[Federal Register Volume 88, Number 188 (Friday, September 29, 2023)]
[Rules and Regulations]
[Pages 67069-67081]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-21516]


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DEPARTMENT OF COMMERCE

International Trade Administration

19 CFR Part 351

[Docket No. 230905-0210]
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: Final rule.

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SUMMARY: Pursuant to its authority under title VII of the Tariff Act of 
1930, as amended (the Act), the U.S. Department of Commerce (Commerce) 
is modifying its regulations governing procedures related to 
administrative protective orders (APO) and service of documents 
submitted in antidumping (AD) and countervailing duty (CVD) 
proceedings. Specifically, Commerce is making certain changes to its 
procedures governing the filing of documents (including public 
documents, business proprietary documents, and public versions of 
business proprietary documents), as well as service of documents. 
Commerce is also making 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 is deleting from its regulations two 
provisions that have been invalidated by the United States Court of 
Appeals for the Federal Circuit (Federal Circuit).

DATES: Effective date: October 30, 2023. This final rule will apply to 
all AD/CVD proceedings that are ongoing on the effective date and all 
AD/CVD proceedings initiated on or after the effective date.

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

    On November 28, 2022, Commerce published a proposed modification of 
its regulations governing procedures related to APOs and service of 
documents submitted in AD and CVD proceedings and to procedural aspects 
of its AD/CVD regulations (hereafter, the Proposed Rule).\1\ The 
Proposed Rule explained Commerce's proposal to make permanent certain 
changes to its service procedures that have been adopted on a temporary 
basis due to COVID-19, and proposed additional clarifications and 
corrections to its AD/CVD regulations, including updating the scope, 
circumvention, and covered merchandise referrals, and deleting from its 
regulations two provisions that have been invalidated by the Federal 
Circuit. Commerce received nine comments on the Proposed Rule and has 
addressed those comments below. After analyzing and carefully 
considering each comment it received in response to the Proposed Rule, 
Commerce has adopted the proposed modification with certain changes and 
is amending its regulations accordingly.
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    \1\ See Administrative Protective Order, Service, and Other 
Procedures in Antidumping and Countervailing Duty Proceedings, 87 FR 
72916 (November 28, 2022) (Proposed Rule).
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Explanation of Modifications From the Proposed Rule to the Final Rule

    As we explained in the Proposed Rule, one of the purposes for 
modifying our regulations 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 
this final rule, Commerce has determined to make certain modifications 
from the Proposed Rule in response to the comments received. With these 
modifications, as discussed further below, this final rule codifies the 
regulations proposed on November 28, 2022.
    In this final rule, Commerce is amending proposed section 
351.303(f)(1)(iii) to make service via electronic transmission for 
public documents and public versions of a business proprietary 
document, and service via secure electronic transmission for business 
proprietary documents, the default method of alternative service when 
service of such documents cannot be effectuated on ACCESS or when 
ACCESS is unavailable. This includes, for example, service of business 
proprietary documents filed under the one-day lag rule under section 
351.303(c) (i.e., non-final business proprietary documents filed on the 
due date under the one-day lag rule). As a result of adopting this 
change, Commerce is not adopting its proposed modification that parties 
file a standalone certificate of service for documents filed under the 
one-day lag rule under proposed section 351.303(c)(2)(i). Commerce is 
also modifying section 351.303(f)(2)(i) to permit electronic service of 
certain requests for review. In addition, Commerce is modifying section 
351.305(c)(2) to specify that service of earlier-filed business 
proprietary submissions that are no longer available on ACCESS may be 
effectuated via secure electronic transmission. Commerce is also making 
some additional modifications for clarity and consistency. Finally, in 
this final rule, we are adopting the proposed amendments to the 
regulations discussed in the Proposed Rule for which we did not receive 
comments, or that we are not otherwise modifying, as discussed in 
greater detail below.
    The following sections generally contain a brief discussion of each 
regulatory provision for which we received comments, a summary of the 
comments we received, and Commerce's responses to those comments. These 
sections contain further explanation of any changes Commerce is making 
in this final rule from the Proposed Rule, either in response to 
comments or that Commerce deems necessary for conforming to, or 
clarification of, the regulations, or for providing additional public 
benefit. The final section discusses additional comments suggesting 
other modifications to the ACCESS system and filing procedures that 
were not covered or addressed in the Proposed Rule and are therefore 
not included in this final rule.

Responses to Comments Received on the Proposed Rule

    Commerce received nine comments on the Proposed Rule. Below is a 
summary of the comments, grouped by issue category, followed by 
Commerce's response.

Standalone Certificates of Service for Business Proprietary Documents

    Proposed section 351.303(c)(2)(i) would require a party filing a 
business proprietary document on ACCESS to also file a separate, 
standalone, public certificate of service with its submission. Although 
the Preamble to

[[Page 67070]]

the Proposed Rule indicates that this provision would apply to business 
proprietary documents filed under the one-day lag rule, two commenters 
interpret the certificate of service requirement under section 
351.303(c)(2)(i) as applying to any business proprietary filing. One 
commenter suggests that Commerce modify proposed section 
351.303(c)(2)(i) to limit the standalone certificate of service 
requirement to only business proprietary documents filed under the one-
day lag rule.
    Several other commenters argue that any requirement to file a 
standalone certificate of service is burdensome, inefficient, costly, 
would clutter the docket, and would not necessarily provide same-day 
notice of a filing, because documents submitted close to 5:00 p.m. 
often do not appear on ACCESS until the next day. Another commenter 
argues that the standalone certificate of service would add little 
value if Commerce reinstates the requirement to serve documents 
submitted under the one-day lag rule and even if Commerce does not 
reinstate that service rule, the standalone certificate of service will 
only inform parties that the filing was made, which would become 
apparent anyway in one business day.
    These commenters suggest several alternatives, including making 
technical changes to ACCESS to permit the one-day lag filing to appear 
on the ACCESS docket and digests, but not be viewable or downloadable, 
which would give parties notice of the filing without it becoming part 
of the official record. One commenter argues that Commerce should 
simply require a certificate of service with every public and 
proprietary filing. Another suggestion, further discussed below, is to 
require electronic service of documents filed under the one-day lag 
rule on the same day they are filed with Commerce, thereby obviating 
the need to file a standalone certificate of service.
    Response: We clarify that the proposal to file standalone 
certificates of service only applies to documents submitted under the 
one-day lag rule and does not apply to all business proprietary 
documents. However, as explained below, we are amending the regulation 
to permit the service of one-day lag documents via secure electronic 
transmission. That will obviate the need to file a standalone 
certificate of service, because parties served via secure electronic 
transmission will be able to receive the documents the same day they 
are filed on ACCESS. Thus, we are removing from this final rule the 
provision of section 351.303(c)(2)(i) that would require the filing of 
a standalone certificate of service with the submission of business 
proprietary documents filed under the one-day lag rule.
    Further, we are not adopting the suggestion that Commerce make one-
day lag documents appear on the ACCESS docket and digests without being 
viewable or downloadable, as an alternative way of providing notice to 
parties that a one-day lag submission has been filed. As stated in the 
Proposed Rule, 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.\2\ Similarly, ACCESS does not have the technical capability 
at this time to make these documents appear on the ACCESS docket and 
digests without being viewable or downloadable or becoming part of the 
official record. As stated above, we are amending the regulation to 
permit the service of one-day lag documents via secure electronic 
transmission, which will enable parties to receive the documents the 
same day they are filed on ACCESS. Therefore, we find it unnecessary to 
adopt this commenter's suggestion.
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    \2\ See Proposed Rule, 87 FR at 72920.
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Service of Business Proprietary Documents, Public Documents, and Public 
Versions of Business Proprietary Documents via ACCESS

    Most commenters express support for the proposal in proposed 
sections 351.303(f)(1)(i) and (ii)(A) that, in general, service of a 
public document, public version of a business proprietary document, and 
a business proprietary document will be effectuated on parties on the 
public and APO service lists upon filing of the submission on ACCESS, 
unless ACCESS is unavailable. Two commenters particularly support the 
proposal to move service requirements of case and rebuttal briefs from 
current section 351.303(f)(3)(i) (service of case and rebuttals briefs 
through personal service on the same day the brief is filed, or 
overnight mail or courier on the next day) to proposed section 
351.303(f)(1), which would generally allow service through ACCESS.
    However, some commenters express concern that due to the time it 
takes ACCESS to process filed documents and release digest 
notifications, parties are not able to download documents the same day 
they are filed and sometimes must wait a day or longer when documents 
are filed before a weekend or holiday. One commenter remarks that under 
the Temporary Rule,\3\ case and rebuttal briefs were often not 
available on ACCESS the same day as filing, which was particularly 
problematic when filed under the one-day lag rule, which could result 
in parties not receiving case or rebuttal briefs until two days or more 
after the initial filing. Several commenters remark that ACCESS delays 
in making documents available shorten the time parties must respond to 
filings because certain response deadlines are triggered from the 
filing date. This in turn creates inefficiencies and compresses the 
time in which Commerce has to conduct a proceeding when parties file 
extension requests that Commerce must take the time to consider.
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    \3\ 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 Temporary Rule Modifying AD/CVD 
Service Requirements Due to COVID-19; Extension of Effective Period, 
85 FR 29615 (May 18, 2020); Temporary Rule Modifying AD/CVD Service 
Requirements Due to COVID-19; Extension of Effective Period, 85 FR 
41363 (July 10, 2020).
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    One commenter proposes that Commerce adjust ACCESS release times to 
ensure that documents are ``served'' on the same business day they are 
filed. Another commenter asserts that ACCESS delays in making documents 
available the same day as filing contravenes the statutory requirement 
under section 777(d) of the Act that ``[a]ny party submitting written 
information, including business proprietary information, to the 
administering authority . . . during a proceeding shall, at the same 
time, serve the information upon all interested parties who are parties 
to the proceeding, if the information is covered by a protective 
order'' (emphasis added). This commenter suggests that Commerce revise 
proposed sections 351.303(f)(1)(i) and (f)(1)(ii)(A) to require that if 
ACCESS does not release a business proprietary, public, or public 
version of a document within one business day, then the submitter must 
effectuate service of the document upon the request of a party on the 
service list, using one of the alternative methods of service provided 
for under proposed section 351.303(f)(1)(iii). The commenter relatedly 
proposes to add a requirement to proposed section 351.303(f)(1)(iii) 
that if such an alternative method of service is used

[[Page 67071]]

when ACCESS does not release documents within one business day, the 
submitter would then be required to file a revised certificate of 
service pursuant to sections 351.303(c)(2)(i) and 351.303(f)(3).
    Response: We understand the concerns expressed by some commenters 
that parties sometimes must wait a day or longer to download filed 
documents due to ACCESS delays. While most of the time documents are 
made available on the same day they are filed on ACCESS, this is not 
always achievable. Commerce endeavors to review and approve for release 
on ACCESS all documents submitted on the same day of filing, but this 
is sometimes not possible due to Commerce's limited resources, as well 
as other factors, including the timing of when the document is filed on 
ACCESS, and the volume of files that must be reviewed and approved. On 
balance, Commerce makes documents available on ACCESS as soon as 
possible, and many times, on the same day the document is filed.
    Relatedly, we disagree with the comment that section 777(d) of the 
Act requires documents to be made available the same day as filing. The 
statute requires that a document be served at the same time as it is 
filed, but it does not require that the document be received by parties 
on the same day as filing.\4\ Thus, the requirements of the statute are 
fulfilled for those situations under the revised regulations where 
service is effectuated upon filing on ACCESS, even if the document is 
not received by other parties on the same day as filing. This is 
consistent with how service operates under the current regulations 
where, for example, parties may serve certain documents by first-class 
mail on the day the document is filed, but the documents are not 
necessarily received on the same day as filing.
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    \4\ Section 777(d) of the Act states, ``Any party submitting 
written information, including business proprietary information, to 
the administering authority or the Commission during a proceeding 
shall, at the same time, serve the information upon all interested 
parties who are parties to the proceeding, if the information is 
covered by a protective order'' (emphasis added).
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    For the reasons discussed above, we are not adopting the suggestion 
that Commerce revise the regulations to provide that if ACCESS does not 
release a business proprietary, public, or public version of a document 
within one business day, the submitter must effectuate service using an 
alternative method of service and file a revised certificate of 
service. Such a rule would be difficult for Commerce to administer 
given its limited resources. Moreover, submitters would not be able to 
predict when the submission will be made available in ACCESS, and thus, 
may not know that they should effectuate service using an alternative 
method.

Alternative Methods of Service for Business Proprietary Documents, 
Public Documents, and Public Versions of Business Proprietary Documents

    Several commenters raise concerns about mail or hand delivery as 
alternative methods of service authorized under proposed section 
351.303(f)(1)(iii) when service of a public, business proprietary, or 
public version of a business proprietary document cannot be effectuated 
through ACCESS. Commenters argue that mail or hand delivery is 
regressive, contrary to the stated purpose of the Proposed Rule to make 
service more efficient, costly, burdensome, less reliable than 
electronic transmission, out of step with modern professional practice 
of electronic transmission, wasteful (when the documents will usually 
be scanned and the delivered hard copy destroyed), and inequitable in 
that it requires some personnel to be in the office rather than 
telework. Several commenters also point out that Commerce itself uses 
encrypted electronic platforms when transmitting business proprietary 
documents.
    One commenter argues that proposed section 351.303(f)(1)(iii) 
places a greater burden on petitioners' firms, which often file 
submissions containing business proprietary information of multiple 
parties, and therefore are required to serve submissions by hand 
delivery or mail. Even if a petitioner is commenting on the business 
proprietary information of only one respondent, the petitioner only has 
the option of seeking consent to electronic service from that 
particular respondent and would still have to serve all other parties 
on the APO service list by hand or by mail. One commenter points out 
that for documents submitted under the one-day lag rule, service by 
mail or hand delivery does not necessarily result in parties receiving 
the documents on the day of filing, but rather after filing of the 
final business proprietary version on ACCESS.
    Thus, several commenters propose that Commerce eliminate the 
requirement for service by mail or hand delivery and make electronic 
service through secure electronic transmission the default rule. Some 
commenters propose that in making electronic service the default rule, 
Commerce should require that when parties sign an APO or make an entry 
of appearance, they agree to electronic transmission via secure file 
transfer unless they specifically opt out and request service by hand 
delivery or mail on their forms. One commenter suggests that Commerce 
may also consider giving parties the option to express inability to 
receive certain types of electronic service. Another commenter 
recommends amending proposed section 351.303(f)(1)(iii) to establish 
that service of documents containing business proprietary information 
of a person who is not included on the APO service list shall be made 
via secure electronic file transfer unless the party has ``opted out'' 
in its entry of appearance, in which case service may be effectuated by 
hand delivery or first-class mail. One commenter similarly proposes 
that electronic service through encrypted platforms should also be 
available to pro se and non-APO represented parties.
    Several commenters also argue that Commerce should specify certain 
security standards that electronic transmission platforms used to 
transmit documents are required to contain.
    Some commenters argue that under proposed section 
351.303(f)(1)(iii), Commerce should allow secure electronic 
transmission of a third party's business proprietary information, 
rather than just that of the sender and recipient and eliminate the 
requirement of consent from the recipient for service through secure 
electronic transmission. Commenters argue that the requirement to seek 
consent for electronic service of business proprietary documents that 
contain business proprietary information of the sender or the recipient 
only is burdensome. For certain documents that include issues and 
arguments relating to multiple parties (e.g., case briefs), it may not 
be possible to include business proprietary information without 
preparing party-specific versions of the submission. Thus, commenters 
argue that the default rule for electronic service through secure 
electronic transmission (unless a party affirmatively opts out) would 
eliminate the inefficiency of requiring parties to obtain consent 
before using electronic file transfer and eliminate the need for 
multiple different versions of the same document depending on whether a 
party affirmatively consented to electronic service.
    If Commerce permits service by unencrypted email, several 
commenters argue that such submissions should still only contain the 
recipient's or submitter's business proprietary information, and that 
all parties must consent. Another commenter proposes that, in addition 
to these requirements, the recipient must explicitly request an 
unencrypted email transmission.

[[Page 67072]]

    One commenter raises concern regarding the requirement of section 
351.303(f)(1)(ii)(B) that if a document contains the business 
proprietary information of a party who is not on the APO service list, 
the submitter of the document must serve the unrepresented party its 
own business proprietary information using one of the alternative 
service methods under section 351.303(f)(1)(iii). This requirement, 
according to the commenter, would require represented parties to reach 
an agreement with unrepresented parties on an alternative means of 
service, and potentially place the represented party in the position of 
needing to explain the regulations to the unrepresented party, which 
could lead to conflicts in which Commerce would need to intervene. The 
commenter proposes that Commerce amend section 351.303(f)(1)(ii)(B) to 
include specific language stating that Commerce will instruct, and will 
assume the responsibility for such instruction of, the parties as to 
the alternative means of service submitters must use under section 
351.303(f)(1)(iii).
    Another commenter requests clarification of the statements that 
public and business proprietary documents will be served via ACCESS 
``unless ACCESS is unavailable'' and that an alternative method of 
service must be used if service ``cannot be effectuated on ACCESS (for 
any reason).'' Although the commenter interprets these phrases to 
encompass situations where a filing is not submitted through ACCESS 
(e.g., ACCESS is temporarily unavailable due to technical failure) or a 
party is unable to receive service via ACCESS (e.g., a pro se party 
that would not be able to receive service via ACCESS of a document 
containing only its own business proprietary information), the 
commenter notes that these phrases could be interpreted to encompass 
other situations. For example, there may be a situation in which a 
party files a document on ACCESS but due to a technical error the 
document is not made available via ACCESS, and the submitter is unaware 
and unable to know that it is necessary to take alternative measures. 
Thus, the commenter seeks clarification on the circumstances under 
which service would not be ``effectuated on ACCESS.''
    Response: Upon consideration of these comments, we agree that 
electronic service via secure electronic transmission between parties 
should be the primary method of service when service cannot be 
effectuated on ACCESS or when ACCESS is unavailable. This approach is 
consistent with modern professional practice and would fulfill the goal 
of these regulatory amendments to make service more efficient. Thus, 
for this final rule we are amending section 351.303(f)(1)(iii) so that 
service via electronic transmission for public documents and public 
versions of business proprietary documents, and secure electronic 
transmission for business proprietary documents, is the default method 
of alternative service when service of such documents cannot be 
effectuated on ACCESS or when ACCESS is unavailable.
    This default rule for electronic service will apply to APO-
authorized, non-APO authorized, and pro se parties. Thus, non-APO 
authorized representatives and pro se parties generally will be 
permitted to transmit business proprietary information electronically, 
subject to additional restrictions as explained below. Accordingly, we 
find that the concern expressed by one commenter that a represented 
party may be put in a situation where it needs to explain the 
regulations to an unrepresented party is rendered moot by adoption of 
electronic transmission as the default method of alternative service 
under section 351.303(f)(1)(iii).
    Because this is the default rule, parties generally will not need 
to affirmatively consent to receiving business proprietary information 
by electronic transmission. Service by mail or personal service \5\ 
will continue to be an acceptable means of alternative service only in 
the very limited circumstance that a party does not have the capacity 
to send or receive documents electronically (e.g., an interested party 
in a foreign country that does not have access to email). Because 
electronic service is the default rule, we are not adopting the 
proposal that parties be permitted to affirmatively opt out of 
electronic service in their entries of appearance and APO applications.
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    \5\ For consistency with our current regulations, in this final 
rule we have adopted the term ``personal service'' instead of ``hand 
delivery,'' which was used in the Proposed Rule. By reverting to the 
term in our current regulations, we indicate that methods of 
personal service that have been used under the current regulations 
continue to be acceptable as alternative methods of service when 
secure electronic transmission is not possible.
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    We also clarify that in making electronic service the default rule, 
APO-authorized representatives will be permitted to serve documents on 
other APO-authorized representatives that include third-party business 
proprietary information, and not just that of the sender or the 
recipient, and the recipient need not affirmatively consent to service 
(as was required in the Proposed Rule). That is, any APO-authorized 
representative may serve documents that include any business 
proprietary information (including that of a third party) on another 
APO-authorized representative. This alleviates the concern expressed by 
some commenters that there is a greater burden on petitioners' firms 
because they often file submissions containing the business proprietary 
information of multiple parties. However, the APO-authorized 
representative must ensure that when serving documents on non-APO 
authorized representatives and pro se parties, the documents contain 
only the business proprietary information of the non-APO authorized 
representative or of the pro se party.
    When compared to APO-authorized representatives, the procedures 
differ for non-APO authorized representatives and pro se parties where 
electronic service is the default rule. Non-APO authorized 
representatives and pro se parties will be permitted to serve documents 
containing the business proprietary information of the non-APO 
represented party or the pro se party (respectively) on APO-authorized 
representatives.\6\ They may also receive service of documents 
containing their own business proprietary information.
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    \6\ We note that a non-APO authorized representative or pro se 
party may also serve its own client's or its own business 
proprietary information (respectively) on anyone, but for purposes 
of our proceedings, they would normally serve APO-authorized 
representatives.
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    We strongly encourage the transmission of business proprietary 
information through secure electronic transmission. However, we will 
permit service via unsecure electronic transmission (i.e., electronic 
mail) if an APO-authorized representative, pro se party, or non-APO 
authorized representative of a party requests service via unsecure 
electronic transmission, the recipient consents, and the document 
contains only the business proprietary information of the submitter or 
recipient. If the business proprietary document is encrypted, then 
consent is not required.
    Given rapid changes in technology, we do not find it practical to 
set minimum security standards in these regulations. Thus, we are not 
adopting the proposal to specify a particular encryption level for 
secure electronic transmission in the regulation but rather advise that 
generally, business proprietary documents should be served through 
platforms that use secure electronic transmission (e.g., encrypted 
emails, File Transfer Protocol Secure (FTPS), or secure file share such 
as Kiteworks, DocuSign, or Google Drive).

[[Page 67073]]

However, more specific security standards may be added to the ACCESS 
Handbook and updated from time to time as technological changes 
necessitate.
    In response to the comment that language describing ACCESS as 
``unavailable'' under sections 351.303(f)(1)(i) and (f)(1)(ii)(A) could 
be interpreted to include multiple situations, we have amended the 
regulation to add a requirement that an alternative form of service in 
accordance with section 351.303(f)(1)(iii) is needed when a submission 
is filed manually, including bulky document filings, super bulky 
filings, and data files that exceed the file size limit. The reason for 
this change is to expedite the availability of these submissions, which 
require additional processing. In some cases, as a commenter mentioned, 
there may be delays in making those files available, especially in 
situations where the ACCESS team may need to find an alternative method 
of releasing the files. In our experience, the transmittal of extremely 
large collections of documents has, at times, required a corresponding 
large use of ACCESS resources. The use of such resources has, in turn, 
caused the ACCESS system to operate at much slower speeds, resulting in 
extensive download times for parties and forcing them to download 
documents during non-peak times. Considering the above, Commerce has 
determined that for such manual filings (including bulky document 
filings, super bulky filings and data files exceeding the file size 
limit), that the submitter who is filing the submission in this 
alternative manner also be required to serve the submission in an 
alternative manner in accordance with section 351.303(f)(1)(iii). This 
additional step for the submitter to ensure timely service will be 
offset by the time savings the submitter will gain in manually filing 
its voluminous submission. This requirement also addresses the concerns 
of those commenters who expressed concern about receiving access to 
submissions in a timely manner.
    We also clarify that ACCESS is considered ``unavailable'' when, due 
to a technical failure, ACCESS is unable to accept electronic filings, 
as specified in the Handbook on Electronic Filing Procedures, which is 
available on the ACCESS website at https://access.trade.gov (via the 
ACCESS Handbook link). If ACCESS is unable to accept electronic filings 
for more than one hour between the hours of 12:00 p.m. and 4:30 p.m. 
Eastern Time, or for any duration of time between the hours of 4:31 
p.m. and 5:00 p.m. Eastern Time, Commerce will allow a document or data 
to be filed manually. In such a situation, if a submitter files a 
submission manually, it must also serve the submission on the parties 
to the proceeding in accordance with section 351.303(f)(1)(iii). Thus, 
generally, if a submitter must file a submission manually, the 
submitter must also use an alternative form of service. The reason for 
requiring alternative service is that a technical failure that requires 
manual filing will cause a delay in service, as discussed above. At the 
time of filing, the submitter will be aware of the technical failure 
and therefore should also be aware of the service obligations for 
manual filings.
    If a technical failure occurs, but a submitter already successfully 
filed a submission electronically before the technical failure 
occurred, the submitter does not need to serve the submission using an 
alternative method. Rather, the would-be recipients should wait until 
the ACCESS technical failure has been resolved, and the submissions 
will be available at that time. If Commerce determines that the 
technical failure will be lengthy in duration given the severity of the 
problem or a large backlog of filings to process, Commerce may direct 
parties to seek service copies from one another.
    Finally, we clarify what is meant by situations when service 
``cannot be effectuated on ACCESS'' under section 351.303(f)(1)(iii). 
There are certain situations in which ACCESS does not have the 
capability to effectuate service based on the way the system is 
structured. There are two categories that determine who and what gets 
served. Who gets served is determined by the individuals on the APO and 
public service lists. What gets served is determined by the documents 
that are on the record. A party to the proceeding can use these 
guidelines to understand whether, at the time of filing, service of a 
particular submission can be effectuated on ACCESS.
    For example, a document submitted under the one-day lag rule under 
section 351.303(c)(2)(i) is not considered a record document due to the 
non-final nature of the designation of business proprietary 
information; therefore, service cannot be effectuated on ACCESS. 
Another example is a document that contains the business proprietary 
information of a person who is not included on the APO service list. 
Under section 351.303(f)(1)(ii)(B), service cannot be effectuated on 
ACCESS for that person and must be made in accordance with section 
351.303(f)(1)(iii). A further example is a situation where a 
representative of an interested party is granted APO access after other 
parties to the proceeding have already filed submissions to the record 
and they are no longer available for download on ACCESS, as addressed 
in section 351.305(c)(2).
    Other situations in which a document is not immediately made 
available on ACCESS are not situations in which service cannot be 
effectuated on ACCESS.

Reinstatement of Service Requirement for Documents Filed Under the One-
Day Lag Rule

    Commenters are divided in their support of Commerce's proposed 
reinstatement of the requirement that business proprietary documents 
filed under the one-day lag rule be served on interested parties. 
Commenters who oppose the reinstatement of the service requirement 
argue that it is burdensome (even if done by electronic means); creates 
inconsistencies; increases the likelihood of errors, including APO 
violations; and does not allow the flexibility to manage varied 
situations, such as another pandemic, inclement weather, and increased 
telework. One commenter argues that the burden of service of one-day 
lag documents is greater for petitioners' firms, because they are more 
likely to file submissions containing multiple parties' business 
proprietary information, and such documents cannot be served by 
electronic means under the Proposed Rule.
    Several commenters address Commerce's observation in the Proposed 
Rule that under the waiver of the service requirement for one-day lag 
submissions under the Temporary Rule, parties were sometimes not aware 
of a filing. One commenter notes that any uncertainty as to whether a 
document has been filed under the one-day lag rule lasts only about a 
day, and parties have been dealing with that uncertainty now for over 
two years under the Temporary Rule. This commenter points out that any 
inconvenience in having a tighter rebuttal period could be alleviated 
by maintaining the extension of the time for rebuttal briefs from five 
to seven days, as adopted under the Temporary Rule. Another commenter 
points out that lack of same-day notice of the filing of a business 
proprietary document under the one-day lag rule also occurred before 
the Temporary Rule, for example when first-class mail delivery of the 
document arrived the next business day after filing with Commerce. Some 
commenters note that under the proposed alternative methods of service 
under section 351.303(f)(1)(iii), one-day lag filings

[[Page 67074]]

might still be received after the final bracketed version is released 
by Commerce because of delays in the type of service used (e.g., first-
class mail). Thus, several commenters conclude that the benefits of 
notice through reinstatement of the service requirement for one-day lag 
documents do not outweigh the burdens and risks.
    Other commenters propose measures to address Commerce's concern 
that parties are not aware of the filing of documents under the one-day 
lag rule, without reinstating the service requirement for one-day lag 
documents. For example, one commenter suggests that Commerce adopt the 
proposal under section 351.303(c)(2)(i) to file a standalone 
certificate of service for documents filed under the one-day lag rule 
that would include the name of the submission and the party for whom it 
was filed. This would effectively be a ``certificate of non-service'' 
because the documents would not be served but would give parties notice 
of the filing of the one-day lag document through the ACCESS public 
service list. This commenter also proposes that parties be permitted to 
file the ``certificate of non-service'' before the filing of the 
document on ACCESS to reduce the burden on parties filing multiple 
submissions on the same day, to help ensure submissions are made in 
their entirety prior to the filing deadline, and to increase the 
likelihood that other parties will be made aware of the filing on the 
actual filing day. Alternatively, the commenter proposes that Commerce 
permit that the ``certificate of non-service'' be filed two hours after 
the deadline for the one-day lag document (e.g., 7:00 p.m. for a 5:00 
p.m. filing deadline), and still be deemed timely.
    One commenter suggests that Commerce itself release the one-day lag 
submission under the same procedures as the release of the final 
bracketed business proprietary versions. Another commenter suggests 
that Commerce could require that final business proprietary and public 
versions of one-day lag documents contain a header indicating whether 
the one-day lag rule was used, an approach that is similar to the 
current ``bracketing not final'' designations on documents filed under 
the one-day lag rule.
    Several other commenters support reinstatement of the service 
requirement for documents filed under the one-day lag rule. One 
commenter states that Commerce's concern over parties not receiving 
notice of filings of one-day lag documents under the Temporary Rule's 
waiver of service requirements was borne out by its own experiences. 
That commenter states that parties often did not know if a document had 
been filed under the one-day lag rule, or a party had missed the 
deadline. Moreover, because parties did not receive the document the 
day it was filed with Commerce, they missed a day or more of the 
regulatory rebuttal period, requiring the filing of extension requests. 
Another commenter supports the reinstatement of the service requirement 
of documents filed under the one-day lag rule because it prevents 
parties from delaying service of documents through the one-day lag 
rule, and because it enables other parties to ensure that the only 
changes made between the document filed by the deadline under the one-
day lag rule and the final document relate to identification of 
business proprietary information.
    Some commenters support the reinstatement of the service 
requirement for documents filed under the one-day lag rule, but object 
to the requirement that such service be effectuated outside of ACCESS. 
These commenters suggest that documents submitted under the one-day lag 
rule should be deemed served on parties on the APO service list when 
filed on ACCESS. Several parties address Commerce's explanation in the 
Proposed Rule that a business proprietary document filed under the one-
day lag rule contains non-final bracketing that is not treated as an 
official record document, and thus cannot be served via ACCESS with the 
same technology used for serving official record documents. Some 
commenters suggest that Commerce make technical changes to ACCESS to 
prevent one-day lag filings from becoming part of the official record, 
including permitting parties 14 days to download business proprietary 
documents filed under the one-day lag rule before deleting the 
documents from the record.
    Several commenters state that if documents filed under the one-day 
lag rule are not served via ACCESS, parties should be permitted to 
serve such documents via secure electronic transmission on the day the 
document is filed with Commerce, and object to any requirement that 
service be completed via first-class mail or hand delivery as 
inefficient, costly, and burdensome on parties. These commenters argue 
that parties often do not receive the documents filed under the one-day 
lag rule before the final proprietary version is filed on ACCESS 
because documents served by such means are not always received on the 
same day as filing. One commenter proposes that documents filed under 
the one-day lag rule may be served via email if all parties agree, and 
that first-class mail or hand delivery should only be required when a 
party explicitly requests that method of service. Other commenters 
state that electronic service of one-day lag documents would obviate 
the need for the standalone public certificate of service requirements 
under proposed section 351.303(c)(2)(i).
    One commenter notes that because the bracketing in one-day lag 
filings is only provisional, an attorney may not be able to share it 
with a client until the final business proprietary version is filed. 
The commenter indicates that delays in receipt when documents are 
served via first-class mail are particularly problematic with respect 
to case and rebuttal briefs, and suggests that Commerce could require 
that business proprietary case and rebuttal briefs served under the 
one-day lag rule be served by hand delivery or overnight mail or 
courier, and that Commerce could set an earlier deadline for submission 
of the final proprietary and public versions of a document submitted 
under the one-day lag rule. According to this commenter, setting an 
earlier deadline would result in a greater likelihood that the 
submissions would be ``approved'' and available to other parties on 
ACCESS on the same day.
    Finally, two commenters argue that if Commerce reinstates the 
service requirement for business proprietary documents filed under the 
one-day lag rule, service should only be made on parties on the APO 
service list, and not on pro se or non-APO authorized parties. The 
commenters argue that to require service of such documents to non-APO 
authorized parties before the final bracketing is checked creates 
significant risk of an APO violation, particularly when submissions 
contain the business proprietary information of multiple parties. These 
commenters argue that this undermines the purpose of the one-day lag 
rule to protect business proprietary information.
    Response: Upon consideration of these comments, we are adopting our 
proposal to reinstate 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. However, as discussed above, for this final rule we 
are amending section 351.303(f)(1)(iii) so that electronic service via 
secure electronic transmission is the default method of alternative 
service, including for business proprietary documents filed under the 
one-day lag rule. We believe

[[Page 67075]]

that reinstating the service requirement of such documents eliminates 
uncertainties that resulted from waiving service during the past three 
years under the Temporary Rule and helps with providing parties as much 
time as possible with such documents to protect their interests. In our 
view, this fulfills the goal of these regulatory amendments to make 
service more efficient and addresses many of the concerns raised 
regarding the burden of other forms of service, such as first-class 
mail or personal service, while also maintaining flexibility. Although 
some commenters oppose the reinstatement of service requirements for 
documents filed under the one-day lag rule, we are not convinced that, 
overall, the benefits of not being required to serve these documents 
under the Temporary Rule outweigh the benefits of requiring service. 
This is particularly true when considering that Commerce is amending 
the regulations to permit such documents to be served via secure 
electronic transmission, which greatly reduces the burdens expressed by 
certain commenters.
    Further, as discussed above, because we are amending the regulation 
to permit the service of one-day lag documents via secure electronic 
transmission, we are removing the requirement to file a standalone 
certificate of service from this final rule. For similar reasons, we 
determine it is not necessary to adopt one commenter's alternative 
proposal to require a ``certificate of non-service.'' Because we are 
reinstating the service requirements for business proprietary documents 
filed under the one-day lag rule, filing a ``certificate of non-
service'' would not be needed because such documents would in fact be 
served.
    Allowing electronic service of business proprietary documents filed 
under the one-day lag rule removes the uncertainty parties may have 
experienced over whether a document was filed under the one-day lag 
rule or whether the document was untimely filed or not filed at all. 
Having the submitter serve parties via secure electronic service will 
also help to reduce delays in service, enable parties to ensure that 
any changes made to the final business proprietary document are only 
related to bracketing, and increase the likelihood that parties will 
receive the documents the same day they are filed on ACCESS. 
Accordingly, we find it unnecessary to adopt the suggestion that the 
time for submitting rebuttal briefs be increased from five to seven 
days as a method of relieving the potential compressed period for 
submitting rebuttal briefs that may result from delays in receiving 
documents filed under the one-day lag rule. For similar reasons, we 
also find it unnecessary to adopt the suggestion that Commerce set an 
earlier deadline for the submission of final business proprietary and 
public versions of documents submitted under the one-day lag rule as a 
potential way for these documents to be approved faster on ACCESS. We 
also note that neither of these suggestions are responsive to the 
proposed regulatory amendments in the Proposed Rule, and thus, such 
modifications would be outside the scope of this rulemaking.
    Moreover, as discussed above, in making electronic service the 
default rule, APO-authorized representatives will be permitted to serve 
third-party business proprietary information, not just that of the 
sender or the recipient, and the recipient need not affirmatively 
consent to service. This alleviates the concern expressed by some 
commenters that there is a greater burden on petitioners' firms that 
often file submissions containing the business proprietary information 
of multiple parties, because these parties will be able to 
electronically serve documents containing the business proprietary 
information of multiple parties.
    Some commenters suggest that Commerce itself should release non-
final business proprietary documents filed under the one-day lag rule 
by making technical changes to ACCESS to prevent such documents from 
becoming part of the official record. These commenters suggest that 
this would be a method of allowing ACCESS to effectuate service of such 
documents without reinstating service requirements outside of ACCESS. 
As stated in the Proposed Rule, 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.\7\ Should ACCESS technology capabilities 
change in the future, we will consider whether service of non-final 
bracketing documents can be effectuated upon filing on ACCESS. At this 
time, however, we believe that permitting electronic service of non-
final bracketing documents is efficient, consistent with modern 
professional practice, and sufficiently addresses the various concerns 
raised by parties.
---------------------------------------------------------------------------

    \7\ See Proposed Rule, 87 FR at 72920.
---------------------------------------------------------------------------

    Finally, certain commenters argue that if Commerce reinstates 
service requirements for non-final business proprietary documents filed 
under the one-day lag rule, such requirement should only apply to 
persons on the APO service list and not on non-APO authorized 
representatives or pro se parties because it creates a significant risk 
of an APO violation. We recognize there may be some risk of a potential 
APO violation if parties do not properly bracket business proprietary 
information in a non-final business proprietary submission. At the same 
time, we are cognizant that non-APO authorized representatives and pro 
se parties would benefit from service of such documents in defending 
their interests during a segment of the proceeding. We remind parties 
of their responsibility to properly safeguard business proprietary 
information.\8\ Commerce's regulations have required parties to 
identify whose business proprietary information is contained in a 
submission; this is not a new requirement.\9\ If a submitter cannot 
identify certain business proprietary information as definitively 
belonging to a non-APO authorized representative or pro se party, then 
it is the submitter's responsibility to bracket the information 
accordingly in the non-final business proprietary submission and 
consider whether service of the submission needs to be made. When 
preparing the final version of the submission, the submitter should 
assess whether the bracketing should be updated or corrected. On 
balance, we believe it is important to reinstate service requirements 
for non-final business proprietary documents filed under the one-day 
lag rule on all parties, whether or not they are APO-authorized, and 
are adopting this change.
---------------------------------------------------------------------------

    \8\ See, e.g., 19 CFR 351.305(a)(1) and 351.306(d).
    \9\ See 19 CFR 351.306(c)(1)-(2) (requiring a submitting party 
to identify, contiguously with each item of business proprietary 
information, the person that originally submitted the item).
---------------------------------------------------------------------------

    To be clear, the requirement to serve business proprietary 
documents filed under the one-day lag rule applies to non-final 
business proprietary documents. For final business proprietary 
documents, with or without bracketing corrections, and public versions 
of final business proprietary documents, the general rule applies that 
ACCESS will effectuate service, as outlined elsewhere in this final 
rule and in the Proposed Rule.

Request for Review

    Two commenters express concern over the requirement in proposed 
section 351.303(f)(2)(i) that requests for an expedited AD review, an 
administrative review, a new shipper review, or a changed circumstances 
review be served by personal service or first-class mail on each 
exporter or producer specified in the request. One

[[Page 67076]]

commenter argues that such delivery methods are inefficient, costly, 
and prejudice small- and medium-sized enterprises (particularly for 
overseas deliveries), and that publicly listed addresses are sometimes 
undeliverable or refuse service. Moreover, the commenter notes that the 
Federal Register already provides public notice of the initiation of 
such proceedings. Thus, the commenter proposes that Commerce permit 
parties to serve requests for these reviews through electronic means, 
unless there are no means for electronic service.
    Response: Upon consideration of these comments, we are amending the 
regulation so that requests for an expedited AD review, an 
administrative review, a new shipper review, or a changed circumstances 
review may be served via electronic service. Service of documents 
containing business proprietary information must be effectuated in 
accordance with the rules provided elsewhere in this final rule. 
Although the Federal Register provides public notice of the initiation 
of these proceedings, there is a delay between when parties may request 
these reviews and when Commerce will initiate the proceeding itself and 
publish the Federal Register notice. There is a benefit to service of 
requests for these types of proceedings because it may inform another 
party's decision whether to participate in the proceeding or to 
potentially comment on another party's request prior to a decision by 
Commerce to initiate the proceeding. Therefore, we are maintaining the 
requirement to serve requests for these types of reviews but are 
permitting parties to serve these requests via electronic service.

APO Applications Using Electronic Form ITA-367

    The only commenter remarking on this provision in proposed section 
351.305(b)(2) supports the codification of the APO application process 
to use electronic Form ITA-367, because it would expedite the APO 
application approvals by Commerce, as well as service of applications 
and updated service lists.
    Response: Upon consideration of this comment, we have made no 
changes to this provision from the Proposed Rule.

Service of Business Proprietary Documents to Newly Authorized APO 
Representatives

    Several commenters support the general proposal in proposed section 
351.305(c)(2) that representatives that are newly granted APO access 
would be responsible for requesting business proprietary documents that 
are no longer available on ACCESS from the party that made the business 
proprietary submission. However, one commenter notes that proposed 
section 351.305(c)(2) does not indicate the acceptable means of service 
for such documents, or whether a certificate of service would be 
required. Thus, the commenter suggests that Commerce amend 
subparagraphs (c)(2)(i) and (ii) to state that parties may agree upon 
any acceptable means of service listed in section 351.303(f)(1)(iii), 
and to state that a certificate of service is not required.
    Response: Upon consideration of these comments, we clarify that 
service via secure electronic transmission is permitted and that a 
certificate of service is not required and are amending this regulation 
accordingly.

Service of Business Proprietary Information

    Commenters generally support the proposal in proposed section 
351.306(c)(2) that when a party is not represented, or when its 
representative is not APO-authorized, another party need only serve 
that party or its representative its own business proprietary 
information, and not the business proprietary information of other 
parties. However, one commenter notes that in some instances a party 
files its own submission even when it is otherwise represented, and 
requests that Commerce clarify that a submitting party need only serve 
a party's representative rather than serve both the party and its 
representative.
    Another commenter requests that Commerce limit the service 
exceptions under section 351.306(c)(2) to parties and representatives 
who are not eligible to obtain approval for access under an APO. The 
commenter states that if a U.S. attorney is eligible to obtain APO 
access, it should be required to do so to receive business proprietary 
information, including that of its client. If the attorney is eligible 
to obtain APO access but simply chooses not to, the commenter asserts 
other parties should not be required to serve the attorney under the 
service exceptions under section 351.306(c)(2) for pro se parties and 
non-APO authorized representatives and suggests that Commerce could 
require that parties indicate in their entry of appearance if they are 
not eligible to submit an APO application and the reasons why they are 
ineligible to submit an APO application.
    Response: We clarify that a submitting party is required to serve 
the party or parties that are on the service list. If a party is not on 
the service list, but its representative is, the submitting party is 
only required to serve the party's representative, even if the party 
itself, and not its representative, filed the submission.
    In addition, we decline to adopt the suggestion that Commerce limit 
service exceptions under this provision to parties that are not 
eligible to obtain approval for access to an APO. There is no 
requirement to file an APO application, and we do not view it as 
appropriate to require a person to file an APO application simply 
because that person is an attorney. As such, we are not making changes 
to the regulations to limit the service exceptions in this manner.

Labor Factors of Production Valuation

    One commenter argues that if Commerce adopts its proposal to remove 
paragraph (c)(3) and redesignate paragraph (c)(4) as paragraph (c)(3) 
under proposed section 351.408, Commerce should also remove the 
reference to current paragraph (c)(3) in paragraph (c)(2). The 
commenter notes that paragraph (c)(2) currently reads: ``Except for 
labor, as provided in paragraph (d)(3) of this section, the Secretary 
normally will value all factors in a single surrogate country.'' The 
commenter argues that for consistency, that paragraph could be revised 
to state: ``The Secretary normally will value all factors in a single 
surrogate country.''
    Response: We agree and are amending the regulation accordingly.

Other Suggestions From Commenters

    Commenters recommended several modifications to the ACCESS system 
and filing procedures that were not covered or addressed in the 
Proposed Rule.

1. Commenter Suggestions Related to ACCESS

    Commenters suggested a variety of changes to ACCESS, including:
     creating a separate docket and separate notification 
digests for procedural documents such as APO applications, entries of 
appearance, and amendments thereto;
     adding additional notification digests;
     adding a ``released date'' column to show the date and 
time a document is made available to parties;
     extending the number of days business proprietary 
documents are available on ACCESS to 30 days;
     increasing the number of ACCESS proxy users, including a 
proposal to create firm-wide proxies;
     increasing the ACCESS file-size limit;

[[Page 67077]]

     increasing the number of files available for batch 
download;
     requiring optimization of PDFs for maximum compression; 
and
     consolidating all parts of a filing under one barcode.
    Response: We note that these suggestions are not responsive to the 
proposed regulatory amendments in the Proposed Rule. Thus, such 
modifications would be outside the scope of this rulemaking. However, 
Commerce is committed to improving the ACCESS system by implementing 
features that will foster efficiency and ease of use for the most users 
while staying within Commerce's resource constraints. As such, we will 
take these proposals into consideration and may address one or more in 
possible future rulemakings. To the extent consideration or 
implementation of certain new features would not require notice and 
comment, Commerce will consider these proposals and any new features 
adopted will be announced on the ACCESS website at https://access.trade.gov and included in the ACCESS Handbook.

2. Additional Commenter Suggestions

    Commenters also proposed three additional changes to Commerce's 
filing procedures that were not included in the Proposed Rule: amending 
section 351.309(d) to require rebuttal briefs to be due seven days 
after the due date for case briefs, rather than the current five days; 
amending section 351.303(b)(1) to set a filing deadline of 12:00 a.m. 
Hawaiian Standard Time, or at a minimum changing to a midnight Eastern 
Time deadline rather than 5:00 p.m. Eastern Time; and amending section 
351.303(b)(1) to deem the time of filing of a submission as the time 
the party begins the filing process, rather than the end time at which 
it is filed in its entirety.
    Response: Commerce has not adopted these three recommendations in 
this final rule. The Proposed Rule did not cover or address these 
regulatory provisions in sections 351.309(d) and 351.303(b)(1), and the 
comments are outside the scope of the modifications and additions to 
regulations that we proposed for comment.

Classification

Executive Order 12866

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

Executive Order 13132

    This 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 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 of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration at the proposed rule stage that this rule, if adopted, 
would not have a significant economic impact on a substantial number of 
small business entities under the provisions of the Regulatory 
Flexibility Act, 5 U.S.C. 605(b). The factual basis for the 
certification was published with the Proposed Rule and is not repeated 
here. We received no comments and were not made aware of any positions 
of opposition to the certification. As a result, a Final Regulatory 
Flexibility Analysis was not required and none was 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: September 25, 2023.
Lisa W. Wang,
Assistant Secretary for Enforcement and Compliance.

    For the reasons stated in the preamble, the Department of Commerce 
amends 19 CFR part 351 as follows:

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

[[Page 67078]]

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, 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.
* * * * *
    (1) * * *
    (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 comments 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) * * *

[[Page 67079]]

    (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)(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) * * *
    (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 the electronic filing of the submission in ACCESS, 
unless it is filed manually in accordance with paragraph (b)(2) of this 
section, or ACCESS is unavailable. If a submission is filed manually or 
ACCESS is unavailable, 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 the electronic filing of 
the submission in ACCESS, unless it is filed manually in accordance 
with paragraph (b)(2) of this section, or ACCESS is unavailable. If a 
submission is filed manually or ACCESS is unavailable, 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 in accordance with 
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 in accordance with 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 document, or a business proprietary document cannot be 
effectuated on ACCESS, the submitter must serve the recipient by 
electronic transmission. Generally, a business proprietary document 
must be served by secure electronic transmission. If the submitter is 
not able to use such a method, it may use an acceptable alternative 
method of service, including personal service, first-class mail, or 
electronic mail. Electronic mail may only be used as an acceptable 
alternative method of service for a business proprietary document under 
paragraph (f)(1)(ii)(B) 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 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. Service may be made by an electronic transmission 
method if the interested party that files the request has an electronic 
mail address for the recipient; otherwise, service must be made by 
personal service or first-class mail. 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

[[Page 67080]]

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 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. Service must be made in accordance with section 
351.303(f)(1)(iii). A certificate of service is not required.
    (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. Service must be made in accordance with section 
351.303(f)(1)(iii). A certificate of service is not required. 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).
* * * * *

0
14. In Sec.  351.408:
0
a. Revise paragraph (c)(2).
0
b. Remove paragraph (c)(3) and redesignate paragraph (c)(4) as 
paragraph (c)(3).

[[Page 67081]]

    The revisions read as follows:


Sec.  351.408   Calculation of normal value of merchandise from 
nonmarket economy countries.

* * * * *
    (c) * * *
    (2) Valuation in a single country. The Secretary normally will 
value all factors in a single surrogate country.
    (3) Manufacturing overhead, general expenses, and profit. For 
manufacturing overhead, general expenses, and profit, the Secretary 
normally will use non-proprietary information gathered from producers 
of identical or comparable merchandise in the surrogate country.

[FR Doc. 2023-21516 Filed 9-28-23; 8:45 am]
BILLING CODE 3510-DS-P