[Federal Register Volume 76, Number 129 (Wednesday, July 6, 2011)]
[Rules and Regulations]
[Pages 39263-39278]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-16352]
[[Page 39263]]
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DEPARTMENT OF COMMERCE
International Trade Administration
19 CFR Part 351
[Docket No.100614263-1331-02]
RIN 0625-AA84
Antidumping and Countervailing Duty Proceedings: Electronic
Filing Procedures; Administrative Protective Order Procedures
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Final rule.
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SUMMARY: The Department of Commerce (``the Department'') is amending
its regulations governing the submission of information to the
Department in antidumping duty (``AD'') and countervailing duty
(``CVD'') proceedings. These amendments will incorporate changes
resulting from the Department's implementation of an electronic filing
and documents management program. More detailed procedures for
electronic filing are set forth in a document separate from the
regulations that is entitled ``IA ACCESS Handbook On Electronic Filing
Procedures'' (``IA ACCESS Handbook''), which the Department has
published on its Web site at http://iaaccess.trade.gov.
DATES: Effective Date: The effective date of this final rule is August
5, 2011. This final rule will apply to all AD/CVD proceedings that are
active on the effective date and all AD/CVD proceedings initiated on or
after the effective date.
FOR FURTHER INFORMATION CONTACT: Evangeline Keenan, Director of APO/
Dockets Unit, Import Administration at (202) 482-3354; or Brian Soiset,
Attorney, Office of the General Counsel, Office of Chief Counsel for
Import Administration at (202) 482-1284.
SUPPLEMENTARY INFORMATION:
Background
On September 28, 2010, the Department published proposed amendments
to the rules governing the submission of information to the Department
in antidumping duty (``AD'') and countervailing duty (``CVD'')
proceedings and requested comments from the public. 75 FR 44163
(September 28, 2010) (``Proposed Rule''). The Proposed Rule included
changes resulting from the Department's implementation of an electronic
filing and documents management program named Import Administration
Antidumping and Countervailing Duty Centralized Electronic Service
System, or IA ACCESS. The Department conducted a pilot program to test
IA ACCESS from July 1, 2010 through September 30, 2010. 75 FR 32341
(June 8, 2010); Import Administration IA ACCESS Pilot Program, Public
Notice and Request For Comments; Correction, 75 FR 34960 (June 21,
2010).
The Department received numerous comments on its Proposed Rule and
pilot program. The Proposed Rule, the comments received, and this
notice can be accessed using the Federal eRulemaking Portal at http://www.Regulations.gov under Docket Number ITA-2010-0003. After analyzing
and carefully considering all of the comments that the Department
received in response to the Proposed Rule and after review of the
experience gained during the IA ACCESS Pilot Program and the comments
thereto, the Department has amended certain provisions of the Proposed
Rule and is publishing its final regulations. In addition, the
Department has addressed below the comments received pertaining to the
pilot program, implementation, and other technical aspects of IA ACCESS
and the procedures for the release of public and business proprietary
information using IA ACCESS.
Explanation of Particular Provisions
Sections 351.103(a), 351.103(b), 351.103(c), and 351.103(d). Electronic
and Manual Filing of Documents and Service Lists
Sections 351.103(a) and 351.103(b) describe the functions of Import
Administration's Central Records Unit (CRU) and Administrative
Protective Order and Dockets Unit (APO/Dockets Unit), as well as their
location and office hours. The prior regulation stated that one
function of the CRU is to maintain the Subsidies Library. The new
regulation states that the Subsidies Library is maintained by Import
Administration's Subsidies Enforcement Office. The Department also
amended Sec. 351.103(a) to reflect that CRU is now located in Room
7046 of the Herbert C. Hoover Building. The Department also amended
sections 351.103(a) and 351.103(b) to specify that the office hours
pertain to Eastern Time and to clarify that the Department's official
address is 14th Street and Constitution Avenue, NW. Additionally, the
Department deleted an extraneous period in ``NW'' in the addresses of
the CRU and the APO/Dockets Unit.
The prior regulation provided, in Sec. 351.103(c), that although a
party is free to provide the Department with a courtesy copy of a
document, a document is not considered to be officially received by the
Department unless it is submitted to the Import Administration's APO/
Dockets Unit in Room 1870 and stamped with the date and, where
necessary, the time of the receipt. To implement electronic filing
procedures, the Department is amending the regulation so that the
Department will consider a document to be officially received by the
Department only when it is filed electronically in its entirety using
IA ACCESS, in accordance with Sec. 351.303(b)(2)(i), or, where
applicable, filed manually in the APO/Dockets Unit in accordance with
Sec. 351.303(b)(2)(ii). The Department also deleted the reference to
courtesy copies of a document in the final rule. Because the Department
will now require that documents be filed electronically, Import
Administration staff will have faster access to filed submissions, thus
reducing the need for courtesy copies.
With regard to manual filing, the Department had stated in the
Proposed Rule that it would provide exceptions to the electronic filing
requirement, but if a submitter experiences difficulty in filing a
document electronically under circumstances for which ``an'' exception
applies, the Department will consider the ability of the submitter and
may modify the electronic filing requirement on a case-by-case basis.
One commenter stated that this explanatory language in the Proposed
Rule stood in contrast with the actual language in proposed Sec.
351.303(b)(2), which stated that ``if a submitter is unable to comply
with the electronic filing requirement under certain circumstances for
which no exception applies, the submitter must notify the Department
promptly of any difficulties encountered in filing the document
electronically.'' Proposed Rule, 75 FR at 44164 (emphasis added). The
commenter stated that the Department should unconditionally allow the
relevant exception to apply, rather than make each situation a judgment
call regarding the surrounding circumstances. The Department had made
an inadvertent error in the explanatory language for Sec. 351.103(c)
in the Proposed Rule. The Department had intended to state that if a
submitter experiences difficulty in filing a document electronically
for which no exception applies, the submitter must notify the
Department promptly of any difficulties encountered in filing the
document electronically. However, the Department has amended sections
351.103(c) and 351.303(b)(2) so this language was not ultimately
included in the final rule.
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Section 351.103(d)(1) of the prior regulation required each
interested party to file a letter of appearance separately from any
other document filed with the Department, with the exception of a
petitioner filing a petition in an investigation. The Department is
amending the regulation to specify that it is this letter of appearance
that triggers the interested party's inclusion in the public service
list for the segment of the proceeding. The new regulation also refers
to the definition of ``interested party'' under Sec. 351.102(b)(29) to
improve and clarify the explanation of how an interested party is
placed on the public service list.
One commenter suggested that the notice of appearance should also
indicate whether that person prefers to or consents to electronic
service (i.e., e-mail) for public documents and/or public versions of
business proprietary documents. The Department has not adopted this
suggestion because this rulemaking was intended to change the rules
with regard to the filing of documents using IA ACCESS. It was not
intended to change the rules regarding the method of serving documents.
With the exception of the service of APO applications in Sec.
351.305(b)(2) and the requirement that parties serve the complete final
business proprietary document when bracketing changes have been made in
Sec. 351.303(c)(2)(ii), the Department has not changed the service
requirements in the regulations.
Sections 351.104(a), 351.104(b), 351.302(a), 351.302(c), and
351.302(d). Return of Material, Record of Proceedings, Extension of
Time Limits, and Return of Untimely Filed or Unsolicited Material
Section 351.104
Section 351.104(a) pertains to the official record of AD and CVD
proceedings. The prior regulation stated that the CRU will maintain an
official record of each proceeding. The Department is deleting the
reference to the CRU because the official record will not be located in
the CRU for documents filed after IA ACCESS is implemented. Instead,
for those documents, IA ACCESS will comprise the official record.
However, the CRU will continue to maintain the official record in paper
form for those documents that were filed prior to the implementation of
IA ACCESS.
In addition, Sec. 351.104(a) previously stated that the Secretary
will not use factual information, written argument, or other material
that the Secretary returns to the submitter. The regulation also
specifies the circumstances under which the official record will
include a copy of a returned document. Sections 351.302(a) and
351.302(d) also previously set forth the procedures for requesting an
extension of time limits and procedures for returning untimely filed
submissions. The Department is amending these sections by replacing the
term ``return'' with ``reject.'' Because the Department will use an
electronic filing system, rather than physically returning inadmissible
electronic submissions, the Department will reject such submissions and
send written notice of the rejection to the submitter.
Section 351.104(b) pertains to the public record of AD and CVD
proceedings. The prior regulation specified that the public record of
each proceeding will be maintained by the CRU. In the Proposed Rule,
the Department proposed adding a statement that the public record will
also be accessible online at http://www.trade.gov/ia. The Department is
removing the reference to CRU in this final rule because, as explained
above, IA ACCESS, not CRU, will comprise and contain the public record
for documents filed after its implementation. The CRU will continue to
maintain the public record in paper form for those documents that were
filed prior to implementation of IA ACCESS. During the first phase of
implementation (which begins on the effective date of this final rule),
the public will be able to access the public record on IA ACCESS from
computers in the CRU. After the second phase of implementation of IA
ACCESS, the public will be able to access the public record on the
Department's Web site from any computer with Internet access. Because
the public record will not be accessible from the Web site on the
effective date of this final rule, the Department is deleting the
reference to the Web site.
Section 351.302
Section 351.302(c) addresses procedures for requesting an extension
of a specific time limit. The Department proposed amending the
regulation by including a reference to Sec. 351.303 in order to
specify that an extension request be made in writing and properly filed
using IA ACCESS. One commenter stated that the Department should
clarify whether its proposed amendment to require extension requests to
be made in writing suggests that telephonic or written requests by e-
mail will never be accepted under the new regulations. The commenter
stated that the Department must recognize that under certain
circumstances, such as a power outage or a service outage on the part
of an Internet service provider, it may be impossible to timely and
properly file a written extension request with the Department through
electronic filing. The Department has not changed the requirement that
an extension request must be in writing and properly filed. The only
change in the final regulation is a reference to the requirement that
the extension request must be filed consistent with Sec. 351.303,
which contains the electronic filing requirement as well as provisions
for when manual filing may be appropriate. In addition, as discussed
below, if a user experiences difficulty in electronically filing an
extension request or any other submission, a Help Desk line will be
available during business hours to assist the user.
Sections 351.303(a), 351.303(b), 351.303(c), 351.303(d), and
351.303(f). Filing, Document Identification, Format, Specifications and
Markings, and Service
The Department is amending Sec. 351.303 to require electronic
filing of all documents and to specify when manual filing will be
accepted as an alternative. The Department is also clarifying the
identification of documents and correcting minor typographical errors
in this section.
Section 351.303(a). Introduction
The Department is amending the heading for Sec. 351.303 to add the
term ``Document Identification.'' The Department is also amending Sec.
351.303(a) to include ``documentation identification'' in the list of
procedural rules covered by this regulation.
Section 351.303(b). Filing
The Department is amending Sec. 351.303(b) to add subparagraphs
(1) through (4). Section 351.303(b) previously required all documents
to be addressed and submitted to the APO/Dockets Unit, Room 1870
between the hours of 8:30 a.m. and 5 p.m. on business days. The
Department is amending this section by designating it as subparagraph
(1). The Department is also including in Sec. 351.303(b)(1) the term
``Eastern Time'' to clarify the time a submission is due when the
submitter may be filing the submission from a different time zone. The
Department is also omitting the period after ``NW'' in the Department's
address, which was a typographical error.
In the Proposed Rule, the Department proposed specifying that
manually filed submissions must be submitted between the hours of 8:30
a.m. and 5 p.m. Eastern Time on business days, but that electronically
filed submissions must be
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filed by 5 p.m. Eastern Time on the due date. The reason for the
distinction is that manually filed submissions may only be filed during
business hours, but electronically filed submissions may be filed at
any time, provided that they are filed in their entirety by 5 p.m.
Eastern Time on the due date.
Two commenters requested clarification of whether electronically
filed submissions will be due by 5 p.m. on the original due date, even
if it falls on a weekend, holiday or non-business day. The commenters
stated that parties whose deadlines do not fall on a business day will
be at a disadvantage to parties whose deadlines fall on a business day
and that there is no reason why the Department should grant less time
for electronically filed documents on days when the Department is
closed. Another commenter stated that electronic filing largely
eliminates the rationale for a 5 p.m. deadline and suggested that the
Department should require that documents to be filed prior to midnight
on that date. The same commenter proposed, alternatively, that if the
Department will maintain its requirement that different filing events
be used for files that exceed the system's file size limit, then the
Department should adopt other procedures to avoid harsh results. For
example, the commenter suggested setting the deadline for such large
documents at 6 p.m.
In response to the first two comments, the Department is amending
the language in Sec. 351.303(b)(1) to clarify that where the due date
for either an electronic or manual filing falls on a non-business day,
the Secretary will accept documents filed on the next business day.
With regard to the proposals to change the filing deadline to midnight
or, alternatively, 6 p.m. for submissions requiring multiple filing
events, the Department has not adopted either proposal. The APO/Dockets
Unit, which will continue to process manually filed documents, will
maintain its current hours of operation, 8:30 a.m. through 5 p.m.
Eastern Time, in order to provide equal treatment for both electronic
and manual submissions. In addition, the Department's technical support
for electronic filing will not be available after 5 p.m., so the
Department believes that a 5 p.m. deadline is appropriate.
Electronic Filing Requirement and Exceptions Thereto
The Department is adding Sec. 351.303(b)(2), which sets forth the
electronic filing requirement using IA ACCESS and the exemptions to
that requirement. This regulation also refers to the IA ACCESS
Handbook, which contains detailed filing procedures that a submitter
must follow. The IA ACCESS Handbook is available on the Department's
Web site at http://www.trade.gov/ia.
In the Proposed Rule, the Department stated that exceptions to the
electronic filing requirement will be set forth in the IA ACCESS
Handbook. Proposed Sec. 351.303(b)(2)(i) stated that if a submitter
were unable to comply with the electronic filing requirement under
certain circumstances for which no exception in the IA ACCESS Handbook
applies, in accordance with section 782(c) of the Tariff Act, as
amended, the Department will consider the ability of the submitter and
may modify the electronic filing requirements on a case-by-case basis.
The Department received numerous comments with regard to this
regulation. Several commenters expressed the need for the Department to
disclose the specific exceptions to or exemptions from the electronic
filing requirement. One commenter stated that exceptions to the
electronic filing requirement should be set forth in the regulations
themselves, despite the commenter's agreement with the Department's
rationale that the exceptions may evolve over time. The commenter
stated that at a minimum, the initial list of exceptions should be
inserted in the regulations with a notice that the list be amended as
changes are made and that, until such time as the regulations can be
updated, unpublished changes may be temporarily found on the
Department's Web site. Another commenter requested that the Department
establish a standard set of exemptions which do not require a case-by-
case decision. In addition, the commenter proposed the development of a
bulky document standard, whereby documents over a certain size would be
routinely filed manually, without the need to request prior
authorization on a case-by-case basis.
After considering these comments, the Department is including in
Sec. 351.303(b)(2)(ii)(A) two exemptions from the electronic filing
requirement. First, as proposed by one commenter, the Department has
adopted a bulky document standard, whereby documents exceeding 500
pages may be filed manually, with the inclusion of a cover sheet and
separator sheets generated using IA ACCESS. The Department finds that
giving parties the option of manually filing bulky documents will
facilitate the processing and review of such documents as parties make
the transition to an electronic filing system. Manual filing is
optional for such documents, and the Department anticipates that
parties will prefer to electronically file bulky documents as they
become more accustomed to electronic filing.
In determining whether a document qualifies as bulky, a submitter
must not include database printouts in the page count, and as stated in
Sec. 351.303(c)(3), and further discussed below, database printouts
need not be submitted to the Department. The Department has included
detailed instructions regarding such manual filings in the IA ACCESS
Handbook, and parties must follow those instructions.
The Department has also exempted large database files from the
electronic filing requirement in Sec. 351.303(b)(2)(ii)(A). As
explained in detail in the IA ACCESS Handbook, the Department requires
database files exceeding the maximum file size (currently 20 MB) to be
filed manually in the APO/Dockets Unit on a CD or DVD as a separate
submission accompanied with a cover sheet generated in IA ACCESS.
Detailed instructions regarding the filing of database files are
included in the IA ACCESS Handbook and parties must follow those
instructions. Unlike the bulky document exemption, the large data file
exemption is mandatory.
One commenter stated that the IA ACCESS system should have
flexibility to allow exceptions to mandatory electronic filing and that
the Department should make accommodations for technical difficulties.
In response to these comments, in Sec. 351.303(b)(2)(ii)(B), the
Department has specified that if the IA ACCESS system is unable to
accept filings continuously or intermittently over the course of any
period of time greater than one hour between 12 noon and 4:30 p.m.
Eastern Time, or for any duration of time between 4:31 p.m. and 5 p.m.
Eastern Time, then a person may manually file the document in the APO/
Dockets Unit. The Department will provide notice of such technical
failures on its Help Desk line. Procedures for manual filing in this
situation are provided in the IA ACCESS Handbook.
Apart from the two exemptions specified in Sec.
351.303(b)(2)(ii)(A) and the IA ACCESS technical failures described in
Sec. 351.303(b)(2)(ii)(B), the Department has also specified in Sec.
351.303(b)(2)(ii)(C) that if a submitter is unable to comply with the
electronic filing requirement, as provided in Sec. 351.103(c) and in
accordance with section 782(c) of the Act, the submitter must notify
the Department promptly of the reasons the submitter is unable to file
the document electronically, and
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provide a full explanation and suggested alternative forms in which to
submit the information. The Department will consider the ability of the
submitter and modify the electronic filing requirement on a case-by-
case basis. As such, if an exception is made, it will apply to the
submitter requesting it for the document on which the modification is
being requested. An exception made under this provision will not serve
as a blanket exemption for all submitters for future submissions.
One commenter stated that prior to finalizing any regulations
applicable to the electronic filing process, the Department should
disclose its entire list of exceptions and allow the public to comment
on them. This commenter stated that doing so would allow parties to
work with the Department in reducing or expanding the list of
exceptions based on parties' experiences with other electronic filing
systems.
Although the Department indicated in the Proposed Rule that it
wanted the flexibility to amend the list of exceptions on an ongoing
basis, the Department has determined that it is more appropriate to
explicitly include the above exemptions in the regulations, subject to
amendment through the notice and comment rulemaking process. Should the
Department determine that additional exemptions are appropriate, it
will amend the regulations as needed and solicit comments at that time.
One commenter suggested that the Department should create
exceptions for petitions for the initiation of an AD or CVD
investigation, pro se respondents, small businesses, and documents not
readily susceptible to scanning such as physical exhibits. We have not
adopted these proposals. The Department has decided not to create
standard exceptions based on the document type being filed, such as a
petition. Doing so would result in the imposition of different rules
for counsel to petitioners and counsel to respondents. The commenter
has not explained why pro se respondents and small businesses should
automatically be exempt from the electronic filing requirement. Indeed,
the Department believes that electronic filing will ultimately reduce
the cost and burden on outside parties and thus be beneficial to pro se
respondents and small businesses. The Department will also continue its
practice of working closely with pro se respondents and small
businesses in assisting them through the filing process. With regard to
this commenter's request for an exception for physical exhibits, we
have never required the submission of physical exhibits: Therefore we
will not make an electronic filing exception for them. The Department
prefers that rather than submit a physical exhibit, which may be large,
cumbersome, or even perishable, a submitter should include in its
submission a narrative description and/or photograph or video format so
that the characteristics of the physical exhibit may be included on the
record of the proceeding. If the submitter wishes to submit a physical
exhibit, the submitter will need to obtain prior written permission
from the Department for an exception to file the physical exhibit
manually in accordance with Sec. 351.303(b)(2)(ii)(C).
File Size Limitations
One commenter recommended the Department consider a larger file
size limitation, citing examples to the file size limits of the U.S.
International Trade Commission and the Court of International Trade.
Another commenter stated that if file size limits are imposed, they
should be no less restrictive than the U.S. International Trade
Commission's limits: 50 separate attachments of 25 MB each in a single
filing event. Another commenter noted that because documentation is
often submitted to a legal representative in its original form and
needs to be submitted to the Department in Adobe portable document
format (``PDF'') or JPEG format, the memory size of such files is much
larger than those prepared in Microsoft Word or Excel. This could
result in possibly dozens of electronic submissions, requiring the
Department to piece together multiple sets of files. Thus, the
commenter recommended increasing the memory limitation of the size of
files to the largest possible under the electronic filing system being
proposed, including both for the overall memory threshold and the
individual attachment threshold. Another commenter stated that to avoid
the need for separate filing events, the Department should impose
limits only on the size of the individual attachments, without limits
on the total file size. The commenter further stated that repetitive
entry of identical information is burdensome and may lead to error.
Finally, two commenters recommended including the ability to link
documents, so that the Department can more easily piece together
submissions where the individual sections exceed the size limitation.
With respect to the comment on setting limits on file size, the
Department has set the individual document file (i.e., case briefs,
general comments, etc.) size limit to 4 MB per file. A document can be
separated into numerous files, which can be uploaded in batches of
five, provided each individual file is no larger than 4 MB and the
total combined file size of the grouping does not exceed 20 MB. The
user may upload up to a total of 99 additional files, grouped in
combinations of five, with the same individual and combined file size
as mentioned, and these individual files will be linked together, as
suggested by one commenter. In addition, the Department has set the
individual data file (i.e., SAS files, databases, etc.) size limit to
20 MB per file. Thus, the Department expects that IA ACCESS will be
able to accommodate large documents which will be filed as linked,
smaller files. The Department added this feature during the last month
of the Release 1 pilot program.
The Department has determined 4 MB to be the appropriate individual
document file size limit and 20 MB to be the appropriate individual
data file size limit based on numerous factors, each of which have been
considered and balanced. Such factors include the ability of the IA
ACCESS system to accommodate the high volume of anticipated submissions
based on current server resources, the difficulty for Department
personnel to work with larger files, and the available Internet
bandwidth to users throughout the world, which may limit their ability
to upload larger documents. The Department has also determined that
because data files are submitted less frequently than document
submissions, the IA ACCESS system is capable of accepting individual
data files of 20 MB in size. In addition, the larger individual file
size for data meets the important need of keeping databases intact.
Although the Department has determined 4 MB and 20 MB to be the
appropriate individual file sizes for documents and data files,
respectively, at this time, the Department anticipates that the
attachment and overall file size requirement may change over time as
Internet resources expand throughout the world and the Department gains
experience in administering the IA ACCESS system and using larger
files.
As for the commenter's statement that documentation must be
submitted in JPEG format, IA ACCESS does not currently accept files in
JPEG format.
The Department acknowledges that the U.S. International Trade
Commission and Court of International Trade have different file size
limitations for electronic filing. However, the Department must base
the individual file size limitation for IA ACCESS upon the specific
needs of the Department's AD/CVD proceedings, such as the
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factors noted above as well as the type, size, frequency, and security
classification of documents. Thus, the Department has not chosen to
align its file size limitations to those of the U.S. International
Trade Commission and the Court of International Trade.
Section 782(c) of the Act
One commenter noted that the Department did not propose to require
submitters who notify the Department promptly of any difficulties
encountered in submitting information to the Department to also provide
a suggested alternative method for submitting the information, which
seems to be required under section 782(c) of the Act. The commenter
suggested that the Department specifically reference this obligation in
its new regulation, particularly when the failure to comply with the
requirement could substantially harm the submitter in relation to its
respective proceeding and the ``burden'' on the Department of including
notification of the requirement in its regulation is minimal.
In its explanation of Sec. 351.303(b)(2), which addresses these
requirements of section 782(c) of the Act, the Department noted that it
did not discuss the requirement to propose an alternative method of
submission in the regulations because it anticipates that the
alternative suggestion would be for the submitter to file the
submission manually. However, the Department stated that this omission
does not affect a submitter's obligation to satisfy such a requirement.
The Department agrees with the commenter that the language in section
782(c) of the Act should be included in Sec. 351.303(b)(2)(ii)(C) of
the new regulations to put the public on notice of the requirement.
Accordingly, the Department has amended Sec. 351.303(b)(2)(ii)(C) to
include the statutory requirement under section 782(c) of the Act that
the submitter suggest alternative forms in which it is able to submit
the requested information.
The Department is adding Sec. 351.303(b)(2)(ii)(D) to provide the
number of hardcopies required if a document is filed manually.
Specifically, a submitter must manually file in the APO/Dockets Unit
one hardcopy of each document, with the exception of a business
proprietary document filed under the bulky document exemption, which
requires two copies. This regulation also specifies that a manual
filing requires submission of a cover sheet generated in IA ACCESS in
accordance with Sec. 351.303(b)(3).
The Department is adding Sec. 351.303(b)(3) to specify that a
cover sheet is required for manual submissions. A submitter must
generate the cover sheet online at http://iaaccess.trade.gov, and print
it for submission to the APO/Dockets Unit along with the hardcopy
manual submission. The purpose of the cover sheet is to provide the
Department with information indicating, among other things, the party
filing the submission, the segment of the proceeding, and the type of
submission being filed. The cover sheet will contain a barcode that
will be used to identify and track the submission. The Department has
removed the proposed requirement that a person complete a coversheet
for a document that is filed electronically. Although IA ACCESS
requests the same information for an electronic filing as it requires
on the cover sheet for a manual filing, in the electronic filing mode,
that information is referred to as ``IA ACCESS Document Information,''
not a cover sheet. Therefore, the Department has deleted this reference
from the final rule. The Department had previously proposed including a
statement that the person submitting the cover sheet is responsible for
the accuracy of all information contained in the cover sheet. The
Department has also removed that statement from the final rule because
the information appearing on the cover sheet already appears on the
submission itself, the accuracy of which is already subject to
certifications of factual accuracy that accompany the submission.
The Department is adding Sec. 351.303(b)(4) to identify and
distinguish among the five document classifications that may be
submitted to the Department. The Department has observed confusion
among interested parties with regard to the identification and labeling
of documents, especially with regard to documents containing double-
bracketed information. Thus, the Department finds it necessary to
standardize the identification and labeling of all documents. In
addition, a submitter will need to identify the document properly when
inputting the document information in IA ACCESS before filing the
document. The document identification will determine who will have
access to the document. Misidentification of a document may result in
the unauthorized disclosure of business proprietary information. The
Department is also moving the definition of ``business proprietary
version'' from Sec. 351.303(c)(2)(i) to Sec. 351.303(b)(4). In
addition, the Department is using the phrase ``business proprietary
document or business proprietary/APO version, as applicable'' rather
than only ``business proprietary version'' to make the terminology
consistent with that in proposed Sec. 351.303(b)(4)(i), (ii), and
(iii).
Accordingly, the Department is adding sections 351.303(b)(4)(i),
(ii), and (iii) to identify and define the three types of business
proprietary submissions. The document described in Sec.
351.303(b)(4)(i) is called ``Business Proprietary Document--May Be
Released Under APO.'' This business proprietary document contains only
single-bracketed business proprietary information which a party agrees
to release under administrative protective order (``APO'').
The document classifications described in Sec. 351.303(b)(4)(ii)
and (iii) are business proprietary documents that use double-
bracketing. The document described in Sec. 351.303(b)(4)(ii) is called
``Business Proprietary Document-May Not Be Released Under APO.'' This
document may contain both single and double-bracketed business
proprietary information, but the submitter does not agree to the
release of the double-bracketed information under APO. In this
document, the information inside the double brackets is included.
The third document classification described in Sec.
351.303(b)(4)(iii) is called ``Business Proprietary/APO Version--May Be
Released Under APO.'' It must contain only single-bracketed business
proprietary information. The submitter must omit the double-bracketed
business proprietary information from this version because this version
will be released under APO. This is why the term ``APO Version'' is
included in the name of the document.
The Department is adding Sec. 351.303(b)(4)(iv) and (v), which
identify the two types of public submissions. The first is the ``Public
Version,'' which corresponds to a business proprietary document, except
it omits all business proprietary information, whether single or
double-bracketed. This section also refers to the specific filing
requirements for filing the public version, which is found in Sec.
351.304(c). The second is the ``Public Document,'' which contains only
public information. In the Proposed Rule, the Department had stated
that there is no corresponding business proprietary version for a
public document. For the final rule, the Department is amending Sec.
351.303(b)(4)(v) to change the term ``business proprietary version'' to
``business proprietary document'' in order to make the terminology
[[Page 39268]]
consistent with Sec. 351.303(b)(4)(i) and (ii).
One commenter disagreed with the renaming of ``business proprietary
version'' to ``business proprietary document.'' The commenter stated
that the term ``business proprietary version'' implies that a public
version will be filed on the next business day, while ``business
proprietary document'' implies that no public version will be filed.
The commenter also stated that the change will generate more confusion
for a term that has become standard at both the Department and the U.S.
International Trade Commission and that the existing confusion will be
rectified by the inclusion of the definition of ``APO version'' in the
amended regulations. Finally, the commenter stated that differing
terminology may create unintended confusion regarding documents that
must be filed at both agencies.
The Department does not agree that the proposed amendment will
generate confusion. A public version of a business proprietary document
must always be filed in accordance with Sec. 351.304(c), and it
therefore must correspond to the business proprietary document. It is
possible that the commenter meant that when a business proprietary
document is filed on the first day, in accordance with the one-day lag
rule, it is in fact filed without the public version. However, the
Department is not basing the document classifications on when the
documents/versions are filed relative to one another. The Department's
reasoning stems from the content of the submissions. When compared to
the other document classifications, the business proprietary document
is the complete document and contains all business proprietary
information enclosed in brackets. Thus, it should be referred to as a
``document'' and not a ``version.'' The public version and APO version
are versions of that document and are therefore named as such.
Section 351.303(c). Filing of Business Proprietary Documents and Public
Versions Under the One-Day Lag Rule; Information in Double Brackets
In Sec. 351.303(c)(1), 351.303(c)(2)(ii), and 351.303(c)(2)(iii),
the Department is deleting the requirement that a person must file
multiple copies of each submission with the Department (i.e., six
copies of public documents, or the combination of: (A) six copies of
the business proprietary version and (B) three copies of the public
version of a document). The Department has replaced these sections with
Sec. 351.303(b)(2)(ii)(D), which specifies the number of hard copies
required if a document is filed manually. The original reason for these
requirements concerning copies of a document was to make a copy
available to each person in the Import Administration team
administering the proceeding. However, with implementation of
electronic filing and the uploading of manually filed submissions by
CRU onto IA ACCESS, the Import Administration team will be able to
access all submissions electronically and print them from IA ACCESS,
making additional copies unnecessary. In Sec. 351.303(c)(2)(i), the
Department is deleting the sentence defining ``business proprietary
version'' because it has been included in proposed Sec. 351.303(b)(4).
Section 351.303(c)(2)(i) of the prior regulation stated that a
person must file one copy of the business proprietary version of any
document with the Department within the applicable time limit. The
Department is deleting the reference to the copy and changing
``business proprietary version'' to ``business proprietary document''
to make the terminology consistent with that in 351.303(b)(4)(i) and
(ii). The Department is also clarifying that the one-day lag rule does
not apply to a petition, amendments to a petition, or any other
submission filed prior to the initiation of an investigation. This
amendment reflects the Department's practice not to apply the one-day
lag rule during the 20-day pre-initiation period. This practice ensures
that a business proprietary document and public version are filed
simultaneously in their final form. When the Department has only 20
days to initiate an investigation, waiting one business day for the
final version of a document further shortens an already short deadline,
especially when petitioners may be required to file responses to
requests for additional information. In addition, because of the
Department's obligation to provide a copy of the public version of the
petition and all amendments to the petition to embassies of exporting
countries named in a petition under Sec. 351.202(f), the Department
does not allow submissions under the one-day lag rule so that the
embassies may obtain their copies as expeditiously as possible.
Section 351.303(c)(2)(ii) of the prior regulation stated that,
although a person must file the final business proprietary version of a
document with the Department, the person may serve only those pages
containing bracketing corrections on other persons. The Department is
amending this regulation to replace ``business proprietary version of a
document'' with ``business proprietary document'' to make the
terminology consistent with that in Sec. 351.303(b)(4)(i) and (ii).
This amendment will not change the requirement that a person must file
a complete, final business proprietary document on the first business
day after the business proprietary document is filed. The Department is
also amending this regulation to specify that the final business
proprietary document must be identical in all respects to the business
proprietary document filed on the previous day, except for any
bracketing corrections and the omission of the warning ``Bracketing of
Business Proprietary Information Is Not Final for One Business Day
After Date of Filing,'' in accordance with Sec. 351.303(d)(2)(v). We
believe emphasizing that the two documents must be identical with the
exception of bracketing corrections and the requisite warning
pertaining to bracketing is necessary because, in our experience, there
appears to be some confusion about whether the dates or the content of
the cover letters of the two documents should remain unchanged. With
this amendment, the Department hopes to clarify that, except as
discussed above, the two documents must be identical.
The Department is also amending this regulation to require persons
to serve the complete final business proprietary document on other
persons only if there are bracketing corrections. One commenter
expressed agreement with this proposed change in its comments on the
Proposed Rule. The new regulation also makes explicit that if there are
no bracketing corrections, a person need not serve a copy of the final
business proprietary document on persons on the APO service list. The
reason service is not required in the absence of bracketing corrections
is that in accordance with Sec. 351.303(f), a person will have already
served the business proprietary document filed on the due date. If
there are no bracketing corrections, then there is no need to serve the
business proprietary document again.
Section 351.303(c)(2)(iv) of the prior regulation stated that if a
person serves authorized applicants with a business proprietary version
of a document that excludes information in double brackets pursuant to
Sec. 351.304(b)(2), the person must simultaneously file with the
Department one copy of those pages in which information in double
brackets has been excluded. The Department is amending this section by
adding a reference to Sec. 351.303(b)(4)(iii) and correctly
identifying the document type as the ``Business Proprietary/APO
Version.'' The Department now requires
[[Page 39269]]
a person to file the complete Business Proprietary/APO Version of the
document, as opposed to only those pages in which the double-bracketed
information has been excluded, so that it has the complete document for
the official record. The original purpose of requiring a copy of only
the pages where the double-bracketed information has been omitted was
to conserve the amount of paper filed by the submitter. However,
because the document will be filed electronically, the submitter will
be able to reduce the amount of paper used while simultaneously
ensuring that the Department receives the same submission that is
served on the APO authorized applicants.
In addition to the foregoing amendments to Sec. 351.303(c)(1) and
351.303(c)(2)(i)-(iv), the Department replaced the term ``business
proprietary version'' with ``business proprietary document'' in these
sections, as well as in the title of Sec. 351.303(c). These amendments
make the terminology consistent with that in Sec. 351.303(b)(4)(i),
(ii), and (iii).
Section 351.303(c)(3) previously required that if factual
information is submitted on computer media at the request of the
Secretary, it must be accompanied by the number of copies of any
computer printout specified by the Secretary. This regulation also
required that information on computer media must be releasable under
APO, consistent with Sec. 351.305. The Department is deleting the
statement that the Secretary may require submission of factual
information on computer media because it implies that the Secretary may
make such requests only occasionally. Over time, the Department has
requested with increasing frequency the submission of sales and cost
databases to accompany questionnaire responses. This practice has
become the norm rather than the exception. In order to clarify how such
electronic databases should be submitted in conjunction with the
electronic filing requirement, the Department is amending this section
to require that all sales files, cost files, or other electronic
databases submitted to the Department be filed electronically in the
format specified by the Department. For the final rule, the Department
has revised this language to clarify the situation in which a submitter
would file a database manually, citing to Sec. 351.303(b)(2)(ii)(A),
which requires large data files to be filed manually. The Department is
also amending Sec. 351.303(c)(3) to remind submitters that all
electronic database information must be releasable under APO regardless
of whether it is filed electronically or manually.
The Department wants to emphasize that the complete databases
submitted by the parties will now be maintained in an electronic format
in the official and public files. Previously, parties submitted only
one electronic copy of the database, which became the working copy used
by the Department in performing its calculations. The official and
public records only contained hardcopy printouts of the databases, and
oftentimes, the printouts reflected only a portion of the databases if
they were voluminous. Because the Department will have the capability
to accept the databases in an electronic format, the Department has had
to consider how parties can bracket or seek business proprietary
treatment for information on the databases when the format in which the
data is presented does not allow for the use of brackets to indicate
the information for which the submitter is requesting business
proprietary treatment. Thus, the Department has determined that it will
deem all databases containing business proprietary information that are
submitted in electronic format as business proprietary submissions.
Brackets will not be required on the electronic databases. However, the
Department urges submitters to include, where possible, headers or
footers requesting business proprietary treatment of the information on
the databases. For public versions of databases, the Department
requires submitters to submit the public version in a PDF format. The
public version of the database must still be publicly summarized and
ranged in accordance with Sec. 351.304(c). The public version of the
database, together with the narrative portion of a questionnaire
response, will indicate the fields and values for which the submitter
requests business proprietary treatment. Deeming the entire electronic
database as business proprietary will not render each and every field
and value submitted in the database as eligible for business
proprietary treatment.
One commenter stated that the Department already envisions that
databases may be filed electronically, where possible, therefore IA
ACCESS should accommodate the filing of electronic files other than PDF
files, where appropriate. The Department has selected PDF as the
appropriate file format for documents because the Department seeks a
uniform format that is widely available, acceptable by users, and
compatible with most computer systems. Furthermore, as a PDF, the
content of the submissions cannot be altered and the PDF format ensures
that the Department will be able to open the submissions in the future.
With regard to databases, submitters should refer to the questionnaire
or specific request for information by the Department to determine the
acceptable formats for the requested databases. The Department has also
made available in the IA ACCESS Handbook additional information as to
file types accepted in IA ACCESS and specific instructions which
parties must follow when filing databases.
Section 351.303(d). Format of Submissions
The Department is amending Sec. 351.303(d) to make references to
the filing terminology consistent with the other terminology used in
the rest of this section. Specifically, the Department has replaced the
term ``copies'' with ``submissions'' because, as stated above, the
Department will no longer require a person to file multiple copies of a
submission.
Section 351.303(d)(2) provides the specifications and markings
required for filing documents with the Department. Paragraph (d)(2)
specifies that a person must submit documents on letter-size paper,
single-sided, and double-spaced, and that the first page of each
document must contain information in the formats described in
subparagraphs (i) through (vi). The Department amended paragraph (d)(2)
to specify the dimensions of letter-size paper (8\1/2\ x 11 inches).
Because CRU staff will need to insert all manually filed submissions
into a scanner, the Department requires that manually filed documents
be bound only with a paper clip, butterfly/binder clip, or rubber band.
The omission of binding will ensure that the paper in the submission is
not damaged, thereby facilitating the scanning process. Thus, the
Department has prohibited the use of stapled, spiral, velo, or other
type of solid binding in manual submissions. The Department has also
amended paragraph (d)(2) to require the placement of the cover sheet
described in paragraph (b)(3) before the first page of the document
being manually filed. With regard to electronically filed documents,
the new regulation specifies that the document be formatted to print on
letter-size (8\1/2\ x 11 inch) paper and double-spaced. The new
regulation also specifies that spreadsheets, unusually sized exhibits,
and databases are best utilized in their original printing format and
should not be reformatted for submission.
Section 351.303(d)(2)(iii) of our prior regulation required
submitters to indicate on the third line of the upper
[[Page 39270]]
right-hand corner the segment of a proceeding for which a document is
being filed and, if for a review, the inclusive dates of the review,
the type of review, and section number of the Act corresponding to the
type of review. The Department is amending Sec. 351.303(d)(2)(iii) to
replace the current list of types of segments with a non-exhaustive
list. The new regulation also provides a specific date format for use
in indicating the period of review, if relevant. The Department has
eliminated the requirement that the submitter indicate the relevant
section of the Act that corresponds to the type of review for which the
document is submitted. The Department has observed that this marking
requirement is often overlooked by submitters, and when it is included,
submitters often refer only to section 751 of the Act without referring
to the specific subsection. Because the new regulation requires a
submitter to indicate the specific segment of a proceeding in which a
document is being filed, the Department has determined it would be
redundant to also require the submitter to specify the particular
subsection of the Act corresponding to the type of review.
The Department is also amending Sec. 351.303(d)(2)(v) to make it
consistent with the terminology in Sec. 351.303(b)(4). Specifically,
the prior regulation required that, on the fifth and subsequent lines
of each submission, a submitter must indicate whether any portion of
the document contains business proprietary information and, if so, to
list the applicable page numbers and state either ``Document May Be
Released Under APO'' or ``Document May Not Be Released Under APO.'' The
Department is changing the terminology so that the term ``Document'' is
replaced with either ``Business Proprietary Document -'' or ``Business
Proprietary/APO Version,'' as applicable, so that it is consistent with
the terminology in Sec. 351.303(b)(4). The Department is also
capitalizing the first letter in the words ``is'' and ``be'' to correct
typographical errors. The prior version of 351.303(d)(2)(v) also stated
that the warning ``Bracketing of Business Proprietary Information Is
Not Final for One Business Day After Date of Filing'' must not be
included in ``the copies of the final business proprietary version
filed on the next business day.'' The Department is deleting the term
``the copies of'' because a submitter will no longer be filing multiple
copies of a submission, in accordance with proposed Sec.
351.303(b)(2)(v). The Department is also replacing the term ``business
proprietary version'' with ``business proprietary document'' to make
the terminology consistent with that in Sec. 351.303(b)(4).
Section 351.303(d)(2)(vi) of the prior regulation required that
public versions of business proprietary documents contain the marking
requirements in paragraphs (d)(2)(i)-(v) of this section and that the
first page is conspicuously marked ``Public Version.'' The Department
is amending this section to refer to both the public version and the
business proprietary document in the singular. This amendment clarifies
that there is only one public version of a business proprietary
document. The Department is also adding subparagraph 351.303(d)(2)(vii)
to this section to require the same markings for a ``Public Document''
as for a ``Public Version,'' with the exception being use of the word
``Document'' instead of ``Version.'' These amendments bring the
language in this section into conformity with the document
classifications in paragraph (b)(4).
Section 351.303(f). Service of Copies on Other Persons
Section 351.303(f) of the prior regulation stated that except as
provided in sections 351.202(c), 351.207(f)(1), and paragraph (f)(3) of
this section, a person filing a document with the Department
simultaneously must serve a copy of the document on all other persons
on the service list by personal service or first class mail. The
Department is changing the reference to Sec. 351.207(f)(1) to Sec.
351.208(f)(1) to correct a typographical error.
Section 351.303(f)(1)(ii) of the prior regulation stated that a
party may serve a public version or a business proprietary version of a
document containing only the server's own business proprietary
information on persons on the service list by facsimile or other
electronic transmission process, with the consent of the person to be
served. The Department is changing the reference to ``business
proprietary version of a document'' to ``business proprietary
document'' to make the terminology consistent with that used in Sec.
351.303(b)(4). The Department is also specifying that the business
proprietary document may be served on persons on the APO service list
and that the public version of such a document may be served on persons
on the public service list by facsimile transmission or other
electronic transmission process, with the consent of the person to be
served.
One commenter asked the Department to clarify in Sec. 351.303(f)
that public documents may also be served electronically. The Department
has amended this regulation to include public documents in the types of
documents that may be served by facsimile or other electronic
transmission with the consent of the party being served.
One commenter stated that changes affecting service of business
proprietary information should be introduced gradually, subject to
extensive comment. Another commenter stated that the Department should
mandate electronic service to parties on the respective service list
(where allowed under the Department's regulations). That commenter
noted that electronic service is consistent with the Department's
stated goal of creating efficiencies in both the process and costs
associated with filing and maintaining documents, and that electronic
service would be consistent with the Court of International Trade's
filing system currently in place. The commenter stated that the
Department could expressly state that electronic service will not be
mandatory where a document is filed manually.
The Department agrees that changes affecting service of business
proprietary information should be introduced gradually and be subject
to comment. With the exception of service of APO applications, which
were previously required to be served by the same means as they were
filed with the Department (Sec. 351.305(b)(2)), and the requirement
that parties serve the complete final business proprietary document
when bracketing corrections are made under the one-day lag rule (Sec.
351.303(c)(2)(ii)), the Department has not changed any of the service
requirements in the regulations. The Department has decided to focus on
electronic filing, rather than electronic service, at this time.
However, parties may continue to consent to electronic service in
accordance with Sec. 351.303(f)(1)(ii).
Although the Department had proposed correcting a typographical
error in Sec. 351.303(g), that regulation is currently the subject of
another rulemaking. See 76 FR 7491 (February 10, 2011). Therefore, the
Department has not made any changes to Sec. 351.303(g) in this final
rule.
Sections 351.304(b), 351.304(c), and 351.304(d). Identification of
Business Proprietary Information, Public Version, and Returning
Submissions That Do Not Conform With Section 777(b) of the Act
Section 351.304(b)(2)(iii) of the prior regulation stated that
``the submitting person may exclude the information in double brackets
from the business proprietary information version of the submission
served on authorized
[[Page 39271]]
applicants.'' The Department is amending this sentence to replace
``business proprietary information version'' with ``Business
Proprietary/APO Version'' to make the terminology consistent with that
in Sec. 351.303(b)(4)(iii).
In addition, the Department is amending Sec. 351.304(b)(1) by
creating two subsections. Subsection 351.304(b)(1)(i) addresses the
identification of business proprietary information in general, and
subsection 351.304(b)(1)(ii) addresses the identification of business
proprietary information with regard to electronic databases. The
Department is specifying in the latter subsection that in accordance
with Sec. 351.303(c)(3), an electronic database containing business
proprietary information need not contain brackets for the submitter to
request proprietary treatment for its information. Instead, the
submitter must select the security classification ``Business
Proprietary Document--May Be Released Under APO'' at the time of filing
to request business proprietary treatment of the information contained
in the database.
Section 351.304(c) of the prior regulation provided requirements
for filing the public version of a business proprietary document.
Section 351.304(c)(1) specified, among other things, that the public
version must be filed on the first business day after the filing
deadline for the ``business proprietary version of the submission.''
The Department is amending this section to replace ``business
proprietary version of the submission'' with ``business proprietary
document'' to make the terminology consistent with that in Sec.
351.303(b)(4)(i) and (ii).
Section 351.304(c)(2) of the prior regulation specified, among
other things, that if a submitting party discovers that it failed to
bracket information correctly, the submitter may file a complete,
corrected ``business proprietary version of the submission'' along with
the public version. The Department is amending this section to replace
``business proprietary version of the submission'' with ``business
proprietary document'' to make the terminology consistent with that in
Sec. 351.303(b)(4)(i) and (ii).
One commenter asked the Department to amend Sec. 351.304(c), which
currently states that if an individual portion of the numerical data is
voluminous, at least one percent representative of that portion must be
summarized. The commenter proposed limiting the amount of information
to be summarized from one percent of the portion of the data to one
percent of the entire submission because the ranging of data takes a
considerable amount of time and increases the cost of compliance with
the regulation. The Department did not propose any changes to this
section of the regulations in the Proposed Rule. Further, the
Department continues to find that requiring public summarization of one
percent of each portion of data best implements section 777(b)(1)(B) of
the Act, which requires public summaries of information submitted to
the Department, and best serves the ability of the public to
participate in the Department's proceedings. Thus, the Department has
not made the requested change in the final rule.
Section 351.304(d)(1) of the prior regulation stated that the
Secretary will return a submission that does not meet the requirements
of section 777(b) of the Act, which governs the Department's APO rules
of practice and procedure. Section 351.304(d)(1) of the prior
regulation further specified that the submitting person may take any of
four enumerated actions within two business days of the Secretary's
explanation of its reasons for returning the submission. Prior Sec.
351.304(d)(1)(iv) also specified that one of those enumerated actions
is the submission of other material concerning the subject matter of
the returned information and that, if the submitting person takes none
of the enumerated actions, the Secretary will not consider the returned
submission. As discussed above, because the Department will be using an
electronic filing system, rather than physically return an electronic
submission, the Department will instead reject the submission. The
Department will follow the same procedure for manually filed
submissions. Thus, the Department is amending the regulations to change
the term ``return'' with ``reject'' in sections 351.304(d)(1) and
351.304(d)(1)(iv).
Section 351.305(b). Application for Access Under Administrative
Protective Order
Section 351.305(b)(2) of the prior regulation required the
applicant for access to business proprietary information under APO to
serve the APO application in the same manner and at the same time as it
serves the application on the Department. The Department is amending
this regulation because an applicant cannot currently serve other
parties electronically using IA ACCESS. Although an applicant may serve
other parties electronically with the consent of the parties being
served, the Department will not require electronic service. The
Department recognizes that a party being served an APO application has
a limited time period in which to serve its previously-filed business
proprietary submissions on a newly-approved applicant; therefore, the
Department is requiring that the applicant serve the other parties in
the most expeditious manner possible, simultaneously with the filing of
the APO application with the Department.
Comments Pertaining to Pilot Program, Implementation, and Technical
Aspects of IA ACCESS
1. Future Pilot Programs, Additional Focus Groups, Training, and
Staggered Implementation
One commenter stated that it supports the Department's plans to
conduct additional pilot programs and strongly suggests that the
Department consider a mechanism by which the experiences gained in the
first pilot program can be shared with the larger user public. The
commenter stated that the Department should conduct additional focus
groups and public meetings for Release 2 and 3 Pilots and that the
Department should consider holding larger scale public meetings. With
regard to implementation of IA ACCESS, one commenter proposed a
staggered implementation process, such that the Department would first
require electronic filing of only public documents for a period of time
before requiring electronic filing of business proprietary documents.
The commenter stated that users may not have experience with the
electronic filing of business proprietary documents, and the staggered
implementation would allow users time to implement new internal
procedures, including security measures, or seek guidance from the
Department on particular matters, based on practical prior experience
with public filings. In addition, the commenter stated that the
Department should consider providing training sessions prior to the
start of Release 1, noting that the training sessions conducted by the
Court of International Trade for its electronic filing system were
helpful. The commenter also stated that the Department should consider
a ``recall'' procedure to enable users to promptly remove
electronically filed documents if business proprietary information has
been inadvertently disclosed or other problems are discovered after
filing.
Response: As discussed in the notice regarding the IA ACCESS pilot
program, IA ACCESS will be implemented in three separate phases, or
releases, with each release implementing an additional feature of IA
ACCESS. 75 FR 32341
[[Page 39272]]
(June 8, 2010). Release 1 will allow for the electronic submission of
documents, Release 2 will allow for the electronic release of public
documents and public versions, and Release 3 will allow for the
electronic release of business proprietary documents to authorized
applicants. Each phase will be preceded by a pilot program designed to
test and evaluate the functionality of that release. The Department
completed the pilot program for Release 1 on September 30, 2010. The
Department received comments from pilot participants at the conclusion
of the pilot and a summary of those comments is available to the public
at http://iaaccess.trade.gov under the ``Help'' link. Comments on the
second and third pilot programs will also be made available to the
public in the same manner. The Department will hold additional focus
groups and public meetings in conjunction with the Release 2 and 3
pilot programs. The Department will consider a large public meeting as
the need arises.
The Department disagrees with the proposal to stagger the
implementation of the electronic filing requirement such that only
public filings will first be required for a period of time before
requiring the filing of business proprietary documents. Staggering the
implementation for public and business proprietary submissions is not
practicable because it would require the Department to operate under
two filing systems, one for public documents and one for proprietary
documents, and such a bifurcated process would create the potential for
confusion and inconsistency. Furthermore, requiring parties to manually
file business proprietary submissions while electronically filing
public versions of the corresponding submission will create additional
work for parties and reduce the efficiencies inherent in electronic
filing.
To alleviate the concerns associated with learning to use IA
ACCESS, the Department will provide an IA ACCESS online training site
one month prior to implementing Release 1. On the training site, users
will be able to familiarize themselves with IA ACCESS by filing test
documents and navigating the system. The Department has already
provided and will continue to provide training prior to implementing
Release 1, including online demonstrations, webinars and classes. Such
training will provide users opportunities to confer with the Department
regarding any questions pertaining to the system, including the
implementation of any necessary procedures for the user, such as
security measures.
With regard to a ``recall'' procedure, the Department did not adopt
this proposal. The Department believes that the continuation of its
current practice of providing assistance to those parties wishing to
correct errors discovered after filing is the most effective way to
address inadvertent disclosures. Where problems are discovered after
filing, the user should contact the Department for assistance. Detailed
procedures are included in the IA ACCESS Handbook. Where business
proprietary information is inadvertently disclosed and only discovered
after filing, the user should contact the APO/Dockets Unit as soon as
possible.
2. Grace Period
One commenter proposed a three-month grace period whereby the
Department allows users to file submissions manually, at the option of
the user.
Response: The Department will not provide such a three-month grace
period. Allowing a grace period would be extremely disruptive for the
Department because it would require the Department to operate and
synchronize two different filing, document management, and
recordkeeping systems. As discussed above, however, the Department will
provide an online training site one month prior to implementation of
Release 1, so that users may have an opportunity to try out the system,
practice filing test documents and familiarize themselves with IA
ACCESS.
3. Opportunities for Further Comment
One commenter requested that the Department provide an opportunity
to submit additional comments prior to publication of the final rule,
including comments on other parties' comments on the proposed rule and
on the views of the participants to the Release 1 pilot program. In
addition, the commenter stated that the Department should make the IA
ACCESS Handbook available prior to the start of Release 1 to allow
users to become familiar with the new electronic filing rules and
procedures before introduction of mandatory electronic filing. Two
commenters requested that the Department provide an opportunity to
submit comments on the upcoming IA ACCESS Handbook.
Response: The IA ACCESS Handbook is currently available. Parties
will be given the opportunity to submit comments on the handbook on the
IA ACCESS Web site at http://iaaccess.trade.gov. The Department will
post a summary of the comments online and take them into consideration.
The Department will not provide a formal opportunity for parties to
comment on the Release 1 pilot participants' comments nor on the other
parties' comments to the Proposed Rule. There is no such requirement in
the rulemaking process. See 5 U.S.C. 553(c). As the Department
continues to add enhancements and features to IA ACCESS, it will
welcome parties' input on an ongoing basis.
4. Comments on Pilot Experience
The Department received the following technical comments based on
the commenters' experiences during the pilot program: (1) The case name
should be automatically populated by case number; segments should show
up in drop-down menu; (2) the Department should expand the number of
characters for document title and file name; (3) ``document type'' and
``subject'' options have not been appropriate to the filings, so
``Other'' was often selected; (4) the Department should refine the
``document type'' and ``subject'' options and provide the ability to
customize by typing in words prior to or after the standard types/
subjects; (5) the Department should provide an ``approval'' or
confirmation screen prior to submission; and (6) one commenter wished
to confirm that the Department personnel have the ability to review and
print documents in color.
Response: The Department is considering these comments as it
develops the IA ACCESS system. A summary of these comments in addition
to others received at the conclusion of the Release 1 pilot program is
available on the Department's IA ACCESS Web site at http://iaaccess.trade.gov under the ``Help'' link.
5. After-Hours Help Line
One commenter recommended the Department to establish a help line
that has relevant personnel available after 5 p.m. Eastern Time to
assist with electronic submissions.
Response: A help line will be available and staffed with relevant
personnel between 8:30 a.m. and 5 p.m. on business days to assist
submitters with any technical issues. We encourage parties to give
themselves ample time prior to 5 p.m. on the due date to successfully
complete submissions using IA ACCESS. Further, parties who cannot meet
the 5 p.m. filing deadline should request an extension from the
relevant personnel in the Office of Operations. Because personnel at
the Help Line cannot grant such extensions, after-hours assistance
should not be necessary.
[[Page 39273]]
6. Destruction of Files
One commenter stated that it understood that IA ACCESS will host
only documents received after the launch of the electronic document
system, and that the Department currently does not envision scanning
older documents already in the Official File. Currently, the Department
is destroying or in the process of destroying files from proceedings
that have been terminated for five years or more. This destruction
practice would appear inconsistent with the goal of expanding public
access to information. If older documents are destroyed as a matter of
course, then parties are at a disadvantage in preparing for ongoing
proceedings because some documentation relied upon is only available in
paper form. The commenter recommended that the Department reconsider
its destruction practice and work towards making all existing paper
documentation and submissions from prior proceedings available to the
public as part of a docket for that proceeding.
Response: The Department's current document retention policy
requires it to keep the Public File for five years after an order has
closed. The Department plans to continue following this retention
policy, which the Department believes makes the information
sufficiently accessible to the public. The Department will not scan
older documents into IA ACCESS that are already in the Official File.
Doing so would be costly and an inefficient use of the Department's
resources. Older files will continue to be available in the Public
Reading Room in accordance with the Department's retention policy.
Comments Pertaining to Procedures for Release of Public and Business
Proprietary Information Under APO Using IA ACCESS
In the Proposed Rule, the Department stated that it was considering
providing for the implementation of electronic APO release as part of
the overall transition to IA ACCESS. The Department requested comments
on the APO release process, the adequacy of providing for electronic
release in the APO, and the necessity of additional security
requirements in the APO application.
In response to the Department's request for comments, one commenter
expressed its support for the Department's approach. Another commenter
recommended a system whereby the lead attorney for service and any
other designated authorized individuals will be notified via e-mail
that a new document has been posted to a particular record and that the
authorized user would be able to access the document by logging into
the secure database to upload the document on the authorized user's
secure server. The commenter also requested that the same release
process apply to documents filed by parties or placed on the record by
Department personnel, thereby effecting service via electronic
notification. Another commenter stated that the Proposed Rule did not
specify whether, in addition to APO release, the Department also plans
public electronic release to authorized representatives of interested
parties who have entered an appearance. The commenter encouraged the
Department to adopt this practice, either as part of formal rulemaking
or under its IA ACCESS procedures.
In addition to the electronic APO release process through IA
ACCESS, the Department plans to release public Department-generated
documents and public versions of Department-generated business
proprietary documents using IA ACCESS. The Department plans to notify
the lead attorney for service and any other designated authorized
individuals via e-mail that a new document has been posted to a
particular segment. The authorized individual would then be able to
securely access the document.
The Department has not implemented a similar release process to
effect service of documents filed by interested parties on one another.
As discussed above, with the exception of service of APO applications
in Sec. 351.305(b)(2) and the requirement that parties serve the
complete final business proprietary document when bracketing changes
have been made in Sec. 351.303(c)(2)(ii), the Department has not
changed the service requirements in the regulations. However, parties
may continue to consent to electronic service in accordance with 19 CFR
351.303(f)(1)(ii) and continue to serve one another in accordance with
this provision.
One commenter stated that it supports the Department's approach to
electronic release under APO using the IA ACCESS system, but it urges
the Department to impose conditions on such document releases, such as
prohibiting access to another party's business proprietary information
using file servers, networks and other electronic data storage and
transmission devices located overseas or accessible to the public (such
as computers in libraries and Internet cafes). The commenter stated
that use of such systems would greatly increase the likelihood of
unauthorized interception of and access to the business proprietary
information of another party.
The commenter also encouraged the Department to retain the
requirement that authorized applicants certify that they will ``ensure
that business proprietary information in an electronic format will not
be accessible to parties not authorized to receive business proprietary
information'' in all future APOs. The commenter proposed requiring, as
an additional safeguard, that all applicants for access to business
proprietary information under an APO further specify (as part of their
APO applications) each location from which they will access electronic
documents containing business proprietary information of another
interested party. According to the commenter, other interested parties
should be permitted to comment on such applications and have their
comments considered by the Department as part of its review of the APO
application.
The Department is committed to securing the business proprietary
information of parties participating in its proceedings. The Department
has determined that it is not necessary for applicants for APO access
to specify the location from which they will access electronic
documents containing business proprietary information of another
interested party. The Department already requires parties to use
diligence in protecting other interested parties' business proprietary
information and will continue to allow the firms to develop their own
internal procedures to ensure that business proprietary information is
downloaded in a secure manner. In addition, the Department will
continue to address the improper release of business proprietary
information through its sanctions proceedings at 19 CFR part 354.
Classification
E.O. 12866
This rule has been determined to be not significant for purposes of
Executive Order 12866.
Regulatory Flexibility Act
The Chief Counsel for Regulation has certified to the Chief Counsel
for Advocacy of the Small Business Administration (``SBA'') under the
provisions of the Regulatory Flexibility Act, 5 U.S.C. 605(b), that
this rule, if promulgated, would not have a significant economic impact
on a substantial number of small business entities. The factual basis
for the certification was published in the Proposed Rule and is not
repeated here. The Department received no comments questioning or
regarding this certification.
[[Page 39274]]
Paperwork Reduction Act
This rule does not contain a collection of information for purposes
of the Paperwork Reduction Act of 1980, as amended (44 U.S.C. 3501 et
seq.).
List of Subjects in 19 CFR Part 351
Administrative practice and procedure, Antidumping, Business and
industry, Cheese, Confidential business information, Countervailing
duties, Freedom of information, Investigations, Reporting and
recordkeeping requirements.
Dated: June 22, 2011.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
PART 351--ANTIDUMPING AND COUNTERVAILING DUTIES
0
1. The authority citation for part 351 continues to read as follows:
Authority: 5 U.S.C. 301; 19 U.S.C. 1202 note; 19 U.S.C. 1303
note; 19 U.S.C. 1671 et seq.; and 19 U.S.C. 3538.
0
2. Section 351.103 is revised to read as follows:
Sec. 351.103 Central Records Unit and Administrative Protective Order
and Dockets Unit.
(a) Import Administration's Central Records Unit maintains a Public
File Room in Room 7046, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW., Washington, DC 20230. The office hours of the
Public File Room are between 8:30 a.m. and 5 p.m. Eastern Time on
business days. Among other things, the Central Records Unit is
responsible for maintaining an official and public record for each
antidumping and countervailing duty proceeding (see Sec. 351.104).
(b) Import Administration's Administrative Protective Order and
Dockets Unit (APO/Dockets Unit) is located in Room 1870, U.S.
Department of Commerce, 14th Street and Constitution Avenue, NW.,
Washington, DC 20230. The office hours of the APO/Dockets Unit are
between 8:30 a.m. and 5 p.m. Eastern Time on business days. Among other
things, the APO/Dockets Unit is responsible for receiving submissions
from interested parties, issuing administrative protective orders
(APOs), maintaining the APO service list and the public service list as
provided for in paragraph (d) of this section, releasing business
proprietary information under APO, and conducting APO violation
investigations. The APO/Dockets Unit also is the contact point for
questions and concerns regarding claims for business proprietary
treatment of information and proper public versions of submissions
under Sec. 351.105 and Sec. 351.304.
(c) Filing of documents with the Department. No document will be
considered as having been received by the Secretary unless it is
electronically filed in accordance with Sec. 351.303(b)(2)(i) or,
where applicable, in accordance with Sec. 351.303(b)(2)(ii), it is
manually submitted to the Import Administration's APO/Dockets Unit in
Room 1870 and is stamped with the date, and, where necessary, the time,
of receipt. A manually filed document must be submitted with a cover
sheet, in accordance with Sec. 351.303(b)(3).
(d) Service list. The APO/Dockets Unit will maintain and make
available a public service list for each segment of a proceeding. The
service list for an application for a scope ruling is described in
Sec. 351.225(n).
(1) With the exception of a petitioner filing a petition in an
investigation, all persons wishing to participate in a segment of a
proceeding must file a letter of appearance. The letter of appearance
must identify the name of the interested party, how that party
qualifies as an interested party under Sec. 351.102(b)(29) and section
771(9) of the Act, and the name of the firm, if any, representing the
interested party in that particular segment of the proceeding. All
persons who file a letter of appearance and qualify as an interested
party will be included in the public service list for the segment of
the proceeding in which the letter of appearance is submitted. The
letter of appearance may be filed as a cover letter to an application
for APO access. If the representative of the party is not requesting
access to business proprietary information under APO, the letter of
appearance must be filed separately from any other document filed with
the Department. If the interested party is a coalition or association
as defined in subparagraph (A), (E), (F) or (G) of section 771(9) of
the Act, the letter of appearance must identify all of the members of
the coalition or association.
(2) Each interested party that asks to be included on the public
service list for a segment of a proceeding must designate a person to
receive service of documents filed in that segment.
0
3. Section 351.104 is amended by revising paragraphs (a)(1), (a)(2),
and (b) to read as follows:
Sec. 351.104 Record of proceedings.
(a) Official record--(1) In general. The Secretary will maintain an
official record of each antidumping and countervailing duty proceeding.
The Secretary will include in the official record all factual
information, written argument, or other material developed by,
presented to, or obtained by the Secretary during the course of a
proceeding that pertains to the proceeding. The official record will
include government memoranda pertaining to the proceeding, memoranda of
ex parte meetings, determinations, notices published in the Federal
Register, and transcripts of hearings. The official record will contain
material that is public, business proprietary, privileged, and
classified. For purposes of section 516A(b)(2) of the Act, the record
is the official record of each segment of the proceeding.
(2) Material rejected. (i) The Secretary, in making any
determination under this part, will not use factual information,
written argument, or other material that the Secretary rejects.
(ii) The official record will include a copy of a rejected
document, solely for purposes of establishing and documenting the basis
for rejecting the document, if the document was rejected because:
(A) The document, although otherwise timely, contains untimely
filed new factual information (see Sec. 351.301(b));
(B) The submitter made a nonconforming request for business
proprietary treatment of factual information (see Sec. 351.304);
(C) The Secretary denied a request for business proprietary
treatment of factual information (see Sec. 351.304);
(D) The submitter is unwilling to permit the disclosure of business
proprietary information under APO (see Sec. 351.304).
(iii) In no case will the official record include any document that
the Secretary rejects as untimely filed, or any unsolicited
questionnaire response unless the response is a voluntary response
accepted under Sec. 351.204(d) (see Sec. 351.302(d)).
(b) Public record. The Secretary will maintain a public record of
each proceeding. The record will consist of all material contained in
the official record (see paragraph (a) of this section) that the
Secretary decides is public information under Sec. 351.105(b),
government memoranda or portions of memoranda that the Secretary
decides may be disclosed to the general public, and public versions of
all determinations, notices, and transcripts. The public record will be
available to the public for inspection and copying in the Central
Records Unit (see Sec. 351.103). The Secretary will charge an
[[Page 39275]]
appropriate fee for providing copies of documents.
* * * * *
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4. Section 351.302 is amended by revising paragraphs (a), (c) and (d)
to read as follows:
Sec. 351.302 Extension of time limits; rejection of untimely filed or
unsolicited material.
(a) Introduction. This section sets forth the procedures for
requesting an extension of a time limit. In addition, this section
explains that certain untimely filed or unsolicited material will be
rejected together with an explanation of the reasons for the rejection
of such material.
* * * * *
(c) Requests for extension of specific time limit. Before the
applicable time limit specified under Sec. 351.301 expires, a party
may request an extension pursuant to paragraph (b) of this section. The
request must be in writing, filed consistent with Sec. 351.303, and
state the reasons for the request. An extension granted to a party must
be approved in writing.
(d) Rejection of untimely filed or unsolicited material. (1) Unless
the Secretary extends a time limit under paragraph (b) of this section,
the Secretary will not consider or retain in the official record of the
proceeding:
(i) Untimely filed factual information, written argument, or other
material that the Secretary rejects, except as provided under Sec.
351.104(a)(2); or
(ii) Unsolicited questionnaire responses, except as provided under
Sec. 351.204(d)(2).
(2) The Secretary will reject such information, argument, or other
material, or unsolicited questionnaire response with, to the extent
practicable, written notice stating the reasons for rejection.
0
5. Section 351.303 is amended by revising the section heading and
paragraphs (a), (b), (c), (d), and (f)(1) to read as follows:
Sec. 351.303 Filing, document identification, format, translation,
service, and certification of documents.
(a) Introduction. This section contains the procedural rules
regarding filing, document identification, format, service,
translation, and certification of documents and applies to all persons
submitting documents to the Department for consideration in an
antidumping or countervailing duty proceeding.
(b) Filing--(1) In general. Persons must address all documents to
the Secretary of Commerce, Attention: Import Administration, APO/
Dockets Unit, Room 1870, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW., Washington, DC 20230. An electronically filed
document must be received successfully in its entirety by the
Department's electronic records system, IA ACCESS, by 5 p.m. Eastern
Time on the due date. Where applicable, a submitter must manually file
a document between the hours of 8:30 a.m. and 5 p.m. Eastern Time on
business days (see Sec. 351.103(b)). For both electronically filed and
manually filed documents, if the applicable due date falls on a non-
business day, the Secretary will accept documents that are filed on the
next business day. A manually filed document must be accompanied by a
cover sheet generated in IA ACCESS, in accordance with Sec.
351.303(b)(3).
(2) Filing of documents and databases--(i) Electronic filing. A
person must file all documents and databases electronically using IA
ACCESS at http://iaaccess.trade.gov. A person making a filing must
comply with the procedures set forth in the IA ACCESS Handbook on
Electronic Filing Procedures, which is available on the Department's
Web site at http://www.trade.gov/ia.
(ii) Manual filing. (A) Notwithstanding Sec. 351.303(b)(2)(i), a
person must manually file a data file that exceeds the file size limit
specified in the IA ACCESS Handbook on Electronic Filing Procedures and
as referenced in Sec. 351.303(c)(3), and the data file must be
accompanied by a cover sheet described in Sec. 351.303(b)(3). A person
may manually file a bulky document. If a person elects to manually file
a bulky document, it must be accompanied by a cover sheet described in
Sec. 351.303(b)(3). The Department both provides specifications for
large data files and defines bulky document standards in the IA ACCESS
Handbook on Electronic Filing Procedures, which is available on the
Department's Web site at http://www.trade.gov/ia.
(B) If the IA ACCESS system is unable to accept filings
continuously or intermittently over the course of any period of time
greater than one hour between 12 noon and 4:30 p.m. Eastern Time or for
any duration of time between 4:31 p.m. and 5 p.m. Eastern Time, then a
person may manually file the document in the APO/Dockets Unit. The
Department will provide notice of such technical failures on its Help
Desk line. Procedures for manual filing in this situation are provided
in the IA ACCESS Handbook on Electronic Filing Procedures.
(C) Apart from the documents and database files described in Sec.
351.303(b)(2)(ii)(A), if a submitter is unable to comply with the
electronic filing requirement, as provided in Sec. 351.103(c), and in
accordance with section 782(c) of the Act, the submitter must notify
the Department promptly of the reasons the submitter is unable to file
the document electronically, provide a full explanation, and suggest
alternative forms in which to submit the information. The Department
will consider the ability of the submitter and may modify the
electronic filing requirement on a case-by-case basis.
(D) Number of hardcopies for manual filing. If a document is filed
manually, the submitter must file one hardcopy of the document in the
APO/Dockets Unit, along with a cover sheet generated in IA ACCESS. If
the document contains business proprietary information, the submitter
must file one hardcopy of the business proprietary document and one
hardcopy of the public version, along with the requisite IA ACCESS-
generated cover sheets. If applicable, the submitter must also file one
hardcopy of the business proprietary/APO version, along with the
requisite IA ACCESS-generated cover sheet. For a bulky document, in
addition to the foregoing, the submitter must also provide one
additional hardcopy of the business proprietary document or public
document, as applicable.
(3) Cover sheet. When manually filing a document, parties must
complete the cover sheet (as described in the IA ACCESS Handbook on
Electronic Filing Procedures) online at http://iaaccess.trade.gov and
print the cover sheet for submission to the APO/Dockets Unit.
(4) Document identification. Each document must be clearly
identified as one of the following five document classifications and
must conform with the requirements under paragraph (d)(2) of this
section. Business proprietary document or business proprietary/APO
version, as applicable, means a document or a version of a document
containing information for which a person claims business proprietary
treatment under Sec. 351.304.
(i) Business Proprietary Document--May be Released Under APO. This
business proprietary document contains single-bracketed business
proprietary information that the submitter agrees to release under APO.
It must contain the statement ``May be Released Under APO'' in
accordance with the requirements under paragraph (d)(2)(v) of this
section.
(ii) Business Proprietary Document--May Not be Released Under APO.
This business proprietary document contains double-bracketed business
proprietary
[[Page 39276]]
information that the submitter does not agree to release under APO.
This document must contain the statement ``May Not be Released Under
APO'' in accordance with the requirements under paragraph (d)(2)(v) of
this section. This type of document may contain single-bracketed
business proprietary information in addition to double-bracketed
business proprietary information.
(iii) Business Proprietary/APO Version--May be Released Under APO.
In the event that a business proprietary document contains both single-
and double-bracketed business proprietary information, the submitting
person must submit a version of the document with the double-bracketed
business proprietary information omitted. This version must contain the
single-bracketed business proprietary information that the submitter
agrees to release under APO. This version must be identified as
``Business Proprietary/APO Version'' and must contain the statement
``May be Released Under APO'' in accordance with the requirements under
paragraph (d)(2)(v) of this section.
(iv) Public Version. The public version excludes all business
proprietary information, whether single- or double-bracketed. Specific
filing requirements for public version submissions are discussed in
Sec. 351.304(c).
(v) Public Document. The public document contains only public
information. There is no corresponding business proprietary document
for a public document.
(c) Filing of business proprietary documents and public versions
under the one-day lag rule; information in double brackets.
(1) In general. If a submission contains information for which the
submitter claims business proprietary treatment, the submitter may
elect to file the submission under the one-day lag rule described in
paragraph (c)(2) of this section. A petition, an amendment to a
petition, and any other submission filed prior to the initiation of an
investigation shall not be filed under the one-day lag rule. The
business proprietary document and public version of such pre-initiation
submissions must be filed simultaneously on the same day.
(2) Application of the one-day lag rule--(i) Filing the business
proprietary document. A person must file a business proprietary
document with the Department within the applicable time limit.
(ii) Filing of final business proprietary document; bracketing
corrections. By the close of business one business day after the date
the business proprietary document is filed under paragraph (c)(2)(i) of
this section, a person must file the complete final business
proprietary document with the Department. The final business
proprietary document must be identical in all respects to the business
proprietary document filed on the previous day except for any
bracketing corrections and the omission of the warning ``Bracketing of
Business Proprietary Information Is Not Final for One Business Day
After Date of Filing'' in accordance with paragraph (d)(2)(v) of this
section. A person must serve other persons with the complete final
business proprietary document if there are bracketing corrections. If
there are no bracketing corrections, a person need not serve a copy of
the final business proprietary document.
(iii) Filing the public version. Simultaneously with the filing of
the final business proprietary document under paragraph (c)(2)(ii) of
this section, a person also must file the public version of such
document (see Sec. 351.304(c)) with the Department.
(iv) Information in double brackets. If a person serves authorized
applicants with a business proprietary/APO version of a document that
excludes information in double brackets pursuant to Sec. Sec.
351.303(b)(4)(iii) and 351.304(b)(2), the person simultaneously must
file with the Department the complete business proprietary/APO version
of the document from which information in double brackets has been
excluded.
(3) Sales files, cost of production files and other electronic
databases. When a submission includes sales files, cost of production
files or other electronic databases, such electronic databases must be
filed electronically in accordance with paragraph (b)(2) of this
section. If a submitter must file the database manually pursuant to
Sec. 351.303(b)(2)(ii)(A), the submitter must file such information on
the computer medium specified by the Department's request for such
information. The submitter need not accompany the computer medium with
a paper printout. All electronic database information must be
releasable under APO (see Sec. 351.305). A submitter need not include
brackets in an electronic database containing business proprietary
information. The submitter's selection of the security classification
``Business Proprietary Document--May Be Released Under APO'' at the
time of filing indicates the submitter's request for business
proprietary treatment of the information contained in the database.
Where possible, the submitter must insert headers or footers requesting
business proprietary treatment of the information on the databases for
printing purposes. A submitter must submit a public version of a
database in pdf format. The public version of the database must be
publicly summarized and ranged in accordance with Sec. 351.304(c).
(d) Format of submissions--(1) In general. Unless the Secretary
alters the requirements of this section, a document filed with the
Department must conform to the specification and marking requirements
under paragraph (d)(2) of this section or the Secretary may reject such
document in accordance with Sec. 351.104(a).
(2) Specifications and markings. If a document is filed manually,
it must be on letter-size (8\1/2\ x 11 inch) paper, single-sided and
double-spaced, bound with a paper clip, butterfly/binder clip, or
rubber band. The filing of stapled, spiral, velo, or other type of
solid binding is not permitted. In accordance with paragraph (b)(3) of
this section, a cover sheet must be placed before the first page of the
document. Electronically filed documents must be formatted to print on
letter-size (8\1/2\ x 11 inch) paper and double-spaced. Spreadsheets,
unusually sized exhibits, and databases are best utilized in their
original printing format and should not be reformatted for submission.
A submitter must mark the first page of each document in the upper
right-hand corner with the following information in the following
format:
(i) On the first line, except for a petition, indicate the
Department case number;
(ii) On the second line, indicate the total number of pages in the
document including cover pages, appendices, and any unnumbered pages;
(iii) On the third line, indicate the specific segment of the
proceeding, (e.g., investigation, administrative review, scope inquiry,
suspension agreement, etc.) and, if applicable, indicate the complete
period of review (MM/DD/YY-MM/DD/YY);
(iv) On the fourth line, except for a petition, indicate the
Department office conducting the proceeding;
(v) On the fifth and subsequent lines, indicate whether any portion
of the document contains business proprietary information and, if so,
list the applicable page numbers and state either: ``Business
Proprietary Document--May Be Released Under APO,'' ``Business
Proprietary Document--May Not Be Released Under APO,'' or ``Business
Proprietary/APO Version--May Be Released Under APO,'' as applicable,
and consistent
[[Page 39277]]
with Sec. 351.303(b)(4). Indicate ``Business Proprietary Treatment
Requested'' on the top of each page containing business proprietary
information. In addition, include the warning ``Bracketing of Business
Proprietary Information Is Not Final for One Business Day After Date of
Filing'' on the top of each page containing business proprietary
information in the business proprietary document filed under paragraph
(c)(2)(i) of this section (one-day lag rule). Do not include this
warning in the final business proprietary document filed on the next
business day under paragraph (c)(2)(ii) of this section (see Sec.
351.303(c)(2) and Sec. 351.304(c)); and
(vi) For the public version of a business proprietary document
required under Sec. 351.304(c), complete the marking as required in
paragraphs (d)(2)(i)-(v) of this section for the business proprietary
document, but conspicuously mark the first page ``Public Version.''
(vii) For a public document, complete the marking as required in
paragraphs (d)(2)(i)-(v) of this section for the business proprietary
document or version, as applicable, but conspicuously mark the first
page ``Public Document.''
* * * * *
(f) * * *
(1)(i) In general. Except as provided in Sec. 351.202(c) (filing
of petition), Sec. 351.208(f)(1) (submission of proposed suspension
agreement), and paragraph (f)(3) of this section, a person filing a
document with the Department simultaneously must serve a copy of the
document on all other persons on the service list by personal service
or first class mail.
(ii) Service of public versions, public documents, or a party's own
business proprietary information. Notwithstanding paragraphs (f)(1)(i)
and (f)(3) of this section, service of a business proprietary document
containing only the server's own business proprietary information, on
persons on the APO service list, or the public version of such a
document, or a public document on persons on the public service list,
may be made by facsimile transmission or other electronic transmission
process, with the consent of the person to be served.
* * * * *
0
6. Section 351.304 is amended by revising paragraphs (b)(1),
(b)(2(iii), (c), (d)(1) introductory text and (d)(1)(iv) to read as
follows:
Sec. 351.304 Establishing business proprietary treatment of
information.
* * * * *
(b) Identification of business proprietary information--(1)
Information releasable under administrative protective order--(i) In
general. A person submitting information must identify the information
for which it claims business proprietary treatment by enclosing the
information within single brackets. The submitting person must provide
with the information an explanation of why each item of bracketed
information is entitled to business proprietary treatment. A person
submitting a request for business proprietary treatment also must
include an agreement to permit disclosure under an administrative
protective order, unless the submitting party claims that there is a
clear and compelling need to withhold the information from disclosure
under an administrative protective order.
(ii) Electronic databases. In accordance with Sec. 351.303(c)(3),
an electronic database need not contain brackets. The submitter must
select the security classification ``Business Proprietary Document--May
Be Released Under APO'' at the time of filing to request business
proprietary treatment of the information contained in the database. The
public version of the database must be publicly summarized and ranged
in accordance with Sec. 351.304(c).
(2) * * *
(iii) The submitting person may exclude the information in double
brackets from the business proprietary/APO version of the submission
served on authorized applicants. See Sec. 351.303 for filing and
service requirements.
(c) Public version. (1) A person filing a submission that contains
information for which business proprietary treatment is claimed must
file a public version of the submission. The public version must be
filed on the first business day after the filing deadline for the
business proprietary document (see Sec. 351.303(b)). The public
version must contain a summary of the bracketed information in
sufficient detail to permit a reasonable understanding of the substance
of the information. If the submitting person claims that summarization
is not possible, the claim must be accompanied by a full explanation of
the reasons supporting that claim. Generally, numerical data will be
considered adequately summarized if grouped or presented in terms of
indices or figures within 10 percent of the actual figure. If an
individual portion of the numerical data is voluminous, at least one
percent representative of that portion must be summarized. A submitter
should not create a public summary of business proprietary information
of another person.
(2) If a submitting party discovers that it has failed to bracket
information correctly, the submitter may file a complete, corrected
business proprietary document along with the public version (see Sec.
351.303(b)). At the close of business on the day on which the public
version of a submission is due under paragraph (c)(2) of this section,
however, the bracketing of business proprietary information in the
original business proprietary document or, if a corrected version is
timely filed, the corrected business proprietary document will become
final. Once bracketing has become final, the Secretary will not accept
any further corrections to the bracketing of information in a
submission, and the Secretary will treat non-bracketed information as
public information.
(d) * * *
(1) In general. The Secretary will reject a submission that does
not meet the requirements of section 777(b) of the Act and this section
with a written explanation. The submitting person may take any of the
following actions within two business days after receiving the
Secretary's explanation:
* * *
(iv) Submit other material concerning the subject matter of the
rejected information. If the submitting person does not take any of
these actions, the Secretary will not consider the rejected submission.
* * *
0
7. Section 351.305 is amended by revising paragraph (b)(2) to read as
follows:
Sec. 351.305 Access to business proprietary information.
* * *
(b) * * *
(2) A representative of a party to the proceeding may apply for
access to business proprietary information under the administrative
protective order by submitting Form ITA-367 to the Secretary. Form ITA-
367 must identify the applicant and the segment of the proceeding
involved, state the basis for eligibility of the applicant for access
to business proprietary information, and state the agreement of the
applicant to be bound by the administrative protective order. Form ITA-
367 may be prepared on the applicant's own wordprocessing system, and
must be accompanied by a certification that the application is
consistent with Form ITA-367 and an acknowledgment that any
discrepancies will be interpreted in a manner consistent with Form ITA-
[[Page 39278]]
367. An applicant must apply to receive all business proprietary
information on the record of the segment of a proceeding in question,
but may waive service of business proprietary information it does not
wish to receive from other parties to the proceeding. An applicant must
serve an APO application on the other parties by the most expeditious
manner possible at the same time that it files the application with the
Department.
* * * * *
[FR Doc. 2011-16352 Filed 7-5-11; 8:45 am]
BILLING CODE 3510-DS-P