[Federal Register Volume 87, Number 227 (Monday, November 28, 2022)]
[Proposed Rules]
[Pages 72916-72927]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-25675]


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DEPARTMENT OF COMMERCE

International Trade Administration

19 CFR Part 351

[Docket No. 221102-0229]
RIN 0625-AB15


Administrative Protective Order, Service, and Other Procedures in 
Antidumping and Countervailing Duty Proceedings

AGENCY: Enforcement and Compliance, International Trade Administration, 
Department of Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: Pursuant to its authority under title VII of the Tariff Act of 
1930, as amended (the Act), the Department of Commerce (Commerce) 
proposes to modify its regulations governing procedures related to 
administrative protective orders (APO) and service of documents 
submitted in antidumping (AD) and countervailing duty (CVD) 
proceedings. Commerce proposes to make permanent certain changes to its 
service procedures that have been adopted on a temporary basis due to 
COVID-19. Commerce also proposes additional clarifications and 
corrections to other procedural aspects of its AD/CVD regulations, 
including updates to the scope, circumvention, and covered merchandise 
referral regulations. Lastly, Commerce proposes to delete from its 
regulations two provisions that have been invalidated by the United 
States Court of Appeals for the Federal Circuit (Federal Circuit).

DATES: To be assured of consideration, written comments must be 
received no later than December 28, 2022.

ADDRESSES:  Submit electronic comments only through the Federal 
eRulemaking Portal at http://www.Regulations.gov, Docket No. ITA-2022-
0013. Comments may also be submitted by mail or hand delivery/courier, 
addressed to Lisa W. Wang, Assistant Secretary for Enforcement and 
Compliance, Room 18022, Department of Commerce, 1401 Constitution Ave. 
NW, Washington, DC 20230. An appointment must be made in advance with 
the APO/Dockets Unit at (202) 482-4920 to submit comments in person by 
hand delivery or courier. All comments submitted during the comment 
period permitted by this document will be a matter of public record and 
will generally be available on the Federal eRulemaking Portal at http://www.Regulations.gov. Commerce will not accept comments accompanied by 
a request that part or all of the material be treated confidentially 
because of its business proprietary nature or for any other reason. 
Therefore, do not submit confidential business information or otherwise 
sensitive or protected information.
    Any questions concerning the process for submitting comments should 
be submitted to Enforcement & Compliance Communications office at (202) 
482-0063 or [email protected].

FOR FURTHER INFORMATION CONTACT:  Nikki Kalbing at (202) 482-4343, Elio 
Gonzalez at (202) 482-3765, or Scott McBride at (202) 482-6292.

SUPPLEMENTARY INFORMATION:

General Background

    Title VII of the Act vests Commerce with authority to administer 
the AD/CVD laws. In particular, section 731 of the Act directs Commerce 
to impose an AD order on merchandise entering the United States when it 
determines that a producer or exporter is selling a class or kind of 
foreign merchandise into the United States at less than fair value 
(i.e., dumping), and material injury or threat of material injury to 
that industry in the United States is found by the International Trade 
Commission (ITC). Section 701 of the Act directs Commerce to impose a 
CVD order when it determines that a government of a country or any 
public entity within the territory of a country is providing, directly 
or indirectly, a countervailable subsidy with respect to the 
manufacture, production, or export of a class or kind of merchandise 
that is imported into the United States, and material injury or threat 
of material injury to that industry in the United States is found by 
the ITC.\1\
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    \1\ A countervailable subsidy is further defined under section 
771(5)(B) of the Act as existing when: A government or any public 
entity within the territory of a country provides a financial 
contribution; provides any form of income or price support; or makes 
a payment to a funding mechanism to provide a financial 
contribution, or entrusts or directs a private entity to make a 
financial contribution, if providing the contribution would normally 
be vested in the government and the practice does not differ in 
substance from practices normally followed by governments; and a 
benefit is thereby conferred. To be countervailable, a subsidy must 
be specific within the meaning of section 771(5A) of the Act.
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    In conducting its AD/CVD proceedings, the statute directs Commerce 
to make certain information generally available on a public record.\2\ 
Because of the nature of Commerce's proceedings, which frequently 
require Commerce to rely on non-public information such as business 
proprietary information in issuing its determinations, the statute also 
provides a framework for Commerce to receive such information and 
maintain its proprietary nature by exempting it from disclosure on the 
public record. Specifically, pursuant to section 777(c)(1)(A) of the 
Act, Commerce must make available to interested parties, under an APO, 
business proprietary information submitted to it during the course of 
an AD/CVD proceeding. Additionally, section 777(d) of the Act requires 
that parties submitting to Commerce business proprietary information 
which is covered by an APO must serve such information on all 
interested parties who are parties to the proceeding that are subject 
to the protective order.\3\ Section 777(d) of the Act also requires 
that the submitter serve a nonconfidential summary of the business 
proprietary information to all interested parties who are parties to 
the proceeding. Further, section 777(d) of the Act states that Commerce 
shall not accept information which is not accompanied by a certificate 
of service or otherwise does not comply with the statutory 
requirements. Section 777(c)(1)(B) of the Act authorizes Commerce to 
issue regulations governing the APO process. Commerce's current 
regulations are codified at 19 CFR part 351.
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    \2\ See generally section 777(a) of the Act. See also 19 CFR 
351.104 (describing the official record of AD/CVD proceedings).
    \3\ ``Interested party'' is defined under section 771(9) of the 
Act and 19 CFR 351.102(b)(29); ``party to the proceeding'' is 
defined under 19 CFR 351.102(b)(36).
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    Section 351.303 of Commerce's regulations provides procedural rules 
governing the filing of documents (including public documents 
containing only public information, business

[[Page 72917]]

proprietary documents containing business proprietary information, and 
public versions of business proprietary documents),\4\ as well as 
service of documents. In particular, Sec.  351.303(b) generally 
requires that all parties submitting documents to Commerce must file 
electronically through Commerce's Antidumping and Countervailing Duty 
Centralized Electronic Service System (ACCESS). Additionally, Sec.  
351.303(f)(1)(i) generally requires that all documents filed with 
Commerce must be served simultaneously on all parties on the relevant 
public or APO service lists.\5\ Section 351.303 also contains special 
rules for specific types of documents. For example, Sec.  351.303(c) 
allows for a one-day lag in the filing of the final version of business 
proprietary documents and public versions of proprietary documents 
(known as the ``one-day lag rule''). Commerce has adopted a number of 
temporary changes to its service rules due to COVID-19.\6\ These 
changes are codified at Sec.  351.303(f)(4).
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    \4\ See 19 CFR 351.105 (defining the various categories of 
information in AD/CVD proceedings).
    \5\ See 19 CFR 351.103(d) (describing service lists in AD/CVD 
proceedings). Under Commerce's regulations, only those parties that 
have filed their application for APO access and been approved in 
accordance with 19 CFR 351.103(d)(1) and 19 CFR 351.305 will be 
included on the APO service list. Additionally, those parties that 
have filed a letter of appearance in accordance with 19 CFR 
351.103(d)(1) will be included on the public service list.
    \6\ See Temporary Rule Modifying AD/CVD Service Requirements Due 
to COVID-19, 85 FR 17006 (March 26, 2020) (Temporary Rule) 
(temporarily modifying certain requirements for serving documents 
containing business proprietary information in AD/CVD cases to 
facilitate the effectuation of service through electronic means for 
purposes of promoting public health and slowing the spread of COVID-
19). The Temporary Rule was extended on May 18, 2020, and then again 
indefinitely on July 10, 2020. See Extension of Effective Period, 85 
FR 29615 (May 18, 2020); Extension of Effective Period, 85 FR 41363 
(July 10, 2020).
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    The purpose of the regulatory changes proposed in this rulemaking 
is to assist in making the administration of Commerce's AD/CVD 
proceedings more efficient by allowing parties to utilize available 
electronic or other efficient means of service. In addition, the 
proposed changes also update certain outdated cross-references and 
citations, remove two paragraphs (Sec. Sec.  351.204(d)(3) and 
351.408(c)(3)) invalidated by the Federal Circuit, and make other 
revisions intended to clarify certain regulatory provisions, including 
the scope, circumvention, and covered merchandise referral regulations.

Explanation of the Proposed Rule

1. Service of Documents via ACCESS--Section 351.303(f)

    Current Sec.  351.303(f)(1)(i) provides that service of documents 
filed with Commerce on the record of a segment of a proceeding \7\ must 
be done simultaneously via personal service or first-class mail on all 
parties on the relevant APO or public service lists, with certain 
exceptions.\8\ Of importance, Sec.  351.303(f)(1)(ii) provides that 
service of public documents, public versions of business proprietary 
documents, or a business proprietary document containing only the 
server's own business proprietary information may be made by facsimile 
transmission or other electronic transmission process, with the consent 
of the person to be served. Additionally, Sec.  351.303(f)(3)(i) 
provides special rules for expediting service of case and rebuttal 
briefs upon designated agents located within and outside the United 
States.
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    \7\ See 19 CFR 351.102(b)(40) (defining AD/CVD proceeding) and 
19 CFR 351.102(b)(47) (defining segment of a proceeding).
    \8\ For instance, the filing of AD/CVD petitions under 19 CFR 
351.202(c) is exempted from simultaneous service under 19 CFR 
351.303(f)(1)(i). However, service of the business proprietary 
documents would be required after the establishment of an APO for 
parties who join the APO service list. See 19 CFR 351.305(a) and 
(b)(3) through (4). The filing of proposed suspension agreements 
under 19 CFR 351.208(f)(1) is exempted from service altogether, as 
19 CFR 351.208(f)(2) requires Commerce to provide a copy of the 
proposed agreement to the petitioner.
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    In a prior rulemaking in which Commerce first established its 
electronic filing procedures under ACCESS, Commerce also announced the 
future implementation of its now-existing procedures related to the 
electronic release of Commerce-generated documents using ACCESS.\9\ 
Pursuant to these procedures, Commerce currently releases both public 
and business proprietary documents (and public versions of business 
proprietary documents) which it has self-generated using ACCESS. Upon 
release, Commerce notifies the lead attorney for service and any other 
designated authorized individuals on the relevant APO and public 
service lists via email that a new document has been posted to a 
particular segment of a proceeding.\10\ The authorized user is then 
able to securely access the business proprietary document for 14 days 
from the date of filing,\11\ before its access to the document expires 
(access to public documents and public version documents does not 
expire; these documents remain available on ACCESS). At the time 
Commerce announced these procedures, it received comments requesting 
that Commerce adopt similar procedures to effectuate service of 
documents filed by interested parties on one another.\12\ Commerce 
considered these comments, but ultimately determined to focus its 
attention on establishing electronic filing procedures, rather than 
electronic service.\13\
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    \9\ See Antidumping and Countervailing Duty Proceedings: 
Electronic Filing Procedures; Administrative Protective Order 
Procedures, 76 FR 39263, 39273 (July 6, 2011) (2011 Final Rule).
    \10\ See ACCESS Handbook on Electronic Filing Procedures at 19-
21 available at https://access.trade.gov/help/Handbook_on_Electronic_Filing_Procedures.pdf.
    \11\ Id. at 20-21.
    \12\ 2011 Final Rule, 76 FR at 39270.
    \13\ Id. (``The Department agrees that changes affecting service 
of business proprietary information should be introduced gradually 
and be subject to comment . . . {T{time} he Department has not 
changed any of the service requirements in the regulations . . 
.{because{time}  {t{time} he Department has decided to focus on 
electronic filing, rather than electronic service, at this time.'').
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    In the years since the 2011 Final Rule, the establishment of 
ACCESS, and the Temporary Rule, Commerce has gained significant 
experience with its electronic filing and service procedures and is now 
proposing new regulations to formally effectuate service via ACCESS. 
Since the Temporary Rule went into effect on March 24, 2020, Commerce 
received comments from the Committee to Support U.S. Trade Laws 
(CSUSTL) \14\ and the Customs and International Trade Bar Association 
(CITBA) \15\ expressing support for the Temporary Rule and requesting 
that Commerce promulgate regulations to make service of business 
proprietary documents via ACCESS permanent.
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    \14\ Letter to the Hon. Wilbur L. Ross, Jr. from Mark B. 
Benedict and Timothy C. Brightbill on behalf of CSUSTL re Potential 
Responses to COVID-19/Workload Issues Affecting AD/CVD Cases (July 
9, 2020) at 2 (``We believe the system has worked well, and Commerce 
should strongly consider making it permanent.'').
    \15\ Letter to the Hon. Wilbur Ross from Deanna Tanner Okun and 
Elizabeth Drake, on behalf of CITBA re Petition for Rulemaking to 
Promulgate Temporary Rule Modifying AD/CVD Service Requirements Due 
to COVID-19 as Final Rules.
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    Under the Temporary Rule, Sec.  351.303(f)(4) provides that, with 
limited exceptions, service of business proprietary documents are 
deemed to have been served on persons on the APO service list upon 
filing of the business proprietary document in ACCESS. Those APO-
authorized persons receive an ACCESS email notification called a ``BPI 
Release Digest'' at approximately noon and 5:00 p.m. on business days, 
which notifies them of the availability of business proprietary 
documents for download. Those documents remain available for 14 days 
after filing. This method of

[[Page 72918]]

service does not apply to requests for administrative review, new 
shipper review, changed circumstances review and expedited review. 
Because service lists for these segments are not yet established in 
ACCESS at the time of filing the relevant request, parties must serve 
them by personal service or first-class mail.\16\ In addition, requests 
for a scope ruling or circumvention inquiry are served in accordance 
with Sec. Sec.  351.225(n) and 351.226(n), respectively. The Temporary 
Rule also does not apply to the service of public documents and public 
versions of business proprietary documents. However, Commerce proposes 
effectuating service via ACCESS for public documents and public 
versions of business proprietary documents with revised Sec.  
351.303(f)(1), as discussed below.
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    \16\ See 19 CFR 351.303(f)(3)(ii).
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    Commerce proposes to continue requiring a person filing a document 
with Commerce to simultaneously serve a copy of the document on all 
other persons on the service list, with the exception of a petition and 
proposed suspension agreement (which are addressed under Sec. Sec.  
351.202(c) and 351.208(f)(1), respectively) and requests for an 
expedited antidumping review, an administrative review, a new shipper 
review, or a changed circumstances review (which have specific service 
requirements under current paragraph (f)(3) and revised paragraph 
(f)(2) of this section). Revised paragraph (f)(1)(i) addresses service 
of public documents and public versions of business proprietary 
documents. Revised paragraph (f)(1)(ii) addresses service of business 
proprietary documents, and revised paragraph (f)(1)(iii) provides 
acceptable alternative methods of service when ACCESS cannot effectuate 
service.
    Under revised paragraph (f)(1)(i), service of a public document or 
public version of a business proprietary document is effectuated on the 
persons on the public service list upon filing of the submission in 
ACCESS, unless ACCESS is unavailable, in which case paragraph 
(f)(1)(iii) is applicable. This is an expansion of the Temporary Rule, 
which only applies to business proprietary documents. Commerce has 
determined that effectuating service via ACCESS will make the method of 
service consistent between business proprietary documents, public 
documents and public versions of business proprietary documents. It 
will also reduce the burden on the parties, while also reducing the 
risk of error associated with serving incorrect documents or incorrect 
parties. Similar to what is done with business proprietary documents, 
ACCESS will email a ``Public Release Digest'' that notifies parties to 
the proceeding when a public document or public version of a business 
proprietary document submitted by parties to the proceeding is 
available for download. This digest will be emailed to individuals on 
Commerce's public service lists at approximately noon and 5:00pm on 
business days.
    Under new paragraph (f)(1)(ii)(A), service of a business 
proprietary document is effectuated on the persons on the APO service 
list upon filing of the submission in ACCESS, unless ACCESS is 
unavailable, in which case paragraph (f)(1)(iii) is applicable. In 
addition, new paragraph (f)(1)(ii)(A) provides that a business 
proprietary document submitted under the one-day lag rule that contains 
bracketing \17\ that is not final under paragraph (c)(2)(i) must be 
served using an acceptable alternative method under paragraph 
(f)(1)(iii), as discussed below. Because bracketing is not final until 
one business day after filing these documents, Commerce does not make 
them available in ACCESS. Therefore, they require an alternative method 
of service.
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    \17\ The term ``bracketing'' refers to the placement of square 
brackets (``[ ]'') around certain information to indicate that the 
submitter of the information requests business proprietary treatment 
for that item of information. See 19 CFR 351.304(b).
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    Under new paragraph (f)(1)(ii)(B), if a document contains business 
proprietary information of a person who is not included on the APO 
service list, then service of such document on that person cannot be 
effectuated on ACCESS. Instead, the submitter must serve that person 
its own business proprietary information using an acceptable 
alternative method under new paragraph (f)(1)(iii) and in accordance 
with Sec.  351.306(c)(2) as applicable.
    Under new paragraph (f)(1)(iii), Commerce will provide that if 
service of a public document, a public version of a business 
proprietary document, or a business proprietary document cannot be 
effectuated on ACCESS for any reason, an acceptable alternative method 
of service must be used, such as first class mail, hand delivery or 
electronic transmission.
    With regard to service by electronic transmission, Commerce's 
current regulations provide that service of a public document, a public 
version of a business proprietary document, or a business proprietary 
document containing the submitter's own business proprietary 
information, may be made by facsimile or other electronic transmission 
process, with the consent of the person being served. This provision 
was first introduced in 1997 (including only service of a submitter's 
own business proprietary document and service of public versions),\18\ 
and later amended in 2011 to include service of public documents and 
make specific reference to APO and public service lists.\19\
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    \18\ Antidumping Duties; Countervailing Duties: Final Rule, 62 
FR 27296, 27337 (May 19, 1997) (1997 Antidumping and Countervailing 
Duties Final Rule).
    \19\ 2011 Final Rule, 76 FR at 39270.
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    Commerce has since received several informal suggestions and 
comments from pro se parties and non-APO-authorized representatives 
located outside the United States requesting that other parties be 
allowed to serve them their own business proprietary information by 
email or other electronic process. Commerce has generally discouraged 
the emailing of third-party business proprietary information, but 
recognized that allowing it with the consent of the recipient, when the 
business proprietary information belongs to the recipient, would result 
in efficiencies and allow those parties who could not be served through 
ACCESS (such as pro se parties and non-APO-authorized representatives) 
to receive service in a more expeditious manner than first class mail 
or other means specified in the regulations. As such, in the Temporary 
Rule at paragraph (f)(4)(iv), Commerce allowed an interested party to 
serve by electronic transmission a pro se party or a non-APO-authorized 
representative of a party, a document containing the business 
proprietary information of either the pro se party or the party 
represented by the non-APO-authorized representative.
    In this proposed rule, Commerce has created a new paragraph 
(f)(1)(iii) that expands the scope of paragraph (f)(4)(iv) of the 
Temporary Rule to allow service by electronic transmission if the 
business proprietary document being served contains the business 
proprietary information of either the submitter or the recipient, with 
the consent of the recipient. By referring to the submitter and 
recipient rather than pro se party and non-APO-authorized 
representative as in the Temporary Rule, Commerce is proposing to 
expand the eligible group to also include APO-authorized 
representatives, such that APO-authorized representatives will also be 
permitted to serve one another by electronic transmission, provided 
that the business proprietary information in the document belongs to 
the client of

[[Page 72919]]

either the representative submitting the document or receiving service, 
and that the receiving representative gives its consent. Documents 
containing third-party business proprietary information belonging to a 
party other than the submitter or the recipient may not be served by 
electronic transmission under this paragraph.
    Current paragraphs (f)(2) and (f)(3) involve certificates of 
service and service requirements for certain documents, respectively. 
Revised paragraphs (f)(2) and (f)(3) reverse the order in which each 
topic is addressed. Current paragraph (f)(3)(i) requires the person 
filing a case or rebuttal brief to simultaneously serve on all persons 
on the service list and on any U.S. Government agency that has 
submitted a case or rebuttal brief by either personal service on the 
same day the brief is filed or by overnight mail or courier on the next 
day. Further, if the person has designated an agent to receive service 
that is located outside the United States, service on that person must 
be by first class airmail. This requirement has been negated by the 
Temporary Rule, which allows service of case and rebuttal briefs via 
ACCESS on the date they are filed.
    In this proposed rule, Commerce will remove the special 
requirements for service of case and rebuttal briefs from paragraph 
(f)(3)(i). Instead, service of case and rebuttal briefs will occur 
under the general service provision in revised paragraph (f)(1). 
Current paragraph (f)(3)(ii), which requires a request for expedited 
antidumping review, an administrative review, a new shipper review, or 
a changed circumstances review to be served by personal service or 
first class mail on each exporter or producer specified in the request 
and on the petitioner by the end of the anniversary month or within ten 
days of filing the request for review, whichever is later, will then be 
renumbered as paragraph (f)(2)(i). Commerce will also revise the 
citation contained in revised paragraph (f)(2)(i), from paragraph 
(f)(2) to paragraph (f)(3), which is the renumbered paragraph involving 
certificate of service requirements.
    Commerce proposes creating a new paragraph (f)(2)(ii) to require an 
interested party that files a scope ruling application or request for 
circumvention inquiry to serve a copy of the request on all persons 
included in the annual inquiry service list in accordance with 
Sec. Sec.  351.225(n) and 351.226(n), respectively. Commerce added this 
paragraph to bring the service regulations in conformity with the 
September 20, 2021, final rule modifying various provisions of 
Commerce's AD and CVD regulations.\20\
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    \20\ See Regulations to Improve Administration and Enforcement 
of Antidumping and Countervailing Duty Laws, 86 FR 52300 (September 
20, 2021) (2021 Final Rule).
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    Revised paragraph (f)(3) will contain the same language that 
appears in current paragraph (f)(2), which requires that each document 
filed with Commerce include a certificate of service listing each 
person served (including agents), the type of document served, and the 
date and method of service on each person. It continues to state that 
Commerce may refuse to accept any document that is not accompanied by a 
certificate of service. No changes are made to this paragraph besides 
the numbering. Commerce believes it is useful for a submitter to 
document the parties who it understands will be served at the time of 
filing the document. A certificate of service is also essential to 
determining the method of service when an acceptable alternative method 
of service (besides ACCESS) is used.
    In light of the changes discussed in this proposed rule, Commerce 
finds that it is no longer necessary to continue the service rules set 
forth in the Temporary Rule and codified at Sec.  351.303(f). Commerce 
therefore proposes to terminate and remove Sec.  351.303(f)(4). If this 
proposal is adopted, Sec.  351.303(f) will be terminated.

2. Service on Pro Se Parties and Non-APO-Authorized Representatives--
Section 351.306(c)(2)

    Section 351.306(c)(2) of Commerce's current regulations requires a 
party submitting a document containing the business proprietary 
information of a pro se party to serve that pro se party with a version 
of the document containing only the pro se party's business proprietary 
information. The current regulations do not contain any similar 
requirement that a party submitting a document containing the business 
proprietary information of a party with a non-APO-authorized 
representative must also serve that non-APO-authorized representative 
with a version of the document containing only the business proprietary 
information of the party with the non-APO-authorized representative. 
However, the Temporary Rule at Sec.  351.303(f)(4)(iv) contained such a 
provision. Commerce thus proposes making it permanent by adding to 
Sec.  351.306(c)(2) the requirement that the submitting party must also 
serve a party's non-APO-authorized representative with a version of the 
document that contains only that non-APO-represented party's business 
proprietary information.

3. Service Requirement for Earlier-Filed Business Proprietary 
Submissions Upon New Authorized Applicants--Section 351.305

    Commerce's current regulations at Sec.  351.303(f) require a 
submitter to serve a document on all persons on the APO and public 
service lists simultaneously at the time of filing. Because the service 
lists are updated on an ongoing basis, Commerce requires submitters to 
serve earlier-filed business proprietary documents upon representatives 
who are added to the APO service lists after a document has been filed. 
Specifically, Sec.  351.305(b)(3) and (4) require service of such 
documents already on the record upon a representative within two 
business days after they are added to the APO service list for a 
submission filed before the first questionnaire response is filed, and 
within five business days for submissions filed after the first 
questionnaire response is filed.\21\ Parties or their representatives 
are currently responsible for monitoring who is added to the APO 
service list and serving those parties as the segment of the proceeding 
progresses. There is no service requirement for parties added to the 
public service list after a document is filed, because these documents 
can be retrieved on ACCESS.
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    \21\ See Antidumping and Countervailing Duty Proceedings: 
Documents Submission Procedures; APO Procedures: Final Rule, 73 FR 
3634, 3637 (January 22, 2008). In 2008, Commerce re-established the 
requirement to serve a new authorized applicant within two business 
days of the approval of the APO application for submissions filed 
before the first questionnaire response is submitted. Commerce noted 
that this requirement was previously in place before the 1998 Final 
Rule but it was inadvertently deleted from it. Id.
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    In this proposed rule, Commerce is requiring those representatives 
who are granted APO access after a business proprietary document has 
already been filed, but is no longer available in ACCESS, to contact 
the party that filed the business proprietary document to request 
service of that document by any acceptable means agreed upon by the 
parties (i.e., electronic service or otherwise). Commerce proposes to 
remove the requirement of service of earlier-filed business proprietary 
documents to new authorized applicants from current paragraphs (b)(3) 
and (4) and address it in a new paragraph (c)(2). Current paragraph 
(b)(3) is removed and current paragraph (b)(4) is renumbered (b)(3). 
The proposed regulation removes the responsibility of the submitter to 
monitor the newly added authorized

[[Page 72920]]

applicants to identify who needs to be served, and places the 
responsibility on the authorized applicant to request service. This 
requirement is addressed in new paragraph (c)(2).
    In addition, revised paragraph (b)(3) and new paragraphs (c)(2)(i) 
and (ii) specify the timeframe in which service must be made, by 
considering whether the authorized applicant's APO application was 
approved before or after the first questionnaire response is submitted. 
Commerce proposes replacing ``first questionnaire response'' with 
``first response to the initial questionnaire'' so it is not mistaken 
with other questionnaire responses such as Quantity and Value 
questionnaire responses. Commerce proposes specifying that the 
submitting party must serve the authorized applicant within two 
business days of the request if the APO application is approved before 
the first response to the initial questionnaire was submitted under 
paragraph new (c)(2)(i). If the APO application was approved after the 
first response to the initial questionnaire was submitted, revised 
paragraph (c)(2)(ii) requires the submitting party to serve the 
authorized applicant within five business days of the request.

4. One-Day Lag Rule--Section 351.303

    In 1997, Commerce codified its practice of allowing a party to file 
only one copy of a business proprietary document on the deadline, and 
then take additional time to review the bracketing of business 
proprietary information, and make the necessary changes to the 
bracketing before filing the required number of copies of the final 
business proprietary document and the public version on the next 
business day.\22\ The one-day lag rule was intended to provide an 
additional safeguard by giving more time to interested parties to 
ensure that both their own business proprietary information as well as 
APO-protected information of third parties is not inadvertently 
disclosed. In 2011, with the introduction of electronic filing via 
ACCESS, Commerce continued to allow filing under the one-day lag rule 
under Sec.  351.303(c)(2)(i), which requires a person to file a 
business proprietary document within the applicable deadline.\23\ 
Notably, petitions, supplements to a petition, or any other document 
filed prior to the initiation of an investigation are excluded from the 
one-day lag rule.\24\
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    \22\ See 1997 Antidumping and Countervailing Duties Final Rule, 
62 FR 27337; see also Antidumping and Countervailing Duty 
Proceedings: Administrative Protective Order Procedures; Procedures 
for Imposing Sanctions for Violation of a Protective Order, 63 FR 
24391, 24393 (May 4, 1998) (1998 Final Rule) (stating that 1997 
Antidumping and Countervailing Duties Final Rule's procedural 
regulations codified Commerce practice of one-day lag rule).
    \23\ 2011 Final Rule, 76 FR 39268.
    \24\ Id.; see also 19 CFR 351.303(c)(2)(i).
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    Normally, the business proprietary document filed on the due date 
must be served in accordance with current Sec.  351.303(f)(i), but 
under the Temporary Rule, Commerce waived this service requirement.\25\ 
A business proprietary document filed under the one-day lag rule 
contains non-final bracketing and is therefore not treated as an 
official record document in ACCESS. As such, business proprietary 
documents filed under the one-day lag rule and containing non-final 
bracketing cannot be served via ACCESS using the same technology used 
for serving official record documents. During Commerce's temporary 
waiver of this service requirement during the past two years, Commerce 
became aware of uncertainties that resulted from waiving service. For 
example, both Commerce staff and parties to the proceeding were 
sometimes unaware that other interested parties were filing their 
submissions under the one-day lag rule. At times, it was not clear 
whether an interested party had missed the filing deadline or had opted 
to use the one-day lag rule.
---------------------------------------------------------------------------

    \25\ Temporary Rule, 85 FR 17006.
---------------------------------------------------------------------------

    In this proposed rule, Commerce proposes reinstating the 
requirement that a business proprietary document filed on the due date 
under the one-day lag rule must also be served on the persons on the 
APO service list and those non-APO authorized parties whose business 
proprietary information is contained in the document using one of the 
acceptable alternative methods of service under new Sec.  
351.303(f)(1)(iii). This way, APO-authorized counsel and non-APO-
authorized parties whose business proprietary information is in the 
document will receive service of the business proprietary document. In 
addition, Commerce proposes requiring the submitter to also file the 
certificate of service that would be included in the submission 
(pursuant to Sec.  351.303(f)(3)), as a standalone public document in 
ACCESS under revised Sec.  351.303(c)(2)(i). Filing the certificate of 
service separately will document for the record the date and 
alternative method of service used by the submitter when it filed the 
business proprietary document under the one-day lag rule. This would 
provide an ACCESS notification to Commerce staff and the parties to the 
proceeding that the document was filed under the one-day lag rule.
    Under current Sec.  351.303(c)(2)(ii), a submitter who used the 
one-day lag rule must then file the complete final business proprietary 
document by the close of business one business day after the applicable 
deadline. 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. In addition, the 
submitter must file the public version at the same time.\26\
---------------------------------------------------------------------------

    \26\ See 19 CFR 351.303(c)(2)(iii).
---------------------------------------------------------------------------

    Under Commerce's current service regulations, a submitter must 
serve on persons on the APO service list 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.\27\ A submitter must also serve the 
public version on persons on the public service list.\28\ Because 
ACCESS will generally effectuate service under the proposed amendments 
to the regulations, it is no longer necessary for Sec.  
351.303(c)(2)(ii) to state that service of the final business 
proprietary document with bracketing corrections is required in all 
circumstances. The service rules for the final business proprietary 
document and the public version will default to the proposed general 
rules regarding service outlined elsewhere in the proposed rule. To the 
extent the final business proprietary document contains business 
proprietary information of a party not on the APO service list, service 
of the final business proprietary document must be made using an 
acceptable alternative means of service, with that party's consent.
---------------------------------------------------------------------------

    \27\ See 19 CFR 351.303(c)(2)(ii).
    \28\ See 19 CFR 351.303(c)(2)(iii).
---------------------------------------------------------------------------

5. Filing of Public Versions of Business Proprietary Documents--Section 
351.304

    Current Sec.  351.304(c)(1) provides that parties filing documents 
containing business proprietary information must file a public version 
of the document on the first business day after the filing deadline for 
the business proprietary version. In some instances, parties have 
interpreted Sec.  351.304(c)(1) to mean that the deadline for the 
public version of a business proprietary document not filed under the 
one-day lag rule is the first business day after the filing deadline 
for the business proprietary document. Commerce proposes to revise 
Sec.  351.304(c)(1) to clarify that the public

[[Page 72921]]

version of a business proprietary document is due on the filing 
deadline of the business proprietary document. Thus, the public version 
of a business proprietary document not filed under the one-day lag rule 
is due the same day as the business proprietary document is filed. 
However, if the business proprietary document is filed under the one-
day lag rule, the deadline for the public version of the business 
proprietary document is the first business day after the filing 
deadline for the business proprietary document (the same deadline as 
the final business proprietary document filed under the one-day lag 
rule). Finally, current Sec.  351.304(c)(1) incorrectly references 
Sec.  351.303(b), which sets forth general filing requirements. The 
correct citation is to Sec.  351.303(c)(2), which details filing 
requirements under the one-day lag rule. Commerce proposes to correct 
this citation.
    Current Sec.  351.304(c)(2) provides that under the one-day lag 
rule, a submitter may make corrections to the bracketing of a business 
proprietary document, and file a corrected final business proprietary 
document and public version on the next business day. However, Sec.  
351.304(c)(2) incorrectly references Sec.  351.303(b), which sets forth 
general filing requirements. The correct citation is to Sec.  
351.303(c)(2)(ii) and (iii), which detail filing requirements under the 
one-day lag rule for the final business proprietary document and public 
version. In addition, Sec.  351.304(c)(2) incorrectly references 
``paragraph (c)(2)'' (i.e., Sec.  351.304(c)(2)) which is the very same 
paragraph). The correct citation is to the preceding paragraph, Sec.  
351.304(c)(1), which sets forth the date in which the public version 
should be filed under the one-day lag rule. Commerce proposes 
corrections to these citations.

6. APO Applications--Section 351.305(b)(2)

    Section 351.305(b)(2) describes the process in which a 
representative of a party to the proceeding may obtain access to 
proprietary information under an APO by submitting Form ITA-367 to the 
Secretary, allowing for the use of an applicant's own word processing 
equipment to create the application, and requiring it to be served 
using the most expeditious means possible. Commerce proposes to revise 
this provision to require an applicant to use electronic Form ITA-367, 
which is available in ACCESS at https://access.trade.gov. The 
electronic application will then be filed and served in ACCESS upon 
submission. As such, Commerce also proposes revising this provision to 
remove the separate requirement that the application be served using 
the most expeditious means possible because service will be effectuated 
via ACCESS.

7. Central Records Unit and Administrative Protective Order and Dockets 
Unit--Section 351.103

    Commerce proposes updating certain information pertaining to the 
Central Records Unit (CRU) and Administrative Protective Order and 
Dockets (APO/Dockets) Unit in Sec.  351.103(a) and (b), including an 
update of the CRU's room number in paragraph (a) and the deletion of an 
extraneous period in Commerce's street address in paragraphs (a) and 
(b). In addition, Commerce proposes adding a statement that visitors to 
the CRU and the APO/Dockets Unit should consult the ACCESS website for 
information regarding in-person visits and in-person manual filings, 
respectively. By posting such information on the ACCESS website, 
Commerce can provide updates to the public as to the operating status 
of the CRU and the APO/Dockets Unit. This will be helpful in light of 
limited operations or restrictions on visitor access to the Commerce 
building, such as those related to COVID-19.

8. Other Corrections and Updates

    Commerce proposes to make certain additional revisions to the 
regulations, as described below.

A. Sections 351.404(d) and 351.104(a)(2)(ii)(A)

    Commerce's current regulations contain certain outdated cross-
references to other regulatory provisions. Commerce proposes to correct 
the following cross-references.
    First, Sec.  351.404(d) states that allegations concerning market 
viability or exceptions to calculating price-based normal value in 
viable markets must be filed within the time limits set forth under 
Sec.  351.301(d)(1). However, based on the 2013 amendments to the 
regulations, the current regulations do not contain a Sec.  351.301(d), 
and the correct cross-reference is Sec.  351.301(c)(2)(i).\29\
---------------------------------------------------------------------------

    \29\ The 2013 amendments to the regulations amended Sec.  
351.301 to only include subsections (a)-(c). Under those amendments, 
Sec.  351.301(c)(2)(i) became the new provision setting forth the 
time limits for allegations concerning market viability or 
exceptions to calculating price-based normal value in viable 
markets. See Definition of Factual Information and Time Limits for 
Submission of Factual Information, 78 FR 21246, 21255 (April 10, 
2013) (2013 Final Rule). However, the amendments did not also update 
Sec.  351.404(d) to cross-reference Sec.  351.301(c)(2)(i). Id.
---------------------------------------------------------------------------

    Second, Sec.  351.104(a)(2)(ii)(A), regarding the rejection of 
material from the record of a proceeding, currently refers to Sec.  
351.301(b) for the definition of untimely filed new factual 
information. However, based on the 2013 amendments to the regulations, 
the correct cross-reference for time limits for submitting new factual 
information is Sec.  351.301(c).\30\
---------------------------------------------------------------------------

    \30\ Under the 2013 amendments to the regulations, the provision 
on time limits for the submission of new factual information was 
moved to Sec.  351.301(c). 2013 Final Rule, 78 FR 21255. However, 
the amendments did not also update Sec.  351.104(a)(2)(ii)(A) to 
cross-reference Sec.  351.301(c). Id.
---------------------------------------------------------------------------

B. Sections 351.301(c)(2)(vi) and (3)(iv)

    Commerce also proposes to revise certain provisions in Sec.  
351.301. Commerce's regulations at Sec.  351.301 set forth the time 
limits for submitting factual information during the course of AD and 
CVD proceedings. Many of the time limits specified in Sec.  351.301(c) 
are based off the date a submission is filed with Commerce. However, 
the time limits specified in Sec.  351.301(c)(2)(vi) and (c)(3)(iv) are 
based off the date the submission of factual information is served on 
interested parties. For clarity and to provide consistency in the time 
limits that apply to the submission of factual information, Commerce 
proposes to revise Sec.  351.301(c)(2)(vi) and (c)(3)(iv) so that the 
time limits for submitting factual information under these provisions 
are based off the date a submission is filed with Commerce.

C. Sections 351.225(f)(1), 351.225(f)(2), 351.226(f)(1), 351.226(f)(2) 
and 351.227(d)

    In the 2021 Final Rule, Commerce revised Sec.  351.225, which 
describes the applicable procedures and standards concerning scope 
inquiries, created Sec.  351.226, which describes the applicable 
procedures and standards concerning circumvention inquiries, and 
created Sec.  351.227, which applies to covered merchandise inquiries. 
Current Sec.  351.225(f)(2) states that within 30 days of the 
initiation of a scope inquiry under Sec.  351.225(d)(2), an interested 
party other than the applicant is permitted one opportunity to submit 
comments and factual information to rebut, clarify, or correct factual 
information contained in the scope ruling application. However, the 
cross-reference to Sec.  351.225(d)(2) is incorrect and the correct 
reference is Sec.  351.225(d)(1), which governs the initiation of scope 
inquiries. Therefore, Commerce proposes to correct this cross-
reference.
    In addition, Sec. Sec.  351.225(f)(1) and (2), 351.226(f)(1) and 
(2), and 351.227(d)(1) all use the terminology ``within 30 days of'' 
and ``within 14 days of,'' which has

[[Page 72922]]

led to some unnecessary confusion if that phrase refers to time period 
before and after 30 and 14 days, or only after 30 and 14 days. The 
intention of those regulatory provisions was always just to pertain to 
periods ``after'' the triggering event, so Commerce proposes in each 
incidence to replace the word ``of'' in those provisions with 
``after.'' Thus, each phrase would now say ``within 30 days after'' and 
``within 14 days after'' to make the deadlines for filing submissions 
clearer.

D. Sections 351.225(b), 351.226(b), 351.225(d) and 351.226(d)(1)

    As we have explained, in the 2021 Final Rule Commerce revised its 
scope inquiry regulations and created new regulations to address 
circumvention inquiries. One of those changes was to require that if 
Commerce self-initiates a scope inquiry or circumvention inquiry, it 
will publish a notice in the Federal Register initiating that inquiry. 
The language currently in Sec. Sec.  351.225(b) and 351.226(b) says 
that Commerce will ``initiate'' ``and publish a notice,'' but in fact, 
Commerce intended for the initiation to be effective in both cases upon 
the date of publication of those notice in the Federal Register. 
Accordingly, for clarification, we are proposing modifying the language 
to say that self-initiation of both inquiries will be ``by publishing a 
notice of initiation in the Federal Register.''
    As part of the new procedures set forth in both sets of 
regulations, Commerce explained that it must make determinations to 
accept or reject a scope application or circumvention inquiry request 
within 30 days. Commerce also explained that if it does accept the 
scope application or circumvention inquiry request, it must also decide 
within that period of time to initiate or not initiate an inquiry. For 
scope inquiries, if Commerce makes no determination in 30 days, then 
the regulations under Sec.  351.225(d)(1)(ii) provides that the scope 
ruling application will be deemed accepted and the scope inquiry will 
be deemed initiated. We believe that the language in Sec. Sec.  
351.225(d) and 351.226(d)(1) could be clarified with respect to both 
the acceptance/rejection and initiation/no-initiation status in those 
provisions, including a reference to the deemed initiation alternative 
in Sec.  351.225(d)(1)(ii), so we have proposed the addition of 
language in both provisions to avoid future misunderstandings.

E. Section 351.225(e)(2)

    Section 225(e)(2) allows Commerce to extend a scope ruling for good 
cause from its initial 120 days by no more than another 180 days. The 
intention of the 180 day extension was to allow for a total of no more 
than 300 days from initiation of the scope inquiry in which to issue a 
scope ruling if the case were fully extended. However, some 
individuals, both within Commerce and outside of Commerce, have asked 
if the text in the regulation was intended to only allow extension of 
the scope ruling up to 180 days following initiation. Accordingly, we 
believe that Sec.  225(e)(2) should be clarified to add language 
following the 180 day language to read as follows: ``by no more than 
180 days, for a final scope ruling to be issued no later than 300 days 
after initiation, if the Secretary determines that good cause exists to 
warrant an extension.''

F. Section 351.226(l)(2)(ii)

    Commerce proposes to add the word ``circumvention'' before the word 
``inquiry'' in the phrase ``after the date of the publication of the 
notice of initiation of the inquiry'' in Sec.  351.226(l)(2)(ii). This 
is to provide clarification that this provision applies to the 
initiation of a circumvention inquiry, and not another inquiry. Similar 
language is found in the parallel provisions applicable to Sec. Sec.  
351.225(l) (scope) and 351.227(l) (covered merchandise) inquiries, so 
providing this clarifying word would assist in providing consistency 
among these different inquiry regulations.

G. Section 351.227(b)

    As we have explained, in the 2021 Final Rule, Commerce also created 
new Sec.  351.227, which addresses procedures and standards specific to 
Commerce's consideration of covered merchandise referrals from U.S. 
Customs and Border Protection (CBP) under section 517(b)(4)(A) of the 
Act. This regulation governs Commerce's receipt of a covered 
merchandise referral from CBP, Commerce's initiation and conduct of a 
covered merchandise inquiry, and Commerce's covered merchandise 
determination. Commerce has identified certain aspects of Sec.  
351.227(b) that need to be clarified and revised. Under current Sec.  
351.227(b), within 20 days after receiving a covered merchandise 
referral from CBP that Commerce determines to be sufficient, Commerce 
will take one of two actions. Commerce will either initiate a covered 
merchandise inquiry and publish a notice of initiation in the Federal 
Register, or, if Commerce determines upon review of the covered 
merchandise referral that the issue can be addressed in an ongoing 
segment of the proceeding, such as a scope or circumvention inquiry, 
Commerce will publish in the Federal Register a notice of its intent to 
address the covered merchandise referral in such other segment.
    Commerce intends to revise Sec.  351.227(b) in two ways. First, 
Commerce clarifies that, within 20 days of receiving a covered 
merchandise referral from CBP that Commerce determines to be 
sufficient, Commerce will issue its decision whether to initiate a 
covered merchandise inquiry or to address the covered merchandise 
referral in an ongoing segment of the proceeding. It was not Commerce's 
intent in drafting this regulation, and Commerce does not interpret 
this regulation, to mean that Commerce will publish notice of its 
decision in the Federal Register within 20 days of receipt its decision 
to initiate a covered merchandise inquiry or to address a covered 
merchandise referral in an ongoing segment of the proceeding. Thus, 
Commerce intends to revise Sec.  351.227(b) to clarify this issue. 
Second, Commerce intends to revise Sec.  351.227(b) to clarify that 
Commerce will take one of the two actions described above within 20 
days of acknowledging receipt of a sufficient covered merchandise 
referral from CBP. This revision is necessary to preserve flexibility 
and to allow Commerce the full 20 days provided in the regulation to 
take one of the two actions described above after making a 
determination that the covered merchandise referral is sufficient.\31\
---------------------------------------------------------------------------

    \31\ Commerce has described that in determining whether a 
covered merchandise referral is sufficient, Commerce may consider, 
among other things, whether the referral has provided the name and 
contact information of the parties to CBP's investigation, including 
the name and contact information of any known representative acting 
on behalf of such parties; an adequate description of the alleged 
covered merchandise; identification of the applicable AD or CVD 
orders; and any necessary information reasonably available to CBP 
regarding whether the merchandise at issue is covered merchandise. 
See Regulations to Improve Administration and Enforcement of 
Antidumping and Countervailing Duty Laws, Proposed Rule, 85 FR 
49472, 49490 (August 13, 2020). Additionally, Commerce reviews the 
covered merchandise referral and any accompanying documentation to 
ensure any business proprietary information is properly redacted in 
accordance with Commerce's statutory and regulatory requirements. 
Id.
---------------------------------------------------------------------------

H. Section 351.305(a)

    Commerce proposes to revise Sec.  351.305(a) to add a reference to 
requests for a circumvention inquiry filed under Sec.  351.226. In the 
2021 Final Rule, Commerce created new Sec.  351.226, which covers the 
procedures for Commerce to address potential circumvention of AD/CVD 
orders. Prior to the 2021 Final Rule, circumvention

[[Page 72923]]

inquiries were governed under Commerce's scope inquiries regulation at 
Sec.  351.225. Section 351.305(a) of Commerce's current regulations 
discusses the timing of when Commerce places an administrative 
protective order on the record of its proceedings. This paragraph 
indicates that within five business days after the day on which an 
application for a scope ruling is properly filed under Sec.  351.225, 
Commerce will place an administrative protective order on the record of 
the segment of the proceeding. Thus, Commerce proposes to revise Sec.  
351.305(a) to add a reference to requests for a circumvention inquiry 
filed under Sec.  351.226.

I. Sections 351.204(d)(3) and 351.408(c)(3)

    Two of Commerce's regulations have been invalidated by the Federal 
Circuit, and Commerce proposes to remove the invalidated paragraphs 
from the CFR.
    On June 3, 2014, the Federal Circuit invalidated Sec.  
351.204(d)(3) of Commerce's regulations in MacLean-Fogg Co. v. United 
States, 753 F. 3d 1237 (Fed. Cir. 2014) (MacLean-Fogg). The regulatory 
language at issue is as follows: ``Exclusion of voluntary respondents' 
rates from all-others rate. In calculating an all-others rate under 
section 705(c)(5) or section 735(c)(5) of the Act, the Secretary will 
exclude weighted-average dumping margins or countervailable subsidy 
rates calculated for voluntary respondents.'' Section 705(c)(5)(A) of 
the Act states that the ``all-others rate shall be an amount equal to 
the weighted average countervailable subsidy rates established for 
exporters and producers individually investigated.'' The Federal 
Circuit held that there is no ambiguity in the statutory words 
``individually'' and ``investigated,'' and that a voluntary respondent 
who receives an individual rate has undergone ``individual 
investigation.'' The Federal Circuit therefore concluded that Sec.  
351.204(d)(3) was invalid, and Commerce is proposing removing that 
paragraph and replacing it with the language found in current Sec.  
351.204(d)(4).
    Furthermore, on May 14, 2010, the Federal Circuit in Dorbest Ltd. 
v. United States, 604 F. 3d 1363, 1372 (Fed. Cir. 2010) (Dorbest), 
invalidated Sec.  351.408(c)(3) of Commerce's regulations. Section 
733(c) of the Act provides that Commerce will value the factors of 
production (FOPs) in non-market economy cases using the best available 
information regarding the value of such factors in a market economy 
country or countries considered to be appropriate by the administering 
authority. The Act requires that when valuing the FOPs, Commerce 
utilize, to the extent possible, the prices or costs of factors of 
production in one or more market-economy countries that are at a level 
of comparable economic development and significant producers of 
comparable merchandise.\32\
---------------------------------------------------------------------------

    \32\ See section 733(c)(4) of the Act.
---------------------------------------------------------------------------

    However, it was Commerce's practice to calculate wages using a 
regression analysis that captured the worldwide relationship between 
per capita Gross National Income and hourly wage rates in 
manufacturing.\33\ The language of Sec.  351.408(c)(3) reflected this 
use of a regression analysis: ``Labor. For Labor, the Secretary will 
use regression-based wage rates reflective of the observed relationship 
between wages and national income in market economy countries. The 
Secretary will calculate the wage rate to be applied in nonmarket 
economy proceedings each year. The calculation will be based on current 
data and will be made available to the public.''
---------------------------------------------------------------------------

    \33\ See Antidumping Methodologies: Market Economy Inputs, 
Expected Non-Market Economy Wages, Duty Drawback; and Request for 
Comments (``Antidumping Methodologies Notice''), 71 FR 61716 
(October 19, 2006).
---------------------------------------------------------------------------

    The Federal Circuit in Dorbest held that because the regulation 
required Commerce to use wage data in a regression analysis from 
countries that did not meet the statutory criteria, the regulation was 
invalid. Thus, Commerce is proposing removing Sec.  351.408(c)(3) and 
replacing it with the language found in current Sec.  351.408(c)(4).

Classification

Executive Order 12866

    OMB has determined that this proposed rule is not significant for 
purposes of Executive Order 12866.

Executive Order 13132

    This proposed rule does not contain policies with federalism 
implications as that term is defined in section 1(a) of Executive Order 
13132, dated August 4, 1999 (64 FR 43255 (August 10, 1999)).

Paperwork Reduction Act

    This proposed rule does not contain a collection of information 
subject to the Paperwork Reduction Act, 44 U.S.C. chapter 35.

Regulatory Flexibility Act

    The Chief Counsel for Regulation has certified to the Chief Counsel 
for Advocacy of the Small Business Administration under the provisions 
of the Regulatory Flexibility Act, 5 U.S.C. 605(b), that the proposed 
rule would not have a significant economic impact on a substantial 
number of small business entities. A summary of the need for, 
objectives of, and legal basis for this proposed rule is provided in 
the preamble, and is not repeated here.
    The entities upon which this rulemaking could have an impact 
include foreign governments, foreign exporters and producers, some of 
whom are affiliated with U.S. companies, U.S. importers, and domestic 
producers of the domestic like product. However, the proposed 
modifications will not have a significant economic impact on these 
entities. Rather, they would make the administration of Commerce's AD/
CVD proceedings more efficient by allowing parties to utilize available 
electronic or other expedient means of service, and by clarifying and 
updating certain regulatory provisions.
    Enforcement & Compliance currently does not have information on the 
number of entities that would be considered small under the Small 
Business Administration's size standards for small businesses in the 
relevant industries. However, some of these entities may be considered 
small entities under the appropriate industry size standards. Although 
this proposed rule may indirectly impact small entities that are 
parties to individual AD and CVD proceedings, it will not have a 
significant economic impact on any such entities because the proposed 
rule applies to administrative enforcement actions, only clarifying and 
establishing streamlined procedures; it does not impose any significant 
costs on regulated entities. Therefore, the proposed rule would not 
have a significant economic impact on a substantial number of small 
business entities. For this reason, an Initial Regulatory Flexibility 
Analysis is not required and one has not been prepared.

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: November 18, 2022.
Lisa W. Wang,
Assistant Secretary for Enforcement and Compliance.

    For the reasons stated in the preamble, the Department of Commerce 
is proposing to amend 19 CFR part 351 as follows:

[[Page 72924]]

PART 351--ANTIDUMPING AND COUNTERVAILING DUTIES

0
1. The authority citation for 19 CFR 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. In Sec.  351.103, revise paragraphs (a) and (b) to read as follows:


Sec.  351.103  Central Records Unit and Administrative Protective Order 
and Dockets Unit.

    (a) Enforcement and Compliance's Central Records Unit maintains a 
Public File Room in Room B8024, 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. Visitors to the Public File Room should consult 
the ACCESS website at https://access.trade.gov for information 
regarding in-person visits. 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) Enforcement and Compliance's Administrative Protective Order 
and Dockets Unit (APO/Dockets Unit) is located in Room 18022, 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. Visitors to 
the APO/Dockets Unit should consult the ACCESS website at https://access.trade.gov for information regarding in-person manual filings. 
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. Sec.  351.105 and 351.304.
* * * * *
0
3. In Sec.  351.104, revise paragraph (a)(2)(ii)(A) to read as follows:


Sec.  351.104  Record of proceedings.

    (a) * * *
    (2) * * *
    (ii) * * *
    (A) The document, although otherwise timely, contains untimely 
filed new factual information (see Sec.  351.301(c));
* * * * *


Sec.  351.204  [Amended]

0
4. In Sec.  351.204, remove paragraph (d)(3) and redesignate paragraph 
(d)(4) as paragraph (d)(3).
0
5. In Sec.  351.225, revise paragraphs (b), (d)(1), (e)(2), and (f)(1) 
and (2) to read as follows:


Sec.  351.225  Scope rulings.

* * * * *
    (b) Self-initiation of a scope inquiry. If the Secretary determines 
from available information that an inquiry is warranted to determine 
whether a product is covered by the scope of an order, the Secretary 
may initiate a scope inquiry by publishing a notice of initiation in 
the Federal Register.
* * * * *
    (d) Initiation of a scope inquiry and other actions based on a 
scope application--(1) Acceptance and Initiation of a scope inquiry 
ruling application. Except as provided under paragraph (d)(2) of this 
section, within 30 days after the filing of a scope application, the 
Secretary will determine whether to accept or reject the scope ruling 
application and to initiate or not initiate a scope inquiry, or, in the 
alternative, paragraph (d)(1)(ii) will apply.
* * * * *
    (e) * * *
    (2) Extension. The Secretary may extend the deadline in paragraph 
(e)(1) of this section by no more than 180 days, for a final scope 
ruling to be issued no later than 300 days after initiation, if the 
Secretary determines that good cause exists to warrant an extension. 
Situations in which good cause has been demonstrated may include:
* * * * *
    (f) * * *
    (1) Within 30 days after the Secretary's self-initiation of a scope 
inquiry under paragraph (b) of this section, interested parties are 
permitted one opportunity to submit comments and factual information 
addressing the self-initiation. Within 14 days after the filing of such 
comments, any interested party is permitted one opportunity to submit 
comments and factual information submitted by the other interested 
parties.
    (2) Within 30 days after the initiation of a scope inquiry under 
paragraph (d)(1) of this section, an interested party other than the 
applicant is permitted one opportunity to submit comments and factual 
information to rebut, clarify, or correct factual information contained 
in the scope ruling application. Within 14 days after the filing of 
such rebuttal, clarification, or correction, the applicant is permitted 
one opportunity to submit comments and factual information to rebut, 
clarify, or correct factual information submitted in the interested 
party's rebuttal, clarification or correction.
* * * * *
0
6. In Sec.  351.226, revise paragraphs (b), (d)(1), (f)(1) and (2), and 
(l)(2)(ii) to read as follows:


Sec.  351.226  Circumvention Inquiries

* * * * *
    (b) Self-initiation of a circumvention inquiry. If the Secretary 
determines from available information that an inquiry is warranted into 
the question of whether the elements necessary for a circumvention 
determination under section 781 of the Act exist, the Secretary may 
initiate a circumvention inquiry by publishing a notice of initiation 
in the Federal Register.
* * * * *
    (d) * * *
    (1) Initiation of circumvention inquiry. Except as provided under 
paragraph (d)(2) of this section, within 30 days after the filing of a 
request for a circumvention inquiry, the Secretary will determine 
whether to accept or reject the request and whether to initiate or not 
initiate a circumvention inquiry. If it is not practicable to determine 
whether to accept or reject a request or initiate or not initiate 
within 30 days, the Secretary may extend that deadline by an additional 
15 days.
* * * * *
    (f) * * *
    (1) Within 30 days after the Secretary's self-initiation of a 
circumvention inquiry under paragraph (b) of this section, interested 
parties are permitted one opportunity to submit comments and factual 
information addressing the self-initiation. Within 14 days after the 
filing of such comments, any interested party is permitted one 
opportunity to submit comments and factual information submitted by the 
other interested parties.
    (2) Within 30 days after the initiation of a circumvention inquiry 
under paragraph (d)(1) of this section, an interested party other than 
the applicant is permitted one opportunity to submit comments and 
factual information to rebut, clarify, or correct factual information 
contained in the scope ruling application. Within 14 days after the 
filing of such rebuttal, clarification,

[[Page 72925]]

or correction, the applicant is permitted one opportunity to submit 
comments and factual information to rebut, clarify, or correct factual 
information submitted in the interested party's rebuttal, clarification 
or correction.
* * * * *
    (l) * * *
    (2) * * *
    (ii) The Secretary will direct the Customs Service to begin the 
suspension of liquidation and require a cash deposit of estimated 
duties, at the applicable rate, for each unliquidated entry of the 
product not yet suspended, entered, or withdrawn from warehouse, for 
consumption on or after the date of the publication of the notice of 
initiation of the circumvention inquiry; and
* * * * *
0
7. In Sec.  351.227, revise paragraphs (b) and (d)(1) to read as 
follows:


Sec.  351.227  Covered merchandise referrals.

* * * * *
    (b) Actions with respect to covered merchandise referral. (1) 
Within 20 days after acknowledging receipt of a covered merchandise 
referral from the Customs Service pursuant to section 517(b)(4)(A)(i) 
of the Act that the Secretary determines to be sufficient, the 
Secretary will take one of the following actions.
    (i) Initiate a covered merchandise inquiry; or
    (ii) If the Secretary determines upon review of the covered 
merchandise referral that the issue can be addressed in an ongoing 
segment of the proceeding, such as a scope inquiry under Sec.  351.225 
or a circumvention inquiry under Sec.  351.226, rather than initiating 
the covered merchandise inquiry, the Secretary will address the covered 
merchandise referral in such other segment.
    (2) The Secretary will publish a notice of its action taken with 
respect to a covered merchandise referral under paragraph (b)(1) of 
this section in the Federal Register.
* * * * *
    (d) * * *
    (1) Within 30 days after the date of publication of the notice of 
an initiation of a covered merchandise inquiry under paragraph (b)(1) 
of this section, interested parties are permitted one opportunity to 
submit comment and factual information addressing the initiation. 
Within 14 days after the filing of such comments, any interested party 
is permitted one opportunity to submit comment and factual information 
to rebut, clarify, or correct factual information submitted by the 
other interested parties.
* * * * *
0
8. In Sec.  351.301, revise paragraphs (c)(2)(vi) and (c)(3)(iv) to 
read as follows:


Sec.  351.301  Time limits for submission of factual information.

* * * * *
    (c) * * *
    (2) * * *
    (vi) Rebuttal, clarification or correction of factual information 
submitted in support of allegations. An interested party is permitted 
one opportunity to submit factual information to rebut, clarify, or 
correct factual information submitted in support of allegations 10 days 
after the date such factual information is filed with the Department.
    (3) * * *
    (iv) Rebuttal, clarification, or correction of factual information 
submitted to value factors under Sec.  351.408(c) or to measure the 
adequacy of remuneration under Sec.  351.511(a)(2). An interested party 
is permitted one opportunity to submit publicly available information 
to rebut, clarify, or correct such factual information submitted 
pursuant to Sec.  351.408(c) or Sec.  351.511(a)(2) 10 days after the 
date such factual information is filed with the Department. An 
interested party may not submit additional, previously absent-from-the-
record alternative surrogate value information under this paragraph 
(c)(3)(iv). Additionally, all factual information submitted under this 
paragraph (c)(3)(iv) must be accompanied by a written explanation 
identifying what information already on the record of the ongoing 
proceeding the factual information is rebutting, clarifying, or 
correcting. Information submitted to rebut, clarify, or correct factual 
information submitted pursuant to Sec.  351.408(c) will not be used to 
value factors under Sec.  351.408(c).
* * * * *
0
9. In Sec.  351.303, revise paragraphs (c)(2)(i) and (ii), and (f)(1) 
through (3) to read as follows:


Sec.  351.303  Filing, document identification, format, translation, 
service, and certification of documents.

* * * * *
    (c) * * *
    (2) * * *
    (i) Filing the business proprietary document. A person must file a 
business proprietary document with the Department within the applicable 
time limit. The submitter must also file the certificate of service (a 
public document) included with its submission under this section as a 
separate, stand-alone submission on ACCESS.
    (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.
* * * * *
    (f) Service of copies on other persons--(1) In general. Generally, 
a person filing a document with the Department simultaneously must 
serve a copy of the document on all other persons on the service list. 
Except as provided in Sec.  351.202(c) (filing of petition), Sec.  
351.208(f)(1) (submission of proposed suspension agreement), and 
paragraph (f)(2) of this section:
    (i) Service of a public document or public version of a business 
proprietary document is effectuated on the persons on the public 
service list upon filing of the submission in ACCESS, unless ACCESS is 
unavailable, in which case, paragraph (f)(1)(iii) of this section is 
applicable.
    (ii)(A) Service of a business proprietary document is effectuated 
on the persons on the APO service list upon filing of the submission in 
ACCESS unless ACCESS is unavailable, in which case, paragraph 
(f)(1)(iii) of this section is applicable. In addition, a business 
proprietary document submitted under the one-day lag rule under 
paragraph (c)(2)(i) of this section must be served using an acceptable 
alternative method under paragraph (f)(1)(iii) of this section.
    (B) If the document contains the business proprietary information 
of a person who is not included on the APO service list, then service 
of such documents on that person cannot be effectuated on ACCESS and 
the submitter must serve that person its own business proprietary 
information using an acceptable alternative method under paragraph 
(f)(1)(iii) of this section. In addition, specific service requirements 
under Sec.  351.306(c)(2) are applicable.
    (iii) If service of a public document, public version of a business 
proprietary

[[Page 72926]]

document, or a business proprietary document cannot be effectuated on 
ACCESS (for any reason), an alternative method of service must be used. 
Acceptable alternative methods may include: first class mail, hand 
delivery, or electronic transmission. Electronic transmission may only 
be used as an acceptable alternative method of service for business 
proprietary documents under paragraph (f)(1)(ii) of this section if the 
business proprietary document contains the business proprietary 
information of either the submitter or the recipient, with the consent 
of the recipient.
    (2) Service requirements for certain documents--(i) Request for 
review. In addition to the certificate of service requirements under 
paragraph (f)(3) of this section, an interested party that files with 
the Department a request for an expedited antidumping review, an 
administrative review, a new shipper review, or a changed circumstances 
review must serve a copy of the request by personal service or first 
class mail on each exporter or producer specified in the request and on 
the petitioner by the end of the anniversary month or within ten days 
of filing the request for review, whichever is later. If the interested 
party that files the request is unable to locate a particular exporter 
or producer, or the petitioner, the Secretary may accept the request 
for review if the Secretary is satisfied that the party made a 
reasonable attempt to serve a copy of the request on such person.
    (ii) Scope and circumvention. In addition to the certificate of 
service requirements under paragraph (f)(3) of this section, an 
interested party that files with the Department a scope ruling 
application or a request for a circumvention inquiry must serve a copy 
of the request on all persons included in the annual inquiry service 
list in accordance with Sec. Sec.  351.225(n) and 351.226(n), 
respectively.
    (3) Certificate of service. Each document filed with the Department 
must include a certificate of service listing each person served 
(including agents), the type of document served, and the date and 
method of service on each person. The Secretary may refuse to accept 
any document that is not accompanied by a certificate of service.
* * * * *
0
10. In Sec.  351.304, revise paragraphs (c)(1) and (2) to read as 
follows:


Sec.  351.304  Establishing business proprietary treatment of 
information.

* * * * *
    (c) * * *
    (1) A person filing a submission that contains information for 
which business proprietary treatment is claimed must also file a public 
version of the submission. The public version must be filed on the 
filing deadline for the business proprietary document. If the business 
proprietary document was filed under the one-day lag rule (see Sec.  
351.303(c)(2)), the public version and the final business proprietary 
document must be filed on the first business day after the filing 
deadline. 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(c)(2)(ii) through (iii)). At the close of business on the day 
on which the public version of a submission is due under paragraph 
(c)(1) 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.
* * * * *
0
11. In Sec.  351.305:
0
a. Revise the introductory text of paragraph (a);
0
b. Revise paragraph (b)(2) and (3), and remove paragraph (b)(4); and
0
c. Revise paragraph (c).
    The revisions read as follows:


Sec.  351.305  Access to business proprietary information.

* * * * *
    (a) The administrative protective order. The Secretary will place 
an administrative protective order on the record as follows: within two 
business days after the day on which a petition is filed or an 
investigation is self-initiated; within five business days after the 
day on which a request for a new shipper review is properly filed in 
accordance with Sec. Sec.  351.214 and 351.303, an application for a 
scope ruling is properly filed in accordance with Sec. Sec.  351.225 
and 351.303, or a request for a circumvention inquiry is properly filed 
in accordance with Sec. Sec.  351.226 and 351.303; within five business 
days after the day on which a request for a changed circumstances 
review is properly filed in accordance with Sec. Sec.  351.216 and 
351.303 or a changed circumstances review is self-initiated; or within 
five business days after initiating any other segment of a proceeding. 
The administrative protective order will require the authorized 
applicant to:
* * * * *
    (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 an electronic application available in 
ACCESS at https://access.trade.gov (Form ITA-367) to the Secretary. The 
electronic application will be filed and served in ACCESS upon 
submission. 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 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-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.
    (3) To minimize the disruption caused by late applications, an 
application should be filed before the first response to the initial 
questionnaire has been submitted. Where justified, however, 
applications may be filed up to the date on which the case briefs are 
due.
* * * * *
    (c) Approval of access under administrative protective order; 
administrative protective order service list; service of earlier-filed 
business proprietary submissions. (1) The Secretary will grant access 
to a qualified

[[Page 72927]]

applicant by including the name of the applicant on an administrative 
protective order service list. Access normally will be granted within 
five days of receipt of the application unless there is a question 
regarding the eligibility of the applicant to receive access. In that 
case, the Secretary will decide whether to grant the applicant access 
within 30 days of receipt of the application. The Secretary will 
provide by the most expeditious means available the administrative 
protective order service list to parties to the proceeding on the day 
the service list is issued or amended.
    (2) After the Secretary approves an application, the authorized 
applicant may request service of earlier-filed business proprietary 
submissions of the other parties that are no longer available in 
ACCESS.
    (i) For an application that is approved before the first response 
to the initial questionnaire is submitted, the submitting party must 
serve the authorized applicant those submissions within two business 
days of the request.
    (ii) For an application that is approved after the first response 
to the initial questionnaire is submitted, the submitting party must 
serve the authorized applicant those submissions within five business 
days of the request. Any authorized applicant who filed the application 
after the first response to the initial questionnaire is submitted will 
be liable for costs associated with the additional production and 
service of business proprietary information already on the record.
* * * * *
0
12. In Sec.  351.306, revise paragraph (c)(2) to read as follows:


Sec.  351.306  Use of business proprietary information.

* * * * *
    (c) * * *
    (2) If a party to a proceeding is not represented, or its 
representative is not an authorized applicant, the submitter of a 
document containing that party's business proprietary information must 
serve that party or its representative, if applicable, with a version 
of the document that contains only that party's business proprietary 
information consistent with Sec.  351.303(f)(1)(iii). The document must 
not contain the business proprietary information of other parties.
* * * * *
0
13. In Sec.  351.404, revise paragraph (d) to read as follows:


Sec.  351.404  Selection of the market to be used as the basis for 
normal value.

* * * * *
    (d) Allegations concerning market viability and the basis for 
determining a price-based normal value. In an antidumping investigation 
or review, allegations regarding market viability or the exceptions in 
paragraph (c)(2) of this section, must be filed, with all supporting 
factual information, in accordance with Sec.  351.301(c)(2)(i).


Sec.  351.408  [Amended]

0
14. In Sec.  351.408, remove paragraph (c)(3) and redesignate paragraph 
(c)(4) as paragraph (c)(3).

[FR Doc. 2022-25675 Filed 11-25-22; 8:45 am]
BILLING CODE 3510-DS-P