[Federal Register Volume 63, Number 108 (Friday, June 5, 1998)]
[Rules and Regulations]
[Pages 30599-30614]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-15156]


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INTERNATIONAL TRADE COMMISSION

19 CFR Parts 201 and 207


Rules of Practice and Procedure

AGENCY: United States International Trade Commission.

ACTION: Final rulemaking.

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SUMMARY: The United States International Trade Commission (the 
Commission) hereby amends its Rules of Practice and Procedure 
concerning antidumping and countervailing duty investigations and 
reviews in 19 CFR parts 201 and 207. The amendments establish 
procedures for five-year reviews of antidumping and countervailing duty 
orders and suspension agreements that the Commission will conduct 
pursuant to the provisions of section 751(c) of the Tariff Act of 1930, 
as amended (the Act).

DATES: In accordance with the 30-day advance publication requirement 
imposed by 5 U.S.C. 553(d), the effective date of these rules is July 
6, 1998.

FOR FURTHER INFORMATION CONTACT: Marc A. Bernstein, Office of General 
Counsel, U.S. International Trade Commission (telephone: 202-205-3087, 
e-mail: [email protected]), or Vera A. Libeau, Office of 
Investigations, U.S. International Trade Commission (telephone 202-205-
3176, e-mail: [email protected]). Hearing-impaired individuals are 
advised that information on this matter can be obtained by contacting 
the Commission's TDD terminal on 202-205-1810.

SUPPLEMENTARY INFORMATION:

Background

    On October 23, 1997, the Commission published a Notice of Proposed 
Rulemaking (NOPR) in the Federal Register. 62 F.R. 55185 (Oct. 23, 
1997). In the NOPR, the Commission proposed procedures for five-year 
reviews it will conduct pursuant to section 751(c) of the Act. Some of 
the proposed procedures were reflected in proposed amendments to the 
Commission's Rules of Practice and Procedure. The Commission 
additionally described in the preamble and annexes to the NOPR other 
proposed procedures which were not incorporated into the proposed 
regulations.
    The Commission invited public comment on its proposed regulations, 
the procedures discussed in the NOPR preamble and annexes, and any 
other issues pertaining to five-year reviews. The Commission received 
25 sets of first-round comments from 23 different submitters, and 15 
sets of rebuttal comments from 12 different submitters. Those entities 
that submitted written comments, as well as the short-form designations 
that will be used to refer to them, are listed in Annex C to this 
notice. Additionally, the Commission conducted a public hearing on 
February 26, 1998, concerning five-year reviews at which it heard 
testimony from numerous interested persons.
    The Commission carefully considered all comments that it received. 
The Commission's response to those comments that relate to the subjects 
addressed in this rulemaking notice is provided below in the section-
by-section analysis of the rulemaking amendments. The Commission 
appreciates the time and effort the commenters and hearing participants 
took to present their views, and believes that the comments and hearing 
testimony have contributed to improved regulations.
    The Commission has determined that these regulations do not meet 
the criteria described in section 3(f) of the Executive Order 12866 (58 
F.R. 51735, Oct. 4, 1993) (EO) and thus do not constitute a significant 
regulatory action for purposes of the EO. The Regulatory Flexibility 
Act (5 U.S.C. 601 note) is inapplicable to this rulemaking, because it 
is not one for which a NOPR is required under 5 U.S.C. 553(b) or any 
other statute. Although the Commission published a NOPR, these 
regulations are ``agency rules of procedure and practice,'' and thus 
are exempt from the notice requirement imposed by 5 U.S.C. 553(b).
    The sample notice of institution reproduced at Annex A to this 
notice constitutes an information collection request subject to the 
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. After 
consultation with the Office of Management and Budget (OMB), the 
Commission has concluded that the collection of information that will 
be undertaken pursuant to the notice of institution is encompassed 
within a clearance OMB has given the Commission under the Paperwork 
Reduction Act to collect information for antidumping and countervailing 
duty investigations and reviews, including those undertaken pursuant to 
section 751 of the Act. This clearance has been assigned OMB Control 
Number 3117-0016.
    Pursuant to the Contract with America Advancement Act of 1996 (Pub. 
L. 104-121), the Commission is submitting a report to the General 
Accounting Office and to each House of Congress describing these 
regulations and attaching their text.

Overview of the Amendments to the Regulations

    The final regulations and procedures for five-year reviews contain 
four principal changes from those proposed in the NOPR. These changes 
are summarized here. A comprehensive explanation of the changes is 
provided in the section-by-section analysis below.
    First, responses to the notice of institution will be due 50 days 
after its publication in the Federal Register. Thus, responses to the 
Commission's notice need not be filed until 30 days after the date on 
which the Department of Commerce (Commerce) will inform the Commission 
if no domestic interested party has filed a Notice of Intent to 
Participate in the five-year review.
    Second, the notice of institution has been revised significantly. 
In particular, the Commission has reduced the amount of empirical data 
that interested parties will be requested to submit in their responses. 
Additionally, interested parties will make a single submission to the 
Secretary.
    Third, the Commission has decided not to adopt numerical guidelines 
concerning the adequacy, in the aggregate, of interested party 
responses to the notice of institution. The Commission will make 
adequacy rulings on a case-by-case basis taking several considerations 
into account.
    Fourth, the Commission has decided not to adopt a regulation 
precluding interested parties from making data collection requests 
after submission of the comments on the draft questionnaires. 
Nevertheless, the regulation the Commission has promulgated states that 
it will entertain such late requests for data collection only in 
compelling circumstances.

Section-by-Section Analysis of the Regulations

Section 201.11

    The Commission has amended section 201.11 by adding sections 
201.11(b)(4) and (b)(5), which govern the filing of entries of 
appearance in five-year reviews. Section 201.11(b)(4), which states 
that entries of appearance are due 21 days after publication of the 
notice of institution, is identical to the provision proposed in the 
NOPR. Stewart requested that the 21-day period

[[Page 30600]]

for filing entries of appearance be extended to 30 days. The Commission 
has retained the 21-day period, which is the same period used in 
Commission investigations other than original antidumping and 
countervailing duty investigations.
    Section 201.11(b)(5) concerns the filing of entries of appearance 
in a ``full'' five-year review. (A ``full review'' is any five-year 
review except one that has been terminated by Commerce pursuant to 
section 751(c)(3)(A) of the Act or that has been expedited by the 
Commission pursuant to section 751(c)(3)(B) of the Act.) This provision 
states that entries of appearance in full reviews may be filed within 
the period specified in the Notice of Scheduling the Commission will 
issue pursuant to section 207.62(c). The Commission has not established 
a fixed date, as it proposed to do in the NOPR, to maximize its 
flexibility in scheduling five-year reviews. Nevertheless, as indicated 
in the final sentence of section 201.11(b)(5), parties will be provided 
a minimum of 45 days to file entries of appearance in full reviews. 
Stewart and Collier objected to any provision permitting parties to 
file entries of appearance after commencement of a full review. The 
Commission has decided to retain section 201.11(b)(5) to maximize 
participation in full reviews.
    The Commission has not made other amendments to section 201.11 
requested by commenters. Section 201.11(a), as currently written, 
expressly authorizes industrial users and certain consumer 
organizations to enter appearances as parties in investigations under 
part 207. New section 207.60(a) makes clear that this provision applies 
to five-year reviews. Consequently, no further amendment to section 
201.11, such as the one advocated by Canada, is needed to authorize 
industrial users and consumer organizations to appear as parties in 
five-year reviews.
    The Commission has declined to modify the regulations to 
``encourage'' interested parties to provide attorneys for industrial 
users and consumer groups with access to business proprietary 
information (BPI) under administrative protective order (APO), as 
requested by Hogan and H&H. Sections 777(b)(1) and (c) of the Act 
require the Commission to release BPI under APO to ``interested 
parties.'' Under section 771(9) of the Act, industrial users or 
consumers are not ``interested parties.'' Interested parties may elect 
to release information not acquired under APO under such terms and 
conditions as they designate to parties to a Commission investigation 
or review that do not have ``interested party'' status.

Section 207.3

    The Commission has amended section 207.3(b) to require hand or 
overnight service of prehearing briefs, hearing testimony, and 
posthearing briefs in five-year reviews. The amendment is identical to 
the one proposed in the NOPR.
    Hoogovens proposed that the regulation be amended to require each 
party to serve its entry of appearance in a five-year review by hand or 
express mail to all parties indicated on the Commerce service list for 
the most recent administrative review pertaining to the order(s) that 
are the subject of the five-year review. The Commission has not adopted 
this proposal because it does not see the need for expeditious service 
of entries of appearance on parties to a Commerce proceeding that may 
or may not choose to appear in the Commission's five-year review.
    Stewart proposed that the regulation be amended to require hand or 
overnight service of final comments filed pursuant to section 207.68. 
The amendment to section 207.3 is designed to make service requirements 
in five-year reviews the same as those in original antidumping and 
countervailing duty investigations. The Commission does not require 
hand or overnight service for final comments in original 
investigations.

Section 207.45

    The Commission has amended section 207.45, which concerns changed 
circumstances reviews pursuant to section 751(b) of the Act, to change 
the statutory cross-reference in section 207.45(a) so it specifically 
cites section 751(b). The amendment is identical to that proposed in 
the NOPR.

Section 207.46

    The Commission has amended section 207.46, an interim regulation 
that establishes procedures for investigations under section 753 of the 
Act, which concerns countervailing duty orders issued under section 303 
of the Act without an injury determination by the Commission. The 
amendments, which clarify the section's provisions and modify its 
cross-references in light of the other changes to the regulations made 
in this rulemaking, are identical to those proposed in the NOPR.

Section 207.60

    Section 207.60 is a new provision that defines certain terms used 
in new Subpart F of Part 207 concerning five-year reviews. The terms 
defined are ``five-year review,'' ``expedited review,'' ``full 
review,'' and ``notice of institution.''
    The definition of ``five-year review'' has been revised to clarify 
that generic references to ``investigations'' in Part 201 or in subpart 
A of Part 207 are applicable to five-year reviews, unless superseded by 
a Subpart F regulation of more specific application.
    The definitions of ``expedited review'' and ``full review'' are 
new, although each term was used in several places in the NOPR. An 
``expedited review'' is a five-year review that the Commission has 
expedited pursuant to section 751(c)(3)(B) of the Act. A ``full 
review'' is any five-year review except one that has been terminated by 
Commerce pursuant to section 751(c)(3)(A) of the Act or that has been 
expedited by the Commission pursuant to section 751(c)(3)(B) of the 
Act.
    The definition of ``notice of institution'' is identical to that 
proposed in the NOPR. The NOPR proposed definitions for the terms 
``domestic like product,'' ``domestic industry,'' ``expedited 
determination,'' and ``subject merchandise.'' The Commission has 
deleted these definitions on the grounds they are unnecessary. This 
change renders the comments directed to these proposed definitions 
moot.

Section 207.61

    Section 207.61 is a new provision concerning responses to the 
notice of institution. Sections 207.61(a) and 207.61(b) have changed 
substantially from the NOPR.
Section 207.61(a): When Responses to Notice of Institution Must be 
Filed
    Under section 207.61(a), interested parties must submit their 
responses to the Commission's notice of institution no later than 50 
days after its publication in the Federal Register. This response 
period is longer than the 30-day response period proposed in the NOPR. 
The Commission has made this change in response to both the comments to 
the NOPR and Commerce's interim final rules for five-year reviews.
    Many commenters objected to the proposed requirement that all 
interested parties file complete responses to the notice of institution 
within 30 days. Commenters stated two general types of objections. The 
first objection was based on section 751(c)(3)(A) of the Act, which 
directs Commerce to terminate a five-year review within 90 days when no 
domestic interested party responds to Commerce's notice of initiation. 
Respondent interested parties (a term that will be used to refer to 
interested

[[Page 30601]]

parties described in sections 771(9)(A) and (B) of the Act, 
encompassing U.S. importers, foreign producers, and exporters of 
subject merchandise, and governments of the countries in which subject 
merchandise is produced or exported) objected to being required to 
submit substantive responses to the notice of institution before any 
domestic interested party (a term that will be used to refer to 
interested parties described in section 771(9)(C)-(G) of the Act, 
encompassing domestic producers of the like product, domestic worker 
groups, and associations of such groups) indicated its intent to 
participate in the five-year review. They contended that proposed 
section 207.61(a) placed undue burdens on respondent interested parties 
by requiring them to respond to the notice of institution even when no 
five-year review would ultimately be conducted.
    The second objection was that the 30-day time period specified in 
the NOPR for filing responses to the notice of institution was too 
short. Schagrin requested that the comment period be extended to at 
least 37 days; Hoogovens requested that it be extended to 45 days; 
Eurofer and JMC requested that it be extended to 60 days. By contrast, 
Cement Committee supported the 30-day time period.
    On March 20, 1998, Commerce published in the Federal Register its 
interim procedures for five-year reviews. These procedures specify 
that: (1) domestic interested parties must file a Notice of Intent to 
Participate in the five-year review no later than 15 days after 
initiation; (2) Commerce will notify the Commission no later than 20 
days after initiation when no domestic interested party has filed a 
response to its notice of initiation; and (3) Commerce will notify the 
Commission no later than 40 days after initiation when no domestic 
interested party has responded adequately to its notice of initiation. 
63 F.R. 13516, 13524-25 (Mar. 20, 1998).
    In light of Commerce's interim procedures, the Commission has 
adopted a 50-day deadline for responses to the notice of institution. 
Consequently, respondent interested parties should know whether filing 
a response to the Commission's notice of institution is unnecessary 
because no domestic interested party has filed (1) a Notice of Intent 
to Participate with Commerce or (2) an adequate response to Commerce's 
notice of initiation. Additionally, a 50-day deadline will provide 
ample time for interested parties to compile information and prepare 
responses to the notice of institution.
Section 207.61(b): Content of Responses to Notice of Institution
    Section 207.61(b) addresses the content of the responses to the 
notice of institution. It combines aspects of the proposed versions of 
section 207.61(b) and section 207.61(c), and has been revised 
significantly from the NOPR. Section 207.61(b) describes the content of 
the response to the notice of institution in general terms. A sample 
notice of institution is attached at Annex A to this notice. It was 
also revised significantly from the version proposed in the NOPR. The 
discussion below explains the changes in the notice and the regulation.
    The proposed notice of institution published in the NOPR drew 
widely divergent reactions from commenters. Some commenters criticized 
the Commission for seeking too much data upon initiation. Schagrin and 
Stewart contended that the Commission's proposal placed undue burdens 
on interested parties and maintained that the Commission should not 
seek empirical data (with the possible exception of shipment data) in 
the notice of institution that it would ultimately seek in 
questionnaires in full reviews. JMC criticized the Commission's 
proposal as excessively burdensome for foreign producers, which it 
contended should be required only to produce data on total shipments.
    On the other hand, several commenters requested that the Commission 
seek even more information in the notice of institution than proposed 
in the NOPR. Canada requested that all interested parties be required 
to submit purchaser lists. ECS requested that domestic producers submit 
five years of data concerning their capital and research and 
development expenses. Eurofer requested that domestic producers be 
asked about the sourcing for their inputs. Micron requested that 
domestic producers be asked whether any improvements in their condition 
were related to the order or agreement under review. Several commenters 
representing domestic interests requested that the Commission request 
foreign producers to provide all types of data, including financial 
information, it was seeking from domestic producers. Quebec proposed 
addressing additional questions to domestic producers concerning market 
share and captive consumption and suggested that interested parties be 
required, rather than merely invited, to assert arguments concerning 
the domestic like product in their responses to the notice of 
institution.
    Commenters also disagreed on the utility of the Commission's 
proposal that interested parties be asked to submit projections of 
empirical data for the current calendar year. Four commenters supported 
this proposal. Six opposed it and suggested that the Commission instead 
seek interim period data, as it currently does in questionnaires in 
original antidumping and countervailing duty investigations. Three 
commenters suggested that, if the Commission should decide to seek 
projections, the data should be provided in a different format than 
proposed in the NOPR.
    After review of the comments and hearing testimony, the Commission 
has decided to make several major changes to the notice of institution. 
First, it has significantly reduced the amount of empirical data 
requested in the notice. Second, it has revised the question requesting 
a statement on the likely effects of revocation and termination to 
request interested parties to address the factors specified in section 
752(a) of the Act. Third, it has edited or eliminated several narrative 
questions. Fourth, it has changed the format of the response to the 
notice of institution so that it will be a single document filed with 
the Secretary, instead of separate documents filed with the Secretary 
and the Office of Investigations.
    The Commission has minimized the amount of empirical data requested 
in the notice of institution to reduce both the burdens imposed on 
interested parties at the outset of a review and the likelihood that 
interested parties will need to respond to duplicative information 
requests should there be a full review. In terms of empirical data, 
domestic producers will be requested to submit their production 
quantity and the quantity and value of U.S. commercial shipments for 
the preceding calendar year. Importers will be requested to submit the 
quantity and value of their U.S. imports and their U.S. commercial 
shipments of the subject imports for the preceding calendar year. 
Foreign producers of subject merchandise will be requested to submit 
their production quantity and the quantity and value of U.S. exports 
for the preceding calendar year.
    The Commission recognizes that it is requesting submission of 
considerably less empirical data in response to the notice of 
institution than it proposed in the NOPR. As authorized by the Act, the 
Commission will reach an expedited determination ``without further 
investigation,'' and will not generate additional factual information 
if it decides to conduct an expedited review. Instead, as contemplated 
by section

[[Page 30602]]

751(c)(3)(B) of the Act, the Commission will rely on the facts 
available, in accordance with section 776 of the Act, in making its 
determination. The Commission's use of facts available, which is 
described below in detail in the discussion of section 207.62(e), may 
include reliance on adverse inferences against interested parties that 
do not cooperate with information requests, as authorized by section 
776(b) of the Act.
    To facilitate the Commission's ability to use facts available and 
take adverse inferences in expedited reviews, the Commission has 
revised the question requesting a statement of the likely effects of 
revocation or termination of the order or agreement under review. The 
question now explicitly requests that interested parties address the 
factors the Commission must examine under section 752(a) of the Act 
when making a determination in a five-year review.
    Additionally, the Commission has revised or eliminated several 
other narrative questions in the notice of institution. A new 
instruction requests unions or worker groups to identify the firms at 
which the workers they represent are employed. The wording on the 
question requesting identification of significant changes in supply and 
demand has been revised. The questions regarding cumulation and the 
submission of ``other information or data'' have been eliminated.
    The Commission has retained the question giving interested parties 
the option of stating whether they agree with the definitions of 
domestic like product and domestic industry that the Commission reached 
in its original determination(s). Several commenters representing 
domestic interests argued that the Commission should reconsider its 
original domestic like product determination only in exceptional 
circumstances; Stewart requested that the regulations contain an 
express ``presumption'' that the domestic like product in a five-year 
review will be the same as in the original investigation. On the other 
hand, several commenters representing respondent interests advocated 
that the Commission retain the discretion to consider domestic like 
product issues in five-year reviews; Canada requested promulgation of a 
regulation to this effect.
    In appropriate circumstances, the Commission may revisit its 
original domestic like product and domestic industry determinations in 
five-year reviews. For example, the Commission may revisit its like 
product determination when there have been significant changes in the 
products at issue since the original investigation or when domestic 
like product definitions differed for individual orders within a group 
concerning similar products. Accordingly, interested parties will have 
the opportunity to address domestic like product and domestic industry 
issues in their responses to the notice of institution. As explained 
further below in the discussion of section 207.62, the existence of 
significant domestic like product issues is a factor that the 
Commission may take into account in determining whether to conduct a 
full review. The Commission does not believe a regulation on this issue 
is necessary, however.
    In the regulations, the major drafting change has been the 
consolidation of proposed section 207.61(b) and section 207.61(c) into 
a single section 207.61(b). In the interest of transparency and 
convenience, the entire response to the notice of institution will be 
filed with the Secretary and will be subject to the requirements of 
sections 201.6, 201.8, and 207.3. (One commenter, Stewart, criticized 
the bifurcated filing process proposed in the NOPR on the grounds it 
would likely result in significant nonconfidential information being 
submitted to the Office of Investigations and therefore unavailable for 
public inspection.) As with the proposed regulations, the final version 
of section 207.61(b) does not specify each information request made in 
the notice of institution. Because the regulation is general in nature, 
the Commission will not elaborate in the regulation on the obligation 
of interested parties to respond to particular requests, as advocated 
by Pistachio Producers. As the Commission stated in the NOPR preamble, 
interested parties will only be required to provide information in 
their possession.
Section 207.61(c): When Requested Information Cannot Be Supplied
    Section 207.61(c) addresses situations in which an interested party 
cannot furnish the information requested in the notice of institution 
in the form or manner requested. The section has been revised so that 
it conforms more closely to section 782(c)(1) of the Act than did the 
proposed provision.
Section 207.61(d): Submissions by Persons other than Interested Parties
    Section 207.61(d) authorizes persons who are not interested parties 
to submit to the Commission information relevant to a five-year review. 
It is unchanged from proposed section 207.61(e) in the NOPR, except for 
the due date of the submission. This submission is now due 50 days from 
publication of the notice of institution, the same date on which 
interested party responses to the notice of institution must be 
submitted.
    The Commission will consider any information submitted pursuant to 
section 207.61(d) in making a determination in a full or expedited 
review. The Commission will also consider this information in making 
rulings on aggregate interested party adequacy. It will not use such 
material, however, to serve as a substitute for individual interested 
party responses, as suggested by H&H, Hogan, and Quebec.

Section 207.62

    Section 207.62 is a new provision addressing Commission rulings on 
adequacy of interested party responses. It also describes procedures in 
expedited reviews. Its title has been revised to describe its purpose 
more accurately.
How the Commission Will Determine Whether to Expedite Reviews
    Many comments addressed the discussion in the NOPR preamble 
concerning how interested party responses will be reviewed for adequacy 
and what standards the Commission will use to determine whether to 
conduct a full review or an expedited review. This section will discuss 
five issues that were the subject of comment: (1) How the Commission 
will evaluate individual interested party responses for adequacy; (2) 
which groups of interested parties the Commission will examine on an 
aggregate basis for adequacy; (3) what standards the Commission will 
use to determine whether interested party responses are adequate on an 
aggregate basis; (4) the circumstances in which the Commission may 
exercise its discretion to conduct a full review even when interested 
party responses are inadequate; and (5) the consequences of inadequate 
interested party responses.
    Evaluation of Individual Interested Party Responses. Some 
commenters addressed how the Commission should evaluate the adequacy of 
individual interested party responses. Fuji and JISEA asserted that the 
Commission should require a ``rigorous completion standard.'' By 
contrast, H&H, Schagrin, and Stewart argued against any practice where 
the Commission would consider an individual response per se inadequate 
if it were incomplete in any respect.
    The Commission initially intends to address the evaluation of 
individual interested party responses on a case-by-case basis, rather 
than providing specific guidance at this time. As five-year reviews 
proceed and the Commission gains experience in resolving these issues, 
it may be in a

[[Page 30603]]

better position to address these issues categorically.
    The preamble to the NOPR stated that the Commission would review 
each individual interested party response to the notice of institution 
for completeness immediately upon its receipt, would attempt to notify 
each interested party of any deficiencies in its response to the extent 
practicable, and would attempt to provide each interested party with 
approximately five to ten days in which to remedy and explain the 
deficiencies. The Commission has not changed its intentions in this 
regard. Nevertheless, it declines to adopt the suggestion of Eurofer, 
H&H, and Thailand that it codify in the regulations its procedures for 
notification. The Commission does not believe that it is necessary for 
the regulations to describe these procedures with the degree of 
specificity desired by these commenters.
    Which Groups Will Be Evaluated on an Aggregate Basis. In the NOPR 
preamble, the Commission proposed to evaluate on an aggregate basis the 
adequacy of responses from two distinct groups of interested parties: 
(1) Interested parties described in sections 771(9)(C), (D), (E), (F), 
and (G) of the Act (``domestic interested parties,'' consisting of, 
inter alia, U.S. producers of the domestic like product and labor 
unions or groups of workers which are representative of an industry 
producing the domestic like product); and (2) interested parties 
described in sections 771(9)(A) and (B) of the Act (``respondent 
interested parties,'' consisting of, inter alia, U.S. importers and 
foreign exporters or producers of subject merchandise and subject 
country governments).
    Some commenters advocated that the Commission subdivide these two 
groups. JMC asserted that the Commission should divide the domestic 
interested party group into two subgroups--one encompassing producers 
and one encompassing worker groups--and deem the domestic interested 
party response inadequate unless both subgroups submitted adequate 
responses. Similarly, Cement Committee, Collier, Micron, and Stewart 
proposed that the Commission divide the respondent interested party 
group into two subgroups--one encompassing U.S. importers and one 
encompassing foreign producers of subject merchandise--and deem the 
respondent interested party response inadequate unless both subgroups 
submitted adequate responses.
    The Commission has declined to adopt either of these proposals. The 
Commission does not believe it is appropriate to analyze the adequacy 
of responses this narrowly. Consequently, the Commission's examination 
of aggregate adequacy will focus on domestic interested parties and 
respondent interested parties, rather than on several discrete 
subgroups.
    Standards Used for Determining Adequacy of Aggregated Responses. 
The comments addressing the standards that the Commission should use in 
determining the adequacy of the aggregated responses focused on three 
areas. First, several commenters asserted that the Commission should 
adopt considerably more lenient standards for determining aggregate 
adequacy than proposed in the NOPR. Second, commenters disputed the 
extent to which standards used by Commerce pursuant to sections 
702(c)(4) and 732(c)(4) of the Act to determine whether an antidumping 
or countervailing duty petition is filed by or on behalf of a domestic 
industry are applicable to Commission rulings on adequacy in five-year 
reviews. Third, commenters addressed how the Commission should treat 
related parties in deciding whether the domestic interested party 
response was adequate.
    Some commenters proposed that the Commission adopt very low 
adequacy thresholds. At the February 26 hearing, one representative of 
domestic interests stated that the Commission should conduct a full 
review as long as any domestic industry participant desired such a 
review. Similarly, one respondent representative stated that a full 
review should be conducted as long as a single committed respondent 
responds to the notice of institution.
    The Commission has decided not to adopt a ``single response'' 
adequacy standard. When interested parties do not show a sufficient 
willingness to participate in a review and to submit requested 
information, conducting a full review may not be an efficient exercise 
of the resources of either the Commission or the parties. That a single 
domestic interested party or respondent interested party has filed an 
adequate response to the notice of institution is not per se sufficient 
indication that either pertinent group of interested parties as a whole 
is interested in a full review.
    The Commission has decided not to adopt the numerical guidelines 
proposed in the NOPR. The Commission proposed these guidelines in the 
interest of providing guidance to interested parties concerning when 
response rates would be considered sufficiently high or low to provide 
a strong indication of the adequacy or inadequacy of aggregate 
interested party responses. Upon review of the comments and hearing 
testimony, the Commission has concluded that any benefits that would 
result from the articulation of numerical guidelines for adequacy or 
inadequacy are offset by the potential that parties appearing before 
the Commission would: (1) devote extensive effort to arguing that 
interested parties satisfied or failed to satisfy the numerical 
guidelines; or (2) confuse any numerical guidelines with a 
representation requirement, as some commenters did.
    The Commission did not intend in the NOPR to equate adequacy with 
industry representation requirements. It agrees with several 
commenters' statements that the representation requirements in sections 
702(c) and 732(c) of the Act do not apply to five-year reviews. 
Consequently, the Commission has not adopted the suggestions of Fuji/
JISEA or Schagrin that it should consider domestic industry statements 
of ``support'' for continuation of an order in determining whether the 
domestic interested party response is adequate.
    The Commission will evaluate the adequacy of interested party 
responses on a case-by-case basis. The Commission will take into 
account several considerations in evaluating the adequacy of interested 
party responses. Because both the considerations examined and the 
weight they are accorded may vary from review to review, the Commission 
does not believe that the adequacy standards can be articulated in the 
form of a regulation, as requested by Pistachio Producers.
    In evaluating the adequacy of aggregate interested party response, 
the Commission will examine several considerations, including:
     The level of interested parties' responses. This 
encompasses an examination of the responding parties' share of domestic 
production (for domestic interested parties) or of subject imports or 
foreign production or exports to the United States of the subject 
merchandise (for respondent interested parties) for the most recent 
calendar year. While the Commission will generally use quantity-based 
production or import data in evaluating adequacy, it may use value data 
when such data provide the sole aggregate measure of production or 
sales for the pertinent domestic like product(s). (This may occur, for 
example, when a domestic like product includes both finished articles 
and parts or components.) As stated above, the Commission has not 
provided quantitative measures of what will likely constitute an 
``adequate'' or ``inadequate'' aggregate response. Adequate responses 
by unions or

[[Page 30604]]

worker groups that are interested parties pursuant to section 771(9)(D) 
of the Act will be counted as being equal to the production of the 
domestic like product of the firms at which the workers in the group or 
union are employed.
     The structure of the industries in question. As stated in 
the NOPR, a response rate that may seem to be inadequate for a highly 
concentrated industry may be adequate for a highly fragmented industry.
     The prevalence of related parties. Several commenters 
representing domestic interests requested that the Commission per se 
disregard nonresponses of domestic producers that are ``related 
parties'' under section 771(4)(B) of the Act in evaluating whether 
domestic interested party responses are adequate. By contrast, several 
commenters representing respondent interests requested that the 
Commission disregard nonresponses of related party domestic producers 
only when circumstances would support the exclusion of those producers 
from the domestic industry under the ``appropriate circumstances'' 
standard that the Commission applies in original antidumping and 
countervailing duty investigations.
    The Commission has determined not to adopt either of these 
proposals for purposes of making adequacy rulings. Instead, the 
Commission will evaluate the significance of nonresponses of related 
parties on a case-by-case basis. It believes that the per se rule urged 
by the commenters representing domestic interests is too inflexible and 
is inconsistent with Commission practice. While the standard urged by 
the respondent commenters is ostensibly consistent with Commission 
practice, and is a standard the Commission intends to apply in making 
final determinations in five-year reviews, it is not a practical 
standard to use in making adequacy rulings. When the Commission makes 
such a ruling, it will frequently have insufficient information in the 
record to make a conclusion concerning whether ``appropriate 
circumstances'' exist to exclude a related party from the domestic 
industry.
     The ability of particular foreign producers to export to 
the United States. JMC and Schagrin questioned the inclusion of this 
criterion. The Commission believes that it can be relevant in certain 
circumstances, such as when particular foreign producers do not 
manufacture a version of the subject merchandise that can be exported 
to the United States.
     The extent to which subject imports appear to have been 
excluded from the U.S. market by the order or suspension agreement 
under review.
    Discretionary Factors Used in Determining Whether to Conduct a Full 
Review. Section 751(c)(3)(B) of the Act provides that the Commission 
``may issue'' an expedited determination when interested party 
responses are inadequate. Hence, the Commission has the discretion to 
conduct full reviews when the domestic and/or respondent interested 
party responses are inadequate. In this regard, the Commission has 
adopted Stewart's suggestion of inserting in the first sentence of 
section 207.62(c) the language ``or otherwise determines that a full 
review should proceed,'' to underscore the Commission's discretion to 
conduct full reviews. The Commission has not adopted the suggestion of 
JMC to circumscribe its exercise of discretion so that it retains 
discretion to conduct a full review only when respondent interested 
party responses are inadequate.
    Stewart requested that the Commission indicate in this notice 
circumstances in which it may exercise its discretion to conduct a full 
review notwithstanding inadequate interested party responses. The 
Commission has identified two such circumstances:
     Mixed responses in grouped reviews. In the NOPR, the 
Commission invited parties to comment on the appropriateness of making 
expedited determinations in grouped reviews involving subject 
merchandise from several countries, where domestic interested party 
responses are adequate and responses from the respondent interested 
parties are adequate with respect to some of the countries in the group 
but inadequate with respect to others. Canada, Schagrin, and Thailand 
commented that in such circumstances it is appropriate for the 
Commission to render expedited determinations with respect to the 
subject countries for which there has been inadequate respondent 
interested party response. These commenters did not agree among 
themselves, however, on the implications of such a decision on the use 
of facts available regarding cumulation in the full review(s). Stewart, 
by contrast, stated that the Commission should decline to reach 
expedited determinations in such situations from the standpoint of 
administrative efficiency. Collier stated it would prefer for the 
Commission not to render expedited determinations in grouped reviews if 
the alternative was adoption of a practice where cumulation in the full 
review(s) is limited or precluded.
    The Commission shares Stewart's concern that making multiple, non-
simultaneous determinations concerning a single domestic like product 
is likely to be administratively inefficient. For this reason, in 
grouped reviews where aggregate domestic interested party responses are 
not inadequate and responses from the respondent interested parties are 
adequate with respect to some of the countries in the group but 
inadequate with respect to others, the Commission will normally conduct 
full reviews for all countries in the group.
     The existence of significant domestic like product issues. 
Each interested party has the option of asserting arguments concerning 
the definition of the domestic like product in its response to the 
notice of institution. Should the Commission determine that there is a 
need in the five-year review to re-examine the domestic like product 
definition made in the original determination, it may determine to 
conduct a full review even in circumstances when domestic and/or 
respondent interested party responses are inadequate. This will enable 
the Commission to obtain data in a full review concerning the potential 
domestic like products.
    Several commenters addressed the question of the implications of a 
tie vote on whether to expedite a review; one commenter, Stewart, 
requested that the Commission promulgate a regulation concerning tie 
votes. The Commission agrees with the commenters that the tie vote 
provision in section 771(11) of the Act is not applicable to a 
Commission decision on whether to expedite a review. Consequently, a 
decision to expedite a review will require a majority vote of the 
Commission. The Commission has not, however, promulgated a regulation 
to that effect in the current rulemaking, which focuses solely on 
procedural issues. The Commission has further declined to promulgate 
the regulation requested by Stewart stating that the Commission will 
conduct a full review based on the vote of a single Commissioner. The 
Commission does not believe that a vote of a single Commissioner should 
preclude the Commission from conducting an expedited review when a 
Commission majority has concluded that conducting an expedited review 
is appropriate.
    Consequences of Inadequate Interested Party Responses. Several 
commenters requested that the Commission state with particularity the 
consequences of inadequate interested party responses. Pistachio 
Producers requested the promulgation of one

[[Page 30605]]

regulation concerning adverse inferences and another concerning 
Presidential embargo situations. Several commenters proposed that the 
Commission should make a ``negative'' determination (i.e., that 
revocation of an order, or termination of a suspension agreement, under 
review would not be likely to lead to continuation or recurrence of 
material injury) in any review expedited because of inadequate domestic 
interested party response. Micron and Schagrin proposed that the 
Commission should make an ``affirmative'' determination (i.e., that 
revocation of an order, or termination of a suspension agreement, under 
review would be likely to lead to continuation or recurrence of 
material injury) whenever it found that the respondent interested party 
response was inadequate.
    The Commission has decided not to adopt any of these proposals. The 
statute authorizes an ``automatic'' determination in only one instance. 
Section 751(c)(3)(A) of the Act directs Commerce to issue a final 
determination terminating a review when there is no domestic interested 
party response to its notice of initiation. The Commission believes 
issuance of the type of per se rules advocated by some commenters that 
inadequate domestic (or respondent) interested party response will 
automatically lead to issuance of a negative (or affirmative) 
determination would be inconsistent with section 752(a) of the Act.
The Final Regulation
    Section 207.62(a): Basis for Rulings on Adequacy. Section 207.62(a) 
is a new provision intended to make explicit a concept several 
commenters found implicit in the proposed regulations and numerous 
others endorsed--that the Commission will generally decide the 
questions of adequacy and whether to conduct an expedited review on an 
individual order, rather than a groupwide, basis. Section 207.62(a) 
further indicates that when a particular order encompasses multiple 
domestic like products on which the Commission originally made separate 
affirmative determinations, the Commission will make a separate ruling 
on the adequacy of the interested party responses and whether to 
conduct an expedited review for each domestic like product. This 
concept was endorsed by Collier, Fuji, and JISEA.
    Section 207.62(b): Comments on Adequacy. Section 207.62(b), 
concerning comments to the Commission regarding adequacy, is based on 
proposed section 207.62(a). Section 207.62(b) contains several changes 
from proposed section 207.62(a).
    First, the Commission has increased the page limit for the comments 
from five to 15 pages. Several commenters complained that the five-page 
limit proposed in the NOPR was insufficient. Canada and Quebec 
requested that the page limit be increased to 15 pages; Fuji and JISEA 
requested that the page limit be increased to 20 pages; Cement 
Committee, Collier, and Stewart requested that the page limit be 
increased to five pages per subject country; Thailand requested that 
the page limit be removed. After consideration of the comments, the 
Commission has decided that some increase in the page limit is 
warranted. Nevertheless, the Commission does not agree that the limit 
should either be eliminated or increased to the extent requested by 
some of the commenters. Comments under section 207.62(b) are designed 
to be a succinct expression of views on a single issue. They are not 
intended to be briefs on the merits. Consequently, the Commission 
believes that a 15-page limit is appropriate.
    An additional modification to section 207.62(b)(2) makes clear that 
in a grouped review, only one set of comments may be filed per party. 
This is consistent with current Commission practice.
    There are also several changes in terminology throughout section 
207.62(b). The terms ``expedited review'' and ``party to the five-year 
review'' are used to conform the language in section 207.62(b) to that 
in other provisions in Subpart F.
    Section 207.62(c): Notice of Scheduling for Full Reviews. Section 
207.62(c) is based on proposed section 207.62(b). It has been retitled 
more accurately to reflect its subject matter--the notice of scheduling 
the Commission will issue if it determines to conduct a full review. 
The only change to the text of proposed section 207.62(b) is the 
addition of a clause to make clear that the Commission may decide to 
conduct a full review even when interested party responses to the 
notice of institution are inadequate.
    Annex B to this notice contains a sample schedule for a full five-
year review. This sample schedule contains several changes from the one 
proposed in the NOPR. Specifically, the interval between the issuance 
of draft questionnaires and the due date for party comments on 
questionnaires has been reduced; the time allowed for questionnaire 
responses has been decreased; and the prehearing report will be issued 
earlier than in the proposed schedule. The interval between the 
issuance of the prehearing report and the due date for prehearing 
briefs has been increased, as has the interval between the hearing and 
the due date for posthearing briefs. These changes are responsive to 
the comments of several commenters that the Commission's proposed 
schedule allowed excessive time for preparation and comment on 
questionnaires and inadequate time for preparation of briefs and review 
of the prehearing report.
    The sample schedule concentrates investigative activities within a 
180-day period, which reflects the Commission's need to deploy its 
staffing resources in the most effective manner. Although the sample 
schedule indicates activities in a full review will occur between day 
180 and day 360, these dates may vary in individual reviews, as the 
Commission intends to stagger schedules in simultaneously-initiated 
reviews in the interests of administrative efficiency. All reviews 
within a single group will have the same schedule, however. Further, 
the record closing date for a review will always occur after issuance 
of Commerce's determination.
    Section 207.62(d): Procedures for Expedited Reviews. Section 
207.62(d) is based on proposed section 207.62(c). It has been retitled 
more accurately to reflect its subject matter--the procedures for 
expedited reviews. Its text has also been changed in several respects. 
Some terminology has been modified to conform this provision with 
others in Subpart F. The page limit for comments has been eliminated, 
as requested in the comments of Stewart and Thailand. The Commission 
has agreed to eliminate the page limit because the comments will be the 
only substantive filing that will be permitted in expedited reviews. 
The Commission has, however, retained the prohibition against the 
submission of new factual information in such comments. The Commission 
has not imposed the page limit requested by Collier on nonparty 
comments submitted pursuant to section 207.62(d)(3).
    The Commission has declined to make several changes requested by 
commenters concerning the conduct of expedited reviews. Stewart and 
Schagrin proposed that the Commission give interested parties that 
submitted adequate responses the opportunity to submit additional 
factual information during the course of an expedited review. They 
argued that such a procedure would allow the Commission to reduce the 
amount of information requested in the notice of institution and would 
reduce the burdens on the parties and the Commission at the outset of a 
review. As discussed above,

[[Page 30606]]

the Commission has decided to reduce significantly the amount of 
information requested in the notice of institution. The Commission has 
concluded that additional factual information is not essential to its 
analysis in expedited reviews. Therefore, the Commission believes it 
would be inappropriate and inefficient to undertake further 
investigative activities in expedited reviews. Instead, the Commission 
intends to exercise its statutory authority to dispose of such cases 
quickly and efficiently on the basis of the facts available (unless it 
concludes that a full review is appropriate on other grounds).
    The Commission also will not permit rebuttal comments or final 
comments on the staff report to be submitted in an expedited review, as 
requested by Stewart. Such submissions are unnecessary in light of the 
limited record and condensed schedule of an expedited review.
    A new section 207.62(d)(4) addresses staff reports in expedited 
reviews. Stewart requested that such a provision be added to the 
regulations. Although the Commission intends to release a staff report 
in expedited reviews, this report will likely follow a different format 
than staff reports in full reviews, in light of the more limited record 
that will be compiled in expedited reviews. The schedule for release of 
the staff report, and for other procedures in an expedited review, is 
indicated in the schedule in Annex B to this Notice.
    Section 207.62(e): Use of Facts Available. Section 207.62(e) is a 
new provision stating that a determination in an expedited review will 
be based on the facts available, in accordance with section 776 of the 
Act. Although this provision was not proposed in the NOPR, it does not 
establish any new requirements. Instead, it codifies the authority 
provided in section 751(c)(3)(B) of the Act.
    The facts available may include information submitted on the record 
in the five-year reviews by parties and non-parties, other information 
the Commission may compile before the record closes, material from the 
record of the original investigation and subsequent Commission reviews, 
if any, and available information from Commerce proceedings. (As stated 
in the NOPR preamble, the material from the record of the original 
investigation that the Commission will release to the parties will 
include the Commission opinion(s) in the original investigation and 
staff reports and non-privileged memoranda, where available.) The facts 
available may also include reliance on adverse inferences against 
interested parties that do not cooperate with information requests, as 
authorized by section 776(b) of the Act.
    Delegation. In the NOPR, the Commission proposed a regulation 
(section 207.62(d)), which would have permitted the Commission to 
delegate to staff the responsibility for making adequacy rulings. 
Stewart and Schagrin requested that the provision not be promulgated, 
on the ground that staff should not be given the authority to make 
decisions having a significant impact on the parties' rights. Quebec 
supported the proposed provision.
    The Commission has determined not to promulgate a regulation on 
delegation. The Commission has concluded that the regulation is 
unnecessary because, should it decide to delegate the responsibility 
for making adequacy rulings, promulgation of a regulation to effect 
such a delegation is not required.

Section 207.63

    Section 207.63 is a new provision addressing the circulation of 
draft questionnaires in full reviews.
Section 207.63(a): Circulation of Draft Questionnaires
    Section 207.63(a) concerns the circulation of draft questionnaires 
for comment. Its text has been simplified by use of the term ``full 
review.''
Section 207.63(b): Comments on Draft Questionnaires
    Section 207.63(b), which concerns the written comments that parties 
may file regarding the draft questionnaires, has been modified 
significantly from the NOPR. As proposed, section 207.63(b) required 
parties to present all requests for the collection of new data in their 
comments and stated that the Commission would disregard subsequent 
arguments premised on the collection of new data if such requests were 
not included in the comments.
    Nine commenters, representing both domestic and respondent 
interests, objected to section 207.63(b) insofar as it required that 
all data requests be made in the questionnaire comments. These 
commenters contended that parties will not always be able to ascertain 
what data the Commission should collect until they review the responses 
to the questionnaires. Several of these commenters expressed divergent 
views on the circumstances in which the Commission should entertain 
subsequent data requests. Thailand advocated that the Commission issue 
supplemental questionnaires as a matter of course. Eurofer and Stewart, 
however, opposed such a procedure on the grounds that routine issuance 
of supplemental questionnaires could encourage parties not to respond 
to the initial questionnaires. Eurofer suggested that supplemental 
questionnaires not be authorized in the absence of a compelling reason.
    After review of the comments, the Commission has concluded that 
section 207.63(b) should be modified. Accordingly, the second sentence 
of the section now provides that parties ``should,'' rather than 
``must,'' present all data collection requests in their questionnaire 
comments. The Commission emphasizes that it ordinarily anticipates that 
parties will make all data collection requests in the questionnaire 
comments and that it will rarely entertain subsequent requests for data 
collection. Consequently, the final sentence of section 207.63(c) has 
been revised to provide that the Commission will not consider 
subsequent requests for the collection of new information unless there 
is 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.
    Verification of Questionnaire Responses. Several comments addressed 
verification of questionnaire responses in five-year reviews. Canada, 
Fuji, and JISEA requested that the Commission verify domestic producer 
data it receives. Dewey/Skadden requested promulgation of a regulation 
stating that the Commission will verify importer data it receives; Fuji 
and JISEA also supported verification of such data. Stewart requested 
promulgation of a regulation stating that the Commission will verify 
purchaser data it receives. Dewey/Skadden, Schagrin, and Stewart 
requested promulgation of a regulation stating that the Commission will 
verify foreign producer data it receives; Collier and Micron also 
supported such verification.
    The Commission will consider verification of domestic interested 
party and respondent interested party information in appropriate 
circumstances and as staffing resources permit. The Commission will 
also consider using Commerce verification reports as appropriate. The 
regulations do not currently address verification in original 
investigations, and the Commission does not believe it is necessary to 
promulgate a regulation regarding verification in five-year reviews.

Section 207.64

    Section 207.64 is a new provision concerning staff reports in full 
reviews.

[[Page 30607]]

The section is identical to that proposed in the NOPR.

Section 207.65

    Section 207.65 is a new provision concerning prehearing briefs. The 
section, which is adapted from current section 207.23, is identical to 
that proposed in the NOPR.

Section 207.66

    Section 207.66 is a new provision concerning hearings in five-year 
reviews. The text of section 207.66(a) has been simplified by use of 
the term ``full review.'' Section 207.66(b) has not been changed from 
the NOPR.

Section 207.67

    Section 207.67 is a new provision concerning posthearing briefs and 
statements in five-year reviews. This section is identical to that 
proposed in the NOPR.
    Cement Committee requested that this section be modified by 
inserting a provision stating that new factual information in such 
posthearing briefs and statements will be disregarded unless it is 
responsive to a question or request made at the Commission hearing. 
Collier requested that section 207.67(b) be modified by placing a five-
page limit on statements by nonparties.
    As stated in the NOPR preamble, the provisions of section 207.67 
are intended to track sections 207.25 and 207.26, which govern 
posthearing briefs and statements in original investigations. Sections 
207.25 and 207.26 do not contain any restrictions on the submission of 
new factual information of the type requested by Cement Committee. Nor 
does section 207.26 contain a page limit on the brief written 
statements that nonparties may submit. To maintain consistency between 
the procedures for original investigations and the procedures for five-
year reviews, the Commission has determined not to insert the 
additional restrictions in section 207.67 requested by Cement Committee 
and Collier.

Section 207.68

    Section 207.68 is a new provision concerning final comments on 
information. This section, which follows current section 207.30, is 
identical to that proposed in the NOPR.

Section 207.69

    Section 207.69 is a new provision concerning publication and 
service of Commission determinations in five-year reviews. The section, 
which follows current section 207.29, is identical to that proposed in 
the NOPR.

List of Subjects

19 CFR Part 201

    Administrative practice and procedure, Investigations, Imports.

19 CFR Part 207

    Administrative practice and procedure, Antidumping, Countervailing 
Duties, Investigations.

    For the reasons stated in the preamble, 19 CFR parts 201 and 207 
are amended as set forth below:

PART 201--[AMENDED]

    1. The authority citation for part 201 continues to read as 
follows:

    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.

    2. New paragraphs (b)(4) and (b)(5) are added to Sec. 201.11 to 
read as follows:


Sec. 201.11  Appearance in an investigation as a party.

* * * * *
    (b) Time for filing.
* * * * *
    (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.
* * * * *

PART 207--[AMENDED]

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

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

    4. Paragraph (b) of Sec. 207.3 is revised to read as follows:


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

* * * * *
    (b) Service. Any party submitting a document for inclusion in the 
record of the investigation shall, in addition to complying with 
Sec. 201.8 of this chapter, serve a copy of each such document on all 
other parties to the investigation in the manner prescribed in 
Sec. 201.16 of this chapter. If a document is filed before the 
Secretary's issuance of the service list provided for in Sec. 201.11 of 
this chapter or the administrative protective order list provided for 
in Sec. 207.7, the document need not be accompanied by a certificate of 
service, but the document shall be served on all appropriate parties 
within two (2) days of the issuance of the service list or the 
administrative protective order list and a certificate of service shall 
then be filed. Notwithstanding Sec. 201.16 of this chapter, petitions, 
briefs, and testimony filed by parties pursuant to Secs. 207.10, 
207.15, 207.23, 207.24, 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.
* * * * *
    5. Paragraph (a) of Sec. 207.45 is revised to read as follows:


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.
* * * * *
    6. Paragraph (g) of Sec. 207.46 is revised to read as follows:


Sec. 207.46  Investigations concerning certain countervailing duty 
orders.

* * * * *
    (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

[[Page 30608]]

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.
    7. A new Subpart F is added to read as follows:

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.


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 Secs. 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.
    (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 per group. Comments shall not exceed fifteen 
(15) pages of textual material, double-spaced and single-sided, on 
stationery measuring 8\1/2\  x  11 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 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.

[[Page 30609]]

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. 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.


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\ 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.
    (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.


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\ x 11 inches. A 
comment may address the accuracy, reliability, or probative value of 
such information by reference to information elsewhere in the record, 
in which case the comment shall identify where in the record such 
information is found. Comments containing new factual information shall 
be disregarded. The date on which such comments must be filed will be 
specified by the Commission when it specifies the time that information 
will be disclosed pursuant to paragraph (a) of this section. The record 
shall close on the date such comments are due, except with respect to 
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.

    By order of the Commission.

    Issued: June 2, 1998.
Donna R. Koehnke,
Secretary.

Annex A: Sample Notice of Institution of Five-Year Review

Definitions

    (1) Subject Merchandise is the class or kind of merchandise that 
is within the scope of the five-year review, as defined by the 
Department of Commerce.
    (2) The Subject Country in this review is [INSERT COUNTRY].
    (3) The Domestic Like Product is the domestically produced 
product or products which are like, or in the absence of like, most 
similar in characteristics or uses with, the Subject Merchandise. In 
its original determination, the Commission defined the Domestic Like 
Product as [INSERT DEFINITION]. (Add the following if applicable) 
One Commissioner/certain Commissioners defined the Domestic Like 
Product differently.
    (4) The Domestic Industry is the producers as a whole of the 
Domestic Like Product, or those producers whose collective output of 
the Domestic Like Product constitutes a major proportion of the 
total domestic production of the product. In its original 
determination, the Commission defined the Domestic Industry as 
producers of [INSERT DEFINITION]. (Add the following if applicable) 
One Commissioner/certain Commissioners defined the Domestic Industry 
differently.
    (5) The Order Date is the date that the countervailing duty 
order/antidumping duty order/suspension agreement under review 
became effective. In this review, the Order Date is [INSERT DATE].
    (6) An Importer is any person or firm engaged, either directly 
or through a parent company or subsidiary, in importing the Subject 
Merchandise into the United States from a foreign manufacturer or 
through its selling agent.

Certification

    In accordance with Commission rule 207.3, any person submitting 
information to the Commission in connection with this review must 
certify that the information is accurate and complete to the best of 
the submitter's knowledge. In making the certification, the 
submitter will be deemed to consent, unless otherwise specified, for 
the Commission, its employees, and contract personnel to use the

[[Page 30610]]

information provided in any other reviews or investigations of the 
same or comparable products which the Commission conducts under 
Title VII of the Act, or in internal audits and investigations 
relating to the programs and operations of the Commission pursuant 
to 5 U.S.C. Appendix 3.

Information To Be Submitted to the Commission

    All responses should be filed with the Secretary and must 
conform with the provisions of sections 201.8 and 207.3 of the 
Commission's rules. If business proprietary treatment is desired for 
portions of a response, submitters must follow the requirements set 
forth in sections 201.6 and 207.7 of the Commission's rules. Also, 
in accordance with sections 201.16(c) and 207.3 of the Commission's 
rules, each document filed by a party to the review must be served 
on all other parties to the review (as identified by either the 
public or BPI service list as appropriate), and a certificate of 
service must accompany the document (if you are not a party to the 
review you do not need to serve your response). Any interested party 
that cannot furnish the information requested should explain, at the 
earliest possible time, why it is unable to do so and indicate 
alternative forms in which it can provide equivalent information. 
(Add the following if more than one country is involved) If you are 
a domestic producer, union/worker group, or trade/business 
association; import/export Subject Merchandise from more than one 
Subject Country; or produce Subject Merchandise in more than one 
Subject Country, you may file a single response. If you do so, 
please ensure that your response to each question includes the 
information requested for each pertinent Subject Country.
    The response should include:
    (1) The name and address of your firm or entity (including World 
Wide Web address if available) and name, telephone number, fax 
number, and E-mail address of the certifying official.
    (2) A statement indicating whether your firm/entity is a U.S. 
producer of the Domestic Like Product, a U.S. union or worker group, 
a U.S. importer of the Subject Merchandise, a foreign producer or 
exporter of the Subject Merchandise, a U.S. or foreign trade or 
business association, or another interested party (including an 
explanation). If you are a union/worker group or trade/business 
association, identify the firms in which your workers are employed 
or which are members of your association.
    (3) A statement indicating whether your firm/entity is willing 
to participate in this review by providing information requested by 
the Commission.
    (4) A statement of the likely effects of the revocation of the 
countervailing duty order/ antidumping duty order/termination of the 
suspension agreement on the Domestic Industry in general and/or your 
firm/entity specifically. In your response, please discuss the 
various factors specified in section 752(a) of the Act (19 U.S.C. 
Sec. 1675a(a)) including the likely volume of subject imports, 
likely price effects of subject imports, and likely impact of 
imports of Subject Merchandise on the Domestic Industry.
    (5) A list of all known and currently operating U.S. producers 
of the Domestic Like Product. Identify any known related parties and 
the nature of the relationship as defined in section 771(4)(B) of 
the Act (19 U.S.C. Sec. 1677(4)(B)).
    (6) A list of all known and currently operating U.S. importers 
of the Subject Merchandise and producers of the Subject Merchandise 
in [INSERT COUNTRY] that currently export or have exported Subject 
Merchandise to the United States or other countries since [INSERT 
YEAR OF PETITION].
    (7) If you are a U.S. producer of the Domestic Like Product, 
provide the following information on your firm's operations on that 
product during calendar year [INSERT PRECEDING YEAR] (report 
quantity data in [INSERT MEASUREMENT UNIT] and value data in 
thousands of dollars). If you are a union/worker group or trade/
business association, provide the information, on an aggregate 
basis, for the firms in which your workers are employed/which are 
members of your association.
    (a) Production (quantity) and, if known, an estimate of the 
percentage of total U.S. production of the Domestic Like Product 
accounted for by your firm's(s') production; and
    (b) the quantity and value of U.S. commercial shipments of the 
Domestic Like Product produced in your U.S. plant(s).
    (8) If you are a U.S. importer or a trade/business association 
of U.S. importers of the Subject Merchandise from [INSERT COUNTRY], 
provide the following information on your firm's(s') operations on 
that product during calendar year [INSERT PRECEDING YEAR] (report 
quantity data in [INSERT MEASUREMENT UNIT] and value data in 
thousands of dollars). If you are a trade/business association, 
provide the information, on an aggregate basis, for the firms which 
are members of your association.
    (a) The quantity and value of U.S. imports and, if known, an 
estimate of the percentage of total U.S. imports of Subject 
Merchandise from [INSERT COUNTRY] accounted for by your firm's(s') 
imports; and
    (b) the quantity and value of U.S. commercial shipments of 
Subject Merchandise imported from [INSERT COUNTRY].
    (9) If you are a producer, an exporter, or a trade/business 
association of producers or exporters of the Subject Merchandise in 
[INSERT COUNTRY], provide the following information on your 
firm's(s') operations on that product during calendar year [INSERT 
PRECEDING YEAR] (report quantity data in [INSERT MEASUREMENT UNIT] 
and value data in thousands of dollars). If you are a trade/business 
association, provide the information, on an aggregate basis, for the 
firms which are members of your association.
    (a) Production (quantity) and, if known, an estimate of the 
percentage of total production of Subject Merchandise in [INSERT 
COUNTRY] accounted for by your firm's(s') production; and
    (b) the quantity and value of your firm's(s') exports to the 
United States of Subject Merchandise and, if known, an estimate of 
the percentage of total exports to the United States of Subject 
Merchandise from [INSERT COUNTRY] accounted for by your firm's(s') 
exports.
    (10) Identify significant changes, if any, in the supply and 
demand conditions or business cycle for the Domestic Like Product 
that have occurred in the United States or in the market for the 
Subject Merchandise in Subject Country since the Order Date, and 
significant changes, if any, that are likely to occur within a 
reasonably foreseeable time. Supply conditions to consider include 
technology; production methods; development efforts; ability to 
increase production (including the shift of production facilities 
used for other products and the use, cost, or availability of major 
inputs into production); and factors related to the ability to shift 
supply among different national markets (including barriers to 
importation in foreign markets or changes in market demand abroad). 
Demand conditions to consider include end uses and applications; the 
existence and availability of substitute products; and the level of 
competition among the Domestic Like Product produced in the United 
States, Subject Merchandise produced in the Subject Country, and 
[INSERT PRODUCT DESCRIPTION] from other countries.
    (11) (OPTIONAL) A statement of whether you agree with the above 
definitions of the Domestic Like Product and Domestic Industry; if 
you disagree with either or both of these definitions, please 
explain why and provide alternative definitions.

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[FR Doc. 98-15156 Filed 6-4-98; 8:45 am]
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