[Federal Register Volume 72, Number 38 (Tuesday, February 27, 2007)]
[Rules and Regulations]
[Pages 8624-8628]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-3387]


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INTERNATIONAL TRADE COMMISSION

19 CFR Part 208


Investigations Relating to Commercial Availability Under the 
African Growth and Opportunity Act

AGENCY: United States International Trade Commission.

ACTION: Interim rule with request for comments.

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SUMMARY: The Commission is amending its rules of practice and procedure 
to add a new part 208 in order to implement section 112(c) of the 
African Growth and Opportunity Act (AGOA), as amended (19 U.S.C. 
3721(c)). The provisions addressing the Commission's role are contained 
in amendments to AGOA which the President signed into law on December 
20, 2006. The interim rules provide for Commission investigations, 
determinations, and reports under section 112(c) of AGOA, and also 
specify the information that must be included in a properly filed 
petition. Interim rules are necessary because the new provisions became 
effective on the day of enactment; in the absence of interim rules, the 
Commission will have no procedures in place with respect to these 
proceedings.

DATES: This interim rule is effective February 27, 2007. Comments 
concerning these interim rules should

[[Page 8625]]

be submitted not later than April 30, 2007.

ADDRESSES: You may submit comments, identified by docket number MISC-
023 by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Agency Web Site: http://www.usitc.gov. Follow the 
instructions for submitting comments. See http://www.usitc.gov/.secretary/edis.htm.
     Mail: For paper submission. U.S. International Trade 
Commission, 500 E Street, SW., Room 112, Washington, DC 20436.
     Hand Delivery/Courier: U.S. International Trade 
Commission, 500 E Street, SW., Room 112, Washington, DC 20436. From the 
hours of 8:45 a.m. to 5:15 p.m.
    For detailed instructions on submitting comments, see the ``Public 
Participation'' heading of the SUPPLEMENTARY INFORMATION section of 
this document.

FOR FURTHER INFORMATION CONTACT: William Gearhart, Esq., Senior 
Counsel, Office of the General Counsel, 202-205-3091 (e-mail: 
[email protected]); or Marilyn R. Abbott, Secretary to the 
Commission, 202-205-2000 (e-mail: [email protected]). General 
information concerning the Commission may also be obtained by accessing 
its Internet server (http://www.usitc.gov). Hearing-impaired persons 
are advised that information on this interim rulemaking can be obtained 
by contacting the Commission's TDD terminal on 202-205-1810.

SUPPLEMENTARY INFORMATION:

Public Participation

    Instructions: All submissions received must include the agency name 
and docket number (MISC-023) for this rulemaking. All comments received 
will be posted without change to http://www.usitc.gov, including any 
personal information provided. For paper copies, a signed original and 
14 copies of each set of comments, along with a cover letter stating 
the nature of the commenter's interest in the proposed rulemaking, 
should be submitted to Marilyn R. Abbott, Secretary, U.S. International 
Trade Commission, 500 E Street, SW., Room 112, Washington, DC 20436. 
Comments, along with a cover letter, may be submitted electronically to 
the extent provided by Sec.  201.8 of the Commission's rules. This rule 
may refer commenters to the Handbook for Electronic Filing Procedures 
(see http://www.usitc.gov/secretary/edis.htm). For those submitting 
comments by mail, it is advisable to mail comments in advance of the 
due date since Commission mail will be delayed due to necessary 
security screening.
    Docket: For access to the docket to read comments received, go to 
http://www.usitc.gov or U.S. International Trade Commission, 500 E 
Street, SW., Room 112, Washington, DC 20436. The preamble below is 
designed to assist readers in understanding these proposed amendments 
to the Commission's rules. The preamble includes a discussion of the 
background leading up to these proposed amendments, a regulatory 
analysis addressing government-wide statutes and issuances on 
rulemaking, and a description of the proposed amendments to the rules. 
The Commission encourages members of the public to comment--in addition 
to any other comments they wish to make on the proposed amendments--on 
whether the proposed language is sufficiently clear for users of the 
rules to understand.
    If the Commission decides to proceed to final rulemaking after 
reviewing the comments filed in response to this notice, the final rule 
revisions will be promulgated in accordance with the Administrative 
Procedure Act (5 U.S.C. 553).

Background

    The interim rules establish a new part 208 of 19 CFR to provide for 
Commission investigations, determinations, and reports under section 
112(c) of the African Growth and Opportunity Act (19 U.S.C. 3721(c)) 
(AGOA). The Commission's general authority to issue rules is set out in 
19 U.S.C. 1335. On December 20, 2006, the President signed H.R. 6111 
into law (Public Law 109-432), which amends section 112 of AGOA. Newly 
amended section 112(c) provides for Commission investigations and 
determinations concerning (1) Whether a fabric or yarn produced in 
beneficiary sub-Saharan African countries is available in commercial 
quantities for use by lesser developed beneficiary sub-Saharan African 
countries, and if so, (2) the quantity of the fabric or yarn that will 
be so available in lesser developed beneficiary sub-Saharan African 
countries in the applicable 1-year period (October 1-September 30) 
after the determination is made. Section 112(c) further provides, when 
the Commission makes an affirmative determination, for additional 
Commission determinations during and after the applicable 1-year 
period.
    Because the new provisions became effective on the date of 
enactment, the Commission did not have sufficient time to issue a 
notice of proposed rulemaking. These interim rules are necessary 
because the Commission must conduct an investigation upon receipt of an 
appropriate petition, and in the absence of interim rules the public 
will have no guidance with respect to how the Commission intends to 
conduct its investigations and make determinations. The interim rules 
cover petitions for an investigation, Commission investigations in 
response to a petition, and the determinations described in (1) and 
(2), above, that the Commission must make.
    The interim rules identify the types of entities that may file a 
petition and describe the information that must be included in a 
petition; provide for Commission investigations and establish 
procedures for conducting such investigations, including with respect 
to confidential business information; and describe the determinations 
and reports that the Commission will make and their content and timing.

Regulatory Analysis of Interim Rules in 19 CFR Part 208

    The Commission has determined that the interim rules 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.
    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 5 U.S.C. 553(b) or any 
other statute. These interim regulations are ``agency rules of 
procedure and practice,'' and thus are exempt from the notice 
requirement imposed by 5 U.S.C. 553(b).
    These interim rules do not contain federalism implications 
warranting the preparation of a federalism summary impact statement 
pursuant to Executive Order 13132 (64 FR 43255, Aug. 4, 1999).
    No actions are necessary under the Unfunded Mandates Reform Act of 
1995 (2 U.S.C. 1501 et seq.) because the interim 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.
    The interim rules are not major rules as defined by section 804 of 
the Small Business Regulatory Enforcement

[[Page 8626]]

Fairness Act of 1996 (5 U.S.C. 801 et seq.). Moreover, they 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 interim rules 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.

Explanation of the Interim Rules in 19 CFR Part 208

    The Commission proposes to add part 208 in the manner described 
below.

Section 208.1

    Section 208.1 of new part 208 states that this part 208 applies to 
functions and duties of the Commission under section 112(c) of AGOA, as 
amended.

Section 208.2

    Section 208.2 sets forth definitions applicable to part 208, 
including with respect to the terms beneficiary sub-Saharan African 
country, lesser developed beneficiary sub-Saharan African countries, 
and applicable 1-year period.

Section 208.3

    Section 208.3 identifies the persons who may file a petition with 
the Commission under section 112(c) of AGOA, and lists the types of 
information that must be included in the petition.

Section 208.4

    Section 208.4 states that the Commission will institute an 
investigation not later than 10 days after receiving a properly filed 
petition, describes the information that the Commission will include in 
the Federal Register notice announcing the investigation, and states 
that the Commission will make the petition available for public 
inspection (with the exception of confidential business information).

Section 208.5

    Section 208.5 states that the Commission may, in its discretion, 
hold a public hearing, provide reasonable notice of any hearing, and 
afford interested parties the opportunity to be present, present 
evidence, and be heard at any such hearing.

Section 208.6

    Section 208.6 describes Commission procedures concerning the filing 
and service of documents and the required certification required by any 
person submitting factual information.

Section 208.7

    Section 208.7 states that the Commission will, if necessary, make 
its determinations on the basis of the facts available; will make its 
determinations by September 25, 2007, with respect to petitions 
received on or before March 28 and accepted on or before April 11, 
2007, and will make its determinations by August 1 of subsequent years 
with respect to petitions received on or before January 15 and accepted 
on or before February 1 of those years; will include in its report to 
the President its determination(s) and an explanation thereof, and any 
dissenting or separate views of Commissioners; and will make public the 
report it sends to the President (with the exception of confidential 
business information).

Section 208.8

    Section 208.8 sets forth Commission policy under part 208 with 
respect to nondisclosure of confidential business information, and also 
generally requires that persons submitting confidential business 
information provide the Commission with a non-confidential summary of 
such information.

List of Subjects in 19 CFR Part 208

    Administration practice and procedure, Business and industry, 
Customs duties, Imports, Investigations.

0
For the reasons stated in the preamble, the Commission amends 19 CFR to 
add part 208 to read as follows:

PART 208--INVESTIGATIONS WITH RESPECT TO COMMERCIAL AVAILABILITY OF 
TEXTILE FABRIC AND YARN IN SUB-SAHARAN AFRICAN COUNTRIES

Sec.
208.1 Applicability of part.
208.2 Definitions applicable to this part.
208.3 Petitions.
208.4 Institution of investigations; publication of notice; and 
availability of petition for public inspection.
208.5 Public hearing.
208.6 Service, filing, and certification of documents.
208.7 Determinations and reports.
208.8 Confidential business information; furnishing of 
nonconfidential summaries thereof.

    Authority: 19 U.S.C. 1335; 19 U.S.C. 3721(c).


Sec.  208.1  Applicability of part.

    This part 208 applies to proceedings of the Commission under 
section 112(c) of the African Growth and Opportunity Act, as amended 
(19 U.S.C. 3721(c)).


Sec.  208.2  Definitions applicable to this part.

    (a) Beneficiary sub-Saharan African country. The term ``beneficiary 
sub-Saharan African country'' means those countries so designated by 
the President under 19 U.S.C. 2466a.
    (b) Lesser developed beneficiary sub-Saharan African country. The 
term ``lesser developed beneficiary sub-Saharan African country'' means 
a beneficiary sub-Saharan African country that had a per capita gross 
national product of less than $1,500 in 1998, as measured by the 
International Bank for Reconstruction and Development; Botswana; and 
Namibia.
    (c) Applicable 1-year period. The term ``applicable 1-year period'' 
means the 12-month period beginning on October 1 and ending on 
September 30 of the following year.


Sec.  208.3  Petitions.

    (a) Who may file. A petition under this part may be filed with the 
Commission by an interested party, including a producer of fabric or 
yarn in a beneficiary sub-Saharan African country, a producer of 
apparel in a lesser developed beneficiary sub-Saharan African country, 
or any other person who demonstrates to the satisfaction of the 
Commission a proper interest in filing a petition.
    (b) Contents of petition. The Commission will consider only 
petitions that address a single yarn or single fabric. The term ``a 
single yarn or single fabric'' means a single product, which may be 
classified in more than one heading of the HTS or may be only part of a 
heading. A petition shall include the following information in support 
of a request for a Commission investigation and determination under 
this part, to the extent that such information is available from 
governmental or other sources. To the extent information is not 
available from such sources, the petition may be based on best 
estimates, including an explanation of the basis therefor. If the 
petition does not include the required information and/or estimates and 
explanation, the petition will not be accepted, and it will instead be 
returned to the submitter. All quantities must be expressed in the unit 
of quantity used in the Harmonized Tariff Schedule of the United 
States, showing any conversion factors used (for example, most woven 
fabrics are reported in square meters, and most apparel are reported in 
numbers of units).
    (1) Product description. The name and description of the fabric or 
yarn concerned, including fiber content, yarn size, fabric 
construction, and finishing processes, specifying the United States

[[Page 8627]]

tariff provision under which such article is classified (to the 8-digit 
level if possible) and the beneficiary sub-Saharan African country or 
countries in which the fabric or yarn is produced.
    (2) Statement of interest. The names and addresses of the 
interested party or parties filing the petition or represented in the 
petition, the location and nature of their establishments, a 
description of the fabrics, yarns, and apparel that they produce, 
import, and/or sell, for each party filing or represented (including 
but not limited to the fabric or yarn that is a subject of the 
petition), and the basis for asserting that such person or entity is an 
interested party eligible to file a petition under this part.
    (3) Basis for certain statements. The basis for asserting that the 
subject fabric or yarn produced in a beneficiary sub-Saharan African 
country is available in ``commercial quantities'' and for ``use'' in a 
lesser developed beneficiary sub-Saharan African country or countries. 
In support of a claim that such fabric or yarn is available in 
``commercial quantities,'' provide evidence for the 3 most recent full 
years for which information is available, and partial year data for the 
most recent year (if less than a full year), that such fabric or yarn 
is available for sale to third parties and the quantities offered, and 
any evidence of such sales to third parties. Include advertisements or 
other documentation in support of such claim. In support of a claim 
that such fabric or yarn is available for ``use'' in a lesser developed 
beneficiary sub-Saharan African country or countries, provide evidence 
for the 3 most recent full years for which information is available, 
and partial year data for the most recent year (if less than a full 
year), of any offers, orders, or contracts or other supporting 
documentation. For orders already delivered, indicate the quantity 
involved and the time and location of the deliveries to the apparel 
producer. For orders for which deliveries have not yet been made, 
indicate the time or likely time of the receipt by an apparel producer 
in all countries where the fabric or yarn has been sold or offered for 
sale, including lesser developed sub-Saharan African country or 
countries.
    (4) Data concerning fabric and yarn. With respect to the subject 
fabric or yarn:
    (i) Data on production, sales, inventories, and capacity, that is 
supportable through documentation that can be made available to the 
Commission, for each firm known or believed to be producing the subject 
fabric or yarn in a beneficiary sub-Saharan African country, for each 
of the 3 most recent full years for which data are available, and 
partial year data for the most recent year (if less than a full year);
    (ii) The name, address (house number, street, city, country, postal 
mailing number), telephone number, e-mail address, and contact person 
for each producer known or believed to be producing such fabric or yarn 
in a beneficiary sub-Saharan African country.
    (5) Orders from apparel producers and other users. Data on orders 
from apparel producers and other users in all countries where the 
fabric or yarn has been sold or offered for sale, including lesser 
developed beneficiary sub-Saharan African countries, by country, for 
the most recent full year and partial year (if less than a full year), 
and projected orders for the 1-year period (October 1-September 30) 
beginning after the Commission's determination. The information 
furnished shall include the full fabric or yarn specification in the 
order, including, but not limited to, the fiber content, yarn size, 
fabric construction, finishing processes, quantities, projected 
delivery time for the fabric or yarn to the customer identified in the 
order, and any other information that the interested party submitting 
the petition believes is relevant. It shall also include the name, 
address (house number, street, city, country, postal mailing number), 
telephone number, e-mail address, and contact person (i) for each 
beneficiary sub-Saharan African fabric or yarn producer identified in 
each reported order, and (ii) for each lesser developed beneficiary 
sub-Saharan African apparel producer or other user identified in each 
reported order.
    (6) Estimated quantity available in next 1-year period. Estimated 
production of the subject fabric or yarn, by firm, for the 1-year 
period (October 1-September 30) beginning after the Commission's 
determination, and an estimate of the quantity of such production of 
fabric or yarn, by firm, that will be available in lesser developed 
beneficiary sub-Saharan African countries in that 1-year period, and 
basis for that estimate, including orders and other supporting 
documents.


Sec.  208.4  Institution of investigations; publication of notice; and 
availability of petition for public inspection.

    (a) Institution of investigation and publication of notice. The 
Commission, after receipt of a petition under this part, properly 
filed, will institute an appropriate investigation not later than 10 
days after receipt of the petition, and publish notice thereof in the 
Federal Register.
    (b) Contents of notice. The notice instituting the investigation 
will identify the petitioner, the fabric or yarn that is the subject of 
the investigation and its tariff subheading, the nature and timing of 
the determination to be made, the time and place of any public hearing, 
the deadlines for filing briefs, statements, and other documents, page 
limits (if any) on posthearing briefs and documents, the place at which 
the petition or request and any other documents filed in the course of 
the investigation may be inspected, and the name, address, and 
telephone number of the office that may be contacted for more 
information.
    (c) Availability for public inspection. The Commission will 
promptly make each petition available for public inspection (with the 
exception of confidential business information).


Sec.  208.5  Public hearing.

    (a) In general. The Commission may, in its discretion, hold a 
public hearing in connection with an investigation under this part. If 
the Commission holds a public hearing, it will do so only after having 
caused reasonable notice thereof to be published in the Federal 
Register.
    (b) Opportunity to appear. All interested parties will be afforded 
an opportunity to be present, to present evidence, and to be heard at 
any such hearing.


Sec.  208.6  Service, filing, and certification of documents.

    (a) Filing. Documents to be filed with the Commission must comply 
with applicable rules, including Sec.  201.8 of this chapter. If the 
Commission establishes a deadline for the filing of a document, and the 
submitter includes confidential business information in the document, 
the submitter is to file the confidential version on or before the 
deadline date and may file the nonconfidential version no later than 
one business day after the deadline for filing the document. If the 
submitter is a party, the submitter is to serve the nonconfidential 
version of the document on other parties on the service list no later 
than one business day after the deadline for filing the document. The 
confidential version filed with the Commission shall enclose all 
confidential business information in brackets and have the following 
warning marked on every page: ``Bracketing of CBI not final for one 
business day after date of filing.'' The bracketing becomes final one 
business day after the date of filing of the document, i.e., at the 
same time as the nonconfidential version of the document is due to be 
filed. If the submitter discovers it has failed to

[[Page 8628]]

bracket correctly, the submitter may file a corrected version or 
portion of the confidential document at the same time as the 
nonconfidential version is filed. No changes to the document other than 
bracketing and deletion of confidential business information are 
permitted after the deadline. Failure to comply with this paragraph may 
result in the striking of all or a portion of a submitter's document.
    (b) Service. Any party submitting a document for the consideration 
of the Commission in the course of an investigation to which this part 
pertains shall, in addition to complying with Sec.  201.8 of this 
chapter, serve a copy of the public version of such document on all 
other parties to the investigation in the manner prescribed in Sec.  
201.16 of this chapter. If a document is filed before the Secretary's 
issuance of the service list provided for in Sec.  201.11 of this 
chapter, the document need not be accompanied by a certificate of 
service, but the document shall be served on all appropriate parties 
within two (2) days of the issuance of the service list and a 
certificate of service shall then be filed. Notwithstanding Sec.  
201.16 of this chapter, petitions, briefs, and testimony filed by 
parties shall be served by hand or, if served by mail, by overnight 
mail or its equivalent. Failure to comply with the requirements of this 
rule may result in removal from status as a party to the investigation. 
The Commission shall make available, upon request, to all parties to 
the investigation a copy of each document, except transcripts of 
hearings, confidential business information, privileged information, 
and information required to be served under this section, placed in the 
docket file of the investigation by the Commission.
    (c) Certification. Any person submitting factual information on 
behalf of the petitioner or any other interested party for the 
consideration of the Commission in the course of an investigation to 
which this part pertains, and any person submitting a response to a 
Commission questionnaire issued in connection with an investigation to 
which this part pertains, must certify that such information is 
accurate and complete to the best of the submitter's knowledge.


Sec.  208.7  Determinations and reports.

    (a) Determinations. When relevant information is not available on 
the record or any party withholds information that has been requested 
by the Commission, the Commission will make its determination on the 
basis of the facts available. When the Commission relies on information 
submitted as facts available, it will, to the extent practicable, 
corroborate the information from independent sources that are 
reasonably available to the Commission.
    (b) Time for determinations and reports. The Commission will make 
its determinations under section 112(c)(2)(A) and (B)(i) of AGOA and 
transmit its reports to the President by September 25, 2007, with 
respect to petitions received on or before March 28 and accepted on or 
before April 11, 2007, and will make its determinations by August 1 of 
subsequent years with respect to petitions received on or before 
January 15 and accepted on or before February 1 of those years.
    (c) Contents of report. The Commission will include in its report 
to the President the following:
    (1) The determination made with respect to whether a fabric or yarn 
produced in beneficiary sub-Saharan African countries is available in 
commercial quantities for use in lesser developed beneficiary sub-
Saharan African countries, and an explanation of the basis for the 
determination;
    (2) If the determination in paragraph (c)(1) of this section is 
affirmative, a determination with respect to the quantity of the fabric 
or yarn that will be so available in lesser developed beneficiary sub-
Saharan African countries in the applicable 1-year period beginning 
after the determination is made;
    (3) Any dissenting or separate views by members of the Commission 
regarding such determinations.
    (c) Public version of report. Upon making its report to the 
President, the Commission will make such report public (with the 
exception of information which the Commission determines to be 
confidential), and publish a summary thereof in the Federal Register.


Sec.  208.8  Confidential business information; furnishing of 
nonconfidential summaries thereof.

    (a) Nonrelease of information. In the case of an investigation 
under this part, the Commission will not release information which the 
Commission considers to be confidential business information within the 
meaning of Sec.  201.6 of this chapter unless the party submitting the 
confidential business information had notice, at the time of 
submission, that such information would be released by the Commission, 
or such party subsequently consents to the release of the information. 
When appropriate, the Commission will include confidential business 
information in reports transmitted to the President (and/or the United 
States Trade Representative); such reports will be marked as containing 
confidential business information, and a nonconfidential version of 
such report will be made available to the public.
    (b) Nonconfidential summaries. Except as the Commission may 
otherwise provide, a party submitting confidential business information 
shall also submit to the Commission, at the time it submits such 
information, a nonconfidential summary of the information. If a party 
indicates that the confidential business information cannot be 
summarized, it shall state in writing the reasons why a summary cannot 
be provided. If the Commission finds that a request for confidentiality 
is not warranted and if the party concerned is either unwilling to make 
the information public or to authorize its disclosure in generalized or 
summarized form, the Commission may disregard the submission.

    By order of the Commission.

     Issued: February 21, 2007.
Marilyn R. Abbott,
Secretary to the Commission.
 [FR Doc. E7-3387 Filed 2-26-07; 8:45 am]
BILLING CODE 7020-02-P