[Federal Register Volume 67, Number 36 (Friday, February 22, 2002)]
[Rules and Regulations]
[Pages 8183-8193]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-4186]


=======================================================================
-----------------------------------------------------------------------

INTERNATIONAL TRADE COMMISSION

19 CFR Part 206


Investigations Relating to Global and Bilateral Safeguard 
Actions, Market Disruption, Trade Diversion, and Review of Relief 
Actions

AGENCY: International Trade Commission.

ACTION: Interim rules with request for comments.

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

SUMMARY: The United States International Trade Commission (Commission) 
is amending its rules of practice and procedure on an interim basis and 
requests comments on the amendments. These amendments are necessary to 
implement provisions of Public Law 106-286 that require the Commission 
to conduct new types of investigations of market disruption or trade 
diversion and reviews of relief actions. The intended effect of the 
amendments is to establish procedures for the new kinds of 
investigations and reviews that closely track the procedures for 
investigations and reviews under certain other existing laws.

DATES: Effective Date: February 22, 2002.
    Comment Date: Comments are due by 5:15 p.m. on April 23, 2002.

ADDRESSES: A signed original and 8 copies of each set of comments 
should be mailed or hand-delivered to Marilyn R. Abbott, Acting 
Secretary, United States International Trade Commission, 500 E Street, 
SW, Room 112, Washington, DC 20436.

FOR FURTHER INFORMATION CONTACT: P. N. Smithey, Esq., Office of the 
General Counsel, United States International Trade Commission, 
telephone 202-205-3086. Hearing-impaired individuals are advised that 
information on this matter can be obtained by contacting the 
Commission's TDD terminal at 202-205-1810. General information 
concerning the Commission may also be obtained by accessing its 
Internet server (http://www.usitc.gov).

SUPPLEMENTARY INFORMATION: The preamble below is designed to assist 
readers in understanding the interim amendments the Commission is 
making to its Rules of Practice and Procedure. The preamble begins with 
a discussion of the background of the rulemaking, then explains why an 
interim rulemaking procedure was adopted, provides an overview and a 
section-by-section analysis of the interim amendments, and ends with a 
regulatory analysis addressing government-wide statutes and issuances 
on rulemaking. The Commission encourages members of the public to 
comment--in addition to any other comments they wish to make on the 
rules amendments--on whether the interim amendments are in language 
that is sufficiently plain for users of the rules to understand.

Background

    Public Law 106-286 [H.R. 4444], 114 Stat. 880, was signed by the 
President on October 10, 2000. Section 103(a) of the law added new 
sections 421 and 422 to the Trade Act of 1974 (19 U.S.C. 2451 and 
2451a) that require the Commission to conduct new kinds of 
investigations and reviews of relief actions.
    New section 421(b) of the Trade Act requires the Commission to 
investigate, in specified circumstances, ``to determine whether 
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.''
    The President may provide relief, under section 421(a), in the form 
of increased duties and/or other import restrictions with respect to 
the product being imported from the People's Republic of China. He will 
grant such relief to the extent and for the period that he considers 
necessary to prevent or remedy the market disruption. Starting six 
months after the relief first takes effect, the President may request a 
report from the Commission, under section 421(n)(1), on the probable 
effect that modification, reduction, or termination of the relief would 
have on the relevant domestic industry. Section 421(n)(3) provides that 
when the President issues relief under section 421(a), the Commission 
must collect such data as is necessary to enable it to respond rapidly 
to a request by the President under section 421(n)(1).
    Within a specified time before the relief is to terminate, section 
421(o) requires the Commission to investigate, at the request of the 
President or in response to a petition on behalf of the industry 
concerned, to determine whether action under section 421 continues to 
be necessary to prevent or remedy market disruption.
    The new section 422(b) of the Trade Act requires the Commission to 
investigate, in appropriate circumstances, to determine whether an 
action of a type described in section 422(c) ``has caused, or threatens 
to cause, a significant diversion of trade into the domestic market of 
the United States.'' Section 422(c) indicates that an ``action'' for 
purposes of section 422(b) is an action--(1) By the People's Republic 
of China to prevent or remedy market disruption in a WTO [World Trade 
Organization] member other than the United States; (2) by a WTO member 
other than the United States to withdraw concessions under the WTO 
Agreement or otherwise to limit imports to prevent or remedy market 
disruption; (3) by a WTO member other than the United States to apply a 
provisional safeguard within the meaning of the product-specific 
safeguard provision of the Protocol of Accession of the People's 
Republic of China to the WTO; or (4) any combination of actions 
described in paragraphs (1) through (3).
    The President determines, pursuant to section 422(h), what action 
to take to prevent or remedy the trade diversion or threat thereof. 
Section 422(j) requires the Commission to review the continued need for 
action taken under section 422(h) if the World Trade Organization (WTO) 
member or members involved notify the Committee on Safeguards of the 
WTO of any modification in the action taken by them against the

[[Page 8184]]

People's Republic of China pursuant to consultation referred to in 
section 422(a). Specifically, the Commission must determine whether a 
significant diversion of trade continues to exist. After receiving the 
Commission's report on that subject, the President will determine 
whether to modify, withdraw, or keep in place the action taken under 
section 421(h).

The Procedure for Adopting the Interim Amendments

    The Commission ordinarily promulgates amendments to the Code of 
Federal Regulations in accordance with the rulemaking procedure in 
section 553 of the Administrative Procedure Act (APA) (5 U.S.C. 553). 
That procedure entails publishing a notice of proposed rulemaking in 
the Federal Register that solicits public comment on the proposed 
amendments, considering the public comments in deciding on the final 
content of the amendments, and publishing the final amendments at least 
30 days prior to their effective date. In this instance, however, the 
Commission is amending its rules in 19 CFR part 206 on an interim 
basis, effective upon publication of this notice in the Federal 
Register.
    The Commission's authority to adopt interim amendments without 
following all steps listed in section 553 of the APA is derived from 
section 335 of the Tariff Act of 1930 (19 U.S.C. 1335) and section 553 
of the APA.
    Section 335 of the Tariff Act authorizes the Commission to adopt 
such reasonable procedures, rules, and regulations as it deems 
necessary to carry out its functions and duties. The Commission has 
determined that the need for interim rules is clear in this instance. 
The new sections 421 and 422 of the Trade Act require the Commission to 
conduct new kinds of investigations and reviews. Rulemaking is 
essential for orderly administration of the new statutory provisions. 
Since the People's Republic of China acceded to the WTO on December 11, 
2001, it is imperative that implementing rules be adopted as quickly as 
possible.
    Section 553(b) of the APA allows an agency to dispense with 
publication of a notice of proposed rulemaking when the following 
circumstances exist: (1) The rules in question are interpretive rules, 
general statements of policy, or rules of agency organization, 
procedure or practice; or (2) the agency for good cause finds that 
notice and public comment on the rules are impracticable, unnecessary, 
or contrary to the public interest, and the agency incorporates that 
finding and the reasons therefor into the rules adopted by the agency.
    Section 553(d)(3) of the APA allows an agency to dispense with the 
publication of notice of final rules at least thirty days prior to 
their effective date if the agency finds that good cause exists for not 
meeting the advance publication requirement and the agency publishes 
that finding along with the rules.
    In this instance, the Commission has determined that the requisite 
circumstances exist for dispensing with the notice, comment, and 
advance publication procedure that ordinarily precedes the adoption of 
Commission rules. For purposes of invoking the section 553(b) exemption 
from publishing a notice of proposed rulemaking that solicits public 
comment, the Commission finds that the interim amendments to part 206 
are ``agency rules of procedure and practice.'' Moreover, the People's 
Republic of China's accession to the WTO on December 11, 2001, a date 
that could not be predicted sufficiently far in advance, makes the 
establishment of rules a matter of urgency. Hence, it clearly would 
have been impracticable for the Commission to comply with the notice of 
proposed rulemaking and public comment procedure.
    For the purpose of invoking the section 553(d)(3) exemption from 
publishing advance notice of the interim amendments to part 206 at 
least thirty days prior to their effective date, the Commission finds 
that the fact that the People's Republic of China acceded to the WTO on 
December 11, 2001 makes such advance publication impossible and 
constitutes good cause for not complying with that requirement.
    The Commission recognizes that interim rule amendments should not 
respond to anything more than the exigencies created by the new 
legislation. Each interim amendment to part 206 accordingly falls into 
one or more of the following categories: (1) A revision of a 
preexisting rule to make it applicable to one or more of the new kinds 
of investigations or reviews of relief actions; (2) clarification of 
the manner in which a preexisting rule is to be applied to one or more 
of the new kinds of investigations or reviews; or (3) a new rule 
covering a matter addressed in the new legislation but not covered by a 
preexisting rule.
    After taking into account all comments received and the experience 
acquired under the interim amendments, the Commission will replace them 
with final amendments promulgated in accordance with the notice, 
comment, and advance publication procedure prescribed in section 553 of 
the APA.

Overview of the Interim Amendments

    Until the publication of this notice, part 206 of the Commission's 
rules consisted of subpart A, which set out general requirements 
applicable to all investigations covered by the part, and subparts B-F, 
each of which established procedures for a particular type of 
investigation.
    Among other things, the Commission is amending subpart A to extend 
the coverage of part 206 to investigations and reviews of relief 
actions under the new section 421 or 422 of the Trade Act.
    Before this notice was published, subpart E of part 206 covered 
only market disruption investigations under section 406(a) of the Trade 
Act of 1974. The new investigations under section 421(b) also will 
address market disruption and will be similar, though not identical, to 
the investigations under section 406(a). For that reason, the 
Commission is amending subpart E to cover investigations under section 
421(b) (in addition to investigations under section 406(a)). The 
Commission also is amending subpart E to cover investigations under 
section 421(o) on whether action under section 421 continues to be 
necessary to prevent or remedy market disruption.
    The new investigations under section 422(b) concerning trade 
diversion--and the reviews under section 422(j) on whether there is a 
continued need for action taken under section 422(h)--do not so closely 
fit an existing subpart of part 206. For that reason, the Commission is 
adding a new subpart G to cover investigations under section 422(b) and 
reviews under section 422(j). Nevertheless, the procedures in subpart G 
closely track those in other subparts of part 206.

The Heading for Part 206

    As noted, the new section 422 of the Act requires the Commission to 
conduct investigations of and reviews of relief actions for trade 
diversion. The Commission is therefore amending the heading of part 206 
to include a reference to trade diversion.

The Table of Contents

    Among other changes, the Commission is amending the heading of 
section 206.3 in subpart A of part 206. In subpart E, the Commission 
also is revising the heading of section 206.43, adding a new section 
206.44, redesignating the existing sections 206.44 and 206.45 as 206.45 
and 206.46, and adding a new section 206.47. Finally, the Commission is 
adding a new subpart G. The Commission is therefore amending the table 
of contents for part 206 to reflect those changes.

[[Page 8185]]

The Authority Citation

    The Commission is amending the authority citation to part 206 to 
include citations to 19 U.S.C. 2451 and 2451a (the new sections 421 and 
422 of the Trade Act).

Section-by-Section Analysis of the Interim Amendments

Subpart A--General

Section 206.1

    Section 206.1 describes the applicability of part 206. The first 
sentence of that section lists the statutes under which the Commission 
performs functions and duties in accordance with part 206. The 
Commission is amending that sentence to include a reference to the 
Commission's functions and duties under the new sections 421 and 422 of 
the Trade Act. The third sentence of section 206.1 describes the kinds 
of investigations or reviews that are covered by subpart B, C, D, or E 
of part 206. The Commission is amending that sentence to state that 
subpart E of part 206 provides rules governing petitions and 
investigations under section 421 of the Trade Act (as well as petitions 
and investigations under section 406 of that Act). Finally, the 
Commission is adding a sentence to the end of section 206.1 stating 
that the new subpart G of part 206 provides rules applying to the 
Commission's functions and duties under section 422 of the Trade Act.

Section 206.2

    The first sentence of section 206.2 states that the Commission will 
institute an investigation under part 206 in response to a petition, 
request, resolution, or motion as described in the applicable statute. 
The Commission is amending that sentence by adding the new sections 421 
and 422 of the Trade Act to the list of statutes under which the 
Commission may institute an investigation.
    The second sentence in section 206.2 states that the first page of 
each petition or request must identify the statute and the subpart of 
part 206 under which the petition or request is being filed. The 
Commission is amending that sentence to add sections 421(b) and (o) of 
the Trade Act to the list of statutes and the new subpart G to the list 
of subparts.

Section 206.3

    Paragraph (a) of section 206.3 requires the Commission to promptly 
institute an investigation and to publish notice thereof in the Federal 
Register upon receipt of a properly filed petition or request under 
part 206. That obligation would apply to a petition or request under 
the new section 421(b) or (o) or the new section 422(b) of the Trade 
Act. The Commission also is required, however, in appropriate 
circumstances to institute an investigation and to publish a notice in 
the Federal Register in response to a resolution by the Senate 
Committee on Finance or the House Committee on Ways and Means or on the 
Commission's own motion. The Commission is amending paragraph (a) of 
section 206.3 by adding a sentence to the end of that paragraph to 
provide for those contingencies.
    Paragraph (b) of section 206.3 specifies the required content of 
each Federal Register notice published pursuant to paragraph (a), that 
is, following receipt of a properly filed request or petition. The 
Commission is amending paragraph (b) by adding a sentence to the end of 
that paragraph stating that the notice will provide the same kind of 
information when the Commission institutes an investigation in response 
to a resolution or on the Commission's own motion.
    Paragraph (c) of section 206.3 indicates that the Commission will 
make a nonconfidential copy of each petition or request available for 
public inspection. The Commission is amending paragraph (c) to state 
that the Commission will make each petition, request, resolution, or 
Commission motion available for public inspection, minus any 
confidential business information. Because of that change, the 
Commission also is amending the heading of section 206.3 to eliminate 
the reference to the availability of petitions for public inspection. 
Since the Commission will make each petition, request, resolution, or 
Commission motion available for such inspection, the revised portion of 
the heading will simply consist of the words ``availability for public 
inspection.''

Section 206.4

    Section 206.4 currently requires the Commission to promptly 
transmit copies of a petition or request and the resulting notice of 
investigation to the Office of the United States Trade Representative, 
the Secretary of Commerce, the Secretary of Labor, and other Federal 
agencies directly concerned. Those provisions do not match the 
statutory notification requirements or actual Commission practice for 
some types of investigations that are currently subject to provisions 
of part 206 (e.g., investigations under section 204(c) of the Trade Act 
or section 302(b) of the North American Free Trade Agreement 
Implementation Act). In addition, the existing text of section 206.4 is 
not consistent with the notification requirements of the new section 
421(b)(4) of the Trade Act, under which the Commission must provide the 
President, the United States Trade Representative (USTR), the House 
Committee on Ways and Means, and the Senate Committee on Finance with 
nonconfidential copies of each petition, request, or resolution filed 
under section 421(b). For those reasons, the Commission is revising 
section 206.4 by deleting the existing text and replacing it with the 
statement that for each investigation subject to provisions of part 
206, the Commission will transmit copies of the petition, request, 
resolution, or motion as required by the relevant statute, along with a 
copy of the notice of investigation.

Section 206.5

    Paragraph (b) of section 206.5 provides for public hearings on 
injury and remedy in investigations conducted under subpart C, D, or E 
of part 206. The Commission is amending paragraph (b) on an interim 
basis to have it cover hearings in investigations under subpart C, D, 
E, or G. The specific changes that the Commission is making are 
described below.
    First, the Commission is amending the heading of paragraph (b) to 
include investigations conducted under the new subpart G. Since the 
Commission is not likely to conduct a particular investigation under 
each of subparts C, D, E, and G, the revised heading refers to 
investigations under subpart C, D, E, or G.
    Next, the Commission is amending the text of paragraph (b). The 
text currently states that the Commission will conduct a hearing on the 
subject of injury and remedy in each investigation instituted under 
subparts C, D, and E. Subpart E currently covers investigations under 
section 406(a) of the Trade Act. The Commission is amending paragraph 
(b) of section 206.5 to state that it will conduct a hearing on injury 
and remedy in each investigation instituted under subpart C or D or 
section 406(a) of the Trade Act and subpart E.
    Subpart E, as amended in this notice, will cover investigations 
under section 421(b) or (o) of the Act in addition to investigations 
under section 406(a). Section 421 is comparable to section 406 in many 
respects. Moreover, material injury or the threat thereof to a domestic 
industry is an element of section 421(b). (See section 421(d) regarding 
the existence and cause of ``market disruption'' for purposes of 
section 421.) Material injury to a domestic industry or a threat 
thereof also would be relevant in an

[[Page 8186]]

investigation under section 421(o) to determine whether the 
Presidential action taken under section 421(k) continues to be 
necessary to prevent or remedy market disruption.
    Section 421 of the Act is a new statute however. For that reason, 
the Commission prefers not to adopt a rule, at this time, that would 
restrict the subject matter of public hearings in investigations under 
section 421(b) or (o) to ``injury and remedy.'' The Commission is 
therefore adding a sentence to paragraph (b) of section 206.5 stating 
that the Commission will conduct a hearing in each investigation 
instituted under section 421(b) or (o) of the Trade Act and subpart E, 
and that the Federal Register notice announcing the investigation will 
list the date, time, and location of the hearing, the subjects to be 
addressed, and the procedures to be followed, e.g., the procedure to be 
followed by each person who wishes to appear at the hearing.
    The new subpart G of part 206 will cover, among other things, 
investigations under section 422(b) of the Trade Act. The principal 
subjects of those investigations are (1) whether an action described in 
section 422(c) of the Act has caused or threatens to cause a 
significant diversion of trade into the domestic market of the United 
States and (2) what relief, if any, the Commission should recommend to 
the President. Unlike market disruption under section 421 of the Act, 
trade diversion under section 422 does not include the element of 
material injury or threat thereof to a domestic industry (compare 
section 422(d)(1) of the Act to sections 421(c)(1) and (2) and 
(i)(1)(A)).
    The Commission is therefore amending paragraph (b) of section 206.5 
to say that for each investigation under section 421(b) or (o) or 
section 422(b) of the Trade Act, the Federal Register notice announcing 
the investigation will specify the date, time, and location of the 
public hearing, the subjects to be addressed, and the procedures to be 
followed.

Section 206.6

    Paragraph (a) of section 206.6 provides a general description of 
the required content of Commission reports to the President on 
investigations conducted under part 206.
    Paragraph (a)(2) discusses the Commission's obligation to provide 
recommendations for action in the report after reaching an affirmative 
determination in the investigation.
    The Commission is amending paragraph (a)(2) to reflect the 
Commission's obligation to provide recommendations for action in the 
Commission report after reaching an affirmative determination under 
section 421(b)(1) or (i)(1) or section 422(b) of the Act--or a 
determination that the President and the USTR may regard as affirmative 
under section 421(e) or (i)(1) or section 422(e)(1).
    Paragraph (b) of section 206.6 describes additional findings and 
information that the Commission will include in reports to the 
President concerning certain kinds of investigations conducted under 
Part 206. Paragraph (b)(1) applies to determinations under section 
202(b) of the Trade Act. Paragraph (b)(2) applies to determinations 
under section 302(b) of the NAFTA Implementation Act. The Commission is 
adding a new paragraph (b)(3) concerning the kinds of additional 
findings and information that will be included in reports concerning 
determinations under section 421(b) or 422(b) of the Trade Act. The 
content of that new paragraph is based on the Commission's obligation 
to consider certain factors, pursuant to section 421(g)(2)(D) or 
422(e)(3)(iv), in reaching a determination under section 421(b) or 
422(b) of the Act.

Section 206.7

    Paragraph (a) of section 206.7 currently provides that, except for 
limited disclosure under an administrative protective order in 
accordance with section 206.17, the Commission will not release 
confidential business information unless the submitter either consents 
or had notice, when the information was submitted, that the Commission 
might release it. Paragraph (a) also states that when appropriate, the 
Commission will provide confidential business information in reports to 
the President and the USTR, but will release expurgated copies of the 
reports to the public. Paragraph (a) currently applies only to 
investigations conducted under subpart B, C, D, or F of part 206.
    Paragraph (a) of section 206.7 implements sections 202(a)(8) and 
(i) of the Trade Act concerning the treatment of confidential business 
information. Section 202(a)(8) states that the procedures concerning 
the release of such information that are set forth in section 332 of 
the Tariff Act (19 U.S.C. 1332) shall apply with respect to information 
received by the Commission in the course of certain other kinds of 
investigations. Section 202(i) of the Trade Act states that the 
Commission shall promulgate regulations to provide access to 
confidential business information under protective order to authorized 
representatives of interested parties who are parties to an 
investigation under section 202 of the Act. Sections 202(a)(8) and (i) 
of the Trade Act apply to investigations under section 421 or 422 of 
the Act. See sections 421(b)(3) and 422(b)(3).
    Investigations under section 421(b) or (o) of the Act will be 
conducted in accordance with amended subpart E of part 206, while 
investigations under section 422(b) will be governed by the new subpart 
G. The Commission is therefore amending the first sentence in paragraph 
(a) of section 206.7 to include references to those investigations and 
subparts.
    (See also the discussion below concerning the interim amendments to 
section 206.47, regarding the limited disclosure of confidential 
business information under an administrative protective order in 
investigations under section 421(b) or (o) of the Trade Act. Also see 
the discussion of the new section 206.66 regarding such disclosures in 
investigations under section 422(b) of the Act and the omission of such 
disclosures in reviews under section 422(j).)

Subpart E--Investigations for Relief From Market Disruption

Section 206.41

    Section 206.41 describes the applicability of subpart E of part 
206. The first sentence of that section makes subpart F applicable 
solely to investigations under section 406 of the Trade Act. The 
Commission is amending that sentence to state that subpart E applies to 
investigations under section 421(b) or (o) of the Trade Act as well as 
investigations under section 406(a) of the Act.

Section 206.42

    Section 206.42 tells who may file a petition for an investigation 
governed by subpart E of part 206.
    Because section 206.42 only covers petitions under section 406(a) 
of the Trade Act, the Commission is amending that section by 
designating the original text paragraph (a) of section 206.42, but 
revising it to explicitly apply to petitions under section 406(a) of 
the Act. Also, because of the broadened applicability of subpart E (as 
described above in the analysis of section 206.41), the Commission is 
adding a new paragraph (b) to section 206.42 that tells who may file a 
petition under section 421(b) or (o) of the Trade Act.

Section 206.43

    Section 206.43 describes the required content of a petition for an 
investigation governed by subpart E of part 206. The

[[Page 8187]]

Commission is revising the heading of section 206.43 to indicate that 
this section pertains solely to petitions under section 406(a) of the 
Trade Act. In the first sentence of the introductory text in section 
206.43, the Commission is changing the words ``a petition under this 
subpart E'' to ``a petition under section 406(a) of the Trade Act.'' 
The required content of a petition under the new section 421(b) or (o) 
of the Trade Act will be set forth in a new section 206.44, as 
described below.

New Section 206.44

    The Commission is adding a new section 206.44 to subpart E of part 
206, describing the required content of a petition under section 421(b) 
or (o) of the Trade Act. As the legislative history of section 421 (See 
H.R. Rept. No. 632, 106th Cong., 2d Sess. 16-17 (May 22, 2000)) points 
out, the provisions of that section are modeled after section 406 of 
the Act, but with certain modifications to conform to the language of 
the U.S.-China Bilateral Trade Agreement. The Commission accordingly 
has modeled the new section 206.44 in part after section 206.43 
governing the required content of a petition under section 406(a) of 
the Act. But the new section 206.44 imposes requirements based on 
section 421 of the Act.
    Paragraph (a) of the new section 206.44 imposes the basic 
requirement that the petition must provide specific information to 
support 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. Section 421 imposes stringent deadlines for the Commission to 
make the required determination(s). Hence, the petition may become a 
primary source of data (in an investigation based on a petition). For 
that reason, paragraph (a) of the new section 210.44 in subpart E of 
part 206 requires the petition to provide the information specified in 
paragraphs (a) through (i) of that section, to the extent that such 
information is reasonably available to the petitioner with due 
diligence.
    Paragraph (b) of the new section 206.44 tells what product 
description data the petition must contain, and is modeled after 
paragraph (a) of section 206.43 governing the product description in a 
petition under section 406(a) of the Trade Act.
    A petition under section 421(b) of the Act must be filed by an 
entity, including a trade association, firm, certified or recognized 
union, or group of workers, which is representative of an industry. See 
sections 421(b)(1) and 202(a) of the Act. Hence, paragraph (c) of the 
new section 206.44 specifies what data the petition must furnish to 
establish that the petitioner satisfies the representativeness 
requirement. Paragraph (c) corresponds to paragraph (b) of section 
206.43, concerning the representativeness of a petition under section 
406(a) of the Act.
    Paragraph (d) of the new section 206.44 specifies the import data 
to be furnished in a petition under section 421(b) of the Trade Act. 
Paragraph (d) is similar to paragraph (c) of section 206.43, which 
describes the import data to be furnished in a petition under section 
406(a) of the Act. The difference is that owing to the language of 
section 421(c)(1) of the Act, paragraph (d) of the new section 206.44 
requires the submission of information about whether imports are 
increasing absolutely or relatively (instead of absolutely or relative 
to domestic production).
    Paragraph (e) of the new section 206.44 specifies the domestic 
production data to be submitted in a petition under section 421(b) of 
the Trade Act. Paragraph (e) matches paragraph (d) of section 206.43, 
which describes the domestic production data to be furnished in a 
petition under section 406(a) of the Act.
    Paragraph (f) of the new section 206.44 specifies the injury data 
to be submitted in a petition under section 421(b) of the Trade Act. 
Paragraph (f) is similar to paragraph (e) of section 206.43, which 
describes the data showing injury that must be included in a petition 
under section 406(a) of the Act.
    Paragraph (g) of the new section 206.44 specifies the injury 
causation data to be submitted in a petition under section 421(b) of 
the Trade Act. Paragraph (g) differs from paragraph (f) of section 
206.43, regarding the cause of injury as described in a petition under 
section 406(a) of the Act. Owing to differences between factors the 
Commission must consider under section 421(d)(1) of the Act and those 
it must consider under section 406(e)(1)(C) of the Act, paragraph (g) 
of the new section 206.44 does not indicate that the petition should 
include evidence of disruptive pricing practices or other efforts to 
unfairly manage trade patterns (in addition to evidence of the effect 
of the subject imports on prices in the United States). Instead, 
paragraph (g) requires the submission of data about the effect that the 
product imported from the People's Republic of China has on prices in 
the United States for like or directly competitive articles--which is 
consistent with section 421(d)(3) of the Act.
    A petition under section 421(b) of the Trade Act may allege that 
critical circumstances exist and may request that provisional relief be 
provided with respect to the product identified in the petition. See 
section 421(i) of the Act. For that reason, paragraph (h) of the new 
section 206.44 states that a petition alleging critical circumstances 
must provide information demonstrating that delay in taking action 
under section 421 of the Act would cause damage to the relevant 
domestic industry that would be difficult to repair.
    Paragraph (i) of the new section 206.44 states that the petition 
must include a statement describing the import relief sought and the 
purpose thereof.
    Paragraph (j) of the new section 206.44 describes the required 
content of a petition under section 421(o) of the Trade Act. A petition 
under section 421(o) must be filed ``on behalf of the industry 
concerned.'' Therefore, paragraph (j) of the new section 206.44 
requires the petition to provide evidence of representativeness, as 
described in paragraph (b) of that section. The new paragraph (j) also 
states that the petition must contain specific information supporting 
the petitioner's claim that action under section 421 of the Trade Act 
continues to be necessary to prevent or remedy market disruption. 
Paragraph (j) also tells the petitioner that the information provided 
should take into account factors such as those specified in paragraphs 
(c)-(g) of section 206.44. Owing to the short time provided for the 
Commission to make its determination under section 421(o), the petition 
may become a key source of information. For that reason, paragraph (j) 
of section 206.44 states that, to comply with paragraph (j), the 
petition should contain all relevant information reasonably available 
to the petitioner with due diligence.

Existing Section 206.44--Redesignated as Section 206.45

    Existing section 206.44 addresses the time by which the Commission 
must furnish its report to the President in an investigation under 
section 406(a) of the Trade Act. Because the Commission is adding a new 
section 206.44 as discussed above, the Commission is redesignating 
existing section 206.44 as section 206.45. The Commission also is 
redesignating the existing provisions of section 206.44 as paragraph 
(a) of section 206.45 and explicitly limiting them to the issuance of a 
report to the

[[Page 8188]]

President in an investigation under section 406(a) of the Trade Act. 
The Commission is adding a new paragraph (b) concerning the deadlines 
for submitting its determination and report to the President and the 
USTR in an investigation under section 421(b) of the Trade Act. A new 
paragraph (c) states the Commission's deadlines for issuing a 
determination and report on critical circumstances, pursuant to section 
421(i) of the Act, when the petition in an investigation under section 
421(b) alleges that such circumstances exist and requests provisional 
relief. Finally, the Commission is adding a new paragraph (d) 
concerning the time by which the Commission must issue its 
determination and report in an investigation under section 421(o) of 
the Act.

Existing Section 206.45--Redesignated as Section 206.46

    Existing section 206.45 states that the Commission will issue a 
nonconfidential version of the report issued in an investigation under 
subpart E and will publish a summary of it in the Federal Register. 
Because the Commission is adding a new section 206.44 to subpart E as 
discussed above, the existing section 206.45 will become section 
206.46. The Commission is making no changes in the substance of this 
rule.

Section 206.47

    Section 421(b)(3) of the Trade Act states that sections 202(a)(8) 
and (i) of the Act, relating to the treatment of confidential business 
information, shall apply to investigations conducted under section 421. 
The provisions concerning confidential business information in 
investigations under section 202(b) of the Act are set forth in 
sections 206.7 and 206.17 of part 206.
    Section 206.7 applies to investigations under section 421(b) or (o) 
of the Trade Act as a result of the Commission's interim amendments to 
sections 206.7 and 206.41.
    The Commission is adding a new section 206.47 to provide for the 
limited disclosure of confidential business information under an 
administrative protective order, as described in section 206.17, in 
investigations under section 421(b) or (o) of the Act.

Subpart G--Investigations for Action in Response to Trade 
Diversion; Reviews of Action Taken

    As noted in the overview, the Commission is adding a new subpart G 
concerning investigations under section 422(b) and reviews under 
section 422(j) of the Trade Act.

Section 206.61

    Section 206.61 describes the applicability of subpart G and cross-
references relevant rules of general application.

Section 206.62

    Section 206.62 states who may file a petition for an investigation 
under section 422(b) of the Trade Act. This section is based on section 
422(b)(1) of the Act, which states that a petition may be filed by an 
entity described in section 202(a) of the Act.

Section 206.63

    Section 206.63 describes the required content of a petition for an 
investigation under section 422(b) of the Trade Act. It consists of an 
introductory paragraph and paragraphs (a)-(f).
    The introductory paragraph of the new section 206.63 imposes the 
basic requirement that the petition must provide specific information 
to support the claim that an action described in section 422(c) has 
caused, or threatens to cause, a significant diversion of trade into 
the domestic market of the United States. Because of the stringent 
deadline for the Commission to make its determination under section 
422(b)(1) of the Act, the petition may become a primary source of 
information. The introductory paragraph of section 206.63 accordingly 
requires the petition to furnish the information specified in the 
introductory paragraph and paragraphs (a)-(f) of that section, to the 
extent that such information is reasonably available to the petitioner 
with due diligence.
    Among other things, paragraph (a) directs the petitioner to submit 
data concerning the imported product at issue. A petition under section 
422(b) must be filed by an entity, including a trade association, firm, 
certified or recognized union, or group of workers, which is 
representative of an industry. See sections 422(b)(1) and 202(a) of the 
Act. Hence, paragraph (a) of the new section 206.63 also requires the 
petition to provide the name and description of the domestic product 
concerned, while paragraph (b) requires the submission of evidence of 
the petitioner's representativeness.
    Paragraph (c) indicates that the petition must contain a 
description of the action, 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.
    Paragraph (d) requires the petition to provide information about 
the factors enumerated in section 422(d)(1) of the Act, which the 
Commission must consider in determining whether significant diversion 
or the threat thereof exists for purposes of section 422.
    Section 422(d)(2) of the Trade Act directs the Commission to 
examine 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. In some cases, the United States Customs 
Service will be required by law to monitor the subject imports and to 
make data from such monitoring available to the Commission upon 
request. See section 422(a) of the Act. However, the Commission has 
drafted paragraph (e) of section 206.63 to require the petition to 
provide any information available to the petitioner that will help the 
Commission fulfill its statutory obligation to examine the changes in 
imports.
    Finally, paragraph (f) of section 206.63 states that the petition 
must contain a statement describing the import relief desired under 
section 422(h) and the purpose thereof.

Section 206.64

    Section 206.64 addresses the institution of an investigation under 
section 422(b) or a review under section 422(j) of the Trade Act. 
Section 206.64 also addresses the Commission's publication of a Federal 
Register notice concerning the investigation or review and the fact 
that the Commission will make the petition, request, resolution, or 
motion that triggered the investigation or the notification document 
that triggered the review available for public inspection, except for 
any confidential information contained therein.

Section 206.65

    Section 206.65 governs public hearings in investigations under 
section 422(b) and reviews under section 422(j) of the Trade Act. 
Section 422(b)(2) of the Act makes public hearings mandatory for 
investigations under section 422(b). Paragraph (a) section 206.65 
states that hearings for those investigations are provided for in 
paragraph (b) of section 206.5 (discussed above).

Section 206.66

    Section 422(b)(3) of the Trade Act states that the provisions of 
sections 202(a)(8) and (i) of the Act, relating to confidential 
business information, shall apply to investigations conducted under 
section 422. The provisions governing the treatment of such information 
in

[[Page 8189]]

investigations under section 202(b) of the Act are set forth in 
sections 206.7 and 206.17 of part 206.
    Section 206.7 applies to investigations under section 422(b) of the 
Act as a result of the Commission's interim amendments to sections 
206.7 and 206.41.
    The Commission is adding a new section 206.66 to provide for the 
limited disclosure of confidential business information under an 
administrative protective order, as described in section 206.17, in 
investigations under section 422(b).
    As noted, section 422(b)(3) of the Act states that the provisions 
of sections 202(a)(8) and (i) of the Act, relating to the treatment of 
confidential business information, ``shall apply to investigations 
conducted under this section [422] [italics added].'' Section 422(j) 
characterizes a review under section 422(j) as a ``review of 
circumstances.'' The Commission notes further that while it has 60 days 
to make its determination in such a review (as opposed to 45 days for 
making a determination in an investigation under section 422(b)), 
section 422(j) of the Act does not mandate the kinds of procedures that 
apply to an investigation under section 422(b), namely, the publication 
of a Federal Register notice of institution and the conduct of a public 
hearing. For those reasons, the Commission did not draft the new 
section 206.66 to provide in reviews for the limited disclosure of 
confidential business information under an administrative protective 
order, as described in section 206.17.

Section 206.67

    Paragraph (a) of section 206.67 lists the deadlines for issuance of 
the Commission's determination and report to the President and the USTR 
in an investigation under section 422(b) of the Trade Act. Paragraph 
(b) lists the deadlines for issuing the determination and report in a 
review under section 422(j) of the Act.

Section 206.68

    Section 206.68 governs the publishing of the Commission reports and 
notice concerning such report in an investigation under section 422(b) 
or a review under section 422(j) of the Trade Act. This rule states 
that upon making a report to the President of the results of such 
investigation or a review, the Commission will make the report public 
(with the exception of information which the Commission determines to 
be confidential) and will publish notice of the report in the Federal 
Register.

Regulatory Analysis

The Regulatory Flexibility Act

    The Commission notes that the Regulatory Flexibility Act (5 U.S.C. 
601 et seq.) is inapplicable to this rulemaking because it is not one 
for which a notice of proposed rulemaking is required under section 
553(b) of the APA. (See the discussion above concerning the procedure 
for adopting the interim amendments.)
    Even if the Regulatory Flexibility Act applied, the Commission's 
interim amendments to part 206 are not likely to affect small entities 
in the manner that the Act is intended to prevent. The interim 
amendments are agency rules of procedure and practice. The procedures 
for the new types of proceedings are similar to those for existing 
types. Moreover, the Commission has no reason to believe, at this 
point, that a majority of the petitioners will be small entities. For 
those reasons, the Commission certifies, pursuant to 5 U.S.C. 605(b), 
that the interim rule amendments in this notice will not have a 
significant economic impact on a substantial number of small entities.

Executive Order 12866

    The Commission has determined that the interim amendments to part 
206 do not meet the criteria described in section 3(f) of Executive 
Order 12866 (58 FR 51735, Oct. 4, 1993) and thus do not constitute a 
significant regulatory action for purposes of the Executive Order. As 
noted, they merely respond to exigencies created by the new 
legislation. The interim amendments to part 206 will not result in (1) 
an annual effect on the economy of $100 million or more, (2) a major 
increase in costs or prices for consumers, individual industries, 
Federal, State, or local government agencies, or geographic regions, or 
(3) significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
enterprises to compete with foreign-based enterprises in domestic or 
foreign markets. Accordingly, no regulatory impact assessment is 
required.

Executive Order 13132

    The interim amendments to part 206 of the Commission's rules do not 
contain federalism implications warranting the preparation of a 
Federalism Assessment pursuant to Executive Order 13132 (64 FR 43255, 
Aug. 4, 1999).

The Unfunded Mandates Reform Act of 1995

    The interim amendments to part 206 of the Commission's rules will 
not result in the expenditure by State, local, and tribal governments, 
in the aggregate, or by the private sector, of $100,000,000 or more in 
any one year, and will not significantly or uniquely affect small 
governments. Therefore, no actions are deemed necessary under the 
provisions of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 
et seq.).

The Small Business Regulatory Enforcement Fairness Act of 1996

    The interim amendments to part 206 of the Commission's rules are 
not major rules as defined by section 804 of the Small Business 
Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et. seq.). 
The interim amendments will not result in an annual effect on the 
economy of $100,000,000 or more; a major increase in costs or prices; 
or significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
companies to compete with foreign-based companies in domestic and 
export markets.

The Contract With America Advancement Act of 1996

    The interim amendments to part 206 of the Commission's rules are 
exempt from the reporting requirements of the Contract With America 
Advancement Act of 1996 (Pub. L. 104-121) because they concern rules of 
agency organization, procedure, or practice that do not substantially 
affect the rights or obligations of non-agency parties.

The Paperwork Reduction Act

    The interim amendments to part 206 are not subject to section 
3504(h) of the Paperwork Reduction Act (44 U.S.C. 3501 et. seq.), since 
they do not contain any new information collection requirements.

List of Subjects in 19 CFR Part 206

    Administrative practice and procedure, Business and industry, 
Imports, Investigations, Trade agreements.


    For the reasons stated in the preamble, the Commission amends 19 
CFR part 206 as follows:
    1. Revise the heading for part 206 to read as follows:

[[Page 8190]]

PART 206--INVESTIGATIONS RELATING TO GLOBAL AND BILATERAL SAFEGUARD 
ACTIONS, MARKET DISRUPTION, TRADE DIVERSION, AND REVIEW OF RELIEF 
ACTIONS

    2.-3. Revise the authority citation for part 206 to read as 
follows:

    Authority: 19 U.S.C. 1335, 2251-2254, 2451-2451a, 3351-3382; 
secs. 103, 301-302, Pub. L. 103-465, 108 Stat. 4809.

    4. Revise Sec. 206.1 to read as follows:


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.

    5. Revise Sec. 206.2 to read as follows:


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.''

    6. In Sec. 206.3, revise the section heading, add a second sentence 
to paragraph (a), amend paragraph (b) to add a second sentence, and 
revise paragraph (c) to read as follows:


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

    (a) * * * 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) * * * 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).

    7. Revise Sec. 206.4 to read as follows:


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.

    8. Amend Sec. 206.5 to revise paragraph (b) to read as follows:


Sec. 206.5  Public hearing.

* * * * *
    (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.
* * * * *

    9. Amend Sec. 206.6 to revise paragraph (a)(2) and to add paragraph 
(b)(3) to read as follows:


Sec. 206.6  Report to the President.

    (a) * * *
    (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;
* * * * *
    (b) * * *
    (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.

    10. Amend Sec. 206.7 to revise the first sentence of paragraph (a) 
to read as follows:


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.

*  *  *

    11. Amend Sec. 206.41 to revise the first sentence to read as 
follows:

[[Page 8191]]

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. * * *

    12. Revise Sec. 206.42 to read as follows:


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.

    13. Amend Sec. 206.43 to revise the heading and the first sentence 
of the introductory text to read as follows:


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. * * *
* * * * *

    14. Sections 206.44 and 206.45 are redesignated as Secs. 206.45 and 
206.46, respectively, and a new Sec. 206.44 is added to read as 
follows:


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

    (a) Petitions under section 421(b). 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 (i) of this section. The petition 
shall provide the information required by this paragraph and paragraphs 
(b) through (i) of this section to the extent that such information is 
reasonably available to the petitioner with due diligence.
    (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 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 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 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 locations of all other producers of the domestic 
product known to the petitioner.
    (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 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.

[[Page 8192]]

    (j) 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.

    15. Revise newly designated Sec. 206.45 read as follows:


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.

    16.-17. Add Sec. 206.47 to read as follows:


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.

    18. Add subpart G, consisting of Secs. 206.61 through 206.68, to 
read as follows:

Subpart G--Investigations For Action in Response to Trade 
Diversion; Reviews of Action Taken

Sec.    
206.61  Applicability of subpart.
206.62  Who may file a petition.
206.63  Contents of a 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.

Subpart G--Investigations For Action in Response to Trade 
Diversion; Reviews of Action Taken


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.

[[Page 8193]]

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 
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.

    Issued: February 15, 2002.

    By Order of the Commission.
Marilyn R. Abbott,
Acting Secretary.
[FR Doc. 02-4186 Filed 2-21-02; 8:45 am]
BILLING CODE 7020-02-P