[Federal Register Volume 69, Number 214 (Friday, November 5, 2004)]
[Notices]
[Pages 64589-64590]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-24703]



[[Page 64589]]

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INTERNATIONAL TRADE COMMISSION


Public Input on Improving Agency Procedures

AGENCY: International Trade Commission.

ACTION: Notice of changes in agency procedures.

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SUMMARY: On December 4, 2002, the United States International Trade 
Commission invited the public to provide input on specific ways in 
which it could improve its conduct of antidumping duty (AD) and 
countervailing duty (CVD) investigations (67 FR 72221, December 4, 
2002). After consideration of the comments that were received, the 
Commission has made some changes to its internal procedures not 
requiring amendment to its rules.

FOR FURTHER INFORMATION CONTACT: Marilyn R. Abbott, Secretary, United 
States International Trade Commission, telephone (202) 205-2000. 
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 give 
notice of certain non-regulatory changes in Commission procedures. The 
preamble begins with a discussion of the background leading up to these 
changes in procedures and includes a description of the changes in 
procedure (most of which are already being implemented) that do not 
require amendments to the Commission's Rules. In addition to these non-
regulatory changes, the Commission has also decided to propose certain 
amendments to its Rules of Practice and Procedure, which are contained 
in a Notice of Proposed Rulemaking that has been published elsewhere in 
today's Federal Register.

Background

    On December 4, 2002, the United States International Trade 
Commission published a notice in the Federal Register (67 FR 72221) 
inviting the public to provide input on specific ways in which it could 
improve its conduct of AD and CVD investigations under 19 U.S.C. 1671 
et seq. The notice requested that such comments be filed within 90 days 
of publication of that notice in the Federal Register. Nine sets of 
comments were received, which suggested a number of changes to 
Commission rules, questionnaires, opinions, hearings and other 
practices.
    The Commission appreciates the time and effort those who provided 
comments took to present their views, and believes that the comments 
have contributed to improving Commission procedures. The comments 
stimulated an internal review of the Commission's non-regulatory 
practices in AD and CVD proceedings. That internal review has in turn 
resulted in certain changes in practices. Some of the changes were not 
specifically suggested by any comment. As is its normal practice, the 
Commission will continue to evaluate its procedures on an ongoing basis 
and will consider modifying them as is appropriate. Although the 
December 4, 2002 Notice noted that a hearing on these proposals might 
be held, after reviewing the comments, the Commission decided that such 
a hearing would not be necessary.

Overview of the Changes in Commission Procedures in Antidumping Duty 
and CVD Investigations Not Requiring Amendment of the Rules

Preliminary Phase Investigations
    The Commission has decided to adjust its procedures specific to 
preliminary phase investigations by providing for opening statements by 
petitioners and respondents at the outset of preliminary conferences to 
improve the focus of the conference and the questions posed by the 
staff to the parties. Because preliminary phase investigations do not 
involve the filing of written submissions or briefs prior to the 
conference, a brief opening statement by each side at the outset will 
enable those in attendance to know the principal contentions of each 
side. Further, in order to improve the ability of the parties to 
prepare for the conference, the Commission will endeavor to make the 
first release of business proprietary data obtained by the Commission 
under Administrative Protective Order (APO) at least two days prior to 
the conference when this is feasible.
Final Phase Investigations
    For final phase investigations, there were several suggestions 
regarding time lines for issuance of the Commission's prehearing report 
and for the filing of prehearing briefs. Current Commission practice 
has been to issue the business proprietary version of the report five 
business days before prehearing briefs are due, with the public version 
issued soon thereafter. After due consideration of all proposals, the 
Commission will now seek to issue the business proprietary version of 
the prehearing report about ten business days prior to the hearing. As 
noted in the Notice of Proposed Rulemaking, which has been published in 
today's Federal Register, in light of the earlier release of the 
prehearing report, the Commission is also proposing to amend its rule 
to require prehearing briefs to be filed five business days before the 
hearing, rather than the four business days that is now the deadline. 
This will provide somewhat more time for the Commission, its staff, and 
all parties to consider the arguments and information presented in the 
prehearing report and briefs.
    One comment requested that the Commission allow a party to file new 
factual information to rebut information presented for the first time 
by a party in its posthearing brief. Currently, pursuant to rule 207.30 
and 19 U.S.C. 1677m(g), parties have an opportunity, at a date 
specified by the Commission (which is after the date for the submission 
of posthearing briefs), to submit final comments on factual 
information. Pursuant to the rule and the statute, new factual 
information contained in those final comments must be disregarded by 
the Commission. The suggestion that has been made would effectively 
require the Commission to allow an additional submission, between the 
time of the posthearing briefs and the submission of these final 
comments, for parties to provide factual information to rebut new 
information contained in other parties' posthearing briefs. This would 
in turn require that this time come at the expense of other activities 
in the already crowded period late in the investigation.
    After careful consideration, it was decided that adding this 
additional opportunity to submit factual information this late in the 
investigation would not add a sufficient benefit to the Commission's 
investigation to justify shortening the time allotted to other events 
late in the investigation process. Throughout the course of an 
antidumping or countervailing duty investigation that proceeds to a 
final determination, parties to the Commission investigation(s) have at 
least nine opportunities to provide factual information or argument, or 
both, to the Commission: (1) Responses to the Commission's 
questionnaire in the preliminary phase of the investigation, (2) 
testimony and argument at the preliminary staff conference, (3) 
argument and information in postconference briefs, (4) written comments 
on draft questionnaires in the final phase of the

[[Page 64590]]

investigation, (5) responses to the Commission's questionnaire, (6) 
argument and information in prehearing briefs, (7) testimony and 
argument at the hearing, (8) argument and information in posthearing 
briefs, and information in response to Commissioner or staff questions 
and (9) final comments, though without submission of new factual data, 
after posthearing briefs have been submitted. (Petitioners have an 
initial additional opportunity to provide factual information in the 
form of the petition filed at the beginning of the investigation.)
    The Commission understands the desire for parties to have ``one 
more opportunity'' to make their case, and particularly the desire to 
rebut factually the latest iteration of other parties' arguments or the 
latest data submissions by other parties or other persons. However, in 
light of the statutory deadlines in these investigatory proceedings, 
which the Commission cannot extend, adding another brief or opportunity 
for more factual submissions late in the investigative process would 
create problems in light of the need for the Commission and staff to 
evaluate, summarize, and consider the information and argument 
provided. The Commission also needs to allot sufficient time before the 
impending statutory deadline to write an opinion that explains its 
determination(s).
    In light of this concern, the Commission wishes to restate its 
current practice and to clarify that normally no new factual 
information volunteered by a party after the filing of its posthearing 
brief will be considered by the Commission unless the information is in 
response to a specific request for that information by a Commissioner 
or member of the Commission staff. If a party comes into possession of 
some highly relevant fact that was not available for submission to the 
Commission earlier, it must seek leave to file such new factual 
information, justifying both why the ``new'' factual information could 
not have been submitted at an earlier date (normally, because it would 
represent such a recent occurrence that it could not have been provided 
earlier), and why the new information is sufficiently significant to 
warrant adding to the factual record of the case this late.
    Such requests for leave will not be routinely granted. Simply 
wishing to rebut or respond to a factual assertion made in another 
party's posthearing brief is not a sufficient justification, nor is, 
for example, the proffered submission of a ``new'' affidavit that could 
have been provided at an earlier stage of the proceeding (unless the 
affidavit was specifically requested by a Commissioner or Commission 
staff).\1\ In the past, the Commission has only on rare instances 
``reopened'' the factual record on its own initiative to allow 
consideration of (and party comment on) late developments. For example, 
it did so in response to a significant correction by the Commerce 
Department of its final determination that resulted in the exclusion 
from its affirmative determination of a major subject exporter, and in 
response to a modification by the President of import relief measures 
under section 201 of the Trade Act of 1974 that potentially had a major 
effect on conditions of competition for the domestic industry.
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    \1\ It is well-recognized that agencies need to provide some 
cut-off for submissions so ``the debate does not go on 
indefinitely.'' Avesta AB v. United States, 689 F. Supp. 1173, 1188 
(Ct. Int'l Trade 1988). See also Chefline Corp. v. United States, 
219 F. Supp. 2d 1303, 1308, n. 5 (Ct. Int'l Trade 2002); General 
Motors Corp. v. United States, 827 F. Supp. 774, 781-783 (Ct. Int'l 
Trade 1993) (upholding the Commission's reliance on data submitted 
late in the proceeding when other parties were not allowed to 
respond, noting ``material injury investigations are not adversarial 
in a formal sense, and it is ultimately ITC's responsibility to 
evaluate the data it gathers.'').
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Questionnaires
    While questionnaires for specific investigations reflect the unique 
issues pertinent to individual investigations, the following are among 
the changes the Commission has made to its ``generic'' questionnaires:

--A checklist will be provided with U.S. producer and importer 
questionnaires to assist recipients in providing complete responses.
--When requesting capacity figures, questionnaires will request that 
capacity be allocated between products produced on the same equipment.
--Foreign producers will be requested to supply the basis for any 
projections of capacity, production, shipments, and inventories.
--In five-year review questionnaires to foreign producers, a question 
will be added seeking a comparison of prices in the U.S. with prices 
for the same product in foreign markets.
--Purchaser questionnaires will be mailed to purchasers listed in lost 
sale/revenue allegations by domestic producers. Also, purchasers listed 
in lost sales/revenue allegations by domestic producers will be asked 
whether the purchaser switched from a domestic supplier to a subject 
import supplier, or obtained a price reduction from a domestic supplier 
based on subject import competition during the period of investigation, 
even if the specific lost sale/revenue allegation could not be 
confirmed.

    The Commission has also completed an internal review of its 
questionnaires, which resulted in the elimination of redundant or 
marginally relevant questions, and the revision of some ambiguous 
questions to clarify the data being sought. The Commission is also 
including a question in all questionnaires seeking comment on any 
changes that the recipient believes may improve the clarity, ease of 
response, or usefulness of the questionnaire.
Staff Reports
    Reports will now include (in Chapter 1) a description of the major 
firms supplying the market for the product(s) at issue. In 
investigations involving multiple countries, it was suggested that the 
Commission report import pricing data on a weight-averaged cumulated 
basis in assessing the degree of underselling by subject imports. The 
Commission has decided to add this aggregated data, but will continue 
to provide country-specific pricing data as well in its reports.
    Staff reports will also include more detailed information 
concerning lost sale/revenue allegations.

    By Order of the Commission.

    Issued: November 1, 2004.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 04-24703 Filed 11-4-04; 8:45 am]
BILLING CODE 7020-02-P