[Federal Register Volume 68, Number 143 (Friday, July 25, 2003)]
[Rules and Regulations]
[Pages 43922-43925]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-18957]


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OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE

15 CFR Part 2016

RIN 0350-AA06


Establishment of a Petition Process To Review Eligibility of 
Countries for the Benefits of the Andean Trade Preference Act, as 
Amended by the Andean Trade Promotion and Drug Eradication Act

AGENCY: Office of the United States Trade Representative.

ACTION: Final rule.

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SUMMARY: This final rule provides for the establishment of a petition 
process to review the eligibility of countries for the benefits of the 
Andean Trade Preference Act, as amended by the Andean Trade Promotion 
and Drug Eradication Act.

DATES: This final rule is effective on July 25, 2003.

FOR FURTHER INFORMATION CONTACT: Bennett M. Harman, Office of the 
Americas, Office of the United States Trade Representative at (202) 
395-5190.

SUPPLEMENTARY INFORMATION: The Trade Act of 2002 (Pub. L. 107-210) 
(Trade Act) includes the ``Andean Trade Promotion and Drug Eradication 
Act'' (ATPDEA), which contains provision on enhanced trade benefits for 
eligible Andean countries. The ATPDEA renews and amends the Andean 
Trade Preference Act (ATPA) (19 U.S.C. 3201 et seq.) Section 3103(d) of 
the ATPDEA requires the President to promulgate regulations regarding 
the review of eligibility of articles and countries for the benefits of 
the ATPA, consistent with section 203(e) of the ATPA, as amended by the 
ATPDEA, not later than 180 days after the date of enactment of the 
Trade Act of 2002. The Trade Act was enacted on August 6, 2002. In 
Executive Order 13277 of November 19,

[[Page 43923]]

2002, the President assigned this function to the U.S. Trade 
Representative (USTR).
    Section 203(e) of the ATPA, as amended, gives the President the 
authority to withdraw or suspend the designation of any ATPA or ATPDEA 
beneficiary country, or withdraw, suspend, or limit the application of 
preferential treatment under the ATPA, as amended by the ATPDEA, to any 
article of any such country, if the President determines that, as a 
result of changed circumstances, the country is not meeting the 
eligibility criteria of the ATPA and ATPDEA. Section 203(e) also 
establishes certain procedural guidelines for taking any of the actions 
described above.
    An interim rule, on a final and emergency basis, was published in 
the Federal Register (68 FR 5542) for public comment on February 4, 
2003. Consistent with section 3103(d)(2) of the ATPDEA, the interim 
rule was similar to the regulations governing the annual review used to 
modify the U.S. Generalized System of Preferences (GSP), which is 
authorized by title V of the Trade Act of 1974 (19 U.S.C. 2461 et 
seq.), as amended. The interim rule established an annual review that 
allows for public input, and includes procedures for requesting the 
withdrawal, suspension, or limitation of preferential duty treatment 
under the ATPA, as amended, and for reviewing such requests and 
implementing granted requests. USTR received two submissions with 
several comments on the interim rule. The following summarizes the 
comments and USTR's response to them. USTR has also made technical 
changes to the final regulations that do not affect the substance of 
the provision.

Comments

    1. Public Comment: The regulations must provide for an article 
eligibility review as well as a country eligibility review.
    USTR Response: The interim rule, consistent with section 203(e) of 
the ATPA, as amended, and section 3103(d) of the ATPDEA, addressed the 
issue of article eligibility in the context of country eligibility. The 
commenter suggests that the ATPDEA also requires the regulations to 
allow for petitions to add articles pursuant to section 204(b)(1) of 
the ATPA, as amended, which gives the President authority to proclaim 
certain articles as eligible for duty-free treatment under the ATPA if 
he determines that an article is not ``import-sensitive in the context 
of imports from ATPDEA beneficiary countries.''
    In response, USTRA notes first that section 3103(d)(1) requires the 
President to promulgate regulations regarding the review of eligibility 
of articles and countries under the ATPA, consistent with section 
203(e). As noted above, the President assigned this function to the 
USTR per Executive Order. Section 203(e) gives the President the 
authority to withdraw or suspend the designation of any ATPA or ATPDEA 
beneficiary country, or withdraw, suspend, or limit the application of 
preferential treatment under the ATPA, as amended by the ATPDEA, to any 
article of any such country, if the President determines that, as a 
result of changed circumstances, the country is not meeting the 
eligibility criteria of the ATPA and ATPDEA. Section 203(e) also 
establishes certain procedural guidelines for taking any of the actions 
described above. Second, section 3103(d)(2) requires the regulations to 
``include procedures for requesting withdrawal, suspension, or 
limitations of preferential duty treatment'' under the ATPA.
    Section 3103(d)(1) calls for the President (the USTR, by 
delegation) to promulgate regulations regarding the review of 
eligibility of articles and countries under the ATPA, ``consistent with 
section 203(e).'' Section 203(e) refers solely to the withdrawal, 
suspension, or limitation of preferential duty treatment, and makes no 
reference to procedures for adding articles to the list of those 
eligible for preferential treatment. Moreover, section 3103(d)(2), 
which addresses the content of the regulations that must be 
promulgated, refers exclusively to procedures for requesting 
``withdrawal, suspension, or limitations'' of preferential duty 
treatment under the ATPA, making no mention of procedures for adding 
articles. Thus. USTR does not agree that regulations implementing 
section 3103(d) must include procedures for adding articles pursuant to 
section 204(b)(1).
    2. Public Comment: The regulations must be revised to expressly 
include the possibility of restoring benefits for an article for which 
benefits have been withdrawn, suspended, or limited.
    USTR Response: Neither the GSP regulations, section 203(e) of the 
ATPA, as amended, nor section 3103(d) of the ATPDEA addresses the 
possibility of restoring benefits for an article for which benefits 
have been withdrawn, suspended, or limited. Consequently, USTR does not 
consider that it is required to include in the regulations procedures 
for restoring benefits. However, the ATPA provides authority for the 
President to restore benefits that were withdrawn, suspended, or 
limited pursuant to section 203(e) if he determines that the country in 
question has resumed compliance with the eligibility criteria of the 
ATPA, as amended by the ATPDEA.
    3. Public Comment: The procedures set out in the regulations should 
more closely adhere to those in the GSP regulations, in particular by 
limiting the right to file petitions to ``interested parties,'' by 
establishing a petition process for adding products to the list of 
eligible articles, and by creating procedures for submitting economic 
data in support of such petitions.
    USTR Response: This commenter makes three recommendations. First, 
the commenter suggests that the ATPA regulations, like the GSP 
regulations at 15 CFR 2007.0, should limit the right to file a petition 
to ``interested parties.'' However, only the GSP provision that 
addresses petitions related to product eligibility under the GSP 
program, 15 CFR 2007.0(a), limits the right to petition to ``interested 
parties.'' By contrast, the section of the GSP regulations that 
addresses country eligibility, 15 CFR 20007.0(b), affords the right to 
petition to ``any person.'' Section 3103(d)(1) of the ATPDEA calls for 
regulations consistent with section 203(e) of the ATPA, which addresses 
both country and product eligibility. However, section 203(e) provides 
that any action to remove benefits for products must be based on a 
determination that a country no longer meets the eligibility criteria 
for ATPA benefits. It would be inappropriate to limit petitions 
addressing the broad range of issues related to a country's eligibility 
for benefits under the ATPA solely to ``interested parties,'' as that 
term is defined in 15 CFR 2007.0(d). Rather, ``any person'' should be 
eligible to raise concerns about whether a country is continuing to 
meet the relevant eligibility criteria. Therefore, consistent with the 
broader approach to country eligibility petitions in the GSP 
regulations, the final ATPA regulations will permit ``any person'' to 
submit a petition seeking either the suspension or withdrawal of 
country eligibility or duty-free treatment. (The interim final rule 
inadvertently referred to ``any person'' as ``any party'' in several 
places. That error has been corrected in the final regulations.)
    Second, the commenter suggests that the ATPA regulations should be 
similar to the GSP regulations in that they should contain procedures 
for adding products in accordance with section 204(b)(1) of the ATPA, 
as amended. This recommendation is addressed in

[[Page 43924]]

response to the first public comment above.
    Lastly, the commenter suggests that, if USTR amends the regulations 
to authorize petitions that seek to add products in accordance with 
section 204(b)(1) of the ATPA, as amended, USTR should spell out the 
information to be provided in support of such petitions. Because USTR 
has decided not to amend the interim rule in the manner suggested, it 
is not necessary to address this recommendation.
    4. Public Comment: Columbia should meet its commitment to cease 
applying a price band adjustment to imports of dry pet food.
    USTR Response: This comment was previously submitted in response to 
USTR notice, published in the Federal Register on August 15, 2002 (67 
FR 53379), requesting public comment on the designation of eligible 
countries as ATPDEA beneficiary countries. The interagency Andean 
subcommittee of the Trade Policy Staff Committee (TPSC) has already 
considered and acted on this comment.

The Regulatory Flexibility Act and Executive Order 12866

    Under the Regulatory Flexibility Act, a Regulatory Flexibility 
Analysis is not required under sections 603 or 604 because USTR is not 
publishing a Notice of Proposed Rulemaking. This final rule is 
significant under Executive Order 12866 of September 30, 1993, and has 
been review by the Office of Management and Budget.

List of Subjects in 15 CFR Part 2016

    Administrative practice and procedure, Confidential business 
information, Foreign Trade.


0
For the reasons set out in the SUPPLEMENTARY INFORMATION section of 
this document, 15 CFR part 2016 revised to read as follows:

PART 2016--PROCEDURES TO PETITION FOR WITHDRAWAL OR SUSPENSION OF 
COUNTRY ELIGIBILITY OR DUTY-FREE TREATMENT UNDER THE ANDEAN TRADE 
PREFERENCE ACT (ATPA), AS AMENDED

Sec.
2016.0 Requests for reviews.
2016.1 Action following receipt of petitions.
2016.2 Timetable for reviews.
2016.3 Publication regarding requests.
2016.4 Information open to public inspection.
2016.5 Information exempt from public inspection.

    Authority: 19 U.S.C. 3201, et seq.; sec. 3103(d), Pub. L. 107-
210; 116 Stat. 933; E.O. 13277, 67 FR 70303.


Sec.  2016.0  Requests for reviews

    (a) Any person may submit a request (hereinafter ``petition'') that 
the designation of a country as an Andean Trade Preference Act (ATPA) 
beneficiary country be withdrawn or suspended, or the application of 
preferential treatment under the ATPA to any article of any ATPA 
beneficiary country be withdrawn, suspended, or limited. Such petitions 
should: include the name of the person or the group requesting the 
review; identify the ATPA beneficiary country that would be subject to 
the review; if the petition is requesting that the preferential 
treatment of an article or articles be withdrawn, suspended, or 
limited, identify such article or articles with particularity and 
explain why such article or articles were selected; indicate the 
specific section 203(c) or (d) (19 U.S.C. 3202(c), (d)) eligibility 
criterion that the petitioner believes warrant(s) review; and include 
all available supporting information. The Andean Subcommittee of the 
Trade Policy Staff Committee (TPSC) may request other information. If 
the subject matter of the petition was reviewed pursuant to a previous 
petition, the petitioner should consider providing the Andean 
Subcommittee with any new information related to the issue.
    (b) Any person may submit a petition that the designation of a 
country as an Andean Trade Promotion and Drug Eradication At (ATPDEA) 
beneficiary country be withdrawn or suspended, or the application of 
preferential treatment to any article of any ATPDEA beneficiary country 
under section 204(b)(1), (3), or (4) (19 U.S.C.. 3202(b)(1), (3), (4)) 
be withdrawn, suspended, or limited. Such petitions should: Include the 
name of the person or the group requesting the review; identify the 
ATPDEA beneficiary country that would be subject to the review; if the 
petition is requesting that the preferential treatment of an article or 
articles be withdrawn, suspended, or limited, identify such article or 
articles with particularity and explain why such article or articles 
were selected; indicate the specific section 204(b)(6)(B) (19 U.S.C. 
3203(b)(6)(B)) eligibility criterion or criteria that the petition 
believes warrant(s) review; and include all available supporting 
information. The Andean Subcommittee may request other information. If 
the subject matter of the petition was reviewed pursuant to a previous 
petition, the petitioner should consider providing the Andean 
Subcommittee with any new information related to the issue.
    (c) All petitions and other submissions should be submitted in 
accordance with the schedule (see Sec.  2016.2) and requirements for 
submission that The Office of the United States Trade Representative 
(USTR) will publish annually in the Federal Register in advance of each 
review. Foreign governments may make submission in the form of 
diplomatic correspondence and should observe the deadlines for each 
annual review published in the Federal Register.
    (d) The TPSC may at any time, on its own motion, initiate a review 
to determine whether: the designation of a country as an ATPA 
beneficiary country should be withdrawn or suspended; the application 
of preferential treatment under the ATPA to any article of any ATPA 
beneficiary country should be withdrawn, suspended, or limited; the 
designation of a country as an ATPDEA beneficiary country should be 
withdrawn or suspended; or the application of preferential treatment to 
any article of any ATPDEA beneficiary country under section 204(b)(1), 
(3), or (4) (19 U.S.C. 3202(b)(1), (3), or (4) should be withdrawn, 
suspended, or limited.
    (e) Petitions requesting the action described in paragraph (a) or 
(b) of this section that indicate the existence of exceptional 
circumstances warranting an immediate review may be considerd outside 
of the schedule for the annual review announced in the Federal 
Register. Requests for such urgent consideration should contain a 
statement of reasons indicating why an expedited review is warranted.


Sec.  2016.1  Action following receipt of petitions.

    (a) USTR shall publish in the Federal Register a list of petitions 
filed in response to the announcement of the annual review, including 
the subject matter of the request and, where appropriate, the 
description of the article or articles covered by the request.
    (b) Thereafter, the Andean Subcommittee shall conduct a preliminary 
review of the petitions, and shall submit the results of its 
preliminary review to the TPSC. The TPSC shall review the work of the 
Andean Subcommittee and shall conduct further review as necessary. The 
TPSC shall prepare recommendations for the President on any proposed 
action to modify the ATPA. The Chairman of the TPSC may, as 
appropriate, convene the Trade Policy Review Group (TPRG) to review the 
matter, and thereafter refer the

[[Page 43925]]

matter to the USTR for Cabinet-level review as necessary.
    (c) The USTR, after receiving the advice of the TPSC, TPRG, or 
Cabinet-level officials, shall make recommendations to the President on 
any proposed action to modify the application of the ATPA's benefits to 
countries or articles. The President (or if that function is delegated 
to the USTR, the USTR) shall announce in the Federal Register any such 
action he proposes to take. The USTR shall announce in the Federal 
Register notice of the results of the preliminary review, together with 
a schedule for receiving public input regarding such proposed action 
consistent with section 203(e) of the ATPA, as amended (19 U.S.C. 
3202(e)).
    (1) The schedule shall include the deadline and guidelines for any 
person to submit written comments supporting, opposing or otherwise 
commenting on any proposed action.
    (2) The schedule shall also include the time and place of the 
public hearing, as well as the deadline and guidelines for submitting 
requests to present oral testimony.
    (d) After receiving and considering public input, the Andean 
Subcommittee shall submit the results of the final review to the TPSC. 
The TPSC shall review the work of the Andean Subcommittee and shall 
conduct further review as necessary. The TPSC shall prepare 
recommendations for the President on any proposed action to modify the 
application of benefits under the ATPA to countries or articles. The 
Chairman of the TPSC may, as appropriate, convene the TPRG to review 
the matter, and thereafter refer the matter to the USTR for Cabinet-
level review as necessary. The USTR, after receiving the advice of the 
TPSC, TPRG, or Cabinet-level officials, shall make recommendations to 
the President on any proposed action to modify the application of the 
ATPA's benefits to countries or articles, including recommendations 
that no action be taken. The USTR shall also forward to the President 
any documentation necessary to implement the recommended proposed 
action or actions to modify the application of the ATPA's benefits to 
countries or articles.
    (e) In considering whether to recommend any proposed action to 
modify the ATPA, the Andean Subcommittee, on behalf of the TPSC, TPRG, 
or Cabinet-level officials, shall review all relevant information 
submitted in connection with a petition or otherwise available.


Sec.  2016.2  Timetable for reviews.

    Beginning in calendar year 2003, reviews of pending petitions shall 
be conducted at least once each year, according to the following 
schedule, unless otherwise specified by Federal Register notice:
    (a) September 15: Deadline for submission of petitions for review;
    (b) On or about December 1: Announcement published in the Federal 
Register of the results of preliminary review;
    (c) Decemeber/January: Written comments submitted and a public 
hearing held on any proposed actions;
    (d) February/March: Preparation of recommendations to the 
President, Presidential decision, and implementation of Presidential 
decision.


Sec.  2016.3  Publication regarding requests.

    Following the Presidential decision and where required, the 
publication of a Presidential proclamation modifying the application of 
benefits under the ATPA to countries or articles in the Federal 
Register, USTR will publish a summary of the decisions made in the 
Federal Register, including:
    (a) For petitions on which decisions were made, a description of 
the outcome of the review; and
    (b) A list of petitions on which no decision was made, and thus 
which are pending further review.


Sec.  2016.4  Information open to public inspection.

    With the exception of information subject to Sec.  2016.5, any 
person may, on request, inspect in the USTR Reading Room:
    (a) Any written petition, comments, or other submission of 
information made pursuant to this part; and
    (b) Any stenographic record of any public hearings held pursuant to 
this part.


Sec.  2016.5  Information exempt from public inspection.

    (a) Information submitted in confidence shall be exempt from public 
inspection if USTR determines that the disclosure of such information 
is not required by law.
    (b) A person requesting an exemption from public inspection for 
information submitted in writing shall clearly mark each page 
``BUSINESS CONFIDENTIAL'' at the top, and shall submit a non-
confidential summary of the confidential information. Such person shall 
also provide a written explanation of why the material should be so 
protected.
    (c) A request for exemption of any particular information may be 
denied if USTR determines that such information is not entitled to 
exemption under law. In the event of such a denial, the information 
will be returned to the person who submitted it, with a statement of 
the reasons for the denial.

John K. Veroneau,
General Counsel.
[FR Doc. 03-18957 Filed 7-24-03; 8:45 am]
BILLING CODE 3190-01-M