[Federal Register Volume 77, Number 17 (Thursday, January 26, 2012)]
[Rules and Regulations]
[Pages 3922-3927]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-1500]


=======================================================================
-----------------------------------------------------------------------

INTERNATIONAL TRADE COMMISSION

19 CFR Part 206


Rules for Investigations Relating to Global and Bilateral 
Safeguards Actions, Market Disruption, Trade Diversion, and Review of 
Relief Actions

AGENCY: United States International Trade Commission.

ACTION: Interim rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: The United States International Trade Commission (Commission) 
is adopting interim rules that amend the Commission's Rules of Practice 
and Procedure to make technical amendments and to provide rules for the 
conduct of safeguard investigations under statutory provisions that 
implement bilateral safeguard provisions in free trade agreements that 
the United States has negotiated with Australia, Bahrain, Chile, 
Colombia, the Dominican Republic and five Central American countries 
(Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua), Jordan, 
Korea, Morocco, Oman, Panama, Peru, and Singapore. With the exception 
of the free trade agreements with Colombia, Korea, and Panama, all of 
the aforementioned free trade agreements have entered into force. The 
free trade

[[Page 3923]]

agreements with Colombia, Korea, and Panama are expected to enter into 
force imminently. The interim rules would amend and expand upon current 
rules that pertain to the conduct of bilateral safeguard investigations 
under the North American Free Trade Agreement (NAFTA) Implementation 
Act with respect to imports from Canada and Mexico.

DATES: Effective date: January 26, 2012.
    Deadline for filing written comments: March 26, 2012.

ADDRESSES: You may submit comments, identified by docket number MISC-
039, FTA safeguards rulemaking, by any of the following methods:

--Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
--Agency Web Site: http://edis.usitc.gov. Follow the instructions for 
submitting comments on the Web site.
--Mail: For paper submission. U.S. International Trade Commission, 500 
E Street SW., Room 112A, Washington, DC 20436.
--Hand Delivery/Courier: U.S. International Trade Commission, 500 E 
Street SW., Room 112A, Washington, DC 20436. From the hours of 8:45 
a.m. to 5:15 p.m.

    Instructions: All submissions received must include the agency name 
and docket number (MISC-039, FTA safeguards rulemaking), along with a 
cover letter stating the nature of the commenter's interest in the 
proposed rulemaking. All comments received will be posted without 
change to http://edis.usitc.gov including any personal information 
provided. For paper copies, a signed original and 8 copies of each set 
of comments should be submitted to James R. Holbein, Secretary, U.S. 
International Trade Commission, 500 E Street SW., Room 112A, 
Washington, DC 20436. For access to the docket to read background 
documents or comments received, go to https://edis.usitc.gov and/or the 
U.S. International Trade Commission, 500 E Street SW., Room 112A, 
Washington, DC 20436.

FOR FURTHER INFORMATION CONTACT: James R. Holbein, Secretary, telephone 
(202) 205-2000 or William Gearhart, Esquire, Office of the General 
Counsel, United States International Trade Commission, telephone (202) 
205-3091. Hearing-impaired individuals are advised that information on 
this matter can be obtained by contacting the Commission's TDD terminal 
at (202) 205-1810. General information concerning the Commission may 
also be obtained by accessing its Web site at http://www.usitc.gov.

SUPPLEMENTARY INFORMATION: The preamble below is designed to assist 
readers in understanding these amendments to the Commission Rules. This 
preamble provides background information, a regulatory analysis of the 
amendments, a section-by-section explanation of the amendments, and a 
description of the amendments to the Rules. The Commission encourages 
members of the public to comment, in addition to any other comments 
they wish to make on the amendments, on whether the amendments are in 
language that is sufficiently clear for users to understand.
    These amendments are being promulgated in accordance with the 
Administrative Procedure Act (5 U.S.C. 553) (APA), and will be codified 
in 19 CFR part 206.

Background

    Section 335 of the Tariff Act of 1930 (19 U.S.C. 1335) authorizes 
the Commission to adopt such reasonable procedures, rules and 
regulations as it deems necessary to carry out its functions and 
duties. The Commission is amending its rules governing investigations 
relating to global and bilateral safeguard actions, market disruption, 
trade diversion and review of relief actions (Part 206 of its Rules). 
The amendments principally concern Subpart D of Part 206, 
Investigations Relating to Bilateral Safeguard Actions, but also 
include several technical and conforming changes to the general rules 
in Subpart A of Part 206. The current rules in Subpart D apply only to 
Commission investigations under the bilateral safeguard provision in 
the NAFTA Implementation Act with respect to imports from Canada and 
Mexico. However, in recent years Congress has enacted legislation that 
implements bilateral safeguard provisions in several additional free 
trade agreements, including most recently agreements with Colombia, 
Korea, and Panama. The implementing legislation for each of those free 
trade agreements directs the Commission, upon receipt of a petition, to 
conduct an investigation and determine whether, as a result of the 
reduction or elimination of a duty under the agreement, an article is 
being imported into the United States in such increased quantities, in 
absolute terms or relative to domestic production, and under such 
conditions that imports of such article constitute a substantial cause 
of serious injury or the threat thereof to the domestic industry 
producing an article that is like or directly competitive with the 
imported article. If the Commission makes an affirmative determination, 
it must recommend a remedy to the President; the President makes the 
final decision on remedy.
    In addition to the NAFTA Implementation Act, the Commission is 
required to conduct bilateral safeguard investigations and make 
determinations under section 311(b) of the United States-Australia Free 
Trade Agreement Implementation Act, section 311(b) of the United 
States-Bahrain Free Trade Agreement Implementation Act, section 311(b) 
of the United States-Chile Free Trade Agreement Implementation Act, 
section 311(b) of the United States-Colombia Trade Promotion Agreement 
Implementation Act, section 311(b) of the Dominican Republic-Central 
America-United States Free Trade Agreement Implementation Act, section 
211(b) of the United States-Jordan Free Trade Area Implementation Act, 
section 311(b) of the United States-Korea Free Trade Agreement 
Implementation Act, section 311(b) of the United States-Morocco Free 
Trade Agreement Implementation Act, section 311(b) of the United 
States-Oman Free Trade Agreement Implementation Act, section 311(b) of 
the United States-Panama Trade Promotion Agreement Implementation Act, 
section 311(b) of the United States-Peru Trade Promotion Agreement 
Implementation Act, and section 311(b) of the United States-Singapore 
Free Trade Agreement Implementation Act (for U.S. Code citations to the 
respective implementation acts, see the text of interim rule section 
206.31 infra).
    These amendments expand upon existing rules in Subpart D of Part 
206 that provide for investigations and determinations under the NAFTA 
Implementation Act. Each of the statutory provisions listed above 
contains requirements that are similar both substantively and 
procedurally to the provision in the NAFTA Implementation Act. These 
amended rules identify the types of entities that may file a petition, 
describe the information that must be included in a petition, indicate 
the time for Commission determinations and reporting, and establish 
procedures for the limited disclosure of confidential business 
information under administrative protective order in those instances in 
which the Commission is authorized to make such disclosure.

Procedure for Adopting the Interim Amendments

    The Commission ordinarily promulgates amendments to the Code of 
Federal Regulations in accordance with the rulemaking procedure in 
section 553 of the Administrative Procedure Act

[[Page 3924]]

(APA) (5 U.S.C. 553). That procedure entails publishing a notice of 
proposed rulemaking in the Federal Register that solicits public 
comment on the proposed amendments, considering the public comments in 
deciding on the final content of the amendments, and publishing the 
final amendments at least 30 days prior to their effective date. In 
this instance, however, the Commission is amending its rules in 19 CFR 
Part 206 on an interim basis, effective upon publication of this notice 
in the Federal Register.
    The Commission's authority to adopt interim amendments without 
following all steps listed in section 553 of the APA is derived from 
section 335 of the Tariff Act of 1930 (19 U.S.C. 1335) and section 553 
of the APA.
    Section 335 of the Tariff Act authorizes the Commission to adopt 
such reasonable procedures, rules, and regulations as it deems 
necessary to carry out its functions and duties. The Commission has 
determined that the need for interim rules is clear in this instance. 
Recently enacted legislation that implements safeguard provisions in 
free trade agreements, including agreements with Colombia, Korea, and 
Panama, requires the Commission to conduct new kinds of investigations 
and make determinations. It is important that the Commission adopt 
implementing rules as quickly as possible because the three new 
agreements are expected to enter into force imminently. The interim 
amendments will also apply in the case of investigations under 
legislation that implements safeguard provisions in free trade 
agreements that have already entered into force with respect to the 
other countries listed above. In light of the similarity of the 
provisions in the various implementing statutes, the Commission did not 
view it as practical to issue a notice of interim rulemaking applicable 
to investigations involving goods from one or several free trade 
agreement partners and at the same time issue a substantially identical 
notice of proposed rulemaking applicable to investigations involving 
goods from other free trade agreement partners. These interim rules 
will apply to investigations and determinations under a particular free 
trade agreement implementation act only after the relevant agreement 
has entered into force.
    Section 553(b) of the APA allows an agency to dispense with 
publication of a notice of proposed rulemaking when the following 
circumstances exist: (1) The rules in question are interpretive rules, 
general statements of policy, or rules of agency organization, 
procedure or practice; or (2) the agency for good cause finds that 
notice and public comment on the rules are impracticable, unnecessary, 
or contrary to the public interest, and the agency incorporates that 
finding and the reasons therefor into the rules adopted by the agency.
    Section 553(d)(3) of the APA allows an agency to dispense with the 
publication of notice of final rules at least thirty days prior to 
their effective date if the agency finds that good cause exists for not 
meeting the advance publication requirement and the agency publishes 
that finding along with the rules.
    In this instance, the Commission has determined that the requisite 
circumstances exist for dispensing with the notice, comment, and 
advance publication procedure that ordinarily precedes the adoption of 
Commission rules. For purposes of invoking the section 553(b) exemption 
from publishing a notice of proposed rulemaking that solicits public 
comment, the Commission finds that the interim amendments to Part 206 
are ``agency rules of procedure and practice.'' Moreover, the entry 
into force of the new agreements, particularly the agreement with 
Korea, which applies to a significant amount of U.S. import trade and 
which could not be predicted sufficiently far in advance, makes the 
establishment of rules a matter of urgency. Hence, it clearly would 
have been impracticable for the Commission to comply with the notice of 
proposed rulemaking and public comment procedure.
    For the purpose of invoking the section 553(d)(3) exemption from 
publishing advance notice of the interim amendments to Part 206 at 
least thirty days prior to their effective date, the Commission finds 
the fact that the implementing legislation was signed by the President 
on October 21, 2011, makes such advance publication impracticable and 
constitutes good cause for not complying with that requirement.
    The Commission recognizes that interim rule amendments should not 
respond to anything more than the exigencies created by the new 
legislation. Each interim amendment to Part 206 accordingly falls into 
one or more of the following categories: (1) A revision of a 
preexisting rule to make it applicable to one or more of the new kinds 
of investigations of relief actions; (2) clarification of the manner in 
which a preexisting rule is to be applied to one or more of the new 
kinds of investigations; or (3) a new rule covering a matter addressed 
in the new legislation but not covered by a preexisting rule.
    After taking into account all comments received and the experience 
acquired under the interim amendments, the Commission will replace them 
with final amendments promulgated in accordance with the notice, 
comment, and advance publication procedure prescribed in section 553 of 
the APA.

Regulatory Analysis of Proposed Amendments to the Commission's Rules

    The Commission has determined that the proposed rules do not meet 
the criteria described in section 3(f) of Executive Order 12866 (58 FR 
51735, October 4, 1993) and thus do not constitute a significant 
regulatory action for purposes of the Executive Order.
    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) is 
inapplicable to this rulemaking because it is not one for which a 
notice of final rulemaking is required under 5 U.S.C. 553(b) or any 
other statute.
    These interim rules do not contain federalism implications 
warranting the preparation of a federalism summary impact statement 
pursuant to Executive Order 13132 (64 FR 43255, August 4, 1999).
    No actions are necessary under the Unfunded Mandates Reform Act of 
1995 (2 U.S.C. 1501 et seq.) because the interim rules will not result 
in the expenditure by state, local, and tribal governments, in the 
aggregate, or by the private sector, of $100,000,000 or more in any one 
year, and will not significantly or uniquely affect small governments.
    The interim rules are not major rules as defined by section 804 of 
the Congressional Review Act (5 U.S.C. 801 et seq.). Moreover, they are 
exempt from the reporting requirements of that Act because they contain 
rules of agency organization, procedure, or practice that do not 
substantially affect the rights or obligations of non-agency parties.
    The amendments are not subject to section 3504(h) of the Paperwork 
Reduction Act (44 U.S.C. 3501 et seq.), since they do not contain any 
new information collection requirements.

Section-by-Section Explanation of the Proposed Amendments

PART 206--INVESTIGATIONS RELATING TO GLOBAL AND BILATERAL SAFEGUARD 
ACTIONS, MARKET DISRUPTION, AND REVIEW OF RELIEF ACTIONS

    Section 206.1 of subpart 206, which lists the statutory authorities 
and investigations to which subpart 206

[[Page 3925]]

applies, is being amended to add a reference to the list of the 
statutory authorities that are being added in Subpart D of subpart 206 
under which the Commission may conduct a bilateral FTA safeguard 
investigation. Section 206.1 is being further amended to delete the 
cross references between statutory authorities and part 206 subparts. 
This information is readily apparent either from the title of the 
subpart or the first section in each subpart, which lists the statutory 
authorities and investigations to which the subpart applies.
    Subpart A of Part 206 sets forth rules of general application for 
Commission safeguard investigations. This subpart is being amended in 
two principal respects. Section 206.2 is amended to extend to entities 
filing petitions under bilateral safeguard provisions the requirement 
that the petitioning entity identify the statutory authority and rule 
subpart under which the petition is filed. Section 206.6(a)(2) is 
amended to state that the Commission, if it makes an affirmative 
determination or is equally divided in its determination, will include 
in its report such remedy recommendations or proposals as may be 
appropriate under the statute and an explanation of the basis for each 
recommendation or proposal. The amendment deletes a reference to a 
statutory provision that applies only in certain market disruption 
investigations.
    Subpart D of Part 206 is amended to apply to Commission 
investigations under several statutory authorities that implement FTA 
safeguard provisions. As amended, Subpart D is divided into seven 
sections. Section 206.31 lists the statutory authorities under which 
the Commission conducts such investigations. Section 206.32 sets forth 
definitions for terms applicable to some or all such investigations, 
including ``substantial cause,'' ``domestic industry,'' ``critical 
circumstances,'' ``perishable agricultural product,'' and ``Korean 
motor vehicle article.'' The definitions of ``substantial cause,'' 
``domestic industry,'' and ``Korean motor vehicle article'' are not in 
the current rule; however, they reflect statutory definitions.
    Section 206.33(a) lists the types of entities that may file a 
petition. The list is the same as in the current rule, but the rule is 
revised to refer to the list of statutory authorities in section 
206.31. Current section 206.33(b) is redesignated as section 206.33(d) 
and is amended to list the countries whose goods might be the subject 
of a request for provisional relief with respect to a perishable 
agricultural product. New section 206.33(b) lists the agreements for 
which U.S. implementing legislation has been enacted that provides for 
the subject Commission investigations. Current section 206.33(c) is 
deleted and is replaced by a new section 206.33(c) that relates to 
allegations of critical circumstances and lists the FTA countries whose 
goods might be the subject of a request for provisional relief when 
critical circumstances are alleged. The Commission is deleting current 
section 206.33(c), which describes the President's authority to provide 
relief after expiration of the transition period in NAFTA cases, 
because it finds it impractical and unnecessary to describe more 
generally the President's authority under the various free trade 
agreement implementing statutes.
    Section 206.34 describes the information that must be included in a 
petition filed under Subpart D. The information required is similar to 
that in current section 206.34 for petitions filed under the NAFTA 
safeguard provisions. Like the current rule, the amended rule 
recognizes that not all of the requested information may be available 
to the entity seeking to file a petition. Accordingly, the amended rule 
directs that the entity provide the requested information to the extent 
that such information is publicly available from governmental or other 
sources, or best estimates and the basis therefor if such information 
is not available.
    Section 206.35 sets forth the time period that the Commission has 
to make its injury determination and transmit its report after an 
investigation is initiated, and also indicates the time period for 
making and reporting determinations when provisional relief is 
requested. These time periods are the same as in the implementing 
statutes.
    Section 206.36, which states that the Commission will make its 
reports available to the public (with the exception of confidential 
business information) and will publish a summary in the Federal 
Register, is not changed.
    New section 206.37 is added to provide for limited disclosure of 
certain confidential business information under administrative 
protective order in investigations under implementing statutes that 
authorize such disclosure. With the exception of the implementing 
statutes for the NAFTA and the Jordan FTA, each of the implementing 
statutes listed in section 206.31 provides for such disclosure.

List of Subjects in 19 CFR Part 206

    Administrative practice and procedure, Australia, Bahrain, Business 
and industry, Canada, Chile, Colombia, Costa Rica, Dominican Republic, 
El Salvador, Guatemala, Honduras, Imports, Investigations, Jordan, 
Korea, Mexico, Morocco, Nicaragua, Oman, Panama, Peru, Singapore, Trade 
agreements.

    For the reasons stated in the preamble, the United States 
International Trade Commission amends 19 CFR Part 206 as follows:

PART 206--INVESTIGATIONS RELATING TO GLOBAL AND BILATERAL SAFEGUARD 
ACTIONS, MARKET DISRUPTION, TRADE DIVERSION, AND REVIEW OF RELIEF 
ACTIONS

0
1. Revise the authority citation for part 206 to read as follows:

    Authority: 19 U.S.C. 1335, 2112 note, 2251-2254, 2436, 2451-
2451a, 3351-3382, 3805 note, 4051-4065, and 4101.


0
2. Revise Sec.  206.1 to read as follows:


Sec.  206.1  Applicability of part.

    Part 206 applies to proceedings of the Commission under 201-202, 
204, 406, and 421-422 of the Trade Act of 1974, as amended (2251-2252, 
2254, 2436, 2451-2451a), sections 301-317 of the North American Free 
Trade Agreement Implementation Act (19 U.S.C. 3351-3382) (hereinafter 
NAFTA Implementation Act), and the statutory provisions listed in 
section 206.31 of this part 206 that implement bilateral safeguard 
provisions in other free trade agreements into which the United States 
has entered.

0
3. Revise Sec.  206.2 to read as follows:


Sec.  206.2  Identification of type of petition or request.

    An investigation under this part 206 may be commenced on the basis 
of a petition, request, resolution, or motion as provided for in the 
statutory provisions listed in Sec. Sec.  206.1 and 206.31. Each 
petition or request, as the case may be, filed by an entity 
representative of a domestic industry under this part 206 shall state 
clearly on the first page thereof ``This is a [petition or request] 
under section [citing the statutory provision] and Subpart [B, C, D, E, 
F, or G] of part 206 of the rules of practice and procedure of the 
United States International Trade Commission.''

0
4. Amend Sec.  206.6 by revising paragraph (a)(2) to read as follows:


Sec.  206.6  Report to the President.

    (a) * * *
    (2) If the determination is affirmative or if the Commission is 
equally divided in its determination, such remedy recommendation or 
proposal as may be appropriate under the statute and an

[[Page 3926]]

explanation of the basis for each recommendation or proposal.
* * * * *

0
5. Revise Sec.  206.31 to read as follows:


Sec.  206.31  Applicability of subpart.

    This subpart D applies specifically to investigations under section 
311(b) of the United States-Australia Free Trade Agreement 
Implementation Act (19 U.S.C. 3805 note), section 311(b) of the United 
States-Bahrain Free Trade Agreement Implementation Act (19 U.S.C. 3805 
note), section 311(b) of the United States-Chile Free Trade Agreement 
Implementation Act (19 U.S.C. 3805 note), section 311(b) of the United 
States-Colombia Trade Promotion Agreement Implementation Act (19 U.S.C. 
3805 note), section 311(b) of the Dominican Republic-Central America-
United States Free Trade Agreement Implementation Act (19 U.S.C. 
4061(b)), section 211(b) of the United States-Jordan Free Trade Area 
Implementation Act (19 U.S.C. 2112 note), section 311(b) of the United 
States-Korea Free Trade Agreement Implementation Act (19 U.S.C. 3805 
note), section 311(b) of the United States-Morocco Free Trade Agreement 
Implementation Act (19 U.S.C. 3805 note), section 302(b) of the NAFTA 
Implementation Act (19 U.S.C. 3352(b)), section 311(b) of the United 
States-Oman Free Trade Agreement Implementation Act (19 U.S.C. 3805 
note), section 311(b) of the United States-Panama Trade Promotion 
Agreement Implementation Act (19 U.S.C. 3805 note), section 311(b) of 
the United States-Peru Trade Promotion Agreement Implementation Act (19 
U.S.C. 3805 note), and section 311(b) of the United States-Singapore 
Free Trade Agreement Implementation Act (19 U.S.C. 3805 note). For 
other applicable rules, see subpart A of this part and part 201 of this 
chapter.

0
6. Revise Sec.  206.32 to read as follows:


Sec.  206.32  Definitions applicable to subpart D.

    For the purposes of this subpart, the following terms have the 
meanings hereby assigned to them:
    (a) The term substantial cause has the same meaning as section 
202(b)(1)(B) of the Trade Act.
    (b) The terms domestic industry, serious injury, and threat of 
serious injury have the same meanings as in section 202(c)(6) of the 
Trade Act.
    (c) Critical circumstances mean such circumstances as are described 
in section 202(d) of the Trade Act;
    (d) Perishable agricultural product means any agricultural product 
or citrus product, including livestock, which is the subject of 
monitoring pursuant to section 202(d) of the Trade Act.
    (e) Korean motor vehicle article means a good provided for in 
heading 8703 or 8704 of the U.S. Harmonized Tariff Schedule that 
qualifies as an originating good under section 202(b) of the United 
States-Korea Free Trade Agreement Implementation Act.

0
7. Revise Sec.  206.33 to read as follows:


Sec.  206.33  Who may file a petition.

    (a) In general. A petition under this subpart D may be filed by an 
entity, including a trade association, firm, certified or recognized 
union, or group of workers, that is representative of a domestic 
industry producing an article that is like or directly competitive with 
an article that is allegedly, as a result of the reduction or 
elimination of a duty provided for under a free trade agreement listed 
in paragraph (b) of this section, being imported into the United States 
in such increased quantities, in absolute terms or relative to domestic 
production, and under such conditions that imports of the article 
constitute a substantial cause of serious injury, or (except in the 
case of a Canadian article) threat thereof, to such domestic industry. 
Unless the implementation statute provides otherwise, a petition may be 
filed only during the transition period of the particular free trade 
agreement.
    (b) List of free trade agreements. The free trade agreements 
referred to in paragraph (a) of this section include the United States-
Australia Free Trade Agreement, the United States-Bahrain Free Trade 
Agreement, the United States-Chile Free Trade Agreement, the United 
States-Colombia Trade Promotion Agreement, the Dominican Republic-
Central America-United States Free Trade Agreement, the United States-
Jordan Free Trade Area Agreement, the United States-Korea Free Trade 
Agreement, the United States-Morocco Free Trade Agreement, the North 
American Free Trade Agreement (NAFTA), the United States-Oman Free 
Trade Agreement, the United States-Panama Trade Promotion Agreement, 
the United States-Peru Trade Promotion Agreement, and the United 
States-Singapore Free Trade Agreement, to the extent that such 
agreements have entered into force.
    (c) Critical circumstances. An entity of the type described in 
paragraph (a) of this section that represents a domestic industry may 
allege that critical circumstances exist and petition for provisional 
relief with respect to imports if such product is from Australia, 
Canada, Jordan, Korea, Mexico, Morocco, or Singapore.
    (d) Perishable agricultural product. An entity of the type 
described in paragraph (a) of this section that represents a domestic 
industry producing a perishable agricultural product may petition for 
provisional relief with respect to imports of such product from 
Australia, Canada, Jordan, Korea, Mexico, Morocco, or Singapore, but 
only if such product has been subject to monitoring by the Commission 
for not less than 90 days as of the date the allegation of injury is 
included in the petition.
    (e) Korean motor vehicle article. An entity of the type described 
in paragraph (a) of this section that is filing a petition with respect 
to a product from Korea shall state whether it represents a domestic 
industry producing an article that is like or directly competitive with 
a Korean motor vehicle article.

0
8. Revise Sec.  206.34 to read as follows:


Sec.  206.34  Contents of petition.

    A petition under this subpart D shall include specific information 
in support of the claim that, as a result of the reduction or 
elimination of a duty provided for under a free trade agreement listed 
in Sec.  206.33(b), an article is being imported into the United States 
in such increased quantities, in absolute terms or relative to domestic 
production, and under such conditions that imports of the article 
constitute a substantial cause of serious injury, or (except in the 
case of a Canadian article) threat thereof, to the domestic industry 
producing an article that is like or directly competitive with the 
imported article. If provisional relief is requested in a petition 
concerning an article from Australia, Canada, Jordan, Korea, Mexico, 
Morocco, or Singapore, the petition shall state whether provisional 
relief is sought because critical circumstances exist or because the 
imported article is a perishable agricultural product. In addition, a 
petition filed under this subpart D shall include the following 
information, to the extent that such information is publicly available 
from governmental or other sources, or best estimates and the basis 
therefor if such information is not available:
    (a) Product description. The name and description of the imported 
article concerned, specifying the United States tariff provision under 
which such article is classified and the current tariff treatment 
thereof, and the name and description of the like or directly 
competitive domestic article concerned;
    (b) Representativeness.
    (1) The names and addresses of the firms represented in the 
petition and/or the firms employing or previously

[[Page 3927]]

employing the workers represented in the petition and the locations of 
their establishments in which the domestic article is produced;
    (2) The percentage of domestic production of the like or directly 
competitive domestic article that such represented firms and/or workers 
account for and the basis for claiming that such firms and/or workers 
are representative of an industry; and
    (3) The names and locations of all other producers of the domestic 
article known to the petitioner;
    (c) Import data. Import data for at least each of the most recent 5 
full years that form the basis of the claim that the article concerned 
is being imported in increased quantities in absolute terms;
    (d) Domestic production data. Data on total U.S. production of the 
domestic article for each full year for which data are provided 
pursuant to paragraph (c) of this section;
    (e) Data showing injury. Quantitative data for each of the most 
recent 5 full years indicating the nature and extent of injury to the 
domestic industry concerned:
    (1) With respect to serious injury, data indicating:
    (i) A significant idling of production facilities in the industry, 
including data indicating plant closings or the underutilization of 
production capacity;
    (ii) The inability of a significant number of firms to carry out 
domestic production operations at a reasonable level of profit; and
    (iii) Significant unemployment or underemployment within the 
industry; and/or
    (2) With respect to the threat of serious injury, data relating to:
    (i) A decline in sales or market share, a higher and growing 
inventory (whether maintained by domestic producers, importers, 
wholesalers, or retailers), and a downward trend in production, 
profits, wages, productivity, or employment (or increasing 
underemployment);
    (ii) The extent to which firms in the industry are unable to 
generate adequate capital to finance the modernization of their 
domestic plants and equipment, or are unable to maintain existing 
levels of expenditures for research and development;
    (iii) The extent to which the U.S. market is the focal point for 
the diversion of exports of the article concerned by reason of 
restraints on exports of such article to, or on imports of such article 
into, third country markets; and
    (3) Changes in the level of prices, production, and productivity.
    (f) Cause of injury. An enumeration and description of the causes 
believed to be resulting in the injury, or threat thereof, described 
under paragraph (e) of this section, and a statement regarding the 
extent to which increased imports of the subject article are believed 
to be such a cause, supported by pertinent data;
    (g) Relief sought and purpose thereof. A statement describing the 
import relief sought, including the type, amount, and duration, and the 
specific purposes therefor, which may include facilitating the orderly 
transfer of resources to more productive pursuits, enhancing 
competitiveness, or other means of adjustment to new conditions of 
competition;
    (h) Efforts to compete. A statement on the efforts being taken, or 
planned to be taken, or both, by firms and workers in the industry to 
make a positive adjustment to import competition.
    (i) Critical circumstances. If the petition alleges the existence 
of critical circumstances, a statement setting forth the basis for the 
belief that there is clear evidence that increased imports (either 
actual or relative to domestic production) of the article are a 
substantial cause of serious injury, or the threat thereof, to the 
domestic industry, and that delay in taking action would cause damage 
to that industry that would be difficult to repair, and a statement 
concerning the provisional relief requested and the basis therefor.

0
9. Revise Sec.  206.35 to read as follows:


Sec.  206.35  Time for determinations, reporting.

    (a) In general. The Commission will make its determination with 
respect to injury within 120 days (180 days if critical circumstances 
are alleged) after the date on which the investigation is initiated. 
The Commission will make its report to the President no later than 30 
days after the date on which its determination is made.
    (b) Perishable agricultural product. In the case of a request in a 
petition for provisional relief with respect to a perishable 
agricultural product that has been the subject of monitoring by the 
Commission, the Commission will report its determination and any 
finding to the President not later than 21 days after the date on which 
the request for provisional relief is received.
    (c) Critical circumstances. If petitioner alleges the existence of 
critical circumstances in the petition, the Commission will report its 
determination regarding such allegation and any finding on or before 
the 60th day after such filing date.

0
10. Add Sec.  206.37 to read as follows:


Sec.  206.37  Limited disclosure of certain confidential business 
information under administrative protective order.

    Except in the case of an investigation under the United States-
Jordan Free Trade Area Implementation Act or the NAFTA, the Secretary 
shall make available to authorized applicants, in accordance with the 
provisions of Sec.  206.17, confidential business information obtained 
in an investigation under this subpart.

    By order of the Commission.

    Issued: January 19, 2012.
James R. Holbein,
Secretary to the Commission.
[FR Doc. 2012-1500 Filed 1-25-12; 8:45 am]
BILLING CODE 7020-02-P