Title 15—Commerce and Foreign Trade--Volume 1
PART 705—EFFECT OF IMPORTED ARTICLES ON THE NATIONAL SECURITY
§ 705.1   Definitions.
As used in this part:
Department means the United States Department of Commerce and includes the Secretary of Commerce and the Secretary's designees.
Secretary means the Secretary of Commerce or the Secretary's designees.
Applicant means the person or entity submitting a request or application for an investigation pursuant to this part.
§ 705.2   Purpose.
These regulations set forth the procedures by which the Department shall commence and conduct an investigation to determine the effect on the national security of the imports of any article. Based on this investigation, the Secretary shall make a report and recommendation to the President for action or inaction regarding an adjustment of the imports of the article.
§ 705.3   Commencing an investigation.
(a) Upon request of the head of any government department or agency, upon application of an interested party, or upon motion of the Secretary, the Department shall immediately conduct an investigation to determine the effect on the national security of the imports of any article.
(b) The Secretary shall immediately provide notice to the Secretary of Defense of any investigation initiated under this part.
§ 705.4   Criteria for determining effect of imports on the national security.
(a) To determine the effect on the national security of the imports of the article under investigation, the Department shall consider the quantity of the article in question or other circumstances related to its import. With regard for the requirements of national security, the Department shall also consider the following:
(1) Domestic production needed for projected national defense requirements;
(2) The capacity of domestic industries to meet projected national defense requirements;
(3) The existing and anticipated availabilities of human resources, products, raw materials, production equipment and facilities, and other supplies and services essential to the national defense;
(4) The growth requirements of domestic industries to meet national defense requirements and the supplies and services including the investment, exploration and development necessary to assure such growth; and
(5) Any other relevant factors.
(b) In recognition of the close relation between the strength of our national economy and the capacity of the United States to meet national security requirements, the Department shall also, with regard for the quantity, availability, character and uses of the imported article under investigation, consider the following:
(1) The impact of foreign competition on the economic welfare of any domestic industry essential to our national security;
(2) The displacement of any domestic products causing substantial unemployment, decrease in the revenues of government, loss of investment or specialized skills and productive capacity, or other serious effects; and
(3) Any other relevant factors that are causing or will cause a weakening of our national economy.
§ 705.5   Request or application for an investigation.
(a) A request or application for an investigation shall be in writing. The original, 1 copy and an electronic version of the report in the form of a Portable Document Format (PDF) file shall be filed with the Director, Office of Technology Evaluation, Room H-1093, U.S. Department of Commerce, Washington, DC 20230, with the PDF version being submitted to DIBPrograms@bis.doc.gov. An application for an investigation from an interested party that includes information submitted in confidence in accordance with the procedures of § 705.6 must also include a public version in written and electronic form containing all non-confidential information and public summaries of business confidential information as provided below. For persons seeking to submit business confidential information (trade secrets, commercial or financial information, or any other information considered sensitive or privileged), the public version of the application must contain a summary of the business confidential information in sufficient detail to permit a reasonable understanding of the substance of the information. Generally, numerical data will be considered adequately summarized if grouped or presented in terms of indices or figures within 10 percent of the actual figure. If an individual portion of the numerical data is voluminous ( e.g., 5 pages of numerical data), at least one percent of the numerical data, representative of that portion, must be summarized. If the submitter claims that summarization is not possible, the claim must be accompanied by a full explanation of the reason(s). In order to submit business confidential information that is not for public release or classified national security information as a separate submission to the U.S. Department of Commerce, applicants must follow the procedures specified in § 705.6.
Requests for an investigation from United States Government agencies need not include a public version.
(b) When a request, application or motion is under investigation, or when an investigation has been completed pursuant to § 705.10 of this part, any subsequently filed request or application concerning imports of the same or related article that does not raise new or different issues may be either consolidated with the investigation in progress as provided in § 705.7(e) of this part, or rejected. In either event, an explanation for taking such action shall be promptly given to the applicant. If the request or application is rejected, it will not be returned unless requested by the applicant.
(c) Requests or applications shall describe how the quantity, availability, character, and uses of a particular imported article, or other circumstances related to its import, affect the national security, and shall contain the following information to the fullest extent possible:
(1) Identification of the applicant;
(2) A precise description of the article;
(3) Description of the domestic industry affected, including pertinent information regarding companies and their plants, locations, capacity and current output of the industry;
(4) Pertinent statistics on imports and domestic production showing the quantities and values of the article;
(5) Nature, sources, and degree of the competition created by imports of the article;
(6) The effect that imports of the article may have upon the restoration of domestic production capacity in the event of national emergency;
(7) Employment and special skills involved in the domestic production of the article;
(8) Extent to which the national economy, employment, investment, specialized skills, and productive capacity is or will be adversely affected;
(9) Revenues of Federal, State, or local Governments which are or may be adversely affected;
(10) National security supporting uses of the article including data on applicable contracts or sub-contracts, both past and current; and
(11) Any other information or advice relevant and material to the subject matter of the investigation.
(d) Statistical material presented should be, if possible, on a calendar-year basis for sufficient periods of time to indicate trends. Monthly or quarterly data for the latest complete years should be included as well as any other breakdowns which may be pertinent to show seasonal or short-term factors.
§ 705.6   Confidential information.
(a) This paragraph (a) specifies the requirements for submission of classified national security information, business confidential information, and the treatment of United States Government communications during an investigation under Section 232 of the Trade Expansion Act of 1962, as amended (a “Section 232 investigation”), or as part of a request or application for an investigation.
(1) Classified national security information. Any information or material, which the applicant or any other party desires to submit in confidence at any stage of the investigation or as part of an application for an investigation, that is classified national security information (“classified information”) within the meaning of Executive Order 13526 shall be marked and submitted to the Bureau of Industry and Security (BIS) in accordance with the guidelines set forth in 32 CFR part 2001 regarding the handling of classified information. Before sending classified information, the applicant or any other party wishing to submit classified information must contact BIS for any additional handling instructions or submission requirements that may be applicable by contacting the Director, Office of Technology Evaluation, Room H-1093, U.S. Department of Commerce, Washington, DC 20230. Any information or material submitted that is identified as classified information must be accompanied at the time of submission by a statement indicating the degree of classification, the authority for the classification, and the identity of the classifying entity. Classified national security information described in this paragraph (a)(1) does not require a public version.
(2) Business confidential information. Any information or material submitted electronically, which the applicant or any other party desires to submit in confidence at any stage of the investigation or as part of an application for an investigation, that is business confidential information (trade secrets, commercial or financial information, or any other information considered sensitive or privileged) should be contained within a file beginning its name with the characters “BC”. Any page containing business confidential information must be clearly marked “BUSINESS CONFIDENTIAL” on the top of that page, and any pages not containing confidential information should not be so marked. By submitting information or material identified as business confidential information, the applicant or other party represents that the information is exempted from public disclosure, either by the Freedom of Information Act (5 U.S.C. 552 et seq. ) or by some other specific statutory exemption. Any request for business confidential treatment must be accompanied at the time of filing by a statement justifying non-disclosure and referring to the specific legal authority claimed. The public summary version required under § 705.5 must be clearly marked “PUBLIC”. When submitted electronically, the file name of the non-confidential version should begin with the character “P”. The “P” should be followed by the name of the person or entity submitting the information or material. All filers should name their files using the name of the person or entity submitting the comments.
(3) United States Government communications. Communications from agencies of the United States Government, including but not limited to requests for investigation submitted pursuant to § 705.5, will generally not be made available to the public.
(b) The Department may refuse to accept as business confidential any information or material it considers not intended to be protected under the legal authority claimed by the applicant, or under other applicable legal authority. Any such information or material so refused shall be promptly returned to the submitter and will not be considered. However, such information or material may be resubmitted as non-confidential in which case it will be made part of the public record.
§ 705.7   Conduct of an investigation.
(a) If the Department determines that it is appropriate to afford interested parties an opportunity to present information and advice relevant and material to an investigation, a public notice shall be published in the Federal Register soliciting from any interested party written comments, opinions, data, information or advice relative to the investigation. This material shall be submitted as directed within a reasonable time period to be specified in the notice. All material shall be submitted with 6 copies. In addition, public hearings may be held pursuant to § 705.8 of this part.
(b) All requests and applications filed and all material submitted by interested parties, except information on material that is classified or determined to be confidential as provided in § 705.6 of this part, will be available for public inspection and copying in the Bureau of Industry and SecurityFreedom of Information Records Inspection Facility, Room H-4525, U.S. Department of Commerce, Washington, DC 20230, in accordance with regulations published in part 4 of title 15, Code of Federal Regulations.
(c) Further information may be requested by the Department from other sources through the use of questionnaires, correspondence, or other appropriate means.
(d) The Department shall, as part of an investigation, seek information and advice from, and consult with, appropriate officers of the United States or their designees, as shall be determined. The Department shall also consult with the Secretary of Defense regarding the methodological and policy questions raised in the investigation. Upon the request of the Secretary, the Secretary of Defense shall provide the Secretary with an assessment of the defense requirements of the article in question. Communications received from agencies of the U.S. government or foreign governments will not be made available for public inspection.
(e) Any request or application that is filed while an investigation is in progress, concerning imports of the same or related article and raising similar issues, may be consolidated with the request, application or motion that initiated the investigation.
§ 705.8   Public hearings.
(a) If it is deemed appropriate by the Department, public hearings may be held to elicit further information.
(1) A notice of hearing shall be published in the Federal Register describing the date, time, place, the subject matter of each hearing and any other information relevant to the conduct of the hearing. The name of a person to contact for additional information or to request time to speak at the hearing shall also be included. Public hearings may be held in more than one location.
(2) Hearings shall be open to the public unless national security classified information will be presented. In that event the presiding officer at the hearing shall close the hearing, as necessary, to all persons not having appropriate security clearances or not otherwise authorized to have access to such information. If it is known in sufficient time prior to the hearing that national security classified information will be presented the notice of hearing published in the Federal Register shall state that national security classified information will be presented and that the hearing will be open only to those persons having appropriate security clearances or otherwise specifically authorized to have access to such information.
(b) Hearings shall be conducted as follows:
(1) The Department shall appoint the presiding officer;
(2) The presiding officer shall determine all procedural matters during the hearing;
(3) Interested parties may appear, either in person or by representation, and produce oral or written information relevant and material to the subject matter of the investigation;
(4) Hearings will be fact-finding proceedings without formal pleadings or adverse parties. Formal rules of evidence will not apply;
(5) After a witness has testified, the presiding officer may question the witness. Questions submitted to the presiding officer in writing by any interested party may, at the discretion of the presiding officer, be posed to the witness. No cross examination of any witness by a party shall be allowed.
(6) Each hearing will be stenographically reported. Transcripts of the hearing, excluding any national security classified information, may be purchased from the Department at actual cost of duplication, and will be available for public inspection in the Bureau of Industry and Security Freedom of Information Records Inspection Facility, Room H-4525, U.S. Department of Commerce, Washington, DC 20230.
§ 705.9   Emergency action.
In emergency situations, or when in the judgment of the Department, national security interests require it, the Department may vary or dispense with any or all of the procedures set forth in § 705.7 of this part.
§ 705.10   Report of an investigation and recommendation.
(a) When an investigation conducted pursuant to this part is completed, a report of the investigation shall be promptly prepared.
(b) The Secretary shall report to the President the findings of the investigation and a recommendation for action or inaction within 270 days after beginning an investigation under this part.
(c) An Executive Summary of the Secretary's report to the President of an investigation, excluding any classified or proprietary information, shall be published in the Federal Register. Copies of the full report, excluding any classified or proprietary information, will be available for public inspection and copying in the Bureau of Industry and Security Freedom of Information Records Inspection Facility, Room H-4525, U.S. Department of Commerce, 14th Street, N.W., Washington, D.C. 20230; tel. (202) 482-5653.
§ 705.11   Determination by the President and adjustment of imports.
(a) Upon the submission of a report to the President by the Secretary under § 705.10(b) of this part, in which the Department has found that an article is being imported into the United States in such quantities or under such circumstances as to threaten to impair the national security, the President is required by Section 232(c) of the Trade Expansion Act of 1962, as amended (19 U.S.C. 1862(c)) to take the following action
(1) Within 90 days after receiving the report from the Secretary, the President shall determine:
(i) Whether the President concurs with the Department's finding; and
(ii) If the President concurs, the nature and duration of the action that must be taken to adjust the imports of the article and its derivatives so that the such imports will not threaten to impair the national security.
(2) If the President determines to take action under this section, such action must be taken no later than fifteen (15) days after making the determination.
(3) By no later than thirty (30) days after making the determinations under paragraph (a)(1) of this section, the President shall submit to the Congress a written statement of the reasons why the President has decided to take action, or refused to take action.
(b) If the action taken by the President under this section is the negotiation of an agreement to limit or restrict the importation into the United States of the article in question, and either no such agreement is entered into within 180 days after making the determination to take action, or an executed agreement is not being carried out or is ineffective in eliminating the threat to the national security, the President shall either:
(1) Take such other action as deemed necessary to adjust the imports of the article so that such imports will not threaten to impair the national security. Notice of any such additional action taken shall be published in the Federal Register ; or
(2) Not take any additional action. This determination and the reasons on which it is based, shall be published in the Federal Register.
§ 705.12   Disposition of an investigation and report to the Congress.
(a) Upon the disposition of each request, application, or motion made under this part, a report of such disposition shall be submitted by the Secretary to the Congress and published in the Federal Register.
(b) As required by Section 232(e) of the Trade Expansion Act of 1962, as amended (19 U.S.C. 1862(c)), the President shall submit to the Congress an annual report on the operation of this part.