[Federal Register Volume 74, Number 11 (Friday, January 16, 2009)]
[Rules and Regulations]
[Pages 2847-2849]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-860]


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INTERNATIONAL TRADE COMMISSION

19 CFR Part 207


Revised Procedures and Requests for Information During Adequacy 
Phase of Five-Year Reviews

AGENCY: United States International Trade Commission.

ACTION: Final rulemaking.

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SUMMARY: The United States International Trade Commission (``the 
Commission'') amends its Rules of Practice and Procedure to require 
that responses to notices of institution of five-year reviews be filed 
within 30 days of publication of the notice, as opposed to the 50-day 
response period specified in its current rules. It also provides notice 
of its decision, which does not require a change in its rules, to seek 
additional information from interested parties at the institution of 
five-year reviews, and to seek information from purchasers during the 
adequacy phase of five-year reviews in certain circumstances.

DATES: Effective Date: This regulation is effective February 17, 2009.
    Applicability Date: This regulation and the other changes to 
Commission procedures described in this notice will be applicable to 
five-year reviews instituted on or after March 1, 2009.

FOR FURTHER INFORMATION CONTACT: Marc A. Bernstein, Office of General 
Counsel, U.S. International Trade Commission, telephone 202-205-3087, 
or John Ascienzo, Office of Investigations, U.S. International Trade 
Commission, telephone 202-205-3175. Hearing-impaired individuals can 
obtain information on this matter by contacting the Commission's TDD 
terminal at 202-205-1810. General information concerning the Commission 
may also be obtained by visiting its Web site at http://www.usitc.gov.

SUPPLEMENTARY INFORMATION: On July 17, 2008, the Commission published a 
notice of proposed rulemaking (NOPR) in the Federal Register. 73 FR 
40992 (July 17, 2008). In that notice the Commission proposed two sets 
of changes to the procedures it uses during the adequacy phase of five-
year reviews that it conducts pursuant to 19 U.S.C. 1675(c). First, the 
Commission proposed modifying the information it requests interested 
parties furnish in their responses to the notice of institution it 
publishes pursuant to section 207.60(d) of the Commission's Rules of 
Practice and Procedure, 19 CFR 207.60(d), and proposed issuing short 
questionnaires to purchasers in some circumstances. This set of 
proposals did not require any amendment to the Commission's 
regulations. The second proposal sought to amend section 207.61(a) of 
the Commission's Rules of Practice and Procedure to require that 
responses to the notice of institution be filed within 30 days after 
its publication.
    Although the Commission considers these rules to be procedural 
rules that are excepted from the notice and comment requirements of 5 
U.S.C. 553(b)(3)(A), the Commission invited the public to comment on 
the proposed rule amendment and the other proposed changes to its 
procedures within 60 days of publication of the NOPR in the Federal 
Register. The Commission received substantive comments from the 
following: (1) The law firm of Wiley Rein on behalf of the Steel 
Manufacturers Ass'n (SMA); (2) the law firm of Skadden, Arps, Slate, 
Meagher & Flom (Skadden); (3) the law firm of Kelley Drye & Warren 
(Kelley); and (4) the law firm of Stewart and Stewart (Stewart).
    In adopting these changes to its rules and procedures, the 
Commission has fully considered the concerns expressed in the comments 
with respect to the potential burden on parties to reviews and the 
usefulness of the additional information sought by the Commission. 
These comments, and the Commission's responses thereto, are discussed 
comprehensively below. In light of the comments, the Commission intends 
to review its new information requests and changes to its procedures 
once it has had sufficient experience with them. In particular, the 
Commission intends to examine the changes' utility and relevance in 
attaining the desired objectives, as well as the rate of response by 
purchasers to the adequacy phase questionnaires.
    As required by the Regulatory Flexibility Act, the Commission 
certifies that the amendment to its regulation will not have a 
significant impact on small business entities.

Changes in Commission Data Collection

    The Commission has decided to adopt the changes in data collection 
proposed in the NOPR. Accordingly, each notice of institution the 
Commission issues will contain the additional information requests 
indicated in Appendix A to the NOPR, and in those reviews in which the 
Commission does not receive responses to the notice of institution from 
both domestic interested parties and respondent interested parties, the 
Commission will transmit brief questionnaires to purchasers, in the 
format indicated in Appendix B to the NOPR, shortly after it receives 
responses to the notice of institution. These changes will become 
effective for reviews instituted on or after March 1, 2009.
    The commenters opposed both of the Commission's data collection 
proposals. With respect to the proposal to seek additional information 
in the notice of institution, commenters questioned the appropriateness 
of the Commission's stated objective of obtaining a more complete 
record to better enable it to decide whether to expedite a review. 
Skadden contended that the Commission should expedite reviews whenever 
responses from an interested party group are inadequate and that

[[Page 2848]]

Congress never intended the Commission to take considerations such as 
conditions of competition into account in deciding whether to expedite 
a review. Kelley expressed a similar view, maintaining that when 
parties have deliberately chosen not to participate in a review, it is 
a waste of resources for the Commission and other parties to undertake 
the costs of a full review. SMA asserted that the sole purpose of 
information requests in the adequacy phase is to ascertain sufficient 
commitment to participation in a five-year review.The Commission 
disagrees with the premise underlying these comments that an inadequate 
interested party group response should always result in an expedited 
determination. Neither the statute nor Commission practice dictates 
such a result. The statute states that ``[i]f interested parties 
provide inadequate responses to the notice of institution * * * the 
Commission * * * may issue, without further investigation, a final 
determination based on the facts available.'' 19 U.S.C. 1675(c)(3)(B) 
(emphasis added). The statutory language indicates that the Commission 
has the discretion whether to conduct an expedited review when it 
receives an inadequate response from an interested party group. While 
the Statement of Administrative Action (SAA) for the Uruguay Round 
Agreements Act states that the purpose of the expedited review 
procedure is ``to eliminate needless reviews,'' it does not suggest 
that all reviews in which an interested party group response may be 
inadequate are necessarily ``needless.'' H.R. Rep. 103-316, vol. I at 
880 (1994). Indeed, in its 1998 rulemaking notice, the Commission 
expressly indicated that it ``has the discretion to conduct a full 
review even when interested party responses are inadequate.'' 63 FR 
30599, 30604 (June 5, 1998). The circumstances the Commission 
identified as justifying such an exercise of discretion included mixed 
responses in grouped reviews (i.e., adequate respondent interested 
party group responses for some subject countries but not others) and 
the existence of significant domestic like product issues. Id. at 
30604. In recent years, the Commission has taken the position that 
changes in conditions of competition may also warrant conducting a full 
review even when a respondent interested party group response is 
inadequate. E.g., Certain Welded Stainless Steel Pipe from Korea and 
Taiwan, Inv. Nos. 731-TA-540-541 (Second Review), USITC Pub. 3877 at 3 
(Aug. 2006).
    Commenters questioned whether the additional data requests would 
accomplish the Commission's objective of improving the information 
available to it in expedited reviews. Three commenters contended that 
the additional information the Commission seeks will be too limited in 
temporal scope, because it will concern only one calendar year, to be 
particularly probative. They asserted that a single year's worth of 
data may be misleading.
    The Commission acknowledges the limitations of a data set that 
contains data for only one year. Nevertheless, the other data the 
Commission currently seeks in the notice of institution similarly 
encompass only a single calendar year. The Commission believes that 
obtaining additional data concerning capacity, financial information 
concerning production of the domestic like product, and prices for the 
domestic like product and subject merchandise in the U.S. and other 
world markets will improve the quality of the record in the reviews it 
chooses to expedite. Indeed, none of the commenters directly challenged 
this proposition. Although commenters expressed concern about the 
burden of providing the additional information the Commission proposes 
to collect, the Commission believes that burden will be reasonable and 
will certainly be less onerous than that involved in supplying data for 
several years.
    Commenters further questioned whether any information purchasers 
may provide in the proposed ``mini-questionnaires'' will be useful to 
the Commission. Skadden and SMA contended that because purchasers 
cannot provide information pertinent to whether interested parties are 
willing to participate in a review and provide requested information to 
the Commission, the information they would supply would not be 
pertinent. Kelley and SMA expressed the concern that purchasers' 
responses will be skewed by a desire to reduce the price of their 
inputs. Skadden and Stewart questioned whether the limited number of 
purchasers likely to receive the mini-questionnaires will be 
sufficiently representative to provide reliable information. Stewart 
also observed that the mini-questionnaires may prove burdensome to 
purchasers, who will be required to furnish the same information a 
second time should the Commission conduct a full investigation.
    The commenters' central objection to this proposal is premised on 
the view that the only purpose of the adequacy phase of a five-year 
review is to ascertain whether there are sufficient responses to 
warrant conducting a full review, and if a group response is 
inadequate, the Commission must expedite the review. The Commission has 
previously disagreed with this premise and has reaffirmed the relevance 
of examining whether there have been significant changes in conditions 
of competition for the purpose of determining whether a full review is 
warranted, notwithstanding an inadequate group interested party 
response. The Commission acknowledges that the information the 
purchasers will provide in response to their mini-questionnaires will 
be limited in scope and may reflect the perspective of the submitter. 
Nevertheless, the Commission currently believes this limited 
information will provide a useful supplement to the information 
provided in the responses to the notices of institution as to how the 
current conditions of competition for the domestic like product and the 
subject merchandise may differ from those that the Commission examined 
in prior determinations. The Commission further notes that the 
responses to the notice of institution also reflect the perspective of 
the submitter. In addition, no purchaser interests submitted any 
comments objecting to the proposal. Nevertheless, as previously 
discussed, the Commission will further consider both the response rate 
to the mini-questionnaires and the utility of the information they 
provide once it has obtained experience issuing such questionnaires and 
analyzing responses to them.

Change in Commission Rule 207.61(a)

    In the NOPR, the Commission proposed amending Commission Rule 
207.61(a) to require that responses to the notice of institution be 
submitted within 30 days after publication of the notice, as opposed to 
the current 50 days. The Commission stated that this change would 
permit the Commission staff the additional time it would need to engage 
in the additional information collection and analysis that was 
contemplated under the proposed new data collection requests. Because 
the Commission has implemented the proposed new data collection 
requests, it has also determined to issue the proposed change to 
Commission Rule 207.61(a) in final form. The amended regulation will 
apply to all reviews instituted on or after March 1, 2009.
    Each of the commenters opposed the proposed change to Commission 
Rule 207.61(a) on the grounds that a 30-day response period was 
insufficient. Skadden and Stewart contended that parties need the full 
50 days currently

[[Page 2849]]

provided in the rule to file their substantive responses to the 
Commission because they will be devoting the first 30 days of that 
period preparing responses to the Department of Commerce. SMA stated 
that current requirements for adequacy comments are arduous and that 
increasing the amount of information that must be provided while 
reducing the amount of time available to prepare a submission is 
problematic. Kelley asserted that domestic producers will put more 
detailed information in a notice of review if they are aware that no 
respondent interested parties will participate. Notices of appearance 
need not be filed until 21 days after the notice of institution, and 
Kelley asserted that nine days would be insufficient time for a 
domestic producer to compile this more detailed information.
    The commenters' objections proceed largely from the premise that a 
domestic producer will not begin to prepare its responses to either the 
Commerce notice of initiation or the Commission notice of institution 
until these notices are published in the Federal Register. The 
Commission does not agree with this premise. Interested parties are in 
a position to begin compiling information needed for a five-year review 
well before the publication of notices in the Federal Register 
beginning the reviews. The parties typically know the date that 
Commerce and the Commission will publish their Federal Register notices 
many months in advance. The Commission requests standardized 
information in interested parties' responses to notices of institution; 
the information requests are generally known prior to publication of 
the Federal Register notice. Similarly, the information that Commerce 
requires to be submitted in a notice of intent to participate in a 
sunset review is specified by regulation, and thus will be known well 
before initiation of the review. Kelley's assertion that responses to 
the notice of institution contain more detailed information in 
uncontested reviews than in contested reviews is not consistent with 
the Commission's experience.

List of Subjects in 9 CFR Part 207

    Administrative practice and procedure, investigations.

0
For the reasons stated in the preamble, the Commission amends 19 CFR 
part 207 as follows:

PART 207--INVESTIGATIONS OF WHETHER INJURY TO DOMESTIC INDUSTRIES 
RESULTS FROM IMPORTS SOLD AT LESS THAN FAIR VALUE OR FROM 
SUBSIDIZED EXPORTS TO THE UNITED STATES

0
1. The authority citation for part 207 continues to read as follows:

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


0
2. Amend Sec.  207.61 by revising paragraph (a) as follows:


Sec.  207.61  Responses to notice of institution.

    (a) When Information Must Be Filed. Responses to the notice of 
institution shall be submitted to the Commission no later than 30 days 
after its publication in the Federal Register.
* * * * *

    Issued: January 12, 2009.

    By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. E9-860 Filed 1-15-09; 8:45 am]
BILLING CODE 7020-02-P