WORLD TRADE
ORGANIZATIONG/ADP/N/1/USA/1/Suppl.3
G/SCM/N/1/USA/1/Suppl.3
30 June 1998
(98-2580)
Committee on Anti-Dumping Practices
Committee on Subsidies and Countervailing MeasuresOriginal:  English
NOTIFICATION OF LAWS AND REGULATIONS
UNDER ARTICLES 18.5 AND 32.6 OF THE AGREEMENTS
United States
Supplement
The following communication, dated 15 June 1998, has been received from the Permanent
Mission of the United States.
_______________
TABLE OF CONTENTS
Page
INTERNATIONAL TRADE COMMISSION ...............................................................................3
19 CFR Parts 201 and 207 .....................................................................................................3Rules of Practice and Procedure ........................................................................................3
Background..................................................................................................................... .......3
Overview of the Amendments to the Regulations .................................................................4
Section-by-Section Analysis  of the Regulations....................................................................4
List of Subjects ............................................................................................................... .....18
Part 201 [Amended] ...........................................................................................................19
§201.11 – Appearance in an Inve stigation as a party ..........................................................19
Part 207 – [Amended] ........................................................................................................19
§207.3 – Service, filing, and ce rtification of  documents .....................................................19
§207.45 – Investigation to review outstanding dete rmination.............................................20
§207.46 – Investigations concerning certa in countervailing  duty actions ...........................20
Subpart F – Five-Year Reviews...........................................................................................20§207.60 – Definitions .......................................................................................................... 21
§207.61 – Responses to noti ce of institution .......................................................................21
§207.62 – Rulings on adequacy and natu re of Commission review....................................22
§207.63 Circulation of dr aft questionnaires.........................................................................23
§207.64 – Staff reports........................................................................................................ .23
§207.65 – Prehearing briefs .................................................................................................23G/ADP/N/1/USA/1/Suppl.3
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Page
§207.66 – Hearing.............................................................................................................. ..23
§207.67 – Posthearing briefs  and stat ements.......................................................................24
§207.68 – Final comments on informat ion ..........................................................................24
§207.69 – Publication of determina tions .............................................................................24
Annex A:  Sample Notice of Institution of Five-Year Review ........................................25
Annex B – Sample Schedule for Five-Year Reviews .......................................................28
Annex C – Parties Submitting Comments on Commission Notice of
Proposed Rulemaking ........................................................................................................29
DEPARTMENT OF  COMMERCE..................................................................................................32
19 CFR Parts 351 and 354 ...................................................................................................32
Anti-dumping and Countervailing Duty Proceedings:  Administrative
Protective Order Procedures;  Procedures for Imposing Sanctions for
Violation of a Protective Order ........................................................................................32
General background............................................................................................................. 32
Explanation of partic ular provisions....................................................................................34
Administrative Protective Or der Sanction  Procedures .......................................................50
Classification ................................................................................................................. ......50
List of Subjects in 19 CFR Parts 351 and 354 .....................................................................51
Part 351 – Anti-Dumping and Countervailing Duties ....................................................51
§351.103 – Central Records Unit and Administrative Protective Order Unit .....................51
§351.304 – Establishing business proprieta ry treatment of informa tion .............................52
§351.305 – Access to business prop rietary info rmation......................................................54
§351.306 – Use of business prop rietary info rmation...........................................................55
Part 354 [Amended] ...........................................................................................................56
§354.1 - [Amended]............................................................................................................. 56
§354.2 – Definitions ........................................................................................................... .56
§354.3 – Sanctions............................................................................................................. ..57
354.5 – Report of violatio n and invest igatio n......................................................................58
§354.6 – Initiation of proceedings .......................................................................................59
§354.7 – Charging letter ......................................................................................................5 9
§354.9 – Request for a hearing ............................................................................................60
§354.15 – [Amended] ..........................................................................................................60
§354.17 – [Amended] ..........................................................................................................60
§354.18 – Public notice of sanctions ...................................................................................60
§354.19 – Sunset............................................................................................................... ...61
Appendix to 19 CFR Part 351, Subpart C .......................................................................61G/ADP/N/1/USA/1/Suppl.3
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Federal Register/Vol. 63, No. 108/Friday, 5 June 1998/Rules and Regulations
INTERNATIONAL TRADE COMMISSION
19 CFR Parts 201 and 207
Rules of Practice and Procedure
AGENCY: United States International Trade Commission.
ACTION: Final rulemaking.
SUMMARY :  The United States International Trade Commission (the Commission) hereby amends
its Rules of Practice and Procedure concerning anti-dumping and countervailing duty investigations
and reviews in 19 CFR parts 201 and 207. The amendments establish procedures for five-year reviewsof anti-dumping and countervailing duty orders and suspension agreements that the Commission will
conduct pursuant to the provisions of section 751(c) of the Tariff Act of 1930,as amended (the
Act).DATES: In accordance with the 30-day advance publication requirement imposed by
5 U.S.C. 553(d), the effective date of these rules is 6 July 1998.
FOR FURTHER INFORMATION CONTACT : Marc A. Bernstein, Office of General Counsel,
US International Trade Commission (telephone: 202-205-3087,e-mail: mbernstein@usitc.gov), or
Vera A. Libeau, Office of Investigations, US International Trade Commission (telephone 202-205-
3176, e-mail: vlibeau@usitc.gov). Hearing-impaired individuals are advised that information on this
matter can be obtained by contacting the Commission's TDD terminal on 202-205-1810.
SUPPLEMENTARY INFORMATION:
Background
On 23 October 1997, the Commission published a Notice of Proposed Rulemaking (NOPR)
in the Federal Register. 62 F.R. 55185 (23 Oct. 1997). In the NOPR, the Commission proposed
procedures for five-year reviews it will conduct purs uant to section 751(c) of the Act. Some of the
proposed procedures were reflected in proposed amendments to the Commission's Rules of Practiceand Procedure. The Commission additionally described in the preamble and annexes to the NOPR
other proposed procedures which were not incorporated into the proposed regulations.
The Commission invited public comment on its proposed regulations, the procedures
discussed in the NOPR preamble and annexes, and an y other issues pertaining to five-year reviews.
The Commission received 25 sets of first-round comments from 23 different submitters, and 15 sets
of rebuttal comments from 12 different submitters. Those entities that submitted written comments, as
well as the short-form designations that will be us ed to refer to them, are listed in Annex C to this
notice. Additionally, the Commission conducted a public hearing on 26 February 1998, concerning
five-year reviews at which it heard testimony from numerous interested persons.
The Commission carefully considered all comments that it received.  The Commission's
response to those comments that relate to the subjec ts addressed in this rulemaking notice is provided
below in the section-by-section analysis of the rulemaking amendments. The Commission appreciates
the time and effort the commenters and hearing participants took to present their views, and believesthat the comments and hearing testimony have contributed to improved regulations.G/ADP/N/1/USA/1/Suppl.3
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The Commission has determined that these regulations do not meet the criteria described in
section 3(f) of the Executive Order 12866 (58F.R. 51735, 4 Oct. 1993) (EO) and thus do not
constitute a significant regulatory action for purposes of the EO. The Regulatory Flexibility Act
(5 U.S.C. 601 note) is inapplicable to this rulemaking, because it is not one for which a NOPR is
required under 5 U.S.C. 553(b) or any other st atute. Although the Commission published a NOPR,
these regulations are "agency rules of procedure and practice,'' and thus are exempt from the notice
requirement imposed by 5 U.S.C. 553(b).
The sample notice of institution reproduced at Annex A to this notice constitutes an
information collection request subject to the provisions of the Paperwork Reduction Act, 44 U.S.C.
3501 et seq.  After consultation with the Office of  Management and Budget (OMB), the Commission
has concluded that the collection of information that will be undertaken pursuant to the notice ofinstitution is encompassed within a clearance OMB has given the Commission under the Paperwork
Reduction Act to collect information for anti-dumping and countervailing duty investigations and
reviews, including those undertaken pursuant to section 751 of the Act. This clearance has been
assigned OMB Control Number 3117-0016.
Pursuant to the Contract with America Advancement Act of 1996 (Pub.L. 104-121), the
Commission is submitting a report to the General Accounting Office and to each House of Congress
describing these regulations and attaching their text.
Overview of the Amendments to the Regulations
The final regulations and procedures for five-year reviews contain four principal changes
from those proposed in the NOPR. These changes are summarized here. A comprehensive explanation
of the changes is provided in the section-by-section analysis below.
First, responses to the notice of institution will be due 50 days after its publication in the
Federal Register. Thus, responses to the Commission's notice need not be filed until 30 days after the
date on which the Department of Commerce (Comme rce) will inform the Commission if no domestic
interested party has filed a Notice of Intent to Participate in the five-year review.
Second, the notice of institution has been revi sed significantly. In particular, the Commission
has reduced the amount of empirical data that interested parties will be requested to submit in their
responses.  Additionally, interested parties will make a single submission to the Secretary.
Third, the Commission has decided not to adopt numerical guidelines concerning the
adequacy, in the aggregate, of interested party responses to the notice of institution. The Commission
will make adequacy rulings on a case-by-case basis taking several considerations into account.
Fourth, the Commission has decided not to adopt a regulation precluding interested parties
from making data collection requests after submission of the comments on the draft questionnaires.
Nevertheless, the regulation the Commission has promul gated states that it will entertain such late
requests for data collection only in compelling circumstances.
Section-by-Section Analysis of the Regulations
Section 201.11
The Commission has amended section 201.11 by adding sections 201.11(b)(4) and (b)(5),
which govern the filing of entries of appearance in five-year reviews. Section 201.11(b)(4), which
states that entries of appearance are due 21 days after publication of the notice of institution, isG/ADP/N/1/USA/1/Suppl.3
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identical to the provision proposed in the NOPR. Stewart requested that the 21-day period
[[Page 30600]] for filing entries of appearance be extended to 30 days. The Commission has retained
the 21-day period, which is the same period used in Commission investigations other than original
anti-dumping and countervailing duty investigations.
Section 201.11(b)(5) concerns the filing of entries of appearance in a "full'' five-year review.
(A "full review'' is any five-year review except one that has been terminated by Commerce pursuant to
section 751(c)(3)(A) of the Act or that has been expedited by the Commission pursuant to
section 751(c)(3)(B) of the Act.) This provision states that entries of appearance in full reviews may
be filed within the period specified in the Notice of Scheduling the Commission will issue pursuant to
section 207.62(c). The Commission has not established a fixed date, as it proposed to do in the NOPR,
to maximize its flexibility in scheduling five-year reviews. Nevertheless, as indicated in the finalsentence of section 201.11(b)(5), parties will be provided a minimum of 45 days to file entries of
appearance in full reviews.  Stewart and Collier objected to any provision permitting parties to file
entries of appearance after commencement of a full review. The Commission has decided to retain
section 201.11(b)(5) to maximize participation in full reviews.
The Commission has not made other amendments to section 201.11requested by commenters.
Section 201.11(a), as currently written, expressly authorizes industrial users and certain consumer
organizations to enter appearances as parties in investigations under part 207. New section 207.60(a)
makes clear that this provision applies to five-year reviews. Consequently, no further amendment to
section 201.11, such as the one advocated by Canada, is needed to authorize industrial users andconsumer organizations to appear as parties in five-year reviews.
The Commission has declined to modify the regulations to "encourage'' interested parties to
provide attorneys for industrial users and consumer groups with access to business proprietary
information (BPI) under administrative protective order (APO), as requested by Hogan and H&H.
Sections 777(b)(1) and (c) of the Act require the Commission to release BPI under APO to "interested
parties.'' Under section 771(9) of the Act, industrial users or consumers are not "interested parties.''
Interested parties may elect to release information not acquired under APO under such terms and
conditions as they designate to parties to a Commission investigation or review that do not have
"interested party'' status.
Section 207.3
The Commission has amended section 207.3(b) to require hand or overnight service of
prehearing briefs, hearing testimony, and posthearing briefs in five-year reviews. The amendment is
identical to the one proposed in the NOPR.
Hoogovens proposed that the regulation be amende d to require each party to serve its entry of
appearance in a five-year review by hand or express mail to all parties indicated on the Commerce
service list for the most recent administrative review pertaining to the order(s) that are the subject of
the five-year review. The Commission has not adopted this proposal because it does not see the need
for expeditious service of entries of appearance on parties to a Commerce proceeding that mayor maynot choose to appear in the Commission's five-year review.
Stewart proposed that the regulation be amended to require hand or overnight service of final
comments filed pursuant to section 207.68.The amendment to section 207.3 is designed to make
service requirements in five-year reviews the same as those in original anti-dumping andcountervailing duty investigations. The Commission does not require hand or overnight service for
final comments in original investigations.G/ADP/N/1/USA/1/Suppl.3
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Section 207.45
The Commission has amended section 207.45, which concerns changed circumstances
reviews pursuant to section 751(b) of the Act, to change the statutory cross-reference in
section 207.45(a) so it specifically cites section 751(b). The amendment is identical to that proposedin the NOPR.
Section 207.46
The Commission has amended section 207.46, an interim regulation that establishes
procedures for investigations under section 753 of the Act, which concerns countervailing duty orders
issued under section 303 of the Act without an injury determination by the Commission. Theamendments, which clarify the section's provisions and modify its cross-references in light of the
other changes to the regulations made in this rulemaking, are identical to those proposed in the
NOPR.
Section 207.60
Section 207.60 is a new provision that defines certain terms used in new Subpart F of
Part 207 concerning five-year reviews. The terms de fined are "five-year review,'' "expedited review,''
"full review,'' and "notice of institution.''
The definition of "five-year review'' has been revised to clarify that generic references to
"investigations'' in Part 201 or in subpart A of Part 207 are applicable to five-year reviews, unless
superseded by a Subpart F regulation of more specific application.
The definitions of "expedited review'' and "full review'' are new, although each term was used
in several places in the NOPR. An "expedited review'' is a five-year review that the Commission has
expedited pursuant to section 751(c)(3)(B) of the Act. A "full review'' is any five-year review except
one that has been terminated by Commerce pursuant to section 751(c)(3)(A) of the Act or that has
been expedited by the Commission pursuant to section 751(c)(3)(B) of the Act.
The definition of "notice of institution'' is identical to that proposed in the NOPR. The NOPR
proposed definitions for the terms "domestic like product,'' "domestic industry,'' "expedited
determination,'' and "subject merchandise.'' The Commission has deleted these definitions on the
grounds they are unnecessary. This change renders the comments directed to these proposed
definitions moot.
Section 207.61
Section 207.61 is a new provision concerning responses to the notice of institution.
Sections 207.61(a) and 207.61(b) have changed substantially from the NOPR.
Section 207.61(a): When Responses to Notice of Institution Must be FiledUnder section 207.61(a), interested parties must submit their responses to the Commission's
notice of institution no later than 50days after its publication in the Federal Register. This response
period is longer than the 30-day response period proposed in the NOPR.  The Commission has made
this change in response to both the comments to the NOPR and Commerce's interim final rules for
five-year reviews.
Many commenters objected to the proposed requirement that all interested parties file
complete responses to the notice of institution within 30 days. Commenters stated two general typesG/ADP/N/1/USA/1/Suppl.3
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of objections. The first objection was based on section 751(c)(3)(A) of the Act, which directs
Commerce to terminate a five-year review within 90 days when no domestic interested party responds
to Commerce's notice of initiation.  Respondent interested parties (a term that will be used to refer to
interested [[Page 30601]] parties described in sections 771(9)(A) and (B) of the Act, encompassing
US importers, foreign producers, and exporters of subject merchandise, and governments of thecountries in which subject merchandise is produced or exported) objected to being required to submit
substantive responses to the notice of institution before any domestic interested party (a term that will
be used to refer to interested parties described in section 771(9)(C)-(G) of the Act, encompassing
domestic producers of the like product, domestic worker groups, and associations of such groups)
indicated its intent to participate in the five-year review. They contended that proposed
section 207.61(a) placed undue burdens on respondent interested parties by requiring them to respond
to the notice of institution even when no five -year review would ultimately be conducted.
The second objection was that the 30-day time period specified in the NOPR for filing
responses to the notice of institution was too short. Schagrin requested that the comment period be
extended to at least 37 days; Hoogovens requested that it be extended to 45 days; Eurofer and JMC
requested that it be extended to 60 days. By contrast, Cement Committee supported the 30-day timeperiod.
On 20 March 1998, Commerce published in the Federal Register its interim procedures for
five-year reviews. These procedures specify that: (1) domestic interested parties must file a Notice of
Intent to Participate in the five-year review no la ter than 15 days after initiation; (2) Commerce will
notify the Commission no later than 20days after initiation when no domestic interested party has
filed a response to its notice of initiation; and (3) Commerce will notify the Commission no later than
40 days after initiation when no domestic interested party has responded adequately to its notice of
initiation.63 F.R. 13516, 13524-25 (20 Mar. 1998).
In light of Commerce's interim procedures, the Commission has adopted a 50-day deadline
for responses to the notice of institution. Consequently, respondent interested parties should know
whether filing a response to the Commission's notice of institution is unnecessary because no
domestic interested party has filed (1) a Notice of Intent to Participate with Commerce or (2) an
adequate response to Commerce's notice of initiation. Additionally, a 50-day deadline will provideample time for interested parties to compile in formation and prepare responses to the notice of
institution.
Section 207.61(b): Content of Responses to Notice of Institution
Section 207.61(b) addresses the content of the responses to the notice of institution. It
combines aspects of the proposed versions of section 207.61(b) and section 207.61(c), and has beenrevised significantly from the NOPR. Section 207.61(b) describes the content of the response to the
notice of institution in general terms. A sample notice of institution is attached at Annex A to this
notice. It was also revised significantly from the version proposed in the NOPR. The discussion below
explains the changes in the notice and the regulation.
The proposed notice of institution published in the NOPR drew widely divergent reactions
from commenters. Some commenters criticized the Commission for seeking too much data upon
initiation. Schagrin and Stewart contended that the Commission's proposal placed undue burdens on
interested parties and maintained that the Commission should not seek empirical data (with the
possible exception of shipment data) in the notice of institution that it would ultimately seek inquestionnaires in full reviews. JMC criticized the Commission's proposal as excessively burdensome
for foreign producers, which it contended should be required only to produce data on total shipments.G/ADP/N/1/USA/1/Suppl.3
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On the other hand, several commenters requested that the Commission seek even more
information in the notice of institution than proposed in the NOPR. Canada requested that all
interested parties be required to submit purchaser lists. ECS requested that domestic producers submit
five years of data concerning their capital and research and development expenses. Eurofer requested
that domestic producers be asked about the sourcing for their inputs. Micron requested that domesticproducers be asked whether any improvements in their condition were related to the order or
agreement under review. Several commenters repr esenting domestic interests requested that the
Commission request foreign producers to provide all types of data, including financial information, it
was seeking from domestic producers. Quebec proposed addressing additional questions to domestic
producers concerning market share and captive consumption and suggested that interested parties be
required, rather than merely invited, to assert arguments concerning the domestic like product in their
responses to the notice of institution.
Commenters also disagreed on the utility of the Commission's proposal that interested parties
be asked to submit projections of empirical data for the current calendar year. Four commenters
supported this proposal. Six opposed it and suggested that the Commission instead seek interim period
data, as it currently does in questionnaires in original anti-dumping and countervailing dutyinvestigations. Three commenters suggested that, if the Commission should decide to seek
projections, the data should be provided in a different format than proposed in the NOPR.
After review of the comments and hearing testimony, the Commission has decided to make
several major changes to the notice of institution. First, it has significantly reduced the amount ofempirical data requested in the notice. Second, it has revised the question requesting a statement on
the likely effects of revocation and termination to request interested parties to address the factors
specified in section752(a) of the Act. Third, it has edited or eliminated several narrative questions.
Fourth, it has changed the format of the response to the notice of institution so that it will be a single
document filed with the Secretary, instead of separate documents filed with the Secretary and theOffice of Investigations.
The Commission has minimized the amount of empirical data requested in the notice of
institution to reduce both the burdens imposed on interested parties at the outset of a review and the
likelihood that interested parties will need to respond to duplicative information requests should therebe a full review. In terms of empirical data, domestic producers will be requested to submit their
production quantity and the quantity and value of US commercial shipments for the preceding
calendar year. Importers will be requested to submit the quantity and value of their US imports and
their US commercial shipments of the subject imports for the preceding calendar year. Foreign
producers of subject merchandise will be requested to submit their production quantity and the
quantity and value of US exports for the preceding calendar year.
The Commission recognizes that it is requesting submission of considerably less empirical
data in response to the notice of institution than it proposed in the NOPR. As authorized by the Act,
the Commission will reach an expedited determination "without further investigation,'' and will not
generate additional factual information if it decides to conduct an expedited review. Instead, as
contemplated by section [[Page 30602]] 751(c)(3) (B) of the Act, the Commission will rely on the
facts available, in accordance with section 776 of the Act, in making its determination. The
Commission's use of facts available, which is described below in detail in the discussion of
section 207.62(e), may include reliance on adverse inferences against interested parties that do not
cooperate with information requests, as authorized by section776(b) of the Act.
To facilitate the Commission's ability to use facts available and take adverse inferences in
expedited reviews, the Commission has revised the question requesting a statement of the likely
effects of revocation or termination of the order or agreement under review. The question nowG/ADP/N/1/USA/1/Suppl.3
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explicitly requests that interested parties address the factors the Commission must examine under
section 752(a) of the Act when making a determination in a five-year review.
Additionally, the Commission has revised or eliminated several other narrative questions in
the notice of institution. A new instruction requests unions or worker groups to identify the firms atwhich the workers they represent are employed. The wording on the question requesting identification
of significant changes in supply and demand has been revised. The questions regarding cumulation
and the submission of "other information or data'' have been eliminated.
The Commission has retained the question giving interested parties the option of stating
whether they agree with the definitions of domestic like product and domestic industry that the
Commission reached in its original determination(s). Several commenters representing domesticinterests argued that the Commission should reconsider its original domestic like product
determination only in exceptional circumstances; Stewart requested that the regulations contain an
express "presumption'' that the domestic like product in a five-year review will be the same as in the
original investigation. On the other hand, several commenters representing respondent interests
advocated that the Commission retain the discretion to consider domestic like product issues in five-year reviews; Canada requested promulgation of a regulation to this effect.
In appropriate circumstances, the Commission may revisit its original domestic like product
and domestic industry determinations in five-year reviews. For example, the Commission may revisit
its like product determination when there have been significant changes in the products at issue sincethe original investigation or when domestic like product definitions differed for individual orders
within a group concerning similar products. Accordingly, interested parties will have the opportunity
to address domestic like product and domestic industry issues in their responses to the notice of
institution. As explained further below in the discussion of section 207.62, the existence of significant
domestic like product issues is a factor that the Commission may take into account in determiningwhether to conduct a full review. The Commission does not believe a regulation on this issue is
necessary, however.
In the regulations, the major drafting change has been the consolidation of proposed
section 207.61(b) and section 207.61(c) into a single section 207.61(b). In the interest of transparencyand convenience, the entire response to the notice of institution will be filed with the Secretary and
will be subject to the requirements of sections 201.6, 201.8, and 207.3. (One commenter, Stewart,
criticized the bifurcated filing process proposed in the NOPR on the grounds it would likely result in
significant non confidential information being submitted to the Office of Investigations and therefore
unavailable for public inspection.) As with the proposed regulations, the final version of
section 207.61(b) does not specify each information request made in the notice of institution. Because
the regulation is general in nature, the Commission will not elaborate in the regulation on theobligation of interested parties to respond to particular requests, as advocated by Pistachio Producers.
As the Commission stated in the NOPR preamble, interested parties will only be required to provide
information in their possession.
Section 207.61(c): When Requested Information Cannot Be Supplied
Section 207.61(c) addresses situations in which an interested party cannot furnish the
information requested in the notice of institution in the form or manner requested. The section has
been revised so that it conforms more closely to section 782(c)(1) of the Act than did the proposed
provision.G/ADP/N/1/USA/1/Suppl.3
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Section 207.61(d): Submissions by Persons other than Interested Parties
Section 207.61(d) authorizes persons who are not interested parties to submit to the
Commission information relevant to a five-year review. It is unchanged from proposed
section 207.61(e) in the NOPR, except for the due date of the submission. This submission is now due50 days from publication of the notice of institution, the same date on which interested party
responses to the notice of institution must be submitted.
The Commission will consider any information submitted pursuant to section 207.61(d) in
making a determination in a full or expedited review. The Commission will also consider this
information in making rulings on aggregate interested party adequacy. It will not use such material,
however, to serve as a substitute for individual interested party responses, as suggested by H&H,Hogan, and Quebec.
Section 207.62
Section 207.62 is a new provision addressing Commission rulings on adequacy of interested
party responses. It also describes procedures in expedited reviews. Its title has been revised to
describe its purpose more accurately.
How the Commission Will Determine Whether to Expedite Reviews
Many comments addressed the discussion in the NOPR preamble concerning how interested
party responses will be reviewed for adequacy and what standards the Commission will use to
determine whether to conduct a full review or an expedited review. This section will discuss five
issues that were the subject of comment: (1) Ho w the Commission will evaluate individual interested
party responses for adequacy; (2)which groups of interested parties the Commission will examine onan aggregate basis for adequacy; (3) what standards the Commission will use to determine whether
interested party responses are adequate on an aggregate basis; (4) the circumstances in which the
Commission may exercise its discretion to conduct a full review even when interested party responses
are inadequate; and (5) the consequences of inadequate interested party responses.
Evaluation of Individual Interested Party Responses .  Some commenters addressed how the
Commission should evaluate the adequacy of individual interested party responses. Fuji and JISEA
asserted that the Commission should require a "r igorous completion standard.'' By contrast, H&H,
Schagrin, and Stewart argued against any practice where the Commission would consider an
individual response per se inadequate if it were incomplete in any respect.
The Commission initially intends to address the evaluation of individual interested party
responses on a case-by-case basis, rather than providing specific guidance at this time. As five-year
reviews proceed and the Commission gains experience in resolving these issues, it may be in a
[[Page 30603]] better position to address these issues categorically.
The preamble to the NOPR stated that the Commission would review each individual
interested party response to the notice of institution for completeness immediately upon its receipt,
would attempt to notify each interested party of any deficiencies in its response to the extent
practicable, and would attempt to provide each interested party with approximately five to ten days in
which to remedy and explain the deficiencies. The Commission has not changed its intentions in this
regard. Nevertheless, it declines to adopt the suggestion of Eurofer, H&H, and Thailand that it codifyin the regulations its procedures for notification. The Commission does not believe that it is necessary
for the regulations to describe these procedures with the degree of specificity desired by these
commenters.G/ADP/N/1/USA/1/Suppl.3
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Which Groups Will Be Evaluated on an Aggregate Basis . In the NOPR preamble, the
Commission proposed to evaluate on an aggregate ba sis the adequacy of responses from two distinct
groups of interested parties:(1) Interested parties desc ribed in sections 771(9)(C ), (D), (E), (F),and (G)
of the Act (``domestic interested parties,'' consisting of, inter alia, US producers of the domestic like
product and labour unions or groups of workers whic h are representative of an industry producing the
domestic like product); and (2) interested parties described in sections 771(9)(A) and (B) of the Act
("respondent interested parties,'' consisting of, inter alia, US importers and foreign exporters or
producers of subject merchandise and subject country governments).
Some commenters advocated that the Commi ssion subdivide these two groups. JMC asserted
that the Commission should divide the domestic interested party group into two subgroups--one
encompassing producers and one encompassing worker groups--and deem the domestic interestedparty response inadequate unless both subgroups submitted adequate responses. Similarly, Cement
Committee, Collier, Micron, and Stewart proposed  that the Commission divide the respondent
interested party group into two subgroups--one encompassing US importers and one encompassing
foreign producers of subject merchandise--and deem the respondent interested party response
inadequate unless both subgroups submitted adequate responses.
The Commission has declined to adopt either of these proposals. The Commission does not
believe it is appropriate to analyze the adequacy of responses this narrowly. Consequently, the
Commission's examination of aggregate adequacy will focus on domestic interested parties and
respondent interested parties, rather than on several discrete subgroups.
Standards Used for Determining Adequacy of Aggregated Responses .  The comments
addressing the standards that the Commission should use in determining the adequacy of the
aggregated responses focused on three areas. First, several commenters asserted that the Commission
should adopt considerably more lenient standards for determining aggregate adequacy than proposedin the NOPR. Second, commenters disputed the extent to which standards used by Commerce
pursuant to sections702(c)(4) and 732(c)(4) of the Act to determine whether an anti-dumping or
countervailing duty petition is filed by or on behalf of a domestic industry are applicable to
Commission rulings on adequacy in five-year reviews. Third, commenters addressed how the
Commission should treat related parties in deciding whether the domestic interested party responsewas adequate.
Some commenters proposed that the Commission adopt very low adequacy thresholds. At the
26 February hearing, one representative of domestic interests stated that the Commission should
conduct a full review as long as any domestic indus try participant desired such a review. Similarly,
one respondent representative stated that a full review should be conducted as long as a single
committed respondent responds to the notice of institution.
The Commission has decided not to adopt a "single response'' adequacy standard. When
interested parties do not show a sufficient willingness to participate in a review and to submit
requested information, conducting a full review may not be an efficient exercise of the resources of
either the Commission or the parties. That a single domestic interested party or respondent interestedparty has filed an adequate response to the notice of institution is not per se sufficient indication that
either pertinent group of interested parties as a whole is interested in a full review.
The Commission has decided not to adopt the numerical guidelines proposed in the NOPR.
The Commission proposed these guidelines in the intere st of providing guidance to interested parties
concerning when response rates would be considered sufficiently high or low to provide a strong
indication of the adequacy or inadequacy of aggregat e interested party responses. Upon review of the
comments and hearing testimony, the Commission has concluded that any benefits that would result
from the articulation of numerical guidelines for adequacy or inadequacy are offset by the potentialG/ADP/N/1/USA/1/Suppl.3
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that parties appearing before the Commission would: (1) devote extensive effort to arguing that
interested parties satisfied or failed to satisfy the numerical guidelines; or (2) confuse any numerical
guidelines with a representation requirement, as some commenters did.
The Commission did not intend in the NOPR to equate adequacy with industry representation
requirements. It agrees with several commenters' statements that the representation requirements in
sections702(c) and 732(c) of the Act do not apply to five-year reviews.  Consequently, the
Commission has not adopted the suggestions of Fu ji/JISEA or Schagrin that it should consider
domestic industry statements of "support'' for continuation of an order in determining whether the
domestic interested party response is adequate.
The Commission will evaluate the adequacy of interested party responses on a case-by-case
basis. The Commission will take into account several considerations in evaluating the adequacy of
interested party responses. Because both the considerations examined and the weight they are
accorded may vary from review to review, the Commission does not believe that the adequacy
standards can be articulated in the form of a regulation, as requested by Pistachio Producers.
In evaluating the adequacy of aggregate interested party response, the Commission will
examine several considerations, including:
• The level of interested parties' responses. This encompasses an examination of the responding
parties' share of domestic production (for domestic interested parties) or of subject imports or foreign
production or exports to the United States of the subject merchandise (for respondent interested
parties) for the most recent calendar year. While the Commission will generally use quantity-based
production or import data in evaluating adequacy, it may use value data when such data provide the
sole aggregate measure of production or sales for the pertinent domestic like product(s). (This may
occur, for example, when a domestic like product includes both finished articles and parts orcomponents.) As stated above, the Commission has not provided quantitative measures of what will
likely constitute an "adequate'' or ``inadequate'' aggregate response. Adequate responses by unions or
[[Page 30604]] worker groups that are interested parties pursuant to section 771(9)(D)of the Act will
be counted as being equal to the production of the domestic like product of the firms at which the
workers in the group or union are employed.
• The structure of the industries in question. As stated in the NOPR, a response rate that may
seem to be inadequate for a highly concentrated industry may be adequate for a highly fragmented
industry.
• The prevalence of related parties. Several commenters representing domestic interests
requested that the Commission per se disregard non responses of domestic producers that are "related
parties'' under section 771(4)(B) of the Act in evaluating whether domestic interested party responsesare adequate. By contrast, several commenters representing respondent interests requested that the
Commission disregard non responses of related pa rty domestic producers only when circumstances
would support the exclusion of those producers from the domestic industry under the "appropriate
circumstances' 'standard that the Commission applies in original anti-dumping and countervailing
duty investigations.
The Commission has determined not to adopt either of these proposals for purposes of
making adequacy rulings. Instead, the Commission will evaluate the significance of non responses of
related parties on a case-by-case basis. It believes that the per se rule urged by the commenters
representing domestic interests is too inflexible and is inconsistent with Commission practice. While
the standard urged by the respondent commenters is ostensibly consistent with Commission practice,
and is a standard the Commission intends to apply in making final determinations in five-yearG/ADP/N/1/USA/1/Suppl.3
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reviews, it is not a practical standard to use in making adequacy rulings. When the Commission
makes such a ruling, it will frequently have insu fficient information in the record to make a
conclusion concerning whether "appropriate circumstances'' exist to exclude a related party from the
domestic industry.
• The ability of particular foreign producers to export to the United States. JMC and Schagrin
questioned the inclusion of this criterion. The Commission believes that it can be relevant in certain
circumstances, such as when particular foreign producers do not manufacture a version of the subject
merchandise that can be exported to the United States.
• The extent to which subject imports appear to have been excluded from the US market by the
order or suspension agreement under review.    Discretionary Factors Used in Determining Whether to
Conduct a Full Review. Section 751(c)(3)(B) of the Ac t provides that the Commission "may issue'' an
expedited determination when interested party responses are inadequate. Hence, the Commission has
the discretion to conduct full reviews when the dom estic and/or respondent interested party responses
are inadequate. In this regard, the Commission has adopted Stewart's suggestion of inserting in the
first sentence of section 207.62(c) the language "or otherwise determines that a full review should
proceed,'' to underscore the Commission's discretion to conduct full reviews. The Commission has not
adopted the suggestion of JMC to circumscribe its exercise of discretion so that it retains discretion to
conduct a full review only when respondent interested party responses are inadequate.
Stewart requested that the Commission indicate in this notice circumstances in which it may
exercise its discretion to conduct a full review notwithstanding inadequate interested party responses.
The Commission has identified two such circumstances:
• Mixed responses in grouped reviews. In the NOPR, the Commission invited parties to
comment on the appropriateness of making expedite d determinations in grouped reviews involving
subject merchandise from several countries, where domestic interested party responses are adequate
and responses from the respondent interested parties are adequate with respect to some of the
countries in the group but inadequate with respect to others. Canada, Schagrin, and Thailandcommented that in such circumstances it is appropriate for the Commission to render expedited
determinations with respect to the subject countries for which there has been inadequate respondent
interested party response. These commenters did not agree among themselves, however, on the
implications of such a decision on the use of facts available regarding cumulation in the full review(s).
Stewart, by contrast, stated that the Commission should decline to reach expedited determinations insuch situations from the standpoint of administrative efficiency. Collier stated it would prefer for the
Commission not to render expedited determinations in grouped reviews if the alternative was adoption
of a practice where cumulation in the full review(s) is limited or precluded.
The Commission shares Stewart's concern that making multiple, non-simultaneous
determinations concerning a single domestic like product is likely to be administratively inefficient.
For this reason, in grouped reviews where aggregate domestic interested party responses are not
inadequate and responses from the respondent interested parties are adequate with respect to some of
the countries in the group but inadequate with respect to others, the Commission will normally
conduct full reviews for all countries in the group.
• The existence of significant domestic like product issues.  Each interested party has the option
of asserting arguments concerning the definition of the domestic like product in its response to the
notice of institution. Should the Commission determine that there is a need in  the five-year review to
re-examine the domestic like product definition made in the original determination, it may determineto conduct a full review even in circumstances when domestic and/or respondent interested partyG/ADP/N/1/USA/1/Suppl.3
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responses are inadequate. This will enable the Commission to obtain data in a full review concerning
the potential domestic like products.
Several commenters addressed the question of the implications of a tie vote on whether to
expedite a review; one commenter, Stewart, reque sted that the Commission promulgate a regulation
concerning tie votes. The Commission agrees with the commenters that the tie vote provision in
section 771(11) of the Act is not applicable to a Commission decision on whether to expedite a
review. Consequently, a decision to expedite a review  will require a majority vote of the Commission.
The Commission has not, however, promulgated a regula tion to that effect in the current rulemaking,
which focuses solely on procedural issues. The Commission has further declined to promulgate the
regulation requested by Stewart stating that the Commission will conduct a full review based on the
vote of a single Commissioner. The Commission does not believe that a vote of a singleCommissioner should preclude the Commission from conducting an expedited review when a
Commission majority has concluded that conducting an expedited review is appropriate.
Consequences of Inadequate Interested Party Responses . Several commenters requested that
the Commission state with particularity the consequences of inadequate interested party responses.Pistachio Producers requested the promulgation of one [[Page 30605]] regulation concerning adverse
inferences and another concerning Presidential embargo situations. Several commenters proposed that
the Commission should make a "negative'' determination (i.e., that revocation of an order, or
termination of a suspension agreement, under review  would not be likely to lead to continuation or
recurrence of material injury) in any review expedited because of inadequate domestic interested partyresponse. Micron and Schagrin proposed that the Commission should make an "affirmative''
determination (i.e., that revocation of an order, or termination of a suspension agreement, under
review would be likely to lead to continuation or recurrence of material injury) whenever it found that
the respondent interested party response was inadequate.
The Commission has decided not to adopt any of these proposals. The statute authorizes an
"automatic'' determination in only one instance.  Section 751(c)(3)(A) of the Act directs Commerce to
issue a final determination terminating a review when  there is no domestic interested party response to
its notice of initiation. The Commission believes issuance of the type of per se rules advocated by
some commenters that inadequate domestic (or respondent) interested party response willautomatically lead to issuance of a negative (or affirmative)determination would be inconsistent with
section 752(a) of the Act.
The Final RegulationSection 207.62(a): Basis for Rulings on Adequacy . Section 207.62(a)is a new provision intended to
make explicit a concept several commenters found implicit in the proposed regulations and numerousothers endorsed--that the Commission will generally decide the questions of adequacy and whether to
conduct an expedited review on an individual order, rather than a group wide, basis.
Section 207.62(a)further indicates that when a particular order encompasses multiple domestic like
products on which the Commission originally made separate affirmative determinations, the
Commission will make a separate ruling on the adequacy of the interested party responses andwhether to conduct an expedited review for each domestic like product. This concept was endorsed by
Collier, Fuji, and JISEA.
Section 207.62(b): Comments on Adequacy . Section 207.62(b),concerning comments to the
Commission regarding adequacy, is based on propo sed section 207.62(a). Section 207.62(b) contains
several changes from proposed section 207.62(a).
First, the Commission has increased the page limit for the comments from five to 15 pages.
Several commenters complained that the five-p age limit proposed in the NOPR was insufficient.G/ADP/N/1/USA/1/Suppl.3
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Page 15
Canada and Quebec requested that the page limit be increased to 15 pages; Fuji and JISEA requested
that the page limit be increased to 20 pages; Cement Committee, Collier, and Stewart requested that
the page limit be increased to five pages per subject country; Thailand requested that the page limit be
removed. After consideration of the comments, the Commission has decided that some increase in the
page limit is warranted. Nevertheless, the Commission does not agree that the limit should either beeliminated or increased to the extent requested by some of the commenters. Comments under
section 207.62(b) are designed to be a succinct expression of views on a single issue. They are not
intended to be briefs on the merits. Consequently, the Commission believes that a 15-page limit is
appropriate.
An additional modification to section 207.62(b)(2) makes clear that in a grouped review, only
one set of comments may be filed per party. This  is consistent with current Commission practice.
There are also several changes in terminology throughout section207.62(b). The terms
"expedited review'' and "party to the five-year review'' are used to conform the language in
section 207.62(b) to that in other provisions in Subpart F.
Section 207.62(c): Notice of Scheduling for Full Reviews . Section207.62(c) is based on
proposed section 207.62(b). It has been retitled more accurately to reflect its subject matter--the notice
of scheduling the Commission will issue if it determ ines to conduct a full review. The only change to
the text of proposed section 207.62(b) is the addition of a clause to make clear that the Commission
may decide to conduct a full review even when inte rested party responses to the notice of institution
are inadequate.
Annex B to this notice contains a sample schedule for a full five-year review. This sample
schedule contains several changes from the one proposed in the NOPR. Sp ecifically, the interval
between the issuance of draft questionnaires and the due date for party comments on questionnaireshas been reduced; the time allowed for questionnaire responses has been decreased; and the
prehearing report will be issued earlier than in the proposed schedule. The interval between the
issuance of the prehearing report and the due date for prehearing briefs has been increased, as has the
interval between the hearing and the due date for posthearing briefs. These changes are responsive to
the comments of several commenters that the Commission's proposed schedule allowed excessivetime for preparation and comment on questionnaires and inadequate time for preparation of briefs and
review of the prehearing report.
The sample schedule concentrates investigative activities within a180-day period, which
reflects the Commission's need to deploy its staffing resources in the most effective manner. Although
the samples chedule indicates activities in a full review will occur between day180 and day 360, these
dates may vary in individual reviews, as the Commission intends to stagger schedules insimultaneously-initiated reviews in the interests of administrative efficiency. All reviews within a
single group will have the same schedule, however. Further, the record closing date for a review will
always occur after issuance of Commerce's determination.
Section 207.62(d): Procedures for Expedited Reviews . Section207.62(d) is based on proposed
section 207.62(c). It has been retitled more accurately to reflect its subject matter--the procedures for
expedited reviews. Its text has also been change d in several respects. Some terminology has been
modified to conform this provision with others in Subpart F. The page limit for comments has been
eliminated, as requested in the comments of Stewart and Thailand. The Commission has agreed to
eliminate the page limit because the comments wi ll be the only substantive filing that will be
permitted in expedited reviews. The Commission ha s, however, retained the prohibition against the
submission of new factual information in such comments. The Commission has not imposed the page
limit requested by Collier on nonparty comments submitted pursuant to section 207.62(d)(3).G/ADP/N/1/USA/1/Suppl.3
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The Commission has declined to make several changes requested by commenters concerning
the conduct of expedited reviews. Stewart and Scha grin proposed that the Commission give interested
parties that submitted adequate responses the opportunity to submit additional factual information
during the course of an expedited review. They argued that such a procedure would allow the
Commission to reduce the amount of information requested in the notice of institution and wouldreduce the burdens on the parties and the Commission at the outset of are view. As discussed above,
[[Page 30606]] the Commission has decided to reduce significantly the amount of information
requested in the notice of institution. The Commission has concluded that additional factual
information is not essential to its analysis in expedited reviews. Therefore, the Commission believes it
would be inappropriate and inefficient to undertake further investigative activities in expedited
reviews. Instead, the Commission intends to exercise its statutory authority to dispose of such cases
quickly and efficiently on the basis of the facts available (unless it concludes that a full review isappropriate on other grounds).
The Commission also will not permit rebuttal comments or final comments on the staff report
to be submitted in an expedited review, as requested by Stewart. Such submissions are unnecessary in
light of the limited record and condensed schedule of an expedited review.
A new section 207.62(d)(4) addresses staff reports in expedited reviews. Stewart requested
that such a provision be added to the regulations. Although the Commission intends to release a staff
report in expedited reviews, this report will likely follow a different format than staff reports in full
reviews, in light of the more limited record that will be compiled in expedited reviews. The schedulefor release of the staff report, and for other proced ures in an expedited review, is indicated in the
schedule in Annex B to this Notice.
Section 207.62(e): Use of Facts Available . Section 207.62(e) is anew provision stating that a
determination in an expedited review will be based on the facts available, in accordance withsection 776 of the Act. Although this provision was not proposed in the NOPR, it does not establish
any new requirements. Instead, it codifies the authority provided in section 751(c)(3)(B) of the Act.
The facts available may include information submitted on the record in the five-year reviews
by parties and non-parties, other information the Commission may compile before the record closes,material from the record of the original investigation and subsequent Commission reviews, if any, and
available information from Commerce proceedings. (As stated in the NOPR preamble, the material
from the record of the original investigation that  the Commission will release to the parties will
include the Commission opinion(s) in the original investigation and staff reports and non-privileged
memoranda, where available.) The facts available may also include reliance on adverse inferences
against interested parties that do not cooperate with information requests, as authorized by
section 776(b) of the Act.
Delegation . In the NOPR, the Commission proposed a regulation(section 207.62(d)), which
would have permitted the Commission to delegate to staff the responsibility for making adequacy
rulings. Stewart and Schagrin requested that the provision not be promulgated, on the ground that staff
should not be given the authority to make decisions having a significant impact on the parties' rights.Quebec supported the proposed provision.
The Commission has determined not to promulgate a regulation on delegation. The
Commission has concluded that the regulation is unnecessary because, should it decide to delegate the
responsibility for making adequacy rulings, promulgation of a regulation to effect such a delegation isnot required.G/ADP/N/1/USA/1/Suppl.3
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Section 207.63
Section 207.63 is a new provision addressing the circulation of draft questionnaires in full
reviews.
Section 207.63(a): Circulation of Draft Questionnaires
Section 207.63(a) concerns the circulation of dr aft questionnaires for comment. Its text has
been simplified by use of the term "full review.''
Section 207.63(b): Comments on Draft Questionnaires
Section 207.63(b), which concerns the written comments that parties may file regarding the
draft questionnaires, has been modified significantly from the NOPR. As proposed, section 207.63(b)
required parties to present all requests for the collection of new data in their comments and stated that
the Commission would disregard subsequent arguments premised on the collection of new data if
such requests were not included in the comments.
Nine commenters, representing both domestic and respondent interests, objected to
section 207.63(b) insofar as it required that all data requests be made in the questionnaire comments.
These commenters contended that parties will not always be able to ascertain what data the
Commission should collect until they review the responses to the questionnaires. Several of thesecommenters expressed divergent views on the circumstances in which the Commission should
entertain subsequent data requests. Thailand advocated that the Commission issue supplemental
questionnaires as a matter of course. Eurofer and Stewart, however, opposed such a procedure on the
grounds that routine issuance of supplemental questionnaires could encourage parties not to respond
to the initial questionnaires. Eurofer suggested th at supplemental questionnaires not be authorized in
the absence of a compelling reason.
After review of the comments, the Commission has concluded that section 207.63(b) should
be modified. Accordingly, the second sentence of the section now provides that parties "should,''
rather than "must,'' present all data collection requests in their questionnaire comments. TheCommission emphasizes that it ordinarily anticipates that parties will make all data collection requests
in the questionnaire comments and that it will rarely entertain subsequent requests for data collection.
Consequently, the final sentence of section 207.63(c) has been revised to provide that the Commission
will not consider subsequent requests for the collection of new information unless there is a showing
that there is a compelling need for the informa tion and that the information could not have been
requested in the comments on the draft questionnaires.
Verification of Questionnaire Responses . Several comments addressed verification of
questionnaire responses in five-year reviews. Canada, Fuji, and JISEA requested that the Commission
verify domestic producer data it receives. Dewey/Skadden requested promulgation of a regulation
stating that the Commission will verify importer data it receives; Fuji and JISEA also supported
verification of such data. Stewart requested promul gation of a regulation stating that the Commission
will verify purchaser data it receives. Dewey/Skadden, Schagrin, and Stewart requested promulgation
of a regulation stating that the Commission will verify foreign producer data it receives; Collier and
Micron also supported such verification.
The Commission will consider verification of domestic interested party and respondent
interested party information in appropriate circumstances and as staffing resources permit. The
Commission will also consider using Commerce verification reports as appropriate. The regulations
do not currently address verification in original investigations, and the Commission does not believe it
is necessary to promulgate a regulation regarding verification in five-year reviews.G/ADP/N/1/USA/1/Suppl.3
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Section 207.64
Section 207.64 is a new provision concerning staff reports in full reviews.[[Page 30607]] The
section is identical to that proposed in the NOPR.
Section 207.65
Section 207.65 is a new provision concerning prehearing briefs. The section, which is adapted
from current section 207.23, is identical to that proposed in the NOPR.
Section 207.66
Section 207.66 is a new provision concerning hearings in five-year reviews. The text of
section 207.66(a) has been simplified by use of the term ``full review.'' Section 207.66(b) has not been
changed from the NOPR.
Section 207.67
Section 207.67 is a new provision concerning posthearing briefs and statements in five-year
reviews. This section is identical to that proposed in the NOPR.
Cement Committee requested that this section be modified by inserting a provision stating
that new factual information in such posthearing briefs and statements will be disregarded unless it is
responsive to a question or request made at the Commission hearing. Collier requested that
section 207.67(b) be modified by placing a five-page limit on statements by non parties.
As stated in the NOPR preamble, the provisions of section 207.67are intended to track
sections 207.25 and 207.26, which govern posthearing briefs and statements in original investigations.
Sections 207.25 and 207.26 do not contain any restrictions on the submission of new factual
information of the type requested by Cement Co mmittee. Nor does section 207.26 contain a page limit
on the brief written statements that non parties may submit. To maintain consistency between theprocedures for original investigations and the procedures for five-year reviews, the Commission has
determined not to insert the additional restrictions in section 207.67 requested by Cement Committee
and Collier.
Section 207.68
Section 207.68 is a new provision concerning final comments on information. This section,
which follows current section 207.30, is identical to that proposed in the NOPR.
Section 207.69
Section 207.69 is a new provision concerni ng publication and service of Commission
determinations in five-year reviews. The section, which follows current section 207.29, is identical to
that proposed in the NOPR.
List of Subjects
19 CFR Part 201
Administrative practice and procedure, Investigations, Imports.G/ADP/N/1/USA/1/Suppl.3
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19 CFR Part 207
Administrative practice and procedure, Anti-d umping, Countervailing Duties, Investigations.
For the reasons stated in the preamble, 19 CFR parts 201 and 207are amended as set forth
below:
PART 201--[AMENDED]
1. The authority citation for part 201 continues to read as follows:
Authority : Sec. 335 of the Tariff Act of 1930 (19 U.S.C. 1335)and Sec. 603 of the Trade Act of 1974
(19 U.S.C. 2482), unless otherwise noted.
2. New paragraphs (b)(4) and (b)(5) are added to Sec. 201.11 toread as follows:
Sec. 201.11  Appearance in an investigation as a party.
* * * * *
(b) Time for filing.
* * * * *
(4) In the case of reviews conducted under subpart F of part 207 of this chapter, each
entry of appearance shall be filed with the Secretary not later than twenty-one (21) days after
publication in the Federal Register of the notice of institution described in Sec. 207.60(d) of this
chapter.
(5) Notwithstanding paragraph (b)(4) of this section, a party may file an entry of
appearance in a review conducted under subpart F of part 207 of this chapter within the period
specified in the notice issued under Sec. 207.62(c) of this chapter. This period shall be at least 45
days.
* * * * *
PART 207--[AMENDED]
3. The authority citation for part 207 continues to read as follows:
Authority : 19 U.S.C. 1336, 1671-1677n, 2482, 3513.
4. Paragraph (b) of Sec. 207.3 is revised to read as follows:
Sec. 207.3  Service, filing, and certification of documents.
* * * * *
(b) Service . Any party submitting a document for inclusion in the record of the
investigation shall, in addition to complying with Sec. 201.8 of this ch apter, serve a copy of each such
document on all other parties to the investigation in the manner prescribed in Sec. 201.16 of this
chapter. If a document is filed before the Secret ary's issuance of the service list provided for in
Sec. 201.11 of this chapter or the administrative protective order list provided for in Sec. 207.7, theG/ADP/N/1/USA/1/Suppl.3
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document need not be accompanied by a certificate of service, but the document shall be served on all
appropriate parties within two (2) days of the issuance of the service list or the administrative
protective order list and a certificate of service sh all then be filed. Notwithstanding Sec. 201.16 of this
chapter, petitions, briefs, and testimony filed by parties pursuant to Secs. 207.10,207.15, 207.23,
207.24, 207.25, 207.65, 207.66, and 207.67 shall be served by hand or, if served by mail, by overnightmail or its equivalent. Failure to comply with the re quirements of this rule may result in removal from
status as a party to the investigation. The Commission shall make available to all parties to the
investigation a copy of each document, except transcripts of conferences and hearings, business
proprietary information, privileged information, and information required to be served under this
section, placed in the record of the investigation by the Commission.
* * * * *
5. Paragraph (a) of Sec. 207.45 is revised to read as follows:
Sec. 207.45  Investigation to review outstanding determination.
(a) Request for review . Any person may file with the Commission a request for the
institution of a review investigation under section751(b) of the Act. The person making the request
shall also promptly serve copies of the request on the parties to the original investigation upon which
the review is to be based. All requests shall set forth a description of changed circumstances sufficient
to warrant the institution of a review investigation by the Commission.
* * * * *
6. Paragraph (g) of Sec. 207.46 is revised to read as follows:
Sec. 207.46  Investigations concerning certain countervailing duty orders.
* * * * *
(g) Request for simultaneous section 751(c) review . (1) A requesting party who requests
a section 753 review may at the same time request from the Commission and the administering
authority a review under section 751(c) of the Act of a countervailing or anti-dumping duty orderinvolving the same or comparable subject merchandise.
(2) Should the administering authority, after consulting with the Commission, determine
to initiate a section 751(c) review, the Commission shall conduct a consolidated review
[[Page 30608]] under sections 751(c) and 753 of the Act of the orders involving the same or
comparable subject merchandise. Any such c onsolidated review shall be conducted under the
applicable procedures set forth in subparts A and F of this part.
(3)  Should the administering authority, after consulting with the Commission, determine
not to initiate a section 751(c) review, the Commission will consider the request for a section 753
review pursuant to the procedures established in this section.
7. A new Subpart F is added to read as follows:
Subpart F--Five-Year Reviews
207.60 Definitions.
207.61  Responses to notice of institution.207.62  Rulings on adequacy and nature of Commission review.G/ADP/N/1/USA/1/Suppl.3
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207.63  Circulation of draft questionnaires.
207.64  Staff reports.
207.65  Prehearing briefs.
207.66  Hearing.
207.67  Posthearing briefs and statements.207.68  Final comments on information.
207.69  Publication of determinations.
Sec. 207.60  Definitions.
For purposes of this subpart:
(a)  The term five-year review means a five-year review conducted pursuant to
section 751(c) of the Act. The provisions of part 201 of this chapter and subpart A of this part
pertaining to "investigations'' are generally applicable to five-year reviews, unless superseded by a
provision in this subpart of more specific application.
(b)  The term expedited review means a five-year review conducted by the Commission
pursuant to section 751(c)(3)(B) of the Act.
(c)  The term full review means a five-year review that has not been expedited by the
Commission or terminated pursuant to section 751(c)(3)of the Act.
(d)  The term notice of institution shall refer to the notice of institution of five-year
review that the Commission shall publish in the Federal Register requesting that interested parties
provide information to the Commission upon initiation of a five-year review.
Sec. 207.61  Responses to notice of institution.
(a)  When information must be filed . Responses to the notice of institution shall be
submitted to the Commission no later than 50 days after its publication in the Federal Register.
(b)  Information to be filed with the Secretary . The notice of institution shall direct each
interested party to make a filing pursuant to Secs. 201.6, 201.8 and 207.3 of this chapter containingthe following:
(1)  A statement expressing its willingness to participate in the review by providing
information requested by the Commission;
(2)  A statement regarding the likely effects of  revocation of the order(s) or termination
of the suspended investigation(s) under review;
(3)  Such information or industry data as the Commission may specify in the notice of
institution.
(c)  When requested information cannot be supplied.  Any interested party that cannot
furnish the information requested by the notice of institution in the requested form and manner shall,
promptly after issuance of the notice, notify th e Commission, provide a full explanation of why it
cannot furnish the requested information, and indicate alternative forms in which it can provide
equivalent information. The Commission may modify its requests to the extent necessary to avoid
posing an unreasonable burden on that party.G/ADP/N/1/USA/1/Suppl.3
G/SCM/N/1/USA/1/Suppl.3
Page 22
(d)  Submissions by persons other than interested parties . Any person who is not an
interested party may submit to the Commission, ina filing satisfying the requirements of Sec. 201.8 of
this chapter, information relevant to the Commi ssion's review no later than 50 days after publication
of the notice of institution in the Federal Register.
Sec. 207.62  Rulings on adequacy and nature of Commission review.
(a)  Basis for rulings on adequacy.  The Commission will assess the adequacy of
aggregate interested party responses to the notice of institution with respect to each order or
suspension agreement under review and, where the underlying affirmative Commission determination
found multiple domestic like products, on the basis of each domestic like product.
(b)  Comments to the Commission. (1) Comments to the Commission concerning
whether the Commission should conduct an expedited review may be submitted by:
(i)  Any interested party that is a party to the five-year review and that has responded to
the notice of institution; and
(ii)  Any party, other than an interested party, that is a party to the five-year review.
(2)  Comments shall be submitted within the time specified in the notice of institution. In
a grouped review, only one set of comments shall be filed per party per group. Comments shall not
exceed fifteen(15) pages of textual material, double-spaced and single-sided, on stationery measuring8\1/2\  x  11 inches. Comments containing new factual information shall be disregarded.
(c)  Notice of scheduling of full review . If the Commission concludes that interested
parties' responses to the notice of institution are adequate, or otherwise determines that a full review
should proceed, investigative activities pertaining to that review will continue. The Commission willpublish in the Federal Register a notice of scheduling pertaining to subsequent procedures in the
review.
(d)  Procedures for expedited reviews . (1) If the Commission concludes that interested
parties' responses to the notice of institution are inadequate, it may decide to conduct an expeditedreview. In that event, the Commission shall direct the Secretary to issue a notice stating that the
Commission has decided to conduct an expedited review and inviting those parties to the review
described in paragraph (d)(2) of this section to  file written comments with the Secretary on what
determination the Commission should reach in the review. The date on which such comments must be
filed will be specified in the notice to be issued by the Secretary. Comments containing new factual
information shall be disregarded.
(2)  The following parties may file the comm ents described in paragraph (d)(1) of this
section:
(i)  Any interested party that is a party to the five-year review and that has filed an
adequate response to the notice of institution; and
(ii)  Any party, other than an interested party, that is a party to the five-year review.(3)  Any person that is neither a party to the five-year review nor an interested party may
submit a brief written statement (which shall not cont ain any new factual information) pertinent to the
review within the time specified for the filing of written comments.G/ADP/N/1/USA/1/Suppl.3
G/SCM/N/1/USA/1/Suppl.3
Page 23
(4)  The Director shall prepare and place in the record, prior to the date on which the
comments described in paragraph (d)(1) of this section must be filed, a staff report containing
information concerning the subject matter of the review. A version of the staff report containing
business proprietary information shall be placed in the nonpublic record and made available to
persons authorized to receive business proprietary information under Sec. 207.7, and a nonbusinessproprietary version of the staff report shall be placed in the public record.
(e)  Use of facts available.  The Commission's determination in an expedited review will
be based on the facts available, in accordance with section 776 of the Act. [[Page 30609]]
Sec. 207.63  Circulation of draft questionnaires.
(a)  The Director shall circulate draft questionnaires to the parties for comment in each
full review.
(b)  Any party desiring to comment on the draft questionnaires shall submit such
comments in writing to the Commission within a ti me specified by the Director. All requests for
collecting new information should be presented at this time. The Commission will disregardsubsequent requests for collection of new information absent a showing that there is a compelling
need for the information and that the information could not have been requested in the comments on
the draft questionnaires.
Sec. 207.64  Staff reports.
(a)  Prehearing staff report . The Director shall prepare and place in the record, prior to
the hearing, a prehearing staff report containing information concerning the subject matter of the five-
year review. A version of the staff report containing business proprietary information shall be placed
in the nonpublic record and made available to persons authorized to receive business proprietary
information under Sec. 207.7, and a nonbusiness proprietary version of the staff report shall be placedin the public record.
(b)  Final staff report . After the hearing, the Director shall revise the prehearing staff
report and submit to the Commission, prior to the Commission's determination, a final version of the
staff report. The final staff report is intended to supplement and correct the information contained inthe prehearing staff report. A public version of the final staff report shall be made available to the
public and a business proprietary version shall also be made available to persons authorized to receive
business proprietary information under Sec. 207.7.
Sec. 207.65  Prehearing briefs.
Each party to a five-year review may submit a prehearing brief to the Commission on the date
specified in the scheduling notice. A prehearing brief shall be signed and shall include a table ofcontents. The prehearing brief should present a party's case concisely and shall, to the extent possible,
refer to the record and include information and arguments which the party believes relevant to the
subject matter of the Commission's determination.
Sec. 207.66  Hearing.
(a)  In general . The Commission shall hold a hearing in each full review. The date of the
hearing shall be specified in the scheduling notice.
(b)  Procedures . Hearing procedures in five-year reviews will conform to those for final
phase anti-dumping and countervailing duty investigations set forth in Sec. 207.24.G/ADP/N/1/USA/1/Suppl.3
G/SCM/N/1/USA/1/Suppl.3
Page 24
Sec. 207.67  Posthearing briefs and statements.
(a)  Briefs from parties.  Any party to a five-year review may file with the Secretary a
posthearing brief concerning the information adduced at  or after the hearing within a time specified in
the scheduling notice or by the presiding official at the hearing. No such posthearing brief shallexceed fifteen (15) pages of textual material, double spaced and single sided, on stationery measuring
8\1/2\ x 11inches. In addition, the presiding official may permit persons to file answers to questions or
requests made by the Commission at the hearing within a specified time. The Secretary shall not
accept for filing posthearing briefs or answers which do not comply with this section.
(b)  Statements from nonparties.  Any person other than a party may submit a brief
written statement of information pertinent to the re view within the time specified for the filing of
posthearing briefs.
Sec. 207.68  Final comments on information.
(a)  The Commission shall specify a date after the filing of posthearing briefs on which it
will disclose to all parties to the five-year review all information it has obtained on which the partieshave not previously had an opportunity to comment. Any such information that is business proprietary
information will be released to persons authorized to obtain such information pursuant to Sec. 207.7.
(b)  The parties shall have an opportunity to file comments on any information disclosed
to them after they have filed their posthearing brief pursuant to Sec. 207.67. Comments shall only
concern such information, and shall not exceed 15 pages of textual material, double spaced and
single-sided, on stationery measuring 8\1/2\ x 11 inches. A comment may address the accuracy,
reliability, or probative value of such information by  reference to information elsewhere in the record,
in which case the comment shall identify where in  the record such information is found. Comments
containing new factual information shall be disr egarded. The date on which such comments must be
filed will be specified by the Commission when it specifies the time that information will be disclosed
pursuant to paragraph (a) of this section. The record shall close on the date such comments are due,
except with respect to changes in bracketing of business proprietary information in the comments
permitted by Sec. 207.3(c).
Sec. 207.69  Publication of determinations.
Whenever the Commission makes a determination concluding a five-year review, the
Secretary shall serve copies of the determination and, when applicable, the nonbusiness proprietary
version of the final staff report on all parties to the review, and on the administering authority. The
Secretary shall publish notice of such determination in the Federal Register.
By order of the Commission.
Issued: 2 June 1998.
Donna R. Koehnke,
Secretary.G/ADP/N/1/USA/1/Suppl.3
G/SCM/N/1/USA/1/Suppl.3
Page 25
Annex A: Sample Notice of Institution of Five-Year Review
Definitions
(1)  Subject Merchandise  is the class or kind of merchandise that is within the scope of
the five-year review, as defined by the Department of Commerce.
(2)  The Subject Country  in this review is [INSERT COUNTRY].
(3)  The Domestic Like Product  is the domestically produced product or products which
are like, or in the absence of like, most similar in characteristics or uses with, the Subject
Merchandise. In its original determination, the Commission defined the Domestic Like Product as
[INSERT DEFINITION]. (Add the following if app licable)One Commissioner/certain Commissioners
defined the Domestic Like Product differently.
(4)  The Domestic Industry  is the producers as a whole of the Domestic Like Product, or
those producers whose collective output of the Domestic Like Product constitutes a major proportion
of the total domestic production of the product. In its original determination, the Commission definedthe Domestic Industry as producers of [INSERT DE FINITION]. (Add the following if applicable)One
Commissioner/certain Commissioners define d the Domestic Industry differently.
(5)  The Order Date  is the date that the countervailing duty order/anti-dumping duty
order/suspension agreement under review became effective. In this review, the Order Date is[INSERT DATE].
(6)  An Importer  is any person or firm engaged, either directly or through a parent
company or subsidiary, in importing the Subject Merchandise into the United States from a foreign
manufacturer or through its selling agent.
Certification
In accordance with Commission rule 207.3, any person submitting information to the
Commission in connection with this review must certify that the information is accurate and completeto the best of the submitter's knowledge. In making the certification, the submitter will be deemed to
consent, unless otherwise specified, for the Commission, its employees, and contract personnel to use
the [[Page 30610]] information provided in any ot her reviews or investigations of the same or
comparable products which the Commission conducts und er Title VII of the Act, or in internal audits
and investigations relating to the programs and operations of the Commission pursuant to 5 U.S.C.
Appendix 3.
Information To Be Submitted to the Commission
All responses should be filed with the Secretary and must conform with the provisions of
sections 201.8 and 207.3 of the Commission's rules. If business proprietary treatment is desired for
portions of a response, submitters must follow the requirements set forth in sections 201.6 and 207.7of the Commission's rules. Also, in accordance with sections 201.16(c) and 207.3 of the Commission's
rules, each document filed by a party to the review  must be served on all other parties to the review
(as identified by either the public or BPI service list as appropriate), and a certificate of service must
accompany the document (if you are not a party to the review you do not need to serve your
response). Any interested party that cannot furnis h the information requested should explain, at the
earliest possible time, why it is unable to do so and indicate alternative forms in which it can provide
equivalent information.(Add the following if more than one country is involved) If you area domestic
producer, union/worker group, or trade/business associ ation; import/export Subject Merchandise fromG/ADP/N/1/USA/1/Suppl.3
G/SCM/N/1/USA/1/Suppl.3
Page 26
more than one Subject Country; or produce Subject Merchandise in more than one Subject Country,
you may file a single response. If you do so, please ensure that your response to each question
includes the information requested for each pertinent Subject Country.
The response should include:(1)  The name and address of your firm or entity (including World Wide Web address if
available) and name, telephone number, fax number, and E-mail address of the certifying official.
(2)  A statement indicating whether your firm/entity is a US producer of the Domestic
Like Product, a US union or worker group, a US importer of the Subject Merchandise, a foreign
producer or exporter of the Subject Merchandise, a US or foreign trade or business association, oranother interested party (including an explanati on). If you are a union/worker group or trade/business
association, identify the firms in which your workers are employed or which are members of your
association.
(3)  A statement indicating whether your firm/entity is willing to participate in this
review by providing information requested by the Commission.
(4)  A statement of the likely effects of the revocation of the countervailing duty order/
anti-dumping duty order/termination of the suspension agreement on the Domestic Industry in general
and/or your firm/entity specifically. In your response, please discuss the various factors specified insection 752(a) of the Act (19 U.S.C. Sec. 1675a(a)) including the likely volume of subject imports,
likely price effects of subject imports, and likely impact of imports of Subject Merchandise on the
Domestic Industry.
(5)  A list of all known and currently operating US producers of the Domestic Like
Product. Identify any known related parties and the na ture of the relationship as defined in section
771(4)(B) of the Act (19 U.S.C. Sec. 1677(4)(B)).
(6)  A list of all known and currently operating US importers of the Subject Merchandise
and producers of the Subject Merchandise in [INSERT COUNTRY] that currently export or haveexported Subject Merchandise to the United Stat es or other countries since [INSERT YEAR OF
PETITION].
(7)  If you are a US producer of the Domestic Like Product, provide the following
information on your firm's operations on that product during calendar year [INSERT PRECEDING
YEAR] (report quantity data in [INSERT MEASUREMENT UNIT] and value data in thousands of
dollars). If you are a union/worker group or trade/business association, provide the information, on anaggregate basis, for the firms in which your workers are employed/which are members of your
association.
(a)  Production (quantity) and, if known, an estimate of the percentage of total US
production of the Domestic Like Product accounted for by your firm's(s') production; and
(b)  the quantity and value of US commercial shipments of the Domestic Like Product
produced in your US plant(s).
(8)  If you are a US importer or a trade/business association  of US importers of the
Subject Merchandise from [INSERT COUNTRY],provide the following information on your
firm's(s') operations on that product during calendar year [INSERT PRECEDING YEAR] (report
quantity data in [INSERT MEASUREMENT UNIT] and value data in thousands of dollars). If youG/ADP/N/1/USA/1/Suppl.3
G/SCM/N/1/USA/1/Suppl.3
Page 27
are a trade/business association, provide the information, on an aggregate basis, for the firms which
are members of your association.
(a)  The quantity and value of US imports and, if known, an estimate of the percentage of
total US imports of Subject Merchandise from [INSERT COUNTRY] accounted for by yourfirm's(s')imports; and
(b)  the quantity and value of US commercial shipments of Subject Merchandise
imported from [INSERT COUNTRY].
(9)  If you are a producer, an exporter, or a trade/business association of producers or
exporters of the Subject Merchandise in[INSERT COUNTRY], provide the following information onyour firm's(s') operations on that product duri ng calendar year [INSERTPRECEDING YEAR] (report
quantity data in [INSERT MEASUREMENT UNIT]and value data in thousands of dollars). If you are
a trade/business association, provide the information, on an aggregate basis, for the firms which are
members of your association.
(a)  Production (quantity) and, if known, an estimate of the percentage of total production
of Subject Merchandise in [INSERTCOUNTRY] accounted for by your firm's(s') production; and
(b)  the quantity and value of your firm's(s') exports to the United States of Subject
Merchandise and, if known, an estimate of the percentage of total exports to the United States ofSubject Merchandise from [INSERT COUNTRY] accounted for by your firm's(s')exports.
(10)  Identify significant changes, if any, in the supply and demand conditions or business
cycle for the Domestic Like Product that have occurred in the United States or in the market for the
Subject Merchandise in Subject Country since the Order Date, and significant changes, if any, that arelikely to occur within a reasonably foreseeable time. Supply conditions to consider include
technology; production methods; development efforts;  ability to increase production (including the
shift of production facilities used for other products and the use, cost, or availability of major inputs
into production); and factors related to the ability to shift supply among different national markets
(including barriers to importation in foreign ma rkets or changes in market demand abroad).Demand
conditions to consider include end uses and applications; the existence and availability of substitute
products; and the level of competition among the Domestic Like Product produced in the
United States, Subject Merchandise produced in the Subject Country, and [INSERT PRODUCT
DESCRIPTION] from other countries.
(11)  (OPTIONAL) A statement of whether you agree with the above definitions of the
Domestic Like Product and Domestic Industry; if you disagree with either or both of these definitions,please explain why and provide alternative definitions.G/ADP/N/1/USA/1/Suppl.3
G/SCM/N/1/USA/1/Suppl.3
Page 28
ANNEX B
SAMPLE SCHEDULE FOR FIVE-YEAR REVIEWS1
ACTION/EVENT DAY
Notice of institution published in the Federal Register 0
Entries of appearance/APO applications 21
Responses to notice of institution 50
Comments on appropriateness of expedited review 75
Notice of expedited or full review 95
Expedited Review Full Review2
ACTION/EVENT DAY ACTION/EVENT DAY
Commerce expedited
determination (if issued)120 New entries of appearance/
APO applications180
Staff report to Commission and
parties122 Draft questionnaires to
parties for comment190
Written submission on merits
by parties127 Party comments on draft
questionnaires205
Commission vote 140 Questionnaire mail date 225
Commission determination and
views transmitted to Commerce150 Commerce subsidy/dumping
determination240
Questionnaire return date3255
Prehearing report to
Commission and parties285
Prehearing briefs 295
Hearing 305
Posthearing briefs 315
Staff report to Commission
and parties330
Final party comments 340
Commission vote 348
Commission determination
and views transmitted to
Commerce360
                                                     
1 This sample schedule is provided for general guidance;  work schedules for specific reviews may vary
because of weekends and holidays.  In addition, the Commission may extend its deadline by up to 90 days in all
transition reviews and other extraordinarily complicated cases.
2 The Commission may begin full reviews earlier than day 180;  in such cases, the same relative
schedule will apply.
3 For US firms;  the return date for foreign producers' questionnaires will be 37 days from the mail
date.G/ADP/N/1/USA/1/Suppl.3
G/SCM/N/1/USA/1/Suppl.3
Page 29ANNEX C
PARTIES SUBMITTING COMMENTS ON COMMISSION NOTICE OF PROPOSED RULEMAKING
Short Form Submitter Representing
AIIS American Institute for International Steel, Inc. ItselfCanada Canadian Embassy Government of Canada
Cement Committee King & Spalding Southern Tier Cement Committee
Collier Collier, Shannon, Rill & Scott, PLLC American Beekeeping Federation
American Honey Producers Association
Coalition for Fair Atlantic Salmon Trade
Committee to Preserve American Color Television, Inc.
Copper & Brass Fabricators CouncilFootwear Industries of America, Inc.
Fresh Garlic Producers Association
Leather Industries of America
Municipal Castings Fair Trade Council
National Pasta AssociationNational Pork Producers Council
Specialty Steel Industry of North America
Specialty Tubing Group
Dewey/Skadden Dewey Ballantine LLP
Skadden, Arps, Slate, Meagher & Flom LLP
(joint submission)Not specified
ECS Economic Consulting Services Inc Itself
Eurofer European Confederation of Iron and Steel Industries Itself
Fuji Wilkie Farr & Gallagher Fuji Photo Film, Inc.H&H Hogan & Hartson LLP ItselfG/ADP/N/1/USA/1/Suppl.3
G/SCM/N/1/USA/1/Suppl.3
Page 30 Hogan Hogan & Hartson LLP American Institute for International Steel
Consumers for World Trade
Enron Corp.General Motors Corp.
International Association of Drilling Contractors
Michelin North America, Inc.
Precision Metalforming Association
Steel Service Center InstituteSun Microsystems
Hoogovens Powell, Goldstein, Frazer & Murphy LLP Hoogovens Staal BV
Hoogovens Steel USA, Inc.
Japan Embassy of Japan Government of Japan
JBIA Japan Bearing Industrial Association Itself
JISEA Wilkie Farr & Gallagher Japan Iron & Steel Exporters AssociationJMC Japan Machinery Center for Trade and Investment ItselfJovanovich Jovanovich Supply Co. ItselfMicron Hale and Dorr LLP Micron Technology, Inc.
Pistachio Producers California Pistachio Commission Itself
Western Pistachio Association
Quebec Pepper, Hamilton & Sche etz LLP Gouvernement du Quebec
Schagrin Schagrin Associates Committee on Pipe and Tube Imports
Wierton Steel Corp.
Steptoe Steptoe & Johnson LLP Not specified
Stewart Stewart & Stewart Not specified
Thailand Dickstein Shapiro Morin & Oschinsky LLP Royal Thai GovernmentG/ADP/N/1/USA/1/Suppl.3
G/SCM/N/1/USA/1/Suppl.3
Page 31TRC Trade Resources Company Itself
US Steel Skadden, Arps, Slate, Meagher & Flom  PLLC US Steel Group, a Unit of USX Corp.
USS/Kobe Steel Co.
WC&P Wilmer, Cutler & Pickering ItselfWilkie Group Wilkie Farr & Gallagher
Kaye, Scholer, Fierman, Hays & Handler LLPRogers & Wells
Graham & James
Sherman & Sterling
White & Case
O'Melveny & Myers
Pepper, Hamilton & Sheetz LLP
Steptoe & Johnson LLPWeil Gotshal & Manges LLP
Powell, Goldstein, Frazer & Murphy LLP
Dorsey & Whitney LLP
(Joint submission)Not specifiedG/ADP/N/1/USA/1/Suppl.3
G/SCM/N/1/USA/1/Suppl.3
Page 32
DEPARTMENT OF COMMERCE
International Trade Administration
19 CFR Parts 351 and 354
[Docket No. 960123011-8040-02]
RIN 0625-AA43
Anti-dumping and Countervailing Duty Proceedings: Administrative Protective Order
Procedures; Procedures for Imposing Sanctions for Violation of a Protective Order
AGENCY:  International Trade Administration, Commerce.
ACTION:  Final rule.
SUMMARY:  The Department of Commerce ("the Department'') is amending its regulations on
administrative protective order ("APO'') pro cedures in anti-dumping and countervailing duty
proceedings to simplify and streamline the APO administrative process and reduce the administrative
burdens on the Department and trade practitioners. The Department is also amending the regulations
to simplify the procedures for investigating alleged violations of APOs and the imposition of
sanctions. These changes are made in response to and in cooperation with the trade practitioners that
are subject to these rules.
EFFECTIVE DATE:  The effective date of this final rule is 3 June 1998. This final rule will apply to
all investigations initiated on the basis of petitions filed on or after 3 June 1998, and other segments of
proceedings initiated after this date.
FOR FURTHER INFORMATION CONTACT:  For further information contact
Joan L. MacKenzie or Mark A. Barnett, Office of Chief Counsel for Import Administration, (202)
482-1310 or (202) 482-2866, respectively.
SUPPLEMENTARY INFORMATION:
General Background
APO Procedures
On 8 February 1996, the Department published proposed rules governing procedures for
providing access to business proprietary information submitted to the Department by other parties in
US anti-dumping ("AD'') and countervailing duty (" CVD'') proceedings. Proposed Rule and Request
for Comment (Anti-dumping and Countervailing Duty  Proceedings; Administrative Protective Order
Procedures; Procedures for Imposing Sanctions for Violations of a Protective Order), 61 FR 4826
("February Notice''). See also, Proposed Changes to Administrative Protective Order Procedures in
Anti-dumping and Countervailing Duty Proceedings,  APO Application Form and Standard APO, 59
FR 51559 (12 October  1994) ("October Notice'').
The Department proposed these changes in APO procedures in consultation with trade
practitioners, who are the ones most directly affected by these procedures. Specifically, Department
staff consulted with representatives of the International Law Section of the District of Columbia Bar,
the International Trade Committee of the Section of International Law and Practice of the AmericanG/ADP/N/1/USA/1/Suppl.3
G/SCM/N/1/USA/1/Suppl.3
Page 33
Bar Association, the ITC Trial Lawyers Association, and the Customs and International Trade Bar
Association. As a result of the consultations, the Department proposed changes in the APO process to
improve the process, to simplify and streamline the process for all concerned, including the
Department, and at the same time to continue to ensure protection of business proprietary information
from unauthorized disclosure.
After analyzing and carefully considering all of the comments that the Department received in
response to the February Notice and after further review of the provisions of the proposed rule, the
Department is publishing final regulations. These regulations improve, simplify, and streamline the
APO process significantly and, at the same time,  protect business proprietary information from
unauthorized disclosure.
Effective Date
The new APO procedures, including the use of the revised application for APO, form
ITA 367 (5.98), will become effective 3 June 1998. They will apply to all investigations initiated on
the basis of petitions filed on or after 3 June 1998, and other segments of proceedings initiated afterthis date. Segments of proceedings to which these regulations do not apply will continue to be
governed by the regulations in effect on the date the petitions were filed or other segments were
initiated, to the extent that those regulations were not invalidated by the URAA or replaced by the
interim final regulations published on 11 May 1995 (60 FR 25130 (1995)) and Sec. 351.105 of the
AD/CVD procedural regulations that the Depart ment published separately on 19 May 1997 (62 FR
27296), (hereinafter referred to as the 19 May Regulations). In these segments of proceedings, the
Department will require that parties use the old APO application form ITA-367 (3.89) for all requests
to amend their existing APOs. If all parties in these segments of proceedings mutually agree to be
bound by the new APO regulations and procedures, the parties must file a joint agreement and new
applications for APO.
APO Sanctions
The Department is also amending its regulations concerning sanctions for violations of APOs.
The regulations governing the imposition of sanctions for APO violations are set forth at 19 CFRPart 354. In the nine years since Part 354 was introduced, the Department has investigated and
resolved numerous allegations of violations of APOs. Most charges have been settled, and none has
resulted in a hearing before a presiding official or a decision by the APO Sanctions Board. Experience
also has proven that, even if an individual has technically violated the terms of an APO, it is not
always appropriate to impose a sanction. Rather, a warning may be appropriate in many instances.
The Department also has found that situations arise in which the investigation can be shortened
without limiting procedural rights. Additionally, under current regulations, it is unduly cumbersome towithdraw charges when the Department determines that they are not warranted. Finally, the
Department recognizes that an individual with prior violations deserves to have his or her record
cleared after a period of time without further violations. Therefore, the Department is amending
Part 354 of its regulations to articulate a standard for issuance of a warning of an APO violation and
to address the other situations described above.
The Department is amending the regulations to simplify the procedures for investigating
alleged violations and the imposition of sanctions, establish criteria for abbreviating the investigation
of an alleged violation, include private letters of reprimand among the sanctions available, and set a
policy for determining when the Department issues warnings instead of sanctions. Further, theDepartment is revising the provisions dealing with settlement to make them consistent with practice.
The Department also is simplifying the procedures  for withdrawing charging letters. Finally, the
amendments add a sunset provision that codifies existing practice regarding the rescission of charging
letters. [[Page 24392]]G/ADP/N/1/USA/1/Suppl.3
G/SCM/N/1/USA/1/Suppl.3
Page 34
Explanation of Particular Provisions
APO Procedures
The Department's AD regulations were c ontained in 19 CFR Part 353 and its CVD
regulations were contained in 19 CFR Part 355. Parts 353 and 355 each contained separate provisions
dealing with the treatment of business proprietar y information and APO procedures. The Department
consolidated the AD and CVD regulations and repealed existing Parts 353 and 355. See Anti-dumping
Duties; Countervailing Duties; Final rule, 62 FR 27295 (19 May 1997). We have drafted the
regulations dealing with APO procedures in light of  this consolidation. Accordingly, these regulations
will be contained in 19 CFR Part 351, subpart C. More specifically, with the exception of the
definitional provisions of Sec. 351.102, the APO procedures will be contained in 19 CFR 351.304,305, and 306. The procedures for imposing sanctions for violation of a protective order are contained
in 19 CFR 354.
Definitions
Section 351.102 is a definitional section, based on previous 19 CFR 353.2 and 355.2. It was
published separately with the May 19 regulations. Insofar as APO procedures are concerned, we
added definitions of two new terms, now contained in the administrative protective order. Because
these definitions apply to APO procedures, we are discussing them here.
The first term, applicant, is defined as an individual representative of an interested party that
has applied for access to business proprietary information under an APO. The second term,
"authorized applicant,'' is defined as an applicant that the Secretary has authorized to receive business
proprietary information under an APO, and is a term borrowed from the practice of the US
International Trade Commission ("ITC'').
One commenter noted that the definition of "applicant'' contained in the Proposed AD/CVD
Procedural Regulations was inconsistent with the description of that definition in the preamble to the
February Notice. This commenter also suggested that a definition of "representative'' be added to the
regulations.
We revised the definition of "applicant'' to make it consistent with the description of that term
provided above. The term "representative'' was defined in the model APO published with the February
Notice. We have revised that definition to refer to an individual, enterprise or entity acting on behalf
of an interested party.
Administrative Protective Order Unit and Central Records Unit
Section 351.103 defines the responsibilities of the Central Records Unit and the
Administrative Protective Order Unit, both of which play a role protecting business proprietary
information. The APO Unit was established with th e reorganization of the Department that became
effective 1 July 1996. Under the reorganization, the APO function is consolidated under the Directorfor Policy and Analysis, and is managed by a Senior APO Specialist who leads the APO Unit. The
Senior APO Specialist is responsible for directing the Department's handling of business proprietary
information.
The Administrative Protective Order Unit and the Dockets Center of the Central Records Unit
have recently been relocated to shared space in room 1870. Because of the proximity of the two
offices, business proprietary information released by the APO Unit to authorized representatives is
conducted through the Dockets Center. Because the relocation of the Dockets Center occurred afterG/ADP/N/1/USA/1/Suppl.3
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the publication of the AD/CVD procedural regulations, we are taking this opportunity to amend
Sec. 351.103 to reflect these changes. Pursuant to Presidential order, security has been increased in
Federal office buildings and delivery couriers are no longer permitted access to the Herbert C. Hoover
Building (HCHB). Consequently, Import Admini stration has created the Dockets Center in
Room 1870. The Dockets Center is accessible directly from the 15th Street courier's entrance toHCHB. Prior to being allowed in the building at this entrance all packages are scanned by
Departmental security personnel. APO materials are picked up at this entrance from the APO Unit.
Section 351.304 Establishing Business Proprietary Treatment of Information.
Section 351.304 sets forth rules concerning the treatment of business proprietary information
in general, and provides persons with the right to request that certain information be consideredbusiness proprietary or be exem pt from disclosure under APO.
Customer Names
One commenter noted that section 777(c)(1)(A) of the Tariff Act of 1930, as amended,
("Act'') protects customer names from disclosure under APO in an investigation only until an order is
published or the investigation is suspended or terminated, and suggested that the regulation should be
revised to reflect this. We have not revised the regulation. The statute does not require the Department
to disclose customer names under APO following publication of an order or following suspension or
termination of the investigation. If the Department's final determination is challenged, parties mayobtain access to customer names under the terms of a judicial protective order. Absent such litigation,
we do not believe it necessary or appropriate to require parties to disclose additional information
under protective order after an investigation has been completed, suspended or terminated.
Identification of Business Proprietary Information
Paragraph (b) of Sec. 351.304 addresses the identification and marking of business
proprietary information in submissions to the Department.
One commenter argued that the Department should clarify how the requirement to mark
business proprietary information applies to materi als in exhibits such as printouts, drawings,
photographs, excerpts from brochures and other similar materials. The commenter pointed out that
such materials are not always clearly identified as business proprietary, leaving the recipient to refer
to the public version to determine whether any particular data are in fact claimed to be confidential.
The Department agrees that all business proprietary information should be marked in
accordance with the regulations. This includes all verification exhibits. It is in the interest of allparties to prevent inadvertent APO violations that can occur when marking is incomplete or
inaccurate. We recognize that marking printouts and voluminous exhibits presents challenges.
Printouts may consist almost entirely of business proprietary information, with public information
limited to certain headings or fields. In such case s, it may be easier for an authorized applicant to
distinguish between public and proprietary information by reviewing the public version rather thansearching for brackets in a document that contains nearly all business proprietary information.
Moreover, because bracketing may be revised by a party within one day of the date of filing (see
below), authorized applicants are encouraged to confirm their identification of public information by
comparison to the public version source in order to avoid an inadvertent release of business
proprietary information.
If a party objects to the submitting person's claim for business proprietary [[Page 24393]]
treatment, the objection must be submitted in writing. The APO Unit is the point of contact for
examining and resolving the issue whether information that is claimed as proprietary meets theG/ADP/N/1/USA/1/Suppl.3
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standards in Sec. 351.105 of the AD/CVD procedur al regulations that the Department published
separately on 19 May 1997.
Public Versions
Paragraph (c) of Sec. 351.304 concerns the public version of a business proprietary
submission, provides for a one-day lag rule (see also Sec. 351.303(c)(2)), and addresses corrections to
errors in bracketing business proprietary information. We reiterate that the Secretary will enforce
vigorously the requirement for public summaries, and will grant claims that summarization is
impossible only in exceptional circumstances. To assist in ensuring consistent enforcement of the
Department's requirements for public summarization of numerical data and narrative portions of
submissions, the APO Unit is the point of contact for examining and resolving complaints aboutinadequate public summaries.
One-Day Lag Rule
The one-day lag rule follows existing practice by permitting parties to file a public version of
a document containing business proprietary information one business day after the due date of the
business proprietary version of the document. This pr actice is known as the "one-day lag'' rule. Under
current practice, submitting persons may correct the bracketing of information in the business
proprietary version up to the deadline for submission of the public version (i.e., they have one day in
which to correct bracketing). The Department proposed to slightly modify the one-day lag rule torequire a party to file the final business proprietary version of the document at the same time as the
submitting party files the public version of the document. The specific filing requirements are
contained in Sec. 351.303 of the AD/CVD Procedural  Regulations that the Department published
separately on 19 May 1997. Comments on this provision were addressed in those regulations.
One commenter expressed concern regarding improper disclosure of APO protected
information and the Department's statement that non-bracketed information will be treated as public
information once bracketing has become final. We believe, however, that the commenter
misunderstood the Department's statement. The statement only pertains to a party's own business
proprietary information contained in a document it  has submitted. The Department will always take
and require immediate corrective action when information subject to an APO has been improperly
disclosed and discovered in a reasonable amount of time.
Summarization of Numerical Data
One commenter argued that public summarization of numerical data should not be required,
because the ITC does not require it. Other commenters requested that specific guidelines forsummarization of numerical data be included in the regulation. Some commenters requested greater
flexibility in ranging numbers that are very large or very small.
As one commenter recognized, a public summary, which is addressed in paragraph (c)(1), is
required by section 777(b)(1)(B) of the Act and Article 6.5.1 of the Agreement on Implementation of
Article VI of the General Agreement on Ta riffs and Trade 1994 ("AD Agreement''). Public
summarization of numerical data is crucial to the ability of parties to participate in the Department's
proceedings. Without adequate public summarizati on, interested parties without APO access will not
be able to participate meaningfully in the Department's proceedings. The Department, therefore, will
continue to require summarization of numerical data.
While there may be some benefits to consistent treatment of business proprietary information
between the Department and the ITC, there are differences in each agency's mission that justify
individual practices. Summarization of company- specific numerical information at the ITC is moreG/ADP/N/1/USA/1/Suppl.3
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difficult because the information concerns a company's performance using ``macro'' numbers and
projected data. Moreover, in most cases, the ITC provides aggregate data where such information
would not reveal an individual company's business proprietary information. It is this aggregate data,
which is often available to the public, which is most relevant to the ITC's analysis and determinations.
Information in the Department's proceedings, on the other hand, is often transaction-specific, "micro''information. Such information would be difficult to aggregate across companies and such aggregate
data would be of almost no relevance to the Department's analysis and the public's understanding of
that analysis. Therefore, it is preferable to continue to require that such information be ranged or
indexed.
Omission of specific criteria for public summarization of numerical data previously contained
in Secs. 353.32(b)(1) and 355.32(b)(1) was an oversight. We are including the criteria for adequatesummarization in Sec. 351.304(c)(1) of these regulations. The Department has always allowed an
exception to the public summarization requirement when it does not protect business proprietary
information from disclosure, such as with very small or very large numbers. We will continue to
permit such exceptions on a case-by-case basis in accordance with the requirements of
Sec. 351.304(c)(1).Summarization of Narrative Portions of Submissions
One commenter argued that requiring a public summary of the narrative portion of a
submission is a change in policy not required by the Uruguay Round Agreements Act (URAA) and is
too burdensome. The commenter asserted that the proposed regulation will add hundreds of hours and
thousands of dollars to the costs of participating in  these cases. Finally, the commenter stated that the
proposed regulation appears to create a presumption that all business proprietary information is public
unless proven otherwise, which reverses agency practice designed to protect business proprietary
information against disclosure.
The commenter is mistaken that the Department's regulation constitutes a change in practice.
The Department has consistently required a public summary of the narrative portion of a submission
containing business proprietary information.
Laws affecting disclosure of information by the federal government generally are pro-
disclosure. The United States has the most transparent anti-dumping and countervailing dutyprocedures in the world. Protection of business prop rietary information is a narrow exception to the
requirement for disclosure and the preference for transparency. For these reasons, the regulations
require parties to demonstrate that business proprietary information should be withheld from
disclosure, rather than the reverse. There is a pr esumption that business proprietary information can
be publicly summarized to permit meaningful participation by a party that does not have access to
business proprietary information under APO.
Summarization of Business Proprietary Information of Other Parties
Three commenters raised concerns whether Sec. 351.304(c)(1) requires authorized applicants
to create public summaries of business proprietary information submitted by other parties.
[[Page 24394]] It does not. The Department has never required authorized applicants to publiclysummarize the business proprietary information of another party and the Department does not intend
to change that practice. In fact, Sec. 351.304 (c)(1) states that a submitter should not create a public
summary of business proprietary information of another person.G/ADP/N/1/USA/1/Suppl.3
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Nonconforming Submissions
Paragraph (d) of Sec. 351.304 deals with nonconforming submissions, i.e., submissions that
do not conform to the requirements of section 777(b) of the Act and paragraphs (a), (b), and (c) of
Sec. 351.304.
One commenter expressed concern that this provision might be abused by parties making
unwarranted claims of a clear and compelling need to withhold business proprietary information from
disclosure under APO merely to delay release of th at information and thereby imperil the ability of
other parties to participate in the proceeding in a timely fashion. Although we appreciate the concerns
of the commenter, we do not believe that revision of the regulation is necessary. In most cases, the
Department has been able to make determinations as to the status of information in much less than30 days, and we expect that to continue to be the case. As written, the regulation provides greater
flexibility for those determinations which may require more time for decision.
The Department does not believe that the regulation, as drafted, will lead to significant abuse.
The Department's current experience has involved few situations of abuse. To the extent that baselessclaims for non-release of information do occur, the De partment retains the authority to deal with them
expeditiously.
Another commenter proposed that the Department amend this regulation to permit the
Secretary to return any part of a submission that does not meet the requirements of the regulations.We do not agree. For the same reasons the Department revised the one-day lag rule to require a new
complete submission of a document that required correction, we also will require a complete new
submission of any document returned because parts of it are defective.
Section 351.305  Access to Business Proprietary Information
Section 351.305 establishes procedures for obtaining business proprietary information under
APO, including a new procedure based on the use of a single APO for each segment of a proceeding.
The Revised APO
Paragraph (a) of Sec. 351.305 sets forth a new procedure in which the Secretary will place a
single APO on the record for each segment of an AD or CVD proceeding, within two days after a
petition is filed, or an investigation is self-initiated, or five days after the initiation of any other
segment. ("Segment of the proceeding'' is defined in Sec. 351.102 as a portion of the proceeding that
is reviewable under section 516A of the Act.) All authorized applicants will be subject to the terms of
this single APO. This new procedure will streamline the APO process dramatically, and will expeditethe issuance of APOs and the disclosure of in formation to authorized applicants. Commenters
strongly endorsed this new procedure, and agree it will streamline the APO process and expedite the
issuance of APOs and the disclosure of information to authorized applicants.
APO Requirements
Paragraph (a) of Sec. 351.305 also sets forth the requirements that are to be included in the
APO and to which all authorized applicants must adhere. The Department proposed to eliminate from
the APO detailed internal procedures that firms were  required to follow to protect APO information
from unauthorized disclosure. In paragraph (a)(1), the Department proposed to permit each applicantto establish its own internal procedures. All commenters agreed with this proposal, and we have
adopted it in these final regulations.G/ADP/N/1/USA/1/Suppl.3
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Notification of Change of Facts
Paragraph (a)(2) of Sec. 351.305 requires an authorized applicant to notify the Secretary of
any changes in the facts asserted by the authorized applicant in its APO application. Paragraph (a)(2)
does not require certification of these facts. Paragraph 6 of the proposed APO, however, would haverequired the authorized applicant to provide, at the conclusion of a segment of the proceeding, upon
the departure of an authorized applicant from a firm, or when an individual no longer will have access
to APO information, a certification that attests to the individual's compliance with the terms under
which such access is granted. Two commenters questioned the necessity for such individual
certifications. They argued that the thrust of the Department's new rules is to permit firms to develop
their own internal procedures to protect busine ss proprietary information, rather than for the
Department to "micro-manage'' APO issues. Thus, they asserted, firms will have internal proceduresto ensure that persons leaving a firm, for example, destroy or return any documents containing
business proprietary information. They point out that under the procedure proposed by the
Department, applicants already sign an APO application individually, and the additional certification
is therefore superfluous. Moreover, commenters argued, the Court of International Trade's (CIT)
judicial protective orders permit a single certification, and there is no reason to follow two differentprocedures for appellate and administrative proceedings.
The Department agrees. Paragraph (a)(2) continues to require a party to notify the Department
of any changes in the facts asserted by an authoriz ed applicant in its application, but we have deleted
the requirement for certification at the end of the proceeding segment in paragraph 6 of the APO.Authorized applicants are required to notify the Department of any possible violation of the APO; the
additional certification is redundant. The Department presumes all authorized applicants are
complying with the terms of the APO until we dete rmine through an investigation under Part 354 that
a violation of an APO has occurred. Thus we have retained the requirement that parties notify the
Department and other parties of changes, but have removed from paragraph 6 of the APO therequirement that every individual certify its compliance with the regulations at the close of the
person's participation under the APO.
Notification of Destruction of Business Proprietary Information
Paragraph (a)(4), now renumbered as paragraph (a)(3), of Sec. 351.305 requires the
destruction of business proprietary information when a party is no longer entitled to it, normally at the
close of a segment of a proceeding. Paragraph 7 of the APO also required an individual certification
from each authorized applicant that it complied wi th the terms of the APO. For the reasons stated
above, we agree this certification is unnecessary. We presume that an authorized applicant will
comply with the terms of the APO requiring destruction of business proprietary information at a
designated time.
We will continue to require, however, notification to the Department of destruction of
business proprietary information. Parties will be able to keep certain business proprietary information
for more than one segment of a proceeding, and discipline in tracking and destroying information is
more[[Page 24395]]important than ever. Therefore the Department will continue to hold partiesaccountable for timely destruction of material when no longer authorized by the APO to have it.
One commenter suggested that the failure to re turn or destroy APO material is a procedural
issue and should not be viewed as constituting a violation of the APO if not satisfied. We disagree.
Until business proprietary information is destroyed, there is a risk of disclosure. The destruction ofbusiness proprietary information material is important to prevent unauthorized disclosure. It is one of
the few specific requirements in the regulations. While the failure to return or destroy may not result
in actual disclosure of business proprietary information, and in certain circumstances may only result
in a warning, it is clearly a violation of the regulations and the APO.G/ADP/N/1/USA/1/Suppl.3
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The Department proposed that an authorized applicant be required to destroy business
proprietary information that the applicant is not au thorized to retain within a thirty-day time period
after the expiration of the time for filing for a judicial or binational panel review of the last segment
for which the authorized applicant may retain the information. Thirty days should cover most
contingencies, but the Department will be willing to grant extensions for good cause shown.
Commenters supported this proposal and we will incorporate it into each APO, which will set specific
deadlines on a case-by-case basis.
Electronic Data
Paragraph 3 of the APO places one restriction on the use of business proprietary information
contained in electronic form; the information can not be accessible by a modem. We are restricting
access to electronic information by modem, but not requiring any specific technical restrictions,
instead leaving the method to be used to the individual authorized applicant. This proposal was
supported by commenters. Commenters suggested a revision of the language of the paragraph to
clarify this requirement, which we have incorporated into paragraph 3 of the APO.
Independent Contractors
The definition of "support staff'' contained in the APO permits the use of independent
contractors to perform photocopying and other production tasks involving APO information, providedthat the independent contractors perform their work on the premises of the authorized applicant (e.g.,
at the firm), and the independent contractors work  under the supervision of an authorized applicant.
Commenters requested a clarification that the Department also will allow parties to use
employees or subcontracted individuals (e.g., courier services) to pick up or deliver APO informationreleased by the Department, and to deliver APO information to other parties. One commenter also
requested a clarification that ``independent contractors'' includes part-time employees. We agree that
support staff and independent contractors can be used for all delivery functions and that ``independent
contractors'' includes part-time employees.
In order to guard against unauthorized disclosu re, however, the Department will continue its
current practice of releasing APO information only if the employee or independent contractor presents
a picture ID and a letter of identification from the fi rm of the authorized applicant that authorizes the
Department to release the APO information to that particular individual.
Remand Proceedings
The Department proposed that the APO permit access to new business proprietary
information submitted in the course of a remand during litigation involving the segment of the
proceeding in which the initial APO was issued. Parties no longer will have to apply separately for
access under an APO during a remand proceeding. Commenters supported this proposal. The APO
issued in each proceeding will reflect this practice.
APO Applications
Paragraph (b) of Sec. 351.305 deals with the APO application process itself, including
permitting parties to use two independent representatives.G/ADP/N/1/USA/1/Suppl.3
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Multiple Authorized Applicants
Under current practice, the Department generally allows only one representative of a party to
have access to business proprietary information under an APO. In response to requests from parties to
proceedings, the Department proposed that two independent representatives of a party be allowedAPO access, with one representative being designated as the lead representative. We also proposed
granting APOs separately to non-legal representatives , who otherwise qualify to receive an APO, only
if they had a significant practice before the Department. The purpose of this proposal was to ensure
that effective sanctions could be imposed to deter APO violations. The Department will consider
requests that more than two independent representatives be designated as authorized applicants on a
case-by-case basis.
Commenters agreed with this proposal, and requested that the Department clarify that the lead
authorized applicant will not be liable for AP O infractions committed by a separately authorized
applicant. We agree. Authorized applicants are responsible for violations committed by any person in
the same firm, but not for violations committed by an individual at another entity that applied for
APO access separately. The lead representative would not be responsible for APO violationscommitted by the separately authorized applicant.
Application for an APO
Paragraph (b)(2) of Sec. 351.305 establishes a ``short form'' application that applicants can
generate from their own word-processing equipm ent. An applicant must acknowledge that any
discrepancies between the application and the Department's APO placed on the record will be
interpreted in a manner consistent with the Department's APO. Parties agreed with this proposal and
we have adopted it in paragraph (b)(2).
APO Application Coverage
Paragraph (b)(2) of Sec. 351.305 also provides that an applicant must apply to receive all
business proprietary information on the record of the particular segment of the proceeding in question.
A party no longer may apply to receive only selected parties' business proprietary information. Thepurpose of this requirement is to eliminate the need for parties to prepare separate APO versions of
submissions for each of the different parties involved in a proceeding and to reduce the number of
APO violations that occur through the inadvertent service of a document containing business
proprietary information to parties not authorized to receive it. In order to avoid forcing parties to
receive submissions in which they have no interest, however, a party may waive service of business
proprietary information it does not wish to have served on it by another party. Thus, for example,
Respondent A may waive its right to be served with a copy of the business proprietary version ofRespondent B's questionnaire response. Nonetheless,  if Respondent A receives any of respondent B's
proprietary information from any party by mi stake, no APO violation will have occurred.
Commenters generally supported the proposal, because it eases the burden on [[Page 24396]]
submitters and reduces the likelihood of inadvertent APO violations.
One commenter strongly objected to the proposal as inconsistent with section 777 of the Act
and burdensome on respondents. The commenter asserted that substitution of a waiver procedure for
party-specific submissions is inadequate because respondents are nonetheless required to accept
submissions by petitioners that contain the business proprietary information of several parties,
including business proprietary information that the respondents may have had no reason to request. Itasserted that by requiring respondents' representatives to accept from petitioners' representatives
documents containing multi-party business proprietary information, the Department is unnecessarily
shifting the burden and responsibility of comp lying with APO procedures from petitioners to
respondents. Furthermore, where counsel is served a business proprietary document and then redactsG/ADP/N/1/USA/1/Suppl.3
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only certain portions designated confidential by the filing party before transmitting the document to
his client, there is no check on whether a proper redaction has been made. Neither the Department nor
other parties have access to, or even knowledge of, the specially redacted version, and this procedure
will heighten the risk of inadvertent disclosure of business proprietary information. Instead, the
commenter argues, if the public summaries prepared by parties meet Commerce guidelines, theinformation contained in any public version of a filed document should be sufficient to inform a party
already knowledgeable of the proprietary data represented by the public summary.
The Department recognizes that these rules place a new burden on a representative to ensure
that when it receives a submission with business proprietary information from multiple parties, it
takes steps to ensure no business proprietary information of another party is disclosed to its client.
Each authorized applicant has pledged to do this when he or she signs the application for access tobusiness proprietary information under an APO. The rules mitigate this additional burden by requiring
parties to clearly identify the person to whom each item of business proprietary information pertains.
Although adequate public summaries are helpful, they are not a substitute for a full discussion of a
party's own business proprietary information. Public summaries serve to assist a party's participation
where other parties' business proprietary information is involved.
Nothing in the statute prohibits these procedures. Section 777 of the Act requires the
Department to "make all business proprietary information presented to, or obtained by it, during a
proceeding * * * available to interested parties who are parties to the proceeding under a protective
order * * *.'' On balance, we believe the procedures adopted will spread the burden for protectingbusiness proprietary information and reduce inadvertent disclosure of business proprietary
information.
Deadline for Application for APO Access
Paragraph (b)(3) of Sec. 351.305 concerns the deadline for applying for access to business
proprietary information under APO. In deciding the question of APO application deadlines, the
Department balances the need to provide maximum access by parties to APO information with the
need to minimize the burden on the Department in processing APO applications, as well as the burden
on parties and the Department that have to serve late applicants with APO information placed on therecord before a late APO is granted. We proposed in paragraph (b)(3) to encourage parties to submit
APO applications before the first questionnaire response is filed, but to permit parties to submit
applications up to the date on which case briefs are due.
Two commenters requested that the Department have no deadline for APO applications. They
did not provide any reason why a representative would need to have access to the entire record after
the time case briefs are filed. Under Sec. 351.309(b), which was published separately with the 19 Mayregulations, written argument will not be accepted after case or rebuttal briefs are filed unless
requested by the Secretary. A party can always provide a representative with the party's own data, and
represent the party before the Department during disclosure of that party's calculations. Providing a
new representative with a record after the clos e of comments would be unduly burdensome for the
Department staff which has extremely tight deadlines for issuing the final determination. Arepresentative can obtain the entire record under judicial protective order during litigation if
necessary. Therefore, we have incorporated the proposed deadline, the day case briefs are due, into
the regulations.
We also have taken into account the burden imposed on parties by APO applications that are
filed after major submissions have been made by other parties to the proceeding. Under current rules,
parties have only two days in which to serve an auth orized applicant that obtained its APO late in the
proceeding with APO information that already has been placed on the record. Under the deadline set
forth in paragraph (b)(3), the burden on parties may increase. We therefore proposed that parties haveG/ADP/N/1/USA/1/Suppl.3
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five days in which to serve late APO applicants. In addition, we required that late applicants be
required to pay the costs associated with the additional production and service of business proprietary
submissions that were served on other parties earlier in the proceeding. Commenters supported these
proposals and they are incorporated into Sec. 351.301, which was published separately.
The Department reemphasizes that it will not allow an APO application filed later in the
proceeding to serve as the basis for extending any administrative deadline, such as a briefing or
hearing schedule.
Approval of the APO Application and the APO Service List
Paragraph (c) of Sec. 351.305 deals with the approval of an APO application. The Department
proposed to approve an application within two days of its receipt in an investigation and within five
days in other AD and CVD proceedings, unless there is a question concerning the eligibility of an
applicant to receive access under APO. In that case, the Secretary will decide whether to approve the
application within 30 days of receipt of the application. We amended the regulation to provide for a
single five-day deadline to provide parties a re asonable time to comment on applications in all
instances.
Commenters generally supported the Department's proposal because it will facilitate the
timely completion of investigations and administ rative reviews by providing expedited access to
business proprietary information to all parties to a proceeding. They suggested that the Department'sregulations also indicate that similarly expedited treatment will be provided to applications for
amendments to APOs. The Department considers an ap plication for an amendment to be subject to the
same procedures as the original application.
Some commenters expressed concern that approving APO applications so quickly may create
problems. In many cases, the APO application will be served by mail on other interested parties, and
commenters were concerned that the Department could approve the application before the
[[Page 24397]] parties have an opportunity to comment on it. When the APO material is already in the
hands of an approved applicant who has filed for access for additional individuals, commenters
asserted it is imperative that parties be informed of the existence of the amended application, and begiven time to react, before APO material is released to any additional individuals. The problem is of
special concern to commenters if the application seeks to add in-house counsel to the APO.
Although the Department agrees that the concer ns raised by these commenters have merit, we
must balance these concerns with the need of applicants to receive APO material expeditiously. We
note that the Department rarely receives objections to applications to amend APOs. However, in
recognition of the concerns raised, we intend to approve applications to amend the Department's APOservice list to include an additional authorized applicant at the end of the five-day period. If a
representative wishes to have its amendment approved  before the five-day deadline, it should submit
its application with a statement that all other parties to the proceeding have consented to the
application.
Commenters proposed that if the APO applicant needs immediate access, service on the other
parties could be made by hand delivery or overnight mail, by facsimile, or by E-mail. Alternatively,
the applicant could file the application as a ``consent motion''. If there is no need for immediate
access, commenters proposed that parties be permitted to serve by mail and that Department approval
be held for five days to ensure that the other parties have had an opportunity to respond. Commentersalso proposed that the regulations also should state that objections to applications must be filed within
two days of receipt of the application and served by hand on the applicant.G/ADP/N/1/USA/1/Suppl.3
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One commenter, on the other hand, was concerned that parties to a case should not be able to
delay release of proprietary documents merely by the objection, on whatever grounds, to the
eligibility of an applicant to obtain information. Rather, the commenter proposed that the Department
enunciate certain grounds that might serve as the proper basis for an objection, such as affiliation with
the party in question, prior violations of protective orders or other ethical rules, or a potential conflictof interest that exists based on work done either within the government or at another firm involving
the same or a similar matter. Commenters did not want parties to have the opportunity to delay
approval of applications by minor objections, su ch as an objection to the number of applicants.
The Department recognizes that the current regulations permit a party to hand-serve an APO
application (or an application for an amendment to the APO service list) on the Department, while
serving the parties by mail. The Department could approve an application before parties even receivednotice that the application had been filed. We are therefore revising Sec. 351.305(b)(2) to require
parties to serve an APO application (including applications for amendments) on the Department and
on the parties in the same manner, whether by hand or by mail. We are also extending the deadline in
Sec. 351.305(c) for approving an APO application (including an application to amend the APO
service list) to five days from two for all segments  of proceedings. These procedures should provide
expedited approval of APO access while preserving the rights of parties to comment on APO
applications. Although the Department may approve an APO application on or before the five-day
deadline, a party objecting to an APO application may elect not to serve its business proprietary
information on the applicant to which it is objecting until the Department has addressed the objection
and has made a decision whether to grant the applicant access to the objecting party's proprietaryinformation.
There are few bases on which a party can legitimately object to granting an APO so long as
the applicant meets the conditions established in the APO application and APO. An objection based
on the number of applicants would generally be considered frivolous; the Department does notinterfere with a party's choice of representation or staffing. The only area where Import
Administration has the authority to deny an individual the right to practice before it involves a
finding, pursuant to our very detailed APO violation regulations, that a party has violated a protective
order and that the violation warrants the extreme sanction of a ban from practice before Import
Administration. An allegation in this area would require a detailed investigation. The restriction onpractice before the Department because of an APO violation would be imposed through the APO
violation proceeding, not through an  objection to an APO application.
Import Administration does not have authority to address the post-employment restrictions
contained in 18 U.S.C. 207. The authority to interpret post-employment restriction resides with the
Assistant General Counsel for Administration at  the Department of Commerce. Nor does the
Department have the authority to advise on the application of state professional conduct rules to aparty's practice before the Department. Any allegations of violations of the rules of a particular bar
association must be raised with that organization.
Alternative Methods of APO Approval
In the October Notice, several commenters sugge sted alternative methods of approving APOs,
such as the creation of a pre-approved roster of members of a representative's firm, or permitting a
lead signatory in a firm to grant access to the other professionals within the firm. The Department did
not adopt either alternative because there may be facts peculiar to a particular AD or CVD proceeding
or a segment of a proceeding that render an otherwise eligible applicant ineligible, and the rosterapproach would preclude a party from raising legitimate objections to the approval of an APO
application. Likewise, the lead signatory approach w ould preclude parties from exercising their right
to object, for good cause, to the disclosure of APO information to a particular individual.G/ADP/N/1/USA/1/Suppl.3
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Two commenters continued to support the roster system. One pointed out that such a
procedure would still allow Commerce to review the individual eligibility of each applicant and
would allow far greater flexibility on the part of the participating firm. These commenters did not
address the points raised by the Department in opposing the proposal, such as notice and certainty. As
noted above, commenters expressed concern that th ey have an advance opportunity to comment on an
APO application before access is granted. They were concerned that the Department might approve an
APO application before parties had had a chance to review it because of the short two-day deadline
the Department proposed for approving an application. We are therefore not adopting either
alternative method of approving APO applications . The maximum five-day deadline for approving an
application should enable parties to add representatives without undue delay.
Department Notification of APO Service List
If an application is approved, the Secretary will include the name of the authorized applicant
on an APO service list that the Department will maintain for each segment of a proceeding.
Paragraph (c) of Sec. 351.305 provides that[[Page 24398]]the Secretary will use the most expeditious
means available to provide parties with the APO service list on the day the list is issued or amended.
Commenters generally supported the proposal. While they supported a flexible approach with
respect to promulgating and updating the APO service list, they also expressed concern with the lack
of specificity as to the form of notice to anticipate. Commenters were particularly concerned with the
use of the Internet to the extent the Department is contemplating reliance on electronic mail, based onthe uncertainty of the timely receipt of information (particularly where the parties are out of the
office) or even whether the information would be received at all. To the extent the Department elects
to rely on any Internet or e-mail notification, commenters urged the Department to also send a copy of
the notification by mail to the parties to en sure that actual notification was received.
Other commenters stated that the preferred method is by facsimile. They stated that most
businesses, including law firms practicing before the Department, have procedures to ensure that
incoming facsimiles rapidly come to the attention of the indicated recipient. Commenters noted that
these procedures are not necessarily in place with  respect to the Internet and transmission by mail
involves at least two days of delay.
At this time, the Department will fax every chan ge in the APO service list directly to each
party on the service list for each proceeding. In addition, until the Department is assured that parties
are routinely receiving notification of the APO service list by fax, the Department will mail hard
copies of the service to the lead applicant. This will provide certainty and consistency necessary to
effectively monitor APO service lists. APO service lists will be available to the public on Import
Administration's home page on the Internet as a public service. The Department will adapt theseprocedures to advances in technology adopted by the trade bar in the future to ensure it provides
notice as efficiently as possible.
Section 351.306 Use of Business Proprietary Information.
Section 351.306 sets forth rules concerning the use of business proprietary information.
Use of Business Proprietary Information by the Secretary
Paragraph (a) is based on existing Secs. 353.32(f) and 355.32(f). One change is the reference
in paragraph (a)(4) to the disclosure of information to the US Trade Representative under 19 U.S.C.
3571(i). Section 3571(i) (section 281(i) of the URAA) deals with the enforcement of US rights under
the World Trade Organization Agreement on Subsidies and Countervailing Measures. Also, although
the regulation itself is little changed, we note that the URAA amended section 777(b)(1)(A)(i) of theG/ADP/N/1/USA/1/Suppl.3
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Act to clarify that the Department may use business proprietary information for the duration of an
entire proceeding (from initiation to termination or revocation), as opposed to merely the particular
segment of a proceeding for which information was submitted.
Use of Business Proprietary Information by Parties
Section 777 of the Act permits the Department to use business proprietary information for the
duration of an entire proceeding, from initiation to termination or revocation. Under the current
regulations, the Department limits the record of a segment of a proceeding to information submitted
during that particular segment of the proceeding.  19 CFR 353.34(a). The Department limits the use of
business proprietary information by representatives of parties to the segment of the proceeding in
which the information was submitted. 19 CFR 353.34(b)(3)(ii). Although the Department may haveaccess to business proprietary information from a nother segment of the proceeding, the Department
may not base a decision on business proprietary information that is not on the record of the particular
segment of the proceeding.
The URAA identifies three specific instances in which the Department would be expected to
use information from different segments of proceedings or different proceedings: (1) Information
from prior segments may be used in a sunset or ch anged circumstances review of the same proceeding
(section 777(b)(1) of the Act); (2) business proprietary information from a sunset or changed
circumstances review resulting in revocation may be used in an investigation on the same
merchandise from the same country initiated within two years of revocation (section 777(b)(3) of theAct); and (3) information from a terminated invest igation may be used in a new investigation on the
subject merchandise from the same and another coun try within three months of termination of the
prior investigation (sections 704 and 734 of the Act).
Paragraph (b) of Sec. 351.306 deals with the use of business proprietary information by
parties from one segment of a proceeding to another. In the February notice, the Department proposed
to permit parties to retain business proprietary information released under APO for two segments of
the proceeding subsequent to that in which the information was placed on the record. Paragraph (b)
provided that normally an authorized applicant may use such information only in the particular
segment of the proceeding in which the information was obtained. An authorized applicant could, weproposed, place business proprietary information received in one segment of a proceeding on the
record of either of two subsequent consecutive segments (generally administrative reviews under
section 751(a)) if the information is relevant to an issue in the subsequent segments.
We have modified this paragraph to give the Department greater flexibility in determining
how business proprietary information may be used. Our intention at this time is to allow an authorized
applicant to retain business proprietary information obtained in one segment of a proceeding for twosubsequent consecutive administrative reviews and to use such business proprietary information in
those administrative reviews or other segments of the proceeding initiated during that time. This use
of business proprietary information will be authorized by the terms of the APOs.
Four commenters wanted to expand the policy by having essentially unlimited access to
proprietary information for the entire duration of the proceeding and, in some cases, even across
proceedings. These commenters suggested that any changes should be applied to current APOs, as
well as future APOs. They argued that such broad ability to use business proprietary information was
consistent with the statute and would best enable them to identify inconsistencies in submissions from
one segment of a proceeding to another.
Four commenters supported the proposed policy with certain restrictions. These commenters
urged the Department to prohibit wholesale incorporation of business proprietary information from
another segment of the proceeding and, instead, re quire that any business proprietary informationG/ADP/N/1/USA/1/Suppl.3
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submitted from another segment of the proceeding be relevant to the segment in which it is submitted.
Additionally, some of these commenters indicated that a shorter period of time (one [[Page 24399]]
segment) would be sufficient to achieve the Department's goals.
Four commenters strongly opposed any change to current policy. They argued that the limited
changes to the statute cannot justify the significant changes proposed in the regulations. This group
argued that statutory requirements and prior CIT decisions regarding the record for review effectively
prohibit the changes proposed by the Department. This group also cited concerns that the broader
ability to retain and use business proprietary information would increase the likelihood of disclosure
of that information and thereby discourage parties from participating in proceedings before the
Department. The group contended that these changes will also impose additional burdens on parties
(to monitor the use of their business proprietary information in subsequent segments and to whom
their business proprietary information is released, and to maintain the ability to  justify all differences
in their reported information from one segment to the next). The group contended that this practice
would also increase burdens on the Department to document and verify the bases for any differences
across segments of proceedings.
We have not broadened the proposal to permit unlimited use of business proprietary
information across all segments of a proceeding, or across all proceedings other than those specified
in the statute. There is no legal support for the request to utilize business proprietary information
across proceedings.
Nor do we agree with commenters totally opposing use of business proprietary information in
more than one segment. The statute and CIT precedent do not prohibit the proposed changes. The
proposed changes would provide for inclusion of the information from another segment on the record
of the segment in question. The proposed changes were not based on statutory changes made by the
URAA, but, rather, rely on authority which the Depart ment has always possessed. We agree that these
changes will create some additional burdens on all parties to monitor subsequent segments of
proceedings to avoid release of their business proprietary information to a party to whom they object.
These are rare occurrences, and we have attempted to minimize this burden and, thereby, minimize
the likelihood that these changes will cause responden ts to refuse to participate in the Department's
proceedings due to concerns about their business proprietary information. Any additional burden onthe Department will be minimized by the Department's ability to reject submissions of irrelevant
business proprietary information from other segments.
We agree that wholesale incorporation of business proprietary information from prior
segments should be rejected unless absolutely necessary. We also agree that the Department should
reject business proprietary information from another segment which is not relevant to the ongoing
segment. Such decisions, however, may be difficult to make and may present additional bases forappeal to the CIT. Therefore, the Department does not intend to make a decision on relevancy every
time a party submits information from a prior segment into the current segment, but it reserves the
right to do so in appropriate circumstances. At the same time, in order to avoid imposing undue
burdens on the Department, we intend to consider such information only to the extent that is relevant
to issues raised by interested parties or that the Department otherwise deems appropriate.
The Department expects that there will be a multitude of practical problems that will have to
be worked out over time and with experience under these new procedures. Initially we will permit
parties to retain business proprietary information for two additional segments (generally
administrative reviews) after the segment in which the business proprietary information wassubmitted. This is a reasonable compromise between the long-held desires of petitioners to be able to
address perceived inconsistencies between segments, and respondents' concerns that their business
proprietary information not be distributed among representatives and across segments for
indeterminate periods. Once business proprietary information is placed on the record of a subsequentG/ADP/N/1/USA/1/Suppl.3
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Page 48
segment of the proceeding, it remains a permanent ad dition to the later record, unless the Department
rejects the information.
The Department believes that this new practice normally will be used to move business
proprietary information from an investigation or ad ministrative review to two subsequent consecutive
administrative reviews. The Department also intends to authorize the use of business proprietary
information submitted in an investigation or admini strative review in other segments, such as scope
proceedings or changed circumstances reviews, init iated during those two administrative reviews. If
the Department determines, as it gains experience, that  it is appropriate to modify this practice, it will
do so by changing the terms of the APOs.
Identifying Parties Submitting Business Proprietary Information
Paragraph (c) of Sec. 351.306 addresses identification of submitters of business proprietary
information in submissions containing business proprietary information from multiple persons. The
Department is requiring that APO applicants be required to request access to all business proprietary
information submitted in a particular segment of a proceeding. In addition, we proposed that in the
case of submissions, such as briefs, that include business proprietary information of different parties,
the submission must identify each piece of busine ss proprietary information included and the party to
which the information pertains. (For example, Information Item #1 came from Respondent A,
Information Item #2 came from Respondent B, etc.) The purpose of this proposal is to enable parties
to submit a single business proprietary version of a submission that may be served on all partiesrepresented by authorized applicants, instead of forcing parties to submit and serve different APO
versions for each of the parties involved in a proceeding. In the case of a submission served on a party
not represented by an authorized applicant (a relatively rare event), the submitter still would have to
prepare and serve a separate submission containing only that party's business proprietary information.
Three commenters supported this proposal. They agree it will reduce the possibility of APO
violations when documents contain business propriet ary information provided by more than one party.
Commenters further suggested that, when all business proprietary information in a submission is
obtained from a single party, the Department's regulations permit the submitting party to identify the
original submitter of the business proprietary information only once, on the title page of thesubmission. We agree and have incorporated this into Sec. 351.306(c).
Commenters also suggested that the Department should clarify the proposed rule by stating
that only business proprietary information of another party needs to be specifically identified by
source. The commenter proposed that any business pr oprietary information that is bracketed in the
submission should be assumed to be business proprietary information belonging to the party
submitting the document unless otherwise identified as business proprietary information of anotherparty. The commenter pointed out that[[Page 24400]]without this clarification, submissions to the
Department would become cluttered with notations as to the original submitter of the business
proprietary information and it may become very difficult to read the submission. We agree, and have
incorporated this suggestion into Sec. 351.306(c) of the regulations.
One commenter urged the Department to clarify what is meant by the term "identify
contiguously with each item'' so that parties can adapt their procedures accordingly. The commenter
noted that particularly troublesome would be documents containing multi-party information on a
single line. The commenter requested that the Department should clarify whether the identifying
markings are also required in public versions.
The term "contiguous'' was used to require identification closely enough with the item of
business proprietary information so a party could clearly and quickly identify the original submitter of
the business proprietary information. We do not want to be so specific that parties lose flexibility toG/ADP/N/1/USA/1/Suppl.3
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respond to different situations. Documents can vary, and readability must not be sacrificed. In some
situations, a notation next to the item of business proprietary will best serve everyone's interests. In a
more complicated document, footnotes might be better. Since the public version of a submission
should be identical with the business proprietary version except for the deletion of the proprietary
information, the public submission will contain the identity of the original submitter of the proprietaryinformation.
Some commenters objected to the Department's proposed exception (Sec. 351.306(c)(2)) to
the single-version business proprietary information document rule where a party does not have a
representative. They argued that it undermined the benefits gained from not having to file respondent-
specific submissions and that adequate public summaries would be adequate.
The Department believes that this requirement is necessary. A party needs disclosure of
another party's arguments against it to adequately defend itself. To fail to do so would not provide
sufficient transparency to the proceeding.
Concern was expressed regarding the potential mismarking of business proprietary
information in a document, and the reliance thereafter on the information mismarked by another party.
The commenter urged that the latter party's reliance on the mismarked information should not
constitute a breach of the protective order. Another commenter took the opposite view. It suggested
that if a party mistakenly indicates the wrong original submitter of business proprietary information in
a submission, the party should only be required to correct the mistake, and the mistake should notconstitute an APO violation in and of itself. The commenter further argued, however, that if, as a
result of a mistake, a party were to disclose business proprietary information to another party not
authorized to receive it, that disclosure would constitute an APO violation under the existing APO
rules.
Only the party creating the submission from multiple parties' business proprietary information
knows with certainty the person that originally submitted the business proprietary information.
Therefore the submitter must be responsible for the accuracy of the labeling. This is the purpose of the
proposal. Unless an authorized applicant knows that an identification is incorrect, he or she should be
entitled to rely on the identification. Otherwise the requirement serves no purpose. An unauthorizeddisclosure resulting from inaccurate labeling that le ads to an APO violation will be attributed to the
person labeling the original submitter of the business proprietary information.
Another commenter opposed the proposal altogether, arguing that the proposal is an attempt
to shift costs and responsibility from petitioner to respondent, causing respondent to lose time
reviewing petitioner's case brief in the five days that they have to prepare rebuttal briefs under
proposed Sec. 351.309(d). The commenter argued that while the number of inadvertent APO
violations will decrease for petitioner's counsel, they will increase for respondent's counsel, because
respondent's counsel must now make sure petitioner's documents do not include APO material that
should not be released.
These proposed procedures formalize what has been the Department's practice since 1992.
Moreover, we believe that these proposals balance the different interests of petitioners and
respondents. Although there are risks of inadvert ent APO violations associated with any option, we
believe that the fact that all authorized applicants will have access to the business proprietary
information of all parties (whether or not service is waived) should reduce significantly the number of
inadvertent disclosures. In this regard, the inad vertent service on an authorized applicant of a
submission containing information of a party for which the applicant has waived service would not
constitute an APO violation.G/ADP/N/1/USA/1/Suppl.3
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Administrative Protective Order Sanction Procedures
Five parties commented on the proposed amendments to the APO sanction procedures. All
commenters supported the proposed changes. Upon further reflection, the Department is amending its
regulations consistent with the proposed regulations. As explained below, the Department also ismaking clerical revisions to use terms "administrative protective order'' and "business proprietary
information'' consistently throughout this part, and to conform the regulations to changes made in the
organization of the Department on 1 July 1996.
Section 354.2 Definitions.
The definition section is revised to be consistent with the definitions contained in the
Department's proposed anti-dumping and counter vailing procedural regulations at 19 CFR 351.102.
The definitions of the terms "administrative protective order'', "Secretary'', "segment of the
proceeding'', and "Senior APO Specialist'' are added to Part 354 in Sec. 354.2.
The definition of "director'' is revised to reflect the reorganization of the Department that
became effective 1 July 1996. Under the reorganization, the APO function is consolidated under the
Director for Policy and Analysis, and is manage d by a Senior APO Specialist. The Senior APO
Specialist is responsible for directing the Department's handling of business proprietary information.
The Senior APO Specialist assists with investigations of alleged APO violations, which streamlines
the APO violation investigation process. A defi nition of "Senior APO Specialist'' is added in
Sec. 354.2, and the definition of "director'' is revised to include the Senior APO Specialist. The
definition of director is also amended to conform the regulation to the changes in office director
positions made in the 1 July 1996 reorganization.
Section 354.5 Report of violation and investigation.
Paragraph (a)(1) is amended to require that all allegations of APO violations be reported to
either the Senior APO Specialist or the Office of Chief Counsel for the Department. Under the current
practice, alleged violations are reported to the APO specialist in the Office of Investigations or Office
of Compliance, depending on where the alleged violation occurred. The amendment conforms theregulation to the 1 July 1996 reorganization of the Department.[[Page 24401]]
Paragraphs (d) (7) and (8) are combined and revised to reflect changes in the Act and
Department practice regarding the use of business proprietary information in segments of proceedings
other than the one in which the information was originally submitted. These changes are discussed
above. The Department's procedural regulations will now allow use of business proprietary
information in more than one segment of a proceed ing or another proceeding in limited situations.
The segments of proceedings in which business proprietary information may be used will be
contained in the administrative protective order. Paragraphs (d) (7) and (8) are combined and revised
to reflect these changes.
Classification
E.O. 12866
This rule has been determined to be not significant for purposes of Executive Order 12866.
Paperwork Reduction Act
This rule does not contain a collection of information for purposes of the Paperwork
Reduction Act of 1980, as amended (44 U.S.C. 3501 et seq.).G/ADP/N/1/USA/1/Suppl.3
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Regulatory Flexibility Act
The Assistant General Counsel for Legislation and Regulation of the Department of
Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration thatthese amendments would not have a significant economic impact on a substantial number of small
business entities because the rule that they would amend does not have such an impact and,
furthermore, the amendments would tend to simplif y the procedures pertaining to administration of
APO sanctions. The Deputy Under Secretary for International Trade is responsible for regulations
governing sanctions for violations of APOs. The Assistant Secretary for Import Administration is
responsible for the regulations governing issuance and use of APOs.
List of Subjects in 19 CFR Parts 351 and 354
Business and industry, Foreign trade, Imports, Trade practices.
Dated: 29 April 1998.
Timothy J. Hauser,
Deputy Under Secretary for International Trade.
Dated: 29 April 1998.
Robert S. LaRussa,
Assistant Secretary for Import Administration.
For the reasons stated, 19 CFR chapter III is amended as follows:
PART 351--ANTI-DUMPING AND COUNTERVAILING DUTIES
1. The authority citation for part 351 continues to read as follows:
Authority:  5 U.S.C. 301; 19 U.S.C. 1202 note; 19 U.S.C. 1303 note; 19 U.S.C. 1671 et seq.;
and 19 U.S.C. 3538.
2. Section 351.103 is revised as follows:
Sec. 351.103  Central Records Unit and Administrative Protective Order Unit.
(a) Import Administration's Central Records Unit maintains a Public File Room in
Room B 099 and a Dockets Center in Room 1870, US Department of Co mmerce, Pennsylvania
Avenue and 14th Street, NW., Washington, D.C. 20230. The office hours of the Public File Room and
Dockets Center are between 8:30 a.m. and 5:00 p.m. on business days. Among other things, the
Central Records Unit is responsible for maintain ing an official and public record for each anti-
dumping and countervailing duty proceeding (s ee Sec. 351.104), the Subsidies Library (see
section 775(2) and section 777(a)(1) of the Act) , and the service list for each proceeding (see
paragraph (c) of this section).
(b) Filing of documents with the Department. While persons are free to provide
Department officials with courtesy copies of documents, no document will be considered as having
been received by the Secretary unless it is submitted to the Import Administration Dockets Center in
Room 1870 and is stamped with the date and time of receipt.
(c)  Service list. The Central Records Unit will maintain and make available a service list
for each segment of a proceeding. Each interested part y that asks to be included on the service list for
a segment of a proceeding must designate a person to receive service of documents filed in that
segment. The service list for an application for a scope ruling is described in Sec. 351.225(n).G/ADP/N/1/USA/1/Suppl.3
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(d)  Import Administration's Administrative Protective Order Unit (APO Unit) is located
in Room 1870, US Department of Commerce, Pennsylvania Avenue and 14th Street, N.W.,
Washington, D.C. 20230. The office hours of the APO Unit are between 8:30 a.m. and 5:00 p.m. on
business days. Among other things, the APO Unit is responsible for issuing administrative protective
orders (APOs), maintaining the APO service list, releasing business proprietary information under
APO, and APO violation investigations. The APO Un it also is the contact point for questions and
concerns regarding claims for business proprietary treatment of information and proper public
versions of submissions und er Sec. 351.105 and Sec. 351.304.
3. Sections 351.304, 351.305 and 351.306 are added to subpart C to read as follows:
Sec. 351.304  Establishing business proprietary treatment of information.
(a)  Claim for business proprietary treatment. (1) Any person that submits factual
information to the Secretary in connection with a proceeding may:
(i)  Request that the Secretary treat any part of the submission as business proprietary
information that is subject to disclosure only under an administrative protective order,
(ii)  Claim that there is a clear and compelling need to withhold certain business
proprietary information from disclosure under an administrative protective order, or
(iii)  In an investigation, identify customer names that are exempt from disclosure under
administrative protective order under section 777(c)(1)(A) of the Act.
(2)  The Secretary will require that all business proprietary information presented to, or
obtained or generated by, the Secretary during a segment of a proceeding be disclosed to authorizedapplicants, except for
(i)  Customer names submitted in an investigation,(ii)  Information for which the Secretary finds that there is a clear and compelling need to
withhold from disclosure, and
(iii)  Privileged or classified information.(b)  Identification of business proprietary information. (1) In general. A person
submitting information must identify the information for which it claims business proprietary
treatment by enclosing the information within si ngle brackets. The submitting person must provide
with the information an explanation of why each item of bracketed information is entitled to business
proprietary treatment. A person submitting a request for business proprietary treatment also must
include an agreement to permit disclosure under an administrative protective order, [[Page 24402]]
unless the submitting party claims that there is  a clear and compelling need to withhold the
information from disclosure under an administrative protective order.
(2)  Information claimed to be exempt from disclosure under administrative protective
order. (i) If the submitting person claims that there is a clear and compelling need to withhold certain
information from disclosure under an administrative protective order (see paragraph (a)(1)(ii) of this
section), the submitting person must identify th e information by enclosing the information within
double brackets, and must include a full explanation of the reasons for the claim.
(ii)  In an investigation, the submitting person may enclose business proprietary customer
names within double brackets (see paragraph (a)(1)(iii) of this section).G/ADP/N/1/USA/1/Suppl.3
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(iii)  The submitting person may exclude the information in double brackets from the
business proprietary information version of the submission served on authorized applicants. See Sec.
351.303 for filing and service requirements.
(c)  Public version. (1) A person filing a submission that contains information for which
business proprietary treatment is claimed must fi le a public version of the submission. The public
version must be filed on the first business day after the filing deadline for the business proprietary
version of the submission (see Sec. 351.303(b)). The public version must contain a summary of the
bracketed information in sufficient detail to permit a reasonable understanding of the substance of the
information. If the submitting person claims that summarization is not possible, the claim must be
accompanied by a full explanation of the reasons supporting that claim. Generally, numerical data willbe 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 version of the submission along with the
public version (see Sec. 351.303(b)). At the close of business on the day on which the public version
of a submission is due under paragraph (c)(2) of  this section, however, the bracketing of business
proprietary information in the original business proprietary version or, if a corrected version is timelyfiled, the corrected business proprietary version will become final. Once bracketing has become final,
the Secretary will not accept any further corrections to the bracketing of information in a submission,
and the Secretary will treat non-bracketed information as public information.
(d) Nonconforming submissions. (1) In general.  The Secretary will return a submission
that does not meet the requirements of section 777(b) of the Act and this section with a written
explanation. The submitting person may take any of the following actions within two business days
after receiving the Secretary's explanation:
(i) Correct the problems and resubmit the information;
(ii)  If the Secretary denied a request for busin ess proprietary treatment, agree to have the
information in question treated as public information;
(iii)  If the Secretary granted business proprietary treatment but denied a claim that there
was a clear and compelling need to withhold information under an administrative protective order,agree to the disclosure of the information in question under an administrative protective order; or
(iv)  Submit other material concerning the subject matter of the returned information. If
the submitting person does not take any of these actions, the Secretary will not consider the returned
submission.
(2)  Timing. The Secretary normally will determine the status of information within 30
days after the day on which the information was submitted. If the business proprietary status of
information is in dispute, the Secretary will treat the relevant portion of the submission as business
proprietary information until the Secretary decides the matter.G/ADP/N/1/USA/1/Suppl.3
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Sec. 351.305  Access to business proprietary information.
(a)  The administrative protective order. The Secretary will place an administrative
protective order on the record within two days after the day on which a petition is filed or an
investigation is self-initiated, or five days after initiating any other segment of a proceeding. Theadministrative protective order will require the authorized applicant to:
(1)  Establish and follow procedures to ensure that no employee of the authorized
applicant's firm releases business proprietary information to any person other than the submitting
party, an authorized applicant, or an appropriate De partment official identified in section 777(b) of the
Act;
(2)  Notify the Secretary of any changes in the facts asserted by the authorized applicant
in its administrative protective order application;
(3)  Destroy business proprietary information by the time required under the terms of the
administrative protective order;
(4)  Immediately report to the Secretary any apparent violation of the administrative
protective order; and
(5)  Acknowledge that any unauthorized disclosure may subject the authorized applicant,
the firm of which the authorized applicant is a partner, associate, or employee, and any partner,
associate, or employee of the authorized applicant's firm to sanctions listed in part 354 of this chapter
(19 CFR part 354).
(b)  Application for access under administrative protective order. (1) Generally, no more
than two independent representatives of a party to the proceeding may have access to business
proprietary information under an administrative protective order. A party must designate a lead firm if
the party has more than one independent authorized applicant firm.
(2)  A representative of a party to the proceeding may apply for access to business
proprietary information under the administrative protective order by submitting Form ITA-367 to the
Secretary. Form ITA-367 must identify the appli cant and the segment of the proceeding involved,
state the basis for eligibility of the applicant for access to business proprietary information, and state
the agreement of the applicant to be bound by the administrative protective order. Form ITA-367 may
be prepared on the applicant's own word-processing system, and must be accompanied by a
certification that the application is consistent with Form ITA-367 and an acknowledgment that any
discrepancies will be interpreted in a manner consistent with Form ITA-367. An applicant must applyto receive all business proprietary information on the record of the segment of a proceeding in
question, but may waive service of business proprietary information it does not wish to receive from
other parties to the proceeding. An applicant must serve an APO application on the other parties in the
same manner and at the same time as it serves the application on the Department.
(3)  To minimize the disruption caused by late applications, an application should be
filed before the first[[Page 24403]]questionnaire response has been submitted. Where justified,
however, applications may be filed up to the date on which the case briefs are due, but any applicant
filing after the first questionnaire response is submitted will be liable for costs associated with the
additional production and service of business proprietary information already on the record. Partieshave five days to serve their business propriet ary information already on the record to applicants
authorized to receive such information after su ch information has been placed on the record.G/ADP/N/1/USA/1/Suppl.3
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(c)  Approval of access under administrative protective order; administrative protective
order service list. 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 applicantaccess 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.
Sec. 351.306  Use of business proprietary information.
(a)  By the Secretary. The Secretary may disclose business proprietary information
submitted to the Secretary only to:
(1)  An authorized applicant;(2)  An employee of the Department of Commerce or the International Trade
Commission directly involved in the proceeding in which the information is submitted;
(3)  An employee of the Customs Service directly involved in conducting a fraud
investigation relating to an anti-dumping or countervailing duty proceeding;
(4)  The US Trade Representative as provided by 19 U.S.C. 3571(i);
(5)  Any person to whom the submitting person specifically authorizes disclosure in
writing; and
(6)  A charged party or counsel for the charged party under 19 CFR part 354.
(b)  By an authorized applicant. An authoriz ed applicant may retain business proprietary
information for the time authorized by the terms of the administrative protective order. An authorized
applicant may use business proprietary information for purposes of the segment of a proceeding inwhich the information was submitted. If business proprietary information that was submitted in a
segment of the proceeding is relevant to an is sue in a different segment of the proceeding, an
authorized applicant may place such informatio n on the record of the subsequent segment as
authorized by the APO.
(c)  Identifying parties submitting business proprietary information. (1) If a party submits
a document containing business proprietary information of another person, the submitting party mustidentify, contiguously with each item of business proprietary information, the person that originally
submitted the item (e.g., Petitioner, Respondent A, Respondent B). Business proprietary information
not identified will be treated as information of the person making the submission. If the submission
contains business proprietary information of only one person, it shall so state on the first page and
identify the person that originally submitted the business proprietary information on the first page.
(2)  If a party to a proceeding is not represented by an authorized applicant, a party
submitting a document containing the unrepresented party's business proprietary information must
serve the unrepresented party with a version of the document that contains only the unrepresented
party's business proprietary information. The document must not contain the business proprietaryinformation of other parties.
(d)  Disclosure to parties not authorized to receive business proprietary information. No
person, including an authorized applicant, may disclose the business proprietary information ofG/ADP/N/1/USA/1/Suppl.3
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another person to any other person except another authorized applicant or a Department official
described in paragraph (a)(2) of this section. Any person that is not an authorized applicant and that is
served with business proprietary information must re turn it to the sender immediately, to the extent
possible without reading it, and must notify th e Department. An allegation of an unauthorized
disclosure will subject the person that made the alleged unauthorized disclosure to an investigationand possible sanctions under 19 CFR part 354.
PART 354 [AMENDED]
4-5. The authority citation for part 354 is revised to read as follows:
Authority : 5 U.S.C. 301, and 19 U.S.C. 1677.
6. All references in part 354 to "protective order'' are revised to read "administrative
protective order'', all references to "proprietary information'' are revised to read "business proprietary
information'', and all references to "appropriate Director'' are revised to read "Director''.
Sec. 354. 1  [Amended]
7. Section 354.1 is amended by removing the citations ``19 CFR 353.30 and 355.20''
and replacing them with ``19 CFR 351.306''.
8. Section 354.2 is revised as follows:
Sec. 354.2  Definitions.
For purposes of this part:
Administrative protective order (APO) means an  administrative protective order described in
section 777(c)(1) of the Tariff Act of 1930, as amended; APO Sanctions Board means the
Administrative Protective Order Sanctions Board.
Business proprietary information means information the disclosure of which the Secretary has
decided is limited under 19 CFR 351.105, or successor regulations;
Charged party means a person who is charged by the Deputy Under Secretary with violating a
protective order;
Chief Counsel means the Chief Counsel for Import Administration or a designee;Date of service means the day a document is deposited in the mail or delivered in person;Days means calendar days, except that a deadline which falls on a weekend or holiday shall
be extended to the next working day;
Department means the United States Department of Commerce;Deputy Under Secretary means the Deputy Under Secretary for International Trade or a
designee;
Director means the Senior APO Specialist or an office director under a Deputy Assistant
Secretary, International Trade Administration, or a designee;G/ADP/N/1/USA/1/Suppl.3
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Lesser included sanction means a sanction of the same type but of more limited scope than
the proposed sanction; thus a one-year bar on representations before the International Trade
Administration is a lesser included sanction of a proposed seven-year bar;
Parties means the Department and the charged party or affected party in an action under this
part;
Presiding official means the person authoriz ed to conduct hearings in administrative
proceedings or to rule on any motion or make any determination under this part, who may be an
Administrative Law Judge, a He aring Commissioner, or such other person who is not under the
supervision or [[Page 24404]] control of the Assistant Secretary for Import Administration, the
Deputy Under Secretary for International Trade, the Chief Counsel for Import Administration, or a
member of the APO Sanctions Board;
Proprietary information means information the disclosure of which the Secretary has decided
is limited under 19 CFR part 351 including business or trade secrets; production costs; distribution
costs; terms of sale; prices of individual sales, likely sales, or offers; names of customers, distributors,or suppliers; exact amounts of the gross net subsidies received and used by a person; names of
particular persons from whom proprietary information was obtained; and any other business
information the release of which to the public would cause substantial harm to the competitive
position of the submitter;
Secretary means the Secretary of Commerce or a designee;
Segment of the proceeding means a portion of an anti-dumping or countervailing duty
proceeding that is reviewable under section 516A of the Tariff Act of 1930, as amended.
Senior APO Specialist means the Department employee under the Director for Policy and
Analysis who leads the APO Unit and is responsi ble for directing Import Administration's handling of
business proprietary information;
Under Secretary means the Under Secretary for International Trade or a designee.9. Section 354.3 is amended by revising paragraphs (a)(3), and (a)(4), and by adding a
new paragraph (a)(5), as follows:
Sec. 354.3  Sanctions.
(a) * * *
(3)  Other appropriate administrative sanctions, including striking from the record any
information or argument submitted by, or on behalf of, the violating party or the party represented by
the violating party; terminating any proceeding then in progress; or revoking any order then in effect;
(4)  Requiring the person to return material previously provided by the Secretary and all
other materials containing the business proprietary information, such as briefs, notes, or charts based
on any such information received under an administrative protective order; and
(5)  Issuing a private letter of reprimand.
* * * * *G/ADP/N/1/USA/1/Suppl.3
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10. Section 354.5 is amended by revising paragraphs (a), (b), (c) and (d)(1), (d)(2), and
(d)(7), and by removing paragraph (d)(8), and redesignating paragraph (d)(9) as (d)(8), as follows:
Sec. 354.5  Report of violation and investigation.
(a) An employee of the Department who has information indicating that the terms of an
administrative protective order have been violated will provide the information to the Senior APO
Specialist or the Chief Counsel.
(b)  Upon receiving information which indicates that a person may have violated the
terms of an administrative protective order from an employee of the Department or any other person,
the director will conduct an investigation concerning whether there was a violation of anadministrative protective order, and who was responsible for the violation, if any. No director shall
investigate an alleged violation that arose out of a proceeding for which the director was responsible.
For the purposes of this part, the director will be supervised by the Deputy Under Secretary for
International Trade with guidance from the Chief C ounsel. The director will conduct an investigation
only if the information is received within 30 days after the alleged violation occurred or, asdetermined by the director, could have been discovered through the exercise of reasonable and
ordinary care.
(c)(1)  The director conducting the investigation will provide a report of the investigation to
the Deputy Under Secretary for International Trade, after review by the Chief Counsel, no later than90 days after receiving information concerning a violation if:
(i)  The person alleged to have violated an administrative protective order personally
notified the Secretary and reported the particulars surrounding the incident; and
(ii)  The alleged violation did not result in any actual disclosure of business proprietary
information. Upon the director's request, and if ex traordinary circumstances exist, the Deputy Under
Secretary for International Trade may grant the director up to an additional 90 days to conduct the
investigation and submit the report.
(2)  In all other cases, the director will provide a report of the investigation to the Deputy
Under Secretary for International Trade, after re view by the Chief Counsel, no later than 180 days
after receiving information concerning a violation. Upon the director's request, and if extraordinary
circumstances exist, the Deputy Under Secretary for International Trade may grant the director up to
an additional 180 days to conduct the investigation and submit the report.
(d)  * * *(1)  Disclosure of business proprietary information to any person other than the
submitting party, an authorized applicant, or an appropriate Department official identified in
section 777(b) of the Tariff Act of 1930, including disclosure to an employee of any other United
States Government agency or a member of Congress.
(2)  Failure to follow the terms and conditions outlined in the administrative protective
order for safeguarding business proprietary information.
* * * * *G/ADP/N/1/USA/1/Suppl.3
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(7)  Use of business proprietary information submitted in one segment of a proceeding in
another segment of the same proceeding or in another proceeding, except as authorized by the Tariff
Act of 1930 or by an administrative protective order.
* * * * *
11. Section 354.6 is revised as follows:
Sec. 354.6  Initiation of proceedings.
(a)  In general. After an investigation and report by the director under Sec. 354.5(c) and
consultation with the Chief Counsel, the Deputy Under Secretary for International Trade willdetermine whether there is reasonable cause to believe that a person has violated an administrative
protective order. If the Deputy Under Secretary for International Trade determines that there is
reasonable cause, the Deputy Under Secretary for International Trade also will determine whether
sanctions under paragraph (b) or a warning under paragraph (c) is appropriate for the violation.
(b)  Sanctions. In determining under paragraph (a) of this section whether sanctions are
appropriate, and, if so, what sanctions to impose, the Deputy Under Secretary for International Trade
will consider the nature of the violation, the resulting harm, and other relevant circumstances of the
case. If the Deputy Under Secretary for International Trade determines that sanctions are appropriate,
the Deputy Under Secretary for International Trade will initiate a proceeding under this part byissuing a charging letter under Sec. 354.7. The Deputy Under Secretary for International Trade will
determine whether to initiate a proceeding no later than 60 days after receiving a report of the
investigation.
(c)  Warning. If the Deputy Under Secretary for International Trade determines under
paragraph (a) of this [[Page 24405]] section that a warning is appropriate, the Deputy Under Secretary
will issue a warning letter to the person believed to have violated an administrative protective order.
Sanctions are not appropriate and a warning is appropriate if:
(1)  The person took due care;(2)  The Secretary has not previously charged the person with violating an administrative
protective order;
(3)  The violation did not result in any disclosure of the business proprietary information
or the Secretary is otherwise able to determine that the violation caused no harm to the submitter of
the information; and
(4)  The person cooperated fully in the investigation.12. Section 354.7 is amended by revising paragraph (b), as follows:
Sec. 354.7  Charging letter.
* * * * *
(b)  Settlement and amending the charging letter. The Deputy Under Secretary for
International Trade and a charged or affected party may settle a charge brought under this part by
mutual agreement at any time after service of the charging letter; approval of the presiding official or
the administrative protective order Sanctions Board is not necessary. The charged or affected party
may request a hearing but at the same time request that a presiding official not be appointed pendingG/ADP/N/1/USA/1/Suppl.3
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settlement discussions. Settlement agreements may include sanctions for purposes of Sec. 354.18. The
Deputy Under Secretary for International Trade ma y amend, supplement, or withdraw the charging
letter as follows:
(1)  If there has been no request for a hearing, or if supporting information has not been
submitted under Sec. 354.13, the withdrawal will not preclude future actions on the same alleged
violation.
(2)  If a hearing has been requested but no presiding official has been appointed,
withdrawal of the charging letter will preclude the Deputy Under Secretary for International Trade
from seeking sanctions at a later date for the same alleged violation.
(3)  The Deputy Under Secretary for International Trade may amend, supplement or
withdraw the charging letter at any time after the appointment of a presiding official, if the presiding
official determines that the interests of justice would thereby be served. If the presiding official so
determines, the presiding official will also determine whether the withdrawal will preclude the Deputy
Under Secretary for International Trade from seeking sanctions at a later date for the same allegedviolation.
* * * * *
13. Section 354.9 is amended by revising paragraph (b), as follows:
Sec. 354. 9  Request for a hearing.
(a)  * * *
(b)  Upon timely receipt of a request for a hearing, and unless the party requesting a
hearing requests that the Under Secretary not appoint a presiding official, the Under Secretary will
appoint a presiding official to conduct the hearing and render an initial decision.
Sec. 354.15  [Amended]
14. Section 354.15 is amended by removing paragraph (e).
Sec. 354.17  [Amended]
15. Section 354.17(b) is amended by removing the citations "19 CFR 353.30 and
Sec. 355.20'' and replacing them with "19 CFR 351.305(c)''.
16. Section 354.18 is added to part 354, to read as follows:
Sec. 354.18  Public notice of sanctions.
If there is a final decision under Sec. 354.15 to impose sanctions, or if a charging letter is
settled under Sec. 354.7(b), notice of the Secretary's decision or of the existence of a settlement will
be published in the Federal Register. If a final decision is reached, such publication will be no sooner
than 30 days after issuance of a final decision or after a motion to reconsider has been denied, if such
a motion was filed. In addition, whenever the Deputy Under Secretary for International Trade subjectsa charged or affected party to a sanction under Sec. 354.3(a)(1), the Deputy Under Secretary for
International Trade also will provide such information to the ethics panel or other disciplinary body of
the appropriate bar associations or other professional associations and to any Federal agency likely to
have an interest in the matter. The Deputy Under Secretary for International Trade will cooperate inG/ADP/N/1/USA/1/Suppl.3
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any disciplinary actions by any association or agency. Whenever the Deputy Under Secretary for
International Trade subjects a charged or affected party to a private letter of reprimand under
Sec. 354.3(a)(5), the Secretary will not make public the identity of the violator, nor will the Secretary
make public the specifics of the violation in a manner that would reveal indirectly the identity of the
violator.
17. Section 354.19 is added to part 354, to read as follows:
Sec. 354.19  Sunset.
(a)  If, after a period of three years from the date of issuance of a warning letter, a final
decision or settlement in which sanctions were imposed, the charged or affected party has fullycomplied with the terms of the sanctions and has not been found to have violated another
administrative protective order, the party may request in writing that the Deputy Under Secretary for
International Trade rescind the charging letter. A request for rescission must include:
(1)  A description of the actions taken during the preceding three years in compliance
with the terms of the sanctions; and
(2)  A letter certifying that: the charged or affected party complied with the terms of the
sanctions; the charged or affected party has not received another administrative protective order
sanction during the three-year period; and the charged or affected party is not the subject of anotherinvestigation for a possible violation of an administrative protective order.
(b)  Subject to the Chief Counsel's confirmation that the charged or affected party has
complied with the terms set forth in paragraph (a) of this section, the Deputy Under Secretary for
International Trade will rescind the charging letter within 30 days after receiving the written request.
Appendix to 19 CFR Part 351, Subpart C
Note : The following appendix will not appear in the Code of Federal Regulations:
Application for Administrative Protective Order in  Anti-dumping or Countervailing Duty Proceeding,
and Administrative Protective Order.G/ADP/N/1/USA/1/Suppl.3
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Case Number
Segment of Proceeding
(Period of Review)
Number of PagesPublic Document
United States Department of Commerce
International Trade Administration
APPLICATION FOR ADMINISTRATIVE PROTECTIVE ORDER
in
ANTI-DUMPING OR COUNTERVAILING DUTY PROCEEDING
________________________________________________
                                                                                                )
The Matter of the                                                                    )
Anti-dumping/Countervailing Duty (indicate one)            )
Proceeding on                                                                         ) ACCEPTED _________                                                                                                ) REJECTED__________
___________________________                                          ) DATE_______________
___________________________     from _____________  )
___________________________                  (Country)        )
___________________________                                          )                (Product)                                                                 )
________________________________________________)
This application covers business proprietary information in the following segment of the proceeding:
[     ] Investigation – petition filed on : _________________________________[     ] Administrative Review initiated on: : ________  (________FR_____________)
for period : _______________to________________
[     ] Other_______________________ : ________  (________FR_____________)
          (specify)
This application is:
[     ] the initial application to be placed on the APO service list;  or[     ] a request to amend the APO service list.
FORM ITA-367 (5.98)G/ADP/N/1/USA/1/Suppl.3
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REPRESENTATION
1. I am an applicant for: _______________________________________________________
who is an interested party/parties as follows:
[     ]   petitioner; [     ]   respondent; [     ] other interested party,
as defined in 19 C.F.R. § _____________________________  of theDepartment's regulations.
2. If the interested party/parties I represent have another authorized applicant or representative,________________________________________________________________________________
is the lead firm.
REQUEST FOR INFORMATION
3. I request disclosure of all business proprietary information under administrative protective
order ("APO") which will be or has been placed on the record of this segment of this
proceeding that is releasable under 19 C.F.R. §351.305 for the purpose of fully representingthe interests of my client:
[     ] all business proprietary information, including hard copy and electronic data;  or[     ] all business proprietary information in hard copy form only.
INDIVIDUAL STATEMENTS
4. TO BE COMPLETED BY ATTORNEY APPLICANTS
A. I am/am not (indicate one)  an officer of the interested party or parties listed in
paragraph 1, or of other competitors of the person submitting the business proprietary
information requested in this application.
B. I do/do not (indicate one)  participate in the competitive decision-making activity of
the interested party or parties listed in paragraph 1, or of other competitors of the
person submitting the business proprietary information requested in this application.I understand that competitive decision-making activity includes advice on production,
sales, operations or investments, but does not include legal advice.
C. I do/do not (indicate one)  have an official position or other business relationship
other than providing advice for the purpose of  this segment of the proceeding with the
interested party or parties listed in paragraph 1, or with other competitors of the
person submitting the business proprietary information requested in this application.
D. I do/do not (indicate one)  currently intend within 12 months after the date upon
which the final determination/results is/a re published to enter into any of the
relationships described in paragraphs 4A, B and C.G/ADP/N/1/USA/1/Suppl.3
G/SCM/N/1/USA/1/Suppl.3
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E. Explain for each applicant any affirmative response to paragraph 4A, B, C or D:
________________________________________________________________________________________________________________________________________
5. TO BE COMPLETED BY NON-ATTORNEY APPLICANTS
A. I am/am not (indicate one) employed by/retained by (indicate one)  a law firm
representing the interested party or parties listed in paragraph 1.
B. If I am retained by an attorney, the name of the lawyer and law firm are:
________________________________________________________________________________________________________________________________________
C. If I am not an employee of a law firm and have not been retained by the attorney for
the interested party or parties listed in paragraph 1, in a separate attachment to this
application I am providing information concerning my practice before the
International Trade Administration ("ITA").
D. I am/am not (indicate one)  an officer or employee of an interested party or parties
listed in paragraph 1, or of other competitors of the submitter of the business
proprietary information requested in this application.
E. I do/do not (indicate one)  participate in the competitive decision-making activity of
the interested party or parties listed in paragraph 1, or of other competitors of the
person submitting the business proprietary information requested in this application.
I understand that competitive decision-making activity includes advice on production,
sales, operations, or investments, but does not include legal advice.
F. I do/do not (indicate one)  have an official position or other business relationship
other than providing advice for the purpose of  this segment of the proceeding with the
interested party or parties listed in paragraph 1, or with other competitors of the
person submitting the business proprietary information requested in this application.
G. I do/do not (indicate one)  currently intend within 12 months after the date upon
which the final determination/results is/a re published to enter into any of the
relationships described in paragraphs 5D, E and F.
I. Explain for each applicant any affirmative response to paragraph 5D, E, F or G:
________________________________________________________________________________________________________________________________________
AGREEMENT TO BE BOUND
6. Recognizing the penalties for perjury under the laws of the United States, I affirm that all
statements in this application are true, accurate, and complete to the best of my knowledge.  I
agree, individually and on behalf of my law firm, corporate law office, or company, if any, toG/ADP/N/1/USA/1/Suppl.3
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be bound by the terms stated in the administrative protective order issued in this segment of
the proceeding.
7. I certify that this application is a true and accurate copy of the Department's "Application for
Administrative Protective Order", FORM ITA-367 (5.98).  If there are any discrepancies, I
agree to be bound by the Department's standard form.
INDIVIDUAL SIGNATORIES
8. ATTORNEY APPLICANTS ( SAMPLE FORMAT)
Individual applicants:
(1) ______________________,      ______________________,      _____________
          (name of applicant)    (signature) (date)of __________________________________________________________________
(name and address of law firm)
____________________________________________________________________
I am admitted to practice in the following jurisdiction(s) and before the following court(s):
____________________________________________________________________ .
9- NON-ATTORNEY APPLICANTS (
SAMPLE FORMAT)
Individual applicants:
(1) ______________________,      _______________________,      _____________
          (name of applicant)    (signature) (date)of __________________________________________________________________
(name and address of firm)
____________________________________________________________________
I am a member of the following professional association(s):
___________________________________________________________________ .G/ADP/N/1/USA/1/Suppl.3
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COURTESY PAGE
FOR
WAIVER OF SERVICE
If my application for administrative protective order ("APO") in this proceeding is granted, I waive
service of the following business proprietary inform ation that I would be authorized to receive under
the APO:
o
o
o
o
Inadvertent service of a document containing
business proprietary information on a party
that has been granted APO access
and has waived service
IS NOT A VIOLATION OF THE APO.G/ADP/N/1/USA/1/Suppl.3
G/SCM/N/1/USA/1/Suppl.3
Page 67
A/C - _____ - _____
(Segment of Proceeding)
(Period of Review)
Public Document
________________________________________________________________________
)
In the Matter of the Anti-Dumping/Countervailing Duty )
(Segment of Proceeding) of     ……………………………………………………….) )
from     ……………………………………………………     (A/C …… - ……)     ) )
________________________________________________________________________)
ADMINISTRATIVE PROTECTIVE ORDER
IT IS HEREBY ORDERED THAT:
All business proprietary information submitted in the above-referenced segment of the proceeding,
including new information submitted in a remand during litigation on this segment of the proceeding,
which the submitting party agrees to release or the Department of Commerce ("the Department")determines to release, will be released to the authorized applicants on the administrative protective
order (APO) service list for this segmen t of the proceeding, except the following:
o customer names in an investigation;
o specific information of a type for which the Department determines there is a clear and
compelling need to withhold from disclosure.
USE OF BUSINESS PROPRIETARY INFORMATION UNDER THIS APO
Business proprietary information subject to this APO may be used by an authorized applicant in this
segment of the proceeding and in the following other segments or proceedings:
[This section will authorize use of business proprietary information in other segments of the
same proceeding, or in other proceedings, consistent with the Tariff Act and the regulations.
The terms in this section will vary, depending on what segment of the proceeding this APO
covers.  This section will also establish the deadline for destruction of business proprietaryinformation in each set of circumstances.]
REQUIREMENTS FOR AUTHORIZED APPLICANTS
All applicants authorized to have access to bu siness proprietary information under this APO are
subject to the following terms:
1. The authorized applicant must establish and follow procedures to ensure that no employee of
the authorized applicant's firm releases business proprietary information to any person other
than the submitting party, an authorized applicant, or the appropriate Department officialidentified in section 351.306(a) of the regulations.  No person in the authorized applicant's
firm may release business proprietary information received under this APO to any person
other than those described in this paragraph.G/ADP/N/1/USA/1/Suppl.3
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2. The authorized applicant may allow APO access to one or more paralegals, law clerks,
secretaries, or other support staff employed by or on behalf of the applicant's firm and
operating within the confines of the firm.  The authorized applicant may also use the services
of subcontracted individuals to pick up APO information released by the Department.  All
support staff must sign and date an acknowledgement that they will abide by the terms andconditions of the APO at the time they are first permitted access to any information subject to
APO.
3. The authorized applicant must ensure that business proprietary information in an electronic
format will not be accessible by modem to parties not authorized to receive business
proprietary information.
4. The authorized applicant must pay all reasonable costs incurred by the submitter of the
electronic business proprietary information for the copying of its electronic information
released to the authorized  applicant, if payment is requested.  Reasonable costs include the
cost of the electronic medium and the cost of copying the complete proprietary version of the
electronic information/medium submitted to the Department in APO releasable form, but notcosts borne by the submitter of the electronic data in the creation of the electronic
data/medium submitted to the Department.
NOTIFICATION REQUIREMENTS
5. If changed circumstances affect the authorized applicant's representation of an interested party
at any time authorized under this APO (i.e. reassignment, departure from firm), the authorized
applicant must notify the Department in accordance with section 351.305(a)(2) of the
regulations.
6. At the expiration of the time specified in this APO, the authorized applicant must destroy all
business proprietary information and notify the Department of the destruction in accordance
with section 351.305(a)(3) of the regulations, or provide to the Department official
responsible for the administration of the APO in this segment of the proceeding a protective
order issued by a court or in a binational panel proceeding.
SANCTIONS FOR BREACH OF THIS APO
7. The authorized applicant will be subject to any or all of the sanctions described in 19 C.F.R.
Part 354 if there is a violation of this APO by the authorized applicant or any of the persons
identified in item 9 of this APO.
8. The authorized applicant will accept full responsibility, individually and on behalf of the
authorized applicant's firm or corporate office, for violation of this APO by any employee of
the firm or corporate office, or support staff re tained by the firm or corporate office, who is
permitted access to APO information.
9. The authorized applicant will promptly report and confirm in writing any possible violation of
this APO to the Department.G/ADP/N/1/USA/1/Suppl.3
G/SCM/N/1/USA/1/Suppl.3
Page 69
DEFINITIONS
For the purposes of this APO, the following definitions apply:
"Representative"  is an individual, enterprise, or entity acting on behalf of an interested party.
"Applicant"  is a representative of an interested party who has applied for access to business
proprietary information under this APO.
"Authorized applicant"  is an applicant that the Secretary has authorized to receive business
proprietary information under this APO.
"Lead firm"  is the firm that will be the primary contact with the Department and that will accept
service of all documents for the party it represents where two firms independently have access under
APO.
"Support staff"  includes paralegals, law clerks, secretaries and other support staff that are employed
by or on behalf of the applicant's firm and operating within the premises of the firm, and work under
the supervision of an authorized applicant, as well  as subcontractors of the firm providing similar
support staff functions.
"Electronic data"  includes (1) data submitted by a party, generated by the Department, or entered by
the recipient on computer tape, disk, diskette, or any other electronic computer medium;  and (2) all
electronic work products resulting from manipulation of this data, as transferred in any form onto any
other electronic computer medium, such as tape, disk, diskette, Bernoulli cartridge, removable disk
pack, etc.
___________________________________
(Signature of Department Official)
Typed Name
Title
Import Administration
__________________________________
(date)