merchandise, in accordance with the Secretary's instructions at the 
completion of each review requested under Sec. 351.213(b) 
(administrative review), Sec. 351.214(b) (new shipper review), or Sec. 
351.215(b) (expedited antidumping review), or if a review is not 
requested, in accordance with the Secretary's assessment instructions 
under Sec. 351.212(c);
    (2) Instructs the Customs Service to require a cash deposit of 
estimated antidumping or countervailing duties at the rates included in 
the Secretary's final determination; and
    (3) Orders the suspension of liquidation ended for all entries of 
the subject 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 section 703(d)(2) or section 733(d)(2) of the Act, it 
would have found material injury (see section 706(b) or section 736(b) 
of the Act).



Sec. 351.212  Assessment of antidumping and countervailing duties; 
provisional measures deposit cap; interest on certain overpayments and underpayments.

    (a) Introduction. Unlike the systems of some other countries, the 
United States uses a ``retrospective'' assessment system under which 
final liability for antidumping and countervailing duties is determined 
after merchandise is imported. Generally, the amount of duties to be 
assessed is determined in a review of the order covering a discrete 
period of time. If a review is not requested, duties are assessed at the 
rate established in the completed review covering the most recent prior 
period or, if no review has been completed, the cash deposit rate 
applicable at the time merchandise was entered. This section contains 
rules regarding the assessment of duties, the provisional measures 
deposit cap, and interest on over- or undercollections of estimated 
duties.
    (b) Assessment of antidumping and countervailing duties as the 
result of a review--(1) Antidumping duties. If the Secretary has 
conducted a review of an antidumping order under Sec. 351.213 
(administrative review), Sec. 351.214 (new shipper review), or Sec. 
351.215 (expedited

[[Page 215]]

antidumping review), the Secretary normally will calculate an assessment 
rate for each importer of subject merchandise covered by the review. The 
Secretary normally will calculate the assessment rate by dividing the 
dumping margin found on the subject merchandise examined by the entered 
value of such merchandise for normal customs duty purposes. The 
Secretary then will instruct the Customs Service to assess antidumping 
duties by applying the assessment rate to the entered value of the 
merchandise.
    (2) Countervailing duties. If the Secretary has conducted a review 
of a countervailing duty order under Sec. 351.213 (administrative 
review) or Sec. 351.214 (new shipper review), the Secretary normally 
will instruct the Customs Service to assess countervailing duties by 
applying the rates included in the final results of the review to the 
entered value of the merchandise.
    (c) Automatic assessment of antidumping and countervailing duties if 
no review is requested. (1) If the Secretary does not receive a timely 
request for an administrative review of an order (see paragraph (b)(1), 
(b)(2), or (b)(3) of Sec. 351.213), the Secretary, without additional 
notice, will instruct the Customs Service to:
    (i) Assess antidumping duties or countervailing duties, as the case 
may be, on the subject merchandise described in Sec. 351.213(e) at 
rates equal to the cash deposit of, or bond for, estimated antidumping 
duties or countervailing duties required on that merchandise at the time 
of entry, or withdrawal from warehouse, for consumption; and
    (ii) To continue to collect the cash deposits previously ordered.
    (2) If the Secretary receives a timely request for an administrative 
review of an order (see paragraph (b)(1), (b)(2), or (b)(3) of Sec. 
351.213), the Secretary will instruct the Customs Service to assess 
antidumping duties or countervailing duties, and to continue to collect 
cash deposits, on the merchandise not covered by the request in 
accordance with paragraph (c)(1) of this section.
    (3) The automatic assessment provisions of paragraphs (c)(1) and 
(c)(2) of this section will not apply to subject merchandise that is the 
subject of a new shipper review (see Sec. 351.214) or an expedited 
antidumping review (see Sec. 351.215).
    (d) Provisional measures deposit cap. This paragraph applies to 
subject merchandise entered, or withdrawn from warehouse, for 
consumption before the date of publication of the Commission's notice of 
an affirmative final injury determination or, in a countervailing duty 
proceeding that involves merchandise from a country that is not entitled 
to an injury test, the date of the Secretary's notice of an affirmative 
final countervailing duty determination. If the amount of duties that 
would be assessed by applying the rates included in the Secretary's 
affirmative preliminary or affirmative final antidumping or 
countervailing duty determination (``provisional duties'') is different 
from the amount of duties that would be assessed by applying the 
assessment rate under paragraphs (b)(1) and (b)(2) of this section 
(``final duties''), the Secretary will instruct the Customs Service to 
disregard the difference to the extent that the provisional duties are 
less than the final duties, and to assess antidumping or countervailing 
duties at the assessment rate if the provisional duties exceed the final 
duties.
    (e) Interest on certain overpayments and underpayments. Under 
section 778 of the Act, the Secretary will instruct the Customs Service 
to calculate interest for each entry on or after the publication of the 
order from the date that a cash deposit is required to be deposited for 
the entry through the date of liquidation of the entry.
    (f) Special rule for regional industry cases--(1) In general. If the 
Commission, in its final injury determination, found a regional industry 
under section 771(4)(C) of the Act, the Secretary may direct that duties 
not be assessed on subject merchandise of a particular exporter or 
producer if the Secretary determines that:
    (i) The exporter or producer did not export subject merchandise for 
sale in the region concerned during or after the Department's period of 
investigation;
    (ii) The exporter or producer has certified that it will not export 
subject

[[Page 216]]

merchandise for sale in the region concerned in the future so long as 
the antidumping or countervailing duty order is in effect; and
    (iii) No subject merchandise of the exporter or producer was entered 
into the United States outside of the region and then sold into the 
region during or after the Department's period of investigation.
    (2) Procedures for obtaining an exception from the assessment of 
duties--(i) Request for exception. An exporter or producer seeking an 
exception from the assessment of duties under paragraph (f)(1) of this 
section must request, subject to the provisions of Sec. 351.213 or 
Sec. 351.214, an administrative review or a new shipper review to 
determine whether subject merchandise of the exporter or producer in 
question should be excepted from the assessment of duties under 
paragraph (f)(1) of this section. The exporter or producer making the 
request may request that the review be limited to a determination as to 
whether the requirements of paragraph (f)(1) of this section are 
satisfied. The request for a review must be accompanied by:
    (A) A certification by the exporter or producer that it did not 
export subject merchandise for sale in the region concerned during or 
after the Department's period of investigation, and that it will not do 
so in the future so long as the antidumping or countervailing duty order 
is in effect; and
    (B) A certification from each of the exporter's or producer's U.S. 
importers of the subject merchandise that no subject merchandise of that 
exporter or producer was entered into the United States outside such 
region and then sold into the region during or after the Department's 
period of investigation.
    (ii) Limited review. If the Secretary initiates an administrative 
review or a new shipper review based on a request for review that 
includes a request for an exception from the assessment of duties under 
paragraph (f)(2)(i) of this section, the Secretary, if requested, may 
limit the review to a determination as to whether an exception from the 
assessment of duties should be granted under paragraph (f)(1) of this 
section.
    (3) Exception granted. If, in the final results of the 
administrative review or the new shipper review, the Secretary 
determines that the requirements of paragraph (f)(1) of this section are 
satisfied, the Secretary will instruct the Customs Service to liquidate, 
without regard to antidumping or countervailing duties (whichever is 
appropriate), entries of subject merchandise of the exporter or producer 
concerned.
    (4) Exception not granted. If, in the final results of the 
administrative review or the new shipper review, the Secretary 
determines that the requirements of paragraph (f)(1) are not satisfied, 
the Secretary:
    (i) Will issue assessment instructions to the Customs Service in 
accordance with paragraph (b) of this section; or
    (ii) If the review was limited to a determination as to whether an 
exception from the assessment of duties should be granted, the Secretary 
will instruct the Customs Service to assess duties in accordance with 
paragraph (f)(1) or (f)(2) of this section, whichever is appropriate 
(automatic assessment if no review is requested).



Sec. 351.213  Administrative review of orders and suspension agreements
under section 751(a)(1) of the Act.

    (a) Introduction. As noted in Sec. 351.212(a), the United States 
has a ``retrospective'' assessment system under which final liability 
for antidumping and countervailing duties is determined after 
merchandise is imported. Although duty liability may be determined in 
the context of other types of reviews, the most frequently used 
procedure for determining final duty liability is the administrative 
review procedure under section 751(a)(1) of the Act. This section 
contains rules regarding requests for administrative reviews and the 
conduct of such reviews.
    (b) Request for administrative review. (1) Each year during the 
anniversary month of the publication of an antidumping or countervailing 
duty order, a domestic interested party or an interested party described 
in section 771(9)(B) of the Act (foreign government) may request in 
writing that the Secretary conduct an administrative review under 
section 751(a)(1) of the

[[Page 217]]

Act of specified individual exporters or producers covered by an order 
(except for a countervailing duty order in which the investigation or 
prior administrative review was conducted on an aggregate basis), if the 
requesting person states why the person desires the Secretary to review 
those particular exporters or producers.
    (2) During the same month, an exporter or producer covered by an 
order (except for a countervailing duty order in which the investigation 
or prior administrative review was conducted on an aggregate basis) 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 an exporter or producer (except for a countervailing duty order 
in which the investigation or prior administrative review was conducted 
on an aggregate basis) of the subject merchandise imported by that 
importer.
    (4) Each year during the anniversary month of the publication of a 
suspension of investigation, an interested party may request in writing 
that the Secretary conduct an administrative review of all producers or 
exporters covered by an agreement on which the suspension of 
investigation was based.
    (c) Deferral of administrative review--(1) In general. The Secretary 
may defer the initiation of an administrative review, in whole or in 
part, for one year if:
    (i) The request for administrative review is accompanied by a 
request that the Secretary defer the review, in whole or in part; and
    (ii) None of the following persons objects to the deferral: the 
exporter or producer for which deferral is requested, an importer of 
subject merchandise of that exporter or producer, a domestic interested 
party and, in a countervailing duty proceeding, the foreign government.
    (2) Timeliness of objection to deferral. An objection to a deferral 
of the initiation of administrative review under paragraph (c)(1)(ii) of 
this section must be submitted within 15 days after the end of the 
anniversary month in which the administrative review is requested.
    (3) Procedures and deadlines. If the Secretary defers the initiation 
of an administrative review, the Secretary will publish notice of the 
deferral in the Federal Register. The Secretary will initiate the 
administrative review in the month immediately following the next 
anniversary month, and the deadline for issuing preliminary results of 
review (see paragraph (h)(1) of this section) and submitting factual 
information (see Sec. 351.302(b)(2)) will run from the last day of the 
next anniversary month.
    (d) Rescission of administrative review--(1) Withdrawal of request 
for review. The Secretary will rescind an administrative review under 
this section, in whole or in part, if a party that requested a review 
withdraws the request within 90 days of 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.
    (2) Self-initiated review. The Secretary may rescind an 
administrative review that was self-initiated by the Secretary.
    (3) No shipments. The Secretary may rescind an administrative 
review, in whole or only with respect to a particular exporter or 
producer, if the Secretary concludes that, during the period covered by 
the review, there were no entries, exports, or sales of the subject 
merchandise, as the case may be.
    (4) Notice of rescission. If the Secretary rescinds an 
administrative review (in whole or in part), the Secretary will publish 
in the Federal Register notice of ``Rescission of Antidumping 
(Countervailing Duty) Administrative Review'' or, if appropriate, 
``Partial Rescission of Antidumping (Countervailing Duty) Administrative 
Review.''
    (e) Period of review--(1) Antidumping proceedings. (i) Except as 
provided in paragraph (e)(1)(ii) of this section, an administrative 
review under this section normally will cover, as appropriate, entries, 
exports, or sales of the subject merchandise during the 12 months 
immediately preceding the most recent anniversary month.

[[Page 218]]

    (ii) For requests received during the first anniversary month after 
publication of an order or suspension of investigation, an 
administrative review under 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.
    (2) Countervailing duty proceedings. (i) Except as provided in 
paragraph (e)(2)(ii) of this section, an administrative review under 
this section normally will cover entries or exports of the subject 
merchandise during the most recently completed calendar year. If the 
review is conducted on an aggregate basis, the Secretary normally will 
cover entries or exports of the subject merchandise during the most 
recently completed fiscal year for the government in question.
    (ii) For requests received during the first anniversary month after 
publication of an order or suspension of investigation, an 
administrative review under 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 calendar or fiscal year as described in 
paragraph (e)(2)(i) of this section.
    (f) Voluntary respondents. In an administrative review, the 
Secretary will examine voluntary respondents in accordance with section 
782(a) of the Act and Sec. 351.204(d).
    (g) Procedures. The Secretary will conduct an administrative review 
under this section in accordance with Sec. 351.221.
    (h) Time limits--(1) In general. The Secretary will issue 
preliminary results of review (see Sec. 351.221(b)(4)) within 245 days 
after the last day of the anniversary month of the order or suspension 
agreement for which the administrative review was requested, and final 
results of review (see Sec. 351.221(b)(5)) within 120 days after the 
date on which notice of the preliminary results was published in the 
Federal Register.
    (2) Exception. If the Secretary determines that it is not 
practicable to complete the review within the time specified in 
paragraph (h)(1) of this section, the Secretary may extend the 245-day 
period to 365 days and may extend the 120-day period to 180 days. If the 
Secretary does not extend the time for issuing preliminary results, the 
Secretary may extend the time for issuing final results from 120 days to 
300 days.
    (i) Possible cancellation or revision of suspension agreement. If 
during an administrative review the Secretary determines or has reason 
to believe that a signatory has violated a suspension agreement or that 
the agreement no longer meets the requirements of section 704 or section 
734 of the Act (whichever is applicable), the Secretary will take 
appropriate action under section 704(i) or section 734(i) of the Act and 
Sec. 351.209. The Secretary may suspend the time limit in paragraph (h) 
of this section while taking action under Sec. 351.209.
    (j) Absorption of antidumping duties. (1) During any administrative 
review covering all or part of a period falling between the first and 
second or third and fourth anniversary of the publication of an 
antidumping order under Sec. 351.211, or a determination under Sec. 
351.218(d) (sunset review), the Secretary, if requested by a domestic 
interested party within 30 days of the date of publication of the notice 
of initiation of the review, will determine whether antidumping duties 
have been absorbed by an exporter or producer subject to the review if 
the subject merchandise is sold in the United States through an importer 
that is affiliated with such exporter or producer. The request must 
include the name(s) of the exporter or producer for which the inquiry is 
requested.
    (2) For transition orders defined in section 751(c)(6) of the Act, 
the Secretary will apply paragraph (j)(1) of this section to any 
administrative review initiated in 1996 or 1998.
    (3) In determining under paragraph (j)(1) of this section whether 
antidumping duties have been absorbed, the Secretary will examine the 
antidumping duties calculated in the administrative review in which the 
absorption inquiry is requested.

[[Page 219]]

    (4) The Secretary will notify the Commission of the Secretary's 
determination if:
    (i) In the case of an administrative review other than one to which 
paragraph (j)(2) of this section applies, the administrative review 
covers all or part of a time period falling between the third and fourth 
anniversary month of an order; or
    (ii) In the case of an administrative review to which paragraph 
(j)(2) of this section applies, the Secretary initiated the 
administrative review in 1998.
    (k) Administrative reviews of countervailing duty orders conducted 
on an aggregate basis--(1) Request for zero rate. Where the Secretary 
conducts an administrative review of a countervailing duty on an 
aggregate basis under section 777A(e)(2)(B) of the Act, the Secretary 
will consider and review requests for individual assessment and cash 
deposit rates of zero to the extent practicable. An exporter or producer 
that desires a zero rate must submit:
    (i) A certification by the exporter or producer that it received 
zero or de minimis net countervailable subsidies during the period of 
review;
    (ii) If the exporter or producer received a countervailable subsidy, 
calculations demonstrating that the amount of net countervailable 
subsidies received was de minimis during the period of review;
    (iii) If the exporter is not the producer of the subject 
merchandise, certifications from the suppliers and producers of the 
subject merchandise that those persons received zero or de minimis net 
countervailable subsidies during the period of the review; and
    (iv) A certification from the government of the affected country 
that the government did not provide the exporter (or the exporter's 
supplier) or producer with more than de minimis net countervailable 
subsidies during the period of review.
    (2) Application of country-wide subsidy rate. With the exception of 
assessment and cash deposit rates of zero determined under paragraph 
(k)(1) of this section, if, in the final results of an administrative 
review under this section of a countervailing duty order, the Secretary 
calculates a single country-wide subsidy rate under section 
777A(e)(2)(B) of the Act, that rate will supersede, for cash deposit 
purposes, all rates previously determined in the countervailing duty 
proceeding in question.
    (l) Exception from assessment in regional industry cases. For 
procedures relating to a request for the exception from the assessment 
of antidumping or countervailing duties in a regional industry case, see 
Sec. 351.212(f).



Sec. 351.214  New shipper reviews under section 751(a)(2)(B) of the Act.

    (a) Introduction. The URAA established a new procedure by which so-
called ``new shippers'' can obtain their own individual dumping margin 
or countervailable subsidy rate on an expedited basis. In general, a new 
shipper is an exporter or producer that did not export, and is not 
affiliated with an exporter or producer that did export, to the United 
States during the period of investigation. This section contains rules 
regarding requests for new shipper reviews and procedures for conducting 
such reviews. In addition, this section contains rules regarding 
requests for expedited reviews by noninvestigated exporters in certain 
countervailing duty proceedings and procedures for conducting such 
reviews.
    (b) Request for new shipper review--(1) Requirement of sale or 
export. Subject to the requirements of section 751(a)(2)(B) of the Act 
and this section, an exporter or producer may request a new shipper 
review if it has exported, or sold for export, subject merchandise to 
the United States.
    (2) Contents of request. A request for a new shipper review must 
contain the following:
    (i) If the person requesting the review is both the exporter and 
producer of the merchandise, a certification that the person requesting 
the review did not export subject merchandise to the United States (or, 
in the case of a regional industry, did not export the subject 
merchandise for sale in the region concerned) during the period of 
investigation;
    (ii) If the person requesting the review is the exporter, but not 
the producer, of the subject merchandise:
    (A) The certification described in paragraph (b)(2)(i) of this 
section; and

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    (B) A certification from the person that produced or supplied the 
subject merchandise to the person requesting the review that that 
producer or supplier did not export the subject merchandise to the 
United States (or, in the case of a regional industry, did not export 
the subject merchandise for sale in the region concerned) during the 
period of investigation;
    (iii)(A) A certification that, since the investigation was 
initiated, such exporter or producer has never been affiliated with any 
exporter or producer who exported the subject merchandise to the United 
States (or in the case of a regional industry, who exported the subject 
merchandise for sale in the region concerned) during the period of 
investigation, including those not individually examined during the 
investigation;
    (B) In an antidumping proceeding involving imports from a nonmarket 
economy country, a certification that the export activities of such 
exporter or producer are not controlled by the central government;
    (iv) Documentation establishing:
    (A) 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 
establish the date of first entry, the date on which the exporter or 
producer first shipped the subject merchandise for export to the United 
States;
    (B) The volume of that and subsequent shipments; and
    (C) The date of the first sale to an unaffiliated customer in the 
United States; and
    (v) In the case of a review of a countervailing duty order, a 
certification that the exporter or producer has informed the government 
of the exporting country that the government will be required to provide 
a full response to the Department's questionnaire.
    (c) Deadline for requesting review. An exporter or producer may 
request a new shipper review within one year of the date referred to in 
paragraph (b)(2)(iv)(A) of this section.
    (d) Time for new shipper review--(1) In general. The Secretary will 
initiate a new shipper review under this section in the calendar month 
immediately following the anniversary month or the semiannual 
anniversary month if the request for the review is made during the 6-
month period ending with the end of the anniversary month or the 
semiannual anniversary month (whichever is applicable).
    (2) Semiannual anniversary month. The semiannual anniversary month 
is the calendar month which is 6 months after the anniversary month.
    (3) Example. An order is published in January. The anniversary month 
would be January, and the semiannual anniversary month would be July. If 
the Secretary received a request for a new shipper review at any time 
during the period February-July, the Secretary would initiate a new 
shipper review in August. If the Secretary received a request for a new 
shipper review at any time during the period August-January, the 
Secretary would initiate a new shipper review in February.
    (e) Suspension of liquidation; posting bond or security. When the 
Secretary initiates a new shipper review under this section, the 
Secretary will direct the Customs Service to suspend liquidation of any 
unliquidated entries of the subject merchandise from the relevant 
exporter or producer, and 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 subject merchandise.
    (f) Rescission of new shipper review--(1) Withdrawal of request for 
review. The Secretary may rescind a new shipper review under this 
section, in whole or in part, if a party that requested a review 
withdraws its request not later than 60 days after the date of 
publication of notice of initiation of the requested review.
    (2) Absence of entry and sale to an unaffiliated customer. The 
Secretary may rescind a new shipper review, in whole or in part, if the 
Secretary concludes that:
    (i) As of the end of the normal period of review referred to in 
paragraph (g) of this section, there has not been an entry and sale to 
an unaffiliated customer in the United States of subject merchandise; 
and

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    (ii) An expansion of the normal period of review to include an entry 
and sale to an unaffiliated customer in the United States of subject 
merchandise would be likely to prevent the completion of the review 
within the time limits set forth in paragraph (i) of this section.
    (3) Notice of Rescission. If the Secretary rescinds a new shipper 
review (in whole or in part), the Secretary will publish in the Federal 
Register notice of ``Rescission of Antidumping (Countervailing Duty) New 
Shipper Review'' or, if appropriate, ``Partial Rescission of Antidumping 
(Countervailing Duty) New Shipper Review.''
    (g) Period of review--(1) Antidumping proceeding--(i) In general. 
Except as provided in paragraph (g)(1)(ii) of this section, in an 
antidumping proceeding, a new shipper review under this section normally 
will cover, as appropriate, entries, exports, or sales during the 
following time periods:
    (A) If the new shipper review was initiated in the month immediately 
following the anniversary month, the twelve-month period immediately 
preceding the anniversary month; or
    (B) If the new shipper review was initiated in the month immediately 
following the semiannual anniversary month, the period of review will be 
the six-month period immediately preceding the semiannual anniversary 
month.
    (ii) Exceptions. (A) If the Secretary initiates a new shipper review 
under this section in the month immediately following the first 
anniversary month, the review normally will cover, as appropriate, 
entries, exports, or sales during the period from the date of suspension 
of liquidation under this part to the end of the month immediately 
preceding the first anniversary month.
    (B) If the Secretary initiates a new shipper review under this 
section in the month immediately following the first semiannual 
anniversary month, the review normally will cover, as appropriate, 
entries, exports, or sales during the period from the date of suspension 
of liquidation under this part to the end of the month immediately 
preceding the first semiannual anniversary month.
    (2) Countervailing duty proceeding. In a countervailing duty 
proceeding, the period of review for a new shipper review under this 
section will be the same period as that specified in Sec. 351.213(e)(2) 
for an administrative review.
    (h) Procedures. The Secretary will conduct a new shipper review 
under this section in accordance with Sec. 351.221.
    (i) Time limits--(1) In general. Unless the time limit is waived 
under paragraph (j)(3) of this section, the Secretary will issue 
preliminary results of review (see Sec. 351.221(b)(4)) within 180 days 
after the date on which the new shipper review was initiated, and final 
results of review (see Sec. 351.221(b)(5)) within 90 days after the 
date on which the preliminary results were issued.
    (2) Exception. If the Secretary concludes that a new shipper review 
is extraordinarily complicated, the Secretary may extend the 180-day 
period to 300 days, and may extend the 90-day period to 150 days.
    (j) Multiple reviews. Notwithstanding any other provision of this 
subpart, if a review (or a request for a review) under Sec. 351.213 
(administrative review), Sec. 351.214 (new shipper review), Sec. 
351.215 (expedited antidumping review), or Sec. 351.216 (changed 
circumstances review) covers merchandise of an exporter or producer 
subject to a review (or to a request for a review) under this section, 
the Secretary may, after consulting with the exporter or producer:
    (1) Rescind, in whole or in part, a review in progress under this 
subpart;
    (2) Decline to initiate, in whole or in part, a review under this 
subpart; or
    (3) Where the requesting party agrees in writing to waive the time 
limits of paragraph (i) of this section, conduct concurrent reviews, in 
which case all other provisions of this section will continue to apply 
with respect to the exporter or producer.
    (k) Expedited reviews in countervailing duty proceedings for 
noninvestigated exporters--(1) Request for review. If, in a 
countervailing duty investigation, the Secretary limited the number of 
exporters or producers to be individually examined under section 
777A(e)(2)(A) of the Act, an exporter that the Secretary

[[Page 222]]

did not select for individual examination or that the Secretary did not 
accept as a voluntary respondent (see Sec. 351.204(d)) may request a 
review under this paragraph (k). An exporter must submit a request for 
review within 30 days of the date of publication in the Federal Register 
of the countervailing duty order. A request must be accompanied by a 
certification that:
    (i) The requester exported the subject merchandise to the United 
States during the period of investigation;
    (ii) The requester is not affiliated with an exporter or producer 
that the Secretary individually examined in the investigation; and
    (iii) The requester has informed the government of the exporting 
country that the government will be required to provide a full response 
to the Department's questionnaire.
    (2) Initiation of review--(i) In general. The Secretary will 
initiate a review in the month following the month in which a request 
for review is due under paragraph (k)(1) of this section.
    (ii) Example. The Secretary publishes a countervailing duty order on 
January 15. An exporter would have to submit a request for a review by 
February 14. The Secretary would initiate a review in March.
    (3) Conduct of review. The Secretary will conduct a review under 
this paragraph (k) in accordance with the provisions of this section 
applicable to new shipper reviews, subject to the following exceptions:
    (i) The period of review will be the period of investigation used by 
the Secretary in the investigation that resulted in the publication of 
the countervailing duty order (see Sec. 351.204(b)(2));
    (ii) The Secretary will not permit the posting of a bond or security 
in lieu of a cash deposit under paragraph (e) of this section;
    (iii) The final results of a review under this paragraph (k) will 
not be the basis for the assessment of countervailing duties; and
    (iv) The Secretary may exclude from the countervailing duty order in 
question any exporter for which the Secretary determines an individual 
net countervailable subsidy rate of zero or de minimis (see Sec. 
351.204(e)(1)), provided that the Secretary has verified the information 
on which the exclusion is based.
    (l) Exception from assessment in regional industry cases. For 
procedures relating to a request for the exception from the assessment 
of antidumping or countervailing duties in a regional industry case, see 
Sec. 351.212(f).



Sec. 351.215  Expedited antidumping review and security in lieu of 
estimated duty under section 736(c) of the Act.

    (a) Introduction. Exporters and producers individually examined in 
an investigation normally cannot obtain a review of entries until an 
administrative review is requested. In addition, when an antidumping 
order is published, importers normally must begin to make a cash deposit 
of estimated antidumping duties upon the entry of subject merchandise. 
Section 736(c), however, establishes a special procedure under which 
exporters or producers may request an expedited review, and bonds, 
rather than cash deposits, may continue to be posted for a limited 
period of time if several criteria are satisfied. This section contains 
rules regarding requests for expedited antidumping reviews and the 
procedures applicable to such reviews.
    (b) In general. If the Secretary determines that the criteria of 
section 736(c)(1) of the Act are satisfied, the Secretary:
    (1) May permit, for not more than 90 days after the date of 
publication of an antidumping order, the posting of a bond or other 
security instead of the deposit of estimated antidumping duties required 
under section 736(a)(3) of the Act; and
    (2) Will initiate an expedited antidumping review. Before making 
such a determination, the Secretary will make business proprietary 
information available, and will provide interested parties with an 
opportunity to file written comments, in accordance with section 
736(c)(4) of the Act.
    (c) Procedures. The Secretary will conduct an expedited antidumping 
review under this section in accordance with Sec. 351.221.

[[Page 223]]



Sec. 351.216  Changed circumstances review under section 751(b) of 
the Act.

    (a) Introduction. Section 751(b) of the Act provides for what is 
known as a ``changed circumstances'' review. This section contains rules 
regarding requests for changed circumstances reviews and procedures for 
conducting such reviews.
    (b) Requests for changed circumstances review. At any time, an 
interested party may request a changed circumstances review, under 
section 751(b) of the Act, of an order or a suspended investigation. 
Within 45 days after the date on which a request is filed, the Secretary 
will determine whether to initiate a changed circumstances review.
    (c) Limitation on changed circumstances review. Unless the Secretary 
finds that good cause exists, the Secretary will not review a final 
determination in an investigation (see section 705(a) or section 735(a) 
of the Act) or a suspended investigation (see section 704 or section 734 
of the Act) less than 24 months after the date of publication of notice 
of the final determination or the suspension of the investigation.
    (d) Procedures. If the Secretary decides that changed circumstances 
sufficient to warrant a review exist, the Secretary will conduct a 
changed circumstances review in accordance with Sec. 351.221.
    (e) Time limits. The Secretary will issue final results of review 
(see Sec. 351.221(b)(5)) within 270 days after the date on which the 
changed circumstances review is initiated, or within 45 days if all 
parties to the proceeding agree to the outcome of the review.



Sec. 351.217  Reviews to implement results of subsidies enforcement 
proceeding under section 751(g) of the Act.

    (a) Introduction. Section 751(g) provides a mechanism for 
incorporating into an ongoing countervailing duty proceeding the results 
of certain subsidy-related disputes under the WTO Subsidies Agreement. 
Where the United States, in the WTO, has successfully challenged the 
``nonactionable'' (e.g., noncountervailable) status of a foreign 
subsidy, or where the United States has successfully challenged a 
prohibited or actionable subsidy, the Secretary may conduct a review to 
determine the effect, if any, of the successful outcome on an existing 
countervailing duty order or suspended investigation. This section 
contains rules regarding the initiation and conduct of reviews under 
section 751(g).
    (b) Violations of Article 8 of the Subsidies Agreement. If:
    (1) The Secretary receives notice from the Trade Representative of a 
violation of Article 8 of the Subsidies Agreement;
    (2) The Secretary has reason to believe that merchandise subject to 
an existing countervailing duty order or suspended investigation is 
benefiting from the subsidy or subsidy program found to have been in 
violation of Article 8; and
    (3) No administrative review is in progress, the Secretary will 
initiate an Article 8 violation review of the order or suspended 
investigation to determine whether the subject merchandise benefits from 
the subsidy or subsidy program found to have been in violation of 
Article 8 of the Subsidies Agreement.
    (c) Withdrawal of subsidy or imposition of countermeasures. If the 
Trade Representative notifies the Secretary that, under Article 4 or 
Article 7 of the Subsidies Agreement:
    (1)(i)(A) The United States has imposed countermeasures; and
    (B) Such countermeasures are based on the effects in the United 
States of imports of merchandise that is the subject of a countervailing 
duty order; or
    (ii) A WTO member country has withdrawn a countervailable subsidy 
provided with respect to merchandise subject to a countervailing duty 
order, then
    (2) The Secretary will initiate an Article 4/Article 7 review of the 
order to determine if the amount of estimated duty to be deposited 
should be adjusted or the order should be revoked.
    (d) Procedures. The Secretary will conduct an Article 8 violation 
review or an Article 4/Article 7 review under this section in accordance 
with Sec. 351.221.

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    (e) Expedited reviews. The Secretary will conduct reviews under this 
section on an expedited basis.



Sec. 351.218  Sunset reviews under section 751(c) of the Act.

    (a) Introduction. The URAA added a new procedure, commonly referred 
to as ``sunset reviews,'' in section 751(c) of the Act. In general, no 
later than once every five years, the Secretary must determine whether 
dumping or countervailable subsidies would be likely to continue or 
resume if an order were revoked or a suspended investigation were 
terminated. The Commission must conduct a similar review to determine 
whether injury would be likely to continue or resume in the absence of 
an order or suspended investigation. If the determinations under section 
751(c) of both the Secretary and the Commission are affirmative, the 
order (or suspended investigation) remains in place. If either 
determination is negative, the order will be revoked (or the suspended 
investigation will be terminated). This section contains rules regarding 
the procedures for sunset reviews.
    (b) In general. The Secretary will conduct a sunset review, under 
section 751(c) of the Act, of each antidumping and countervailing duty 
order and suspended investigation, and, under section 752(b) or section 
752(c) (whichever is applicable), will determine whether revocation of 
an antidumping or countervailing duty order or termination of a 
suspended investigation would be likely to lead to continuation or 
recurrence of dumping or a countervailable subsidy.
    (c) Notice of initiation of review; early initiation--(1) Initial 
sunset review. No later than 30 days before the fifth anniversary date 
of an order or suspension of an investigation (see section 751(c)(1) of 
the Act), the Secretary will publish a notice of initiation of a sunset 
review (see section 751(c)(2) of the Act).
    (2) Subsequent sunset reviews. In the case of an order or suspended 
investigation that is continued following a sunset review initiated 
under paragraph (c)(1) of this section, no later than 30 days before the 
fifth anniversary of the date of the last determination by the 
Commission to continue the order or suspended investigation, the 
Secretary will publish a notice of initiation of a sunset review (see 
section 751(c)(2) of the Act).
    (3) Early initiation. The Secretary may publish a notice of 
initiation at an earlier date than the dates described in paragraph (c) 
(1) and (2) of this section if a domestic interested party demonstrates 
to the Secretary's satisfaction that an early initiation would promote 
administrative efficiency. However, if the Secretary determines that the 
domestic interested party that requested early initiation is a related 
party or an importer under section 771(4)(B) of the Act and Sec. 
351.203(e)(4), the Secretary may decline the request for early 
initiation.
    (4) Transition orders. The Secretary will initiate sunset reviews of 
transition orders, as defined in section 751(c)(6)(C) of the Act, in 
accordance with section 751(c)(6) of the Act.
    (d) Participation in sunset review--(1) Domestic interested party 
notification of intent to participate--(i) Filing of notice of intent to 
participate. Where a domestic interested party intends to participate in 
a sunset review, the interested party must, not later than 15 days after 
the date of publication in the Federal Register of the notice of 
initiation, file a notice of intent to participate in a sunset review 
with the Secretary.
    (ii) Contents of notice of intent to participate. Every notice of 
intent to participate in a sunset review must include a statement 
expressing the domestic interested party's intent to participate in the 
sunset review and the following information:
    (A) The name, address, and phone number of the domestic interested 
party (and its members, if applicable) that intends to participate in 
the sunset review and the statutory basis (under section 771(9) of the 
Act) for interested party status;
    (B) A statement indicating whether the domestic producer:
    (1) Is related to a foreign producer or to a foreign exporter under 
section 771(4)(B) of the Act; or
    (2) Is an importer of the subject merchandise or is related to such 
an importer under section 771(4)(B) of the Act;

[[Page 225]]

    (C) The name, address, and phone number of legal counsel or other 
representative, if any;
    (D) The subject merchandise and country subject to the sunset 
review; and
    (E) The citation and date of publication in the Federal Register of 
the notice of initiation.
    (iii) Failure of domestic interested party to file notice of intent 
to participate in the sunset review. (A) A domestic interested party 
that does not file a notice of Intent to participate in the sunset 
review will be considered not willing to participate in the review and 
the Secretary will not accept or consider any unsolicited submissions 
from that party during the course of the review.
    (B) If no domestic interested party files a notice of intent to 
participate in the sunset review, the Secretary will:
    (1) Conclude that no domestic interested party has responded to the 
notice of initiation under section 751(c)(3)(A) of the Act;
    (2) Notify the International Trade Commission in writing as such 
normally not later than 20 days after the date of publication in the 
Federal Register of the notice of initiation; and
    (3) Not later than 90 days after the date of publication in the 
Federal Register of the Notice of Initiation, issue a final 
determination revoking the order or terminating the suspended 
investigation (see Sec. Sec. 351.221(c)(5)(ii) and 351.222(i)).
    (2) Waiver of response by a respondent interested party to a notice 
of initiation--(i) Filing of statement of waiver. A respondent 
interested party may waive participation in a sunset review before the 
Department under section 751(c)(4) of the Act by filing a statement of 
waiver with the Department, not later than 30 days after the date of 
publication in the Federal Register of the notice of initiation. If a 
respondent interested party waives participation in a sunset review 
before the Department, the Secretary will not accept or consider any 
unsolicited submissions from that party during the course of the review. 
Waiving participation in a sunset review before the Department will not 
affect a party's opportunity to participate in the sunset review 
conducted by the International Trade Commission.
    (ii) Contents of statement of waiver. Every statement of waiver must 
include a statement indicating that the respondent interested party 
waives participation in the sunset review before the Department and the 
following information:
    (A) The name, address, and phone number of the respondent interested 
party waiving participation in the sunset review before the Department;
    (B) The name, address, and phone number of legal counsel or other 
representative, if any;
    (C) The subject merchandise and country subject to the sunset 
review; and
    (D) The citation and date of publication in the Federal Register of 
the notice of initiation.
    (iii) No response from a respondent interested party. The Secretary 
will consider the failure by a respondent interested party to file a 
complete substantive response to a notice of initiation under paragraph 
(d)(3) of this section as a waiver of participation in a sunset review 
before the Department.
    (iv) Waiver of participation by a foreign government in a CVD sunset 
review. Where a foreign government waives participation in a CVD sunset 
review under paragraph (d)(2)(i) or (d)(2)(iii) of this section, the 
Secretary will:
    (A) Conclude that respondent interested parties have provided 
inadequate response to the notice of initiation under section 
751(c)(3)(B) of the Act;
    (B) Notify the International Trade Commission and conduct an 
expedited sunset review and issue final results of review in accordance 
with paragraph (e)(1)(ii)(C) of this section; and
    (C) Base the final results of review on the facts available in 
accordance with Sec. 351.308(f), which normally will include a 
determination that revocation of the order or termination of the 
suspended investigation, as applicable, would be likely to lead to 
continuation or recurrence of a countervailable subsidy for all 
respondent interested parties.
    (3) Substantive response to a notice of initiation--(i) Time limit 
for substantive response to a notice of initiation. A complete 
substantive response to a notice of initiation, filed under this 
section,

[[Page 226]]

must be submitted to the Department not later than 30 days after the 
date of publication in the Federal Register of the notice of initiation.
    (ii) Required information to be filed by all interested parties in 
substantive response to a notice of initiation. Except as provided in 
paragraph (d)(3)(v)(A) of this section, each interested party that 
intends to participate in a sunset review must file a submission with 
the Department containing the following:
    (A) The name, address, and phone number of the interested party (and 
its members, if applicable) that intends to participate in the sunset 
review and the statutory basis (under section 771(9) of the Act) for 
interested party status;
    (B) The name, address, and phone number of legal counsel or other 
representative, if any;
    (C) The subject merchandise and country subject to the sunset 
review;
    (D) The citation and date of publication in the Federal Register of 
the notice of initiation;
    (E) A statement expressing the interested party's willingness to 
participate in the review by providing information requested by the 
Department, which must include a summary of that party's historical 
participation in any segment of the proceeding before the Department 
related to the subject merchandise;
    (F) A statement regarding the likely effects of revocation of the 
order or termination of the suspended investigation under review, which 
must include any factual information, argument, and reason to support 
such statement;
    (G) Factual information, argument, and reason concerning the dumping 
margin or countervailing duty rate, as applicable, that is likely to 
prevail if the Secretary revokes the order or terminates the suspended 
investigation, that the Department should select for a particular 
interested party(s);
    (H) A summary of the Department's findings regarding duty 
absorption, if any, including a citation to the Federal Register notice 
in which the Department's findings are set forth; and
    (I) A description of any relevant scope clarification or ruling, 
including a circumvention determination, or changed circumstances 
determination issued by the Department during the proceeding with 
respect to the subject merchandise.
    (iii) Additional required information to be filed by respondent 
interested parties in substantive response to a notice of initiation. 
Except as provided in paragraph (d)(3)(v)(A) of this section, the 
submission from each respondent interested party that intends to 
participate in a sunset review must also contain the following:
    (A) That party's individual weighted average dumping margin or 
countervailing duty rate, as applicable, from the investigation and each 
subsequent completed administrative review, including the final margin 
or rate, as applicable, where such margin or rate was changed as a 
result of a final and conclusive court order;
    (B) For each of the five calendar years (or fiscal years, if more 
appropriate) preceding the year of publication of the notice of 
initiation, that party's volume and value (normally on an FOB basis) of 
exports of subject merchandise to the United States;
    (C) As applicable, for the calendar year (or fiscal year, if more 
appropriate) preceding the year of initiation of the dumping 
investigation, that party's volume and value (normally on an FOB basis) 
of exports of subject merchandise to the United States;
    (D) For each of the five calendar years (or fiscal years, if more 
appropriate) preceding the year of publication of the notice of 
initiation, on a volume basis (or value basis, if more appropriate), 
that party's percentage of the total exports of subject merchandise 
(defined in section 771(25) of the Act) to the United States; and
    (E) For each of the three most recent years, including the year of 
publication of the notice of initiation, that party's volume and value 
(normally on an FOB basis) of exports of subject merchandise to the 
United States during the two fiscal quarters as of the month preceding 
the month in which the notice of initiation was published.
    (iv) Optional information to be filed by interested parties in 
substantive response to a notice of initiation--(A) Showing good cause. 
An interested party may submit information or evidence to

[[Page 227]]

show good cause for the Secretary to consider other factors under 
section 752(b)(2) (CVD) or section 752(c)(2) (AD) of the Act and 
paragraph (e)(2)(ii) of this section. Such information or evidence must 
be submitted in the party's substantive response to the notice of 
initiation under paragraph (d)(3) of this section.
    (B) Other information. A substantive response from an interested 
party under paragraph (d)(3) of this section also may contain any other 
relevant information or argument that the party would like the Secretary 
to consider.
    (v) Required information to be filed by a foreign government in 
substantive response to the notice of initiation in a CVD sunset 
review--(A) In general. The foreign government of a country subject to a 
CVD sunset review (see section 771(9)(B) of the Act) that intends to 
participate in a CVD sunset review must file a submission with the 
Department under paragraph (d)(3)(i) of this section containing the 
information required under paragraphs (d)(3)(ii) (A) through (E) of this 
section.
    (B) Additional required information to be filed by a foreign 
government in a CVD sunset review involving an order where the 
investigation was conducted on an aggregate basis. The submission from 
the foreign government of a country subject to a CVD sunset review, 
involving an order where the investigation was conducted on an aggregate 
basis, must also contain:
    (1) The information required under paragraphs (d)(3)(ii)(F), 
(d)(3)(ii)(G), and (d)(3)(ii)(I) of this section;
    (2) The countervailing duty rate from the investigation and each 
subsequent completed administrative review, including the final rate 
where such rate was changed as a result of a final and conclusive court 
order; and
    (3) For each of the five calendar years (or fiscal years, if more 
appropriate) preceding the year of publication of the notice of 
initiation, the volume and value (normally on an FOB basis) of exports 
of subject merchandise to the United States.
    (vi) Substantive responses from industrial users and consumers. An 
industrial user of the subject merchandise or a representative consumer 
organization, as described in section 777(h) of the Act, that intends to 
participate in a sunset review must file a submission with the 
Department under paragraph (d)(3)(i) of this section containing the 
information required under paragraphs (d)(3)(ii) (A) through (D) of this 
section and may submit other relevant information under paragraphs 
(d)(3)(ii) and (d)(3)(iv) of this section.
    (4) Rebuttal to substantive response to a notice of initiation. Any 
interested party that files a substantive response to a notice of 
initiation under paragraph (d)(3) of this section may file a rebuttal to 
any other party's substantive response to a notice of initiation not 
later than five days after the date the substantive response is filed 
with the Department. Except as provided in Sec. 351.309(e), the 
Secretary normally will not accept or consider any additional 
information from a party after the time for filing rebuttals has 
expired, unless the Secretary requests additional information from 
parties after determining to proceed to a full sunset review under 
paragraph (e)(2) of this section.
    (e) Conduct of sunset review--(1) Adequacy of response to a notice 
of initiation--(i) Adequacy of response from domestic interested 
parties--(A) In general. The Secretary will make its determination of 
adequacy of response on a case-by-case basis; however, the Secretary 
normally will conclude that domestic interested parties have provided 
adequate response to a notice of initiation where it receives a complete 
substantive response under paragraph (d)(3) of this section from at 
least one domestic interested party.
    (B) Disregarding response from a domestic interested party. In 
making its determination concerning the adequacy of response from 
domestic interested parties under paragraph (e)(1)(i)(A) of this 
section, the Secretary may disregard a response from a domestic 
producer:
    (1) Related to a foreign producer or to a foreign exporter under 
section 771(4)(B) of the Act; or
    (2) That is an importer of the subject merchandise or is related to 
such an importer under section 771(4)(B) of the Act (see paragraph 
(d)(1)(ii)(B) of this section).

[[Page 228]]

    (C) Inadequate response from domestic interested parts. Where the 
Secretary determines to disregard a response from a domestic interested 
party(s) under paragraph (e)(1)(i)(A) or (e)(1)(i)(B) of this section 
and no other domestic interested party has filed a complete substantive 
response to the notice of initiation under paragraph (d)(3) of this 
section, the Secretary will:
    (1) Conclude that no domestic interested party has responded to the 
notice of initiation under section 751(c)(3)(A) of the Act;
    (2) Notify the International Trade Commission in writing as such 
normally not later than 40 days after the date of publication in the 
Federal Register of the Notice of Initiation; and
    (3) Not later than 90 days after the date of publication in the 
Federal Register of the Notice of Initiation, issue a final 
determination revoking the order or terminating the suspended 
investigation (see Sec. Sec. 351.221(c)(5)(ii) and 351.222(i)).
    (ii) Adequacy of response from respondent interested parties--(A) In 
general. The Secretary will makes its determination of adequacy of 
response on a case-by-case basis; however, the Secretary normally will 
conclude that respondent interested parties have provided adequate 
response to a notice of initiation where it receives complete 
substantive responses under paragraph (d)(3) of this section from 
respondent interested parties accounting on average for more than 50 
percent, on a volume basis (or value basis, if appropriate), of the 
total exports of subject merchandise to the United States over the five 
calendar years preceding the year of publication of the notice of 
initiation.
    (B) Failure of a foreign government to file a substantive response 
to a notice of initiation in a CVD sunset review. If a foreign 
government fails to file a complete substantive response to a notice of 
initiation in a CVD sunset review under paragraph (d)(3)(v) of this 
section or waives participation in a CVD sunset review under paragraph 
(d)(2)(i) or (d)(2)(iii) of this section, the Secretary will:
    (1) Conclude that respondent interested parties have provided 
inadequate response to the Notice of Initiation under section 
751(c)(3)(B) of the Act;
    (2) Notify the International Trade Commission and conduct an 
expedited sunset review and issue final results of review in accordance 
with paragraph (e)(1)(ii)(C) of this section; and
    (3) Base the final results of review on the facts available in 
accordance with Sec. 351.308(f), which normally will include a 
determination that revocation of the order or termination of the 
suspended investigation, as applicable, would be likely to lead to 
continuation or recurrence of a countervailable subsidy for all 
respondent interested parties.
    (C) Inadequate response from respondent interested parties. If the 
Secretary determines that respondent interested parties provided 
inadequate response to a notice of initiation under paragraph 
(d)(2)(iv), (e)(1)(ii)(A), or (e)(1)(ii)(B) of this section, the 
Secretary:
    (1) Will notify the International Trade Commission in writing as 
such normally not later than 50 days after the date of publication in 
the Federal Register of the Notice of Initiation; and
    (2) Normally will conduct an expedited sunset review and, not later 
than 120 days after the date of publication in the Federal Register of 
the notice of initiation, issue, without further investigation, final 
results of review based on the facts available in accordance with Sec. 
351.308(f) (see section 751(c)(3)(B) of the Act and Sec. 
351.221(c)(5)(ii)).
    (2) Full sunset review upon adequate response from domestic and 
respondent interested parties--(i) In general. Normally, only where the 
Department receives adequate response to the notice of initiation from 
domestic interested parties under paragraph (e)(1)(i)(A) of this section 
and from respondent interested parties under paragraph (e)(1)(ii)(A) of 
this section, will the Department conduct a full sunset review. Even 
where the Department conducts a full sunset review, only under the most 
extraordinary circumstances will the Secretary rely on a countervailing 
duty rate or a dumping margin other than those it calculated and 
published in its prior determinations, and in no case will the Secretary 
calculate a net

[[Page 229]]

countervailable subsidy or a dumping margin for a new shipper in the 
context of a sunset review.
    (ii) [Reserved]
    (iii) Consideration of other factors under section 752(b)(2) (CVD) 
or section 752(c)(2) (AD) of the Act. The Secretary will consider other 
factors under section 752(b)(2) (CVD) or section 752(c)(2) (AD) of the 
Act if the Secretary determines that good cause to consider such other 
factors exists. The Secretary normally will consider such other factors 
only where it conducts a full sunset review under paragraph (e)(2)(i) of 
this section.
    (f) Time limits--(1) Preliminary results of full sunset review. The 
Department normally will issue its preliminary results in a full sunset 
review not later than 110 days after the date of publication in the 
Federal Register of the notice of initiation.
    (2) Verification--(i) In general. The Department will verify factual 
information relied upon in making its final determination normally only 
in a full sunset review (see section 782(i)(2) of the Act and Sec. 
351.307(b)(1)(iii)) and only where needed. The Department will conduct 
verification normally only if, in its preliminary results, the 
Department determines that revocation of the order or termination of the 
suspended investigation, as applicable, is not likely to lead to 
continuation or recurrence of a countervailable subsidy or dumping (see 
section 752(b) and section 752(c) of the Act), as applicable, and the 
Department's preliminary results are not based on countervailing duty 
rates or dumping margins, as applicable, determined in the investigation 
or subsequent reviews.
    (ii) Timing of verification. The Department normally will conduct 
verification, under paragraph (f)(2)(i) of this section and Sec. 
351.307, approximately 120 days after the date of publication in the 
Federal Register of the notice of initiation.
    (3) Final results of full sunset review and notification to the 
International Trade Commission--(i) Timing of final results of review 
and notification to the International Trade Commission. The Department 
normally will issue its final results in a full sunset review and notify 
the International Trade Commission of its results of review not later 
than 240 days after the date of publication in the Federal Register of 
the notice of initiation (see section 751(c)(5)(A) of the Act).
    (ii) Extension of time limit. If the Secretary determines that a 
full sunset review is extraordinarily complicated under section 
751(c)(5)(C) of the Act, the Secretary may extend the period for issuing 
final results by not more than 90 days (see section 751(c)(5)(B) of the 
Act).
    (4) Notice of continuation of an order or suspended investigation; 
notice of revocation of an order or termination of a suspended 
investigation. Except as provided in paragraph (d)(1)(iii)(B)(3) of this 
section and Sec. 351.222(i)(1)(i), the Department normally will issue 
its determination to continue an order or suspended investigation, or to 
revoke an order or terminate a suspended investigation, as applicable, 
not later than seven days after the date of publication in the Federal 
Register of the International Trade Commission's determination 
concluding the sunset review. The Department immediately thereafter will 
publish notice of its determination in the Federal Register.

[62 FR 27379, May 19, 1997, as amended at 63 FR 13520, Mar. 20, 1998]



Sec. 351.219  Reviews of countervailing duty orders in connection 
with an investigation under section 753 of the Act.

    (a) Introduction. Section 753 of the Act is a transition provision 
for countervailing duty orders that were issued under section 303 of the 
Act without an injury determination by the Commission. Under the 
Subsidies Agreement, one country may not impose countervailing duties on 
imports from another WTO Member without first making a determination 
that such imports have caused injury to a domestic industry. Section 753 
provides a mechanism for providing an injury test with respect to those 
``no-injury'' orders under section 303 that apply to merchandise from 
WTO Members. This section contains rules regarding requests for section 
753 investigations by a domestic interested party; and the procedures 
that the Department will follow in reviewing a

[[Page 230]]

countervailing duty order and providing the Commission with advice 
regarding the amount and nature of a countervailable subsidy.
    (b) Notification of domestic interested parties. The Secretary will 
notify directly domestic interested parties as soon as possible after 
the opportunity arises for requesting an investigation by the Commission 
under section 753 of the Act.
    (c) Initiation and conduct of section 753 review. Where the 
Secretary deems it necessary in order to provide to the Commission 
information on the amount or nature of a countervailable subsidy (see 
section 753(b)(2) of the Act), the Secretary may initiate a section 753 
review of the countervailing duty order in question. The Secretary will 
conduct a section 753 review in accordance with Sec. 351.221.



Sec. 351.220  Countervailing duty review at the direction of the 
President under section 762 of the Act.

    At the direction of the President or a designee, the Secretary will 
conduct a review under section 762(a)(1) of the Act to determine if a 
countervailable subsidy is being provided with respect to merchandise 
subject to an understanding or other kind of quantitative restriction 
agreement accepted under section 704(a)(2) or section 704(c)(3) of the 
Act. The Secretary will conduct a review under this section in 
accordance with Sec. 351.221. If the Secretary's final results of 
review under this section and the Commission's final results of review 
under section 762(a)(2) of the Act are both affirmative, the Secretary 
will issue a countervailing duty order and order suspension of 
liquidation in accordance with section 762(b) of the Act.



Sec. 351.221  Review procedures.

    (a) Introduction. The procedures for reviews are similar to those 
followed in investigations. This section details the procedures 
applicable to reviews in general, as well as procedures that are unique 
to certain types of reviews.
    (b) In general. After receipt of a timely request for a review, or 
on the Secretary's own initiative when appropriate, the Secretary will:
    (1) Promptly publish in the Federal Register notice of initiation of 
the review;
    (2) Before or after publication of notice of initiation of the 
review, send to appropriate interested parties or other persons (or, if 
appropriate, a sample of interested parties or other persons) 
questionnaires requesting factual information for the review;
    (3) Conduct, if appropriate, a verification under Sec. 351.307;
    (4) Issue preliminary results of review, based on the available 
information, and publish in the Federal Register notice of the 
preliminary results of review that include:
    (i) The rates determined, if the review involved the determination 
of rates; and
    (ii) An invitation for argument consistent with Sec. 351.309;
    (5) Issue final results of review and publish in the Federal 
Register notice of the final results of review that include the rates 
determined, if the review involved the determination of rates;
    (6) If the type of review in question involves a determination as to 
the amount of duties to be assessed, promptly after publication of the 
notice of final results instruct the Customs Service to assess 
antidumping duties or countervailing duties (whichever is applicable) on 
the subject merchandise covered by the review, except as otherwise 
provided in Sec. 351.106(c) with respect to de minimis duties; and
    (7) If the review involves a revision to the cash deposit rates for 
estimated antidumping duties or countervailing duties, instruct the 
Customs Service to collect cash deposits at the revised rates on future 
entries.
    (c) Special rules--(1) Administrative reviews and new shipper 
reviews. In an administrative review under section 751(a)(1) of the Act 
and Sec. 351.213 and a new shipper review under section 751(a)(2)(B) of 
the Act and Sec. 351.214 the Secretary:
    (i) Will publish the notice of initiation of the review no later 
than the last day of the month following the anniversary month or the 
semiannual anniversary month (as the case may be); and

[[Page 231]]

    (ii) Normally will send questionnaires no later than 30 days after 
the date of publication of the notice of initiation.
    (2) Expedited antidumping review. In an expedited antidumping review 
under section 736(c) of the Act and Sec. 351.215, the Secretary:
    (i) Will include in the notice of initiation of the review an 
invitation for argument consistent with Sec. 351.309, and a statement 
that the Secretary is permitting the posting of a bond or other security 
instead of a cash deposit of estimated antidumping duties;
    (ii) Will instruct the Customs Service to accept, instead of the 
cash deposit of estimated antidumping duties under section 736(a)(3) of 
the Act, a bond for each entry of the subject merchandise entered, or 
withdrawn from warehouse, for consumption on or after the date of 
publication of the notice of initiation of the investigation and through 
the date not later than 90 days after the date of publication of the 
order; and
    (iii) Will not issue preliminary results of review.
    (3) Changed circumstances review. In a changed circumstances review 
under section 751(b) of the Act and Sec. 351.216, the Secretary:
    (i) Will include in the preliminary results of review and the final 
results of review a description of any action the Secretary proposed 
based on the preliminary or final results;
    (ii) May combine the notice of initiation of the review and the 
preliminary results of review in a single notice if the Secretary 
concludes that expedited action is warranted; and
    (iii) May refrain from issuing questionnaires under paragraph (b)(2) 
of this section.
    (4) Article 8 Violation review and Article 4/Article 7 review. In an 
Article 8 Violation review or an Article 4/Article 7 review under 
section 751(g) of the Act and Sec. 351.217, the Secretary:
    (i) Will include in the notice of initiation of the review an 
invitation for argument consistent with Sec. 351.309 and will notify 
all parties to the proceeding at the time the Secretary initiates the 
review;
    (ii) Will not issue preliminary results of review; and
    (iii) In the final results of review will indicate the amount, if 
any, by which the estimated duty to be deposited should be adjusted, 
and, in an Article 4/Article 7 review, any action, including revocation, 
that the Secretary will take based on the final results.
    (5) Sunset review. In a sunset review under section 751(c) of the 
Act and Sec. 351.218:
    (i) The notice of initiation of a sunset review will contain a 
request for the information described in Sec. 351.218(d); and
    (ii) The Secretary, without issuing preliminary results of review, 
may issue final results of review under paragraphs (3) or (4) of 
subsection 751(c) of the Act if the conditions of those paragraphs are 
satisfied.
    (6) Section 753 review. In a section 753 review under section 753 of 
the Act and Sec. 351.219, the Secretary:
    (i) Will include in the notice of initiation of the review an 
invitation for argument consistent with Sec. 351.309, and will notify 
all parties to the proceeding at the time the Secretary initiates the 
review; and
    (ii) May decline to issue preliminary results of review.
    (7) Countervailing duty review at the direction of the President. In 
a countervailing duty review at the direction of the President under 
section 762 of the Act and Sec. 351.220, the Secretary will:
    (i) Include in the notice of initiation of the review a description 
of the merchandise, the period under review, and a summary of the 
available information which, if accurate, would support the imposition 
of countervailing duties;
    (ii) Notify the Commission of the initiation of the review and the 
preliminary results of review;
    (iii) Include in the preliminary results of review the 
countervailable subsidy, if any, during the period of review and a 
description of official changes in the subsidy programs made by the 
government of the affected country that affect the estimated 
countervailable subsidy; and
    (iv) Include in the final results of review the countervailable 
subsidy, if any, during the period of review and a description of 
official changes in the

[[Page 232]]

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 countervailable subsidy.

[62 FR 27379, May 19, 1997, as amended at 63 FR 13525, Mar. 20, 1998]



Sec. 351.222  Revocation of orders; termination of suspended 
investigations.

    (a) Introduction. ``Revocation'' is a term of art that refers to the 
end of an antidumping or countervailing proceeding in which an order has 
been issued. ``Termination'' is the companion term for the end of a 
proceeding in which the investigation was suspended due to the 
acceptance of a suspension agreement. Generally, a revocation or 
termination may occur only after the Department or the Commission have 
conducted one or more reviews under section 751 of the Act. This section 
contains rules regarding requirements for a revocation or termination; 
and procedures that the Department will follow in determining whether to 
revoke an order or terminate a suspended investigation.
    (b) Revocation or termination based on absence of dumping. (1)(i) In 
determining whether to revoke an antidumping duty order or terminate a 
suspended antidumping investigation, the Secretary will consider:
    (A) Whether all exporters and producers covered at the time of 
revocation by the order or the suspension agreement have sold the 
subject merchandise at not less than normal value for a period of at 
least three consecutive years; and
    (B) Whether the continued application of the antidumping duty order 
is otherwise necessary to offset dumping.
    (ii) If the Secretary determines, based upon the criteria in 
paragraphs (b)(1)(i)(A) and (B) of this section, that the antidumping 
duty order or suspension of the antidumping duty investigation is no 
longer warranted, the Secretary will revoke the order or terminate the 
investigation.
    (2)(i) In determining whether to revoke an antidumping duty order in 
part, the Secretary will consider:
    (A) Whether one or more exporters or producers covered by the order 
have sold the merchandise at not less than normal value for a period of 
at least three consecutive years;
    (B) Whether, for any exporter or producer that the Secretary 
previously has determined to have sold the subject merchandise at less 
than normal value, the exporter or producer agrees in writing to its 
immediate reinstatement in the order, as long as any exporter or 
producer is subject to the order, if the Secretary concludes that the 
exporter or producer, subsequent to the revocation, sold the subject 
merchandise at less than normal value; and
    (C) Whether the continued application of the antidumping duty order 
is otherwise necessary to offset dumping.
    (ii) If the Secretary determines, based upon the criteria in 
paragraphs (b)(2)(i)(A) through (C) of this section, that the 
antidumping duty order as to those producers or exporters is no longer 
warranted, the Secretary will revoke the order as to those producers or 
exporters.
    (3) Revocation of nonproducing exporter. In the case of an exporter 
that is not the producer of subject merchandise, the Secretary normally 
will revoke an order in part under paragraph (b)(2) of this section only 
with respect to subject merchandise produced or supplied by those 
companies that supplied the exporter during the time period that formed 
the basis for the revocation.
    (c) Revocation or termination based on absence of countervailable 
subsidy. (1)(i) In determining whether to revoke a countervailing duty 
order or terminate a suspended countervailing duty investigation, the 
Secretary will consider:
    (A) Whether the government of the affected country has eliminated 
all countervailable subsidies on the subject merchandise by abolishing 
for the subject merchandise, for a period of at least three consecutive 
years, all programs that the Secretary has found countervailable;
    (B) Whether exporters and producers of the subject merchandise are 
continuing to receive any net countervailable subsidy from an abolished 
program referred to in paragraph (c)(1)(i)(A) of this section; and
    (C) Whether the continued application of the countervailing duty 
order or suspension of countervailing duty

[[Page 233]]

investigation is otherwise necessary to offset subsidization.
    (ii) If the Secretary determines, based upon the criteria in 
paragraphs (c)(1)(i)(A) through (C) of this section, that the 
countervailing duty order or suspension of the countervailing duty 
investigation is no longer warranted, the Secretary will revoke the 
order or terminate the suspended investigation.
    (2)(i) In determining whether to revoke a countervailing duty order 
or terminate a suspended countervailing duty investigation, the 
Secretary will consider:
    (A) Whether all exporters and producers covered at the time of 
revocation by the order or the suspension agreement have not applied for 
or received any net countervailable subsidy on the subject merchandise 
for a period of at least five consecutive years; and
    (B) Whether the continued application of the countervailing duty 
order or suspension of the countervailing duty investigation is 
otherwise necessary to offset subsidization.
    (ii) If the Secretary determines, based upon the criteria in 
paragraphs (c)(2)(i)(A) and (B) of this section, that the countervailing 
duty order or the suspension of the countervailing duty investigation is 
no longer warranted, the Secretary will revoke the order or terminate 
the suspended investigation.
    (3)(i) In determining whether to revoke a countervailing duty order 
in part, the Secretary will consider:
    (A) Whether one or more exporters or producers covered by the order 
have not applied for or received any net countervailable subsidy on the 
subject merchandise for a period of at least five consecutive years;
    (B) Whether, for any exporter or producer that the Secretary 
previously has determined to have received any net countervailable 
subsidy on the subject merchandise, the exporter or producer agrees in 
writing to their immediate reinstatement in the order, as long as any 
exporter or producer is subject to the order, if the Secretary concludes 
that the exporter or producer, subsequent to the revocation, has 
received any net countervailable subsidy on the subject merchandise; and
    (C) Whether the continued application of the countervailing duty 
order is otherwise necessary to offset subsidization.
    (ii) If the Secretary determines, based upon the criteria in 
paragraphs (c)(3)(i)(A) through (C) of this section, that the 
countervailing duty order as to those exporters or producers is no 
longer warranted, the Secretary will revoke the order as to those 
exporters or producers.
    (4) Revocation of nonproducing exporter. In the case of an exporter 
that is not the producer of subject merchandise, the Secretary normally 
will revoke an order in part under paragraph (c)(3) of this section only 
with respect to subject merchandise produced or supplied by those 
companies that supplied the exporter during the time period that formed 
the basis for the revocation.
    (d) Treatment of unreviewed intervening years--(1) In general. The 
Secretary will not revoke an order or terminate a suspended 
investigation under paragraphs (b) or (c) of this section unless the 
Secretary has conducted a review under this subpart of the first and 
third (or fifth) years of the three-and five-year consecutive time 
periods referred to in those paragraphs. The Secretary need not have 
conducted a review of an intervening year (see paragraph (d)(2) of this 
section). However, except in the case of a revocation or termination 
under paragraph (c)(1) of this section (government abolition of 
countervailable subsidy programs), before revoking an order or 
terminating a suspended investigation, the Secretary must be satisfied 
that, during each of the three (or five) years, there were exports to 
the United States in commercial quantities of the subject merchandise to 
which a revocation or termination will apply.
    (2) Intervening year. ``Intervening year'' means any year between 
the first and final year of the consecutive period on which revocation 
or termination is conditioned.
    (e) Request for revocation or termination--(1) Antidumping 
proceeding.

[[Page 234]]

During the third and subsequent annual anniversary months of the 
publication of an antidumping order or suspension of an antidumping 
investigation, an exporter or producer may request in writing that the 
Secretary revoke an order or terminate a suspended investigation under 
paragraph (b) of this section with regard to that person if the person 
submits with the request:
    (i) The person's certification that the person sold the subject 
merchandise at not less than normal value during the period of review 
described in Sec. 351.213(e)(1), and that in the future the person will 
not sell the merchandise at less than normal value;
    (ii) The person's certification that, during each of the consecutive 
years referred to in paragraph (b) of this section, the person sold the 
subject merchandise to the United States in commercial quantities; and
    (iii) If applicable, the agreement regarding reinstatement in the 
order or suspended investigation described in paragraph (b)(2)(iii) of 
this section.
    (2) Countervailing duty proceeding. (i) During the third and 
subsequent annual anniversary months of the publication of a 
countervailing duty order or suspension of a countervailing duty 
investigation, the government of the affected country may request in 
writing that the Secretary revoke an order or terminate a suspended 
investigation under paragraph (c)(1) of this section if the government 
submits with the request its certification that it has satisfied, during 
the period of review described in Sec. 351.213(e)(2), the requirements 
of paragraph (c)(1)(i) of this section regarding the abolition of 
countervailable subsidy programs, and that it will not reinstate for the 
subject merchandise those programs or substitute other countervailable 
subsidy programs;
    (ii) During the fifth and subsequent annual anniversary months of 
the publication of a countervailing duty order or suspended 
countervailing duty investigation, the government of the affected 
country may request in writing that the Secretary revoke an order or 
terminate a suspended investigation under paragraph (c)(2) of this 
section if the government submits with the request:
    (A) Certifications for all exporters and producers covered by the 
order or suspension agreement that they have not applied for or received 
any net countervailable subsidy on the subject merchandise for a period 
of at least five consecutive years (see paragraph (c)(2)(i) of this 
section);
    (B) Those exporters' and producers' certifications that they will 
not apply for or receive any net countervailable subsidy on the subject 
merchandise from any program the Secretary has found countervailable in 
any proceeding involving the affected country or from other 
countervailable programs (see paragraph (c)(2)(ii) of this section); and
    (C) A certification from each exporter or producer that, during each 
of the consecutive years referred to in paragraph (c)(2) of this 
section, that person sold the subject merchandise to the United States 
in commercial quantities; or
    (iii) During the fifth and subsequent annual anniversary months of 
the publication of a countervailing duty order, an exporter or producer 
may request in writing that the Secretary revoke the order with regard 
to that person if the person submits with the request:
    (A) A certification that the person has not applied for or received 
any net countervailable subsidy on the subject merchandise for a period 
of at least five consecutive years (see paragraph (c)(3)(i) of this 
section), including calculations demonstrating the basis for the 
conclusion that the person received zero or de minimis net 
countervailable subsidies during the review period of the administrative 
review in connection with which the person has submitted the request for 
revocation;
    (B) A certification that the person will not apply for or receive 
any net countervailable subsidy on the subject merchandise from any 
program the Secretary has found countervailable in any proceeding 
involving the affected country or from other countervailable programs 
(see paragraph (c)(3)(ii) of this section);
    (C) The person's certification that, during each of the consecutive 
years referred to in paragraph (c)(3) of this section, the person sold 
the subject

[[Page 235]]

merchandise to the United States in commercial quantities; and
    (D) The agreement described in paragraph (c)(3)(iii) of this section 
(reinstatement in order).
    (f) Procedures. (1) Upon receipt of a timely request for revocation 
or termination under paragraph (e) of this section, the Secretary will 
consider the request as including a request for an administrative review 
and will initiate and conduct a review under Sec. 351.213.
    (2) In addition to the requirements of Sec. 351.221 regarding the 
conduct of an administrative review, the Secretary will:
    (i) Publish with the notice of initiation under Sec. 351.221(b)(1), 
notice of ``Request for Revocation of Order (in part)'' or ``Request for 
Termination of Suspended Investigation'' (whichever is applicable);
    (ii) Conduct a verification under Sec. 351.307;
    (iii) Include in the preliminary results of review under Sec. 
351.221(b)(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 decides that there is a reasonable basis to 
believe that the requirements for revocation or termination are met, 
publish with the notice of preliminary results of review under Sec. 
351.221(b)(4) notice of ``Intent to Revoke Order (in Part)'' or ``Intent 
to Terminate Suspended Investigation'' (whichever is applicable);
    (v) Include in the final results of review under Sec. 351.221(b)(5) 
the Secretary's final decision whether the requirements for revocation 
or termination are met; and
    (vi) If the Secretary determines that the requirements for 
revocation or termination are met, publish with the notice of final 
results of review under Sec. 351.221(b)(5) notice of ``Revocation of 
Order (in Part)'' or ``Termination of Suspended Investigation'' 
(whichever is applicable).
    (3) If the Secretary revokes an order in whole or in part, the 
Secretary will order the suspension of liquidation terminated 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.
    (g) Revocation or termination based on changed circumstances. (1) 
The Secretary may revoke an order, in whole or in part, or terminate a 
suspended investigation if the Secretary concludes that:
    (i) Producers accounting for substantially all of the production of 
the domestic like product to which the order (or the part of the order 
to be revoked) or suspended investigation pertains have expressed a lack 
of interest in the order, in whole or in part, or suspended 
investigation (see section 782(h) of the Act); or
    (ii) Other changed circumstances sufficient to warrant revocation or 
termination exist.
    (2) If at any time the Secretary concludes from the available 
information that changed circumstances sufficient to warrant revocation 
or termination may exist, the Secretary will conduct a changed 
circumstances review under Sec. 351.216.
    (3) In addition to the requirements of Sec. 351.221, the Secretary 
will:
    (i) Publish with the notice of initiation (see Sec. 353.221(b)(1), 
notice of ``Consideration of Revocation of Order (in Part)'' or 
``Consideration of Termination of Suspended Investigation'' (whichever 
is applicable);
    (ii) If the Secretary's conclusion regarding the possible existence 
of changed circumstances (see paragraph (g)(2) of this section), is not 
based on a request, the Secretary, not later than the date of 
publication of the notice of ``Consideration of Revocation of Order (in 
Part)'' or ``Consideration of Termination of Suspended Investigation'' 
(whichever is applicable) (see paragraph (g)(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 that the Secretary has reason to believe is 
a domestic interested party;
    (iii) Conduct a verification, if appropriate, under Sec. 351.307;
    (iv) Include in the preliminary results of review, under Sec. 
351.221(b)(4), the Secretary's decision whether there is a reasonable 
basis to believe that

[[Page 236]]

changed circumstances warrant revocation or termination;
    (v) If the Secretary's preliminary decision is that changed 
circumstances warrant revocation or termination, publish with the notice 
of preliminary results of review, under Sec. 351.221(b)(4), notice of 
``Intent to Revoke Order (in Part)'' or ``Intent to Terminate Suspended 
Investigation'' (whichever is applicable);
    (vi) Include in the final results of review, under Sec. 
351.221(b)(5), the Secretary's final decision whether changed 
circumstances warrant revocation or termination; and
    (vii) If the Secretary's determines that changed circumstances 
warrant revocation or termination, publish with the notice of final 
results of review, under Sec. 351.221(b)(5), notice of ``Revocation of 
Order (in Part)'' or ``Termination of Suspended Investigation'' 
(whichever is applicable).
    (4) If the Secretary revokes an order, in whole or in part, under 
paragraph (g) of this section, 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.
    (h) Revocation or termination based on injury reconsideration. If 
the Commission determines in a changed circumstances review under 
section 751(b)(2) of the Act that the revocation of an order or 
termination of a suspended investigation is not likely to lead to 
continuation or recurrence of material injury, 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 ``Termination of Suspended 
Investigation'' (whichever is applicable).
    (i) Revocation or termination based on sunset review--(1) 
Circumstances under which the Secretary will revoke an order or 
terminate a suspended investigation. In the case of a sunset review 
under Sec. 351.218, the Secretary will revoke an order or terminate a 
suspended investigation:
    (i) Under section 751(c)(3)(A) of the Act, where no domestic 
interested party files a Notice of Intent to Participate in the sunset 
review under Sec. 351.218(d)(1), or where the Secretary determines 
under Sec. 351.218(e)(1)(i)(C) that domestic interested parties have 
provided inadequate response to the Notice of Initiation, not later than 
90 days after the date of publication in the Federal Register of the 
notice of initiation;
    (ii) Under section 751(d)(2) of the Act, where the Secretary 
determines that revocation or termination is not likely to lead to 
continuation or recurrence of a countervailable subsidy or dumping (see 
section 752(b) and section 752(c) of the Act), as applicable, not later 
than 240 days (or 330 days where a full sunset review is fully extended) 
after the date of publication in the Federal Register of the notice of 
initiation; or
    (iii) Under section 751(d)(2) of the Act, where the International 
Trade Commission makes a determination, under section 752(a) of the Act, 
that revocation or termination is not likely to lead to continuation or 
recurrence of material injury, not later than seven days after the date 
of publication in the Federal Register of the International Trade 
Commission's determination concluding the sunset review.
    (2) Effective date of revocation--(i) In general. Except as provided 
in paragraph (i)(2)(ii) of this section, where the Secretary revokes an 
order or terminates a suspended investigation, pursuant to section 
751(c)(3)(A) or section 751(d)(2) of the Act (see paragraph (i)(1) of 
this section), the revocation or termination will be effective on the 
fifth anniversary of the date of publication in the Federal Register of 
the order or suspended investigation, as applicable. This paragraph also 
applies to subsequent sunset reviews of transition orders (see paragraph 
(i)(2)(ii) of this section and section 751(c)(6)(A)(iii) of the Act).
    (ii) Transition orders. Where the Secretary revokes a transition 
order (defined in section 751(c)(6)(C) of the Act) pursuant to section 
751(c)(3)(A) or section 751(d)(2) of the Act (see paragraph (i)(1) of 
this section), the revocation or termination will be effective on 
January 1, 2000. This paragraph does not apply to subsequent sunset 
reviews of

[[Page 237]]

transition orders (see section 751(c)(6)(A)(iii) of the Act).
    (j) Revocation of countervailing duty order based on Commission 
negative determination under section 753 of the Act. The Secretary will 
revoke a countervailing duty order, and will order the refund, with 
interest, of any estimated countervailing duties collected during the 
period liquidation was suspended under section 753(a)(4) of the Act upon 
being notified by the Commission that:
    (1) The Commission has determined that an industry in the United 
States is not likely to be materially injured if the countervailing duty 
order in question is revoked (see section 753(a)(1) of the Act); or
    (2) A domestic interested party did not make a timely request for an 
investigation under section 753(a) of the Act (see section 753(a)(3) of 
the Act).
    (k) Revocation based on Article 4/Article 7 review--(1) In general. 
The Secretary may revoke a countervailing duty order, in whole or in 
part, following an Article 4/Article 7 review under Sec. 351.217(c), 
due to the imposition of countermeasures by the United States or the 
withdrawal of a countervailable subsidy by a WTO member country (see 
section 751(g)(2) of the Act).
    (2) Additional Requirements. In addition to the requirements of 
Sec. 351.221, if the Secretary determines to revoke an order as the 
result of an Article 4/Article 7 review, the Secretary will:
    (i) Conduct a verification, if appropriate, under Sec. 351.307;
    (ii) Include in the final results of review, under Sec. 
351.221(b)(5), the Secretary's final decision whether the order should 
be revoked;
    (iii) If the Secretary's final decision is that the order should be 
revoked:
    (A) Determine the effective date of the revocation;
    (B) Publish with the notice of final results of review, under Sec. 
351.221(b)(5), a notice of ``Revocation of Order (in Part),'' that will 
include the effective date of the revocation; and
    (C) Order any suspension of liquidation ended for merchandise 
covered by the revocation that was entered on or after the effective 
date of the revocation, and instruct the Customs Service to release any 
cash deposit or bond.
    (l) Revocation under section 129. The Secretary may revoke an order 
under section 129 of the URAA (implementation of WTO dispute 
settlement).
    (m) Transition rule. In the case of time periods that, under section 
291(a)(2) of the URAA, are subject to review under the provisions of the 
Act prior to its amendment by the URAA, and for purposes of determining 
whether the three-or five-year requirements of paragraphs (b) and (c) of 
this section are satisfied, the following rules will apply:
    (1) Antidumping proceedings. The Secretary will consider sales at 
not less than foreign market value to be equivalent to sales at not less 
than normal value.
    (2) Countervailing duty proceedings. The Secretary will consider the 
absence of a subsidy, as defined in section 771(5) of the Act prior to 
its amendment by the URAA, to be equivalent to the absence of a 
countervailable subsidy, as defined in section 771(5) of the Act, as 
amended by the URAA.
    (n) Cross-reference. For the treatment in a subsequent investigation 
of business proprietary information submitted to the Secretary in 
connection with a changed circumstances review under Sec. 351.216 or a 
sunset review under Sec. 351.218 that results in the revocation of an 
order (or termination of a suspended investigation), see section 
777(b)(3) of the Act.

[62 FR 27379, May 19, 1997, as amended at 63 FR 13523, Mar. 20, 1998; 64 
FR 51240, Sept. 22, 1999]



Sec. 351.223  Procedures for initiation of downstream product 
monitoring.

    (a) Introduction. Section 780 of the Act establishes a mechanism for 
monitoring imports of ``downstream products.'' In general, section 780 
is aimed at situations where, following the issuance of an antidumping 
or countervailing duty order on a product that is used as a component in 
another product, exports to the United States of that other (or 
``downstream'') product increase. Although the Department is responsible 
for determining whether trade in the downstream product should be 
monitored, the Commission is responsible for conducting the actual

[[Page 238]]

monitoring. The Commission must report the results of its monitoring to 
the Department, and the Department must consider the reports in 
determining whether to self-initiate an antidumping or countervailing 
duty investigation on the downstream product. This section contains 
rules regarding applications for the initiation of downstream product 
monitoring and decisions regarding such applications.
    (b) Contents of application. An application to designate a 
downstream product for monitoring under section 780 of the Act must 
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 that is 
incorporated into the 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 country of production of both the downstream and 
component products and the name of any intermediate country from which 
the merchandise is imported;
    (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 
that have been suspended, or antidumping or countervailing duty orders 
that have been issued, on merchandise that is related to the component 
part and that is manufactured in the same foreign country in which the 
component part is manufactured;
    (8) A list of all antidumping or countervailing duty investigations 
that have been suspended, or antidumping or countervailing duty orders 
that have been issued, on merchandise that is manufactured or exported 
by the manufacturer or exporter of the component part and 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 
States of the downstream product.
    (c) Determination of sufficiency of application. Within 14 days 
after an application is filed under paragraph (b) of this section, the 
Secretary will rule on the sufficiency of the application by making the 
determinations described in section 780(a)(2) of the Act.
    (d) Notice of Determination. The Secretary will publish in the 
Federal Register notice of each affirmative or negative ``monitoring'' 
determination made under section 780(a)(2) of the Act, and if the 
determination under section 780(a)(2)(A) of the Act and a determination 
made under any clause of section 780(a)(2)(B) of the Act 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, 
the information upon which the Secretary based the initiation.



Sec. 351.224  Disclosure of calculations and procedures for the 
correction of ministerial errors.

    (a) Introduction. In the interests of transparency, the Department 
has long had a practice of providing parties with the details of its 
antidumping and countervailing duty calculations. This practice has come 
to be referred to as a ``disclosure.'' This section contains rules 
relating to requests for disclosure and procedures for correcting 
ministerial errors.
    (b) Disclosure. The Secretary will disclose to a party to the 
proceeding calculations performed, if any, in connection with a 
preliminary determination

[[Page 239]]

under section 703(b) or section 733(b) of the Act, a final determination 
under section 705(a) or section 735(a) of the Act, and a final results 
of a review under section 736(c), section 751, or section 753 of the 
Act, normally within five days after the date of any public announcement 
or, if there is no public announcement of, within five days after the 
date of publication of, the preliminary determination, final 
determination, or final results of review (whichever is applicable). The 
Secretary will disclose to a party to the proceeding calculations 
performed, if any, in connection with a preliminary results of review 
under section 751 or section 753 of the Act, normally not later than ten 
days after the date of the public announcement of, or, if there is no 
public announcement, within five days after the date of publication of, 
the preliminary results of review.
    (c) Comments regarding ministerial errors--(1) In general. A party 
to the proceeding to whom the Secretary has disclosed calculations 
performed in connection with a preliminary determination may submit 
comments concerning a significant ministerial error in such 
calculations. A party to the proceeding to whom the Secretary has 
disclosed calculations performed in connection with a final 
determination or the final results of a review may submit comments 
concerning any ministerial error in such calculations. Comments 
concerning ministerial errors made in the preliminary results of a 
review should be included in a party's case brief.
    (2) Time limits for submitting comments. A party to the proceeding 
must file comments concerning ministerial errors within five days after 
the earlier of:
    (i) The date on which the Secretary released disclosure documents to 
that party; or
    (ii) The date on which the Secretary held a disclosure meeting with 
that party.
    (3) Replies to comments. Replies to comments submitted under 
paragraph (c)(1) of this section must be filed within five days after 
the date on which the comments were filed with the Secretary. The 
Secretary will not consider replies to comments submitted in connection 
with a preliminary determination.
    (4) Extensions. A party to the proceeding may request an extension 
of the time limit for filing comments concerning a ministerial error in 
a final determination or final results of review under Sec. 351.302(c) 
within three days after the date of any public announcement, or, if 
there is no public announcement, within five days after the date of 
publication of the final determination or final results of review, as 
applicable. The Secretary will not extend the time limit for filing 
comments concerning a significant ministerial error in a preliminary 
determination.
    (d) Contents of comments and replies. Comments filed under paragraph 
(c)(1) of this section must explain the alleged ministerial error by 
reference to applicable evidence in the official record, and must 
present what, in the party's view, is the appropriate correction. In 
addition, comments concerning a preliminary determination must 
demonstrate how the alleged ministerial error is significant (see 
paragraph (g) of this section) by illustrating the effect on individual 
weighted-average dumping margin or countervailable subsidy rate, the 
all-others rate, or the country-wide subsidy rate (whichever is 
applicable). Replies to any comments must be limited to issues raised in 
such comments.
    (e) Corrections. The Secretary will analyze any comments received 
and, if appropriate, correct any significant ministerial error by 
amending the preliminary determination, or correct any ministerial error 
by amending the final determination or the final results of review 
(whichever is applicable). Where practicable, the Secretary will 
announce publicly the issuance of a correction notice, and normally will 
do so within 30 days after the date of public announcement, or, if there 
is no public announcement, within 30 days after the date of publication, 
of the preliminary determination, final determination, or final results 
of review (whichever is applicable). In addition, the Secretary will 
publish notice of such corrections in the Federal Register. A correction 
notice will not alter the anniversary

[[Page 240]]

month of an order or suspended investigation for purposes of requesting 
an administrative review (see Sec. 351.213) or a new shipper review 
(see Sec. 351.214) or initiating a sunset review (see Sec. 351.218).
    (f) Definition of ``ministerial error.'' Under 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 similar type of unintentional 
error which the Secretary considers ministerial.
    (g) Definition of ``significant ministerial error.'' Under this 
section, significant ministerial error means a ministerial error (see 
paragraph (f) of this section), the correction of which, either singly 
or in combination with other errors:
    (1) Would result in a change of at least five absolute percentage 
points in, but not less than 25 percent of, the weighted-average dumping 
margin or the countervailable subsidy rate (whichever is applicable) 
calculated in the original (erroneous) preliminary determination; or
    (2) Would result in a difference between a weighted-average dumping 
margin or countervailable subsidy rate (whichever is applicable) of zero 
(or de minimis) and a weighted-average dumping margin or countervailable 
subsidy rate of greater than de minimis, or vice versa.



Sec. 351.225  Scope rulings.

    (a) Introduction. Issues arise as to whether a particular product is 
included within the scope of an antidumping or countervailing duty order 
or a suspended investigation. Such issues can arise because the 
descriptions of subject merchandise contained in the Department's 
determinations must be written in general terms. At other times, a 
domestic interested party may allege that changes to an imported product 
or the place where the imported product is assembled constitutes 
circumvention under section 781 of the Act. When such issues arise, the 
Department issues ``scope rulings'' that clarify the scope of an order 
or suspended investigation with respect to particular products. This 
section contains rules regarding scope rulings, requests for scope 
rulings, procedures for scope inquiries, and standards used in 
determining whether a product is within the scope of an order or 
suspended investigation.
    (b) 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 or countervailing duty 
order or a suspended investigation, the Secretary will initiate an 
inquiry, and will notify all parties on the Department's scope service 
list of its initiation of a scope inquiry.
    (c) By application--(1) Contents and service of application. Any 
interested party may apply for a ruling as to whether a particular 
product is within the scope of an order or a suspended investigation. 
The application must be served upon all parties on the scope service 
list described in paragraph (n) of this section, and must contain the 
following, to the extent reasonably available to the interested party:
    (i) A detailed description of the product, including its technical 
characteristics and uses, and its current U.S. Tariff Classification 
number;
    (ii) A statement of the interested party's position as to whether 
the product is within the scope of an order or a suspended 
investigation, including:
    (A) A summary of the reasons for this conclusion,
    (B) Citations to any applicable statutory authority, and
    (C) Any factual information supporting this position, including 
excerpts from portions of the Secretary's or the Commission's 
investigation, and relevant prior scope rulings.
    (2) Deadline for action on application. Within 45 days of the date 
of receipt of an application for a scope ruling, the Secretary will 
issue a final ruling under paragraph (d) of this section or will 
initiate a scope inquiry under paragraph (e) of this section.
    (d) Ruling based upon the application. If the Secretary can 
determine, based solely upon the application and the descriptions of the 
merchandise referred to in paragraph (k)(1) of this section, whether a 
product is included within the scope of an order or a suspended 
investigation, the Secretary will issue a

[[Page 241]]

final ruling as to whether the product is included within the order or 
suspended investigation. The Secretary will notify all persons on the 
Department's scope service list (see paragraph (n) of this section) of 
the final ruling.
    (e) Ruling where further inquiry is warranted. If the Secretary 
finds that the issue of whether a product is included within the scope 
of an order or a suspended investigation cannot be determined based 
solely upon the application and the descriptions of the merchandise 
referred to in paragraph (k)(1) of this section, the Secretary will 
notify by mail all parties on the Department's scope service list of the 
initiation of a scope inquiry.
    (f) Notice and procedure. (1) Notice of the initiation of a scope 
inquiry issued under paragraph (b) or (e) of this section will include:
    (i) A description of the product that is the subject of the scope 
inquiry; and
    (ii) An explanation of the reasons for the Secretary's decision to 
initiate a scope inquiry;
    (iii) A schedule for submission of comments that normally will allow 
interested parties 20 days in which to provide comments on, and 
supporting factual information relating to, the inquiry, and 10 days in 
which to provide any rebuttal to such comments.
    (2) The Secretary may issue questionnaires and verify submissions 
received, where appropriate.
    (3) Whenever the Secretary finds 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 or 
suspended investigation. The Secretary will notify all parties on the 
Department's scope service list (see paragraph (n) of this section) of 
the preliminary scope ruling, and will invite comment. Unless otherwise 
specified, interested parties will have within twenty days from the date 
of receipt of the notification in which to submit comments, and ten days 
thereafter in which to submit rebuttal comments.
    (4) The Secretary will issue a final ruling as to whether the 
product which is the subject of the scope inquiry is included within the 
order or suspended investigation, including an explanation of the 
factual and legal conclusions on which the final ruling is based. The 
Secretary will notify all parties on the Department's scope service list 
(see paragraph (n) of this section) of the final scope ruling.
    (5) The Secretary will issue a final ruling under paragraph (k) of 
this section (other scope rulings) normally within 120 days of the 
initiation of the inquiry under this section. The Secretary will issue a 
final ruling under paragraph (g), (h), (i), or (j) of this section 
(circumvention rulings under section 781 of the Act) normally within 300 
days from the date of the initiation of the scope inquiry.
    (6) When an administrative review under Sec. 351.213, a new shipper 
review under Sec. 351.214, or an expedited antidumping review under 
Sec. 351.215 is in progress at the time the Secretary provides notice 
of the initiation of a scope inquiry (see paragraph (e)(1) of this 
section), the Secretary may conduct the scope inquiry in conjunction 
with that review.
    (7)(i) The Secretary will notify the Commission in writing of the 
proposed inclusion of products in an order prior to issuing a final 
ruling under paragraph (f)(4) of this section based on a determination 
under:
    (A) Section 781(a) of the Act with respect to merchandise completed 
or assembled in the United States (other than minor completion or 
assembly);
    (B) Section 781(b) of the Act with respect to merchandise completed 
or assembled in other foreign countries; or
    (C) Section 781(d) of the Act with respect to later-developed 
products which incorporate a significant technological advance or 
significant alteration of an earlier product.
    (ii) If the Secretary notifies the Commission under paragraph 
(f)(7)(i) of this section, 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, after consultation, the Commission 
believes that a significant injury issue is presented by the proposed 
inclusion

[[Page 242]]

of a product within an order, the Commission may provide written advice 
to the Secretary as to whether the inclusion would be inconsistent with 
the affirmative injury determination of the Commission on which the 
order is based.
    (g) Products completed or assembled in the United States. Under 
section 781(a) of the Act, the Secretary may include within the scope of 
an antidumping or countervailing duty order imported parts or components 
referred to in section 781(a)(1)(B) of the Act that are used in the 
completion or assembly of the merchandise in the United States at any 
time such order is in effect. In making this determination, the 
Secretary will not consider any single factor of section 781(a)(2) of 
the Act to be controlling. In determining the value of parts or 
components purchased from an affiliated person under section 
781(a)(1)(D) of the Act, or of processing performed by an affiliated 
person under section 781(a)(2)(E) of the Act, the Secretary may 
determine the value of the part or component on the basis of the cost of 
producing the part or component under section 773(f)(3) of the Act.
    (h) Products completed or assembled in other foreign countries. 
Under section 781(b) of the Act, the Secretary may include within the 
scope of an antidumping or countervailing duty order, at any time such 
order is in effect, imported merchandise completed or assembled in a 
foreign country other than the country to which the order applies. In 
making this determination, the Secretary will not consider any single 
factor of section 781(b)(2) of the Act to be controlling. In determining 
the value of parts or components purchased from an affiliated person 
under section 781(b)(1)(D) of the Act, or of processing performed by an 
affiliated person under section 781(b)(2)(E) of the Act, the Secretary 
may determine the value of the part or component on the basis of the 
cost of producing the part or component under section 773(f)(3) of the 
Act.
    (i) Minor alterations of merchandise. Under section 781(c) of the 
Act, the Secretary may include within the scope of an antidumping or 
countervailing duty order articles altered in form or appearance in 
minor respects.
    (j) Later-developed merchandise. In determining whether later-
developed merchandise is within the scope of an antidumping or 
countervailing duty order, the Secretary will apply section 781(d) of 
the Act.
    (k) Other scope determinations. With respect to those scope 
determinations that are not covered under paragraphs (g) through (j) of 
this section, in considering whether a particular product is included 
within the scope of an order or a suspended investigation, 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 
(including prior scope determinations) 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;
    (iv) The channels of trade in which the product is sold; and
    (v) The manner in which the product is advertised and displayed.
    (l) Suspension of liquidation. (1) When the Secretary conducts a 
scope inquiry under paragraph (b) or (e) of this section, and the 
product in question is already subject to suspension of liquidation, 
that suspension of liquidation will be continued, pending a preliminary 
or a final scope ruling, at the cash deposit rate that would apply if 
the product were ruled to be included within the scope of the order.
    (2) If the Secretary issues a preliminary scope ruling under 
paragraph (f)(3) of this section to the effect that the product in 
question is included within the scope of the order, any suspension of 
liquidation described in paragraph (l)(1) of this section will continue. 
If liquidation has not been suspended, the Secretary will instruct the 
Customs Service to suspend liquidation and to require a cash deposit of 
estimated duties, at the applicable rate, for each unliquidated entry of 
the product entered, or withdrawn from warehouse, for consumption on or 
after the

[[Page 243]]

date of initiation of the scope inquiry. If the Secretary issues a 
preliminary scope ruling to the effect that the product in question is 
not included within the scope of the order, the Secretary will order any 
suspension of liquidation on the product ended, and will instruct the 
Customs Service to refund any cash deposits or release any bonds 
relating to that product.
    (3) If the Secretary issues a final scope ruling, under either 
paragraph (d) or (f)(4) of this section, to the effect that the product 
in question is included within the scope of the order, any suspension of 
liquidation under paragraph (l)(1) or (l)(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 
to require a cash deposit of estimated duties, at the applicable rate, 
for each unliquidated entry of the product entered, or withdrawn from 
warehouse, for consumption on or after the date of initiation of the 
scope inquiry. If the Secretary's final scope ruling is to the effect 
that the product in question 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.
    (4) If, within 90 days of the initiation of a review of an order or 
a suspended investigation under this subpart, the Secretary issues a 
final ruling that a product is included within the scope of the order or 
suspended investigation that is the subject of the review, the 
Secretary, where practicable, will include sales of that product for 
purposes of the review and will seek information regarding such sales. 
If the Secretary issues a final ruling after 90 days of the initiation 
of the review, the Secretary may consider sales of the product for 
purposes of the review on the basis of non-adverse facts available. 
However, notwithstanding the pendency of a scope inquiry, if the 
Secretary considers it appropriate, the Secretary may request 
information concerning the product that is the subject of the scope 
inquiry for purposes of a review under this subpart.
    (m) Orders covering identical products. Except for a scope inquiry 
and a scope ruling that involves section 781(a) or section 781(b) of the 
Act (assembly of parts or components in the United States or in a third 
country), if more than one order or suspended investigation cover the 
same subject merchandise, and if the Secretary considers it appropriate, 
the Secretary may conduct a single inquiry and issue a single scope 
ruling that applies to all such orders or suspended investigations.
    (n) Service of applications; scope service list. The requirements of 
Sec. 351.303(f) apply to this section, except that an application for a 
scope ruling must be served on all persons on the Department's scope 
service list. For purposes of this section, the ``scope service list'' 
will include all persons that have participated in any segment of the 
proceeding. If an application for a scope ruling in one proceeding 
results in a single inquiry that will apply to another proceeding (see 
paragraph (m) of this section), the Secretary will notify persons on the 
scope service list of the other proceeding of the application for a 
scope ruling.
    (o) Publication of list of scope rulings. On a quarterly basis, the 
Secretary will publish in the Federal Register a list of scope rulings 
issued within the last three months. This list will include the case 
name, reference number, and a brief description of the ruling.



                   Subpart C_Information and Argument



Sec. 351.301  Time limits for submission of factual information.

    (a) Introduction. The Department obtains most of its factual 
information in antidumping and countervailing duty proceedings from 
submissions made by interested parties during the course of the 
proceeding. This section sets forth the time limits for submitting such 
factual information, including information in questionnaire responses, 
publicly available information to value factors in nonmarket economy 
cases, allegations concerning market viability, allegations of sales at 
prices below the cost of production, countervailable subsidy 
allegations, and upstream subsidy allegations. Section 351.302 sets

[[Page 244]]

forth the procedures for requesting an extension of such time limits. 
Section 351.303 contains the procedural rules regarding filing, format, 
translation, service, and certification of documents.
    (b) Time limits in general. Except as provided in paragraphs (c) and 
(d) of this section and Sec. 351.302, a submission of factual 
information is due no later than:
    (1) For a final determination in a countervailing duty investigation 
or an antidumping investigation, seven days before the date on which the 
verification of any person is scheduled to commence, except that factual 
information requested by the verifying officials from a person normally 
will be due no later than seven days after the date on which the 
verification of that person is completed;
    (2) For the final results of an administrative review, 140 days 
after the last day of the anniversary month, except that factual 
information requested by the verifying officials from a person normally 
will be due no later than seven days after the date on which the 
verification of that person is completed;
    (3) For the final results of a changed circumstances review, sunset 
review, or section 762 review, 140 days after the date of publication of 
notice of initiation of the review, except that factual information 
requested by the verifying officials from a person normally will be due 
no later than seven days after the date on which the verification of 
that person is completed;
    (4) For the final results of a new shipper review, 100 days after 
the date of publication of notice of initiation of the review, except 
that factual information requested by the verifying officials from a 
person normally will be due no later than seven days after the date on 
which the verification of that person is completed; and
    (5) For the final results of an expedited antidumping review, 
Article 8 violation review, Article 4/Article 7 review, or section 753 
review, a date specified by the Secretary.
    (c) Time limits for certain submissions--(1) Rebuttal, 
clarification, or correction of factual information. Any interested 
party may submit factual information to rebut, clarify, or correct 
factual information submitted by any other interested party at any time 
prior to the deadline provided in this section for submission of such 
factual information. If factual information is submitted less than 10 
days before, on, or after (normally only with the Department's 
permission) the applicable deadline for submission of such factual 
information, an interested party may submit factual information to 
rebut, clarify, or correct the factual information no later than 10 days 
after the date such factual information is served on the interested 
party or, if appropriate, made available under APO to the authorized 
applicant.
    (2) Questionnaire responses and other submissions on request. (i) 
Notwithstanding paragraph (b) of this section, the Secretary may request 
any person to submit factual information at any time during a 
proceeding.
    (ii) 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 following: the time limit for the response; 
the information to be provided; the form and manner in which the 
interested party must submit the information; and that failure to submit 
requested information in the requested form and manner by the date 
specified may result in use of the facts available under section 776 of 
the Act and Sec. 351.308.
    (iii) Interested parties will have at least 30 days from the date of 
receipt to respond to the full initial questionnaire. The time limit for 
response to individual sections of the questionnaire, if the Secretary 
requests a separate response to such sections, may be less than the 30 
days allotted for response to the full questionnaire. The date of 
receipt will be seven days from the date on which the initial 
questionnaire was transmitted.
    (iv) A notification by an interested party, under section 782(c)(1) 
of the Act, of difficulties in submitting information in response to a 
questionnaire issued by the Secretary is to be submitted in writing 
within 14 days after the date of receipt of the initial questionnaire.

[[Page 245]]

    (v) A respondent interested party may request in writing that the 
Secretary conduct a questionnaire presentation. The Secretary may 
conduct a questionnaire presentation if the Secretary notifies the 
government of the affected country and that government does not object.
    (3) Submission of publicly available information to value factors 
under Sec. 351.408(c). Notwithstanding paragraph (b) of this section, 
interested parties may submit publicly available information to value 
factors under Sec. 351.408(c) within:
    (i) For a final determination in an antidumping investigation, 40 
days after the date of publication of the preliminary determination;
    (ii) For the final results of an administrative review, new shipper 
review, or changed circumstances review, 20 days after the date of 
publication of the preliminary results of review; and
    (iii) For the final results of an expedited antidumping review, a 
date specified by the Secretary.
    (d) Time limits for certain allegations--(1) Market viability and 
the basis for determining a price-based normal value. In an antidumping 
investigation or administrative review, allegations regarding market 
viability, including the exceptions in Sec. 351.404(c)(2), are due, 
with all supporting factual information, within 40 days after the date 
on which the initial questionnaire was transmitted, unless the Secretary 
alters this time limit.
    (2) Sales at prices below the cost of production. An allegation of 
sales at prices below the cost of production made by the petitioner or 
other domestic interested party is due within:
    (i) In an antidumping investigation,
    (A) On a country-wide basis, 20 days after the date on which the 
initial questionnaire was transmitted to any person, unless the 
Secretary alters this time limit; or
    (B) On a company-specific basis, 20 days after a respondent 
interested party files the response to the relevant section of the 
questionnaire, unless the relevant questionnaire response is, in the 
Secretary's view, incomplete, in which case the Secretary will determine 
the time limit;
    (ii) In an administrative review, new shipper review, or changed 
circumstances review, on a company-specific basis, 20 days after a 
respondent interested party files the response to the relevant section 
of the questionnaire, unless the relevant questionnaire response is, in 
the Secretary's view, incomplete, in which case the Secretary will 
determine the time limit; or
    (iii) In an expedited antidumping review, on a company-specific 
basis, 10 days after the date of publication of the notice of initiation 
of the review.
    (3) Purchases of major inputs from an affiliated party at prices 
below the affiliated party's cost of production. An allegation of 
purchases of major inputs from an affiliated party at prices below the 
affiliated party's cost of production made by the petitioner or other 
domestic interested party is due within 20 days after a respondent 
interested party files the response to the relevant section of the 
questionnaire, unless the relevant questionnaire response is, in the 
Secretary's view, incomplete, in which case the Secretary will determine 
the time limits.
    (4) Countervailable subsidy; upstream subsidy--(i) In general. A 
counter vailable subsidy allegation made by the petitioner or other 
domestic interested party is due no later than:
    (A) In a countervailing duty investigation, 40 days before the 
scheduled date of the preliminary determination; or
    (B) In an administrative review, new shipper review, or changed 
circumstances review, 20 days after all responses to the initial 
questionnaire are filed with the Department, unless the Secretary alters 
this time limit.
    (ii) Exception for upstream subsidy allegation in an investigation. 
In a countervailing duty investigation, an allegation of upstream 
subsidies made by the petitioner or other domestic interested party is 
due no later than:
    (A) 10 days before the scheduled date of the preliminary 
determination; or
    (B) 15 days before the scheduled date of the final determination.
    (5) Targeted dumping. In an antidumping investigation, an allegation 
of targeted dumping made by the petitioner or other domestic interested

[[Page 246]]

party under Sec. 351.414(f)(3) is due no later than 30 days before the 
scheduled date of the preliminary determination.
    (6) Green light and Green box claims. (i) In general. A claim that a 
particular subsidy or subsidy program should be accorded non-
countervailable status under section 771(5B),(C), or (D) of the Act 
(``green light subsidies'') or under section 771(5B)(F) of the Act 
(``green box subsidies'' must be made by the competent government with 
the full participation of the government authority responsible for 
funding and/or administering the program. Such claims are due no later 
than:
    (i) In a countervailing duty investigation, 40 days before the 
scheduled date of the preliminary determination, or
    (ii) In an administrative review, new shipper review, or changed 
circumstance review, 20 days afer all responses to the initial 
questionnaires are filed with the Department, unless the Secretary 
alters this time limit.
    (7) Investigation of notified subsidies. If the Secretary determines 
that there is insufficient evidence to demonstrate that an alleged 
subsidy or subsidy program has been notified under Article 8.3 of the 
WTO Subsidies and Countervailing Measures Agreement, the alleged subsidy 
or subsidy program will be included in the countervailing duty 
investigation or administrative, new shipper, or changed circumstance 
review. If the government authority claiming green light status 
establishes to the Secretary's satisfaction that the alleged subsidy or 
subsidy program has been notified, the Secretary will terminate the 
investigation of the notified subsidy.

[62 FR 27379, May 19, 1997, as amended at 63 FR 65417, Nov. 25, 1998]



Sec. 351.302  Extension of time limits; return of untimely filed or 
unsolicited material.

    (a) Introduction. This section sets forth the procedures for 
requesting an extension of a time limit. In addition, this section 
explains that certain untimely filed or unsolicited material will be 
returned to the submitter together with an explanation of the reasons 
for the return of such material.
    (b) Extension of time limits. Unless expressly precluded by statute, 
the Secretary may, for good cause, extend any time limit established by 
this part.
    (c) Requests for extension of specific time limit. Before the 
applicable time limit specified under Sec. 351.301 expires, a party may 
request an extension pursuant to paragraph (b) of this section. The 
request must be in writing and state the reasons for the request. An 
extension granted to a party must be approved in writing.
    (d) Return of untimely filed or unsolicited material. (1) Unless the 
Secretary extends a time limit under paragraph (b) of this section, the 
Secretary will not consider or retain in the official record of the 
proceeding:
    (i) Untimely filed factual information, written argument, or other 
material that the Secretary returns to the submitter, except as provided 
under Sec. 351.104(a)(2); or
    (ii) Unsolicited questionnaire responses, except as provided under 
Sec. 351.204(d)(2).
    (2) The Secretary will return such information, argument, or other 
material, or unsolicited questionnaire response with, to the extent 
practicable, written notice stating the reasons for return.



Sec. 351.303  Filing, format, translation, service, and certification
of documents.

    (a) Introduction. This section contains the procedural rules 
regarding filing, format, service, translation, and certification of 
documents and applies to all persons submitting documents to the 
Department for consideration in an antidumping or countervailing duty 
proceeding.
    (b) Where to file; time of filing. Persons must address and submit 
all documents to the Secretary of Commerce, Attention: Import 
Administration, Central Records Unit, Room 1870, U.S. Department of 
Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230, 
between the hours of 8:30 a.m. and 5:00 p.m. on business days (see Sec. 
351.103(b)). If the applicable time limit expires on a non-business day, 
the Secretary will accept documents that are filed on the next business 
day.

[[Page 247]]

    (c) Number of copies; filing of business proprietary and public 
versions under the one-day lag rule; information in double brackets--(1) 
In general. Except as provided in paragraphs (c)(2) and (c)(3) of this 
section, a person must file six copies of each submission with the 
Department.
    (2) Application of the one-day lag rule--(i) Filing the business 
proprietary version. A person must file one copy of the business 
proprietary version of any document with the Department within the 
applicable time limit. Business proprietary version means the version of 
a document containing information for which a person claims business 
proprietary treatment under Sec. 351.304.
    (ii) Filing the final business proprietary version; bracketing 
corrections. By the close of business one business day after the date 
the business proprietary version is filed under paragraph (c)(2)(i) of 
this section, a person must file six copies of the final business 
proprietary version of the document with the Department. The final 
business proprietary version must be identical to the business 
proprietary version filed on the previous day except for any bracketing 
corrections. Although a person must file six copies of the complete 
final business proprietary version with the Department, the person may 
serve other persons with only those pages containing bracketing 
corrections.
    (iii) Filing the public version. Simultaneously with the filing of 
the final business proprietary version under paragraph (c)(2)(ii) of 
this section, a person also must file three copies of the public version 
of such document (see Sec. 351.304(c)) with the Department.
    (iv) Information in double brackets. If a person serves authorized 
applicants with a business proprietary version of a document that 
excludes information in double brackets pursuant to Sec. 351.304(b)(2), 
the person simultaneously must file with the Department one copy of 
those pages in which information in double brackets has been excluded.
    (3) Computer media and printouts. The Secretary may require 
submission of factual information on computer media unless the Secretary 
modifies such requirements under section 782(c) of the Act (see Sec. 
351.301(c)(2)(iv)). The computer medium must be accompanied by the 
number of copies of any computer printout specified by the Secretary. 
All information on computer media must be releasable under APO (see 
Sec. 351.305).
    (d) Format of copies--(1) In general. Unless the Secretary alters 
the requirements of this section, documents filed with the Department 
must conform to the specification and marking requirements under 
paragraph (d)(2) of this section or the Secretary may refuse to accept 
such documents for the official record of the proceeding.
    (2) Specifications and markings. A person must submit documents on 
letter-size paper, single-sided and double-spaced, and must securely 
bind each copy as a single document with any letter of transmittal as 
the first page of the document. A submitter must 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, indicate the 
Department case number;
    (ii) On the second line, indicate the total number of pages in the 
document including cover pages, appendices, and any unnumbered pages;
    (iii) On the third line, indicate whether the document is for an 
investigation, scope inquiry, circumvention inquiry, downstream product 
monitoring application, or review and, if the latter, indicate the 
inclusive dates of the review, the type of review, and the section 
number of the Act corresponding to the type of review;
    (iv) On the fourth line, indicate the Department office conducting 
the proceeding;
    (v) On the fifth and subsequent lines, indicate whether any portion 
of the document contains business 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.'' 
Indicate ``Business Proprietary Treatment Requested'' on the top of each 
page containing business proprietary information. In addition, include 
the warning ``Bracketing of Business Proprietary Information is Not 
Final for One Business Day After Date of Filing'' on the

[[Page 248]]

top of each page containing business proprietary information in the copy 
of the business proprietary version filed under Sec. 351.303(c)(2)(i) 
(one-day lag rule). Do not include this warning in the copies of the 
final business proprietary version filed on the next business day under 
Sec. 351.303(c)(2)(ii) (see Sec. 351.303(c)(2) and Sec. 351.304(c)); 
and
    (vi) For public versions of business proprietary documents required 
under Sec. 351.304(c), complete the marking as required in paragraphs 
(d)(2)(i)-(v) of this section for the business proprietary document, but 
conspicuously mark the first page ``Public Version.''
    (e) Translation to English. A document submitted in a foreign 
language must be accompanied by an English translation of the entire 
document or of only pertinent portions, where appropriate, unless the 
Secretary waives this requirement for an individual document. A party 
must obtain the Department's approval for submission of an English 
translation of only portions of a document prior to submission to the 
Department.
    (f) Service of copies on other persons--(1)(i) In general. Except as 
provided in Sec. 351.202(c) (filing of petition), Sec. 351.207(f)(1) 
(submission of proposed suspension agreement), and paragraph (f)(3) of 
this section, a person filing a document with the Department 
simultaneously must serve a copy of the document on all other persons on 
the service list by personal service or first class mail.
    (ii) Service of public versions or a party's own business 
proprietary information. Notwithstanding paragraphs (f)(1)(i) and (f)(3) 
of this section, service of the public version of a document or of the 
business proprietary version of a document containing only the server's 
own business proprietary information, on persons on the service list, 
may be made by facsimile transmission or other electronic transmission 
process, with the consent of the person to be served.
    (2) Certificate of service. Each document filed with the Department 
must include a certificate of service listing each person served 
(including agents), the type of document served, and the date and method 
of service on each person. The Secretary may refuse to accept any 
document that is not accompanied by a certificate of service.
    (3) Service requirements for certain documents--(i) Briefs. In 
addition to the certificate of service requirements contained in 
paragraph (f)(2) of this section, a person filing a case or rebuttal 
brief with the Department simultaneously must serve a copy of that brief 
on all persons on the service list and on any U.S. Government agency 
that has submitted a case or rebuttal brief in the segment of the 
proceeding. If, under Sec. 351.103(c), a person has designated an agent 
to receive service that is located in the United States, service on that 
person must be either by personal service on the same day the brief is 
filed or by overnight mail or courier on the next day. If the person has 
designated an agent to receive service that is located outside the 
United States, service on that person must be by first class airmail.
    (ii) Request for review. In addition to the certificate of service 
requirements under paragraph (f)(2) of this section, an interested party 
that files with the Department a request for an expedited antidumping 
review, an administrative review, a new shipper review, or a changed 
circumstances review must serve a copy of the request by personal 
service or first class mail on each exporter or producer specified in 
the request and on the petitioner by the end of the anniversary month or 
within ten days of filing the request for review, whichever is later. If 
the interested party that files the request is unable to locate a 
particular exporter or producer, or the petitioner, the Secretary may 
accept the request for review if the Secretary is satisfied that the 
party made a reasonable attempt to serve a copy of the request on such 
person.
    (g) Certifications. A person must file with each submission 
containing factual information the certification in paragraph (g)(1) of 
this section and, in addition, if the person has legal counsel or 
another representative, the certification in paragraph (g)(2) of this 
section:
    (1) For the person's officially responsible for presentation of the 
factual information:


[[Page 249]]


I, (name and title), currently employed by (person), 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 the person's legal counsel or other representative:

I, (name), of (law or other firm), counsel or representative to 
(person), certify that (1) I have read the attached submission, and (2) 
based on the information made available to me by (person), I have no 
reason to believe that this submission contains any material 
misrepresentation or omission of fact.



Sec. 351.304  Establishing business proprietary treatment of 
information.

    (a) Claim for business proprietary treatment. (1) Any person that 
submits factual information to the Secretary in connection with a 
proceeding may:
    (i) Request that the Secretary treat any part of the submission as 
business proprietary information that is subject to disclosure only 
under an administrative protective order,
    (ii) Claim that there is a clear and compelling need to withhold 
certain business proprietary information from disclosure under an 
administrative protective order, or
    (iii) In an investigation, identify customer names that are exempt 
from disclosure under administrative protective order under section 
777(c)(1)(A) of the Act.
    (2) The Secretary will require that all business proprietary 
information presented to, or obtained or generated by, the Secretary 
during a segment of a proceeding be disclosed to authorized applicants, 
except for
    (i) Customer names submitted in an investigation,
    (ii) Information for which the Secretary finds that there is a clear 
and compelling need to withhold from disclosure, and
    (iii) Privileged or classified information.
    (b) Identification of business proprietary information. (1) In 
general. A person submitting information must identify the information 
for which it claims business proprietary treatment by enclosing the 
information within single brackets. The submitting person must provide 
with the information an explanation of why each item of bracketed 
information is entitled to business proprietary treatment. A person 
submitting a request for business proprietary treatment also must 
include an agreement to permit disclosure under an administrative 
protective order, unless the submitting party claims that there is a 
clear and compelling need to withhold the information from disclosure 
under an administrative protective order.
    (2) Information claimed to be exempt from disclosure under 
administrative protective order. (i) If the submitting person claims 
that there is a clear and compelling need to withhold certain 
information from disclosure under an administrative protective order 
(see paragraph (a)(1)(ii) of this section), the submitting person must 
identify the information by enclosing the information within double 
brackets, and must include a full explanation of the reasons for the 
claim.
    (ii) In an investigation, the submitting person may enclose business 
proprietary customer names within double brackets (see paragraph 
(a)(1)(iii) of this section).
    (iii) The submitting person may exclude the information in double 
brackets from the business proprietary information version of the 
submission served on authorized applicants. See Sec. 351.303 for filing 
and service requirements.
    (c) Public version. (1) A person filing a submission that contains 
information for which business proprietary treatment is claimed must 
file a public version of the submission. The public version must be 
filed on the first business day after the filing deadline for the 
business proprietary version of the submission (see Sec. 351.303(b)). 
The public version must contain a summary of the bracketed information 
in sufficient detail to permit a reasonable understanding of the 
substance of the information. If the submitting person claims that 
summarization is not possible, the claim must be accompanied by a full 
explanation of the reasons supporting that claim. Generally, numerical 
data will be considered adequately summarized if grouped or presented in 
terms of indices or figures within 10 percent of the actual figure. If 
an individual portion of the numerical data is voluminous, at least one

[[Page 250]]

percent representative of that portion must be summarized. A submitter 
should not create a public summary of business proprietary information 
of another person.
    (2) If a submitting party discovers that it has failed to bracket 
information correctly, the submitter may file a complete, corrected 
business proprietary version of the submission along with the public 
version (see Sec. 351.303(b)). At the close of business on the day on 
which the public version of a submission is due under paragraph (c)(2) 
of this section, however, the bracketing of business proprietary 
information in the original business proprietary version or, if a 
corrected version is timely filed, the corrected business proprietary 
version will become final. Once bracketing has become final, the 
Secretary will not accept any further corrections to the bracketing of 
information in a submission, and the Secretary will treat non-bracketed 
information as public information.
    (d) Nonconforming submissions. (1) In general. The Secretary will 
return a submission that does not meet the requirements of section 
777(b) of the Act and this section with a written explanation. The 
submitting person may take any of the following actions within two 
business days after receiving the Secretary's explanation:
    (i) Correct the problems and resubmit the information;
    (ii) If the Secretary denied a request for business proprietary 
treatment, agree to have the information in question treated as public 
information;
    (iii) If the Secretary granted business proprietary treatment but 
denied a claim that there was a clear and compelling need to withhold 
information under an administrative protective order, agree to the 
disclosure of the information in question under an administrative 
protective order; or
    (iv) Submit other material concerning the subject matter of the 
returned information. If the submitting person does not take any of 
these actions, the Secretary will not consider the returned submission.
    (2) Timing. The Secretary normally will determine the status of 
information within 30 days after the day on which the information was 
submitted. If the business proprietary status of information is in 
dispute, the Secretary will treat the relevant portion of the submission 
as business proprietary information until the Secretary decides the 
matter.

[63 FR 24401, May 4, 1998]



Sec. 351.305  Access to business proprietary information.

    (a) The administrative protective order. The Secretary will place an 
administrative protective order on the record within two days after the 
day on which a petition is filed or an investigation is self-initiated, 
or five days after initiating any other segment of a proceeding. The 
administrative protective order will require the authorized applicant 
to:
    (1) Establish and follow procedures to ensure that no employee of 
the authorized applicant's firm releases business proprietary 
information to any person other than the submitting party, an authorized 
applicant, or an appropriate Department official identified in section 
777(b) of the Act;
    (2) Notify the Secretary of any changes in the facts asserted by the 
authorized applicant in its administrative protective order application;
    (3) Destroy business proprietary information by the time required 
under the terms of the administrative protective order;
    (4) Immediately report to the Secretary any apparent violation of 
the administrative protective order; and
    (5) Acknowledge that any unauthorized disclosure may subject the 
authorized applicant, the firm of which the authorized applicant is a 
partner, associate, or employee, and any partner, associate, or employee 
of the authorized applicant's firm to sanctions listed in part 354 of 
this chapter (19 CFR part 354).
    (b) Application for access under administrative protective order. 
(1) Generally, no more than two independent representatives of a party 
to the proceeding may have access to business proprietary information 
under an administrative protective order. A party must designate a lead 
firm if the party has more than one independent authorized applicant 
firm.

[[Page 251]]

    (2) A representative of a party to the proceeding may apply for 
access to business proprietary information under the administrative 
protective order by submitting Form ITA-367 to the Secretary. Form ITA-
367 must identify the applicant and the segment of the proceeding 
involved, state the basis for eligibility of the applicant for access to 
business proprietary information, and state the agreement of the 
applicant to be bound by the administrative protective order. Form ITA-
367 may be prepared on the applicant's own word-processing system, and 
must be accompanied by a certification that the application is 
consistent with Form ITA-367 and an acknowledgment that any 
discrepancies will be interpreted in a manner consistent with Form ITA-
367. An applicant must apply to receive all business proprietary 
information on the record of the segment of a proceeding in question, 
but may waive service of business proprietary information it does not 
wish to receive from other parties to the proceeding. An applicant must 
serve an APO application on the other parties in the same manner and at 
the same time as it serves the application on the Department.
    (3) To minimize the disruption caused by late applications, an 
application should be filed before the first questionnaire response has 
been submitted. Where justified, however, applications may be filed up 
to the date on which the case briefs are due, but any applicant filing 
after the first questionnaire response is submitted will be liable for 
costs associated with the additional production and service of business 
proprietary information already on the record. Parties have five days to 
serve their business proprietary information already on the record to 
applicants authorized to receive such information after such information 
has been placed on the record.
    (c) Approval of access under administrative protective order; 
administrative protective order service list. The Secretary will grant 
access to a qualified applicant by including the name of the applicant 
on an administrative protective order service list. Access normally will 
be granted within five days of receipt of the application unless there 
is a question regarding the eligibility of the applicant to receive 
access. In that case, the Secretary will decide whether to grant the 
applicant access within 30 days of receipt of the application. The 
Secretary will provide by the most expeditious means available the 
administrative protective order service list to parties to the 
proceeding on the day the service list is issued or amended.

[63 FR 24402, May 4, 1998]



Sec. 351.306  Use of business proprietary information.

    (a) By the Secretary. The Secretary may disclose business 
proprietary information submitted to the Secretary only to:
    (1) An authorized applicant;
    (2) An employee of the Department of Commerce or the International 
Trade Commission directly involved in the proceeding in which the 
information is submitted;
    (3) An employee of the Customs Service directly involved in 
conducting a fraud investigation relating to an antidumping or 
countervailing duty proceeding;
    (4) The U.S. Trade Representative as provided by 19 U.S.C. 3571(i);
    (5) Any person to whom the submitting person specifically authorizes 
disclosure in writing; and
    (6) A charged party or counsel for the charged party under 19 CFR 
part 354.
    (b) By an authorized applicant. An authorized applicant may retain 
business proprietary information for the time authorized by the terms of 
the administrative protective order. An authorized applicant may use 
business proprietary information for purposes of the segment of a 
proceeding in which the information was submitted. If business 
proprietary information that was submitted in a segment of the 
proceeding is relevant to an issue in a different segment of the 
proceeding, an authorized applicant may place such information on the 
record of the subsequent segment as authorized by the APO.
    (c) Identifying parties submitting business proprietary information. 
(1) If a party submits a document containing business proprietary 
information of another person, the submitting party must identify, 
contiguously with each

[[Page 252]]

item of business proprietary information, the person that originally 
submitted the item (e.g., Petitioner, Respondent A, Respondent B). 
Business proprietary information not identified will be treated as 
information of the person making the submission. If the submission 
contains business proprietary information of only one person, it shall 
so state on the first page and identify the person that originally 
submitted the business proprietary information on the first page.
    (2) If a party to a proceeding is not represented by an authorized 
applicant, a party submitting a document containing the unrepresented 
party's business proprietary information must serve the unrepresented 
party with a version of the document that contains only the 
unrepresented party's business proprietary information. The document 
must not contain the business proprietary information of other parties.
    (d) Disclosure to parties not authorized to receive business 
proprietary information. No person, including an authorized applicant, 
may disclose the business proprietary information of another person to 
any other person except another authorized applicant or a Department 
official described in paragraph (a)(2) of this section. Any person that 
is not an authorized applicant and that is served with business 
proprietary information must return it to the sender immediately, to the 
extent possible without reading it, and must notify the Department. An 
allegation of an unauthorized disclosure will subject the person that 
made the alleged unauthorized disclosure to an investigation and 
possible sanctions under 19 CFR part 354.

[63 FR 24403, May 4, 1998]



Sec. 351.307  Verification of information.

    (a) Introduction. Prior to making a final determination in an 
investigation or issuing final results of review, the Secretary may 
verify relevant factual information. This section clarifies when 
verification will occur, the contents of a verification report, and the 
procedures for verification.
    (b) In general. (1) Subject to paragraph (b)(4) of this section, the 
Secretary will verify factual information upon which the Secretary 
relies in:
    (i) A final determination in a continuation of a previously 
suspended countervailing duty investigation (section 704(g) of the Act), 
countervailing duty investigation, continuation of a previously 
suspended antidumping investigation (section 705(a) of the Act), or 
antidumping investigation;
    (ii) The final results of an expedited antidumping review;
    (iii) A revocation under section 751(d) of the Act;
    (iv) The final results of an administrative review, new shipper 
review, or changed circumstances review, if the Secretary decides that 
good cause for verification exists; and
    (v) The final results of an administrative review if:
    (A) A domestic interested party, not later than 100 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) The Secretary may verify factual information upon which the 
Secretary relies in a proceeding or a segment of a proceeding not 
specifically provided for in paragraph (b)(1) of this section.
    (3) If the Secretary decides that, because of the large number of 
exporters or producers 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.
    (4) The Secretary may conduct verification of a person if that 
person agrees to verification and the Secretary notifies the government 
of the affected country and that government does not object. If the 
person or the government objects to verification, the Secretary will not 
conduct verification and may disregard any or all information submitted 
by the person in favor of use of the facts available under section 776 
of the Act and Sec. 351.308.
    (c) Verification report. The Secretary will report the methods, 
procedures, and results of a verification under this

[[Page 253]]

section prior to making a final determination in an investigation or 
issuing final results in a review.
    (d) Procedures for verification. The Secretary will notify the 
government of the affected country that employees of the Department will 
visit with the persons listed below in order to verify the accuracy and 
completeness of submitted factual information. The notification will, 
where practicable, identify any member of the verification team who is 
not an officer of the U.S. Government. As part of the verification, 
employees of the Department will request access to all files, records, 
and personnel which the Secretary considers relevant to factual 
information submitted of:
    (1) Producers, exporters, or importers;
    (2) Persons affiliated with the persons listed in paragraph (d)(1) 
of this section, where applicable;
    (3) Unaffiliated purchasers, or
    (4) The government of the affected country as part of verification 
in a countervailing duty proceeding.



Sec. 351.308  Determinations on the basis of the facts available.

    (a) Introduction. The Secretary may make determinations on the basis 
of the facts available whenever necessary information is not available 
on the record, an interested party or any other person withholds or 
fails to provide information requested in a timely manner and in the 
form required or significantly impedes a proceeding, or the Secretary is 
unable to verify submitted information. If the Secretary finds that an 
interested party ``has failed to cooperate by not acting to the best of 
its ability to comply with a request for information,'' the Secretary 
may use an inference that is adverse to the interests of that party in 
selecting from among the facts otherwise available. This section lists 
some of the sources of information upon which the Secretary may base an 
adverse inference and explains the actions the Secretary will take with 
respect to corroboration of information.
    (b) In general. The Secretary may make a determination under the Act 
and this part based on the facts otherwise available in accordance with 
section 776(a) of the Act.
    (c) Adverse Inferences. For purposes of section 776(b) of the Act, 
an adverse inference may include reliance on:
    (1) Secondary information, such as information derived from:
    (i) The petition;
    (ii) A final determination in a countervailing duty investigation or 
an antidumping investigation;
    (iii) Any previous administrative review, new shipper review, 
expedited antidumping review, section 753 review, or section 762 review; 
or
    (2) Any other information placed on the record.
    (d) Corroboration of secondary information. Under section 776(c) of 
the Act, when the Secretary relies on secondary information, the 
Secretary will, to the extent practicable, corroborate that information 
from independent sources that are reasonably at the Secretary's 
disposal. Independent sources may include, but are not limited to, 
published price lists, official import statistics and customs data, and 
information obtained from interested parties during the instant 
investigation or review. Corroborate means that the Secretary will 
examine whether the secondary information to be used has probative 
value. The fact that corroboration may not be practicable in a given 
circumstance will not prevent the Secretary from applying an adverse 
inference as appropriate and using the secondary information in 
question.
    (e) Use of certain information. In reaching a determination under 
the Act and this part, the Secretary will not decline to consider 
information that is submitted by an interested party and is necessary to 
the determination but does not meet all the applicable requirements 
established by the Secretary if the conditions listed under section 
782(e) of the Act are met.
    (f) Use of facts available in a sunset review. Where the Secretary 
determines to issue final results of sunset review on the basis of facts 
available, the Secretary normally will rely on:
    (1) Calculated countervailing duty rates or dumping margins, as 
applicable, from prior Department determinations; and

[[Page 254]]

    (2) Information contained in parties' substantive responses to the 
Notice of Initiation filed under Sec. 351.218(d)(3), consistent with 
section 752(b) or 752(c) of the Act, as applicable.

[62 FR 27379, May 19, 1997, as amended at 63 FR 13524, Mar. 20, 1998]



Sec. 351.309  Written argument.

    (a) Introduction. Written argument may be submitted during the 
course of an antidumping or countervailing duty proceeding. This section 
sets forth the time limits for submission of case and rebuttal briefs 
and provides guidance on what should be contained in these documents.
    (b) Written argument--(1) In general. In making the final 
determination in a countervailing duty investigation or antidumping 
investigation or the final results of an administrative review, new 
shipper review, expedited antidumping review, section 753 review, or 
section 762 review, the Secretary will consider written arguments in 
case or rebuttal briefs filed within the time limits in this section.
    (2) Written argument on request. Notwithstanding paragraph (b)(1) of 
this section, the Secretary may request written argument on any issue 
from any person or U.S. Government agency at any time during a 
proceeding.
    (c) Case brief. (1) Any interested party or U.S. Government agency 
may submit a ``case brief'' within:
    (i) For a final determination in a countervailing duty investigation 
or antidumping investigation, or for the final results of a full sunset 
review, 50 days after the date of publication of the preliminary 
determination or results of review, as applicable, unless the Secretary 
alters the time limit;
    (ii) For the final results of an administrative review, new shipper 
review, changed circumstances review, or section 762 review, 30 days 
after the date of publication of the preliminary results of review, 
unless the Secretary alters the time limit; or
    (iii) For the final results of an expedited antidumping review, 
Article 8 violation review, Article 4/ Article 7 review, or section 753 
review, a date specified by the Secretary.
    (2) The case brief must present 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. As 
part of the case brief, parties are encouraged to provide a summary of 
the arguments not to exceed five pages and a table of statutes, 
regulations, and cases cited.
    (d) Rebuttal brief. (1) Any interested party or U.S. Government 
agency may submit a ``rebuttal brief'' within five days after the time 
limit for filing the case brief, unless the Secretary alters this time 
limit.
    (2) The rebuttal brief may respond only to arguments raised in case 
briefs and should identify the arguments to which it is responding. As 
part of the rebuttal brief, parties are encouraged to provide a summary 
of the arguments not to exceed five pages and a table of statutes, 
regulations, and cases cited.
    (e) Comments on adequacy of response and appropriateness of 
expedited sunset review--(i) In general. Where the Secretary determines 
that respondent interested parties provided inadequate response to a 
Notice of Initiation (see Sec. 351.218(e)(1)(ii)) and has notified the 
International Trade Commission as such under Sec. 351.218(e)(1)(ii)(C), 
interested parties (and industrial users and consumer organizations) 
that submitted a complete substantive response to the Notice of 
Initiation under Sec. 351.218(d)(3) may file comments on whether an 
expedited sunset review under section 751(c)(3)(B) of the Act and Sec. 
351.218(e)(1)(ii)(B) or 351.218(e)(1)(ii)(C) is appropriate based on the 
adequacy of responses to the notice of initiation. These comments may 
not include any new factual information or evidence (such as 
supplementation of a substantive response to the notice of initiation) 
and are limited to five pages.
    (ii) Time limit for filing comments. Comments on adequacy of 
response and appropriateness of expedited sunset review must be filed 
not later than 70 days after the date publication in the Federal 
Register of the notice of initiation.

[62 FR 27379, May 19, 1997, as amended at 63 FR 13524, Mar. 20, 1998]

[[Page 255]]



Sec. 351.310  Hearings.

    (a) Introduction. This section sets forth the procedures for 
requesting a hearing, indicates that the Secretary may consolidate 
hearings, and explains when the Secretary may hold closed hearing 
sessions.
    (b) Pre-hearing conference. The Secretary may conduct a telephone 
pre-hearing conference with representatives of interested parties to 
facilitate the conduct of the hearing.
    (c) Request for hearing. Any interested party may request that the 
Secretary hold a public hearing on arguments to be raised in case or 
rebuttal briefs within 30 days after the date of publication of the 
preliminary determination or preliminary results of review, unless the 
Secretary alters this time limit, or in a proceeding where the Secretary 
will not issue a preliminary determination, not later than a date 
specified by the Secretary. To the extent practicable, a party 
requesting a hearing must 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.
    (d) Hearings in general. (1) If an interested party submits a 
request under paragraph (c) 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 
antidumping review), unless the Secretary alters the date. Ordinarily, 
the hearing will be held two days after the scheduled date for 
submission of rebuttal briefs.
    (2) The hearing is not subject to 5 U.S.C. Sec. Sec. 551-559, and 
Sec. 702 (Administrative Procedure Act). Witness testimony, if any, 
will not be under oath or subject to cross-examination by another 
interested party or witness. During the hearing, the chair may question 
any person or witness and may request persons to present additional 
written argument.
    (e) Consolidated hearings. At the Secretary's discretion, the 
Secretary may consolidate hearings in two or more cases.
    (f) Closed hearing sessions. An interested party may request a 
closed session of the hearing no later than the date the case briefs are 
due in order to address limited issues during the course of the hearing. 
The requesting party must identify the subjects to be discussed, specify 
the amount of time requested, and justify the need for a closed session 
with respect to each subject. If the Secretary approves the request for 
a closed session, only authorized applicants and other persons 
authorized by the regulations may be present for the closed session (see 
Sec. 351.305).
    (g) Transcript of hearing. 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.



Sec. 351.311  Countervailable subsidy practice discovered during
investigation or review.

    (a) Introduction. During the course of a countervailing duty 
investigation or review, Department officials may discover or receive 
notice of a practice that appears to provide a countervailable subsidy. 
This section explains when the Secretary will examine such a practice.
    (b) Inclusion in proceeding. If during a countervailing duty 
investigation or a countervailing duty administrative review the 
Secretary discovers a practice that appears to provide a countervailable 
subsidy with respect to the subject merchandise and the practice was not 
alleged or examined in the proceeding, or if, pursuant to section 775 of 
the Act, the Secretary receives notice from the United States Trade 
Representative that a subsidy or subsidy program is in violation of 
Article 8 of the Subsidies Agreement, the Secretary will examine the 
practice, subsidy, or subsidy program if the Secretary concludes that 
sufficient time remains before the scheduled date for the final 
determination or final results of review.
    (c) Deferral of examination. If the Secretary concludes that 
insufficient time

[[Page 256]]

remains before the scheduled date for the final determination or final 
results of review to examine the practice, subsidy, or subsidy program 
described in paragraph (b) 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, subsidy, or subsidy program; or
    (2) During an investigation or review, defer consideration of the 
newly discovered practice, subsidy, or subsidy program until a 
subsequent administrative review, if any.
    (d) Notice. The Secretary will notify the parties to the proceeding 
of any practice the Secretary discovers, or any subsidy or subsidy 
program with respect to which the Secretary receives notice from the 
United States Trade Representative, and whether or not it will be 
included in the then ongoing proceeding.



Sec. 351.312  Industrial users and consumer organizations.

    (a) Introduction. The URAA provides for opportunity for comment by 
consumer organizations and industrial users on matters relevant to a 
particular determination of dumping, subsidization, or injury. This 
section indicates under what circumstances such persons may submit 
relevant information and argument.
    (b) Opportunity to submit relevant information and argument. In an 
antidumping or countervailing duty proceeding under title VII of the Act 
and this part, a industrial user of the subject merchandise or a 
representative consumer organization, as described in section 777(h) of 
the Act, may submit relevant factual information and written argument to 
the Department under paragraphs (d)(3)(ii), and (d)(3)(vi), and (d)(4) 
of Sec. 351.218, paragraphs (b), (c)(1), and (c)(3) of Sec. 351.301, 
and paragraphs (c), (d), and (e) of Sec. 351.309 concerning dumping or 
a countervailing subsidy. All such submissions must be filed in 
accordance with Sec. 351.303.
    (c) Business proprietary information. Persons described in paragraph 
(b) of this section may request business proprietary treatment of 
information under Sec. 351.304, but will not be granted access under 
Sec. 351.305 to business proprietary information submitted by other 
persons.

[62 FR 27379, May 19, 1997, as amended at 63 FR 13524, Mar. 20, 1998]



 Subpart D_Calculation of Export Price, Constructed Export Price, Fair 
                         Value, and Normal Value



Sec. 351.401  In general.

    (a) Introduction. In general terms, an antidumping analysis involves 
a comparison of export price or constructed export price in the United 
States with normal value in the foreign market. This section establishes 
certain general rules that apply to the calculation of export price, 
constructed export price and normal value. (See section 772, section 
773, and section 773A of the Act.)
    (b) Adjustments in general. In making adjustments to export price, 
constructed export price, or normal value, the Secretary will adhere to 
the following principles:
    (1) The interested party that is in possession of the relevant 
information has the burden of establishing to the satisfaction of the 
Secretary the amount and nature of a particular adjustment; and
    (2) The Secretary will not double-count adjustments.
    (c) Use of price net of price adjustments. In calculating export 
price, constructed export price, and normal value (where normal value is 
based on price), the Secretary will use a price that is net of any price 
adjustment, as defined in Sec. 351.102(b), that is reasonably 
attributable to the subject merchandise or the foreign like product 
(whichever is applicable).
    (d) Delayed payment or pre-payment of expenses. Where cost is the 
basis for determining the amount of an adjustment to export price, 
constructed export price, or normal value, the Secretary will not factor 
in any delayed payment or pre-payment of expenses by the exporter or 
producer.
    (e) Adjustments for movement expenses--(1) Original place of 
shipment. In

[[Page 257]]

making adjustments for movement expenses to establish export price or 
constructed export price under section 772(c)(2)(A) of the Act, or 
normal value under section 773(a)(6)(B)(ii) of the Act, the Secretary 
normally will consider the production facility as being the ``original 
place of shipment. However, where the Secretary bases export price, 
constructed export price, or normal value on a sale by an unaffiliated 
reseller, the Secretary may treat the original place from which the 
reseller shipped the merchandise as the ``original place of shipment.''
    (2) Warehousing. The Secretary will consider warehousing expenses 
that are incurred after the subject merchandise or foreign like product 
leaves the original place of shipment as movement expenses.
    (f) Treatment of affiliated producers in antidumping proceedings--
(1) In general. In an antidumping proceeding under this part, the 
Secretary will treat two or more affiliated producers as a single entity 
where those producers have production facilities for similar or 
identical products that would not require substantial retooling of 
either facility in order to restructure manufacturing priorities and the 
Secretary concludes that there is a significant potential for the 
manipulation of price or production.
    (2) Significant potential for manipulation. In identifying a 
significant potential for the manipulation of price or production, the 
factors the Secretary may consider include:
    (i) The level of common ownership;
    (ii) The extent to which managerial employees or board members of 
one firm sit on the board of directors of an affiliated firm; and
    (iii) Whether operations are intertwined, such as through the 
sharing of sales information, involvement in production and pricing 
decisions, the sharing of facilities or employees, or significant 
transactions between the affiliated producers.
    (g) Allocation of expenses and price adjustments--(1) In general. 
The Secretary may consider allocated expenses and price adjustments when 
transaction-specific reporting is not feasible, provided the Secretary 
is satisfied that the allocation method used does not cause inaccuracies 
or distortions.
    (2) Reporting allocated expenses and price adjustments. Any party 
seeking to report an expense or a price adjustment on an allocated basis 
must demonstrate to the Secretary's satisfaction that the allocation is 
calculated on as specific a basis as is feasible, and must explain why 
the allocation methodology used does not cause inaccuracies or 
distortions.
    (3) Feasibility. In determining the feasibility of transaction-
specific reporting or whether an allocation is calculated on as specific 
a basis as is feasible, the Secretary will take into account the records 
maintained by the party in question in the ordinary course of its 
business, as well as such factors as the normal accounting practices in 
the country and industry in question and the number of sales made by the 
party during the period of investigation or review.
    (4) Expenses and price adjustments relating to merchandise not 
subject to the proceeding. The Secretary will not reject an allocation 
method solely because the method includes expenses incurred, or price 
adjustments made, with respect to sales of merchandise that does not 
constitute subject merchandise or a foreign like product (whichever is 
applicable).
    (h) Treatment of subcontractors (``tolling'' operations). The 
Secretary will not consider a toller or subcontractor to be a 
manufacturer or producer where the toller or subcontractor does not 
acquire ownership, and does not control the relevant sale, of the 
subject merchandise or foreign like product.
    (i) Date of sale. In identifying the date of sale of the subject 
merchandise or foreign like product, the Secretary normally will use the 
date of invoice, as recorded in the exporter or producer's records kept 
in the ordinary course of business. However, the Secretary may use a 
date other than the date of invoice if the Secretary is satisfied that a 
different date better reflects the date on which the exporter or 
producer establishes the material terms of sale.

[[Page 258]]



Sec. 351.402  Calculation of export price and constructed export price;
reimbursement of antidumping and countervailing duties.

    (a) Introduction. In order to establish export price, constructed 
export price, and normal value, the Secretary must make certain 
adjustments to the price to the unaffiliated purchaser (often called the 
``starting price'') in both the United States and foreign markets. This 
regulation clarifies how the Secretary will make certain of the 
adjustments to the starting price in the United States that are required 
by section 772 of the Act.
    (b) Additional adjustments to constructed export price. In 
establishing constructed export price under section 772(d) of the Act, 
the Secretary will make adjustments for expenses associated with 
commercial activities in the United States that relate to the sale to an 
unaffiliated purchaser, no matter where or when paid. The Secretary will 
not make an adjustment for any expense that is related solely to the 
sale to an affiliated importer in the United States, although the 
Secretary may make an adjustment to normal value for such expenses under 
section 773(a)(6)(C)(iii) of the Act.
    (c) Special rule for merchandise with value added after 
importation--(1) Merchandise imported by affiliated persons. In applying 
section 772(e) of the Act, merchandise imported by and value added by a 
person affiliated with the exporter or producer includes merchandise 
imported and value added for the account of such an affiliated person.
    (2) Estimation of value added. The Secretary normally will determine 
that the value added in the United States by the affiliated person is 
likely to exceed substantially the value of the subject merchandise if 
the Secretary estimates the value added to be at least 65 percent of the 
price charged to the first unaffiliated purchaser for the merchandise as 
sold in the United States. The Secretary normally will estimate the 
value added based on the difference between the price charged to the 
first unaffiliated purchaser for the merchandise as sold in the United 
States and the price paid for the subject merchandise by the affiliated 
person. The Secretary normally will base this determination on averages 
of the prices and the value added to the subject merchandise.
    (3) Determining dumping margins. For purposes of determining dumping 
margins under paragraphs (1) and (2) of section 772(e) of the Act, the 
Secretary may use the weighted-average dumping margins calculated on 
sales of identical or other subject merchandise sold to unaffiliated 
persons.
    (d) Special rule for determining profit. This paragraph sets forth 
rules for calculating profit in establishing constructed export price 
under section 772(f) of the Act.
    (1) Basis for total expenses and total actual profit. In calculating 
total expenses and total actual profit, the Secretary normally will use 
the aggregate of expenses and profit for all subject merchandise sold in 
the United States and all foreign like products sold in the exporting 
country, including sales that have been disregarded as being below the 
cost of production. (See section 773(b) of the Act (sales at less than 
cost of production).)
    (2) Use of financial reports. For purposes of determining profit 
under section 772(d)(3) of the Act, the Secretary may rely on any 
appropriate financial reports, including public, audited financial 
statements, or equivalent financial reports, and internal financial 
reports prepared in the ordinary course of business.
    (3) Voluntary reporting of costs of production. The Secretary will 
not require the reporting of costs of production solely for purposes of 
determining the amount of profit to be deducted from the constructed 
export price. The Secretary will base the calculation of profit on costs 
of production if such costs are reported voluntarily by the date 
established by the Secretary, and provided that it is practicable to do 
so and the costs of production are verifiable.
    (e) Treatment of payments between affiliated persons. Where a person 
affiliated with the exporter or producer incurs any of the expenses 
deducted from constructed export price under section 772(d) of the Act 
and is reimbursed for such expenses by the exporter, producer or other 
affiliate, the Secretary normally will make an adjustment

[[Page 259]]

based on the actual cost to the affiliated person. If the Secretary is 
satisfied that information regarding the actual cost to the affiliated 
person is unavailable to the exporter or producer, the Secretary may 
determine the amount of the adjustment on any other reasonable basis, 
including the amount of the reimbursement to the affiliated person if 
the Secretary is satisfied that such amount reflects the amount usually 
paid in the market under consideration.
    (f) Reimbursement of antidumping duties and countervailing duties--
(1) In general. (i) In calculating the export price (or the constructed 
export price), the Secretary will deduct the amount of any antidumping 
duty or countervailing duty which the exporter or producer:
    (A) Paid directly on behalf of the importer; or
    (B) Reimbursed to the importer.
    (ii) The Secretary will not deduct the amount of any antidumping 
duty or countervailing duty paid or reimbursed if the exporter or 
producer granted to the importer before initiation of the antidumping 
investigation in question a warranty of nonapplicability of antidumping 
duties or countervailing duties with respect to subject merchandise 
which was:
    (A) Sold before the date of publication of the Secretary's order 
applicable to the merchandise in question; and
    (B) Exported before the date of publication of the Secretary's final 
antidumping determination.
    (iii) Ordinarily, under paragraph (f)(1)(i) of this section, the 
Secretary will deduct the amount reimbursed only once in the calculation 
of the export price (or constructed export price).
    (2) Certificate. The importer must 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 or countervailing duties assessed upon the following 
importations of (commodity) from (country): (List entry numbers) which 
have been purchased on or after (date of publication of antidumping 
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).

    (3) Presumption. The Secretary may presume from an importer's 
failure to file the certificate required in paragraph (f)(2) of this 
section that the exporter or producer paid or reimbursed the antidumping 
duties or countervailing duties.



Sec. 351.403  Sales used in calculating normal value; transactions 
between affiliated parties.

    (a) Introduction. This section clarifies when the Secretary may use 
offers for sale in determining normal value. Additionally, this section 
clarifies the authority of the Secretary to use sales to or through an 
affiliated party as a basis for normal value. (See section 773(a)(5) of 
the Act (indirect sales or offers for sale).)
    (b) Sales and offers for sale. In calculating normal value, the 
Secretary normally will consider offers for sale only in the absence of 
sales and only if the Secretary concludes that acceptance of the offer 
can be reasonably expected.
    (c) Sales to an affiliated party. If an exporter or producer sold 
the foreign like product to an affiliated party, the Secretary may 
calculate normal value based on that sale only if satisfied that the 
price is comparable to the price at which the exporter or producer sold 
the foreign like product to a person who is not affiliated with the 
seller.
    (d) Sales through an affiliated party. If an exporter or producer 
sold the foreign like product through an affiliated party, the Secretary 
may calculate normal value based on the sale by such affiliated party. 
However, the Secretary normally will not calculate normal value based on 
the sale by an affiliated party if sales of the foreign like product by 
an exporter or producer to affiliated parties account for less than five 
percent of the total value (or quantity) of the exporter's or producer's 
sales of the foreign like product in the market in question or if sales 
to the affiliated party are comparable, as defined in paragraph (c) of 
this section.

[[Page 260]]



Sec. 351.404  Selection of the market to be used as the basis for
normal value.

    (a) Introduction. Although in most circumstances sales of the 
foreign like product in the home market are the most appropriate basis 
for determining normal value, section 773 of the Act also permits use of 
sales to a third country or constructed value as the basis for normal 
value. This section clarifies the rules for determining the basis for 
normal value.
    (b) Determination of viable market--(1) In general. The Secretary 
will consider the exporting country or a third country as constituting a 
viable market if the Secretary is satisfied that sales of the foreign 
like product in that country are of sufficient quantity to form the 
basis of normal value.
    (2) Sufficient quantity. ``Sufficient quantity'' normally means that 
the aggregate quantity (or, if quantity is not appropriate, value) of 
the foreign like product sold by an exporter or producer in a country is 
5 percent or more of the aggregate quantity (or value) of its sales of 
the subject merchandise to the United States.
    (c) Calculation of price-based normal value in viable market--(1) In 
general. Subject to paragraph (c)(2) of this section:
    (i) If the exporting country constitutes a viable market, the 
Secretary will calculate normal value on the basis of price in the 
exporting country (see section 773(a)(1)(B)(i) of the Act (price used 
for determining normal value)); or
    (ii) If the exporting country does not constitute a viable market, 
but a third country does constitute a viable market, the Secretary may 
calculate normal value on the basis of price to a third country (see 
section 773(a)(1)(B)(ii) of the Act (use of third country prices in 
determining normal value)).
    (2) Exception. The Secretary may decline to calculate normal value 
in a particular market under paragraph (c)(1) of this section if it is 
established to the satisfaction of the Secretary that:
    (i) In the case of the exporting country or a third country, a 
particular market situation exists that does not permit a proper 
comparison with the export price or constructed export price (see 
section 773(a)(1)(B)(ii)(III) or section 773(a)(1)(C)(iii) of the Act); 
or
    (ii) In the case of a third country, the price is not representative 
(see section 773(a)(1)(B)(ii)(I) of the Act).
    (d) Allegations concerning market viability and the basis for 
determining a price-based normal value. In an antidumping investigation 
or review, allegations regarding market viability or the exceptions in 
paragraph (c)(2) of this section, must be filed, with all supporting 
factual information, in accordance with Sec. 351.301(d)(1).
    (e) Selection of third country. For purposes of calculating normal 
value based on prices in a third country, where prices in more than one 
third country satisfy the criteria of section 773(a)(1)(B)(ii) of the 
Act and this section, the Secretary generally will select the third 
country based on the following criteria:
    (1) The foreign like product exported to a particular third country 
is more similar to the subject merchandise exported to the United States 
than is the foreign like product exported to other third countries;
    (2) The volume of sales to a particular third country is larger than 
the volume of sales to other third countries;
    (3) Such other factors as the Secretary considers appropriate.
    (f) Third country sales and constructed value. The Secretary 
normally will calculate normal value based on sales to a third country 
rather than on constructed value if adequate information is available 
and verifiable (see section 773(a)(4) of the Act (use of constructed 
value)).



Sec. 351.405  Calculation of normal value based on constructed value.

    (a) Introduction. In certain circumstances, the Secretary may 
determine normal value by constructing a value based on the cost of 
manufacture, selling general and administrative expenses, and profit. 
The Secretary may use constructed value as the basis for normal value 
where: neither the home market nor a third country market is viable; 
sales below the cost of production are disregarded; sales outside the 
ordinary course of

[[Page 261]]

trade, or sales the prices of which are otherwise unrepresentative, are 
disregarded; sales used to establish a fictitious market are 
disregarded; no contemporaneous sales of comparable merchandise are 
available; or in other circumstances where the Secretary determines that 
home market or third country prices are inappropriate. (See section 
773(e) and section 773(f) of the Act.) This section clarifies the 
meaning of certain terms relating to constructed value.
    (b) Profit and selling, general, and administrative expenses. In 
determining the amount to be added to constructed value for profit and 
for selling, general, and administrative expenses, the following rules 
will apply:
    (1) Under section 773(e)(2)(A) of the Act, ``foreign country'' means 
the country in which the merchandise is produced or a third country 
selected by the Secretary under Sec. 351.404(e), as appropriate.
    (2) Under section 773(e)(2)(B) of the Act, ``foreign country'' means 
the country in which the merchandise is produced.



Sec. 351.406  Calculation of normal value if sales are made at less 
than cost of production.

    (a) Introduction. In determining normal value, the Secretary may 
disregard sales of the foreign like product made at prices that are less 
than the cost of production of that product. However, such sales will be 
disregarded only if they are made within an extended period of time, in 
substantial quantities, and are not at prices which permit recovery of 
costs within a reasonable period of time. (See section 773(b) of the 
Act.) This section clarifies the meaning of the term ``extended period 
of time'' as used in the Act.
    (b) Extended period of time. The ``extended period of time'' under 
section 773(b)(1)(A) of the Act normally will coincide with the period 
in which the sales under consideration for the determination of normal 
value were made.



Sec. 351.407  Calculation of constructed value and cost of production.

    (a) Introduction. This section sets forth certain rules that are 
common to the calculation of constructed value and the cost of 
production. (See section 773(f) of the Act.)
    (b) Determination of value under the major input rule. For purposes 
of section 773(f)(3) of the Act, the Secretary normally will determine 
the value of a major input purchased from an affiliated person based on 
the higher of:
    (1) The price paid by the exporter or producer to the affiliated 
person for the major input;
    (2) The amount usually reflected in sales of the major input in the 
market under consideration; or
    (3) The cost to the affiliated person of producing the major input.
    (c) Allocation of costs. In determining the appropriate method for 
allocating costs among products, the Secretary may take into account 
production quantities, relative sales values, and other quantitative and 
qualitative factors associated with the manufacture and sale of the 
subject merchandise and the foreign like product.
    (d) Startup costs. (1) In identifying startup operations under 
section 773(f)(1)(C)(ii) of the Act:
    (i) ``New production facilities'' includes the substantially 
complete retooling of an existing plant. Substantially complete 
retooling involves the replacement of nearly all production machinery or 
the equivalent rebuilding of existing machinery.
    (ii) A ``new product'' is one requiring substantial additional 
investment, including products which, though sold under an existing 
nameplate, involve the complete revamping or redesign of the product. 
Routine model year changes will not be considered a new product.
    (iii) Mere improvements to existing products or ongoing improvements 
to existing facilities will not be considered startup operations.
    (iv) An expansion of the capacity of an existing production line 
will not qualify as a startup operation unless the expansion constitutes 
such a major undertaking that it requires the construction of a new 
facility and results in a depression of production levels due to 
technical factors associated with the initial phase of commercial 
production of the expanded facilities.

[[Page 262]]

    (2) In identifying the end of the startup period under clauses (ii) 
and (iii) of section 773(f)(1)(C) of the Act:
    (i) The attainment of peak production levels will not be the 
standard for identifying the end of the startup period, because the 
startup period may end well before a company achieves optimum capacity 
utilization.
    (ii) The startup period will not be extended to cover improvements 
and cost reductions that may occur over the entire life cycle of a 
product.
    (3) In determining when a producer reaches commercial production 
levels under section 773(f)(1)(C)(ii) of the Act:
    (i) The Secretary will consider the actual production experience of 
the merchandise in question, measuring production on the basis of units 
processed.
    (ii) To the extent necessary, the Secretary will examine factors in 
addition to those specified in section 773(f)(1)(C)(ii) of the Act, 
including historical data reflecting the same producer's or other 
producers' experiences in producing the same or similar products. A 
producer's projections of future volume or cost will be accorded little 
weight.
    (4) In making an adjustment for startup operations under section 
773(f)(1)(C)(iii) of the Act:
    (i) The Secretary will determine the duration of the startup period 
on a case-by-case basis.
    (ii) The difference between actual costs and the costs of production 
calculated for startup costs will be amortized over a reasonable period 
of time subsequent to the startup period over the life of the product or 
machinery, as appropriate.
    (iii) The Secretary will consider unit production costs to be items 
such as depreciation of equipment and plant, labor costs, insurance, 
rent and lease expenses, material costs, and factory overhead. The 
Secretary will not consider sales expenses, such as advertising costs, 
or other general and administrative or non-production costs (such as 
general research and development costs), as startup costs.



Sec. 351.408  Calculation of normal value of merchandise from 
nonmarket economy countries.

    (a) Introduction. In identifying dumping from a nonmarket economy 
country, the Secretary normally will calculate normal value by valuing 
the nonmarket economy producers' factors of production in a market 
economy country. (See section 773(c) of the Act.) This section clarifies 
when and how this special methodology for nonmarket economies will be 
applied.
    (b) Economic Comparability. In determining whether a country is at a 
level of economic development comparable to the nonmarket economy under 
section 773(c)(2)(B) or section 773(c)(4)(A) of the Act, the Secretary 
will place primary emphasis on per capita GDP as the measure of economic 
comparability.
    (c) Valuation of Factors of Production. For purposes of valuing the 
factors of production, general expenses, profit, and the cost of 
containers, coverings, and other expenses (referred to collectively as 
``factors'') under section 773(c)(1) of the Act the following rules will 
apply:
    (1) Information used to value factors. The Secretary normally will 
use publicly available information to value factors. However, where a 
factor is purchased from a market economy supplier and paid for in a 
market economy currency, the Secretary normally will use the price paid 
to the market economy supplier. In those instances where a portion of 
the factor is purchased from a market economy supplier and the remainder 
from a nonmarket economy supplier, the Secretary normally will value the 
factor using the price paid to the market economy supplier.
    (2) Valuation in a single country. Except for labor, as provided in 
paragraph (d)(3) of this section, the Secretary normally will value all 
factors in a single surrogate country.
    (3) Labor. For labor, the Secretary will use regression-based wage 
rates reflective of the observed relationship between wages and national 
income in market economy countries. The Secretary will calculate the 
wage rate to be applied in nonmarket economy proceedings each year. The 
calculation

[[Page 263]]

will be based on current data, and will be made available to the public.
    (4) Manufacturing overhead, general expenses, and profit. For 
manufacturing overhead, general expenses, and profit, the Secretary 
normally will use non-proprietary information gathered from producers of 
identical or comparable merchandise in the surrogate country.



Sec. 351.409  Differences in quantities.

    (a) Introduction. Because the quantity of merchandise sold may 
affect the price, in comparing export price or constructed export price 
with normal value, the Secretary will make a reasonable allowance for 
any difference in quantities to the extent the Secretary is satisfied 
that the amount of any price differential (or lack thereof) is wholly or 
partly due to that difference in quantities. (See section 
773(a)(6)(C)(i) of the Act.)
    (b) Sales with quantity discounts in calculating normal value. The 
Secretary normally will calculate normal value based on sales with 
quantity discounts only if:
    (1) During the period examined, or during a more representative 
period, the exporter or producer granted quantity discounts of at least 
the same magnitude on 20 percent or more of sales of the foreign like 
product for the relevant country; or
    (2) The exporter or 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 
normal value. If the exporter or producer does not satisfy the 
conditions of paragraph (b) of this section, the Secretary will 
calculate normal value based on weighted-average prices that include 
sales at a discount.
    (d) Price lists. In determining whether a discount has been granted, 
the existence or lack of a published price list reflecting such a 
discount will not be controlling. Ordinarily, the Secretary will give 
weight to a price list only if, in the line of trade and market under 
consideration, the exporter or producer demonstrates that it has adhered 
to its price list.
    (e) Relationship to level of trade adjustment. If adjustments are 
claimed for both differences in quantities and differences in level of 
trade, the Secretary will not make an adjustment for differences in 
quantities unless the Secretary is satisfied that the effect on price 
comparability of differences in quantities has been identified and 
established separately from the effect on price comparability of 
differences in the levels of trade.



Sec. 351.410  Differences in circumstances of sale

    (a) Introduction. In calculating normal value the Secretary may make 
adjustments to account for certain differences in the circumstances of 
sales in the United States and foreign markets. (See section 
773(a)(6)(C)(iii) of the Act.) This section clarifies certain terms used 
in the statute regarding circumstances of sale adjustments and describes 
the adjustment when commissions are paid only in one market.
    (b) In general. With the exception of the allowance described in 
paragraph (e) of this section concerning commissions paid in only one 
market, the Secretary will make circumstances of sale adjustments under 
section 773(a)(6)(C)(iii) of the Act only for direct selling expenses 
and assumed expenses.
    (c) Direct selling expenses. ``Direct selling expenses'' are 
expenses, such as commissions, credit expenses, guarantees, and 
warranties, that result from, and bear a direct relationship to, the 
particular sale in question.
    (d) Assumed expenses. Assumed expenses are selling expenses that are 
assumed by the seller on behalf of the buyer, such as advertising 
expenses.
    (e) Commissions paid in one market. 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 
considerations, and no commission is paid in the other market under 
consideration. 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.

[[Page 264]]

    (f) 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 exporter or producer but, if 
appropriate, may also consider the effect of such difference on the 
market value of the merchandise.



Sec. 351.411  Differences in physical characteristics.

    (a) Introduction. In comparing United States sales with foreign 
market sales, the Secretary may determine that the merchandise sold in 
the United States does not have the same physical characteristics as the 
merchandise sold in the foreign market, and that the difference has an 
effect on prices. In calculating normal value, the Secretary will make a 
reasonable allowance for such differences. (See section 773(a)(6)(C)(ii) 
of the Act.)
    (b) Reasonable allowance. In deciding what is a reasonable allowance 
for differences in physical characteristics, the Secretary will consider 
only differences in variable costs associated with the physical 
differences. Where appropriate, the Secretary 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.



Sec. 351.412  Levels of trade; adjustment for difference in level of
trade; constructed export price offset.

    (a) Introduction. In comparing United States sales with foreign 
market sales, the Secretary may determine that sales in the two markets 
were not made at the same level of trade, and that the difference has an 
effect on the comparability of the prices. The Secretary is authorized 
to adjust normal value to account for such a difference. (See section 
773(a)(7) of the Act.)
    (b) Adjustment for difference in level of trade. The Secretary will 
adjust normal value for a difference in level of trade if:
    (1) The Secretary calculates normal value at a different level of 
trade from the level of trade of the export price or the constructed 
export price (whichever is applicable); and
    (2) The Secretary determines that the difference in level of trade 
has an effect on price comparability.
    (c) Identifying levels of trade and differences in levels of trade--
(1) Basis for identifying levels of trade. The Secretary will identify 
the level of trade based on:
    (i) In the case of export price, the starting price;
    (ii) In the case of constructed export price, the starting price, as 
adjusted under section 772(d) of the Act; and
    (iii) In the case of normal value, the starting price or constructed 
value.
    (2) Differences in levels of trade. The Secretary will determine 
that sales are made at different levels of trade if they are made at 
different marketing stages (or their equivalent). Substantial 
differences in selling activities are a necessary, but not sufficient, 
condition for determining that there is a difference in the stage of 
marketing. Some overlap in selling activities will not preclude a 
determination that two sales are at different stages of marketing.
    (d) Effect on price comparability--(1) In general. The Secretary 
will determine that a difference in level of trade has an effect on 
price comparability only if it is established to the satisfaction of the 
Secretary that there is a pattern of consistent price differences 
between sales in the market in which normal value is determined:
    (i) At the level of trade of the export price or constructed export 
price (whichever is appropriate); and
    (ii) At the level of trade at which normal value is determined.
    (2) Relevant sales. Where possible, the Secretary will make the 
determination under paragraph (d)(1) of this section on the basis of 
sales of the foreign like product by the producer or exporter. Where 
this is not possible, the Secretary may use sales of different or 
broader product lines, sales by other companies, or any other reasonable 
basis.
    (e) Amount of adjustment. The Secretary normally will calculate the 
amount of a level of trade adjustment by:
    (1) Calculating the weighted-averages of the prices of sales at the 
two levels of trade identified in paragraph (d), after making any other 
adjustments to

[[Page 265]]

those prices appropriate under section 773(a)(6) of the Act and this 
subpart;
    (2) Calculating the average of the percentage differences between 
those weighted-average prices; and
    (3) Applying the percentage difference to normal value, where it is 
at a different level of trade from the export price or constructed 
export price (whichever is applicable), after making any other 
adjustments to normal value appropriate under section 773(a)(6) of the 
Act and this subpart.
    (f) Constructed export price offset--(1) In general. The Secretary 
will grant a constructed export price offset only where:
    (i) Normal value is compared to constructed export price;
    (ii) Normal value is determined at a more advanced level of trade 
than the level of trade of the constructed export price; and
    (iii) Despite the fact that a person has cooperated to the best of 
its ability, the data available do not provide an appropriate basis to 
determine under paragraph (d) of this section whether the difference in 
level of trade affects price comparability.
    (2) Amount of the offset. The amount of the constructed export price 
offset will be the amount of indirect selling expenses included in 
normal value, up to the amount of indirect selling expenses deducted in 
determining constructed export price. In making the constructed export 
price offset, ``indirect selling expenses'' means selling expenses, 
other than direct selling expenses or assumed selling expenses (see 
Sec. 351.410), that the seller would incur regardless of whether 
particular sales were made, but that reasonably may be attributed, in 
whole or in part, to such sales.
    (3) Where data permit determination of affect on price 
comparability. Where available data permit the Secretary to determine 
under paragraph (d) of this section whether the difference in level of 
trade affects price comparability, the Secretary will not grant a 
constructed export price offset. In such cases, if the Secretary 
determines that price comparability has been affected, the Secretary 
will make a level of trade adjustment. If the Secretary determines that 
price comparability has not been affected, the Secretary will not grant 
either a level of trade adjustment or a constructed export price offset.



Sec. 351.413  Disregarding insignificant adjustments.

    Ordinarily, under section 777A(a)(2) of the Act, an ``insignificant 
adjustment'' is any individual adjustment 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 export price, constructed export 
price, or normal value, as the case may be. Groups of adjustments are 
adjustments for differences in circumstances of sale under Sec. 
351.410, adjustments for differences in the physical characteristics of 
the merchandise under Sec. 351.411, and adjustments for differences in 
the levels of trade under Sec. 351.412.



Sec. 351.414  Comparison of normal value with export price (constructed export price).

    (a) Introduction. The Secretary normally will average prices used as 
the basis for normal value and, in an investigation, prices used as the 
basis for export price or constructed export price as well. This section 
explains when and how the Secretary will average prices in making 
comparisons of export price or constructed export price with normal 
value. (See section 777A(d) of the Act.)
    (b) Description of methods of comparison--(1) Average-to-average 
method. The ``average-to-average'' method involves a comparison of the 
weighted average of the normal values with the weighted average of the 
export prices (and constructed export prices) for comparable 
merchandise.
    (2) Transaction-to-transaction method. The ``transaction-to-
transaction'' method involves a comparison of the normal values of 
individual transactions with the export prices (or constructed export 
prices) of individual transactions for comparable merchandise.
    (3) Average-to-transaction method. The ``average-to-transaction'' 
method involves a comparison of the weighted average of the normal 
values to the export prices (or constructed export

[[Page 266]]

prices) of individual transactions for comparable merchandise.
    (c) Preferences. (1) In an investigation, the Secretary normally 
will use the average-to-average method. The Secretary will use the 
transaction-to-transaction method only in unusual situations, such as 
when there are very few sales of subject merchandise and the merchandise 
sold in each market is identical or very similar or is custom-made.
    (2) In a review, the Secretary normally will use the average-to-
transaction method.
    (d) Application of the average-to-average method--(1) In general. In 
applying the average-to-average method, the Secretary will identify 
those sales of the subject merchandise to the United States that are 
comparable, and will include such sales in an ``averaging group.'' The 
Secretary will calculate a weighted average of the export prices and the 
constructed export prices of the sales included in the averaging group, 
and will compare this weighted average to the weighted average of the 
normal values of such sales.
    (2) Identification of the averaging group. An averaging group will 
consist of subject merchandise that is identical or virtually identical 
in all physical characteristics and that is sold to the United States at 
the same level of trade. In identifying sales to be included in an 
averaging group, the Secretary also will take into account, where 
appropriate, the region of the United States in which the merchandise is 
sold, and such other factors as the Secretary considers relevant.
    (3) Time period over which weighted average is calculated. When 
applying the average-to-average method, the Secretary normally will 
calculate weighted averages for the entire period of investigation or 
review, as the case may be. However, when normal values, export prices, 
or constructed export prices differ significantly over the course of the 
period of investigation or review, the Secretary may calculate weighted 
averages for such shorter period as the Secretary deems appropriate.
    (e) Application of the average-to-transaction method--(1) In 
general. In applying the average-to-transaction method in a review, when 
normal value is based on the weighted average of sales of the foreign 
like product, the Secretary will limit the averaging of such prices to 
sales incurred during the contemporaneous month.
    (2) Contemporaneous month. Normally, the Secretary will select as 
the contemporaneous month the first of the following which applies:
    (i) The month during which the particular U.S. sale under 
consideration was made;
    (ii) If there are no sales of the foreign like product during this 
month, the most recent of the three months prior to the month of the 
U.S. sale in which there was a sale of the foreign like product.
    (iii) If there are no sales of the foreign like product during any 
of these months, the earlier of the two months following the month of 
the U.S. sale in which there was a sale of the foreign like product.
    (f) Targeted dumping--(1) In general. Notwithstanding paragraph 
(c)(1) of this section, the Secretary may apply the average-to-
transaction method, as described in paragraph (e) of this section, in an 
antidumping investigation if:
    (i) As determined through the use of, among other things, standard 
and appropriate statistical techniques, there is targeted dumping in the 
form of a pattern of export prices (or constructed export prices) for 
comparable merchandise that differ significantly among purchasers, 
regions, or periods of time; and
    (ii) The Secretary determines that such differences cannot be taken 
into account using the average-to-average method or the transaction-to-
transaction method and explains the basis for that determination.
    (2) Limitation of average-to-transaction method to targeted dumping. 
Where the criteria for identifying targeted dumping under paragraph 
(f)(1) of this section are satisfied, the Secretary normally will limit 
the application of the average-to-transaction method to those sales that 
constitute targeted dumping under paragraph (f)(1)(i) of this section.
    (3) Allegations concerning targeted dumping. The Secretary normally 
will

[[Page 267]]

examine only targeted dumping described in an allegation, filed within 
the time indicated in Sec. 351.301(d)(5). Allegations must include all 
supporting factual information, and an explanation as to why the 
average-to-average or transaction-to-transaction method could not take 
into account any alleged price differences.
    (g) Requests for information. In an investigation, the Secretary 
will request information relevant to the identification of averaging 
groups under paragraph (d)(2) of this section and to the analysis of 
possible targeted dumping under paragraph (f) of this section. If a 
response to a request for such information is such as to warrant the 
application of the facts otherwise available, within the meaning of 
section 776 of the Act and Sec. 351.308, the Secretary may apply the 
average-to-transaction method to all the sales of the producer or 
exporter concerned.



Sec. 351.415  Conversion of currency.

    (a) In general. In an antidumping proceeding, the Secretary will 
convert foreign currencies into United States dollars using the rate of 
exchange on the date of sale of the subject merchandise.
    (b) Exception. If the Secretary establishes that a currency 
transaction on forward markets is directly linked to an export sale 
under consideration, the Secretary will use the exchange rate specified 
with respect to such foreign currency in the forward sale agreement to 
convert the foreign currency.
    (c) Exchange rate fluctuations. The Secretary will ignore 
fluctuations in exchange rates.
    (d) Sustained movement in foreign currency value. In an antidumping 
investigation, if there is a sustained movement increasing the value of 
the foreign currency relative to the United States dollar, the Secretary 
will allow exporters 60 days to adjust their prices to reflect such 
sustained movement.



  Subpart E_Identification and Measurement of Countervailable Subsidies

    Source: 63 FR 65407, Nov. 25, 1998, unless otherwise noted.



Sec. 351.501  Scope.

    The provisions of this subpart E set forth rules regarding the 
identification and measurement of countervailable subsidies. Where this 
subpart E does not expressly deal with a particular type of alleged 
subsidy, the Secretary will identify and measure the subsidy, if any, in 
accordance with the underlying principles of the Act and this subpart E.



Sec. 351.502  Specificity of domestic subsidies.

    (a) Sequential analysis. In determining whether a subsidy is de 
facto specific, the Secretary will examine the factors contained in 
section 771(5A)(D)(iii) of the Act sequentially in order of their 
appearance. If a single factor warrants a finding of specificity, the 
Secretary will not undertake further analysis.
    (b) Characteristics of a ``group.'' In determining whether a subsidy 
is being provided to a ``group'' of enterprises or industries within the 
meaning of section 751(5A)(D) of the Act, the Secretary is not required 
to determine whether there are shared characteristics among the 
enterprises or industries that are eligible for, or actually receive, a 
subsidy.
    (c) Integral linkage. Unless the Secretary determines that two or 
more programs are integrally linked, the Secretary will determine the 
specificity of a program under section 771(5A)(D) of the Act solely on 
the basis of the availability and use of the particular program in 
question. The Secretary may find two or more programs to be integrally 
linked if:
    (1) The subsidy programs have the same purpose;
    (2) The subsidy programs bestow the same type of benefit;
    (3) The subsidy programs confer similar levels of benefits on 
similarly situated firms; and
    (4) The subsidy programs were linked at inception.
    (d) Agricultural subsidies. The Secretary will not regard a subsidy 
as being specific under section 771(5A)(D) of the Act solely because the 
subsidy is limited to the agricultural sector (domestic subsidy).

[[Page 268]]

    (e) Subsidies to small-and medium-sized businesses. The Secretary 
will not regard a subsidy as being specific under section 771(5A)(D) of 
the Act solely because the subsidy is limited to small firms or small-
and medium-sized firms.
    (f) Disaster relief. The Secretary will not regard disaster relief 
as being specific under section 771(5A)(D) of the Act if such relief 
constitutes general assistance available to anyone in the area affected 
by the disaster.



Sec. 351.503  Benefit.

    (a) Specific rules. In the case of a government program for which a 
specific rule for the measurement of a benefit is contained in this 
subpart E, the Secretary will measure the extent to which a financial 
contribution (or income or price support) confers a benefit as provided 
in that rule. For example, Sec. 351.504(a) prescribes the specific rule 
for measurement of the benefit of grants.
    (b) Other subsidies--(1) In general. For other government programs, 
the Secretary normally will consider a benefit to be conferred where a 
firm pays less for its inputs (e.g., money, a good, or a service) than 
it otherwise would pay in the absence of the government program, or 
receives more revenues than it otherwise would earn.
    (2) Exception. Paragraph (b)(1) of this section is not intended to 
limit the ability of the Secretary to impose countervailing duties when 
the facts of a particular case establish that a financial contribution 
(or income or price support) has conferred a benefit, even if that 
benefit does not take the form of a reduction in input costs or an 
enhancement of revenues. When paragraph (b)(1) of this section is not 
applicable, the Secretary will determine whether a benefit is conferred 
by examining whether the alleged program or practice has common or 
similar elements to the four illustrative examples in sections 
771(5)(E)(i) through (iv) of the Act.
    (c) Distinction from effect of subsidy. In determining whether a 
benefit is conferred, the Secretary is not required to consider the 
effect of the government action on the firm's performance, including its 
prices or output, or how the firm's behavior otherwise is altered.
    (d) Varying financial contribution levels--(1) In general. Where a 
government program provides varying levels of financial contributions 
based on different eligibility criteria, and one or more of such levels 
is not specific within the meaning of Sec. 351.502, a benefit is 
conferred to the extent that a firm receives a greater financial 
contribution than the financial contributions provided at a non-specific 
level under the program. The preceding sentence shall apply only to the 
extent the Secretary determines that the varying levels of financial 
contributions are set forth in a statute, decree, regulation, or other 
official act; that the levels are clearly delineated and identifiable; 
and that the firm would have been eligible for the non-specific level of 
contributions.
    (2) Exception. Paragraph (d)(1) of this section shall not apply 
where the statute specifies a commercial test for determining the 
benefit.
    (e) Tax consequences. In calculating the amount of a benefit, the 
Secretary will not consider the tax consequences of the benefit.



Sec. 351.504  Grants.

    (a) Benefit. In the case of a grant, a benefit exists in the amount 
of the grant.
    (b) Time of receipt of benefit. In the case of a grant, the 
Secretary normally will consider a benefit as having been received on 
the date on which the firm received the grant.
    (c) Allocation of a grant to a particular time period. The Secretary 
will allocate the benefit from a grant to a particular time period in 
accordance with Sec. 351.524.



Sec. 351.505  Loans.

    (a) Benefit--(1) In general. In the case of a loan, a benefit exists 
to the extent that the amount a firm pays on the government-provided 
loan is less than the amount the firm would pay on a comparable 
commercial loan(s) that the firm could actually obtain on the market. 
See section 771(5)(E)(ii) of the Act. In making the comparison called 
for in the preceding sentence, the Secretary normally will rely on 
effective interest rates.

[[Page 269]]

    (2) ``Comparable commercial loan'' defined--(i) ``Comparable'' 
defined. In selecting a loan that is ``comparable'' to the government-
provided loan, the Secretary normally will place primary emphasis on 
similarities in the structure of the loans (e.g., fixed interest rate v. 
variable interest rate), the maturity of the loans (e.g., short-term v. 
long-term), and the currency in which the loans are denominated.
    (ii) ``Commercial'' defined. In selecting a ``commercial'' loan, the 
Secretary normally will use a loan taken out by the firm from a 
commercial lending institution or a debt instrument issued by the firm 
in a commercial market. Also, the Secretary will treat a loan from a 
government-owned bank as a commercial loan, unless there is evidence 
that the loan from a government-owned bank is provided on non-commercial 
terms or at the direction of the government. However, the Secretary will 
not consider a loan provided under a government program, or a loan 
provided by a government-owned special purpose bank, to be a commercial 
loan for purposes of selecting a loan to compare with a government-
provided loan.
    (iii) Long-term loans. In selecting a comparable loan, if the 
government-provided loan is a long-term loan, the Secretary normally 
will use a loan the terms of which were established during, or 
immediately before, the year in which the terms of the government-
provided loan were established.
    (iv) Short-term loans. In making the comparison required under 
paragraph (a)(1) of this section, if the government-provided loan is a 
short-term loan, the Secretary normally will use an annual average of 
the interest rates on comparable commercial loans during the year in 
which the government-provided loan was taken out, weighted by the 
principal amount of each loan. However, if the Secretary finds that 
interest rates fluctuated significantly during the period of 
investigation or review, the Secretary will use the most appropriate 
interest rate based on the circumstances presented.
    (3) ``Could actually obtain on the market'' defined--(i) In general. 
In selecting a comparable commercial loan that the recipient ``could 
actually obtain on the market,'' the Secretary normally will rely on the 
actual experience of the firm in question in obtaining comparable 
commercial loans for both short-term and long-term loans.
    (ii) Where the firm has no comparable commercial loans. If the firm 
did not take out any comparable commercial loans during the period 
referred to in paragraph (a)(2)(iii) or (a)(2)(iv) of this section, the 
Secretary may use a national average interest rate for comparable 
commercial loans.
    (iii) Exception for uncreditworthy companies. If the Secretary finds 
that a firm that received a government-provided long-term loan was 
uncreditworthy, as defined in paragraph (a)(4) of this section, the 
Secretary normally will calculate the interest rate to be used in making 
the comparison called for by paragraph (a)(1) of this section according 
to the following formula:

ib = [(1 - qn)(1 + if)n /(1 
    - pn)]1 / n - 1,

where:

n = the term of the loan;
ib = the benchmark interest rate for uncreditworthy 
companies;
if = the long-term interest rate that would be paid by a 
creditworthy company;
pn = the probability of default by an uncreditworthy company 
within n years; and
qn = the probability of default by a creditworthy company 
within n years.


``Default'' means any missed or delayed payment of interest and/or 
principal, bankruptcy, receivership, or distressed exchange. For values 
of pn, the Secretary will normally rely on the average 
cumulative default rates reported for the Caa to C-rated category of 
companies in Moody's study of historical default rates of corporate bond 
issuers. For values of qn, the Secretary will normally rely 
on the average cumulative default rates reported for the Aaa to Baa-
rated categories of companies in Moody's study of historical default 
rates of corporate bond issuers.
    (4) Uncreditworthiness--(i) In general. The Secretary will consider 
a firm to be uncreditworthy if the Secretary determines that, based on 
information available at the time of the government-provided loan, the 
firm could not have obtained long-term loans from conventional 
commercial sources. The

[[Page 270]]

Secretary will determine uncreditworthiness on a case-by-case basis, and 
may, in appropriate circumstances, focus its creditworthiness analysis 
on the project being financed rather than the company as a whole. In 
making the creditworthiness determination, the Secretary may examine, 
among other factors, the following:
    (A) The receipt by the firm of comparable commercial long-term 
loans;
    (B) The present and past financial health of the firm, as reflected 
in various financial indicators calculated from the firm's financial 
statements and accounts;
    (C) The firm's recent past and present ability to meet its costs and 
fixed financial obligations with its cash flow; and
    (D) Evidence of the firm's future financial position, such as market 
studies, country and industry economic forecasts, and project and loan 
appraisals prepared prior to the agreement between the lender and the 
firm on the terms of the loan.
    (ii) Significance of long-term commercial loans. In the case of 
firms not owned by the government, the receipt by the firm of comparable 
long-term commercial loans, unaccompanied by a government-provided 
guarantee, will normally constitute dispositive evidence that the firm 
is not uncreditworthy.
    (iii) Significance of prior subsidies. In determining whether a firm 
is uncreditworthy, the Secretary will ignore current and prior subsidies 
received by the firm.
    (iv) Discount rate. When the creditworthiness of a firm is 
considered in connection with the allocation of non-recurring benefits, 
the Secretary will rely on information available in the year in which 
the government agreed to provide the subsidy conferring a non-recurring 
benefit.
    (5) Long-term variable rate loans--(i) In general. In the case of a 
long-term variable rate loan, the Secretary normally will make the 
comparison called for by paragraph (a)(1) of this section by relying on 
a comparable commercial loan with a variable interest rate. The 
Secretary then will compare the variable interest rates on the 
comparable commercial loan and the government-provided loan for the year 
in which the terms of the government-provided loan were established. If 
the comparison shows that the interest rate on the government-provided 
loan was equal to or higher than the interest rate on the comparable 
commercial loan, the Secretary will not consider the government-provided 
loan as having conferred a benefit. If the comparison shows that the 
interest rate on the government-provided loan was lower, the Secretary 
will consider the government-provided loan as having conferred a 
benefit, and, if the other criteria for a countervailable subsidy are 
satisfied, will calculate the amount of the benefit in accordance with 
paragraph (c)(4) of this section.
    (ii) Exception. If the Secretary is unable to make the comparison 
described in paragraph (a)(5)(i) of this section or if the comparison 
described in paragraph (a)(5)(i) of this section would yield an 
inaccurate measure of the benefit, the Secretary may modify the method 
described in paragraph (a)(5)(i) of this section.
    (6) Allegations--(i) Allegation of uncreditworthiness required. 
Normally, the Secretary will not consider the uncreditworthiness of a 
firm absent a specific allegation by the petitioner that is supported by 
information establishing a reasonable basis to believe or suspect that 
the firm is uncreditworthy.
    (ii) Government-owned banks. The Secretary will not investigate a 
loan provided by a government-owned bank absent a specific allegation 
that is supported by information reasonably available to petitioners 
indicating that:
    (A) The loan meets the specificity criteria in accordance with 
section 771(5A) of the Act; and
    (B) A benefit exists within the meaning of paragraph (a)(1) of this 
section.
    (b) Time of receipt of benefit. In the case of loans described in 
paragraphs (c)(1), (c)(2), and (c)(4) of this section, the Secretary 
normally will consider a benefit as having been received in the year in 
which the firm otherwise would have had to make a payment on the 
comparable commercial loan. In the case of a loan described in paragraph

[[Page 271]]

(c)(3) of this section, the Secretary normally will consider the benefit 
as having been received in the year in which the firm receives the 
proceeds of the loan.
    (c) Allocation of benefit to a particular time period--(1) Short-
term loans. The Secretary will allocate (expense) the benefit from a 
short-term loan to the year(s) in which the firm is due to make interest 
payments on the loan. In no event may the present value (in the year of 
receipt of the loan) of the amounts calculated under the preceding 
sentence exceed the principal of the loan.
    (2) Long-term fixed-rate loans with concessionary interest rates. 
Except as provided in paragraph (c)(3) of this section, the Secretary 
normally will calculate the subsidy amount to be assigned to a 
particular year by calculating the difference in interest payments for 
that year, i.e., the difference between the interest paid by the firm in 
that year on the government-provided loan and the interest the firm 
would have paid on the comparison loan. However, in no event may the 
present value (in the year of receipt of the loan) of the amounts 
calculated under the preceding sentence exceed the principal of the 
loan.
    (3) Long-term fixed-rate loans with different repayment schedules--
(i) Calculation of present value of benefit. Where the government-
provided loan and the loan to which it is compared under paragraph (a) 
of this section are both long-term, fixed-interest rate loans, but have 
different grace periods or maturities, or where the shapes of the 
repayment schedules differ, the Secretary will determine the total 
benefit by calculating the present value, in the year that repayment 
would begin on the comparable commercial loan, of the difference between 
the amount that the firm is to pay on the government-provided loan and 
the amount that the firm would have paid on the comparison loan. In no 
event may the total benefit calculated under the preceding sentence 
exceed the principal of the loan.
    (ii) Calculation of annual benefit. With respect to the benefit 
calculated under paragraph (c)(3)(i) of this section, the Secretary will 
determine the portion of that benefit to be assigned to a particular 
year by using the formula set forth in Sec. 351.524(d)(1) and the 
following parameters:

Ak = the amount countervailed in year k,
y = the present value of the benefit (see paragraph (c)(3)(i) of this 
section),
n = the number of years in the life of the loan,
d = the interest rate on the comparison loan selected under paragraph 
(a) of this section, and
k = the year of allocation, where the year that repayment would begin on 
the comparable commercial loan = 1.

    (4) Long-term variable interest rate loans. In the case of a 
government-provided long-term variable-rate loan, the Secretary normally 
will determine the amount of the benefit attributable to a particular 
year by calculating the difference in payments for that year, i.e., the 
difference between the amount paid by the firm in that year on the 
government-provided loan and the amount the firm would have paid on the 
comparison loan. However, in no event may the present value (in the year 
of receipt of the loan) of the amounts calculated under the preceding 
sentence exceed the principal of the loan.
    (d) Contingent liability interest-free loans. (1) Treatment as 
loans. In the case of an interest-free loan, for which the repayment 
obligation is contingent upon the company taking some future action or 
achieving some goal in fulfillment of the loan's requirements, the 
Secretary normally will treat any balance on the loan outstanding during 
a year as an interest-free, short-term loan in accordance with 
paragraphs (a), (b), and (c)(1) of this section. However, if the event 
upon which repayment of the loan depends will occur at a point in time 
more than one year after the receipt of the contingent liability loan, 
the Secretary will use a long-term interest rate as the benchmark in 
accordance with paragraphs (a), (b), and (c)(2) of this section. In no 
event may the present value (in the year of receipt of the contingent 
liability loan) of the amounts calculated under this paragraph exceed 
the principal of the loan.

[[Page 272]]

    (2) Treatment as grants. If, at any point in time, the Secretary 
determines that the event upon which repayment depends is not a viable 
contingency, the Secretary will treat the outstanding balance of the 
loan as a grant received in the year in which this condition manifests 
itself.



Sec. 351.506  Loan guarantees.

    (a) Benefit--(1) In general. In the case of a loan guarantee, a 
benefit exists to the extent that the total amount a firm pays for the 
loan with the government-provided guarantee is less than the total 
amount the firm would pay for a comparable commercial loan that the firm 
could actually obtain on the market absent the government-provided 
guarantee, including any difference in guarantee fees. See section 
771(5)(E)(iii) of the Act. The Secretary will select a comparable 
commercial loan in accordance with Sec. 351.505(a).
    (2) Government acting as owner. In situations where a government, 
acting as the owner of a firm, provides a loan guarantee to that firm, 
the guarantee does not confer a benefit if the respondent provides 
evidence demonstrating that it is normal commercial practice in the 
country in question for shareholders to provide guarantees to their 
firms under similar circumstances and on comparable terms.
    (b) Time of receipt of benefit. In the case of a loan guarantee, the 
Secretary normally will consider a benefit as having been received in 
the year in which the firm otherwise would have had to make a payment on 
the comparable commercial loan.
    (c) Allocation of benefit to a particular time period. In allocating 
the benefit from a government-provided loan guarantee to a particular 
time period, the Secretary will use the methods set forth in Sec. 
351.505(c) regarding loans.



Sec. 351.507  Equity.

    (a) Benefit--(1) In general. In the case of a government-provided 
equity infusion, a benefit exists to the extent that the investment 
decision is inconsistent with the usual investment practice of private 
investors, including the practice regarding the provision of risk 
capital, in the country in which the equity infusion is made. See 
section 771(5)(E)(i) of the Act.
    (2) Private investor prices available.--(i) In general. Except as 
provided in paragraph (a)(2)(iii) of this section, the Secretary will 
consider an equity infusion as being inconsistent with usual investment 
practice (see paragraph (a)(1) of this section) if the price paid by the 
government for newly issued shares is greater than the price paid by 
private investors for the same (or similar form of) newly issued shares.
    (ii) Timing of private investor prices. In selecting a private 
investor price under paragraph (a)(2)(i) of this section, the Secretary 
will rely on sales of newly issued shares made reasonably concurrently 
with the newly issued shares purchased by the government.
    (iii) Significant private sector participation required. The 
Secretary will not use private investor prices under paragraph (a)(2)(i) 
of this section if the Secretary concludes that private investor 
purchases of newly issued shares are not significant.
    (iv) Adjustments for ``similar'' form of equity. Where the Secretary 
uses private investor prices for a form of shares that is similar to the 
newly issued shares purchased by the government (see paragraph (a)(2)(i) 
of this section), the Secretary, where appropriate, will adjust the 
prices to reflect the differences in the forms of shares.
    (3) Actual private investor prices unavailable--(i) In general. If 
actual private investor prices are not available under paragraph (a)(2) 
of this section, the Secretary will determine whether the firm funded by 
the government-provided equity was equityworthy or unequityworthy at the 
time of the equity infusion (see paragraph (a)(4) of this section). If 
the Secretary determines that the firm was equityworthy, the Secretary 
will apply paragraph (a)(5) of this section to determine whether the 
equity infusion was inconsistent with the usual investment practice of 
private investors. A determination by the Secretary that the firm was 
unequityworthy will constitute a determination that the equity infusion 
was inconsistent with usual investment practice of private investors, 
and the Secretary will apply paragraph (a)(6) of this section to measure 
the

[[Page 273]]

benefit attributable to the equity infusion.
    (4) Equityworthiness--(i) In general. The Secretary will consider a 
firm to have been equityworthy if the Secretary determines that, from 
the perspective of a reasonable private investor examining the firm at 
the time the government-provided equity infusion was made, the firm 
showed an ability to generate a reasonable rate of return within a 
reasonable period of time. The Secretary may, in appropriate 
circumstances, focus its equityworthiness analysis on a project rather 
than the company as a whole. In making the equityworthiness 
determination, the Secretary may examine the following factors, among 
others:
    (A) Objective analyses of the future financial prospects of the 
recipient firm or the project as indicated by, inter alia, market 
studies, economic forecasts, and project or loan appraisals prepared 
prior to the government-provided equity infusion in question;
    (B) Current and past indicators of the recipient firm's financial 
health calculated from the firm's statements and accounts, adjusted, if 
appropriate, to conform to generally accepted accounting principles;
    (C) Rates of return on equity in the three years prior to the 
government equity infusion; and
    (D) Equity investment in the firm by private investors.
    (ii) Significance of a pre-infusion objective analysis. For purposes 
of making an equityworthiness determination, the Secretary will request 
and normally require from the respondents the information and analysis 
completed prior to the infusion, upon which the government based its 
decision to provide the equity infusion (see, paragraph (a)(4)(i)(A) of 
this section). Absent the existence or provision of an objective 
analysis, containing information typically examined by potential private 
investors considering an equity investment, the Secretary will normally 
determine that the equity infusion received provides a countervailable 
benefit within the meaning of paragraph (a)(1) of this section. The 
Secretary will not necessarily make such a determination if the absence 
of an objective analysis is consistent with the actions of reasonable 
private investors in the country in question.
    (iii) Significance of prior subsidies. In determining whether a firm 
was equityworthy, the Secretary will ignore current and prior subsidies 
received by the firm.
    (5) Benefit where firm is equityworthy. If the Secretary determines 
that the firm or project was equityworthy (see paragraph (a)(4) of this 
section), the Secretary will examine the terms and the nature of the 
equity purchased to determine whether the investment was otherwise 
inconsistent with the usual investment practice of private investors. If 
the Secretary determines that the investment was inconsistent with usual 
private investment practice, the Secretary will determine the amount of 
the benefit conferred on a case-by-case basis.
    (6) Benefit where firm is unequityworthy. If the Secretary 
determines that the firm or project was unequityworthy (see paragraph 
(a)(4) of this section), a benefit to the firm exists in the amount of 
the equity infusion.
    (7) Allegations. The Secretary will not investigate an equity 
infusion in a firm absent a specific allegation by the petitioner which 
is supported by information establishing a reasonable basis to believe 
or suspect that the firm received an equity infusion that provides a 
countervailable benefit within the meaning of paragraph (a)(1) of this 
section.
    (b) Time of receipt of benefit. In the case of a government-provided 
equity infusion, the Secretary normally will consider the benefit to 
have been received on the date on which the firm received the equity 
infusion.
    (c) Allocation of benefit to a particular time period. The benefit 
conferred by an equity infusion shall be allocated over the same time 
period as a non-recurring subsidy. See Sec. 351.524(d).



Sec. 351.508  Debt forgiveness.

    (a) Benefit. In the case of an assumption or forgiveness of a firm's 
debt obligation, a benefit exists equal to the amount of the principal 
and/or interest (including accrued, unpaid interest) that the government 
has assumed or forgiven. In situations where the entity

[[Page 274]]

assuming or forgiving the debt receives shares in a firm in return for 
eliminating or reducing the firm's debt obligation, the Secretary will 
determine the existence of a benefit under Sec. 351.507 (equity 
infusions).
    (b) Time of receipt of benefit. In the case of a debt or interest 
assumption or forgiveness, the Secretary normally will consider the 
benefit as having been received as of the date on which the debt or 
interest was assumed or forgiven.
    (c) Allocation of benefit to a particular time period--(1) In 
general. The Secretary will treat the benefit determined under paragraph 
(a) of this section as a non-recurring subsidy, and will allocate the 
benefit to a particular year in accordance with Sec. 351.524(d).
    (2) Exception. Where an interest assumption is tied to a particular 
loan and where a firm can reasonably expect to receive the interest 
assumption at the time it applies for the loan, the Secretary will 
normally treat the interest assumption as a reduced-interest loan and 
allocate the benefit to a particular year in accordance with Sec. 
351.505(c) (loans).



Sec. 351.509  Direct taxes.

    (a) Benefit--(1) Exemption or remission of taxes. In the case of a 
program that provides for a full or partial exemption or remission of a 
direct tax (e.g., an income tax), or a reduction in the base used to 
calculate a direct tax, a benefit exists to the extent that the tax paid 
by a firm as a result of the program is less than the tax the firm would 
have paid in the absence of the program.
    (2) Deferral of taxes. In the case of a program that provides for a 
deferral of direct taxes, a benefit exists to the extent that 
appropriate interest charges are not collected. Normally, a deferral of 
direct taxes will be treated as a government-provided loan in the amount 
of the tax deferred, according to the methodology described in Sec. 
351.505. The Secretary will use a short-term interest rate as the 
benchmark for tax deferrals of one year or less. The Secretary will use 
a long-term interest rate as the benchmark for tax deferrals of more 
than one year.
    (b) Time of receipt of benefit.--(1) Exemption or remission of 
taxes. In the case of a full or partial exemption or remission of a 
direct tax, the Secretary normally will consider the benefit as having 
been received on the date on which the recipient firm would otherwise 
have had to pay the taxes associated with the exemption or remission. 
Normally, this date will be the date on which the firm filed its tax 
return.
    (2) Deferral of taxes. In the case of a tax deferral of one year or 
less, the Secretary normally will consider the benefit as having been 
received on the date on which the deferred tax becomes due. In the case 
of a multi-year deferral, the Secretary normally will consider the 
benefit as having been received on the anniversary date(s) of the 
deferral.
    (c) Allocation of benefit to a particular time period. The Secretary 
normally will allocate (expense) the benefit of a full or partial 
exemption, remission, or deferral of a direct tax to the year in which 
the benefit is considered to have been received under paragraph (b) of 
this section.



Sec. 351.510  Indirect taxes and import charges 
(other than export programs).

    (a) Benefit--(1) Exemption or remission of taxes. In the case of a 
program, other than an export program, that provides for the full or 
partial exemption or remission of an indirect tax or an import charge, a 
benefit exists to the extent that the taxes or import charges paid by a 
firm as a result of the program are less than the taxes the firm would 
have paid in the absence of the program.
    (2) Deferral of taxes. In the case of a program, other than an 
export program, that provides for a deferral of indirect taxes or import 
charges, a benefit exists to the extent that appropriate interest 
charges are not collected. Normally, a deferral of indirect taxes or 
import charges will be treated as a government-provided loan in the 
amount of the taxes deferred, according to the methodology described in 
Sec. 351.505. The Secretary will use a short-term interest rate as the 
benchmark for tax deferrals of one year or less. The Secretary will use 
a long-term interest rate as the benchmark for tax deferrals of more 
than one year.

[[Page 275]]

    (b) Time of receipt of benefit--(1) Exemption or remission of taxes. 
In the case of a full or partial exemption or remission of an indirect 
tax or import charge, the Secretary normally will consider the benefit 
as having been received at the time the recipient firm otherwise would 
be required to pay the indirect tax or import charge.
    (2) Deferral of taxes. In the case of the deferral of an indirect 
tax or import charge of one year or less, the Secretary normally will 
consider the benefit as having been received on the date on which the 
deferred tax becomes due. In the case of a multi-year deferral, the 
Secretary normally will consider the benefit as having been received on 
the anniversary date(s) of the deferral.
    (c) Allocation of benefit to a particular time period. The Secretary 
normally will allocate (expense) the benefit of a full or partial 
exemption, remission, or deferral described in paragraph (a) of this 
section to the year in which the benefit is considered to have been 
received under paragraph (b) of this section.



Sec. 351.511  Provision of goods or services.

    (a) Benefit--(1) In general. In the case where goods or services are 
provided, a benefit exists to the extent that such goods or services are 
provided for less than adequate remuneration. See section 771(5)(E)(iv) 
of the Act.
    (2) ``Adequate Remuneration'' defined--(i) In general. The Secretary 
will normally seek to measure the adequacy of remuneration by comparing 
the government price to a market-determined price for the good or 
service resulting from actual transactions in the country in question. 
Such a price could include prices stemming from actual transactions 
between private parties, actual imports, or, in certain circumstances, 
actual sales from competitively run government auctions. In choosing 
such transactions or sales, the Secretary will consider product 
similarity; quantities sold, imported, or auctioned; and other factors 
affecting comparability.
    (ii) Actual market-determined price unavailable. If there is no 
useable market-determined price with which to make the comparison under 
paragraph (a)(2)(i) of this section, the Secretary will seek to measure 
the adequacy of remuneration by comparing the government price to a 
world market price where it is reasonable to conclude that such price 
would be available to purchasers in the country in question. Where there 
is more than one commercially available world market price, the 
Secretary will average such prices to the extent practicable, making due 
allowance for factors affecting comparability.
    (iii) World market price unavailable. If there is no world market 
price available to purchasers in the country in question, the Secretary 
will normally measure the adequacy of remuneration by assessing whether 
the government price is consistent with market principles.
    (iv) Use of delivered prices. In measuring adequate remuneration 
under paragraph (a)(2)(i) or (a)(2)(ii) of this section, the Secretary 
will adjust the comparison price to reflect the price that a firm 
actually paid or would pay if it imported the product. This adjustment 
will include delivery charges and import duties.
    (b) Time of receipt of benefit. In the case of the provision of a 
good or service, the Secretary normally will consider a benefit as 
having been received as of the date on which the firm pays or, in the 
absence of payment, was due to pay for the government-provided good or 
service.
    (c) Allocation of benefit to a particular time period. In the case 
of the provision of a good or service, the Secretary will normally 
allocate (expense) the benefit to the year in which the benefit is 
considered to have been received under paragraph (b) of this section. In 
the case of the provision of infrastructure, the Secretary will normally 
treat the benefit as non-recurring and will allocate the benefit to a 
particular year in accordance with Sec. 351.524(d).
    (d) Exception for general infrastructure. A financial contribution 
does not exist in the case of the government provision of general 
infrastructure. General infrastructure is defined as infrastructure that 
is created for the broad societal welfare of a country, region, state or 
municipality.

[[Page 276]]



Sec. 351.512  Purchase of goods. [Reserved]



Sec. 351.513  Worker-related subsidies.

    (a) Benefit. In the case of a program that provides assistance to 
workers, a benefit exists to the extent that the assistance relieves a 
firm of an obligation that it normally would incur.
    (b) Time of receipt of benefit. In the case of assistance provided 
to workers, the Secretary normally will consider the benefit as having 
been received by the firm on the date on which the payment is made that 
relieves the firm of the relevant obligation.
    (c) Allocation of benefit to a particular time period. Normally, the 
Secretary will allocate (expense) the benefit from assistance provided 
to workers to the year in which the benefit is considered to have been 
received under paragraph (b) of this section.



Sec. 351.514  Export subsidies.

    (a) In general. The Secretary will consider a subsidy to be an 
export subsidy if the Secretary determines that eligibility for, 
approval of, or the amount of, a subsidy is contingent upon export 
performance. In applying this section, the Secretary will consider a 
subsidy to be contingent upon export performance if the provision of the 
subsidy is, in law or in fact, tied to actual or anticipated exportation 
or export earnings, alone or as one of two or more conditions.
    (b) Exception. In the case of export promotion activities of a 
government, a benefit does not exist if the Secretary determines that 
the activities consist of general informational activities that do not 
promote particular products over others.



Sec. 351.515  Internal transport and freight charges for export 
shipments.

    (a) Benefit--(1) In general. In the case of internal transport and 
freight charges on export shipments, a benefit exists to the extent that 
the charges paid by a firm for transport or freight with respect to 
goods destined for export are less than what the firm would have paid if 
the goods were destined for domestic consumption. The Secretary will 
consider the amount of the benefit to equal the difference in amounts 
paid.
    (2) Exception. For purposes of paragraph (a)(1) of this section, a 
benefit does not exist if the Secretary determines that:
    (i) Any difference in charges is the result of an arm's-length 
transaction between the supplier and the user of the transport or 
freight service; or
    (ii) The difference in charges is commercially justified.
    (b) Time of receipt of benefit. In the case of internal transport 
and freight charges for export shipments, the Secretary normally will 
consider the benefit as having been received by the firm on the date on 
which the firm paid, or in the absence of payment was due to pay, the 
charges.
    (c) Allocation of benefit to a particular time period. Normally, the 
Secretary will allocate (expense) the benefit from internal transport 
and freight charges for export shipments to the year in which the 
benefit is considered to have been received under paragraph (b) of this 
section.



Sec. 351.516  Price preferences for inputs used in the production of 
goods for export.

    (a) Benefit--(1) In general. In the case of a program involving the 
provision by governments or their agencies, either directly or 
indirectly through government-mandated schemes, of imported or domestic 
products or services for use in the production of exported goods, a 
benefit exists to the extent that the Secretary determines that the 
terms or conditions on which the products or services are provided are 
more favorable than the terms or conditions applicable to the provision 
of like or directly competitive products or services for use in the 
production of goods for domestic consumption unless, in the case of 
products, such terms or conditions are not more favorable than those 
commercially available on world markets to exporters.
    (2) Amount of benefit. In the case of products provided under such 
schemes, the Secretary will determine the amount of the benefit by 
comparing the price of products used in the production of exported goods 
to the commercially available world market price

[[Page 277]]

of such products, inclusive of delivery charges.
    (3) Commercially available. For purposes of paragraph (a)(2) of this 
section, commercially available means that the choice between domestic 
and imported products is unrestricted and depends only on commercial 
considerations.
    (b) Time of receipt of benefit. In the case of a benefit described 
in paragraph (a)(1) of this section, the Secretary normally will 
consider the benefit to have been received as of the date on which the 
firm paid, or in the absence of payment was due to pay, for the product.
    (c) Allocation of benefit to a particular time period. Normally, the 
Secretary will allocate (expense) benefits described in paragraph (a)(1) 
of this section to the year in which the benefit is considered to have 
been received under paragraph (b) of this section.



Sec. 351.517  Exemption or remission upon export of indirect taxes.

    (a) Benefit. In the case of the exemption or remission upon export 
of indirect taxes, a benefit exists to the extent that the Secretary 
determines that the amount remitted or exempted exceeds the amount 
levied with respect to the production and distribution of like products 
when sold for domestic consumption.
    (b) Time of receipt of benefit. In the case of the exemption or 
remission upon export of an indirect tax, the Secretary normally will 
consider the benefit as having been received as of the date of 
exportation.
    (c) Allocation of benefit to a particular time period. Normally, the 
Secretary will allocate (expense) the benefit from the exemption or 
remission upon export of indirect taxes to the year in which the benefit 
is considered to have been received under paragraph (b) of this section.



Sec. 351.518  Exemption, remission, or deferral upon export of 
prior-stage cumulative indirect taxes.

    (a) Benefit--(1) Exemption of prior-stage cumulative indirect taxes. 
In the case of a program that provides for the exemption of prior-stage 
cumulative indirect taxes on inputs used in the production of an 
exported product, a benefit exists to the extent that the exemption 
extends to inputs that are not consumed in the production of the 
exported product, making normal allowance for waste, or if the exemption 
covers taxes other than indirect taxes that are imposed on the input. If 
the Secretary determines that the exemption of prior-stage cumulative 
indirect taxes confers a benefit, the Secretary normally will consider 
the amount of the benefit to be the prior-stage cumulative indirect 
taxes that otherwise would have been paid on the inputs not consumed in 
the production of the exported product, making normal allowance for 
waste, and the amount of charges other than import charges covered by 
the exemption.
    (2) Remission of prior-stage cumulative indirect taxes. In the case 
of a program that provides for the remission of prior-stage cumulative 
indirect taxes on inputs used in the production of an exported product, 
a benefit exists to the extent that the amount remitted exceeds the 
amount of prior-stage cumulative indirect taxes paid on inputs that are 
consumed in the production of the exported product, making normal 
allowance for waste. If the Secretary determines that the remission of 
prior-stage cumulative indirect taxes confers a benefit, the Secretary 
normally will consider the amount of the benefit to be the difference 
between the amount remitted and the amount of the prior-stage cumulative 
indirect taxes on inputs that are consumed in the production of the 
export product, making normal allowance for waste.
    (3) Deferral of prior-stage cumulative indirect taxes. In the case 
of a program that provides for a deferral of prior-stage cumulative 
indirect taxes on an exported product, a benefit exists to the extent 
that the deferral extends to inputs that are not consumed in the 
production of the exported product, making normal allowance for waste, 
and the government does not charge appropriate interest on the taxes 
deferred. If the Secretary determines that a benefit exists, the 
Secretary will normally treat the deferral as a government-provided loan 
in the amount of the tax deferred, according to the methodology 
described in Sec. 351.505. The

[[Page 278]]

Secretary will use a short-term interest rate as the benchmark for tax 
deferrals of one year or less. The Secretary will use a long-term 
interest rate as the benchmark for tax deferrals of more than one year.
    (4) Exception. Notwithstanding the provisions in paragraphs (a)(1), 
(a)(2), and (a)(3) of this action, the Secretary will consider the 
entire amount of the exemption, remission or deferral to confer a 
benefit, unless the Secretary determines that:
    (i) The government in question has in place and applies a system or 
procedure to confirm which inputs are consumed in the production of the 
exported products and in what amounts, and to confirm which indirect 
taxes are imposed on these inputs, and the system or procedure is 
reasonable, effective for the purposes intended, and is based on 
generally accepted commercial practices in the country of export; or
    (ii) If the government in question does not have a system or 
procedure in place, if the system or procedure is not reasonable, or if 
the system or procedure is instituted and considered reasonable, but is 
found not to be applied or not to be applied effectively, the government 
in question has carried out an examination of actual inputs involved to 
confirm which inputs are consumed in the production of the exported 
product, in what amounts, and which indirect taxes are imposed on the 
inputs.
    (b) Time of receipt of benefit. In the case of the exemption, 
remission, or deferral of priorstage cumulative indirect taxes, the 
Secretary normally will consider the benefit as having been received:
    (1) In the case of an exemption, as of the date of exportation;
    (2) In the case of a remission, as of the date of exportation;
    (3) In the case of a deferral of one year or less, on the date the 
deferred tax became due; and
    (4) In the case of a multi-year deferral, on the anniversary date(s) 
of the deferral.
    (c) Allocation of benefit to a particular time period. The Secretary 
normally will allocate (expense) the benefit of the exemption, remission 
or deferral of prior-stage cumulative indirect taxes to the year in 
which the benefit is considered to have been received under paragraph 
(b) of this section.



Sec. 351.519  Remission or drawback of import charges upon export.

    (a) Benefit--(1) In general. The term ``remission or drawback'' 
includes full or partial exemptions and deferrals of import charges.
    (i) Remission or drawback of import charges. In the case of the 
remission or drawback of import charges upon export, a benefit exists to 
the extent that the Secretary determines that the amount of the 
remission or drawback exceeds the amount of import charges on imported 
inputs that are consumed in the production of the exported product, 
making normal allowances for waste.
    (ii) Exemption of import charges. In the case of an exemption of 
import charges upon export, a benefit exists to the extent that the 
exemption extends to inputs that are not consumed in the production of 
the exported product, making normal allowances for waste, or if the 
exemption covers charges other than import charges that are imposed on 
the input.
    (iii) Deferral of import charges. In the case of a deferral, a 
benefit exists to the extent that the deferral extends to inputs that 
are not consumed in the production of the exported product, making 
normal allowance for waste, and the government does not charge 
appropriate interest on the import charges deferred.
    (2) Substitution drawback. ``Substitution drawback'' involves a 
situation in which a firm uses a quantity of home market inputs equal 
to, and having the same quality and characteristics as, the imported 
inputs as a substitute for them. Substitution drawback does not 
necessarily result in the conferral of a benefit. However, a benefit 
exists if the Secretary determines that:
    (i) The import and the corresponding export operations both did not 
occur within a reasonable time period, not to exceed two years; or
    (ii) The amount drawn back exceeds the amount of the import charges 
levied initially on the imported inputs for which drawback is claimed.

[[Page 279]]

    (3) Amount of the benefit--(i) Remission or drawback of import 
charges. If the Secretary determines that the remission or drawback, 
including substitution drawback, of import charges confers a benefit 
under paragraph (a)(1) or (a)(2) of this section, the Secretary normally 
will consider the amount of the benefit to be the difference between the 
amount of import charges remitted or drawn back and the amount paid on 
imported inputs consumed in production for which remission or drawback 
was claimed.
    (ii) Exemption of import charges. If the Secretary determines that 
the exemption of import charges upon export confers a benefit, the 
Secretary normally will consider the amount of the benefit to be the 
import charges that otherwise would have been paid on the inputs not 
consumed in the production of the exported product, making normal 
allowance for waste, and the amount of charges other than import charges 
covered by the exemption.
    (iii) Deferral of import charges. If the Secretary determines that 
the deferral of import charges upon export confers a benefit, the 
Secretary will normally treat a deferral as a government-provided loan 
in the amount of the import charges deferred on the inputs not consumed 
in the production of the exported product, making normal allowance for 
waste, according to the methodology described in Sec. 351.505. The 
Secretary will use a short-term interest rate as the benchmark for 
deferrals of one year or less. The Secretary will use a long-term 
interest rate as the benchmark for deferrals of more than one year.
    (4) Exception. Notwithstanding paragraph (a)(3) of this section, the 
Secretary will consider the entire amount of an exemption, deferral, 
remission or drawback to confer a benefit, unless the Secretary 
determines that:
    (i) The government in question has in place and applies a system or 
procedure to confirm which inputs are consumed in the production of the 
exported products and in what amounts, and the system or procedure is 
reasonable, effective for the purposes intended, and is based on 
generally accepted commercial practices in the country of export; or
    (ii) If the government in question does not have a system or 
procedure in place, if the system or procedure is not reasonable, or if 
the system or procedure is instituted and considered reasonable, but is 
found not to be applied or not to be applied effectively, the government 
in question has carried out an examination of actual inputs involved to 
confirm which inputs are consumed in the production of the exported 
product, and in what amounts.
    (b) Time of receipt of benefit. In the case of the exemption, 
deferral, remission or drawback, including substitution drawback, of 
import charges, the Secretary normally will consider the benefit as 
having been received:
    (1) In the case of remission or drawback, as of the date of 
exportation;
    (2) In the case of an exemption, as of the date of the exportation;
    (3) In the case of a deferral of one year or less, on the date the 
import charges became due; and (4) In the case of a multi-year deferral, 
on the anniversary date(s) of the deferral.
    (c) Allocation of benefit to a particular time period. The Secretary 
normally will allocate (expense) the benefit from the exemption, 
deferral, remission or drawback of import charges to the year in which 
the benefit is considered to have been received under paragraph (b) of 
this section.



Sec. 351.520  Export insurance.

    (a) Benefit--(1) In general. In the case of export insurance, a 
benefit exists if the premium rates charged are inadequate to cover the 
long-term operating costs and losses of the program.
    (2) Amount of the benefit. If the Secretary determines under 
paragraph (a)(1) of this section that premium rates are inadequate, the 
Secretary normally will calculate the amount of the benefit as the 
difference between the amount of premiums paid by the firm and the 
amount received by the firm under the insurance program during the 
period of investigation or review.
    (b) Time of receipt of benefit. In the case of export insurance, the 
Secretary normally will consider the benefit as having been received in 
the year in which the difference described in paragraph (a)(2) of this 
section occurs.

[[Page 280]]

    (c) Allocation of benefit to a particular time period. The Secretary 
normally will allocate (expense) the benefit from export insurance to 
the year in which the benefit is considered to have been received under 
paragraph (b) of this section.



Sec. 351.521  Import substitution subsidies. [Reserved]



Sec. 351.522  Green light and green box subsidies.

    (a) Certain agricultural subsidies. The Secretary will treat as non-
countervailable domestic support measures that are provided to certain 
agricultural products (i.e., products listed in Annex 1 of the WTO 
Agreement on Agriculture) and that the Secretary determines conform to 
the criteria of Annex 2 of the WTO Agreement on Agriculture. See section 
771(5B)(F) of the Act. The Secretary will determine that a particular 
domestic support measure conforms fully to the provisions of Annex 2 if 
the Secretary finds that the measure:
    (1) Is provided through a publicly-funded government program 
(including government revenue foregone) not involving transfers from 
consumers;
    (2) Does not have the effect of providing a price support to 
producers; and (3) Meets the relevant policy-specific criteria and 
conditions set out in paragraphs 2 through 13 of Annex 2.
    (b) Research subsidies. In accordance with section 
771(5B)(B)(iii)(II) of the Act, the Secretary will examine the total 
eligible costs to be incurred over the duration of a particular project 
to determine whether a subsidy for research activities exceeds 75 
percent of the costs of industrial research, 50 percent of the costs of 
precompetitive development activity, or 62.5 percent of the costs for a 
project that includes both industrial research and precompetitive 
activity. If the Secretary determines that, at some point over the life 
of a particular project, these relevant thresholds will be exceeded, the 
Secretary will treat the entire amount of the subsidy as 
countervailable.
    (c) Subsidies for adaptation of existing facilities to new 
environmental requirements. If the Secretary determines that a subsidy 
is given to upgrade existing facilities to environmental standards in 
excess of minimum statutory or regulatory requirements, the subsidy will 
not qualify for non-countervailable treatment under section 771(5B)(D) 
of the Act and the Secretary will treat the entire amount of the subsidy 
as countervailable.



Sec. 351.523  Upstream subsidies.

    (a) Investigation of upstream subsidies--(1) In general. Before 
investigating the existence of an upstream subsidy (see section 771A of 
the Act), the Secretary must have a reasonable basis to believe or 
suspect that all of the following elements exist:
    (i) A countervailable subsidy, other than an export subsidy, is 
provided with respect to an input product;
    (ii) One of the following conditions exists:
    (A) The supplier of the input product and the producer of the 
subject merchandise are affiliated;
    (B) The price for the subsidized input product is lower than the 
price that the producer of the subject merchandise otherwise would pay 
another seller in an arm's-length transaction for an unsubsidized input 
product; or
    (C) The government sets the price of the input product so as to 
guarantee that the benefit provided with respect to the input product is 
passed through to producers of the subject merchandise; and
    (iii) The ad valorem countervailable subsidy rate on the input 
product, multiplied by the proportion of the total production costs of 
the subject merchandise accounted for by the input product, is equal to, 
or greater than, one percent.
    (b) Input product. For purposes of this section, ``input product'' 
means any product used in the production of the subject merchandise.
    (c) Competitive benefit--(1) In general. In evaluating whether a 
competitive benefit exists under section 771A(b) of the Act, the 
Secretary will determine whether the price for the subsidized input 
product is lower than the benchmark input price. For purposes of this 
section, the Secretary will use as a benchmark input price the 
following, in order of preference:

[[Page 281]]

    (i) The actual price paid by, or offered to, the producer of the 
subject merchandise for an unsubsidized input product, including an 
imported input product;
    (ii) An average price for an unsubsidized input product, including 
an imported input product, based upon publicly available data;
    (iii) The actual price paid by, or offered to, the producer of the 
subject merchandise for a subsidized input product, including an 
imported input product, that is adjusted to account for the 
countervailable subsidy;
    (iv) An average price for a subsidized input product, including an 
imported input product, based upon publicly available data, that is 
adjusted to account for the countervailable subsidy; or
    (v) An unadjusted price for a subsidized input product or any other 
surrogate price deemed appropriate by the Secretary.
    For purposes of this section, such prices must be reflective of a 
time period that reasonably corresponds to the time of the purchase of 
the input.
    (2) Use of delivered prices. The Secretary will use a delivered 
price whenever the Secretary uses the price of an input product under 
paragraph (c)(1) of this section.
    (d) Significant effect--(1) Presumptions. In evaluating whether an 
upstream subsidy has a significant effect on the cost of manufacturing 
or producing the subject merchandise (see section 771A(a)(3) of the 
Act), the Secretary will multiply the ad valorem countervailable subsidy 
rate on the input product by the proportion of the total production cost 
of the subject merchandise that is accounted for by the input product. 
If the product of that multiplication exceeds five percent, the 
Secretary will presume the existence of a significant effect. If the 
product is less than one percent, the Secretary will presume the absence 
of a significant effect. If the product is between one and five percent, 
there will be no presumption.
    (2) Rebuttal of presumptions. A party to the proceeding may present 
information to rebut these presumptions. In evaluating such information, 
the Secretary will consider the extent to which factors other than 
price, such as quality differences, are important determinants of demand 
for the subject merchandise.



Sec. 351.524  Allocation of benefit to a particular time period.

    Unless otherwise specified in Sec. Sec. 351.504-351.523, the 
Secretary will allocate benefits to a particular time period in 
accordance with this section.
    (a) Recurring benefits. The Secretary will allocate (expense) a 
recurring benefit to the year in which the benefit is received.
    (b) Non-recurring benefits. (1) In general. The Secretary will 
normally allocate a non-recurring benefit to a firm over the number of 
years corresponding to the average useful life (``AUL'') of renewable 
physical assets as defined in paragraph (d)(2) of this section.
    (2) Exception. The Secretary will normally allocate (expense) non-
recurring benefits provided under a particular subsidy program to the 
year in which the benefits are received if the total amount approved 
under the subsidy program is less than 0.5 percent of relevant sales 
(e.g., total sales, export sales, the sales of a particular product, or 
the sales to a particular market) of the firm in question during the 
year in which the subsidy was approved.
    (c) ``Recurring'' versus ``non-recurring'' benefits--(1) Non-binding 
iIlustrative lists of recurring and non-recurring benefits. The 
Secretary normally will treat the following types of subsidies as 
providing recurring benefits: Direct tax exemptions and deductions; 
exemptions and excessive rebates of indirect taxes or import duties; 
provision of goods and services for less than adequate remuneration; 
price support payments; discounts on electricity, water, and other 
utilities; freight subsidies; export promotion assistance; early 
retirement payments; worker assistance; worker training; wage subsidies; 
and upstream subsidies. The Secretary normally will treat the following 
types of subsidies as providing non-recurring benefits: equity 
infusions, grants, plant closure assistance, debt forgiveness, coverage 
for operating losses, debt-to-equity conversions, provision of non-
general infrastructure, and provision of plant and equipment.

[[Page 282]]

    (2) The test for determining whether a benefit is recurring or non-
recurring. If a subsidy is not on the illustrative lists, or is not 
addressed elsewhere in these regulations, or if a party claims that a 
subsidy on the recurring list should be treated as non-recurring or a 
subsidy on the non-recurring list should be treated as recurring, the 
Secretary will consider the following criteria in determining whether 
the benefits from the subsidy should be considered recurring or non-
recurring:
    (i) Whether the subsidy is exceptional in the sense that the 
recipient cannot expect to receive additional subsidies under the same 
program on an ongoing basis from year to year;
    (ii) Whether the subsidy required or received the government's 
express authorization or approval (i.e., receipt of benefits is not 
automatic), or
    (iii) Whether the subsidy was provided for, or tied to, the capital 
structure or capital assets of the firm.
    (d) Process for allocating non-recurring benefits over time.--(1) In 
general. For purposes of allocating a non-recurring benefit over time 
and determining the annual benefit amount that should be assigned to a 
particular year, the Secretary will use the following formula:
[GRAPHIC] [TIFF OMITTED] TR25NO98.006

Where:

Ak = the amount of the benefit allocated to year k,
y = the face value of the subsidy,
n = the AUL (see paragraph (d)(2) of this section),
d = the discount rate (see paragraph (d)(3) of this section), and
k = the year of allocation, where the year of receipt = 1 and 1 <= k <= 
n.

    (2) AUL--(i) In general. The Secretary will presume the allocation 
period for non-recurring subsidies to be the AUL of renewable physical 
assets for the industry concerned as listed in the Internal Revenue 
Service's (``IRS'') 1977 Class Life Asset Depreciation Range System 
(Rev. Proc. 77-10, 1977-1, C.B. 548 (RR-38)), as updated by the 
Department of Treasury. The presumption will apply unless a party claims 
and establishes that the IRS tables do not reasonably reflect the 
company-specific AUL or the country-wide AUL for the industry under 
investigation, subject to the requirement, in paragraph (d)(2)(ii) of 
this section, that the difference between the company-specific AUL or 
country-wide AUL for the industry under investigation and the AUL in the 
IRS tables is significant. If this is the case, the Secretary will use 
company-specific or country-wide AULs to allocate non-recurring benefits 
over time (see paragraph (d)(2)(iii) of this section).
    (ii) Definition of ``significant.'' For purposes of this paragraph 
(d), significant means that a party has demonstrated that the company-
specific AUL or country-wide AUL for the industry differs from AUL in 
the IRS tables by one year or more.
    (iii) Calculation of a company-specific or country-wide AUL. A 
calculation of a company-specific AUL will not be accepted by the 
Secretary unless it satisfies the following requirements: the company 
must base its depreciation on an estimate of the actual useful lives of 
assets and it must use straight-line depreciation or demonstrate that 
its calculation is not distorted through irregular or uneven additions 
to the pool of fixed assets. A company-specific AUL is calculated by 
dividing the aggregate of the annual average gross book values of the 
firm's depreciable productive fixed assets by the firm's aggregated 
annual charge to accumulated depreciation, for a period considered 
appropriate by the Secretary, subject to appropriate normalizing 
adjustments. A country-wide AUL for the industry under investigation 
will not be accepted by the Secretary unless the respondent government 
demonstrates that it has a system in place to calculate AULs for its 
industries, and that this system provides a reliable representation of 
AUL.
    (iv) Exception. Under certain extraordinary circumstances, the 
Secretary may consider whether an allocation period other than AUL is 
appropriate or whether the benefit stream begins at a date other than 
the date the subsidy was bestowed.
    (3) Selection of a discount rate. (i) In general. The Secretary will 
select a discount rate based upon data for the year in which the 
government agreed to provide the subsidy. The Secretary will

[[Page 283]]

use as a discount rate the following, in order of preference:
    (A) The cost of long-term, fixed-rate loans of the firm in question, 
excluding any loans that the Secretary has determined to be 
countervailable subsidies;
    (B) The average cost of long-term, fixed-rate loans in the country 
in question; or
    (C) A rate that the Secretary considers to be most appropriate.
    (ii) Exception for uncreditworthy firms. In the case of a firm 
considered by the Secretary to be uncreditworthy (see Sec. 
351.505(a)(4)), the Secretary will use as a discount rate the interest 
rate described in Sec. 351.505(a)(3)(iii).



Sec. 351.525  Calculation of ad valorem subsidy rate and attribution
of subsidy to a product.

    (a) Calculation of ad valorem subsidy rate. The Secretary will 
calculate an ad valorem subsidy rate by dividing the amount of the 
benefit allocated to the period of investigation or review by the sales 
value during the same period of the product or products to which the 
Secretary attributes the subsidy under paragraph (b) of this section. 
Normally, the Secretary will determine the sales value of a product on 
an f.o.b. (port) basis (if the product is exported) or on an f.o.b. 
(factory) basis (if the product is sold for domestic consumption). 
However, if the Secretary determines that countervailable subsidies are 
provided with respect to the movement of a product from the port or 
factory to the place of destination (e.g., freight or insurance costs 
are subsidized), the Secretary may make appropriate adjustments to the 
sales value used in the denominator.
    (b) Attribution of subsidies. (1) In general. In attributing a 
subsidy to one or more products, the Secretary will apply the rules set 
forth in paragraphs (b)(2) through (b)(7) of this section.
    (2) Export subsidies. The Secretary will attribute an export subsidy 
only to products exported by a firm.
    (3) Domestic subsidies. The Secretary will attribute a domestic 
subsidy to all products sold by a firm, including products that are 
exported.
    (4) Subsidies tied to a particular market. If a subsidy is tied to 
sales to a particular market, the Secretary will attribute the subsidy 
only to products sold by the firm to that market.
    (5) Subsidies tied to a particular product. (i) In general. If a 
subsidy is tied to the production or sale of a particular product, the 
Secretary will attribute the subsidy only to that product.
    (ii) Exception. If a subsidy is tied to production of an input 
product, then the Secretary will attribute the subsidy to both the input 
and downstream products produced by a corporation.
    (6) Corporations with cross-ownership. (i) In general. The Secretary 
normally will attribute a subsidy to the products produced by the 
corporation that received the subsidy.
    (ii) Corporations producing the same product. If two (or more) 
corporations with cross-ownership produce the subject merchandise, the 
Secretary will attribute the subsidies received by either or both 
corporations to the products produced by both corporations.
    (iii) Holding or parent companies. If the firm that received a 
subsidy is a holding company, including a parent company with its own 
operations, the Secretary will attribute the subsidy to the consolidated 
sales of the holding company and its subsidiaries. However, if the 
Secretary finds that the holding company merely served as a conduit for 
the transfer of the subsidy from the government to a subsidiary of the 
holding company, the Secretary will attribute the subsidy to products 
sold by the subsidiary.
    (iv) Input suppliers. If there is cross-ownership between an input 
supplier and a downstream producer, and production of the input product 
is primarily dedicated to production of the downstream product, the 
Secretary will attribute subsidies received by the input producer to the 
combined sales of the input and downstream products produced by both 
corporations (excluding the sales between the two corporations).
    (v) Transfer of subsidy between corporations with cross-ownership 
producing different products. In situations where paragraphs (b)(6)(i) 
through (iv) of this section do not apply, if a corporation producing 
non-subject merchandise received a subsidy and transferred the subsidy 
to a corporation with cross-ownership, the Secretary will attribute

[[Page 284]]

the subsidy to products sold by the recipient of the transferred 
subsidy.
    (vi) Cross-ownership defined. Cross-ownership exists between two or 
more corporations where one corporation can use or direct the individual 
assets of the other corporation(s) in essentially the same ways it can 
use its own assets. Normally, this standard will be met where there is a 
majority voting ownership interest between two corporations or through 
common ownership of two (or more) corporations.
    (7) Multinational firms. If the firm that received a subsidy has 
production facilities in two or more countries, the Secretary will 
attribute the subsidy to products produced by the firm within the 
country of the government that granted the subsidy. However, if it is 
demonstrated that the subsidy was tied to more than domestic production, 
the Secretary will attribute the subsidy to multinational production.
    (c) Trading companies. Benefits from subsidies provided to a trading 
company which exports subject merchandise shall be cumulated with 
benefits from subsidies provided to the firm which is producing subject 
merchandise that is sold through the trading company, regardless of 
whether the trading company and the producing firm are affiliated.



Sec. 351.526  Program-wide changes.

    (a) In general. The Secretary may take a program-wide change into 
account in establishing the estimated countervailing duty cash deposit 
rate if:
    (1) The Secretary determines that subsequent to the period of 
investigation or review, but before a preliminary determination in an 
investigation (see Sec. 351.205) or a preliminary result of an 
administrative review or a new shipper review (see Sec. Sec. 351.213 
and 351.214), a program-wide change has occurred; and
    (2) The Secretary is able to measure the change in the amount of 
countervailable subsidies provided under the program in question.
    (b) Definition of program-wide change. For purposes of this section, 
``program-wide change'' means a change that:
    (1) Is not limited to an individual firm or firms; and
    (2) Is effectuated by an official act, such as the enactment of a 
statute, regulation, or decree, or contained in the schedule of an 
existing statute, regulation, or decree.
    (c) Effect limited to cash deposit rate.--(1) In general. The 
application of paragraph (a) of this section will not result in 
changing, in an investigation, an affirmative determination to a 
negative determination or a negative determination to an affirmative 
determination.
    (2) Example. In a countervailing duty investigation, the Secretary 
determines that during the period of investigation a countervailable 
subsidy existed in the amount of 10 percent ad valorem. Subsequent to 
the period of investigation, but before the preliminary determination, 
the foreign government in question enacts a change to the program that 
reduces the amount of the subsidy to a de minimis level. In a final 
determination, the Secretary would issue an affirmative determination, 
but would establish a cash deposit rate of zero.
    (d) Terminated programs. The Secretary will not adjust the cash 
deposit rate under paragraph (a) of this section if the program-wide 
change consists of the termination of a program and:
    (1) The Secretary determines that residual benefits may continue to 
be bestowed under the terminated program; or
    (2) The Secretary determines that a substitute program for the 
terminated program has been introduced and the Secretary is not able to 
measure the amount of countervailable subsidies provided under the 
substitute program.



Sec. 351.527  Transnational subsidies.

    Except as otherwise provided in section 701(d) of the Act (subsidies 
provided to international consortia) and section 771A of the Act 
(upstream subsidies), a subsidy does not exist if the Secretary 
determines that the funding for the subsidy is supplied in accordance 
with, and as part of, a program or project funded:
    (a) By a government of a country other than the country in which the 
recipient firm is located; or
    (b) By an international lending or development institution.

[[Page 285]]



Subpart F_Subsidy Determinations Regarding Cheese Subject to an In-Quota 
                              Rate of Duty



Sec. 351.601  Annual list and quarterly update of subsidies.

    The Secretary will make the determinations called for by section 
702(a) of the Trade Agreements Act of 1979, as amended (19 U.S.C. 1202 
note) based on the available information, and will publish the annual 
list and quarterly updates described in such section in the Federal 
Register.



Sec. 351.602  Determination upon request.

    (a) Request for determination. (1) Any person, including the 
Secretary of Agriculture, who has reason to believe there have been 
changes in or additions to the latest annual list published under Sec. 
351.601 may request in writing that the Secretary determine under 
section 702(a)(3) of the Trade Agreements Act of 1979 whether there are 
any changes or additions. The person must file the request with the 
Central Records Unit (see Sec. 351.103). The request must 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 must contain 
the following, to the extent reasonably available to the requesting 
person:
    (i) The name and address of the person;
    (ii) The article of cheese subject to an in-quota rate of duty 
allegedly benefitting from the changed or additional subsidy;
    (iii) The country of origin of the article of cheese subject to an 
in-quota rate of duty; and
    (iv) 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.
    (2) The requirements of Sec. 351.303 (c) and (d) 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. 351.603  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 section 702(a)(3) of the Trade Agreements Act of 1979, 
whether or not the alleged subsidies are included in or should be added 
to the latest annual list or quarterly update.



Sec. 351.604  Access to information.

    Subpart C of this part applies to factual information submitted in 
connection with this subpart.



                      Subpart G_Applicability Dates



Sec. 351.701  Applicability dates.

    The regulations contained in this part 351 apply to all 
administrative reviews initiated on the basis of requests made on or 
after the first day of July, 1997, to all investigations and other 
segments of proceedings initiated on the basis of petitions filed or 
requests made after June 18, 1997 and to segments of proceedings self-
initiated by the Department after June 18, 1997. Segments of proceedings 
to which part 351 do not apply will continue to be governed by the 
regulations in effect on the date the petitions were filed or requests 
were made for those segments, to the extent that those regulations were 
not invalidated by the URAA or

[[Page 286]]

replaced by the interim final regulations published on May 11, 1995 (60 
FR 25130 (1995)). For segments of proceedings initiated on the basis of 
petitions filed or requests made after January 1, 1995, but before part 
351 applies, part 351 will serve as a restatement of the Department's 
interpretation of the requirements of the Act as amended by the URAA.



Sec. 351.702  Applicability dates for countervailing duty regulations.

    (a) Notwithstanding Sec. 351.701, the regulations in subpart E of 
this part apply to:
    (1) All CVD investigations initiated on the basis of petitions filed 
after December 28, 1998;
    (2) All CVD administrative reviews initiated on the basis of 
requests filedon or after the first day of January 1999; and
    (3) To all segments of CVD proceedings self-initiated by the 
Department after December 28, 1998.
    (b) Segments of CVD proceedings to which subpart E of this part does 
not apply will continue to be guided by the Department's previous 
methodology (in particular, as described in the 1989 Proposed 
Regulations), except to the extent that the previous methodology was 
invalidated by the URAA, in which case the Secretary will treat subpart 
E of this part as a restatement of the Department's interpretation of 
the requirements of the Act as amended by the URAA.

[63 FR 65417, Nov. 25, 1998]

      Annex I to Part 351--Deadlines for Parties in Countervailing 
                             Investigations

------------------------------------------------------------------------
           Day \1\                   Event               Regulation
------------------------------------------------------------------------
0 days......................  Initiation.........  .....................
31 days \2\.................  Notification of      351.301(c)(2)(iv) (14
                               difficulty in        days after date of
                               responding to        receipt of initial
                               questionnaire.       questionnaire)
37 days.....................  Application for an   351.305(b)(3)
                               administrative
                               protective order.
40 days.....................  Request for          351.205(e) (25 days
                               postponement by      or more before
                               petitioner.          preliminary
                                                    determination)
45 days.....................  Allegation of        351.206(c)(2)(i) (20
                               critical             days before
                               circumstances.       preliminary
                                                    determination)
47 days.....................  Questionnaire        351.301(c)(2)(iii)
                               response.            (30 days from date
                                                    of receipt of
                                                    initial
                                                    questionnaire)
55 days.....................  Allegation of        351.301(d)(4)(ii)(A)
                               upstream subsidies.  (10 days before
                                                    preliminary
                                                    determination)
65 days (Can be extended)...  Preliminary          351.205(b)(1)
                               determination.
72 days.....................  Submission of        351.208(f)(1)(B) (7
                               proposed             days after
                               suspension           preliminary
                               agreement.           determination)
75 days \3\.................  Submission of        351.301(b)(1) (7 days
                               factual              before date on which
                               information.         verification is to
                                                    commence)
75 days.....................  Submission of        351.224(c)(2) (5 days
                               ministerial error    after release of
                               comments.            disclosure
                                                    documents)
77 days \4\.................  Request to align a   351.210(i) (5 days
                               CVD case with a      after date of
                               concurrent AD case.  publication of
                                                    preliminary
                                                    determination)
102 days....................  Request for a        351.310(c) (30 days
                               hearing.             after date of
                                                    publication of
                                                    preliminary
                                                    determination)
119 days....................  Critical             351.206(e) (21 days
                               circumstances        or more before final
                               allegation.          determination)
122 days....................  Requests for closed  351.310(f) (No later
                               hearing sessions.    than the date the
                                                    case briefs are due)
122 days....................  Submission of        351.309(c)(1)(i) (50
                               briefs.              days after date of
                                                    publication of
                                                    preliminary
                                                    determination)
125 days....................  Allegation of        351.301(d)(4)(ii)(B)
                               upstream subsidies.  (15 days before
                                                    final determination)
127 days....................  Submission of        351.309(d) (5 days
                               rebuttal briefs.     after dead-line for
                                                    filing case brief)
129 days....................  Hearing............  351.310(d)(1) (2 days
                                                    after submission of
                                                    rebuttal briefs)
140 days (Can be extended)..  Final determination  351.210(b)(1) (75
                                                    days after
                                                    preliminary
                                                    determination)
150 days....................  Submission of        351.224(c)(2) (5 days
                               ministerial error    after release of
                               comments.            disclosure
                                                    documents)
155 days....................  Submission of        351.224(c)(3) (5 days
                               replies to           after filing of
                               ministerial error    comments)
                               comments.
 

[[Page 287]]

 
192 days....................  Order issued.......  351.211(b)
------------------------------------------------------------------------
\1\ Indicates the number of days from the date of initiation. Most of
  the deadlines shown here are approximate. The actual deadline in any
  particular segment of a proceeding may depend on the date of an
  earlier event or be established by the Secretary.
\2\ Assumes that the Department sends out the questionnaire within 10
  days of the initiation and allows 7 days for receipt of the
  questionnaire from the date on which it was transmitted.
\3\ Assumes about 17 days between the preliminary determination and
  verification.
\4\ Assumes that the preliminary determination is published 7 days after
  issuance (i.e., signature).

     Annex II to Part 351--Deadlines for Parties in Countervailing 
                         Administrative Reviews

------------------------------------------------------------------------
           Day \1\                   Event               Regulation
------------------------------------------------------------------------
0 days......................  Request for review.  351.213(b) (Last day
                                                    of the anniversary
                                                    month)
30 days.....................  Publication of       351.221(c)(1)(i) (End
                               initiation notice.   of month following
                                                    the anniversary
                                                    month)
66 days \2\.................  Notification of      351.301(c)(2)(iv) (14
                               difficulty in        days after date of
                               responding to        receipt of initial
                               questionnaire.       questionnaire)
75 days.....................  Application for an   351.305(b)(3)
                               administrative
                               protective order.
90 days \3\.................  Questionnaire        351.301(c)(2)(iii)
                               response.            (At least 30 days
                                                    after date of
                                                    receipt of initial
                                                    questionnaire)
120 days....................  Withdrawal of        351.213(d)(1) (90
                               request for review.  days after date of
                                                    publication of
                                                    initiation)
130 days....................  Request for          351.307(b)(1)(v) (100
                               verification.        days after date of
                                                    publication of
                                                    initiation)
140 days....................  Submission of        351.301(b)(2)
                               factual
                               information.
245 days (Can be extended)..  Preliminary results  351.213(h)(1)
                               of review.
282 days \4\................  Request for a        351.310(c);
                               hearing and/or       351.310(f) (30 days
                               closed hearing       after date of
                               session.             publication of
                                                    preliminary results)
282 days....................  Submission of        351.309(c)(1)(ii) (30
                               briefs.              days after date of
                                                    publication of
                                                    preliminary results)
287 days....................  Submission of        351.309(d)(1) (5 days
                               rebuttal briefs.     after deadline for
                                                    filing case briefs)
289 days....................  Hearing............  351.310(d)(1) (2 days
                                                    after submission of
                                                    rebuttal briefs)
372 days (Can be extended)..  Final results of     351.213(h)(1) (120
                               review.              days after date of
                                                    publication of
                                                    preliminary results)
382 days....................  Submission of        351.224(c)(2) (5 days
                               ministerial error    after release of
                               comments.            disclosure
                                                    documents)
387 days....................  Replies to           351.224(c)(3) (5 days
                               ministerial error    after filing of
                               comments.            comments)
------------------------------------------------------------------------
\1\ Indicates the number of days from the end of the anniversary month.
  Most of the deadlines shown here are approximate. The actual deadline
  in any particular segment of a proceeding may depend on the date of an
  earlier event or be established by the Secretary.
\2\ Assumes that the Department sends out the questionnaire 45 days
  after the last day of the anniversary month and allows 7 days for
  receipt of the questionnaire from the date on which it was
  transmitted.
\3\ Assumes that the Department sends out the questionnaire on day 45
  and the response is due 45 days later.
\4\ Assumes that the preliminary results are published 7 days after
  issuance (i.e., signature).

      Annex III to Part 351--Deadlines for Parties in Antidumping 
                             Investigations

------------------------------------------------------------------------
           Day \1\                   Event               Regulation
------------------------------------------------------------------------
0 days......................  Initiation.........  .....................
37 days.....................  Application for an   351.305(b)(3)
                               administrative
                               protective order.
50 days.....................  Country-wide cost    351.301(d)(2)(i)(A)
                               allegation.          (20 days after date
                                                    on which initial
                                                    questionnaire was
                                                    transmitted)
51 days \2\.................  Notification of      351.301(c)(2)(iv)
                               difficulty in        (Within 14 days
                               responding to        after date of
                               questionnaire.       receipt of initial
                                                    questionnaire)
51 days.....................  Section A response.  None
67 days.....................  Sections B, C, D, E  351.301(c)(2)(iii)
                               responses.           (At least 30 days
                                                    after date of
                                                    receipt of initial
                                                    questionnaire)
70 days.....................  Viability arguments  351.301(d)(1) (40
                                                    days after date on
                                                    which initial
                                                    questionnaire was
                                                    transmitted)
87 days.....................  Company-specific     351.301(d)(2)(i)(B)
                               cost allegations.
87 days.....................  Major input cost     351.301(d)(3)
                               allegations.
115 days....................  Request for          351.205(e) (25 days
                               postponement by      or more before
                               petitioner.          preliminary
                                                    determination)
120 days....................  Allegation of        351.206(c)(2)(i) (20
                               critical             days before
                               circumstances.       preliminary
                                                    determination)
140 days (Can be extended)..  Preliminary          351.205(b)(1)
                               determination.
150 days....................  Submission of        351.224(c)(2) (5 days
                               ministerial error    after release of
                               comments.            disclosure
                                                    documents)

[[Page 288]]

 
155 days....................  Submission of        351.208(f)(1)(A) (15
                               proposed             days after
                               suspension           preliminary
                               agreement.           determination)
161 days \3\................  Submission of        351.301(b)(1) (7 days
                               factual              before date on which
                               information.         verification is to
                                                    commence)
177 days \4\................  Request for a        351.310(c) (30 days
                               hearing.             after date of
                                                    publication of
                                                    preliminary
                                                    determination)
187 days....................  Submission of        351.301(c)(3)(i) (40
                               publicly available   days after date of
                               information to       publication of
                               value factors        preliminary
                               (NME's).             determination)
194 days....................  Critical             351.206(e) (21 days
                               circumstance         before final
                               allegation.          determination)
197 days (Can be changed)...  Request for closed   351.310(f) (No later
                               hearing sessions.    than the date the
                                                    case briefs are due)
197 days (Can be changed)...  Submission of        351.309(c)(1)(i) (50
                               briefs.              days after date of
                                                    publication of
                                                    preliminary
                                                    determination)
202 days....................  Submission of        351.309(d) (5 days
                               rebuttal briefs.     after dealine for
                                                    filing case briefs)
204 days....................  Hearing............  351.310(d)(1) (2 days
                                                    after submission of
                                                    rebuttal briefs)
215 days....................  Request for          351.210(e)
                               postponement of
                               the final
                               determination.
215 days (Can be extended)..  Final determination  351.210(b)(1) (75
                                                    days after
                                                    preliminary
                                                    determination)
225 days....................  Submission           351.224(c)(2) (5 days
                               ministerial error    after release of
                               comments.            disclosure
                                                    documents)
230 days....................  Replies to           351.224(c)(3) (5 days
                               ministerial error    after filing of
                               comments.            comments)
267 days....................  Order issued.......  351.211(b)
------------------------------------------------------------------------
\1\ Indicates the number of days from the date of initiation. Most of
  the deadlines shown here are approximate. The actual deadline in any
  particular segment of a proceeding may depend on the date of an
  earlier event or be established by the Secretary.
\2\ Assumes that the Department sends out the questionnaire 5 days after
  the ITC vote and allows 7 days for receipt of the questionnaire from
  the date on which it was transmitted.
\3\ Assumes about 28 days between the preliminary determination and
  verification.
\4\ Assumes that the preliminary determination is published 7 days after
  issuance (i.e., signature).

       Annex IV to Part 351--Deadlines for Parties in Antidumping 
                         Administrative Reviews

------------------------------------------------------------------------
          Day\1\                    Event                Regulation
------------------------------------------------------------------------
0 days....................  Request for review...  351.213(b) (Last day
                                                    of the anniversary
                                                    month)
30 days...................  Publication of         351.221 (c)(1)(i)
                             initiation.            (End of month
                                                    following the
                                                    anniversary month)
37 days...................  Application for an     351.305(b)(3)
                             administrative
                             protective order.
60 days...................  Request to examine     351.213(j) (30 days
                             absorption of duties   after date of
                             (AD).                  publication of
                                                    initiation)
66 days \2\...............  Notification of        351.301(c)(2)(iv) (14
                             difficulty in          days after date of
                             responding to          receipt of initial
                             questionnaire.         questionnaire)
66 days...................  Section A response...  None
85 days...................  Viability arguments..  351.301(d)(1) (40
                                                    days after date of
                                                    transmittal of
                                                    initial
                                                    questionnaire)
90 days\3\................  Sections B, C, D, E    351.301(c)(2)(iii)
                             response.              (At least 30 days
                                                    after date of
                                                    receipt of initial
                                                    questionnaire)
110 days..................  Company-specific cost  351.301(d)(2)(i)(B)
                             allegations.           (20 days after
                                                    relevant section is
                                                    filed)
110 days..................  Major input cost       351.301(d)(3) (20
                             allegations.           days after relevant
                                                    section is filed)
120 days..................  Withdrawal of request  351.213(d)(1) (90
                             for review.            days after date of
                                                    publication of
                                                    initiation)
130 days..................  Request for            351.307(b)(1)(v) (100
                             verification.          days after date of
                                                    publication of
                                                    initiation)
140 days..................  Submission of factual  351.301(b)(2)
                             information.
245 days (Can be extended)  Preliminary results    351.213(h)(1)
                             of review.
272 days\4\...............  Submission of          351.301(c)(3)(ii) (20
                             publicly available     days after date of
                             information to value   publication of
                             factors (NME's).       preliminary results)
282 days..................  Request for a hearing  351.310(c);
                             and/or closed          351.310(f) (30 days
                             hearing session.       after date of
                                                    publication of
                                                    preliminary results)
282 days..................  Submission of briefs.  351.309(c)(1)(ii) (30
                                                    days after date of
                                                    publication of
                                                    preliminary results)
287 days..................  Submission of          351.309(d)(1) (5 days
                             rebuttal briefs.       after deadline for
                                                    filing case briefs)
289 days..................  Hearing; closed        351.310(d)(1) (2 days
                             hearing session.       after submission of
                                                    rebuttal briefs)
372 days (Can be extended)  Final results of       351.213(h)(1) (120
                             review.                days after date of
                                                    publication of
                                                    preliminary results)

[[Page 289]]

 
382 days..................  Ministerial error      351.224(c)(2) (5 days
                             comments.              after release of
                                                    disclosure
                                                    documents)
387 days..................  Replies to             351.224(c)(3) (5 days
                             ministerial error      after filing of
                             comments.              comments)
------------------------------------------------------------------------
\1\ Indicates the number of days from the end of the anniversary month.
  Most of the deadlines shown here are approximate. The actual deadline
  in any particular segment of a proceeding may depend on the date of an
  earlier event or be established by the Secretary.
\2\ Assumes that the Department sends out the questionnaire 45 days
  after the last day of the anniversary month and allows 7 days for
  receipt of the questionnaire from the date on which it was
  transmitted.
\3\ Assumes that the Department sends out the questionnaire on day 45
  and the response is due 45 days later.
\4\ Assumes that the preliminary results are published 7 days after
  issuance (i.e., signature).

      Annex V to Part 351--Comparison of Prior and New Regulations

----------------------------------------------------------------------------------------------------------------
                Prior                                    New                              Description
----------------------------------------------------------------------------------------------------------------
                                          PART 353--ANTIDUMPING DUTIES
----------------------------------------------------------------------------------------------------------------
                                        Subpart A--Scope and Definitions
----------------------------------------------------------------------------------------------------------------
353.1................................  351.101...............................  Scope of regulations
353.2................................  351.102...............................  Definitions
353.3................................  351.104...............................  Record of proceedings
353.4................................  351.105...............................  Public, proprietary, privileged &
                                                                                classified
353.5................................  Removed...............................  Trade and Tariff Act of 1984
                                                                                amendments
353.6................................  351.106...............................  De minimis weighted-average
                                                                                dumping margin
--------------------------------------
                                     Subpart B--Antidumping Duty Procedures
----------------------------------------------------------------------------------------------------------------
353.11...............................  351.201...............................  Self-initiation
353.12...............................  351.202...............................  Petition requirements
353.13...............................  351.203...............................  Determination of sufficiency of
                                                                                petition
353.14...............................  351.204(e)............................  Exclusion from antidumping duty
                                                                                order
353.15...............................  351.205...............................  Preliminary determination
353.16...............................  351.206...............................  Critical circumstances
353.17...............................  351.207...............................  Termination of investigation
353.18...............................  351.208...............................  Suspension of investigation
353.19...............................  351.209...............................  Violation of suspension agreement
353.20...............................  351.210...............................  Final determination
353.21...............................  351.211...............................  Antidumping duty order
353.21(c)............................  351.204(e)............................  Exclusion from antidumping duty
                                                                                order
1353.22 (a)-(d)......................  351.213, 351.221......................  Administrative reviews under
                                                                                751(a) of the Act
353.22(e)............................  351.212(c)............................  Automatic assessment of duties
353.22(f)............................  351.216, 351.221(c)(3)................  Changed circumstances reviews
353.22(g)............................  351.215, 351.221(c)(2)................  Expedited antidumping review
353.23...............................  351.212(d)............................  Provisional measures deposit cap
353.24...............................  351.212(e)............................  Interest on overpayments and
                                                                                under-payments
353.25...............................  351.222...............................  Revocation of orders; termination
                                                                                of suspended investigations
353.26...............................  351.402(f)............................  Reimbursement of duties
353.27...............................  351.223...............................  Downstream product monitoring
353.28...............................  351.224...............................  Correction of ministerial errors
353.29...............................  351.225...............................  Scope rulings
--------------------------------------
                                       Subpart C--Information and Argument
----------------------------------------------------------------------------------------------------------------
353.31 (a)-(c).......................  351.301...............................  Time Limits for submission of
                                                                                factual information
353.31(a)(3).........................  351.301(d), 351.104(a)(2).............  Return of untimely material
353.31(b)(3).........................  351.302(c)............................  Request for extension of time
353.31 (d)-(i).......................  351.303...............................  Filing, format, translation,
                                                                                service and certification
353.32...............................  351.304...............................  Request for proprietary treatment
                                                                                of information
353.33...............................  351.104, 351.304(a)(2)................  Information exempt from
                                                                                disclosure
353.34...............................  351.305, 351.306......................  Disclosure of information under
                                                                                protective order
353.35...............................  Removed...............................  Ex parte meeting
353.36...............................  351.307...............................  Verification
353.37...............................  351.308...............................  Determination on the basis of the
                                                                                facts available
353.38 (a)-(e).......................  351.309...............................  Written argument
353.38(f)............................  351.310...............................  Hearings
--------------------------------------
          Subpart D--Calculation of Export Price, Constructed Export Price, Fair Value and Normal Value
----------------------------------------------------------------------------------------------------------------
353.41...............................  351.402...............................  Calculation of export price
353.42(a)............................  351.102...............................  Fair value (definition)
353.42(b)............................  351.104(c)............................  Transaction and persons examined
353.43...............................  351.403(b)............................  Sales used in calculating normal
                                                                                value
353.44...............................  Removed...............................  Sales at varying prices
353.45...............................  351.403...............................  Transactions between affiliated
                                                                                parties
 

[[Page 290]]

 
353.46...............................  351.404...............................  Selection of home market as the
                                                                                basis for normal value
353.47...............................  Removed...............................  Intermediate countries
353.48...............................  351.404...............................  Basis for normal value if home
                                                                                market sales are inadequate
353.49...............................  351.404...............................  Sales to a third country
353.50...............................  351.405, 351.407......................  Calculation of normal value based
                                                                                on constructed value
353.51...............................  351.406, 351.407......................  Sales at less than the cost of
                                                                                production
353.52...............................  351.408...............................  Nonmarket economy countries
353.53...............................  Removed...............................  Multinational corporations
353.54...............................  351.401(b)............................  Claims for adjustments
353.55...............................  351.409...............................  Differences in quantities
353.56...............................  351.410...............................  Differences in circumstances of
                                                                                sale
353.57...............................  351.411...............................  Differences in physical
                                                                                characteristics
353.58...............................  351.412...............................  Levels of trade
353.59(a)............................  351.413...............................  Insignificant adjustments
353.59(b)............................  351.414...............................  Use of averaging
353.60...............................  351.415...............................  Conversion of currency
--------------------------------------
                                         PART 355--COUNTERVAILING DUTIES
----------------------------------------------------------------------------------------------------------------
                                        Subpart A--Scope and Definitions
----------------------------------------------------------------------------------------------------------------
355.1................................  351.001...............................  Scope of regulations
355.2................................  351.002...............................  Definitions
355.3................................  351.004...............................  Record of proceeding
355.4................................  351.005...............................  Public, proprietary, privileged &
                                                                                classified
355.5................................  351.003(a)............................  Subsidy library
355.6................................  Removed...............................  Trade and Tariff Act of 1984
                                                                                amendments
355.7................................  351.006...............................  De minimis net subsidies
--------------------------------------
                                    Subpart B--Countervailing Duty Procedures
----------------------------------------------------------------------------------------------------------------
355.11...............................  351.101...............................  Delf-initiation
355.12...............................  351.102...............................  Petition requirements
355.13...............................  351.103...............................  Determination of sufficiency of
                                                                                petition
355.14...............................  351.104(e)............................  Exclusion from countervailing
                                                                                duty order
355.15...............................  351.105...............................  Preliminary determination
355.16...............................  351.106...............................  Critical circumstances
355.17...............................  351.107...............................  Termination of investigation
355.18...............................  351.108...............................  Suspension of investigation
355.19...............................  351.109...............................  Violation of agreement
355.20...............................  351.110...............................  Final determination
355.21...............................  351.111...............................  Countervailing duty order
355.21(c)............................  351.104(e)............................  Exclusion from countervailing
                                                                                duty order
355.22 (a)-(c).......................  351.113, 351.121......................  Administrative reviews under
                                                                                751(a) of the Act
355.22(d)............................  Removed...............................  Calculation of individual rates
355.22(e)............................  351.113(h)............................  Possible cancellation or revision
                                                                                of suspension agreements
355.22(f)............................  Removed...............................  Review of individual producer or
                                                                                exporter
355.22(g)............................  351.112(c)............................  Automatic assessment of duties
355.22(h)............................  351.116, 351.121(c)(3)................  Changed circumstances review
355.22(i)............................  351.120, 351.221(c)(7)................  Review at the direction of the
                                                                                President
355.23...............................  351.112(d)............................  Provisional measures deposit cap
355.24...............................  351.112(e)............................  Interest on overpayments and
                                                                                underpayments
355.25...............................  351.112...............................  Revocation of orders; termination
                                                                                of suspended investigations
355.27...............................  351.123...............................  Downstream product monitoring
355.28...............................  351.124...............................  Correction of ministerial errors
355.29...............................  351.125...............................  Scope determinations
--------------------------------------
                                       Subpart C--Information and Argument
----------------------------------------------------------------------------------------------------------------
355.31 (a)-(c).......................  351.301...............................  Time limits for submission of
                                                                                factual information
355.31(a)(3).........................  351.302(d), 351.104(a)(2).............  Return of untimely material
355.31(b)(3).........................  351.302(c)............................  Request for extension of time
355.31 (d)-(i).......................  351.303...............................  Filing, format, translation,
                                                                                service and certification
355.32...............................  351.304...............................  Request for proprietary treatment
                                                                                of information
355.33...............................  351.104, 351.304(a)(2)................  Information exempt from
                                                                                disclosure
355.34...............................  351.305, 351.306......................  Disclosure of information under
                                                                                protective order
355.35...............................  Removed...............................  Ex parte meeting
355.36...............................  351.307...............................  Verification
355.37...............................  351.308...............................  Determinations on the basis of
                                                                                the facts available
355.38 (a)-(e).......................  351.309...............................  Written argument
355.38(f)............................  351.310...............................  Hearings
355.39...............................  351.311...............................  Subsidy practice discovered
                                                                                during investigation or review
--------------------------------------

[[Page 291]]

 
                                 Subpart D--Quota Cheese Subsidy Determinations
----------------------------------------------------------------------------------------------------------------
355.41...............................  Removed...............................  Definition of subsidy
355.42...............................  351.601...............................  Annual list and quarterly update
355.43...............................  351.602...............................  Determination upon request
355.44...............................  351.603...............................  Complaint of price-undercutting
355.45...............................  351.604...............................  Access to information
----------------------------------------------------------------------------------------------------------------


[[Page 292]]

      Annex VI to Part 351--Countervailing Investigations Timeline
[GRAPHIC] [TIFF OMITTED] TR19MY97.000


[[Page 293]]



       Annex VII to Part 351--Antidumping Investigations Timeline
[GRAPHIC] [TIFF OMITTED] TR19MY97.001


[[Page 294]]



      Annex VIII-A to Part 351--Schedule for 90-Day Sunset Reviews

------------------------------------------------------------------------
      Day \1\                 Event                    Regulation
------------------------------------------------------------------------
0.................  Initiation...............  Sec. 351.218(c)
15................  Filing of Notice of        Sec. 351.218(d)(1)(i)
                     Intent to Participate by   (not later than 15 days
                     domestic interested        after the date of
                     parties.                   publication of the
                                                Notice of Initiation)
20................  Notification to the ITC    Sec.
                     that no domestic           351.218(d)(1)(iii)(B)(2)
                     interested party has       (normally not later than
                     responded to the Notice    20 days after the date
                     of Initiation.             of publication of the
                                                Notice of Initiation)
30................  Filing of substantive      Sec. Sec.
                     response to the Notice     351.218(d)(3)(i) and
                     of Initiation by all       351.218(d)(3)(vi) (not
                     interested parties and     later than 30 days after
                     industrial users and       the date of publication
                     consumers.                 of the Notice of
                                                Initiation)
35................  Filing of rebuttal to      Sec. 351.218(d)(4) (not
                     substantive response to    later than 5 days after
                     the Notice of Initiation.  the substantive response
                                                is filed with the
                                                Department)
40................  Notification to the ITC    Sec.
                     that no domestic           351.218(e)(1)(i)(C)(2)
                     interested party has       (normally not later than
                     responded to the Notice    40 days after the date
                     of Initiation (based on    of publication of the
                     inadequate response from   Notice of Initiation)
                     domestic interested
                     parties).
90................  Final determination        Sec. Sec.
                     revoking an order or       351.218(d)(1)(iii)(B)(3)
                     terminating a suspended    and 351.222(i)(1)(i)
                     investigation where no     (not later than 90 days
                     domestic interested        after the date of
                     party responds to the      publication of the
                     Notice of Initiation.      Notice of Initiation)
------------------------------------------------------------------------
\1\ Indicates the number of days from the date of publication in the
  Federal Register of the Notice of Initiation.


[63 FR 13524, Mar. 20, 1998]

     Annex VIII-B to Part 351--Schedule for Expedited Sunset Reviews

------------------------------------------------------------------------
      Day \1\                 Event                    Regulation
------------------------------------------------------------------------
0.................  Initiation...............  Sec. 351.218(c)
15................  Filing of Notice of        Sec. 351.218(d)(1)(i)
                     Intent to Participate by   (not later than 15 days
                     domestic interested        after the date of
                     parties.                   publication of the
                                                Notice of Initiation)
30................  Filing of Statement of     Sec. 351.218(d)(2)(i)
                     Waiver by respondent       (not later than 30 days
                     interested parties.        after the date of
                                                publication of the
                                                Notice of Initiation)
30................  Filing of substantive      Sec. Sec.
                     response to the Notice     351.218(d)(3)(i) and
                     of Initiation by all       351.218(d)(3)(vi) (not
                     interested parties and     later than 30 days after
                     industrial users and       the date of publication
                     consumers.                 of the Notice of
                                                Initiation)
35................  Filing of rebuttal to      Sec. 351.218(d)(4) (not
                     substantive response to    later than 5 days after
                     the Notice of Initiation.  the substantive response
                                                is filed with the
                                                Department)
50................  Notification to the ITC    Sec.
                     that respondent            351.218(e)(1)(ii)(C)(1)
                     interested parties         (normally not later than
                     provided inadequate        50 days after the date
                     response to the Notice     of publication of the
                     of Initiation.             Notice of Initiation)
70................  Comments on adequacy of    Sec. 351.309(e)(ii)
                     response and               (not later than 70 days
                     appropriateness of         after the date of
                     expedited sunset review.   publication of the
                                                Notice of Initiation)
120...............  Final results of           Sec. Sec.
                     expedited sunset review    351.218(e)(1)(ii)(B) and
                     where respondent           351.218(e)(1)(ii)(C)(2)
                     interested parties         (not later than 120 days
                     provide inadequate         after the date of
                     response to the Notice     publication of the
                     of Initiation.             Notice of Initiation)
------------------------------------------------------------------------
\1\ Indicates the number of days from the date of publication in the
  Federal Register of the Notice of Initiation.


[63 FR 13525, Mar. 20, 1998]

       Annex VIII-C to Part 351--Schedule for Full Sunset Reviews

------------------------------------------------------------------------
      Day \1\                 Event                    Regulation
------------------------------------------------------------------------
0.................  Initiation...............  Sec. 351.218(c)
15................  Filing of Notice of        Sec. 351.218(d)(1)(i)
                     Intent to Participate by   (not later than 15 days
                     domestic interested        after the date of
                     parties.                   publication of the
                                                Notice of Initiation)
30................  Filing of Statement of     Sec. 351.218(d)(2)(i)
                     Waiver by respondent       (not later than 30 days
                     interested parties.        after the date of
                                                publication of the
                                                Notice of Initiation)
30................  Filing of substantive      Sec. Sec.
                     response to the Notice     351.218(d)(3)(i) and
                     of Initiation by all       351.218(d)(3)(vi) (not
                     interested parties and     later than 30 days after
                     industrial users and       the date of publication
                     consumers.                 of the Notice of
                                                Initiation)
35................  Filing of rebuttal to      Sec. 351.218(d)(4) (not
                     substantive response to    later than 5 days after
                     the Notice of Initiation.  the substantive response
                                                is filed with the
                                                Department)
110...............  Preliminary results of     Sec. 351.218(f)(1)
                     full sunset review.        (normally not later than
                                                110 days after the date
                                                of publication of the
                                                Notice of Initiation)
120...............  Verification in a full     Sec. 351.218(f)(2)(ii)
                     sunset review, where       (approximately 120 days
                     needed.                    after the date of
                                                publication of the
                                                Notice of Initiation)
160...............  Filing of case brief in    Sec. 351.309(c)(1)(i)
                     full sunset review.        (50 days after the date
                                                of publication of the
                                                preliminary results of
                                                full sunset review)
165...............  Filing of rebuttal brief   Sec. 351.309(d)(1) (5
                     in full sunset review.     days after the time
                                                limit for filing a case
                                                brief)

[[Page 295]]

 
167...............  Hearing in full sunset     Sec. 351.310(d)(i) (2
                     review if requested.       days after the time
                                                limit for filing a
                                                rebuttal brief)
240...............  Final results of full      Sec. 351.218(f)(3)(i)
                     sunset review.             (not later than 240 days
                                                after the date of
                                                publication of the
                                                Notice of Initiation)
330...............  Final results of full      Sec. 351.218(f)(3)(ii)
                     sunset review if fully     (if full sunset review
                     extended.                  is extraordinarily
                                                complicated, period for
                                                issuing final results
                                                may be extended by not
                                                more than 90 days)
------------------------------------------------------------------------
\1\ Indicates the number of days from the date of publication in the
  Federal Register of the Notice of Initiation.


[63 FR 13525, Mar. 20, 1998]



PART 354_PROCEDURES FOR IMPOSING SANCTIONS FOR VIOLATION OF AN 

ANTIDUMPING OR COUNTERVAILING DUTY ADMINISTRATIVE 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.
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.
354.18 Public notice of sanctions.
354.19 Sunset.

    Authority: 5 U.S.C. 301, and 19 U.S.C. 1677.

    Source: 53 FR 47920, Nov. 28, 1988, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 354 appear at 63 FR 
24403, May 4, 1998.



Sec. 354.1  Scope.

    This part sets forth the procedures for imposing sanctions for 
violation of an administrative protective order issued under 19 CFR 
351.306, or successor regulations, as authorized by 19 U.S.C. 1677f(c).

[53 FR 47920, Nov. 28, 1988, as amended at 63 FR 24403, May 4, 1998]



Sec. 354.2  Definitions.

    For purposes of this part:
    Administrative protective order (APO) means an administrative 
protective order described in section 777(c)(1) of the Tariff Act of 
1930, as amended; APO Sanctions Board means the Administrative 
Protective Order Sanctions Board.
    Business proprietary information means information the disclosure of 
which the Secretary has decided is limited under 19 CFR 351.105, or 
successor regulations;
    Charged party means a person who is charged by the Deputy Under 
Secretary with violating a protective order;
    Chief Counsel means the Chief Counsel for Import Administration or a 
designee;
    Date of service means the day a document is deposited in the mail or 
delivered in person;
    Days means calendar days, except that a deadline which falls on a 
weekend or holiday shall be extended to the next working day;
    Department means the United States Department of Commerce;
    Deputy Under Secretary means the Deputy Under Secretary for 
International Trade or a designee;
    Director means the Senior APO Specialist or an office director under 
a Deputy Assistant Secretary, International Trade Administration, or a 
designee;
    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;
    Parties means the Department and the charged party or affected party 
in an action under this part;
    Presiding official means the person authorized to conduct hearings 
in administrative proceedings or to rule on any motion or make any 
determination

[[Page 296]]

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;
    Proprietary information means information the disclosure of which 
the Secretary has decided is limited under 19 CFR part 351 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;
    Secretary means the Secretary of Commerce or a designee;
    Segment of the proceeding means a portion of an antidumping or 
countervailing duty proceeding that is reviewable under section 516A of 
the Tariff Act of 1930, as amended.
    Senior APO Specialist means the Department employee under the 
Director for Policy and Analysis who leads the APO Unit and is 
responsible for directing Import Administration's handling of business 
proprietary information;
    Under Secretary means the Under Secretary for International Trade or 
a designee.

[63 FR 24403, May 4, 1998]



Sec. 354.3  Sanctions.

    (a) A person determined under this part to have violated a 
administrative protective order may 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 business 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;
    (4) Requiring the person to return material previously provided by 
the Secretary and all other materials containing the business 
proprietary information, such as briefs, notes, or charts based on any 
such information received under an administrative protective order; and
    (5) Issuing a private letter of reprimand.
    (b)(1) The firm of which a person determined to have violated a 
administrative 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).

[53 FR 47920, Nov. 28, 1988, as amended at 63 FR 24404, May 4, 1998]



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

[[Page 297]]

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 who has information indicating 
that the terms of an administrative protective order have been violated 
will provide the information to the Senior APO Specialist 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 or any other person, the director will 
conduct an investigation concerning whether there was a violation of an 
administrative protective order, and who was responsible for the 
violation, if any. No director shall investigate an alleged violation 
that arose out of a proceeding for which the director was responsible. 
For the 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)(1) The director conducting the investigation will provide a 
report of the investigation to the Deputy Under Secretary for 
International Trade, after review by the Chief Counsel, no later than 90 
days after receiving information concerning a violation if:
    (i) The person alleged to have violated an administrative protective 
order personally notified the Secretary and reported the particulars 
surrounding the incident; and
    (ii) The alleged violation did not result in any actual disclosure 
of business proprietary information. Upon the director's request, and if 
extraordinary circumstances exist, the Deputy Under Secretary for 
International Trade may grant the director up to an additional 90 days 
to conduct the investigation and submit the report.
    (2) In all other cases, the director will provide a report of the 
investigation to the Deputy Under Secretary for International Trade, 
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 for International Trade 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 administrative 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 Deputy Under Secretary as reasonable cause to believe 
a person has violated a administrative protective order, within the 
meaning of Sec. 354.6.
    (1) Disclosure of business proprietary information to any person 
other than the submitting party, an authorized applicant, or an 
appropriate Department official identified in section 777(b) of the 
Tariff Act of 1930, including disclosure to an employee of any other 
United States Government agency or a member of Congress.
    (2) Failure to follow the terms and conditions outlined in the 
administrative protective order for safeguarding business proprietary 
information.
    (3) Loss of business proprietary information.
    (4) Failure to return or destroy all copies of the original 
documents and all notes, memoranda, and submissions containing business 
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 business proprietary information from the 
public version of a brief or other correspondence filed with the 
Department.
    (6) Disclosure of business proprietary information during a public 
hearing.
    (7) Use of business proprietary information submitted in one segment 
of a proceeding in another segment of the

[[Page 298]]

same proceeding or in another proceeding, except as authorized by the 
Tariff Act of 1930 or by an administrative protective order.
    (8) Use of business proprietary information submitted for a 
countervailing duty investigation or administrative review during an 
antidumping duty investigation or administrative review, or vice versa.

[53 FR 47920, Nov. 28, 1988, as amended at 63 FR 24404, May 4, 1998]



Sec. 354.6  Initiation of proceedings.

    (a) In general. After an investigation and report by the director 
under Sec. 354.5(c) and consultation with the Chief Counsel, the Deputy 
Under Secretary for International Trade will determine whether there is 
reasonable cause to believe that a person has violated an administrative 
protective order. If the Deputy Under Secretary for International Trade 
determines that there is reasonable cause, the Deputy Under Secretary 
for International Trade also will determine whether sanctions under 
paragraph (b) or a warning under paragraph (c) is appropriate for the 
violation.
    (b) Sanctions. In determining under paragraph (a) of this section 
whether sanctions are appropriate, and, if so, what sanctions to impose, 
the Deputy Under Secretary for International Trade will consider the 
nature of the violation, the resulting harm, and other relevant 
circumstances of the case. If the Deputy Under Secretary for 
International Trade determines that sanctions are appropriate, the 
Deputy Under Secretary for International Trade will initiate a 
proceeding under this part by issuing a charging letter under Sec. 
354.7. The Deputy Under Secretary for International Trade will determine 
whether to initiate a proceeding no later than 60 days after receiving a 
report of the investigation.
    (c) Warning. If the Deputy Under Secretary for International Trade 
determines under paragraph (a) of this section that a warning is 
appropriate, the Deputy Under Secretary will issue a warning letter to 
the person believed to have violated an administrative protective order. 
Sanctions are not appropriate and a warning is appropriate if:
    (1) The person took due care;
    (2) The Secretary has not previously charged the person with 
violating an administrative protective order;
    (3) The violation did not result in any disclosure of the business 
proprietary information or the Secretary is otherwise able to determine 
that the violation caused no harm to the submitter of the information; 
and
    (4) The person cooperated fully in the investigation.

[63 FR 24404, May 4, 1998]



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 administrative 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
    (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 for International Trade 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 administrative protective order Sanctions

[[Page 299]]

Board is not necessary. The charged or affected party may request a 
hearing but at the same time request that a presiding official not be 
appointed pending settlement discussions. Settlement agreements may 
include sanctions for purposes of Sec. 354.18. The Deputy Under 
Secretary for International Trade may amend, supplement, or withdraw the 
charging letter as follows:
    (1) 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 preclude future actions on the same alleged violation.
    (2) If a hearing has been requested but no presiding official has 
been appointed, withdrawal of the charging letter will preclude the 
Deputy Under Secretary for International Trade from seeking sanctions at 
a later date for the same alleged violation.
    (3) The Deputy Under Secretary for International Trade may amend, 
supplement or withdraw the charging letter at any time after the 
appointment of a presiding official, if the presiding official 
determines that the interests of justice would thereby be served. If the 
presiding official so determines, the presiding official will also 
determine whether the withdrawal will preclude the Deputy Under 
Secretary for International Trade from seeking sanctions at a later date 
for the same alleged violation.
    (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.

[53 FR 47920, Nov. 28, 1988, as amended at 63 FR 24405, May 4, 1998]



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 business 
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 administrative 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 business proprietary 
information.
    (2) Barring a person from representing another person before the 
International Trade Administration.

[[Page 300]]

    (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 containing the business 
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, and unless the 
party requesting a hearing requests that the Under Secretary not appoint 
a presiding official, the Under Secretary will appoint a presiding 
official to conduct the hearing and render an initial decision.

[53 FR 47920, Nov. 28, 1988, as amended at 63 FR 24405, May 4, 1998]



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

[[Page 301]]

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 administrative 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 
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 business 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

[[Page 302]]

consolidation if sanctions are proposed against more than one party or 
if violations of more than one administrative 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 or portion thereof if necessary or advisable in order to 
protect business 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 business 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 
administrative 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 administrative protective 
order and that the sanctions

[[Page 303]]

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 issuance 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.

[53 FR 47920, Nov. 28, 1988, as amended at 63 FR 24405, May 4, 1998]



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 
administrative 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.
    (b) The charged party or counsel for the charged party will be 
granted access to business proprietary information in these proceedings, 
as necessary, under administrative protective order, consistent with the 
provisions of 19

[[Page 304]]

CFR 351.305(c), or their successor regulations.

[53 FR 47920, Nov. 28, 1988, as amended at 63 FR 24405, May 4, 1998]



Sec. 354.18  Public notice of sanctions.

    If there is a final decision under Sec. 354.15 to impose sanctions, 
or if a charging letter is settled under Sec. 354.7(b), notice of the 
Secretary's decision or of the existence of a settlement will be 
published in the Federal Register. If a final decision is reached, 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. In addition, whenever the Deputy Under Secretary for 
International Trade subjects a charged or affected party to a sanction 
under Sec. 354.3(a)(1), the Deputy Under Secretary for International 
Trade also will provide such information to the ethics panel or other 
disciplinary body of the appropriate bar associations or other 
professional associations and to any Federal agency likely to have an 
interest in the matter. The Deputy Under Secretary for International 
Trade will cooperate in any disciplinary actions by any association or 
agency. Whenever the Deputy Under Secretary for International Trade 
subjects a charged or affected party to a private letter of reprimand 
under Sec. 354.3(a)(5), the Secretary will not make public the identity 
of the violator, nor will the Secretary make public the specifics of the 
violation in a manner that would reveal indirectly the identity of the 
violator.

[63 FR 24405, May 4, 1998]



Sec. 354.19  Sunset.

    (a) If, after a period of three years from the date of issuance of a 
warning letter, a final decision or settlement in which sanctions were 
imposed, the charged or affected party has fully complied with the terms 
of the sanctions and has not been found to have violated another 
administrative protective order, the party may request in writing that 
the Deputy Under Secretary for International Trade rescind the charging 
letter. A request for rescission must include:
    (1) A description of the actions taken during the preceding three 
years in compliance with the terms of the sanctions; and
    (2) A letter certifying that: the charged or affected party complied 
with the terms of the sanctions; the charged or affected party has not 
received another administrative protective order sanction during the 
three-year period; and the charged or affected party is not the subject 
of another investigation for a possible violation of an administrative 
protective order.
    (b) Subject to the Chief Counsel's confirmation that the charged or 
affected party has complied with the terms set forth in paragraph (a) of 
this section, the Deputy Under Secretary for International Trade will 
rescind the charging letter within 30 days after receiving the written 
request.

[63 FR 24405, May 4, 1998]



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.

[[Page 305]]

  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;
    (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;

[[Page 306]]

    (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:
    (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

[[Page 307]]

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 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.

[[Page 308]]



   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.



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

[[Page 309]]

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.
    (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

[[Page 310]]

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 Sec. Sec. 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 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

[[Page 311]]

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 Sec. Sec. 
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.
    (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.

[[Page 312]]

    (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 Sec. Sec. 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 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

[[Page 313]]

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 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

[[Page 314]]

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:
    (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

[[Page 315]]

    (iv) Acknowledge that breach thereof may subject the signatory to 
sanctions under Sec. Sec. 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 Sec. Sec. 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 Sec. Sec. 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 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 Sec. Sec. 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:

[[Page 316]]

    (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.



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,

[[Page 317]]

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 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

[[Page 318]]

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 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;

[[Page 319]]

    (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 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.

[[Page 320]]

    (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 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

[[Page 321]]

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 
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

[[Page 322]]

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 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

[[Page 323]]

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 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

[[Page 324]]

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 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).

[[Page 325]]


    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 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

[[Page 326]]

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 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:

[[Page 327]]

    (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.
    (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

[[Page 328]]

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 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:

[[Page 329]]

    (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.
    (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.



PART 360_STEEL IMPORT MONITORING AND ANALYSIS SYSTEM--Table of
Contents




Sec.
360.101 Steel import licensing.
360.102 Online registration.
360.103 Automatic issuance of import licenses.
360.104 Steel import monitoring.
360.105 Duration of the steel import licensing requirement.
360.106 Fees.
360.107 Hours of operation.
360.108 Loss of electronic licensing privileges.

    Authority: 13 U.S.C. 301(a) and 302.

    Source: 70 FR 12136, Mar. 11, 2005, unless otherwise noted.



Sec. 360.101  Steel import licensing.

    (a) In general. (1) All imports of basic steel mill products are 
subject to the import licensing requirements. These products are listed 
in Annex II. Registered users will be able to obtain

[[Page 330]]

steel import licenses on the Steel Import Monitoring and Analysis (SIMA) 
System Web site. This Web site contains two sections related to import 
licensing--the online registration system and the automatic steel import 
license issuance system. Information gathered from these licenses will 
be aggregated and posted on the import monitoring section of the SIMA 
system Web site.
    (2) A single license may cover multiple products as long as certain 
information on the license (e.g., importer, exporter, manufacturer and 
country of origin) remains the same. However, separate licenses for 
steel entered under a single entry will be required if the information 
differs. As a result, a single Customs entry may require more than one 
steel import license. The applicable license(s) must cover the total 
quantity of steel entered and should cover the same information provided 
on the Customs entry summary.
    (b) Entries for consumption. All entries for consumption of covered 
steel products, other than the exception for ``informal entries'' listed 
in paragraph (d) of this section, will require an import license prior 
to the filing of Customs entry summary documents. The license number(s) 
must be reported on the entry summary (Customs Form 7501) at the time of 
filing. There is no requirement to present physical copies of the 
license forms at the time of entry summary. However, copies must be 
maintained in accordance with Customs' normal requirements. Entry 
summaries submitted without the required license number(s) will be 
considered incomplete and will be subject to liquidated damages for 
violation of the bond condition requiring timely completion of entry.
    (c) Foreign Trade Zone entries. All shipments of covered steel 
products into a foreign trade zones (FTZ), known as FTZ admissions, will 
require an import license prior to the filing of FTZ admission 
documents. The license number(s) must be reported on the application for 
FTZ admission and/or status designation (Customs form 214) at the time 
of filing. There is no requirement to present physical copies of the 
license forms at the time of FTZ admission; however, copies must be 
maintained in accordance with Customs' normal requirements. FTZ 
admission documents submitted without the required license number(s) 
will not be considered complete and will be subject to liquidated 
damages for violation of the bond condition requiring timely completion 
of admission. A further steel license will not be required for shipments 
from zones into the commerce of the United States.
    (d) Informal entries. No import license shall be required on 
informal entries of covered steel products, such as merchandise valued 
at less than $2,000. This exemption applies to informal entries only, 
imports of steel valued at less than $2,000 that are part of a formal 
entry will require a license. For additional information, refer to 19 
CFR 143.21 through 143.28.
    (e) Other non-consumption entries. Import licenses are not required 
on temporary importation bond (TIB) entries, transportation and 
exportation (T&E) entries or entries into a bonded warehouse. Covered 
steel products withdrawn for consumption from a bonded warehouse will 
require a license at the entry summary.



Sec. 360.102  Online registration.

    (a) In general. (1) Any importer, importing company, customs broker 
or importer's agent with a U.S. street address may register and obtain 
the user identification number necessary to log on to the automatic 
steel import license issuance system. Foreign companies may obtain a 
user identification number if they have a U.S. address through which 
they may be reached; P.O. boxes will not be accepted. A user 
identification number will be issued within two business days. Companies 
will be able to register online through the SIMA system Web site. 
However, should a company prefer to apply for a user identification 
number non-electronically, a phone/fax option will be available at 
Commerce during regular business hours.
    (2) This user identification number will be required in order to log 
on to the steel import license issuance system. A single user 
identification number will be issued to an importer, customs broker or 
importer's agent. Operating units within the company (e.g.,

[[Page 331]]

individual branches, divisions or employees) will all use the same basic 
company user identification code but can supply suffixes to identify the 
branches. The steel import license issuance system will be designed to 
allow multiple users of a single identification number from different 
locations within the company to enter information simultaneously.
    (b) Information required to obtain a user identification number. In 
order to obtain a user identification number, the importer, importing 
company, customs broker or importer's agent will be required to provide 
general information. This information will include: the filer company 
name, employer identification number (EIN) or Customs ID number (where 
no EIN is available), U.S. street address, phone number, contact 
information and e-mail address for both the company headquarters and any 
branch offices that will be applying for steel licenses. It is the 
responsibility of the applicant to keep the information up-to-date. This 
information will not be released by Commerce, except as required by U.S. 
law.



Sec. 360.103  Automatic issuance of import licenses.

    (a) In general. Steel import licenses will be issued to registered 
importers, customs brokers or their agents through an automatic steel 
import licensing system. The licenses will be issued automatically after 
the completion of the form.
    (b) Customs entry number. Filers are not required to report a 
Customs entry number to obtain an import license but are encouraged to 
do so if the Customs entry number is known at the time of filing for the 
license.
    (c) Information required to obtain an import license. (1) The 
following information is required to be reported in order to obtain an 
import license (if using the automatic licensing system, some of this 
information will be provided automatically from information submitted as 
part of the registration process):
    (i) Filer company name and address;
    (ii) Filer contact name, phone number, fax number and email address;
    (iii) Entry type (i.e., Consumption, FTZ)
    (iv) Importer name;
    (v) Exporter name;
    (vi) Manufacturer name (filer may state ``unknown'');
    (vii) Country of origin;
    (viii) Country of exportation;
    (ix) Expected date of export;
    (x) Expected date of import;
    (xi) Expected port of entry;
    (xii) Current HTS number (from Chapters 72 or 73);
    (xiii) Quantity (in kilograms) and
    (xiv) Customs value (U.S. $).
    (2) Certain fields will be automatically filled out by the automatic 
license system based on information submitted by the filer (e.g., 
product category, unit value). Filers should review these fields to help 
confirm the accuracy of the submitted data.
    (3) Upon completion of the form, the importer, customs broker or the 
importer's agent will certify as to the accuracy and completeness of the 
information and submit the form electronically. After refreshing the 
page, the system will automatically issue a steel import license number. 
The refreshed form containing the submitted information and the newly 
issued license number will appear on the screen (the ``license form''). 
Filers can print the license form themselves only at that time. For 
security purposes, users will not be able to retrieve licenses 
themselves from the license system at a later date for reprinting. If 
needed, copies of completed license forms can be requested from Commerce 
during normal business hours.
    (d) Duration of the steel import license. The steel import license 
can be applied for up to 60 days prior to the expected date of 
importation and until the date of filing of the entry summary documents, 
or in the case of FTZ entries, the filing of Customs form 214. The steel 
import license is valid for 75 days; however, import licenses that were 
valid on the date of importation but expired prior to the filing of 
entry summary documents will be accepted.
    (e) Correcting submitted license information. Users will need to 
correct licenses themselves if they determine that there was an error 
submitted. To access a previously issued license, a user must log on 
with his user identification code and identify the license

[[Page 332]]

number and the volume (in kilograms) for the first product shown on the 
license. The information on the license should match the information 
presented on the CF-7501 entry summary document as closely as possible; 
this includes the value and volume of the shipment, the expected date of 
importation, and the customs district of entry.
    (f) Low-value licenses. There is one exception to the requirement 
for obtaining a unique license for each Customs entry. If the total 
value of the covered steel portion of an entry is less than $250, 
applicants may apply to Commerce for a low-value license that can be 
used in lieu of a single entry license for low-value entries.



Sec. 360.104  Steel import monitoring.

    (a) Throughout the duration of the licensing requirement, Commerce 
will maintain an import monitoring system on the SIMA system Web site 
that will report certain aggregate information on imports of steel mill 
products obtained from the steel licenses. Aggregate data will be 
reported on a monthly basis by country of origin and steel mill product 
category and will include import quantity (metric tons), import Customs 
value (U.S. $), and average unit value ($/metric ton). The Web site will 
also contain certain aggregate data at the 6-digit Harmonized Tariff 
Schedule level and will also present a range of historical data for 
comparison purposes. Provision of this aggregate data on the Web site 
may be revisited should concerns arise over the possible release of 
proprietary data.
    (b) Reported monthly import data will be refreshed each week with 
new data on licenses issued during the previous week. This data will 
also be adjusted periodically for cancelled or unused steel import 
licenses, as appropriate.



Sec. 360.105  Duration of the steel import licensing requirement.

    The licensing program will be in effect through March 21, 2009, but 
may be extended upon review and notification in the Federal Register 
prior to this expiration date. Licenses will be required on all subject 
imports entered during this period, even if the entry summary documents 
are not filed until after the expiration of this program. The licenses 
will be valid for 10 business days after the expiration of this program 
to allow for the final filing of required Customs documentation.



Sec. 360.106  Fees.

    No fees will be charged for obtaining a user identification number, 
issuing a steel import license or accessing the steel import surge 
monitoring system.



Sec. 360.107  Hours of operation.

    The automatic licensing system will generally be accessible 24 hours 
a day, 7 days a week but may be unavailable at selected times for server 
maintenance. If the system is unavailable for an extended period of 
time, parties will be able to obtain licenses from Commerce directly via 
fax during regular business hours. Should the system be inaccessible for 
an extended period of time, Commerce would advise Customs to consider 
this as part of mitigation on any liquidated damage claims that may be 
issued.



Sec. 360.108  Loss of electronic licensing privileges.

    Should Commerce determine that a filer consistently files inaccurate 
licensing information or otherwise abuses the licensing system, Commerce 
may revoke its electronic licensing privileges without prior notice. The 
filer will then only be able to obtain a license directly from Commerce. 
Because of the additional time need to review such forms, Commerce may 
require up to 10 working days to process such forms. Delays in filing 
caused by the removal of a filer's electronic filing privilege will not 
be considered a mitigating factor by the U.S. Customs Service.

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CHAPTER IV--BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT, DEPARTMENT OF 
                            HOMELAND SECURITY




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

PARTS 400-599 
[RESERVED]


-

[[Page 335]]



                              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 337]]



                    Table of CFR Titles and Chapters




                      (Revised as of April 1, 2005)

                      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--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
         I  [Reserved]
        II  Office of Management and Budget Circulars and Guidance
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements [Reserved]


                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  General Accounting Office (Parts 1--99)

                   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)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      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)

[[Page 338]]

        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)
      XXIV  Federal Energy Regulatory Commission (Part 3401)
       XXV  Department of the Interior (Part 3501)
      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)
        LV  National Endowment for the Arts (Part 6501)
       LVI  National Endowment for the Humanities (Part 6601)
      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)
     LXVII  Institute of Museum and Library Services (Part 7701)
      LXIX  Tennessee Valley Authority (Part 7901)
      LXXI  Consumer Product Safety Commission (Part 8101)
    LXXIII  Department of Agriculture (Part 8301)
     LXXIV  Federal Mine Safety and Health Review Commission (Part 
                8401)
     LXXVI  Federal Retirement Thrift Investment Board (Part 8601)

[[Page 339]]

    LXXVII  Office of Management and Budget (Part 8701)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Part 
                9701)

                      Title 6--Homeland Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 0--99)

                         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 Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       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)

[[Page 340]]

        XX  Local Television Loan Guarantee Board (Parts 2200--
                2299)
      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 Policy and New Uses, Department of 
                Agriculture (Parts 2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    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)
     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  Department of Homeland Security (Immigration and 
                Naturalization) (Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 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, Department of 
                Agriculture (Parts 300--599)

[[Page 341]]

                           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)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Part 1800)

                      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)
       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  Department of the Treasury (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)
        IV  Emergency Steel Guarantee Loan Board, Department of 
                Commerce (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board, 
                Department of Commerce (Parts 500--599)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)

[[Page 342]]

        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)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 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 Industry and Security, 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)
       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)

[[Page 343]]

        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  Bureau of Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Bureau of Immigration and Customs Enforcement, 
                Department of Homeland Security (Parts 400--599)

                     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)
      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)

[[Page 344]]

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  Broadcasting Board of Governors (Parts 500--599)
       VII  Overseas Private Investment Corporation (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)
       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)

                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)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)

[[Page 345]]

        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, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
         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 (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Part 1200)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--899)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--399)

[[Page 346]]

        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--699)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       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)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)
        XI  Department of Justice and Department of State (Parts 
                1100--1199)

                            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  Employee Benefits Security 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 347]]

                      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)
       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)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)

                      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)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       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)

[[Page 348]]

    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Homeland Security (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)
        XI  National Institute for Literacy (Parts 1100--1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

                         Title 35--[Reserved]

             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)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Part 1501)

[[Page 349]]

       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States 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--1099)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)
       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)

          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 Service, 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)
       102  Federal Management Regulation (Parts 102-1--102-299)
       105  General Services Administration (Parts 105-1--105-999)

[[Page 350]]

       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
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-1--303-99)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
        IV  Centers for Medicare & Medicaid Services, 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--10010)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

[[Page 351]]

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (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)
         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  Corporation for National and Community Service (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)
     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 Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)

[[Page 352]]

        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  United States 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)
        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  Broadcasting Board of Governors (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)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        35  [Reserved]
        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)

[[Page 353]]

        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399)
        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        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  Pipeline and Hazardous Materials Safety 
                Administration, Department of Transportation 
                (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (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)
        XI  Research and Innovative Technology Administration, 
                Department of Transportation (Parts 1400--1499)
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

                   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)

[[Page 354]]

        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
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR

[[Page 355]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of April 1, 2005)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Advanced Research Projects Agency                 32, I
Advisory Council on Historic Preservation         36, VIII
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development, United      22, II
     States
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department                            5, LXXIII
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  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
  Food and Nutrition 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
  Procurement and Property Management, Office of  7, XXXII
  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
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX

[[Page 356]]

Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
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
Broadcasting Board of Governors                   22, V
  Federal Acquisition Regulation                  48, 19
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Civil Rights, Commission on                       45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
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
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV, VI
  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, United States      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
Corporation for National and Community Service    45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Court Services and Offender Supervision Agency    28, VIII
     for the District of Columbia
Customs and Border Protection Bureau              19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A; 
                                                  40, VII

[[Page 357]]

  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
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 2
  National Imagery and Mapping Agency             32, I
  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 Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
District of Columbia, Court Services and          28, VIII
     Offender Supervision Agency for the
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
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employee Benefits Security Administration         29, XXV
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
Environmental Protection Agency                   5, LIV; 40, I, IV, VII
  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                5, III, LXXVII; 14, VI; 
                                                  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

[[Page 358]]

  Trade Representative, Office of the United      15, XX
       States
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
Federal Claims Collection Standards               31, IX
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
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Board                     12, IX
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 Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
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
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 Nutrition 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
General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5

[[Page 359]]

  Federal Management Regulation                   41, 102
  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  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
  Temporary Duty (TDY) Travel Allowances          41, 301
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
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          5, XLV; 45, Subtitle A
  Centers for Medicare & Medicaid Services        42, IV
  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
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V; 42, I
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  6, I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection Bureau            19, I
  Federal Emergency Management Agency             44, I
  Immigration and Customs Enforcement Bureau      19, IV
  Immigration and Naturalization                  8, I
  Transportation Security Administration          49, XII
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
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  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
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Human Development Services, Office of             45, XIII
Immigration and Customs Enforcement Bureau        19, IV
Immigration and Naturalization                    8, I
Immigration Review, Executive Office for          8, V
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; 42, I
Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General

[[Page 360]]

  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
Interior Department
  American Indians, Office of the Special         25, VII
       Trustee
  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
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Reclamation, Bureau of                          43, I
  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, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
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, XI; 40, 
                                                  IV
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration Review, Executive Office for        8, V
  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
  Employee Benefits Security Administration       29, XXV
  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 Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A

[[Page 361]]

  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
Local Television Loan Guarantee Board             7, XX
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  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
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
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 and Community Service, Corporation for   45, XII, XXV
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 Council on Disability                    34, XII
National Counterintelligence Center               32, XVIII
National Credit Union Administration              12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
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 Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Standards and Technology    15, II
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV, VI
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
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
   Commission
[[Page 362]]

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
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Patent and Trademark Office, United States        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 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
President's Commission on White House             1, IV
     Fellowships
Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Procurement and Property Management, Office of    7, XXXII
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
State Department                                  22, I; 28, XI
  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

[[Page 363]]

Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     5, L
  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
  Federal Motor Carrier Safety Administration     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 Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury Department                               5, XXI; 12, XV; 17, IV; 
                                                  31, IX
  Alcohol and Tobacco Tax and Trade Bureau        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs and Border Protection Bureau            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
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the 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 365]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations that were 
made by documents published in the Federal Register since January 1, 
2001, 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, 2001, see the ``List of CFR Sections 
Affected, 1949-1963, 1964-1972, 1973-1985, and 1986-2000'' published in 
11 separate volumes.

                                  2001

19 CFR
                                                                   66 FR
                                                                    Page
Chapter II
206.52 (c) added; interim..........................................32218

                                  2002

19 CFR
                                                                   67 FR
                                                                    Page
Chapter II
201.8 (f) and (g) added............................................68037
201.16 (e) added...................................................68037
206 Heading revised; interim........................................8189
    Authority citation revised......................................8190
206.1 Revised; interim..............................................8190
206.2 Revised; interim..............................................8190
206.3 (a) and (b) amended; section heading and (c) revised; 
        interim.....................................................8190
206.4 Revised; interim..............................................8190
206.5 (b) revised; interim..........................................8190
206.6 (a)(2) revised; (b)(2) added; interim.........................8190
206.7 (a) amended; interim..........................................8190
206.41 Amended; interim.............................................8190
206.42 Revised; interim.............................................8191
206.43 Section heading revised; introductory text amended; interim
                                                                    8191
206.44 Redesignated as 206.45; new 206.44 added; interim............8191
206.45 Redesignated as 206.46; new 206.45 redesignated from 
        206.44; interim.............................................8191
    Revised; interim................................................8192
206.46 Redesignated from 206.45; interim............................8191
206.47 Added; interim...............................................8192
206.61--206.68 (Subpart G) Added; interim...........................8192
Chapter III
360 Added..........................................................79849

                                  2003

19 CFR
                                                                   68 FR
                                                                    Page
Chapter II
201 Waiver..........................................................3175
201.1 Revised......................................................32973
201.2 (c) revised..................................................32973
201.3 (c) revised..................................................32973
201.3a (a) revised.................................................32973
201.4 (d) revised..................................................32974
201.6 (a)(2), (d), (e)(3) and (g) revised..........................32974
201.8 (a), (c) and (d) revised.....................................32974
201.13 (f) and (i)(1) revised......................................32974
201.14 (a) revised.................................................32975
201.17 (a)(1) revised..............................................32975
201.18 (b), (d) introductory text and (e) revised..................32975
201.19 (b) amended.................................................32975
201.21 (a) revised.................................................32975
201.31 Heading and (c) revised.....................................32975
201.33 Removed.....................................................32975
201.170 (c) revised................................................32975
201.201--201.208 (Subpart H) Authority citation revised............32976
201.201 (f), (i) and (m) revised...................................32976
201.202 (a) and (b)(4) revised.....................................32976
201.204 (a)(16)(ii), (g)(1), (2), (h)(1)(iii), (2)(iii), (3), 
        (4)(ii), (j) and (n) revised...............................32976

[[Page 366]]

201.206 (d), (f)(3) and (g)(1)(iv) revised.........................32976
201.207 (b)(3) revised.............................................32976
204 Authority citation revised.....................................32976
204.1 Footnote 5 redesignated as Footnote 1........................32977
204.2 Footnote 6 redesignated as Footnote 2........................32977
206.3 (b) revised..................................................32977
206.8 (b) revised..................................................32977
206.17 (a)(2), (b)(2), (g)(1) and (3) revised......................32977
206.44 (a), (c)(1) and (3) revised; (j) redesignated as (k); new 
        (j) added; interim.........................................65167
206.44a Added; interim.............................................65168
207.6 Removed......................................................32978
207.7 (a)(2), (b)(2) and (g)(1) revised............................32978
207.62 (b)(2) revised..............................................32978
207.64 (b) revised.................................................32978
210.4 (f)(2) revised...............................................32978
210.8 (a) revised..................................................32978
212.29 Revised.....................................................32979
Chapter IV
Chapter IV Established.............................................51870

                                  2004

                       (No regulations published)

                                  2005

   (Regulations published from January 1, 2005, through April 1, 2005)

19 CFR
                                                                   70 FR
                                                                    Page
Chapter II
206.17 (b) introductory text, (1) introductory text and (iv) 
        revised.....................................................8511
206.45 (e) added....................................................8511
207.3 (b) revised...................................................8511
207.7 (b) introductory text, (1) introductory text and (iv) 
        revised.....................................................8512
207.10 (a) revised..................................................8512
207.23 Revised......................................................8512
207.24 (d) revised..................................................8512
207.93 (b)(6), (c)(1), (2)(ii), (3), (4)(ii)(A), (5)(i), (ii), 
        (iii) and (e) revised; (b)(7) added.........................8512
Chapter III
360 Revised; interim...............................................12136


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