Federal Register / Vol. 88, No. 188 / Friday, September 29, 2023 / Rules and Regulations 67069 

1See Administrative Protective Order, Service, 

and Other Procedures in Antidumping and 

Countervailing Duty Proceedings, 87 FR 72916 

(November 28, 2022) (Proposed Rule). 

List of Subjects in 15 CFR Part 922 

Administrative practice and 

procedure, Coastal zone, Natural 

resources, Historic preservation, Marine 

resources, National marine sanctuaries, 

Recreation and recreation areas, 

Shipwrecks. 

Nicole R. LeBoeuf, 

Assistant Administrator for Ocean Services 

and Coastal Zone Management, National 

Ocean Service, National Oceanic and 

Atmospheric Administration. 

[FR Doc. 2023–21648 Filed 9–28–23; 8:45 am] 

BILLING CODE 3510–NK–P 

DEPARTMENT OF COMMERCE 

International Trade Administration 

19 CFR Part 351 

[Docket No. 230905–0210] 

RIN 0625–AB15 

Administrative Protective Order, 

Service, and Other Procedures in 

Antidumping and Countervailing Duty 

Proceedings 

AGENCY: Enforcement and Compliance, 

International Trade Administration, 

Department of Commerce. 

ACTION: Final rule. 

SUMMARY: Pursuant to its authority 

under title VII of the Tariff Act of 1930, 

as amended (the Act), the U.S. 

Department of Commerce (Commerce) is 

modifying its regulations governing 

procedures related to administrative 

protective orders (APO) and service of 

documents submitted in antidumping 

(AD) and countervailing duty (CVD) 

proceedings. Specifically, Commerce is 

making certain changes to its 

procedures governing the filing of 

documents (including public 

documents, business proprietary 

documents, and public versions of 

business proprietary documents), as 

well as service of documents. Commerce 

is also making additional clarifications 

and corrections to other procedural 

aspects of its AD/CVD regulations, 

including updates to the scope, 

circumvention, and covered 

merchandise referral regulations. Lastly, 

Commerce is deleting from its 

regulations two provisions that have 

been invalidated by the United States 

Court of Appeals for the Federal Circuit 

(Federal Circuit). 

DATES: Effective date: October 30, 2023. 

This final rule will apply to all AD/CVD 

proceedings that are ongoing on the 

effective date and all AD/CVD 

proceedings initiated on or after the 

effective date. 

FOR FURTHER INFORMATION CONTACT: 

Nikki Kalbing at (202) 482–4343, Elio 

Gonzalez at (202) 482–3765, or Scott 

McBride at (202) 482–6292. 

SUPPLEMENTARY INFORMATION: 

General Background 

On November 28, 2022, Commerce 

published a proposed modification of its 

regulations governing procedures 

related to APOs and service of 

documents submitted in AD and CVD 

proceedings and to procedural aspects 

of its AD/CVD regulations (hereafter, the 

Proposed Rule).1 The Proposed Rule 

explained Commerce’s proposal to make 

permanent certain changes to its service 

procedures that have been adopted on a 

temporary basis due to COVID–19, and 

proposed additional clarifications and 

corrections to its AD/CVD regulations, 

including updating the scope, 

circumvention, and covered 

merchandise referrals, and deleting from 

its regulations two provisions that have 

been invalidated by the Federal Circuit. 

Commerce received nine comments on 

the Proposed Rule and has addressed 

those comments below. After analyzing 

and carefully considering each comment 

it received in response to the Proposed 

Rule, Commerce has adopted the 

proposed modification with certain 

changes and is amending its regulations 

accordingly. 

Explanation of Modifications From the 

Proposed Rule to the Final Rule 

As we explained in the Proposed 

Rule, one of the purposes for modifying 

our regulations is to assist in making the 

administration of Commerce’s AD/CVD 

proceedings more efficient by allowing 

parties to utilize available electronic or 

other efficient means of service. In this 

final rule, Commerce has determined to 

make certain modifications from the 

Proposed Rule in response to the 

comments received. With these 

modifications, as discussed further 

below, this final rule codifies the 

regulations proposed on November 28, 

2022. 

In this final rule, Commerce is 

amending proposed section 

351.303(f)(1)(iii) to make service via 

electronic transmission for public 

documents and public versions of a 

business proprietary document, and 

service via secure electronic 

transmission for business proprietary 

documents, the default method of 

alternative service when service of such 

documents cannot be effectuated on 

ACCESS or when ACCESS is 

unavailable. This includes, for example, 

service of business proprietary 

documents filed under the one-day lag 

rule under section 351.303(c) (i.e., nonfinal business proprietary documents 

filed on the due date under the one-day 

lag rule). As a result of adopting this 

change, Commerce is not adopting its 

proposed modification that parties file a 

standalone certificate of service for 

documents filed under the one-day lag 

rule under proposed section 

351.303(c)(2)(i). Commerce is also 

modifying section 351.303(f)(2)(i) to 

permit electronic service of certain 

requests for review. In addition, 

Commerce is modifying section 

351.305(c)(2) to specify that service of 

earlier-filed business proprietary 

submissions that are no longer available 

on ACCESS may be effectuated via 

secure electronic transmission. 

Commerce is also making some 

additional modifications for clarity and 

consistency. Finally, in this final rule, 

we are adopting the proposed 

amendments to the regulations 

discussed in the Proposed Rule for 

which we did not receive comments, or 

that we are not otherwise modifying, as 

discussed in greater detail below. 

The following sections generally 

contain a brief discussion of each 

regulatory provision for which we 

received comments, a summary of the 

comments we received, and Commerce’s 

responses to those comments. These 

sections contain further explanation of 

any changes Commerce is making in 

this final rule from the Proposed Rule, 

either in response to comments or that 

Commerce deems necessary for 

conforming to, or clarification of, the 

regulations, or for providing additional 

public benefit. The final section 

discusses additional comments 

suggesting other modifications to the 

ACCESS system and filing procedures 

that were not covered or addressed in 

the Proposed Rule and are therefore not 

included in this final rule. 

Responses to Comments Received on 

the Proposed Rule 

Commerce received nine comments 

on the Proposed Rule. Below is a 

summary of the comments, grouped by 

issue category, followed by Commerce’s 

response. 

Standalone Certificates of Service for 

Business Proprietary Documents 

Proposed section 351.303(c)(2)(i) 

would require a party filing a business 

proprietary document on ACCESS to 

also file a separate, standalone, public 

certificate of service with its 

submission. Although the Preamble to 


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67070 Federal Register / Vol. 88, No. 188 / Friday, September 29, 2023 / Rules and Regulations 

2See Proposed Rule, 87 FR at 72920. 

3See Temporary Rule Modifying AD/CVD Service 

Requirements Due to COVID–19, 85 FR 17006 

(March 26, 2020) (Temporary Rule) (temporarily 

modifying certain requirements for serving 

documents containing business proprietary 

information in AD/CVD cases to facilitate the 

effectuation of service through electronic means for 

purposes of promoting public health and slowing 

the spread of COVID–19). The Temporary Rule was 

extended on May 18, 2020, and then again 

indefinitely on July 10, 2020. See Temporary Rule 

Modifying AD/CVD Service Requirements Due to 

COVID–19; Extension of Effective Period, 85 FR 

29615 (May 18, 2020); Temporary Rule Modifying 

AD/CVD Service Requirements Due to COVID–19; 

Extension of Effective Period, 85 FR 41363 (July 10, 

2020). 

the Proposed Rule indicates that this 

provision would apply to business 

proprietary documents filed under the 

one-day lag rule, two commenters 

interpret the certificate of service 

requirement under section 

351.303(c)(2)(i) as applying to any 

business proprietary filing. One 

commenter suggests that Commerce 

modify proposed section 351.303(c)(2)(i) 

to limit the standalone certificate of 

service requirement to only business 

proprietary documents filed under the 

one-day lag rule. 

Several other commenters argue that 

any requirement to file a standalone 

certificate of service is burdensome, 

inefficient, costly, would clutter the 

docket, and would not necessarily 

provide same-day notice of a filing, 

because documents submitted close to 

5:00 p.m. often do not appear on 

ACCESS until the next day. Another 

commenter argues that the standalone 

certificate of service would add little 

value if Commerce reinstates the 

requirement to serve documents 

submitted under the one-day lag rule 

and even if Commerce does not reinstate 

that service rule, the standalone 

certificate of service will only inform 

parties that the filing was made, which 

would become apparent anyway in one 

business day. 

These commenters suggest several 

alternatives, including making technical 

changes to ACCESS to permit the oneday lag filing to appear on the ACCESS 

docket and digests, but not be viewable 

or downloadable, which would give 

parties notice of the filing without it 

becoming part of the official record. One 

commenter argues that Commerce 

should simply require a certificate of 

service with every public and 

proprietary filing. Another suggestion, 

further discussed below, is to require 

electronic service of documents filed 

under the one-day lag rule on the same 

day they are filed with Commerce, 

thereby obviating the need to file a 

standalone certificate of service. 

Response: We clarify that the proposal 

to file standalone certificates of service 

only applies to documents submitted 

under the one-day lag rule and does not 

apply to all business proprietary 

documents. However, as explained 

below, we are amending the regulation 

to permit the service of one-day lag 

documents via secure electronic 

transmission. That will obviate the need 

to file a standalone certificate of service, 

because parties served via secure 

electronic transmission will be able to 

receive the documents the same day 

they are filed on ACCESS. Thus, we are 

removing from this final rule the 

provision of section 351.303(c)(2)(i) that 

would require the filing of a standalone 

certificate of service with the 

submission of business proprietary 

documents filed under the one-day lag 

rule. 

Further, we are not adopting the 

suggestion that Commerce make oneday lag documents appear on the 

ACCESS docket and digests without 

being viewable or downloadable, as an 

alternative way of providing notice to 

parties that a one-day lag submission 

has been filed. As stated in the Proposed 

Rule, business proprietary documents 

filed under the one-day lag rule and 

containing non-final bracketing cannot 

be served via ACCESS using the same 

technology used for serving official 

record documents.2 Similarly, ACCESS 

does not have the technical capability at 

this time to make these documents 

appear on the ACCESS docket and 

digests without being viewable or 

downloadable or becoming part of the 

official record. As stated above, we are 

amending the regulation to permit the 

service of one-day lag documents via 

secure electronic transmission, which 

will enable parties to receive the 

documents the same day they are filed 

on ACCESS. Therefore, we find it 

unnecessary to adopt this commenter’s 

suggestion. 

Service of Business Proprietary 

Documents, Public Documents, and 

Public Versions of Business Proprietary 

Documents via ACCESS 

Most commenters express support for 

the proposal in proposed sections 

351.303(f)(1)(i) and (ii)(A) that, in 

general, service of a public document, 

public version of a business proprietary 

document, and a business proprietary 

document will be effectuated on parties 

on the public and APO service lists 

upon filing of the submission on 

ACCESS, unless ACCESS is unavailable. 

Two commenters particularly support 

the proposal to move service 

requirements of case and rebuttal briefs 

from current section 351.303(f)(3)(i) 

(service of case and rebuttals briefs 

through personal service on the same 

day the brief is filed, or overnight mail 

or courier on the next day) to proposed 

section 351.303(f)(1), which would 

generally allow service through 

ACCESS. 

However, some commenters express 

concern that due to the time it takes 

ACCESS to process filed documents and 

release digest notifications, parties are 

not able to download documents the 

same day they are filed and sometimes 

must wait a day or longer when 

documents are filed before a weekend or 

holiday. One commenter remarks that 

under the Temporary Rule,3 case and 

rebuttal briefs were often not available 

on ACCESS the same day as filing, 

which was particularly problematic 

when filed under the one-day lag rule, 

which could result in parties not 

receiving case or rebuttal briefs until 

two days or more after the initial filing. 

Several commenters remark that 

ACCESS delays in making documents 

available shorten the time parties must 

respond to filings because certain 

response deadlines are triggered from 

the filing date. This in turn creates 

inefficiencies and compresses the time 

in which Commerce has to conduct a 

proceeding when parties file extension 

requests that Commerce must take the 

time to consider. 

One commenter proposes that 

Commerce adjust ACCESS release times 

to ensure that documents are ‘‘served’’ 

on the same business day they are filed. 

Another commenter asserts that 

ACCESS delays in making documents 

available the same day as filing 

contravenes the statutory requirement 

under section 777(d) of the Act that 

‘‘[a]ny party submitting written 

information, including business 

proprietary information, to the 

administering authority . . . during a 

proceeding shall, at the same time, 

serve the information upon all 

interested parties who are parties to the 

proceeding, if the information is 

covered by a protective order’’ 

(emphasis added). This commenter 

suggests that Commerce revise proposed 

sections 351.303(f)(1)(i) and (f)(1)(ii)(A) 

to require that if ACCESS does not 

release a business proprietary, public, or 

public version of a document within 

one business day, then the submitter 

must effectuate service of the document 

upon the request of a party on the 

service list, using one of the alternative 

methods of service provided for under 

proposed section 351.303(f)(1)(iii). The 

commenter relatedly proposes to add a 

requirement to proposed section 

351.303(f)(1)(iii) that if such an 

alternative method of service is used 


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4Section 777(d) of the Act states, ‘‘Any party 

submitting written information, including business 

proprietary information, to the administering 

authority or the Commission during a proceeding 

shall, at the same time, serve the information upon 

all interested parties who are parties to the 

proceeding, if the information is covered by a 

protective order’’ (emphasis added). 

when ACCESS does not release 

documents within one business day, the 

submitter would then be required to file 

a revised certificate of service pursuant 

to sections 351.303(c)(2)(i) and 

351.303(f)(3). 

Response: We understand the 

concerns expressed by some 

commenters that parties sometimes 

must wait a day or longer to download 

filed documents due to ACCESS delays. 

While most of the time documents are 

made available on the same day they are 

filed on ACCESS, this is not always 

achievable. Commerce endeavors to 

review and approve for release on 

ACCESS all documents submitted on 

the same day of filing, but this is 

sometimes not possible due to 

Commerce’s limited resources, as well 

as other factors, including the timing of 

when the document is filed on ACCESS, 

and the volume of files that must be 

reviewed and approved. On balance, 

Commerce makes documents available 

on ACCESS as soon as possible, and 

many times, on the same day the 

document is filed. 

Relatedly, we disagree with the 

comment that section 777(d) of the Act 

requires documents to be made 

available the same day as filing. The 

statute requires that a document be 

served at the same time as it is filed, but 

it does not require that the document be 

received by parties on the same day as 

filing.4 Thus, the requirements of the 

statute are fulfilled for those situations 

under the revised regulations where 

service is effectuated upon filing on 

ACCESS, even if the document is not 

received by other parties on the same 

day as filing. This is consistent with 

how service operates under the current 

regulations where, for example, parties 

may serve certain documents by firstclass mail on the day the document is 

filed, but the documents are not 

necessarily received on the same day as 

filing. 

For the reasons discussed above, we 

are not adopting the suggestion that 

Commerce revise the regulations to 

provide that if ACCESS does not release 

a business proprietary, public, or public 

version of a document within one 

business day, the submitter must 

effectuate service using an alternative 

method of service and file a revised 

certificate of service. Such a rule would 

be difficult for Commerce to administer 

given its limited resources. Moreover, 

submitters would not be able to predict 

when the submission will be made 

available in ACCESS, and thus, may not 

know that they should effectuate service 

using an alternative method. 

Alternative Methods of Service for 

Business Proprietary Documents, Public 

Documents, and Public Versions of 

Business Proprietary Documents 

Several commenters raise concerns 

about mail or hand delivery as 

alternative methods of service 

authorized under proposed section 

351.303(f)(1)(iii) when service of a 

public, business proprietary, or public 

version of a business proprietary 

document cannot be effectuated through 

ACCESS. Commenters argue that mail or 

hand delivery is regressive, contrary to 

the stated purpose of the Proposed Rule 

to make service more efficient, costly, 

burdensome, less reliable than 

electronic transmission, out of step with 

modern professional practice of 

electronic transmission, wasteful (when 

the documents will usually be scanned 

and the delivered hard copy destroyed), 

and inequitable in that it requires some 

personnel to be in the office rather than 

telework. Several commenters also point 

out that Commerce itself uses encrypted 

electronic platforms when transmitting 

business proprietary documents. 

One commenter argues that proposed 

section 351.303(f)(1)(iii) places a greater 

burden on petitioners’ firms, which 

often file submissions containing 

business proprietary information of 

multiple parties, and therefore are 

required to serve submissions by hand 

delivery or mail. Even if a petitioner is 

commenting on the business proprietary 

information of only one respondent, the 

petitioner only has the option of seeking 

consent to electronic service from that 

particular respondent and would still 

have to serve all other parties on the 

APO service list by hand or by mail. 

One commenter points out that for 

documents submitted under the one-day 

lag rule, service by mail or hand 

delivery does not necessarily result in 

parties receiving the documents on the 

day of filing, but rather after filing of the 

final business proprietary version on 

ACCESS. 

Thus, several commenters propose 

that Commerce eliminate the 

requirement for service by mail or hand 

delivery and make electronic service 

through secure electronic transmission 

the default rule. Some commenters 

propose that in making electronic 

service the default rule, Commerce 

should require that when parties sign an 

APO or make an entry of appearance, 

they agree to electronic transmission via 

secure file transfer unless they 

specifically opt out and request service 

by hand delivery or mail on their forms. 

One commenter suggests that Commerce 

may also consider giving parties the 

option to express inability to receive 

certain types of electronic service. 

Another commenter recommends 

amending proposed section 

351.303(f)(1)(iii) to establish that service 

of documents containing business 

proprietary information of a person who 

is not included on the APO service list 

shall be made via secure electronic file 

transfer unless the party has ‘‘opted 

out’’ in its entry of appearance, in which 

case service may be effectuated by hand 

delivery or first-class mail. One 

commenter similarly proposes that 

electronic service through encrypted 

platforms should also be available to pro 

se and non-APO represented parties. 

Several commenters also argue that 

Commerce should specify certain 

security standards that electronic 

transmission platforms used to transmit 

documents are required to contain. 

Some commenters argue that under 

proposed section 351.303(f)(1)(iii), 

Commerce should allow secure 

electronic transmission of a third party’s 

business proprietary information, rather 

than just that of the sender and recipient 

and eliminate the requirement of 

consent from the recipient for service 

through secure electronic transmission. 

Commenters argue that the requirement 

to seek consent for electronic service of 

business proprietary documents that 

contain business proprietary 

information of the sender or the 

recipient only is burdensome. For 

certain documents that include issues 

and arguments relating to multiple 

parties (e.g., case briefs), it may not be 

possible to include business proprietary 

information without preparing partyspecific versions of the submission. 

Thus, commenters argue that the default 

rule for electronic service through 

secure electronic transmission (unless a 

party affirmatively opts out) would 

eliminate the inefficiency of requiring 

parties to obtain consent before using 

electronic file transfer and eliminate the 

need for multiple different versions of 

the same document depending on 

whether a party affirmatively consented 

to electronic service. 

If Commerce permits service by 

unencrypted email, several commenters 

argue that such submissions should still 

only contain the recipient’s or 

submitter’s business proprietary 

information, and that all parties must 

consent. Another commenter proposes 

that, in addition to these requirements, 

the recipient must explicitly request an 

unencrypted email transmission. 


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5For consistency with our current regulations, in 

this final rule we have adopted the term ‘‘personal 

service’’ instead of ‘‘hand delivery,’’ which was 

used in the Proposed Rule. By reverting to the term 

in our current regulations, we indicate that methods 

of personal service that have been used under the 

current regulations continue to be acceptable as 

alternative methods of service when secure 

electronic transmission is not possible. 

6We note that a non-APO authorized 

representative or pro se party may also serve its 

own client’s or its own business proprietary 

information (respectively) on anyone, but for 

purposes of our proceedings, they would normally 

serve APO-authorized representatives. 

One commenter raises concern 

regarding the requirement of section 

351.303(f)(1)(ii)(B) that if a document 

contains the business proprietary 

information of a party who is not on the 

APO service list, the submitter of the 

document must serve the unrepresented 

party its own business proprietary 

information using one of the alternative 

service methods under section 

351.303(f)(1)(iii). This requirement, 

according to the commenter, would 

require represented parties to reach an 

agreement with unrepresented parties 

on an alternative means of service, and 

potentially place the represented party 

in the position of needing to explain the 

regulations to the unrepresented party, 

which could lead to conflicts in which 

Commerce would need to intervene. 

The commenter proposes that 

Commerce amend section 

351.303(f)(1)(ii)(B) to include specific 

language stating that Commerce will 

instruct, and will assume the 

responsibility for such instruction of, 

the parties as to the alternative means of 

service submitters must use under 

section 351.303(f)(1)(iii). 

Another commenter requests 

clarification of the statements that 

public and business proprietary 

documents will be served via ACCESS 

‘‘unless ACCESS is unavailable’’ and 

that an alternative method of service 

must be used if service ‘‘cannot be 

effectuated on ACCESS (for any 

reason).’’ Although the commenter 

interprets these phrases to encompass 

situations where a filing is not 

submitted through ACCESS (e.g., 

ACCESS is temporarily unavailable due 

to technical failure) or a party is unable 

to receive service via ACCESS (e.g., a 

pro se party that would not be able to 

receive service via ACCESS of a 

document containing only its own 

business proprietary information), the 

commenter notes that these phrases 

could be interpreted to encompass other 

situations. For example, there may be a 

situation in which a party files a 

document on ACCESS but due to a 

technical error the document is not 

made available via ACCESS, and the 

submitter is unaware and unable to 

know that it is necessary to take 

alternative measures. Thus, the 

commenter seeks clarification on the 

circumstances under which service 

would not be ‘‘effectuated on ACCESS.’’ 

Response: Upon consideration of 

these comments, we agree that 

electronic service via secure electronic 

transmission between parties should be 

the primary method of service when 

service cannot be effectuated on 

ACCESS or when ACCESS is 

unavailable. This approach is consistent 

with modern professional practice and 

would fulfill the goal of these regulatory 

amendments to make service more 

efficient. Thus, for this final rule we are 

amending section 351.303(f)(1)(iii) so 

that service via electronic transmission 

for public documents and public 

versions of business proprietary 

documents, and secure electronic 

transmission for business proprietary 

documents, is the default method of 

alternative service when service of such 

documents cannot be effectuated on 

ACCESS or when ACCESS is 

unavailable. 

This default rule for electronic service 

will apply to APO-authorized, non-APO 

authorized, and pro se parties. Thus, 

non-APO authorized representatives 

and pro se parties generally will be 

permitted to transmit business 

proprietary information electronically, 

subject to additional restrictions as 

explained below. Accordingly, we find 

that the concern expressed by one 

commenter that a represented party may 

be put in a situation where it needs to 

explain the regulations to an 

unrepresented party is rendered moot 

by adoption of electronic transmission 

as the default method of alternative 

service under section 351.303(f)(1)(iii). 

Because this is the default rule, 

parties generally will not need to 

affirmatively consent to receiving 

business proprietary information by 

electronic transmission. Service by mail 

or personal service 5 will continue to be 

an acceptable means of alternative 

service only in the very limited 

circumstance that a party does not have 

the capacity to send or receive 

documents electronically (e.g., an 

interested party in a foreign country that 

does not have access to email). Because 

electronic service is the default rule, we 

are not adopting the proposal that 

parties be permitted to affirmatively opt 

out of electronic service in their entries 

of appearance and APO applications. 

We also clarify that in making 

electronic service the default rule, APOauthorized representatives will be 

permitted to serve documents on other 

APO-authorized representatives that 

include third-party business proprietary 

information, and not just that of the 

sender or the recipient, and the 

recipient need not affirmatively consent 

to service (as was required in the 

Proposed Rule). That is, any APOauthorized representative may serve 

documents that include any business 

proprietary information (including that 

of a third party) on another APOauthorized representative. This 

alleviates the concern expressed by 

some commenters that there is a greater 

burden on petitioners’ firms because 

they often file submissions containing 

the business proprietary information of 

multiple parties. However, the APOauthorized representative must ensure 

that when serving documents on nonAPO authorized representatives and pro 

se parties, the documents contain only 

the business proprietary information of 

the non-APO authorized representative 

or of the pro se party. 

When compared to APO-authorized 

representatives, the procedures differ for 

non-APO authorized representatives 

and pro se parties where electronic 

service is the default rule. Non-APO 

authorized representatives and pro se 

parties will be permitted to serve 

documents containing the business 

proprietary information of the non-APO 

represented party or the pro se party 

(respectively) on APO-authorized 

representatives.6 They may also receive 

service of documents containing their 

own business proprietary information. 

We strongly encourage the 

transmission of business proprietary 

information through secure electronic 

transmission. However, we will permit 

service via unsecure electronic 

transmission (i.e., electronic mail) if an 

APO-authorized representative, pro se 

party, or non-APO authorized 

representative of a party requests service 

via unsecure electronic transmission, 

the recipient consents, and the 

document contains only the business 

proprietary information of the submitter 

or recipient. If the business proprietary 

document is encrypted, then consent is 

not required. 

Given rapid changes in technology, 

we do not find it practical to set 

minimum security standards in these 

regulations. Thus, we are not adopting 

the proposal to specify a particular 

encryption level for secure electronic 

transmission in the regulation but rather 

advise that generally, business 

proprietary documents should be served 

through platforms that use secure 

electronic transmission (e.g., encrypted 

emails, File Transfer Protocol Secure 

(FTPS), or secure file share such as 

Kiteworks, DocuSign, or Google Drive). 


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However, more specific security 

standards may be added to the ACCESS 

Handbook and updated from time to 

time as technological changes 

necessitate. 

In response to the comment that 

language describing ACCESS as 

‘‘unavailable’’ under sections 

351.303(f)(1)(i) and (f)(1)(ii)(A) could be 

interpreted to include multiple 

situations, we have amended the 

regulation to add a requirement that an 

alternative form of service in accordance 

with section 351.303(f)(1)(iii) is needed 

when a submission is filed manually, 

including bulky document filings, super 

bulky filings, and data files that exceed 

the file size limit. The reason for this 

change is to expedite the availability of 

these submissions, which require 

additional processing. In some cases, as 

a commenter mentioned, there may be 

delays in making those files available, 

especially in situations where the 

ACCESS team may need to find an 

alternative method of releasing the files. 

In our experience, the transmittal of 

extremely large collections of 

documents has, at times, required a 

corresponding large use of ACCESS 

resources. The use of such resources 

has, in turn, caused the ACCESS system 

to operate at much slower speeds, 

resulting in extensive download times 

for parties and forcing them to 

download documents during non-peak 

times. Considering the above, 

Commerce has determined that for such 

manual filings (including bulky 

document filings, super bulky filings 

and data files exceeding the file size 

limit), that the submitter who is filing 

the submission in this alternative 

manner also be required to serve the 

submission in an alternative manner in 

accordance with section 

351.303(f)(1)(iii). This additional step 

for the submitter to ensure timely 

service will be offset by the time savings 

the submitter will gain in manually 

filing its voluminous submission. This 

requirement also addresses the concerns 

of those commenters who expressed 

concern about receiving access to 

submissions in a timely manner. 

We also clarify that ACCESS is 

considered ‘‘unavailable’’ when, due to 

a technical failure, ACCESS is unable to 

accept electronic filings, as specified in 

the Handbook on Electronic Filing 

Procedures, which is available on the 

ACCESS website at https://access.

trade.gov (via the ACCESS Handbook 

link). If ACCESS is unable to accept 

electronic filings for more than one hour 

between the hours of 12:00 p.m. and 

4:30 p.m. Eastern Time, or for any 

duration of time between the hours of 

4:31 p.m. and 5:00 p.m. Eastern Time, 

Commerce will allow a document or 

data to be filed manually. In such a 

situation, if a submitter files a 

submission manually, it must also serve 

the submission on the parties to the 

proceeding in accordance with section 

351.303(f)(1)(iii). Thus, generally, if a 

submitter must file a submission 

manually, the submitter must also use 

an alternative form of service. The 

reason for requiring alternative service 

is that a technical failure that requires 

manual filing will cause a delay in 

service, as discussed above. At the time 

of filing, the submitter will be aware of 

the technical failure and therefore 

should also be aware of the service 

obligations for manual filings. 

If a technical failure occurs, but a 

submitter already successfully filed a 

submission electronically before the 

technical failure occurred, the submitter 

does not need to serve the submission 

using an alternative method. Rather, the 

would-be recipients should wait until 

the ACCESS technical failure has been 

resolved, and the submissions will be 

available at that time. If Commerce 

determines that the technical failure 

will be lengthy in duration given the 

severity of the problem or a large 

backlog of filings to process, Commerce 

may direct parties to seek service copies 

from one another. 

Finally, we clarify what is meant by 

situations when service ‘‘cannot be 

effectuated on ACCESS’’ under section 

351.303(f)(1)(iii). There are certain 

situations in which ACCESS does not 

have the capability to effectuate service 

based on the way the system is 

structured. There are two categories that 

determine who and what gets served. 

Who gets served is determined by the 

individuals on the APO and public 

service lists. What gets served is 

determined by the documents that are 

on the record. A party to the proceeding 

can use these guidelines to understand 

whether, at the time of filing, service of 

a particular submission can be 

effectuated on ACCESS. 

For example, a document submitted 

under the one-day lag rule under section 

351.303(c)(2)(i) is not considered a 

record document due to the non-final 

nature of the designation of business 

proprietary information; therefore, 

service cannot be effectuated on 

ACCESS. Another example is a 

document that contains the business 

proprietary information of a person who 

is not included on the APO service list. 

Under section 351.303(f)(1)(ii)(B), 

service cannot be effectuated on 

ACCESS for that person and must be 

made in accordance with section 

351.303(f)(1)(iii). A further example is a 

situation where a representative of an 

interested party is granted APO access 

after other parties to the proceeding 

have already filed submissions to the 

record and they are no longer available 

for download on ACCESS, as addressed 

in section 351.305(c)(2). 

Other situations in which a document 

is not immediately made available on 

ACCESS are not situations in which 

service cannot be effectuated on 

ACCESS. 

Reinstatement of Service Requirement 

for Documents Filed Under the One-Day 

Lag Rule 

Commenters are divided in their 

support of Commerce’s proposed 

reinstatement of the requirement that 

business proprietary documents filed 

under the one-day lag rule be served on 

interested parties. Commenters who 

oppose the reinstatement of the service 

requirement argue that it is burdensome 

(even if done by electronic means); 

creates inconsistencies; increases the 

likelihood of errors, including APO 

violations; and does not allow the 

flexibility to manage varied situations, 

such as another pandemic, inclement 

weather, and increased telework. One 

commenter argues that the burden of 

service of one-day lag documents is 

greater for petitioners’ firms, because 

they are more likely to file submissions 

containing multiple parties’ business 

proprietary information, and such 

documents cannot be served by 

electronic means under the Proposed 

Rule. 

Several commenters address 

Commerce’s observation in the 

Proposed Rule that under the waiver of 

the service requirement for one-day lag 

submissions under the Temporary Rule, 

parties were sometimes not aware of a 

filing. One commenter notes that any 

uncertainty as to whether a document 

has been filed under the one-day lag 

rule lasts only about a day, and parties 

have been dealing with that uncertainty 

now for over two years under the 

Temporary Rule. This commenter points 

out that any inconvenience in having a 

tighter rebuttal period could be 

alleviated by maintaining the extension 

of the time for rebuttal briefs from five 

to seven days, as adopted under the 

Temporary Rule. Another commenter 

points out that lack of same-day notice 

of the filing of a business proprietary 

document under the one-day lag rule 

also occurred before the Temporary 

Rule, for example when first-class mail 

delivery of the document arrived the 

next business day after filing with 

Commerce. Some commenters note that 

under the proposed alternative methods 

of service under section 

351.303(f)(1)(iii), one-day lag filings 


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might still be received after the final 

bracketed version is released by 

Commerce because of delays in the type 

of service used (e.g., first-class mail). 

Thus, several commenters conclude that 

the benefits of notice through 

reinstatement of the service requirement 

for one-day lag documents do not 

outweigh the burdens and risks. 

Other commenters propose measures 

to address Commerce’s concern that 

parties are not aware of the filing of 

documents under the one-day lag rule, 

without reinstating the service 

requirement for one-day lag documents. 

For example, one commenter suggests 

that Commerce adopt the proposal 

under section 351.303(c)(2)(i) to file a 

standalone certificate of service for 

documents filed under the one-day lag 

rule that would include the name of the 

submission and the party for whom it 

was filed. This would effectively be a 

‘‘certificate of non-service’’ because the 

documents would not be served but 

would give parties notice of the filing of 

the one-day lag document through the 

ACCESS public service list. This 

commenter also proposes that parties be 

permitted to file the ‘‘certificate of nonservice’’ before the filing of the 

document on ACCESS to reduce the 

burden on parties filing multiple 

submissions on the same day, to help 

ensure submissions are made in their 

entirety prior to the filing deadline, and 

to increase the likelihood that other 

parties will be made aware of the filing 

on the actual filing day. Alternatively, 

the commenter proposes that Commerce 

permit that the ‘‘certificate of nonservice’’ be filed two hours after the 

deadline for the one-day lag document 

(e.g., 7:00 p.m. for a 5:00 p.m. filing 

deadline), and still be deemed timely. 

One commenter suggests that 

Commerce itself release the one-day lag 

submission under the same procedures 

as the release of the final bracketed 

business proprietary versions. Another 

commenter suggests that Commerce 

could require that final business 

proprietary and public versions of oneday lag documents contain a header 

indicating whether the one-day lag rule 

was used, an approach that is similar to 

the current ‘‘bracketing not final’’ 

designations on documents filed under 

the one-day lag rule. 

Several other commenters support 

reinstatement of the service requirement 

for documents filed under the one-day 

lag rule. One commenter states that 

Commerce’s concern over parties not 

receiving notice of filings of one-day lag 

documents under the Temporary Rule’s 

waiver of service requirements was 

borne out by its own experiences. That 

commenter states that parties often did 

not know if a document had been filed 

under the one-day lag rule, or a party 

had missed the deadline. Moreover, 

because parties did not receive the 

document the day it was filed with 

Commerce, they missed a day or more 

of the regulatory rebuttal period, 

requiring the filing of extension 

requests. Another commenter supports 

the reinstatement of the service 

requirement of documents filed under 

the one-day lag rule because it prevents 

parties from delaying service of 

documents through the one-day lag rule, 

and because it enables other parties to 

ensure that the only changes made 

between the document filed by the 

deadline under the one-day lag rule and 

the final document relate to 

identification of business proprietary 

information. 

Some commenters support the 

reinstatement of the service requirement 

for documents filed under the one-day 

lag rule, but object to the requirement 

that such service be effectuated outside 

of ACCESS. These commenters suggest 

that documents submitted under the 

one-day lag rule should be deemed 

served on parties on the APO service list 

when filed on ACCESS. Several parties 

address Commerce’s explanation in the 

Proposed Rule that a business 

proprietary document filed under the 

one-day lag rule contains non-final 

bracketing that is not treated as an 

official record document, and thus 

cannot be served via ACCESS with the 

same technology used for serving 

official record documents. Some 

commenters suggest that Commerce 

make technical changes to ACCESS to 

prevent one-day lag filings from 

becoming part of the official record, 

including permitting parties 14 days to 

download business proprietary 

documents filed under the one-day lag 

rule before deleting the documents from 

the record. 

Several commenters state that if 

documents filed under the one-day lag 

rule are not served via ACCESS, parties 

should be permitted to serve such 

documents via secure electronic 

transmission on the day the document 

is filed with Commerce, and object to 

any requirement that service be 

completed via first-class mail or hand 

delivery as inefficient, costly, and 

burdensome on parties. These 

commenters argue that parties often do 

not receive the documents filed under 

the one-day lag rule before the final 

proprietary version is filed on ACCESS 

because documents served by such 

means are not always received on the 

same day as filing. One commenter 

proposes that documents filed under the 

one-day lag rule may be served via 

email if all parties agree, and that firstclass mail or hand delivery should only 

be required when a party explicitly 

requests that method of service. Other 

commenters state that electronic service 

of one-day lag documents would obviate 

the need for the standalone public 

certificate of service requirements under 

proposed section 351.303(c)(2)(i). 

One commenter notes that because 

the bracketing in one-day lag filings is 

only provisional, an attorney may not be 

able to share it with a client until the 

final business proprietary version is 

filed. The commenter indicates that 

delays in receipt when documents are 

served via first-class mail are 

particularly problematic with respect to 

case and rebuttal briefs, and suggests 

that Commerce could require that 

business proprietary case and rebuttal 

briefs served under the one-day lag rule 

be served by hand delivery or overnight 

mail or courier, and that Commerce 

could set an earlier deadline for 

submission of the final proprietary and 

public versions of a document 

submitted under the one-day lag rule. 

According to this commenter, setting an 

earlier deadline would result in a 

greater likelihood that the submissions 

would be ‘‘approved’’ and available to 

other parties on ACCESS on the same 

day. 

Finally, two commenters argue that if 

Commerce reinstates the service 

requirement for business proprietary 

documents filed under the one-day lag 

rule, service should only be made on 

parties on the APO service list, and not 

on pro se or non-APO authorized 

parties. The commenters argue that to 

require service of such documents to 

non-APO authorized parties before the 

final bracketing is checked creates 

significant risk of an APO violation, 

particularly when submissions contain 

the business proprietary information of 

multiple parties. These commenters 

argue that this undermines the purpose 

of the one-day lag rule to protect 

business proprietary information. 

Response: Upon consideration of 

these comments, we are adopting our 

proposal to reinstate the requirement 

that a business proprietary document 

filed on the due date under the one-day 

lag rule must also be served on the 

persons on the APO service list and 

those non-APO authorized parties 

whose business proprietary information 

is contained in the document. However, 

as discussed above, for this final rule we 

are amending section 351.303(f)(1)(iii) 

so that electronic service via secure 

electronic transmission is the default 

method of alternative service, including 

for business proprietary documents filed 

under the one-day lag rule. We believe 


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7See Proposed Rule, 87 FR at 72920. 

8See, e.g., 19 CFR 351.305(a)(1) and 351.306(d). 9See 19 CFR 351.306(c)(1)–(2) (requiring a 

submitting party to identify, contiguously with each 

item of business proprietary information, the person 

that originally submitted the item). 

that reinstating the service requirement 

of such documents eliminates 

uncertainties that resulted from waiving 

service during the past three years 

under the Temporary Rule and helps 

with providing parties as much time as 

possible with such documents to protect 

their interests. In our view, this fulfills 

the goal of these regulatory amendments 

to make service more efficient and 

addresses many of the concerns raised 

regarding the burden of other forms of 

service, such as first-class mail or 

personal service, while also maintaining 

flexibility. Although some commenters 

oppose the reinstatement of service 

requirements for documents filed under 

the one-day lag rule, we are not 

convinced that, overall, the benefits of 

not being required to serve these 

documents under the Temporary Rule 

outweigh the benefits of requiring 

service. This is particularly true when 

considering that Commerce is amending 

the regulations to permit such 

documents to be served via secure 

electronic transmission, which greatly 

reduces the burdens expressed by 

certain commenters. 

Further, as discussed above, because 

we are amending the regulation to 

permit the service of one-day lag 

documents via secure electronic 

transmission, we are removing the 

requirement to file a standalone 

certificate of service from this final rule. 

For similar reasons, we determine it is 

not necessary to adopt one commenter’s 

alternative proposal to require a 

‘‘certificate of non-service.’’ Because we 

are reinstating the service requirements 

for business proprietary documents filed 

under the one-day lag rule, filing a 

‘‘certificate of non-service’’ would not 

be needed because such documents 

would in fact be served. 

Allowing electronic service of 

business proprietary documents filed 

under the one-day lag rule removes the 

uncertainty parties may have 

experienced over whether a document 

was filed under the one-day lag rule or 

whether the document was untimely 

filed or not filed at all. Having the 

submitter serve parties via secure 

electronic service will also help to 

reduce delays in service, enable parties 

to ensure that any changes made to the 

final business proprietary document are 

only related to bracketing, and increase 

the likelihood that parties will receive 

the documents the same day they are 

filed on ACCESS. Accordingly, we find 

it unnecessary to adopt the suggestion 

that the time for submitting rebuttal 

briefs be increased from five to seven 

days as a method of relieving the 

potential compressed period for 

submitting rebuttal briefs that may 

result from delays in receiving 

documents filed under the one-day lag 

rule. For similar reasons, we also find it 

unnecessary to adopt the suggestion that 

Commerce set an earlier deadline for the 

submission of final business proprietary 

and public versions of documents 

submitted under the one-day lag rule as 

a potential way for these documents to 

be approved faster on ACCESS. We also 

note that neither of these suggestions are 

responsive to the proposed regulatory 

amendments in the Proposed Rule, and 

thus, such modifications would be 

outside the scope of this rulemaking. 

Moreover, as discussed above, in 

making electronic service the default 

rule, APO-authorized representatives 

will be permitted to serve third-party 

business proprietary information, not 

just that of the sender or the recipient, 

and the recipient need not affirmatively 

consent to service. This alleviates the 

concern expressed by some commenters 

that there is a greater burden on 

petitioners’ firms that often file 

submissions containing the business 

proprietary information of multiple 

parties, because these parties will be 

able to electronically serve documents 

containing the business proprietary 

information of multiple parties. 

Some commenters suggest that 

Commerce itself should release nonfinal business proprietary documents 

filed under the one-day lag rule by 

making technical changes to ACCESS to 

prevent such documents from becoming 

part of the official record. These 

commenters suggest that this would be 

a method of allowing ACCESS to 

effectuate service of such documents 

without reinstating service requirements 

outside of ACCESS. As stated in the 

Proposed Rule, business proprietary 

documents filed under the one-day lag 

rule and containing non-final bracketing 

cannot be served via ACCESS using the 

same technology used for serving 

official record documents.7 Should 

ACCESS technology capabilities change 

in the future, we will consider whether 

service of non-final bracketing 

documents can be effectuated upon 

filing on ACCESS. At this time, 

however, we believe that permitting 

electronic service of non-final 

bracketing documents is efficient, 

consistent with modern professional 

practice, and sufficiently addresses the 

various concerns raised by parties. 

Finally, certain commenters argue 

that if Commerce reinstates service 

requirements for non-final business 

proprietary documents filed under the 

one-day lag rule, such requirement 

should only apply to persons on the 

APO service list and not on non-APO 

authorized representatives or pro se 

parties because it creates a significant 

risk of an APO violation. We recognize 

there may be some risk of a potential 

APO violation if parties do not properly 

bracket business proprietary 

information in a non-final business 

proprietary submission. At the same 

time, we are cognizant that non-APO 

authorized representatives and pro se 

parties would benefit from service of 

such documents in defending their 

interests during a segment of the 

proceeding. We remind parties of their 

responsibility to properly safeguard 

business proprietary information.8

Commerce’s regulations have required 

parties to identify whose business 

proprietary information is contained in 

a submission; this is not a new 

requirement.9 If a submitter cannot 

identify certain business proprietary 

information as definitively belonging to 

a non-APO authorized representative or 

pro se party, then it is the submitter’s 

responsibility to bracket the information 

accordingly in the non-final business 

proprietary submission and consider 

whether service of the submission needs 

to be made. When preparing the final 

version of the submission, the submitter 

should assess whether the bracketing 

should be updated or corrected. On 

balance, we believe it is important to 

reinstate service requirements for nonfinal business proprietary documents 

filed under the one-day lag rule on all 

parties, whether or not they are APOauthorized, and are adopting this 

change. 

To be clear, the requirement to serve 

business proprietary documents filed 

under the one-day lag rule applies to 

non-final business proprietary 

documents. For final business 

proprietary documents, with or without 

bracketing corrections, and public 

versions of final business proprietary 

documents, the general rule applies that 

ACCESS will effectuate service, as 

outlined elsewhere in this final rule and 

in the Proposed Rule. 

Request for Review 

Two commenters express concern 

over the requirement in proposed 

section 351.303(f)(2)(i) that requests for 

an expedited AD review, an 

administrative review, a new shipper 

review, or a changed circumstances 

review be served by personal service or 

first-class mail on each exporter or 

producer specified in the request. One 


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commenter argues that such delivery 

methods are inefficient, costly, and 

prejudice small- and medium-sized 

enterprises (particularly for overseas 

deliveries), and that publicly listed 

addresses are sometimes undeliverable 

or refuse service. Moreover, the 

commenter notes that the Federal 

Register already provides public notice 

of the initiation of such proceedings. 

Thus, the commenter proposes that 

Commerce permit parties to serve 

requests for these reviews through 

electronic means, unless there are no 

means for electronic service. 

Response: Upon consideration of 

these comments, we are amending the 

regulation so that requests for an 

expedited AD review, an administrative 

review, a new shipper review, or a 

changed circumstances review may be 

served via electronic service. Service of 

documents containing business 

proprietary information must be 

effectuated in accordance with the rules 

provided elsewhere in this final rule. 

Although the Federal Register provides 

public notice of the initiation of these 

proceedings, there is a delay between 

when parties may request these reviews 

and when Commerce will initiate the 

proceeding itself and publish the 

Federal Register notice. There is a 

benefit to service of requests for these 

types of proceedings because it may 

inform another party’s decision whether 

to participate in the proceeding or to 

potentially comment on another party’s 

request prior to a decision by Commerce 

to initiate the proceeding. Therefore, we 

are maintaining the requirement to serve 

requests for these types of reviews but 

are permitting parties to serve these 

requests via electronic service. 

APO Applications Using Electronic 

Form ITA–367 

The only commenter remarking on 

this provision in proposed section 

351.305(b)(2) supports the codification 

of the APO application process to use 

electronic Form ITA–367, because it 

would expedite the APO application 

approvals by Commerce, as well as 

service of applications and updated 

service lists. 

Response: Upon consideration of this 

comment, we have made no changes to 

this provision from the Proposed Rule. 

Service of Business Proprietary 

Documents to Newly Authorized APO 

Representatives 

Several commenters support the 

general proposal in proposed section 

351.305(c)(2) that representatives that 

are newly granted APO access would be 

responsible for requesting business 

proprietary documents that are no 

longer available on ACCESS from the 

party that made the business proprietary 

submission. However, one commenter 

notes that proposed section 

351.305(c)(2) does not indicate the 

acceptable means of service for such 

documents, or whether a certificate of 

service would be required. Thus, the 

commenter suggests that Commerce 

amend subparagraphs (c)(2)(i) and (ii) to 

state that parties may agree upon any 

acceptable means of service listed in 

section 351.303(f)(1)(iii), and to state 

that a certificate of service is not 

required. 

Response: Upon consideration of 

these comments, we clarify that service 

via secure electronic transmission is 

permitted and that a certificate of 

service is not required and are 

amending this regulation accordingly. 

Service of Business Proprietary 

Information 

Commenters generally support the 

proposal in proposed section 

351.306(c)(2) that when a party is not 

represented, or when its representative 

is not APO-authorized, another party 

need only serve that party or its 

representative its own business 

proprietary information, and not the 

business proprietary information of 

other parties. However, one commenter 

notes that in some instances a party files 

its own submission even when it is 

otherwise represented, and requests that 

Commerce clarify that a submitting 

party need only serve a party’s 

representative rather than serve both the 

party and its representative. 

Another commenter requests that 

Commerce limit the service exceptions 

under section 351.306(c)(2) to parties 

and representatives who are not eligible 

to obtain approval for access under an 

APO. The commenter states that if a 

U.S. attorney is eligible to obtain APO 

access, it should be required to do so to 

receive business proprietary 

information, including that of its client. 

If the attorney is eligible to obtain APO 

access but simply chooses not to, the 

commenter asserts other parties should 

not be required to serve the attorney 

under the service exceptions under 

section 351.306(c)(2) for pro se parties 

and non-APO authorized 

representatives and suggests that 

Commerce could require that parties 

indicate in their entry of appearance if 

they are not eligible to submit an APO 

application and the reasons why they 

are ineligible to submit an APO 

application. 

Response: We clarify that a submitting 

party is required to serve the party or 

parties that are on the service list. If a 

party is not on the service list, but its 

representative is, the submitting party is 

only required to serve the party’s 

representative, even if the party itself, 

and not its representative, filed the 

submission. 

In addition, we decline to adopt the 

suggestion that Commerce limit service 

exceptions under this provision to 

parties that are not eligible to obtain 

approval for access to an APO. There is 

no requirement to file an APO 

application, and we do not view it as 

appropriate to require a person to file an 

APO application simply because that 

person is an attorney. As such, we are 

not making changes to the regulations to 

limit the service exceptions in this 

manner. 

Labor Factors of Production Valuation 

One commenter argues that if 

Commerce adopts its proposal to 

remove paragraph (c)(3) and redesignate 

paragraph (c)(4) as paragraph (c)(3) 

under proposed section 351.408, 

Commerce should also remove the 

reference to current paragraph (c)(3) in 

paragraph (c)(2). The commenter notes 

that paragraph (c)(2) currently reads: 

‘‘Except for labor, as provided in 

paragraph (d)(3) of this section, the 

Secretary normally will value all factors 

in a single surrogate country.’’ The 

commenter argues that for consistency, 

that paragraph could be revised to state: 

‘‘The Secretary normally will value all 

factors in a single surrogate country.’’ 

Response: We agree and are amending 

the regulation accordingly. 

Other Suggestions From Commenters 

Commenters recommended several 

modifications to the ACCESS system 

and filing procedures that were not 

covered or addressed in the Proposed 

Rule. 

1. Commenter Suggestions Related to 

ACCESS 

Commenters suggested a variety of 

changes to ACCESS, including: 

• creating a separate docket and 

separate notification digests for 

procedural documents such as APO 

applications, entries of appearance, and 

amendments thereto; 

• adding additional notification 

digests; 

• adding a ‘‘released date’’ column to 

show the date and time a document is 

made available to parties; 

• extending the number of days 

business proprietary documents are 

available on ACCESS to 30 days; 

• increasing the number of ACCESS 

proxy users, including a proposal to 

create firm-wide proxies; 

• increasing the ACCESS file-size 

limit; 


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• increasing the number of files 

available for batch download; 

• requiring optimization of PDFs for 

maximum compression; and 

• consolidating all parts of a filing 

under one barcode. 

Response: We note that these 

suggestions are not responsive to the 

proposed regulatory amendments in the 

Proposed Rule. Thus, such 

modifications would be outside the 

scope of this rulemaking. However, 

Commerce is committed to improving 

the ACCESS system by implementing 

features that will foster efficiency and 

ease of use for the most users while 

staying within Commerce’s resource 

constraints. As such, we will take these 

proposals into consideration and may 

address one or more in possible future 

rulemakings. To the extent 

consideration or implementation of 

certain new features would not require 

notice and comment, Commerce will 

consider these proposals and any new 

features adopted will be announced on 

the ACCESS website at https://

access.trade.gov and included in the 

ACCESS Handbook. 

2. Additional Commenter Suggestions 

Commenters also proposed three 

additional changes to Commerce’s filing 

procedures that were not included in 

the Proposed Rule: amending section 

351.309(d) to require rebuttal briefs to 

be due seven days after the due date for 

case briefs, rather than the current five 

days; amending section 351.303(b)(1) to 

set a filing deadline of 12:00 a.m. 

Hawaiian Standard Time, or at a 

minimum changing to a midnight 

Eastern Time deadline rather than 5:00 

p.m. Eastern Time; and amending 

section 351.303(b)(1) to deem the time 

of filing of a submission as the time the 

party begins the filing process, rather 

than the end time at which it is filed in 

its entirety. 

Response: Commerce has not adopted 

these three recommendations in this 

final rule. The Proposed Rule did not 

cover or address these regulatory 

provisions in sections 351.309(d) and 

351.303(b)(1), and the comments are 

outside the scope of the modifications 

and additions to regulations that we 

proposed for comment. 

Classification 

Executive Order 12866 

OMB has determined that this rule is 

not significant for purposes of Executive 

Order 12866. 

Executive Order 13132 

This rule does not contain policies 

with federalism implications as that 

term is defined in section 1(a) of 

Executive Order 13132, dated August 4, 

1999 (64 FR 43255 (August 10, 1999)). 

Paperwork Reduction Act 

This rule does not contain a collection 

of information subject to the Paperwork 

Reduction Act, 44 U.S.C. chapter 35. 

Regulatory Flexibility Act 

The Chief Counsel for Regulation of 

the Department of Commerce certified 

to the Chief Counsel for Advocacy of the 

Small Business Administration at the 

proposed rule stage that this rule, if 

adopted, would not have a significant 

economic impact on a substantial 

number of small business entities under 

the provisions of the Regulatory 

Flexibility Act, 5 U.S.C. 605(b). The 

factual basis for the certification was 

published with the Proposed Rule and 

is not repeated here. We received no 

comments and were not made aware of 

any positions of opposition to the 

certification. As a result, a Final 

Regulatory Flexibility Analysis was not 

required and none was prepared. 

List of Subjects in 19 CFR Part 351 

Administrative practice and 

procedure, Antidumping, Business and 

industry, Cheese, Confidential business 

information, Countervailing duties, 

Freedom of information, Investigations, 

Reporting and recordkeeping 

requirements. 

Dated: September 25, 2023. 

Lisa W. Wang, 

Assistant Secretary for Enforcement and 

Compliance. 

For the reasons stated in the 

preamble, the Department of Commerce 

amends 19 CFR part 351 as follows: 

PART 351—ANTIDUMPING AND 

COUNTERVAILING DUTIES 

■ 1. The authority citation for 19 CFR 

part 351 continues to read as follows: 

Authority: 5 U.S.C. 301; 19 U.S.C. 1202 

note; 19 U.S.C. 1303 note; 19 U.S.C. 1671 et 

seq.; and 19 U.S.C. 3538. 

■ 2. In § 351.103, revise paragraphs (a) 

and (b) to read as follows: 

§ 351.103 Central Records Unit and 

Administrative Protective Order and 

Dockets Unit. 

(a) Enforcement and Compliance’s 

Central Records Unit maintains a Public 

File Room in Room B8024, U.S. 

Department of Commerce, 14th Street 

and Constitution Avenue NW, 

Washington, DC 20230. The office hours 

of the Public File Room are between 

8:30 a.m. and 5 p.m. Eastern Time on 

business days. Visitors to the Public File 

Room should consult the ACCESS 

website at https://access.trade.gov for 

information regarding in-person visits. 

Among other things, the Central Records 

Unit is responsible for maintaining an 

official and public record for each 

antidumping and countervailing duty 

proceeding (see § 351.104). 

(b) Enforcement and Compliance’s 

Administrative Protective Order and 

Dockets Unit (APO/Dockets Unit) is 

located in Room 18022, U.S. 

Department of Commerce, 14th Street 

and Constitution Avenue NW, 

Washington, DC 20230. The office hours 

of the APO/Dockets Unit are between 

8:30 a.m. and 5 p.m. Eastern Time on 

business days. Visitors to the APO/ 

Dockets Unit should consult the 

ACCESS website at https://

access.trade.gov for information 

regarding in-person manual filings. 

Among other things, the APO/Dockets 

Unit is responsible for receiving 

submissions from interested parties, 

issuing administrative protective orders 

(APOs), maintaining the APO service 

list and the public service list as 

provided for in paragraph (d) of this 

section, releasing business proprietary 

information under APO, and conducting 

APO violation investigations. The APO/ 

Dockets Unit also is the contact point 

for questions and concerns regarding 

claims for business proprietary 

treatment of information and proper 

public versions of submissions under 

§§ 351.105 and 351.304. 

* * * * * 

■ 3. In § 351.104, revise paragraph 

(a)(2)(ii)(A) to read as follows: 

§ 351.104 Record of proceedings. 

(a) * * * 

(2) * * * 

(ii) * * * 

(A) The document, although 

otherwise timely, contains untimely 

filed new factual information (see 

§ 351.301(c)); 

* * * * * 

§ 351.204 [Amended] 

■ 4. In § 351.204, remove paragraph 

(d)(3) and redesignate paragraph (d)(4) 

as paragraph (d)(3). 

■ 5. In § 351.225, revise paragraphs (b), 

(d)(1), (e)(2), and (f)(1) and (2) to read as 

follows: 

§ 351.225 Scope rulings. 

* * * * * 

(b) Self-initiation of a scope inquiry. 

If the Secretary determines from 

available information that an inquiry is 

warranted to determine whether a 

product is covered by the scope of an 

order, the Secretary may initiate a scope 


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inquiry by publishing a notice of 

initiation in the Federal Register. 

* * * * * 

(d) Initiation of a scope inquiry and 

other actions based on a scope 

application—(1) Acceptance and 

Initiation of a scope inquiry ruling 

application. Except as provided under 

paragraph (d)(2) of this section, within 

30 days after the filing of a scope 

application, the Secretary will 

determine whether to accept or reject 

the scope ruling application and to 

initiate or not initiate a scope inquiry, 

or, in the alternative, paragraph (d)(1)(ii) 

will apply. 

* * * * * 

(e) * * * 

(2) Extension. The Secretary may 

extend the deadline in paragraph (e)(1) 

of this section by no more than 180 

days, for a final scope ruling to be 

issued no later than 300 days after 

initiation, if the Secretary determines 

that good cause exists to warrant an 

extension. Situations in which good 

cause has been demonstrated may 

include: 

* * * * * 

(f) * * * 

(1) Within 30 days after the 

Secretary’s self-initiation of a scope 

inquiry under paragraph (b) of this 

section, interested parties are permitted 

one opportunity to submit comments 

and factual information addressing the 

self-initiation. Within 14 days after the 

filing of such comments, any interested 

party is permitted one opportunity to 

submit comments and factual 

information submitted by the other 

interested parties. 

(2) Within 30 days after the initiation 

of a scope inquiry under paragraph 

(d)(1) of this section, an interested party 

other than the applicant is permitted 

one opportunity to submit comments 

and factual information to rebut, clarify, 

or correct factual information contained 

in the scope ruling application. Within 

14 days after the filing of such rebuttal, 

clarification, or correction, the applicant 

is permitted one opportunity to submit 

comments and factual information to 

rebut, clarify, or correct factual 

information submitted in the interested 

party’s rebuttal, clarification or 

correction. 

* * * * * 

■ 6. In § 351.226, revise paragraphs (b), 

(d)(1), (f)(1) and (2), and (l)(2)(ii) to read 

as follows: 

§ 351.226 Circumvention Inquiries 

* * * * * 

(b) Self-initiation of a circumvention 

inquiry. If the Secretary determines from 

available information that an inquiry is 

warranted into the question of whether 

the elements necessary for a 

circumvention determination under 

section 781 of the Act exist, the 

Secretary may initiate a circumvention 

inquiry by publishing a notice of 

initiation in the Federal Register. 

* * * * * 

(d) * * * 

(1) Initiation of circumvention 

inquiry. Except as provided under 

paragraph (d)(2) of this section, within 

30 days after the filing of a request for 

a circumvention inquiry, the Secretary 

will determine whether to accept or 

reject the request and whether to initiate 

or not initiate a circumvention inquiry. 

If it is not practicable to determine 

whether to accept or reject a request or 

initiate or not initiate within 30 days, 

the Secretary may extend that deadline 

by an additional 15 days. 

* * * * * 

(f) * * * 

(1) Within 30 days after the 

Secretary’s self-initiation of a 

circumvention inquiry under paragraph 

(b) of this section, interested parties are 

permitted one opportunity to submit 

comments and factual information 

addressing the self-initiation. Within 14 

days after the filing of such comments, 

any interested party is permitted one 

opportunity to submit comments and 

factual information submitted by the 

other interested parties. 

(2) Within 30 days after the initiation 

of a circumvention inquiry under 

paragraph (d)(1) of this section, an 

interested party other than the applicant 

is permitted one opportunity to submit 

comments and factual information to 

rebut, clarify, or correct factual 

information contained in the scope 

ruling application. Within 14 days after 

the filing of such rebuttal, clarification, 

or correction, the applicant is permitted 

one opportunity to submit comments 

and factual information to rebut, clarify, 

or correct factual information submitted 

in the interested party’s rebuttal, 

clarification, or correction. 

* * * * * 

(1) * * * 

(2) * * * 

(ii) The Secretary will direct the 

Customs Service to begin the 

suspension of liquidation and require a 

cash deposit of estimated duties, at the 

applicable rate, for each unliquidated 

entry of the product not yet suspended, 

entered, or withdrawn from warehouse, 

for consumption on or after the date of 

the publication of the notice of 

initiation of the circumvention inquiry; 

and 

* * * * * 

■ 7. In § 351.227, revise paragraphs (b) 

and (d)(1) to read as follows: 

§ 351.227 Covered merchandise referrals. 

* * * * * 

(b) Actions with respect to covered 

merchandise referral. (1) Within 20 days 

after acknowledging receipt of a covered 

merchandise referral from the Customs 

Service pursuant to section 

517(b)(4)(A)(i) of the Act that the 

Secretary determines to be sufficient, 

the Secretary will take one of the 

following actions. 

(i) Initiate a covered merchandise 

inquiry; or 

(ii) If the Secretary determines upon 

review of the covered merchandise 

referral that the issue can be addressed 

in an ongoing segment of the 

proceeding, such as a scope inquiry 

under § 351.225 or a circumvention 

inquiry under § 351.226, rather than 

initiating the covered merchandise 

inquiry, the Secretary will address the 

covered merchandise referral in such 

other segment. 

(2) The Secretary will publish a notice 

of its action taken with respect to a 

covered merchandise referral under 

paragraph (b)(1) of this section in the 

Federal Register. 

* * * * * 

(d) * * * 

(1) Within 30 days after the date of 

publication of the notice of an initiation 

of a covered merchandise inquiry under 

paragraph (b)(1) of this section, 

interested parties are permitted one 

opportunity to submit comments and 

factual information addressing the 

initiation. Within 14 days after the filing 

of such comments, any interested party 

is permitted one opportunity to submit 

comment and factual information to 

rebut, clarify, or correct factual 

information submitted by the other 

interested parties. 

* * * * * 

■ 8. In § 351.301, revise paragraphs 

(c)(2)(vi) and (c)(3)(iv) to read as 

follows: 

§ 351.301 Time limits for submission of 

factual information. 

* * * * * 

(c) * * * 

(2) * * * 

(vi) Rebuttal, clarification, or 

correction of factual information 

submitted in support of allegations. An 

interested party is permitted one 

opportunity to submit factual 

information to rebut, clarify, or correct 

factual information submitted in 

support of allegations 10 days after the 

date such factual information is filed 

with the Department. 

(3) * * * 


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(iv) Rebuttal, clarification, or 

correction of factual information 

submitted to value factors under 

§ 351.408(c) or to measure the adequacy 

of remuneration under § 351.511(a)(2). 

An interested party is permitted one 

opportunity to submit publicly available 

information to rebut, clarify, or correct 

such factual information submitted 

pursuant to § 351.408(c) or 

§ 351.511(a)(2) 10 days after the date 

such factual information is filed with 

the Department. An interested party 

may not submit additional, previously 

absent-from-the-record alternative 

surrogate value information under this 

paragraph (c)(3)(iv). Additionally, all 

factual information submitted under 

this paragraph (c)(3)(iv) must be 

accompanied by a written explanation 

identifying what information already on 

the record of the ongoing proceeding the 

factual information is rebutting, 

clarifying, or correcting. Information 

submitted to rebut, clarify, or correct 

factual information submitted pursuant 

to § 351.408(c) will not be used to value 

factors under § 351.408(c). 

* * * * * 

■ 9. In § 351.303, revise paragraphs 

(c)(2)(ii) and (f)(1) through (3) to read as 

follows: 

§ 351.303 Filing, document identification, 

format, translation, service, and 

certification of documents. 

* * * * * 

(c) * * * 

(2) * * * 

(ii) Filing of final business proprietary 

document; bracketing corrections. By 

the close of business one business day 

after the date the business proprietary 

document is filed under paragraph 

(c)(2)(i) of this section, a person must 

file the complete final business 

proprietary document with the 

Department. The final business 

proprietary document must be identical 

in all respects to the business 

proprietary document filed on the 

previous day except for any bracketing 

corrections and the omission of the 

warning ‘‘Bracketing of Business 

Proprietary Information Is Not Final for 

One Business Day After Date of Filing’’ 

in accordance with paragraph (d)(2)(v) 

of this section. 

* * * * * 

(f) Service of copies on other 

persons—(1) In general. Generally, a 

person filing a document with the 

Department simultaneously must serve 

a copy of the document on all other 

persons on the service list. Except as 

provided in § 351.202(c) (filing of 

petition), § 351.208(f)(1) (submission of 

proposed suspension agreement) and 

paragraph (f)(2) of this section: 

(i) Service of a public document or 

public version of a business proprietary 

document is effectuated on the persons 

on the public service list upon the 

electronic filing of the submission in 

ACCESS, unless it is filed manually in 

accordance with paragraph (b)(2) of this 

section, or ACCESS is unavailable. If a 

submission is filed manually or 

ACCESS is unavailable, paragraph 

(f)(1)(iii) of this section is applicable. 

(ii)(A) Service of a business 

proprietary document is effectuated on 

the persons on the APO service list 

upon the electronic filing of the 

submission in ACCESS, unless it is filed 

manually in accordance with paragraph 

(b)(2) of this section, or ACCESS is 

unavailable. If a submission is filed 

manually or ACCESS is unavailable, 

paragraph (f)(1)(iii) of this section is 

applicable. In addition, a business 

proprietary document submitted under 

the one-day lag rule under paragraph 

(c)(2)(i) of this section must be served in 

accordance with paragraph (f)(1)(iii) of 

this section. 

(B) If the document contains the 

business proprietary information of a 

person who is not included on the APO 

service list, then service of such 

documents on that person cannot be 

effectuated on ACCESS and the 

submitter must serve that person its 

own business proprietary information in 

accordance with paragraph (f)(1)(iii) of 

this section. In addition, specific service 

requirements under § 351.306(c)(2) are 

applicable. 

(iii) If service of a public document, 

public version of a business proprietary 

document, or a business proprietary 

document cannot be effectuated on 

ACCESS, the submitter must serve the 

recipient by electronic transmission. 

Generally, a business proprietary 

document must be served by secure 

electronic transmission. If the submitter 

is not able to use such a method, it may 

use an acceptable alternative method of 

service, including personal service, firstclass mail, or electronic mail. Electronic 

mail may only be used as an acceptable 

alternative method of service for a 

business proprietary document under 

paragraph (f)(1)(ii)(B) of this section if 

the business proprietary document 

contains the business proprietary 

information of either the submitter or 

the recipient, with the consent of the 

recipient. 

(2) Service requirements for certain 

documents—(i) Request for review. In 

addition to the certificate of service 

requirements under paragraph (f)(3) of 

this section, an interested party that 

files with the Department a request for 

an expedited antidumping review, an 

administrative review, a new shipper 

review, or a changed circumstances 

review must serve a copy of the request 

on each exporter or producer specified 

in the request and on the petitioner by 

the end of the anniversary month or 

within ten days of filing the request for 

review, whichever is later. Service may 

be made by an electronic transmission 

method if the interested party that files 

the request has an electronic mail 

address for the recipient; otherwise, 

service must be made by personal 

service or first-class mail. If the 

interested party that files the request is 

unable to locate a particular exporter or 

producer, or the petitioner, the 

Secretary may accept the request for 

review if the Secretary is satisfied that 

the party made a reasonable attempt to 

serve a copy of the request on such 

person. 

(ii) Scope and circumvention. In 

addition to the certificate of service 

requirements under paragraph (f)(3) of 

this section, an interested party that 

files with the Department a scope ruling 

application or a request for a 

circumvention inquiry must serve a 

copy of the request on all persons 

included in the annual inquiry service 

list in accordance with §§ 351.225(n) 

and 351.226(n), respectively. 

(3) Certificate of service. Each 

document filed with the Department 

must include a certificate of service 

listing each person served (including 

agents), the type of document served, 

and the date and method of service on 

each person. The Secretary may refuse 

to accept any document that is not 

accompanied by a certificate of service. 

* * * * * 

■ 10. In § 351.304, revise paragraphs 

(c)(1) and (2) to read as follows: 

§ 351.304 Establishing business 

proprietary treatment of information. 

* * * * * 

(c) * * * 

(1) A person filing a submission that 

contains information for which business 

proprietary treatment is claimed must 

also file a public version of the 

submission. The public version must be 

filed on the filing deadline for the 

business proprietary document. If the 

business proprietary document was 

filed under the one-day lag rule (see 

§ 351.303(c)(2)), the public version and 

the final business proprietary document 

must be filed on the first business day 

after the filing deadline. The public 

version must contain a summary of the 

bracketed information in sufficient 

detail to permit a reasonable 

understanding of the substance of the 

information. If the submitting person 

claims that summarization is not 

possible, the claim must be 


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accompanied by a full explanation of 

the reasons supporting that claim. 

Generally, numerical data will be 

considered adequately summarized if 

grouped or presented in terms of indices 

or figures within 10 percent of the 

actual figure. If an individual portion of 

the numerical data is voluminous, at 

least one percent representative of that 

portion must be summarized. A 

submitter should not create a public 

summary of business proprietary 

information of another person. 

(2) If a submitting party discovers that 

it has failed to bracket information 

correctly, the submitter may file a 

complete, corrected business 

proprietary document along with the 

public version (see § 351.303(c)(2)(ii) 

through (iii)). At the close of business 

on the day on which the public version 

of a submission is due under paragraph 

(c)(1) of this section, however, the 

bracketing of business proprietary 

information in the original business 

proprietary document or, if a corrected 

version is timely filed, the corrected 

business proprietary document will 

become final. Once bracketing has 

become final, the Secretary will not 

accept any further corrections to the 

bracketing of information in a 

submission, and the Secretary will treat 

non-bracketed information as public 

information. 

* * * * * 

■ 11. In § 351.305: 

■ a. Revise the introductory text of 

paragraph (a); 

■ b. Revise paragraph (b)(2) and (3), and 

remove paragraph (b)(4); and 

■ c. Revise paragraph (c). 

The revisions read as follows: 

§ 351.305 Access to business proprietary 

information. 

(a) The administrative protective 

order. The Secretary will place an 

administrative protective order on the 

record as follows: within two business 

days after the day on which a petition 

is filed or an investigation is selfinitiated; within five business days after 

the day on which a request for a new 

shipper review is properly filed in 

accordance with §§ 351.214 and 

351.303, an application for a scope 

ruling is properly filed in accordance 

with §§ 351.225 and 351.303, or a 

request for a circumvention inquiry is 

properly filed in accordance with 

§§ 351.226 and 351.303; within five 

business days after the day on which a 

request for a changed circumstances 

review is properly filed in accordance 

with §§ 351.216 and 351.303 or a 

changed circumstances review is selfinitiated; or within five business days 

after initiating any other segment of a 

proceeding. The administrative 

protective order will require the 

authorized applicant to: 

* * * * * 

(b) * * * 

(2) A representative of a party to the 

proceeding may apply for access to 

business proprietary information under 

the administrative protective order by 

submitting an electronic application 

available in ACCESS at https://

access.trade.gov (Form ITA–367) to the 

Secretary. The electronic application 

will be filed and served in ACCESS 

upon submission. Form ITA–367 must 

identify the applicant and the segment 

of the proceeding involved, state the 

basis for eligibility of the applicant for 

access to business proprietary 

information, and state the agreement of 

the applicant to be bound by the 

administrative protective order. Form 

ITA–367 must be accompanied by a 

certification that the application is 

consistent with Form ITA–367 and an 

acknowledgment that any discrepancies 

will be interpreted in a manner 

consistent with Form ITA–367. An 

applicant must apply to receive all 

business proprietary information on the 

record of the segment of a proceeding in 

question but may waive service of 

business proprietary information it does 

not wish to receive from other parties to 

the proceeding. 

(3) To minimize the disruption caused 

by late applications, an application 

should be filed before the first response 

to the initial questionnaire has been 

submitted. Where justified, however, 

applications may be filed up to the date 

on which the case briefs are due. 

(c) Approval of access under 

administrative protective order; 

administrative protective order service 

list; service of earlier-filed business 

proprietary submissions. (1) The 

Secretary will grant access to a qualified 

applicant by including the name of the 

applicant on an administrative 

protective order service list. Access 

normally will be granted within five 

days of receipt of the application unless 

there is a question regarding the 

eligibility of the applicant to receive 

access. In that case, the Secretary will 

decide whether to grant the applicant 

access within 30 days of receipt of the 

application. The Secretary will provide 

by the most expeditious means available 

the administrative protective order 

service list to parties to the proceeding 

on the day the service list is issued or 

amended. 

(2) After the Secretary approves an 

application, the authorized applicant 

may request service of earlier-filed 

business proprietary submissions of the 

other parties that are no longer available 

in ACCESS. 

(i) For an application that is approved 

before the first response to the initial 

questionnaire is submitted, the 

submitting party must serve the 

authorized applicant those submissions 

within two business days of the request. 

Service must be made in accordance 

with section 351.303(f)(1)(iii). A 

certificate of service is not required. 

(ii) For an application that is 

approved after the first response to the 

initial questionnaire is submitted, the 

submitting party must serve the 

authorized applicant those submissions 

within five business days of the request. 

Service must be made in accordance 

with section 351.303(f)(1)(iii). A 

certificate of service is not required. 

Any authorized applicant who filed the 

application after the first response to the 

initial questionnaire is submitted will 

be liable for costs associated with the 

additional production and service of 

business proprietary information 

already on the record. 

* * * * * 

■ 12. In § 351.306, revise paragraph 

(c)(2) to read as follows: 

§ 351.306 Use of business proprietary 

information. 

* * * * * 

(c) * * * 

(2) If a party to a proceeding is not 

represented, or its representative is not 

an authorized applicant, the submitter 

of a document containing that party’s 

business proprietary information must 

serve that party or its representative, if 

applicable, with a version of the 

document that contains only that party’s 

business proprietary information 

consistent with § 351.303(f)(1)(iii). The 

document must not contain the business 

proprietary information of other parties. 

* * * * * 

■ 13. In § 351.404, revise paragraph (d) 

to read as follows: 

§ 351.404 Selection of the market to be 

used as the basis for normal value. 

* * * * * 

(d) Allegations concerning market 

viability and the basis for determining a 

price-based normal value. In an 

antidumping investigation or review, 

allegations regarding market viability or 

the exceptions in paragraph (c)(2) of this 

section, must be filed, with all 

supporting factual information, in 

accordance with § 351.301(c)(2)(i). 

* * * * * 

■ 14. In § 351.408: 

■ a. Revise paragraph (c)(2). 

■ b. Remove paragraph (c)(3) and 

redesignate paragraph (c)(4) as 

paragraph (c)(3). 


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Federal Register / Vol. 88, No. 188 / Friday, September 29, 2023 / Rules and Regulations 67081 

1 85 FR 78164 (2020). 

2For adults, the listings describe, for each of the 

major body systems, impairments that we consider 

to be severe enough to prevent an individual from 

doing any gainful activity regardless of his or her 

age, education, or work experience. 20 CFR 

404.1525(a) and 416.925(a). For children, the 

listings describe impairments we consider severe 

enough to cause marked and severe functional 

limitations. 20 CFR 416.925(a). We use the listings 

at step 3 of the sequential evaluation process to 

identify claims in which the individual is clearly 

disabled under our rules. 20 CFR 404.1520, 

416.920, and 416.924). We do not deny a claim 

when a person’s medical impairment(s) does not 

satisfy the criteria of a listing. Instead, we continue 

the sequential evaluation process. 20 CFR 

404.1520(a)(4) and 416.920(a)(4). 

3Radford v. Colvin, 734 F.3d 288 (4th Cir. 2013). 

4 Id. at 294. 

5See Acquiescence Ruling 15–1(4). We rescinded 

that Acquiescence Ruling after we revised the 

listings in 2020. 85 FR 79063 (2020). 

6Listings 1.15, 1.16, 1.17, 1.18, 1.20C, 1.20D, 

1.22, 1.23, 101.15, 101.16, 101.17, 101.18, 101.20C, 

101.20D, 101.22, and 101.23. 

7See 85 FR 78164 (2020) (revising 20 CFR part 

404, subpart P, Appendix 1, 1.00C7c and 

101.00C7c). 

The revisions read as follows: 

§ 351.408 Calculation of normal value of 

merchandise from nonmarket economy 

countries. 

* * * * * 

(c) * * * 

(2) Valuation in a single country. The 

Secretary normally will value all factors 

in a single surrogate country. 

(3) Manufacturing overhead, general 

expenses, and profit. For manufacturing 

overhead, general expenses, and profit, 

the Secretary normally will use nonproprietary information gathered from 

producers of identical or comparable 

merchandise in the surrogate country. 

[FR Doc. 2023–21516 Filed 9–28–23; 8:45 am] 

BILLING CODE 3510–DS–P 

SOCIAL SECURITY ADMINISTRATION 

20 CFR Part 404 

[Docket No. SSA–2023–0023] 

RIN 0960–AI85 

Extension of the Flexibility in 

Evaluating ‘‘Close Proximity of Time’’ 

To Evaluate Changes in Healthcare 

Following the COVID–19 Public Health 

Emergency 

AGENCY: Social Security Administration. 

ACTION: Temporary final rule with 

request for comments. 

SUMMARY: On July 23, 2021, we issued 

a temporary final rule (TFR) with 

request for comments to lengthen the 

‘‘close proximity of time’’ standard in 

the Listing of Impairments (the listings) 

for musculoskeletal disorders because 

the COVID–19 national public health 

emergency (PHE) caused many 

individuals to experience barriers that 

prevented them from timely accessing 

in-person healthcare. That prior TFR is 

effective until six months after the 

effective date of a determination by the 

Secretary of Health and Human Services 

(HHS) that a PHE resulting from the 

COVID–19 pandemic no longer exists. 

The Secretary of HHS made that 

determination, and the COVID–19 

national PHE ended on May 11, 2023. 

However, healthcare practices in a postPHE world are still evolving. We are 

therefore issuing this new TFR to extend 

the flexibility provided by the prior TFR 

until May 11, 2025, so we can evaluate 

changes in healthcare practices and 

determine the proper ‘‘close proximity 

of time’’ standard for the 

musculoskeletal disorders listings. 

DATES: 

Effective date: This TFR is effective 

on October 30, 2023. 

Comment date: We invite written 

comments. Comments must be 

submitted no later than November 28, 

2023. 

Expiration date: Unless we extend the 

provisions of this TFR by a final rule 

published in the Federal Register, it 

will cease to be effective on May 11, 

2025. 

ADDRESSES: You may submit comments 

by any one of three methods—internet, 

fax, or mail. Do not submit the same 

comment(s) multiple times or by more 

than one method. Regardless of which 

method you choose, please state that 

your comment(s) refer to Docket No. 

SSA–2023–0023 so that we may 

associate your comment(s) with the 

correct regulation. 

Caution: You should be careful to 

include in your comment(s) only 

information that you wish to make 

publicly available. We strongly urge you 

not to include any personal information 

in your comment(s), such as Social 

Security numbers or medical 

information. 

1. Internet: We strongly recommend 

that you submit your comment(s) via the 

internet. Please visit the Federal 

eRulemaking portal at https://

www.regulations.gov. Use the ‘‘search’’ 

function to find docket number SSA– 

2023–0023. The system will issue a 

tracking number to confirm your 

submission. You will not be able to 

view your comment(s) immediately 

because we must post each comment 

manually. It may take up to one week 

for your comment(s) to be viewable. 

2. Fax: Fax comments to 1–833–410– 

1631. 

3. Mail: Mail your comments to the 

Office of Legislation and Congressional 

Affairs Regulations and Reports 

Clearance Staff, Mail Stop 3253, 

Altmeyer, 6401 Security Blvd., 

Baltimore, MD 21235. 

Comments are available for public 

viewing on the Federal eRulemaking 

portal at https://www.regulations.gov or 

in person, during regular business 

hours, by arranging with the contact 

person identified below. 

FOR FURTHER INFORMATION CONTACT: 

Michael J. Goldstein, Office of Disability 

Policy, Social Security Administration, 

6401 Security Boulevard, Baltimore, MD 

21235–6401, (410) 965–1020. For 

information on eligibility or filing for 

benefits, call our national toll-free 

number, 1–800–772–1213 or TTY 1– 

800–325–0778, or visit our internet site, 

Social Security Online, at http://

www.ssa.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

On December 3, 2020, we published 

the final rule, Revised Medical Criteria 

for Evaluating Musculoskeletal 

Disorders (final rule),1 which became 

effective on April 2, 2021. This final 

rule revised the criteria in the listings 

that we use to evaluate disability claims 

involving musculoskeletal disorders in 

adults and children at the third step of 

our sequential evaluation process under 

titles II and XVI of the Social Security 

Act (Act).2 The final rule, among other 

things, revised the listings in response 

to the decision in Radford v. Colvin,3

which interpreted former listing 1.04A 

to require a disability claimant to show 

only ‘‘that each of the symptoms are 

present, and that the claimant has 

suffered or can be expected to suffer 

from [the condition] continuously for at 

least 12 months.’’ 4 Under the court’s 

interpretation of the former listing, a 

claimant did not need to show that each 

necessary criterion was present 

simultaneously or in particularly close 

proximity, as required by our 

interpretation of that listing.5 The final 

rule clarified that, for the purposes of 

applying certain musculoskeletal 

disorders listings,6 all of the required 

medical criteria must be present 

simultaneously, or within a close 

proximity of time, to satisfy the level of 

severity needed for the impairment to 

meet the listing. The final rule further 

defined the phrase ‘‘within a close 

proximity of time’’ to mean ‘‘that all of 

the relevant criteria must appear in the 

medical record within a consecutive 4- 

month period’’ (emphasis in original).7

We also provided that ‘‘[w]hen the 

criterion is imaging, we mean that we 


lotter on DSK11XQN23PROD with RULES1