[Federal Register Volume 84, Number 166 (Tuesday, August 27, 2019)]
[Rules and Regulations]
[Pages 44687-44693]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-18008]
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INTERNATIONAL TRADE COMMISSION
19 CFR Part 220
Submission and Consideration of Petitions for Duty Suspensions
and Reductions
AGENCY: United States International Trade Commission.
ACTION: Final rule.
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SUMMARY: The United States International Trade Commission (Commission)
amends its Rules of Practice and Procedure governing the submission and
consideration of petitions for duty suspensions and reductions under
the American Manufacturing and Competitiveness Act of 2016. The
amendments are necessary to clarify certain provisions and to address
concerns that have arisen in Commission practice.
DATES: Effective September 26, 2019.
FOR FURTHER INFORMATION CONTACT: Lisa R. Barton, Secretary, United
States International Trade Commission, 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 may obtain information on this matter by
contacting the Commission's TDD terminal at 202-205-1810. General
information concerning the Commission may also be obtained by accessing
its website at https://www.usitc.gov.
SUPPLEMENTARY INFORMATION: The preamble below is designed to assist
readers in understanding this final rule. This preamble provides
background information and a regulatory analysis of the rule.
These amendments to the rule are being promulgated in accordance
with the Administrative Procedure Act (5 U.S.C. 553) (APA), and will be
codified in 19 CFR part 220.
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. In addition, section 3(b)(5) of the American Manufacturing
Competitiveness Act of 2016 (19 U.S.C. 1332 note) (the Act) directs the
Commission to prescribe and publish, in the Federal Register and on a
publicly available internet website of the Commission, procedures to be
complied with by members of the public in submitting petitions for duty
[[Page 44688]]
suspensions and reductions under section 3(b)(1)(A) of the Act.
This rulemaking effort began when the Commission published a
document in the Federal Register on December 26, 2018, making final the
existing interim rule in part 220 of its Rules of Practice and
Procedure governing the submission and consideration of petitions for
duty suspensions and reductions under the Act. In that document the
Commission stated that it might propose several amendments to the final
rule in the near future in light of experience gained in applying the
interim rule, with the intent that the amendments be in place before
October 15, 2019. See document published in the Federal Register on
December 26, 2018 (83 FR 66102), making final the interim rule
published in the Federal Register on September 30, 2016 (81 FR 67144).
The Commission published a notice of proposed amendments to part
220 and a request for comments in the Federal Register on March 14,
2019 (84 FR 9273). The amendments modify the text of Sec. Sec. 220.5,
220.6, 220.7, 220.9, 220.10, and 220.11 of part 220. In addition, these
amendments re-designate current Sec. Sec. 220.11, 220.12, 220.13, and
220.14 as Sec. Sec. 220.12, 220.13, 220.14, and 220.15, respectively.
The changes principally (1) require petitions and comments to
include certain additional information to assist the Commission in
evaluating a petition, (2) clarify and provide additional instruction
with respect to information to be included in a petition and comment,
and (3) revise the requirement regarding the time when a petition may
be withdrawn. The changes also divide Sec. 220.11 into two sections,
Sec. Sec. 220.11 and 220.12, and renumber current Sec. Sec. 220.12
through 220.14.
The document invited members of the public to file written comments
on the proposed amendments no later than 30 days after the day of
publication of the document, in this case, by April 15, 2019. The
Commission received written comments from 13 interested parties: The
American Association of Exporters and Importers (AAEI); the American
Chemistry Council (ACC); the American Apparel & Footwear Association
(AAFA); Ann, Inc. (Ann); Element Electronics (Element); W. L. Gore &
Associates, Inc. (W. L. Gore); Mannington Mills, Inc. (Mannington); the
Manufacturing Tariff Bill Coalition (MTB Coalition); the National
Association of Manufacturers (NAM); Newell Brands, Inc. (Newell);
Outdoor Industry Association (Outdoor); PetSmart, Inc. (Petsmart); and
Simms Fishing Products, LLC (Simms).
The Commission carefully considered all comments that it received.
The Commission provides its response to comments in a section-by-
section analysis provided below. The Commission appreciates the time
and effort of the commentators in preparing their submissions.
As required by the Regulatory Flexibility Act, the Commission
certifies that these amendments will not have a significant impact on
small business entities.
Procedure for Adopting the Proposed Amendments
Consistent with its ordinary practice, the Commission is making
these amendments in accordance with the notice-and-comment rulemaking
procedure in section 553 of the APA (5 U.S.C. 553). That procedure
entails the following steps: (1) Publication of a notice of proposed
rulemaking; (2) solicitation of public comments on the proposed
amendments; (3) Commission review of public comments on the proposed
amendments, and (4) publication of final amendments at least 30 days
prior to their effective date.
Regulatory Analysis of Proposed Amendments to the Commission's Rules.
The Commission has determined that the proposed amendments to the
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 proposed rulemaking is required under 5 U.S.C. 553(b) or any
other statute. Although the Commission has chosen to publish a notice
of proposed rulemaking, the proposed regulations are ``agency rules of
procedure and practice,'' and thus are exempt from the notice
requirement imposed by the APA in 5 U.S.C. 553(b).
The proposed rules do not contain federalism implications
warranting the preparation of a federalism summary impact statement
pursuant to Executive Order 13132 (64 FR 43255, Aug. 4, 1999).
No actions are necessary under title II of the Unfunded Mandates
Reform Act of 1995, Public Law 104-4 (2 U.S.C. 1531-1538) because the
proposed amendments to the 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 (adjusted
annually for inflation), and will not significantly or uniquely affect
small governments, as defined in 5 U.S.C. 601(5).
The proposed rules are not ``major rules'' as defined by section
251 of the Small Business Regulatory Enforcement Fairness Act of 1996
(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 Commission previously submitted an information collection
request for its secure web portal for the Miscellaneous Tariff Bills
Petition System to the Office of Management and Budget for Paperwork
Reduction Act clearance. See 81 FR 58531 (Aug. 25, 2016). The
Commission received the appropriate clearance. However, this clearance
expires on September 30, 2019, and the Commission is seeking a new
clearance. The Commission intends to process the information it
collects consistent with these rules as amended, and the Commission
intends to obtain the appropriate clearance required by the Paperwork
Reduction Act before it begins its next information collection on
October 15, 2019.
Overview of the Amendments to the Regulations
The final regulations contain 3 (three) changes from those proposed
in the notice of proposed rulemaking (NPRM). These changes are
summarized here.
First, with regard to Sec. 220.6(a)(4), the Commission has
determined to retain, rather than delete, the wording in the current
rule that requires the article description to be ``sufficiently clear
as to be administrable by CBP.'' The Commission has determined not to
adopt the proposed substitute wording.
Second, with regard to Sec. 220.7(b)(2), the Commission has
determined to retain, rather than delete, the word ``generally''.
Third, with regard to Sec. 220.11(c)(4), the Commission has
determined to revise the rule to read ``a statement as to whether such
product is generally available for sale, and if not, an explanation of
its lack of availability for sale''.
Section-by-Section Explanation of the Amendments, Comments Received,
and Commission Response
Part 220--Process for Consideration of Petitions for Duty Suspensions
and Reductions
Section 220.5
Section 220.5 lists the types of information that must be set forth
in a
[[Page 44689]]
petition. The proposed amendment would modify Sec. 220.5 in five
respects. First, it amends Sec. 220.5(e)(1) to clarify that the U.S.
Customs and Border Protection (CBP) ruling requested should be one that
indicates CBP's classification of the article. Second, it divides Sec.
220.5(h) into two parts. New paragraph (h)(1) requires petitions to
include an estimate of both total value and, in addition, dutiable
value in U.S. dollars for the next 5 calendar years, and new paragraph
(h)(2) requires petitions to include an estimate of the share of total
imports represented by the petitioner's imports of the subject article.
Third, the amendment modifies Sec. 220.5(j) to require that the
petition include ``[t]he names of any domestic producers of the
article, if available.'' Fourth, it adds a new paragraph (n) that
requires the petition to include a certification that the information
supplied in the petition is complete and correct to the best of the
petitioner's knowledge and belief and that the petitioner understands
that the information submitted is subject to audit and verification by
the Commission. Fifth, it re-designates existing paragraph (n) as
paragraph (o).
Comments
AAEI expressed concern that the amendment to paragraph (h) that
requires petitioners to provide estimated total value and dutiable
value data in U.S. dollars appears to apply to the specific petitioner,
without allowing the petitioner to redact confidential information or
provide it in an alternative form, such as in quantified or percentage
values. AAEI also expressed concern that the new certification
requirement in paragraph (n) would open petitioners to a ``quick
response audit.''
The ACC expressed similar concerns about the possible disclosure of
data relating to an estimate of the share of total imports. It
expressed concern that the change, in the absence of a Commission
process for considering whether it needs the information for its
review, would discourage companies from filing petitions. It
recommended that the Commission provide a discrete confidential
business information process if the Commission decides such information
is necessary for its review of a petition.
The MTB Coalition did not propose any changes to the proposed
amendments to Sec. 220.5. It also did not oppose the new requirements.
However, the MTB Coalition asked that the Commission be ``lenient''
when auditing estimates. The MTB Coalition said that petitioners may
have only limited knowledge about imports by other importers,
particularly when the imported article does not directly correspond to
an 8- or 10-digit HTS number. The MTB Coalition also stated that a
petitioner may not know the names of domestic producers of the article.
If a company does list a domestic producer, the MTB Coalition expressed
concern that a petition may be ``automatically denied.''
NAM asked that the Commission treat estimates submitted by
petitioners of their total share of imports as confidential business
information when petitioners so request.
Commission Response
The Commission is adopting as a final rule the amendments to Sec.
220.5. The Commission considered AAEI's concern about requiring that a
petition include an estimate of dutiable value data. The Commission
notes that it required petitioners to submit such data as part of their
2016 petitions, and thus this change simply incorporates prior
Commission practice. The Commission did not encounter difficulties or
concerns in collecting such data in 2016. The Commission is aware that
disclosure of dutiable value data could help a competitor, in some
instances and with the help of other data, gain insight into the
dutiable value data reported by a petitioner. When a petitioner has
reason to believe this may occur, the petitioner may request
confidential treatment for the information it considers to qualify for
such treatment.
The Commission considered the concerns expressed by ACC and NAM
about possible disclosure of a petitioner's data relating to an
estimate of the share of total imports. As in the preceding paragraph,
the Commission notes that a petitioner may seek confidential treatment
for business information that it believes qualifies for such treatment.
However, the Commission also notes that sections 3(b)(C) and (D) of the
Act, which set out the content requirements for the Commission's
preliminary and final reports to the Committees, require the Commission
to provide an estimate of the amount of revenue loss to the United
States if a duty suspension or reduction takes effect. For this and
certain other information the Commission requires be included in a
petition, the Commission has notified petitioners, in accordance with
the confidential treatment provision in section 332(g) of the Tariff
Act of 1930, that certain specific information provided may be
disclosed in the reports it sends to the Committees.
The Commission appreciates the concerns expressed by the MTB
Coalition. The Commission notes it has already prefaced several of the
petitioning requirements at issue in current Sec. 220.5 with the term
``if available.'' The Commission also notes that it permits petitioners
to provide additional explanation regarding any domestic production and
considers all available information obtained with respect to each
petition in preparing its final report and recommendation.
Section 220.6
Section 220.6 describes the information that should be included in
the description of the article for which a duty suspension or reduction
is being sought. The amendment would delete wording in Sec.
220.6(a)(4) that requires that the description be ``sufficiently clear
as to be administrable by CBP.'' The Commission would substitute more
specific wording that requires the petition (1) to describe the article
based on the existing Harmonized Tariff Schedule (HTS) category's
description (at the 8- or 10-digit level) in HTS chapters 1 through 97,
or (2) to delineate an article representing a subset of the coverage of
the applicable HTS category using terminology already included in the
HTS or interpreted in pertinent CBP rulings.
Comments
ACC opposed the change and said that the current ``administrable''
wording ``strikes the right balance.'' ACC indicated that the proposed
wording would introduce ``unnecessary complexities,'' make the rules
``too stringent,'' and might discourage the filing of petitions.
Element opposed deletion of the wording ``sufficiently clear as to
be administrable by CBP'' in the current rule and replacement with
wording that would require a petitioner to describe the imported
article in terms of existing 8-digit HTS subheadings or 10-digit HTS
statistical reporting numbers. Element cited four reasons: (1) The
terminology in the HTS is frequently out of date; (2) existing 8-digit
and 10-digit HTS numbers often cover a range of products, and more
detailed descriptions may be necessary to address potential concerns of
or objections from producers of other similar products that fall within
that tariff line; (3) ``other'' categories offer little in the way of
description that could be used to narrow the scope of an MTB; and (4),
even where HTS subheadings are further broken down into statistical
reporting numbers that describe an article with some
[[Page 44690]]
specificity, such descriptions may still be too broad and require
further narrowing. Element urged the Commission to amend the proposed
rule change to make clear that petitioners should draft article
descriptions using the existing terminology of the HTS, and allow
petitioners to rely on examples of terminology found ``anywhere''
within the HTS.
The MTB Coalition expressed the view that this change will be
helpful in the drafting of article descriptions and expressed the hope
it will lead to fewer CBP objections over administrability issues.
NAM urged that the Commission continue to use the ``sufficiently
clear'' wording in the current rule. NAM expressed the view that the
proposed substitute wording ``is far too narrow and not required by the
statutes.''
Commission Response
After considering the comments submitted, the Commission has
decided to withdraw this proposed change. The Commission did not
encounter difficulties during the first round of petitions with the
current wording. It proposed the revised wording in the expectation it
would provide greater clarity and help petitioners in preparing their
petitions.
Section 220.7
Section 220.7 describes what constitutes a properly filed petition
and describes how the Commission will treat identical and overlapping
petitions filed by the same petitioner. The Commission proposes to make
two changes to this section. First, it proposes to expand the title of
the rule section to indicate that the rule also applies to identical
and overlapping petitions filed by the same petitioner. Second, it
proposes to amend Sec. 220.7(b)(2) to delete the word ``generally.''
Section 220.7(b)(2) currently states that when a petitioner has filed
one or more identical or overlapping petitions, the Commission will
``generally'' consider the earliest filed pending petition to be the
petition of record, leaving open the possibility that the Commission
might consider a different petition for another reason. In the few
instances in which the Commission received a petition that fell into
this category during the 2016 filing period, the Commission considered
the earliest filed petition to be the petition of record. This change
removes any uncertainty.
Comments
ACC requested that the Commission retain the term ``generally'' in
order to retain the flexibility to permit petitioners to correct
improperly filed or overlapping petitions.
AAFA said that the changes regarding overlapping petitions would
make the current situation worse. It urged the Commission to provide
petitioners with the opportunity to explain how multiple petitions
might not be overlapping. It also asserted that the Commission, during
the 2017 petition cycle, had applied the rule too narrowly and had
rejected petitions that met the statutory requirements.
NAM expressed the view that the proposed revisions regarding
overlapping petitions filed by the same petitioner fail to address the
concern raised by manufacturers during the 2016-2017 cycle that
resulted in the rejection of petitions. NAM asserted that the
Commission applied an overly narrow construction of its own rules in
rejecting petitions, and it urged the Commission to revise Sec. 220.7
``to establish an opportunity or procedure for petitioners to explain
how multiple petitions submitted by the same petitioner may not, in
fact, be overlapping petitions.''
Commission Response
The Commission is adopting the first of the two proposed changes to
this section, the change in the title of the section. However, in
consideration of comments favoring retention of the term ``generally,''
the Commission is withdrawing that proposed change.
Section 220.9
Section 220.9 addresses withdrawal of petitions, submission of new
petitions, and amendments to petitions. The Commission proposes to
amend Sec. 220.9(a), which currently states that a petitioner may
withdraw a petition at any time prior to the time the Commission
transmits its final report to Congress. The Commission proposes to
revise this paragraph to state that a petitioner may withdraw a
petition ``no later than 30 days after the Commission submits its
preliminary report.''
Comments
The MTB Coalition expressed the view that this change will help the
consideration process to be more efficient.
Commission Response
In the absence of any adverse comments, the Commission is adopting
as a final rule the amendments to Sec. 220.9.
Section 220.10
Current Sec. 220.10 addresses Commission publication and public
availability of petitions and opportunity for the public to comment on
such petitions. The Commission proposes to divide Sec. 220.10 into two
separate sections, with Sec. 220.10 retitled ``Commission publication
and public availability of petitions,'' and new Sec. 220.11 titled
``Public comment period.'' Revised Sec. 220.10 tracks the text of
current Sec. 220.10(a). The Commission proposes to delete the title of
paragraph (a) of current Sec. 220.10 and incorporate it into the new
title of Sec. 220.10.
Comments
The Commission did not receive any comments.
Commission Response
The Commission is adopting as a final rule the amendments to Sec.
220.10.
Section 220.11
New Sec. 220.11, titled as ``Public comment period,'' contains
four paragraphs. New paragraph (a), ``Time for filing,'' largely tracks
the wording in current Sec. 220.10(b). New paragraph (b) includes a
list of information items that must be included in a comment, including
certain information about the commenter; a statement about whether the
comment supports, opposes, or takes no position on the petition; and a
certification statement. It also refers commenters to the Commission's
Handbook on MTB Filing Procedures for further information. New
paragraph (c) sets out a list of requirements that apply to comments
from domestic producers. Comments must include: (1) A description of
the product alleged to be identical, like, or directly competitive with
the product that is the subject of the petition; (2) the Chemical
Abstracts Services registry number (if any); (3) certain information
about production or likely production of an identical, like, or
directly competitive article within the United States; (4) a statement
as to whether such product is commercially available and, if not
commercially available, an explanation of its lack of availability; (5)
addresses for the locations of U.S. production facilities; and (6)
evidence demonstrating the existence of domestic production and citing
possible examples. Paragraph (d) states that the Commission may provide
additional opportunity for public comment and, if it does so, will
publish notice of that opportunity in the Federal Register.
Comments
AAEI expressed support for the requirement that persons filing
comments indicate whether they support, oppose, or take no position on
[[Page 44691]]
the petition. It also expressed concern that the required submission of
additional information without the opportunity to redact may require
persons filing comments to disclose confidential business information.
AAFA expressed support for the inclusion of new paragraph (d) and,
in addition, asked that the Commission establish a specific public
comment period for the report of the U.S. Department of Commerce
relating to whether there is domestic production of a like or directly
competitive article and whether a domestic producer objects. AAFA
expressed the view that the Commission rejected petitions during the
prior cycle based on insufficient confidential opposition.
Ann asked that the Commission amend proposed Sec. 220.11(c)(1) to
require that domestic producers include more detailed information about
the domestic article. Ann asked that the Commission require producers
to include the HTS code for the article and, if the producer exports
the article, the Schedule B code, and to include information regarding
the intrinsic characteristics of the article, including materials from
which made, appearance, size and weight, quality, texture, and use. Ann
asked that the Commission modify proposed Sec. 220.11(c)(3) and (5) to
include additional questions about the process at domestic facilities
and for evidence of machinery and production capacity. With regard to
Sec. 220.11(c)(4), Ann expressed concern that the term ``commercially
available'' was undefined and asked that the Commission require
domestic producers to provide additional details, including quantity
produced, the names of purchasers and how the article is distributed,
and the retail price.
W.L. Gore, Outdoor, and PetSmart asked the Commission to make
revisions to proposed Sec. 220.11(c) that are similar in scope to
those requested by Ann.
The MTB Coalition expressed the view that the new requirements will
add more transparency to the process and encouraged the U.S. Department
of Commerce to adopt a similar mechanism to increase transparency
across all agencies reviewing petitions. With respect to new Sec.
220.11(d), the MTB Coalition stated that it found the additional
comment period to be helpful in the 2017 petition cycle, and it
recommended incorporating the proposed change and opening it to
comments on petitions falling in categories III, IV, V, and VI.
NAM similarly expressed support for an additional public comment
period. It also asked that a public comment period be established
following the publication of the Commission's preliminary report, and
that the public be permitted to comment during that period on petitions
the Commission does not recommend for inclusion (Category VI
petitions), including petitions opposed by the U.S. Department of
Commerce. NAM also asked that the public also be able to comment on
petitions that the Commission has determined do not contain required
information or for which the Commission determined that the petition is
not a likely beneficiary (Category V petitions).
Newell Brands asked the Commission to make revisions to proposed
Sec. 220.11(c) that are similar to those requested by Ann, W.L. Gore,
Outdoor, and PetSmart. Newell also asked that the Commission eliminate,
to the extent possible, the subjective analysis conducted by the
Commission and Commerce for the evaluation of domestic availability and
production of an identical, like or directly competitive product.
Newell stated that the term ``domestic production'' is ambiguous, and
that a good produced in a country with which the United States has a
free trade agreement and which enters the United States duty-free
should not be considered ``domestic production.'' Newell also said that
repackaging and making minor modifications in the United States that
result in a change in classification should not qualify as domestic
production for purposes of the Act.
Commission Response
After taking into consideration the comments received, the
Commission is adopting as a final rule the amendments to Sec. 220.11,
with one exception: The Commission has redrafted Sec. 220.11(c)(4). In
the Commission's view, the amendments strike the right balance. First,
they take into account the need to provide additional opportunity for
public comment and at the same time allow the Commission to prepare and
transmit its preliminary and final reports in the time allowed under
the statute. Second, they help to address the need for some additional
information from domestic producers without placing an undue additional
burden on interested parties that are not petitioners or, in most
cases, beneficiaries of duty suspensions and reductions sought.
With regard to AAEI's concern about the opportunity to redact
confidential business information in its written comments, the
Commission notes that interested parties may seek confidential
treatment of business information submitted in response to Sec.
220.11(c)(6).
To address Ann's concern regarding use of the term ``commercially
available,'' the Commission has redrafted Sec. 220.11(c)(4) to read
``a statement as to whether such product is generally available for
sale and, if not, an explanation of its lack of availability for
sale.'' The Commission is seeking this and other relevant information
in determining whether there is domestic production of a product.
The Commission also considered the comments submitted by the MTB
Coalition and NAM in support of an additional public comment period and
in support of providing opportunity to consider petitions that fall in
other categories. The rules, as amended, allow for the possibility of
an additional comment period. Should the Commission choose to provide
an additional comment period, it will publish a notice in the Federal
Register that sets out specific details and instructions.
The Commission also considered Newell's view that the term
``domestic production'' is ``ambiguous'' and Newell's view that the
term might include goods produced in a free-trade-agreement partner or
goods that are merely repackaged or slightly modified. In response, the
Commission notes that the term ``domestic production'' is defined in
both the statute (in section 7(5) of the Act) and Commission Sec.
220.2(h) to mean the domestic production of an article that is
identical to, or like or directly competitive with, an article to which
a petition for a duty suspension or reduction would apply, for which a
domestic producer has demonstrated production, or imminent production,
in the United States. The Commission also defined the terms
``identical,'' ``like'' and ``directly competitive'' in Sec. 220.2(h),
and for the terms ``like'' and ``directly competitive'' used
definitions in the legislative history of the Trade Act of 1974. The
decision as to whether a good is an import or a domestically produced
good ultimately depends on the facts, and the Commission considers all
available information obtained with respect to each petition in
preparing its final report and recommendation.
Section 220.12
The Commission proposes to re-designate current Sec. 220.11 as
Sec. 220.12. The section describes the contents of the Commission's
preliminary report to the Committees. The Commission proposes only one
change: It would delete the parenthetical in paragraph (b)(2) that
relates to corrections of article descriptions.
[[Page 44692]]
Comments
Ann proposed that the Commission amend renumbered Sec.
220.12(a)(3) to require that the Commission take into account the joint
report of the Secretary of Commerce and Customs and Border Protection.
If the report provides no suggested changes and the description is
found not administrable, Ann asked that petitioners be given an
opportunity to work with CBP to make technical changes to the article
description.
W.L. Gore, Newell, Outdoor, PetSmart, and Simms, asked the
Commission to make revisions to proposed Sec. 220.12(a)(3) that are
similar in scope to those requested by Ann.
Commission Response
In the absence of comments to the contrary, the Commission will
delete the parenthetical in paragraph (b)(2) as proposed in its notice
of proposed rulemaking. With regard to the modifications to Sec.
220.12(a)(3) proposed by several interested parties, the Commission
notes that it did not propose or provide notice to the public of such
modifications. Accordingly, the Commission will not include the
requested amendment. Moreover, the degree to which CBP chooses to work
with petitioners is a matter for CBP to decide; the Commission has no
authority to direct CBP to work with individual petitioners.
Sections 220.13, 220.14, 220.15
The Commission is re-designating current Sec. Sec. 220.12, 220.13,
and 220.14 as Sec. Sec. 220.13, 220.14, and 220.15, respectively, to
reflect the division of Sec. 220.10 into two sections. The Commission
received no comments on this renumbering. The Commission is not making
any other changes to these sections, and is adopting the new numbering
as proposed.
Additional Matters Raised in Comments
Several persons submitting comments addressed matters that go
beyond the proposed changes to part 220 and the Commission's notice of
proposed rulemaking. For example, Mannington Mills, Inc., of Salem
N.J., raised the matter of an earlier effort to persuade the Commission
to include a limited number of reliquidations in its 2017 MTB report to
the Committees. Mannington asserts that the Commission decided against
this ``based on incorrect and, in our opinion, false, information
provided to it by Customs.'' Mannington asked that this issue be
remedied and addressed in the Commission's new rules.
NAM expressed concern that the Commission's proposed revisions do
not address other issues raised by petitioners during the 2016-2017
cycle. NAM cited two examples: (1) ``unsubstantiated opposition'' to
the petition, such as opposition from companies that do not produce
articles classified in the same HTS heading as those produced by the
petitioner, or general information on production of overly broad
categories without evidence that domestic producers meet the technical
requirements needed by petitioning companies; and (2) the inability of
stakeholders to engage directly with U.S. Customs and Border Protection
(CBP). The Association did not propose any specific amendments to the
rules to address its concerns. The AAFA made similar points.
Newell, Outdoor, and Simms proposed two modifications to Sec.
220.14(b). The first would amend Sec. 220.14 by adding a new paragraph
(b)(3) to require that the identity of domestic producers opposing
petitions through the U.S. Department of Commerce process be provided
to petitioners before the Commission makes its final conclusions and
publishes its final report. The second would amend Sec. 220.14 to add
a new paragraph (b)(4) to require that domestic producers who express
opposition towards any petitions after publication of the final
Commission report, and who did not participate in the public comment
process, must provide all information required by Sec. 220.11(c) and
be evaluated by the Commission and Commerce in order to be considered.
Commission Response
The matter raised by Mannington goes beyond the scope of the
Commission's notice of proposed rulemaking and beyond the Commission's
authority under the statute. With regard to the comments of NAM, there
is no requirement that a domestic article fall within the same HTS
product description as an imported article in order to be like or
directly competitive with the imported article. The purpose of the HTS
subheadings is to classify articles for duty collection and statistical
purposes as consistently as possible, not for determining whether
domestic and imported articles are like or directly competitive with
each other. However, as noted above, in its amendments to Sec. 220.11,
the Commission is requiring domestic producers to provide additional
information in their comments, especially when such producers raise an
objection to any petition. With regard to the ability of stakeholders
to engage directly with CBP, that is a matter for CBP, not the
Commission.
The proposals by Newell, Outdoor, and Simms to modify Sec.
220.14(b) are not appropriate at this time. First, the Commission did
not provide notice to the public that it is considering modifying this
rule at this time. Second, the Commission has no authority to require
the U.S. Department of Commerce to share information, including
confidential business information, with petitioners or any other
interested parties in this proceeding. Commerce determines how it will
carry out its responsibilities under the statute and obtain the
information required by law.
List of Subjects in 19 CFR Part 220
Administrative practice and procedure, Miscellaneous tariff bills.
For the reasons stated in the preamble, the United States
International Trade Commission amends 19 CFR part 220 as follows:
PART 220--PROCESS FOR CONSIDERATION OF PETITIONS FOR DUTY
SUSPENSIONS AND REDUCTIONS
0
1. The authority citation for part 220 continues to read as follows:
Authority: 19 U.S.C. 1335; Pub. L. 114-159, 130 Stat. 396 (19
U.S.C. 1332 note).
0
2. Amend Sec. 220.5 by revising paragraphs (e), (h), and (j),
redesignating paragraph (n) as paragraph (o), and adding a new
paragraph (n) to read as follows:
Sec. 220.5 Contents of petition.
* * * * *
(e) To the extent available--
(1) A classification ruling of U.S. Customs and Border Protection
(CBP) that indicates CBP's classification of the article; and
(2) A copy of other CBP documentation indicating where the article
is classified in the HTS.
* * * * *
(h) For each HTS number included in the article description:
(1) An estimate of the total and dutiable value (in United States
dollars) of imports of the article covered by the petition for the
calendar year preceding the year in which the petition is filed, for
the calendar year in which the petition is filed, and for each of the 5
calendar years after the calendar year in which the petition is filed,
including an estimate of the value of such imports by the person who
submits the petition and by any other importers, if available.
(2) An estimate of the share of total imports represented by the
petitioner's
[[Page 44693]]
imports of the article that is the subject of the petition.
* * * * *
(j) The names of any domestic producers of the article, if
available.
* * * * *
(n) A certification from the petitioner that the information
supplied is complete and correct to the best of the petitioner's
knowledge and belief, and an acknowledgement from the petitioner that
the information submitted is subject to audit and verification by the
Commission.
* * * * *
0
3. Amend Sec. 220.7 by revising the section heading to read as
follows:
Sec. 220.7 Properly filed petition; identical and overlapping
petitions from same petitioner.
* * * * *
0
4. Amend Sec. 220.9 by revising paragraph (a) to read as follows:
Sec. 220.9 Withdrawal of petitions, amendments to petitions.
(a) Withdrawal of petitions. A petitioner may withdraw a petition
for duty suspension or reduction filed under this part no later than 30
days after the Commission submits its preliminary report, as described
in Sec. 220.12. It shall do so by notifying the Commission through the
Commission's designated secure web portal of its withdrawal and the
notification shall include the name of the petitioner, the Commission
identification number for the petition, and the HTS number for the
article concerned.
* * * * *
0
5. Revise Sec. 220.10 to read as follows:
Sec. 220.10 Commission publication and public availability of
petitions.
Not later than 30 days after expiration of the 60-day period for
filing petitions for duty suspensions and reductions, the Commission
will publish on its website the petitions for duty suspensions and
reductions submitted under Sec. 220.3 that were timely filed and
contain the information required under Sec. 220.5. When circumstances
allow, the Commission may post such petitions on its website earlier
than 30 days after expiration of the 60-day period for filing
petitions.
Sec. Sec. 220.11 through 220.14 [Redesignated as Sec. Sec. 220.12
through 220.15]
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6. Redesignate Sec. Sec. 220.11 through 220.14 as Sec. Sec. 220.12
through 220.15.
0
7. Add a new Sec. 220.11 to read as follows:
Sec. 220.11 Public comment period.
(a) Time for filing. Not later than 30 days after expiration of the
60-day period for filing petitions, the Commission will also publish in
the Federal Register and on its website a notice requesting members of
the public to submit comments on the petitions for duty suspensions and
reductions. To be considered, such comments must be filed through the
Commission's secure web portal during the 45-day period following
publication of the Commission's notice requesting comments from members
of the public. For purposes of this section, all petitions posted by
the Commission on its website, whether or not posted early, shall be
deemed to be officially published by the Commission on its website on
the date of publication of the notice seeking written comments from
members of the public on the petitions.
(b) In general. The comment shall include the following
information:
(1) The name, telephone number, and postal and email address of the
commenter, and if appropriate, its representative in the matter;
(2) A statement as to whether the commenter is a U.S. producer,
importer, government entity, trade association or group, or other;
(3) A statement as to whether the comment supports the petition;
objects to the petition; or takes no position with respect to the
petitions/provides other comment;
(4) If the commenter is an importer, a list of the leading source
countries of the product;
(5) A certification from the commenter that the information
supplied is complete and correct to the best of the commenter's
knowledge and belief, and an acknowledgement from the commenter that
the information submitted is subject to audit and verification by the
Commission; and
(6) Comment formats may be constrained in size, length,
attachments, file type, etc., by system limitations in the Commission's
secure web portal. See the Commission's Handbook on MTB Filing
Procedures as posted on the Commission's website for further
information.
(c) Comments from domestic producers. Comments from a firm claiming
to be a domestic producer, as defined in Sec. 220.2(g), shall also
include:
(1) A description of the product alleged to be identical, like, or
directly competitive with the product that is the subject of the
petition;
(2) The Chemical Abstracts Service registry number for the product
(if applicable);
(3) A statement as to whether an identical, like, or directly
competitive product was produced in the current calendar year and, if
not, the year in which the product was last produced or in which
production is expected to begin within the United States;
(4) A statement as to whether such product is generally available
for sale, and if not, an explanation of its lack of availability for
sale; and/or
(5) The physical address(es) for the location(s) of the production
facility(ies) producing the product within the United States; and
(6) Evidence demonstrating the existence of domestic production
(e.g., catalogs, press releases, marketing materials, specification
sheets, copies of orders for the product).
(d) Additional comment period. The Commission may provide
additional opportunity for public comment and, if so, will announce
that comment period in the Federal Register.
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8. Amend newly redesignated Sec. 220.12 by revising paragraph (b)(2)
to read as follows:
Sec. 220.12 Commission preliminary report.
* * * * *
(b) * * *
(2) A list of petitions for duty suspensions and reductions for
which the Commission recommends technical corrections in order to meet
the requirements of the Act, with the correction specified.
* * * * *
By order of the Commission.
Issued: August 16, 2019.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2019-18008 Filed 8-26-19; 8:45 am]
BILLING CODE 7020-02-P