Federal Register / Vol. 63, No. 108 / Friday, June 5, 1998 /Rules and Regulations 30599

Wautoma, WI, Wautoma Municipal, GPS

RWY 31, Orig

[FR Doc. 98–15058 Filed 6–4–98; 8:45 am]

BILLING CODE 4910–13–M

INTERNATIONAL TRADE

COMMISSION

19 CFR Parts 201 and 207

Rules of Practice and Procedure

AGENCY: United States International

Trade Commission.

ACTION: Final rulemaking.

SUMMARY: The United States

International Trade Commission (the

Commission) hereby amends its Rules of

Practice and Procedure concerning

antidumping and countervailing duty

investigations and reviews in 19 CFR

parts 201 and 207. The amendments

establish procedures for five-year

reviews of antidumping and

countervailing duty orders and

suspension agreements that the

Commission will conduct pursuant to

the provisions of section 751(c) of the

Tariff Act of 1930, as amended (the Act).

DATES: In accordance with the 30-day

advance publication requirement

imposed by 5 U.S.C. 553(d), the

effective date of these rules is July 6,

1998.

FOR FURTHER INFORMATION CONTACT:

Marc A. Bernstein, Office of General

Counsel, U.S. International Trade

Commission (telephone: 202–205–3087,

e-mail: mbernstein@usitc.gov), or Vera

A. Libeau, Office of Investigations, U.S.

International Trade Commission

(telephone 202–205–3176, e-mail:

vlibeau@usitc.gov). Hearing-impaired

individuals are advised that information

on this matter can be obtained by

contacting the Commission’s TDD

terminal on 202–205–1810.

SUPPLEMENTARY INFORMATION:

Background

On October 23, 1997, the Commission

published a Notice of Proposed

Rulemaking (NOPR) in the Federal

Register. 62 F.R. 55185 (Oct. 23, 1997).

In the NOPR, the Commission proposed

procedures for five-year reviews it will

conduct pursuant to section 751(c) of

the Act. Some of the proposed

procedures were reflected in proposed

amendments to the Commission’s Rules

of Practice and Procedure. The

Commission additionally described in

the preamble and annexes to the NOPR

other proposed procedures which were

not incorporated into the proposed

regulations.

The Commission invited public

comment on its proposed regulations,

the procedures discussed in the NOPR

preamble and annexes, and any other

issues pertaining to five-year reviews.

The Commission received 25 sets of

first-round comments from 23 different

submitters, and 15 sets of rebuttal

comments from 12 different submitters.

Those entities that submitted written

comments, as well as the short-form

designations that will be used to refer to

them, are listed in Annex C to this

notice. Additionally, the Commission

conducted a public hearing on February

26, 1998, concerning five-year reviews

at which it heard testimony from

numerous interested persons.

The Commission carefully considered

all comments that it received. The

Commission’s response to those

comments that relate to the subjects

addressed in this rulemaking notice is

provided below in the section-bysection analysis of the rulemaking

amendments. The Commission

appreciates the time and effort the

commenters and hearing participants

took to present their views, and believes

that the comments and hearing

testimony have contributed to improved

regulations.

The Commission has determined that

these regulations do not meet the

criteria described in section 3(f) of the

Executive Order 12866 (58 F.R. 51735,

Oct. 4, 1993) (EO) and thus do not

constitute a significant regulatory action

for purposes of the EO. The Regulatory

Flexibility Act (5 U.S.C. 601 note) is

inapplicable to this rulemaking, because

it is not one for which a NOPR is

required under 5 U.S.C. 553(b) or any

other statute. Although the Commission

published a NOPR, these regulations are

‘‘agency rules of procedure and

practice,’’ and thus are exempt from the

notice requirement imposed by 5 U.S.C.

553(b).

The sample notice of institution

reproduced at Annex A to this notice

constitutes an information collection

request subject to the provisions of the

Paperwork Reduction Act, 44 U.S.C.

3501 et seq. After consultation with the

Office of Management and Budget

(OMB), the Commission has concluded

that the collection of information that

will be undertaken pursuant to the

notice of institution is encompassed

within a clearance OMB has given the

Commission under the Paperwork

Reduction Act to collect information for

antidumping and countervailing duty

investigations and reviews, including

those undertaken pursuant to section

751 of the Act. This clearance has been

assigned OMB Control Number 3117–

0016.

Pursuant to the Contract with

America Advancement Act of 1996

(Pub. L. 104–121), the Commission is

submitting a report to the General

Accounting Office and to each House of

Congress describing these regulations

and attaching their text.

Overview of the Amendments to the

Regulations

The final regulations and procedures

for five-year reviews contain four

principal changes from those proposed

in the NOPR. These changes are

summarized here. A comprehensive

explanation of the changes is provided

in the section-by-section analysis below.

First, responses to the notice of

institution will be due 50 days after its

publication in the Federal Register.

Thus, responses to the Commission’s

notice need not be filed until 30 days

after the date on which the Department

of Commerce (Commerce) will inform

the Commission if no domestic

interested party has filed a Notice of

Intent to Participate in the five-year

review.

Second, the notice of institution has

been revised significantly. In particular,

the Commission has reduced the

amount of empirical data that interested

parties will be requested to submit in

their responses. Additionally, interested

parties will make a single submission to

the Secretary.

Third, the Commission has decided

not to adopt numerical guidelines

concerning the adequacy, in the

aggregate, of interested party responses

to the notice of institution. The

Commission will make adequacy rulings

on a case-by-case basis taking several

considerations into account.

Fourth, the Commission has decided

not to adopt a regulation precluding

interested parties from making data

collection requests after submission of

the comments on the draft

questionnaires. Nevertheless, the

regulation the Commission has

promulgated states that it will entertain

such late requests for data collection

only in compelling circumstances.

Section-by-Section Analysis of the

Regulations

Section 201.11

The Commission has amended section

201.11 by adding sections 201.11(b)(4)

and (b)(5), which govern the filing of

entries of appearance in five-year

reviews. Section 201.11(b)(4), which

states that entries of appearance are due

21 days after publication of the notice

of institution, is identical to the

provision proposed in the NOPR.

Stewart requested that the 21-day period
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for filing entries of appearance be

extended to 30 days. The Commission

has retained the 21-day period, which is

the same period used in Commission

investigations other than original

antidumping and countervailing duty

investigations.

Section 201.11(b)(5) concerns the

filing of entries of appearance in a ‘‘full’’

five-year review. (A ‘‘full review’’ is any

five-year review except one that has

been terminated by Commerce pursuant

to section 751(c)(3)(A) of the Act or that

has been expedited by the Commission

pursuant to section 751(c)(3)(B) of the

Act.) This provision states that entries of

appearance in full reviews may be filed

within the period specified in the

Notice of Scheduling the Commission

will issue pursuant to section 207.62(c).

The Commission has not established a

fixed date, as it proposed to do in the

NOPR, to maximize its flexibility in

scheduling five-year reviews.

Nevertheless, as indicated in the final

sentence of section 201.11(b)(5), parties

will be provided a minimum of 45 days

to file entries of appearance in full

reviews. Stewart and Collier objected to

any provision permitting parties to file

entries of appearance after

commencement of a full review. The

Commission has decided to retain

section 201.11(b)(5) to maximize

participation in full reviews.

The Commission has not made other

amendments to section 201.11 requested

by commenters. Section 201.11(a), as

currently written, expressly authorizes

industrial users and certain consumer

organizations to enter appearances as

parties in investigations under part 207.

New section 207.60(a) makes clear that

this provision applies to five-year

reviews. Consequently, no further

amendment to section 201.11, such as

the one advocated by Canada, is needed

to authorize industrial users and

consumer organizations to appear as

parties in five-year reviews.

The Commission has declined to

modify the regulations to ‘‘encourage’’

interested parties to provide attorneys

for industrial users and consumer

groups with access to business

proprietary information (BPI) under

administrative protective order (APO),

as requested by Hogan and H&H.

Sections 777(b)(1) and (c) of the Act

require the Commission to release BPI

under APO to ‘‘interested parties.’’

Under section 771(9) of the Act,

industrial users or consumers are not

‘‘interested parties.’’ Interested parties

may elect to release information not

acquired under APO under such terms

and conditions as they designate to

parties to a Commission investigation or

review that do not have ‘‘interested

party’’ status.

Section 207.3

The Commission has amended section

207.3(b) to require hand or overnight

service of prehearing briefs, hearing

testimony, and posthearing briefs in

five-year reviews. The amendment is

identical to the one proposed in the

NOPR.

Hoogovens proposed that the

regulation be amended to require each

party to serve its entry of appearance in

a five-year review by hand or express

mail to all parties indicated on the

Commerce service list for the most

recent administrative review pertaining

to the order(s) that are the subject of the

five-year review. The Commission has

not adopted this proposal because it

does not see the need for expeditious

service of entries of appearance on

parties to a Commerce proceeding that

may or may not choose to appear in the

Commission’s five-year review.

Stewart proposed that the regulation

be amended to require hand or

overnight service of final comments

filed pursuant to section 207.68. The

amendment to section 207.3 is designed

to make service requirements in fiveyear reviews the same as those in

original antidumping and

countervailing duty investigations. The

Commission does not require hand or

overnight service for final comments in

original investigations.

Section 207.45

The Commission has amended section

207.45, which concerns changed

circumstances reviews pursuant to

section 751(b) of the Act, to change the

statutory cross-reference in section

207.45(a) so it specifically cites section

751(b). The amendment is identical to

that proposed in the NOPR.

Section 207.46

The Commission has amended section

207.46, an interim regulation that

establishes procedures for investigations

under section 753 of the Act, which

concerns countervailing duty orders

issued under section 303 of the Act

without an injury determination by the

Commission. The amendments, which

clarify the section’s provisions and

modify its cross-references in light of

the other changes to the regulations

made in this rulemaking, are identical to

those proposed in the NOPR.

Section 207.60

Section 207.60 is a new provision that

defines certain terms used in new

Subpart F of Part 207 concerning fiveyear reviews. The terms defined are

‘‘five-year review,’’ ‘‘expedited review,’’

‘‘full review,’’ and ‘‘notice of

institution.’’

The definition of ‘‘five-year review’’

has been revised to clarify that generic

references to ‘‘investigations’’ in Part

201 or in subpart A of Part 207 are

applicable to five-year reviews, unless

superseded by a Subpart F regulation of

more specific application.

The definitions of ‘‘expedited review’’

and ‘‘full review’’ are new, although

each term was used in several places in

the NOPR. An ‘‘expedited review’’ is a

five-year review that the Commission

has expedited pursuant to section

751(c)(3)(B) of the Act. A ‘‘full review’’

is any five-year review except one that

has been terminated by Commerce

pursuant to section 751(c)(3)(A) of the

Act or that has been expedited by the

Commission pursuant to section

751(c)(3)(B) of the Act.

The definition of ‘‘notice of

institution’’ is identical to that proposed

in the NOPR. The NOPR proposed

definitions for the terms ‘‘domestic like

product,’’ ‘‘domestic industry,’’

‘‘expedited determination,’’ and

‘‘subject merchandise.’’ The

Commission has deleted these

definitions on the grounds they are

unnecessary. This change renders the

comments directed to these proposed

definitions moot.

Section 207.61

Section 207.61 is a new provision

concerning responses to the notice of

institution. Sections 207.61(a) and

207.61(b) have changed substantially

from the NOPR.

Section 207.61(a): When Responses to

Notice of Institution Must be Filed

Under section 207.61(a), interested

parties must submit their responses to

the Commission’s notice of institution

no later than 50 days after its

publication in the Federal Register.

This response period is longer than the

30-day response period proposed in the

NOPR. The Commission has made this

change in response to both the

comments to the NOPR and Commerce’s

interim final rules for five-year reviews.

Many commenters objected to the

proposed requirement that all interested

parties file complete responses to the

notice of institution within 30 days.

Commenters stated two general types of

objections. The first objection was based

on section 751(c)(3)(A) of the Act,

which directs Commerce to terminate a

five-year review within 90 days when

no domestic interested party responds

to Commerce’s notice of initiation.

Respondent interested parties (a term

that will be used to refer to interested
Federal Register / Vol. 63, No. 108 / Friday, June 5, 1998 /Rules and Regulations 30601

parties described in sections 771(9)(A)

and (B) of the Act, encompassing U.S.

importers, foreign producers, and

exporters of subject merchandise, and

governments of the countries in which

subject merchandise is produced or

exported) objected to being required to

submit substantive responses to the

notice of institution before any domestic

interested party (a term that will be used

to refer to interested parties described in

section 771(9)(C)–(G) of the Act,

encompassing domestic producers of

the like product, domestic worker

groups, and associations of such groups)

indicated its intent to participate in the

five-year review. They contended that

proposed section 207.61(a) placed

undue burdens on respondent interested

parties by requiring them to respond to

the notice of institution even when no

five-year review would ultimately be

conducted.

The second objection was that the 30-

day time period specified in the NOPR

for filing responses to the notice of

institution was too short. Schagrin

requested that the comment period be

extended to at least 37 days; Hoogovens

requested that it be extended to 45 days;

Eurofer and JMC requested that it be

extended to 60 days. By contrast,

Cement Committee supported the 30-

day time period.

On March 20, 1998, Commerce

published in the Federal Register its

interim procedures for five-year

reviews. These procedures specify that:

(1) domestic interested parties must file

a Notice of Intent to Participate in the

five-year review no later than 15 days

after initiation; (2) Commerce will notify

the Commission no later than 20 days

after initiation when no domestic

interested party has filed a response to

its notice of initiation; and (3)

Commerce will notify the Commission

no later than 40 days after initiation

when no domestic interested party has

responded adequately to its notice of

initiation. 63 F.R. 13516, 13524–25

(Mar. 20, 1998).

In light of Commerce’s interim

procedures, the Commission has

adopted a 50-day deadline for responses

to the notice of institution.

Consequently, respondent interested

parties should know whether filing a

response to the Commission’s notice of

institution is unnecessary because no

domestic interested party has filed (1) a

Notice of Intent to Participate with

Commerce or (2) an adequate response

to Commerce’s notice of initiation.

Additionally, a 50-day deadline will

provide ample time for interested

parties to compile information and

prepare responses to the notice of

institution.

Section 207.61(b): Content of Responses

to Notice of Institution

Section 207.61(b) addresses the

content of the responses to the notice of

institution. It combines aspects of the

proposed versions of section 207.61(b)

and section 207.61(c), and has been

revised significantly from the NOPR.

Section 207.61(b) describes the content

of the response to the notice of

institution in general terms. A sample

notice of institution is attached at

Annex A to this notice. It was also

revised significantly from the version

proposed in the NOPR. The discussion

below explains the changes in the notice

and the regulation.

The proposed notice of institution

published in the NOPR drew widely

divergent reactions from commenters.

Some commenters criticized the

Commission for seeking too much data

upon initiation. Schagrin and Stewart

contended that the Commission’s

proposal placed undue burdens on

interested parties and maintained that

the Commission should not seek

empirical data (with the possible

exception of shipment data) in the

notice of institution that it would

ultimately seek in questionnaires in full

reviews. JMC criticized the

Commission’s proposal as excessively

burdensome for foreign producers,

which it contended should be required

only to produce data on total shipments.

On the other hand, several

commenters requested that the

Commission seek even more

information in the notice of institution

than proposed in the NOPR. Canada

requested that all interested parties be

required to submit purchaser lists. ECS

requested that domestic producers

submit five years of data concerning

their capital and research and

development expenses. Eurofer

requested that domestic producers be

asked about the sourcing for their

inputs. Micron requested that domestic

producers be asked whether any

improvements in their condition were

related to the order or agreement under

review. Several commenters

representing domestic interests

requested that the Commission request

foreign producers to provide all types of

data, including financial information, it

was seeking from domestic producers.

Quebec proposed addressing additional

questions to domestic producers

concerning market share and captive

consumption and suggested that

interested parties be required, rather

than merely invited, to assert arguments

concerning the domestic like product in

their responses to the notice of

institution.

Commenters also disagreed on the

utility of the Commission’s proposal

that interested parties be asked to

submit projections of empirical data for

the current calendar year. Four

commenters supported this proposal.

Six opposed it and suggested that the

Commission instead seek interim period

data, as it currently does in

questionnaires in original antidumping

and countervailing duty investigations.

Three commenters suggested that, if the

Commission should decide to seek

projections, the data should be provided

in a different format than proposed in

the NOPR.

After review of the comments and

hearing testimony, the Commission has

decided to make several major changes

to the notice of institution. First, it has

significantly reduced the amount of

empirical data requested in the notice.

Second, it has revised the question

requesting a statement on the likely

effects of revocation and termination to

request interested parties to address the

factors specified in section 752(a) of the

Act. Third, it has edited or eliminated

several narrative questions. Fourth, it

has changed the format of the response

to the notice of institution so that it will

be a single document filed with the

Secretary, instead of separate

documents filed with the Secretary and

the Office of Investigations.

The Commission has minimized the

amount of empirical data requested in

the notice of institution to reduce both

the burdens imposed on interested

parties at the outset of a review and the

likelihood that interested parties will

need to respond to duplicative

information requests should there be a

full review. In terms of empirical data,

domestic producers will be requested to

submit their production quantity and

the quantity and value of U.S.

commercial shipments for the preceding

calendar year. Importers will be

requested to submit the quantity and

value of their U.S. imports and their

U.S. commercial shipments of the

subject imports for the preceding

calendar year. Foreign producers of

subject merchandise will be requested

to submit their production quantity and

the quantity and value of U.S. exports

for the preceding calendar year.

The Commission recognizes that it is

requesting submission of considerably

less empirical data in response to the

notice of institution than it proposed in

the NOPR. As authorized by the Act, the

Commission will reach an expedited

determination ‘‘without further

investigation,’’ and will not generate

additional factual information if it

decides to conduct an expedited review.

Instead, as contemplated by section
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751(c)(3)(B) of the Act, the Commission

will rely on the facts available, in

accordance with section 776 of the Act,

in making its determination. The

Commission’s use of facts available,

which is described below in detail in

the discussion of section 207.62(e), may

include reliance on adverse inferences

against interested parties that do not

cooperate with information requests, as

authorized by section 776(b) of the Act.

To facilitate the Commission’s ability

to use facts available and take adverse

inferences in expedited reviews, the

Commission has revised the question

requesting a statement of the likely

effects of revocation or termination of

the order or agreement under review.

The question now explicitly requests

that interested parties address the

factors the Commission must examine

under section 752(a) of the Act when

making a determination in a five-year

review.

Additionally, the Commission has

revised or eliminated several other

narrative questions in the notice of

institution. A new instruction requests

unions or worker groups to identify the

firms at which the workers they

represent are employed. The wording on

the question requesting identification of

significant changes in supply and

demand has been revised. The questions

regarding cumulation and the

submission of ‘‘other information or

data’’ have been eliminated.

The Commission has retained the

question giving interested parties the

option of stating whether they agree

with the definitions of domestic like

product and domestic industry that the

Commission reached in its original

determination(s). Several commenters

representing domestic interests argued

that the Commission should reconsider

its original domestic like product

determination only in exceptional

circumstances; Stewart requested that

the regulations contain an express

‘‘presumption’’ that the domestic like

product in a five-year review will be the

same as in the original investigation. On

the other hand, several commenters

representing respondent interests

advocated that the Commission retain

the discretion to consider domestic like

product issues in five-year reviews;

Canada requested promulgation of a

regulation to this effect.

In appropriate circumstances, the

Commission may revisit its original

domestic like product and domestic

industry determinations in five-year

reviews. For example, the Commission

may revisit its like product

determination when there have been

significant changes in the products at

issue since the original investigation or

when domestic like product definitions

differed for individual orders within a

group concerning similar products.

Accordingly, interested parties will

have the opportunity to address

domestic like product and domestic

industry issues in their responses to the

notice of institution. As explained

further below in the discussion of

section 207.62, the existence of

significant domestic like product issues

is a factor that the Commission may take

into account in determining whether to

conduct a full review. The Commission

does not believe a regulation on this

issue is necessary, however.

In the regulations, the major drafting

change has been the consolidation of

proposed section 207.61(b) and section

207.61(c) into a single section 207.61(b).

In the interest of transparency and

convenience, the entire response to the

notice of institution will be filed with

the Secretary and will be subject to the

requirements of sections 201.6, 201.8,

and 207.3. (One commenter, Stewart,

criticized the bifurcated filing process

proposed in the NOPR on the grounds

it would likely result in significant

nonconfidential information being

submitted to the Office of Investigations

and therefore unavailable for public

inspection.) As with the proposed

regulations, the final version of section

207.61(b) does not specify each

information request made in the notice

of institution. Because the regulation is

general in nature, the Commission will

not elaborate in the regulation on the

obligation of interested parties to

respond to particular requests, as

advocated by Pistachio Producers. As

the Commission stated in the NOPR

preamble, interested parties will only be

required to provide information in their

possession.

Section 207.61(c): When Requested

Information Cannot Be Supplied

Section 207.61(c) addresses situations

in which an interested party cannot

furnish the information requested in the

notice of institution in the form or

manner requested. The section has been

revised so that it conforms more closely

to section 782(c)(1) of the Act than did

the proposed provision.

Section 207.61(d): Submissions by

Persons other than Interested Parties

Section 207.61(d) authorizes persons

who are not interested parties to submit

to the Commission information relevant

to a five-year review. It is unchanged

from proposed section 207.61(e) in the

NOPR, except for the due date of the

submission. This submission is now due

50 days from publication of the notice

of institution, the same date on which

interested party responses to the notice

of institution must be submitted.

The Commission will consider any

information submitted pursuant to

section 207.61(d) in making a

determination in a full or expedited

review. The Commission will also

consider this information in making

rulings on aggregate interested party

adequacy. It will not use such material,

however, to serve as a substitute for

individual interested party responses, as

suggested by H&H, Hogan, and Quebec.

Section 207.62

Section 207.62 is a new provision

addressing Commission rulings on

adequacy of interested party responses.

It also describes procedures in

expedited reviews. Its title has been

revised to describe its purpose more

accurately.

How the Commission Will Determine

Whether to Expedite Reviews

Many comments addressed the

discussion in the NOPR preamble

concerning how interested party

responses will be reviewed for adequacy

and what standards the Commission

will use to determine whether to

conduct a full review or an expedited

review. This section will discuss five

issues that were the subject of comment:

(1) How the Commission will evaluate

individual interested party responses for

adequacy; (2) which groups of interested

parties the Commission will examine on

an aggregate basis for adequacy; (3) what

standards the Commission will use to

determine whether interested party

responses are adequate on an aggregate

basis; (4) the circumstances in which

the Commission may exercise its

discretion to conduct a full review even

when interested party responses are

inadequate; and (5) the consequences of

inadequate interested party responses.

Evaluation of Individual Interested

Party Responses. Some commenters

addressed how the Commission should

evaluate the adequacy of individual

interested party responses. Fuji and

JISEA asserted that the Commission

should require a ‘‘rigorous completion

standard.’’ By contrast, H&H, Schagrin,

and Stewart argued against any practice

where the Commission would consider

an individual response per se

inadequate if it were incomplete in any

respect.

The Commission initially intends to

address the evaluation of individual

interested party responses on a case-bycase basis, rather than providing

specific guidance at this time. As fiveyear reviews proceed and the

Commission gains experience in

resolving these issues, it may be in a
Federal Register / Vol. 63, No. 108 / Friday, June 5, 1998 /Rules and Regulations 30603

better position to address these issues

categorically.

The preamble to the NOPR stated that

the Commission would review each

individual interested party response to

the notice of institution for

completeness immediately upon its

receipt, would attempt to notify each

interested party of any deficiencies in

its response to the extent practicable,

and would attempt to provide each

interested party with approximately five

to ten days in which to remedy and

explain the deficiencies. The

Commission has not changed its

intentions in this regard. Nevertheless,

it declines to adopt the suggestion of

Eurofer, H&H, and Thailand that it

codify in the regulations its procedures

for notification. The Commission does

not believe that it is necessary for the

regulations to describe these procedures

with the degree of specificity desired by

these commenters.

Which Groups Will Be Evaluated on

an Aggregate Basis. In the NOPR

preamble, the Commission proposed to

evaluate on an aggregate basis the

adequacy of responses from two distinct

groups of interested parties: (1)

Interested parties described in sections

771(9)(C), (D), (E), (F), and (G) of the Act

(‘‘domestic interested parties,’’

consisting of, inter alia, U.S. producers

of the domestic like product and labor

unions or groups of workers which are

representative of an industry producing

the domestic like product); and (2)

interested parties described in sections

771(9)(A) and (B) of the Act

(‘‘respondent interested parties,’’

consisting of, inter alia, U.S. importers

and foreign exporters or producers of

subject merchandise and subject

country governments).

Some commenters advocated that the

Commission subdivide these two

groups. JMC asserted that the

Commission should divide the domestic

interested party group into two

subgroups—one encompassing

producers and one encompassing

worker groups—and deem the domestic

interested party response inadequate

unless both subgroups submitted

adequate responses. Similarly, Cement

Committee, Collier, Micron, and Stewart

proposed that the Commission divide

the respondent interested party group

into two subgroups—one encompassing

U.S. importers and one encompassing

foreign producers of subject

merchandise—and deem the respondent

interested party response inadequate

unless both subgroups submitted

adequate responses.

The Commission has declined to

adopt either of these proposals. The

Commission does not believe it is

appropriate to analyze the adequacy of

responses this narrowly. Consequently,

the Commission’s examination of

aggregate adequacy will focus on

domestic interested parties and

respondent interested parties, rather

than on several discrete subgroups.

Standards Used for Determining

Adequacy of Aggregated Responses. The

comments addressing the standards that

the Commission should use in

determining the adequacy of the

aggregated responses focused on three

areas. First, several commenters asserted

that the Commission should adopt

considerably more lenient standards for

determining aggregate adequacy than

proposed in the NOPR. Second,

commenters disputed the extent to

which standards used by Commerce

pursuant to sections 702(c)(4) and

732(c)(4) of the Act to determine

whether an antidumping or

countervailing duty petition is filed by

or on behalf of a domestic industry are

applicable to Commission rulings on

adequacy in five-year reviews. Third,

commenters addressed how the

Commission should treat related parties

in deciding whether the domestic

interested party response was adequate.

Some commenters proposed that the

Commission adopt very low adequacy

thresholds. At the February 26 hearing,

one representative of domestic interests

stated that the Commission should

conduct a full review as long as any

domestic industry participant desired

such a review. Similarly, one

respondent representative stated that a

full review should be conducted as long

as a single committed respondent

responds to the notice of institution.

The Commission has decided not to

adopt a ‘‘single response’’ adequacy

standard. When interested parties do

not show a sufficient willingness to

participate in a review and to submit

requested information, conducting a full

review may not be an efficient exercise

of the resources of either the

Commission or the parties. That a single

domestic interested party or respondent

interested party has filed an adequate

response to the notice of institution is

not per se sufficient indication that

either pertinent group of interested

parties as a whole is interested in a full

review.

The Commission has decided not to

adopt the numerical guidelines

proposed in the NOPR. The Commission

proposed these guidelines in the interest

of providing guidance to interested

parties concerning when response rates

would be considered sufficiently high or

low to provide a strong indication of the

adequacy or inadequacy of aggregate

interested party responses. Upon review

of the comments and hearing testimony,

the Commission has concluded that any

benefits that would result from the

articulation of numerical guidelines for

adequacy or inadequacy are offset by the

potential that parties appearing before

the Commission would: (1) devote

extensive effort to arguing that

interested parties satisfied or failed to

satisfy the numerical guidelines; or (2)

confuse any numerical guidelines with

a representation requirement, as some

commenters did.

The Commission did not intend in the

NOPR to equate adequacy with industry

representation requirements. It agrees

with several commenters’ statements

that the representation requirements in

sections 702(c) and 732(c) of the Act do

not apply to five-year reviews.

Consequently, the Commission has not

adopted the suggestions of Fuji/JISEA or

Schagrin that it should consider

domestic industry statements of

‘‘support’’ for continuation of an order

in determining whether the domestic

interested party response is adequate.

The Commission will evaluate the

adequacy of interested party responses

on a case-by-case basis. The

Commission will take into account

several considerations in evaluating the

adequacy of interested party responses.

Because both the considerations

examined and the weight they are

accorded may vary from review to

review, the Commission does not

believe that the adequacy standards can

be articulated in the form of a

regulation, as requested by Pistachio

Producers.

In evaluating the adequacy of

aggregate interested party response, the

Commission will examine several

considerations, including:

• The level of interested parties’

responses. This encompasses an

examination of the responding parties’

share of domestic production (for

domestic interested parties) or of subject

imports or foreign production or exports

to the United States of the subject

merchandise (for respondent interested

parties) for the most recent calendar

year. While the Commission will

generally use quantity-based production

or import data in evaluating adequacy,

it may use value data when such data

provide the sole aggregate measure of

production or sales for the pertinent

domestic like product(s). (This may

occur, for example, when a domestic

like product includes both finished

articles and parts or components.) As

stated above, the Commission has not

provided quantitative measures of what

will likely constitute an ‘‘adequate’’ or

‘‘inadequate’’ aggregate response.

Adequate responses by unions or
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worker groups that are interested parties

pursuant to section 771(9)(D) of the Act

will be counted as being equal to the

production of the domestic like product

of the firms at which the workers in the

group or union are employed.

• The structure of the industries in

question. As stated in the NOPR, a

response rate that may seem to be

inadequate for a highly concentrated

industry may be adequate for a highly

fragmented industry.

• The prevalence of related parties.

Several commenters representing

domestic interests requested that the

Commission per se disregard

nonresponses of domestic producers

that are ‘‘related parties’’ under section

771(4)(B) of the Act in evaluating

whether domestic interested party

responses are adequate. By contrast,

several commenters representing

respondent interests requested that the

Commission disregard nonresponses of

related party domestic producers only

when circumstances would support the

exclusion of those producers from the

domestic industry under the

‘‘appropriate circumstances’’ standard

that the Commission applies in original

antidumping and countervailing duty

investigations.

The Commission has determined not

to adopt either of these proposals for

purposes of making adequacy rulings.

Instead, the Commission will evaluate

the significance of nonresponses of

related parties on a case-by-case basis. It

believes that the per se rule urged by the

commenters representing domestic

interests is too inflexible and is

inconsistent with Commission practice.

While the standard urged by the

respondent commenters is ostensibly

consistent with Commission practice,

and is a standard the Commission

intends to apply in making final

determinations in five-year reviews, it is

not a practical standard to use in

making adequacy rulings. When the

Commission makes such a ruling, it will

frequently have insufficient information

in the record to make a conclusion

concerning whether ‘‘appropriate

circumstances’’ exist to exclude a

related party from the domestic

industry.

• The ability of particular foreign

producers to export to the United States.

JMC and Schagrin questioned the

inclusion of this criterion. The

Commission believes that it can be

relevant in certain circumstances, such

as when particular foreign producers do

not manufacture a version of the subject

merchandise that can be exported to the

United States.

• The extent to which subject imports

appear to have been excluded from the

U.S. market by the order or suspension

agreement under review.

Discretionary Factors Used in

Determining Whether to Conduct a Full

Review. Section 751(c)(3)(B) of the Act

provides that the Commission ‘‘may

issue’’ an expedited determination

when interested party responses are

inadequate. Hence, the Commission has

the discretion to conduct full reviews

when the domestic and/or respondent

interested party responses are

inadequate. In this regard, the

Commission has adopted Stewart’s

suggestion of inserting in the first

sentence of section 207.62(c) the

language ‘‘or otherwise determines that

a full review should proceed,’’ to

underscore the Commission’s discretion

to conduct full reviews. The

Commission has not adopted the

suggestion of JMC to circumscribe its

exercise of discretion so that it retains

discretion to conduct a full review only

when respondent interested party

responses are inadequate.

Stewart requested that the

Commission indicate in this notice

circumstances in which it may exercise

its discretion to conduct a full review

notwithstanding inadequate interested

party responses. The Commission has

identified two such circumstances:

• Mixed responses in grouped

reviews. In the NOPR, the Commission

invited parties to comment on the

appropriateness of making expedited

determinations in grouped reviews

involving subject merchandise from

several countries, where domestic

interested party responses are adequate

and responses from the respondent

interested parties are adequate with

respect to some of the countries in the

group but inadequate with respect to

others. Canada, Schagrin, and Thailand

commented that in such circumstances

it is appropriate for the Commission to

render expedited determinations with

respect to the subject countries for

which there has been inadequate

respondent interested party response.

These commenters did not agree among

themselves, however, on the

implications of such a decision on the

use of facts available regarding

cumulation in the full review(s).

Stewart, by contrast, stated that the

Commission should decline to reach

expedited determinations in such

situations from the standpoint of

administrative efficiency. Collier stated

it would prefer for the Commission not

to render expedited determinations in

grouped reviews if the alternative was

adoption of a practice where cumulation

in the full review(s) is limited or

precluded.

The Commission shares Stewart’s

concern that making multiple, nonsimultaneous determinations

concerning a single domestic like

product is likely to be administratively

inefficient. For this reason, in grouped

reviews where aggregate domestic

interested party responses are not

inadequate and responses from the

respondent interested parties are

adequate with respect to some of the

countries in the group but inadequate

with respect to others, the Commission

will normally conduct full reviews for

all countries in the group.

• The existence of significant

domestic like product issues. Each

interested party has the option of

asserting arguments concerning the

definition of the domestic like product

in its response to the notice of

institution. Should the Commission

determine that there is a need in the

five-year review to re-examine the

domestic like product definition made

in the original determination, it may

determine to conduct a full review even

in circumstances when domestic and/or

respondent interested party responses

are inadequate. This will enable the

Commission to obtain data in a full

review concerning the potential

domestic like products.

Several commenters addressed the

question of the implications of a tie vote

on whether to expedite a review; one

commenter, Stewart, requested that the

Commission promulgate a regulation

concerning tie votes. The Commission

agrees with the commenters that the tie

vote provision in section 771(11) of the

Act is not applicable to a Commission

decision on whether to expedite a

review. Consequently, a decision to

expedite a review will require a majority

vote of the Commission. The

Commission has not, however,

promulgated a regulation to that effect

in the current rulemaking, which

focuses solely on procedural issues. The

Commission has further declined to

promulgate the regulation requested by

Stewart stating that the Commission

will conduct a full review based on the

vote of a single Commissioner. The

Commission does not believe that a vote

of a single Commissioner should

preclude the Commission from

conducting an expedited review when a

Commission majority has concluded

that conducting an expedited review is

appropriate.

Consequences of Inadequate

Interested Party Responses. Several

commenters requested that the

Commission state with particularity the

consequences of inadequate interested

party responses. Pistachio Producers

requested the promulgation of one
Federal Register / Vol. 63, No. 108 / Friday, June 5, 1998 /Rules and Regulations 30605

regulation concerning adverse

inferences and another concerning

Presidential embargo situations. Several

commenters proposed that the

Commission should make a ‘‘negative’’

determination (i.e., that revocation of an

order, or termination of a suspension

agreement, under review would not be

likely to lead to continuation or

recurrence of material injury) in any

review expedited because of inadequate

domestic interested party response.

Micron and Schagrin proposed that the

Commission should make an

‘‘affirmative’’ determination (i.e., that

revocation of an order, or termination of

a suspension agreement, under review

would be likely to lead to continuation

or recurrence of material injury)

whenever it found that the respondent

interested party response was

inadequate.

The Commission has decided not to

adopt any of these proposals. The

statute authorizes an ‘‘automatic’’

determination in only one instance.

Section 751(c)(3)(A) of the Act directs

Commerce to issue a final determination

terminating a review when there is no

domestic interested party response to its

notice of initiation. The Commission

believes issuance of the type of per se

rules advocated by some commenters

that inadequate domestic (or

respondent) interested party response

will automatically lead to issuance of a

negative (or affirmative) determination

would be inconsistent with section

752(a) of the Act.

The Final Regulation

Section 207.62(a): Basis for Rulings on

Adequacy. Section 207.62(a) is a new

provision intended to make explicit a

concept several commenters found

implicit in the proposed regulations and

numerous others endorsed—that the

Commission will generally decide the

questions of adequacy and whether to

conduct an expedited review on an

individual order, rather than a

groupwide, basis. Section 207.62(a)

further indicates that when a particular

order encompasses multiple domestic

like products on which the Commission

originally made separate affirmative

determinations, the Commission will

make a separate ruling on the adequacy

of the interested party responses and

whether to conduct an expedited review

for each domestic like product. This

concept was endorsed by Collier, Fuji,

and JISEA.

Section 207.62(b): Comments on

Adequacy. Section 207.62(b),

concerning comments to the

Commission regarding adequacy, is

based on proposed section 207.62(a).

Section 207.62(b) contains several

changes from proposed section

207.62(a).

First, the Commission has increased

the page limit for the comments from

five to 15 pages. Several commenters

complained that the five-page limit

proposed in the NOPR was insufficient.

Canada and Quebec requested that the

page limit be increased to 15 pages; Fuji

and JISEA requested that the page limit

be increased to 20 pages; Cement

Committee, Collier, and Stewart

requested that the page limit be

increased to five pages per subject

country; Thailand requested that the

page limit be removed. After

consideration of the comments, the

Commission has decided that some

increase in the page limit is warranted.

Nevertheless, the Commission does not

agree that the limit should either be

eliminated or increased to the extent

requested by some of the commenters.

Comments under section 207.62(b) are

designed to be a succinct expression of

views on a single issue. They are not

intended to be briefs on the merits.

Consequently, the Commission believes

that a 15-page limit is appropriate.

An additional modification to section

207.62(b)(2) makes clear that in a

grouped review, only one set of

comments may be filed per party. This

is consistent with current Commission

practice.

There are also several changes in

terminology throughout section

207.62(b). The terms ‘‘expedited

review’’ and ‘‘party to the five-year

review’’ are used to conform the

language in section 207.62(b) to that in

other provisions in Subpart F.

Section 207.62(c): Notice of

Scheduling for Full Reviews. Section

207.62(c) is based on proposed section

207.62(b). It has been retitled more

accurately to reflect its subject matter—

the notice of scheduling the

Commission will issue if it determines

to conduct a full review. The only

change to the text of proposed section

207.62(b) is the addition of a clause to

make clear that the Commission may

decide to conduct a full review even

when interested party responses to the

notice of institution are inadequate.

Annex B to this notice contains a

sample schedule for a full five-year

review. This sample schedule contains

several changes from the one proposed

in the NOPR. Specifically, the interval

between the issuance of draft

questionnaires and the due date for

party comments on questionnaires has

been reduced; the time allowed for

questionnaire responses has been

decreased; and the prehearing report

will be issued earlier than in the

proposed schedule. The interval

between the issuance of the prehearing

report and the due date for prehearing

briefs has been increased, as has the

interval between the hearing and the

due date for posthearing briefs. These

changes are responsive to the comments

of several commenters that the

Commission’s proposed schedule

allowed excessive time for preparation

and comment on questionnaires and

inadequate time for preparation of briefs

and review of the prehearing report.

The sample schedule concentrates

investigative activities within a 180-day

period, which reflects the Commission’s

need to deploy its staffing resources in

the most effective manner. Although the

sample schedule indicates activities in a

full review will occur between day 180

and day 360, these dates may vary in

individual reviews, as the Commission

intends to stagger schedules in

simultaneously-initiated reviews in the

interests of administrative efficiency.

All reviews within a single group will

have the same schedule, however.

Further, the record closing date for a

review will always occur after issuance

of Commerce’s determination.

Section 207.62(d): Procedures for

Expedited Reviews. Section 207.62(d) is

based on proposed section 207.62(c). It

has been retitled more accurately to

reflect its subject matter—the

procedures for expedited reviews. Its

text has also been changed in several

respects. Some terminology has been

modified to conform this provision with

others in Subpart F. The page limit for

comments has been eliminated, as

requested in the comments of Stewart

and Thailand. The Commission has

agreed to eliminate the page limit

because the comments will be the only

substantive filing that will be permitted

in expedited reviews. The Commission

has, however, retained the prohibition

against the submission of new factual

information in such comments. The

Commission has not imposed the page

limit requested by Collier on nonparty

comments submitted pursuant to

section 207.62(d)(3).

The Commission has declined to

make several changes requested by

commenters concerning the conduct of

expedited reviews. Stewart and

Schagrin proposed that the Commission

give interested parties that submitted

adequate responses the opportunity to

submit additional factual information

during the course of an expedited

review. They argued that such a

procedure would allow the Commission

to reduce the amount of information

requested in the notice of institution

and would reduce the burdens on the

parties and the Commission at the

outset of a review. As discussed above,
30606 Federal Register / Vol. 63, No. 108 / Friday, June 5, 1998 /Rules and Regulations

the Commission has decided to reduce

significantly the amount of information

requested in the notice of institution.

The Commission has concluded that

additional factual information is not

essential to its analysis in expedited

reviews. Therefore, the Commission

believes it would be inappropriate and

inefficient to undertake further

investigative activities in expedited

reviews. Instead, the Commission

intends to exercise its statutory

authority to dispose of such cases

quickly and efficiently on the basis of

the facts available (unless it concludes

that a full review is appropriate on other

grounds).

The Commission also will not permit

rebuttal comments or final comments on

the staff report to be submitted in an

expedited review, as requested by

Stewart. Such submissions are

unnecessary in light of the limited

record and condensed schedule of an

expedited review.

A new section 207.62(d)(4) addresses

staff reports in expedited reviews.

Stewart requested that such a provision

be added to the regulations. Although

the Commission intends to release a

staff report in expedited reviews, this

report will likely follow a different

format than staff reports in full reviews,

in light of the more limited record that

will be compiled in expedited reviews.

The schedule for release of the staff

report, and for other procedures in an

expedited review, is indicated in the

schedule in Annex B to this Notice.

Section 207.62(e): Use of Facts

Available. Section 207.62(e) is a new

provision stating that a determination in

an expedited review will be based on

the facts available, in accordance with

section 776 of the Act. Although this

provision was not proposed in the

NOPR, it does not establish any new

requirements. Instead, it codifies the

authority provided in section

751(c)(3)(B) of the Act.

The facts available may include

information submitted on the record in

the five-year reviews by parties and

non-parties, other information the

Commission may compile before the

record closes, material from the record

of the original investigation and

subsequent Commission reviews, if any,

and available information from

Commerce proceedings. (As stated in

the NOPR preamble, the material from

the record of the original investigation

that the Commission will release to the

parties will include the Commission

opinion(s) in the original investigation

and staff reports and non-privileged

memoranda, where available.) The facts

available may also include reliance on

adverse inferences against interested

parties that do not cooperate with

information requests, as authorized by

section 776(b) of the Act.

Delegation. In the NOPR, the

Commission proposed a regulation

(section 207.62(d)), which would have

permitted the Commission to delegate to

staff the responsibility for making

adequacy rulings. Stewart and Schagrin

requested that the provision not be

promulgated, on the ground that staff

should not be given the authority to

make decisions having a significant

impact on the parties’ rights. Quebec

supported the proposed provision.

The Commission has determined not

to promulgate a regulation on

delegation. The Commission has

concluded that the regulation is

unnecessary because, should it decide

to delegate the responsibility for making

adequacy rulings, promulgation of a

regulation to effect such a delegation is

not required.

Section 207.63

Section 207.63 is a new provision

addressing the circulation of draft

questionnaires in full reviews.

Section 207.63(a): Circulation of Draft

Questionnaires

Section 207.63(a) concerns the

circulation of draft questionnaires for

comment. Its text has been simplified by

use of the term ‘‘full review.’’

Section 207.63(b): Comments on Draft

Questionnaires

Section 207.63(b), which concerns the

written comments that parties may file

regarding the draft questionnaires, has

been modified significantly from the

NOPR. As proposed, section 207.63(b)

required parties to present all requests

for the collection of new data in their

comments and stated that the

Commission would disregard

subsequent arguments premised on the

collection of new data if such requests

were not included in the comments.

Nine commenters, representing both

domestic and respondent interests,

objected to section 207.63(b) insofar as

it required that all data requests be

made in the questionnaire comments.

These commenters contended that

parties will not always be able to

ascertain what data the Commission

should collect until they review the

responses to the questionnaires. Several

of these commenters expressed

divergent views on the circumstances in

which the Commission should entertain

subsequent data requests. Thailand

advocated that the Commission issue

supplemental questionnaires as a matter

of course. Eurofer and Stewart, however,

opposed such a procedure on the

grounds that routine issuance of

supplemental questionnaires could

encourage parties not to respond to the

initial questionnaires. Eurofer suggested

that supplemental questionnaires not be

authorized in the absence of a

compelling reason.

After review of the comments, the

Commission has concluded that section

207.63(b) should be modified.

Accordingly, the second sentence of the

section now provides that parties

‘‘should,’’ rather than ‘‘must,’’ present

all data collection requests in their

questionnaire comments. The

Commission emphasizes that it

ordinarily anticipates that parties will

make all data collection requests in the

questionnaire comments and that it will

rarely entertain subsequent requests for

data collection. Consequently, the final

sentence of section 207.63(c) has been

revised to provide that the Commission

will not consider subsequent requests

for the collection of new information

unless there is a showing that there is

a compelling need for the information

and that the information could not have

been requested in the comments on the

draft questionnaires.

Verification of Questionnaire

Responses. Several comments addressed

verification of questionnaire responses

in five-year reviews. Canada, Fuji, and

JISEA requested that the Commission

verify domestic producer data it

receives. Dewey/Skadden requested

promulgation of a regulation stating that

the Commission will verify importer

data it receives; Fuji and JISEA also

supported verification of such data.

Stewart requested promulgation of a

regulation stating that the Commission

will verify purchaser data it receives.

Dewey/Skadden, Schagrin, and Stewart

requested promulgation of a regulation

stating that the Commission will verify

foreign producer data it receives; Collier

and Micron also supported such

verification.

The Commission will consider

verification of domestic interested party

and respondent interested party

information in appropriate

circumstances and as staffing resources

permit. The Commission will also

consider using Commerce verification

reports as appropriate. The regulations

do not currently address verification in

original investigations, and the

Commission does not believe it is

necessary to promulgate a regulation

regarding verification in five-year

reviews.

Section 207.64

Section 207.64 is a new provision

concerning staff reports in full reviews.
Federal Register / Vol. 63, No. 108 / Friday, June 5, 1998 /Rules and Regulations 30607

The section is identical to that proposed

in the NOPR.

Section 207.65

Section 207.65 is a new provision

concerning prehearing briefs. The

section, which is adapted from current

section 207.23, is identical to that

proposed in the NOPR.

Section 207.66

Section 207.66 is a new provision

concerning hearings in five-year

reviews. The text of section 207.66(a)

has been simplified by use of the term

‘‘full review.’’ Section 207.66(b) has not

been changed from the NOPR.

Section 207.67

Section 207.67 is a new provision

concerning posthearing briefs and

statements in five-year reviews. This

section is identical to that proposed in

the NOPR.

Cement Committee requested that this

section be modified by inserting a

provision stating that new factual

information in such posthearing briefs

and statements will be disregarded

unless it is responsive to a question or

request made at the Commission

hearing. Collier requested that section

207.67(b) be modified by placing a fivepage limit on statements by nonparties.

As stated in the NOPR preamble, the

provisions of section 207.67 are

intended to track sections 207.25 and

207.26, which govern posthearing briefs

and statements in original

investigations. Sections 207.25 and

207.26 do not contain any restrictions

on the submission of new factual

information of the type requested by

Cement Committee. Nor does section

207.26 contain a page limit on the brief

written statements that nonparties may

submit. To maintain consistency

between the procedures for original

investigations and the procedures for

five-year reviews, the Commission has

determined not to insert the additional

restrictions in section 207.67 requested

by Cement Committee and Collier.

Section 207.68

Section 207.68 is a new provision

concerning final comments on

information. This section, which

follows current section 207.30, is

identical to that proposed in the NOPR.

Section 207.69

Section 207.69 is a new provision

concerning publication and service of

Commission determinations in five-year

reviews. The section, which follows

current section 207.29, is identical to

that proposed in the NOPR.

List of Subjects

19 CFR Part 201

Administrative practice and

procedure, Investigations, Imports.

19 CFR Part 207

Administrative practice and

procedure, Antidumping,

Countervailing Duties, Investigations.

For the reasons stated in the

preamble, 19 CFR parts 201 and 207 are

amended as set forth below:

PART 201—[AMENDED]

1. The authority citation for part 201

continues to read as follows:

Authority: Sec. 335 of the Tariff Act of

1930 (19 U.S.C. 1335) and Sec. 603 of the

Trade Act of 1974 (19 U.S.C. 2482), unless

otherwise noted.

2. New paragraphs (b)(4) and (b)(5) are

added to § 201.11 to read as follows:

§ 201.11 Appearance in an investigation as

a party.

* * * * *

(b) Time for filing.

* * * * *

(4) In the case of reviews conducted

under subpart F of part 207 of this

chapter, each entry of appearance shall

be filed with the Secretary not later than

twenty-one (21) days after publication

in the Federal Register of the notice of

institution described in § 207.60(d) of

this chapter.

(5) Notwithstanding paragraph (b)(4)

of this section, a party may file an entry

of appearance in a review conducted

under subpart F of part 207 of this

chapter within the period specified in

the notice issued under § 207.62(c) of

this chapter. This period shall be at least

45 days.

* * * * *

PART 207—[AMENDED]

3. The authority citation for part 207

continues to read as follows:

Authority: 19 U.S.C. 1336, 1671–1677n,

2482, 3513.

4. Paragraph (b) of § 207.3 is revised

to read as follows:

§ 207.3 Service, filing, and certification of

documents.

* * * * *

(b) Service. Any party submitting a

document for inclusion in the record of

the investigation shall, in addition to

complying with § 201.8 of this chapter,

serve a copy of each such document on

all other parties to the investigation in

the manner prescribed in § 201.16 of

this chapter. If a document is filed

before the Secretary’s issuance of the

service list provided for in § 201.11 of

this chapter or the administrative

protective order list provided for in

§ 207.7, the document need not be

accompanied by a certificate of service,

but the document shall be served on all

appropriate parties within two (2) days

of the issuance of the service list or the

administrative protective order list and

a certificate of service shall then be

filed. Notwithstanding § 201.16 of this

chapter, petitions, briefs, and testimony

filed by parties pursuant to §§ 207.10,

207.15, 207.23, 207.24, 207.25, 207.65,

207.66, and 207.67 shall be served by

hand or, if served by mail, by overnight

mail or its equivalent. Failure to comply

with the requirements of this rule may

result in removal from status as a party

to the investigation. The Commission

shall make available to all parties to the

investigation a copy of each document,

except transcripts of conferences and

hearings, business proprietary

information, privileged information, and

information required to be served under

this section, placed in the record of the

investigation by the Commission.

* * * * *

5. Paragraph (a) of § 207.45 is revised

to read as follows:

§ 207.45 Investigation to review

outstanding determination.

(a) Request for review. Any person

may file with the Commission a request

for the institution of a review

investigation under section 751(b) of the

Act. The person making the request

shall also promptly serve copies of the

request on the parties to the original

investigation upon which the review is

to be based. All requests shall set forth

a description of changed circumstances

sufficient to warrant the institution of a

review investigation by the

Commission.

* * * * *

6. Paragraph (g) of § 207.46 is revised

to read as follows:

§ 207.46 Investigations concerning certain

countervailing duty orders.

* * * * *

(g) Request for simultaneous section

751(c) review. (1) A requesting party

who requests a section 753 review may

at the same time request from the

Commission and the administering

authority a review under section 751(c)

of the Act of a countervailing or

antidumping duty order involving the

same or comparable subject

merchandise.

(2) Should the administering

authority, after consulting with the

Commission, determine to initiate a

section 751(c) review, the Commission

shall conduct a consolidated review
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under sections 751(c) and 753 of the Act

of the orders involving the same or

comparable subject merchandise. Any

such consolidated review shall be

conducted under the applicable

procedures set forth in subparts A and

F of this part.

(3) Should the administering

authority, after consulting with the

Commission, determine not to initiate a

section 751(c) review, the Commission

will consider the request for a section

753 review pursuant to the procedures

established in this section.

7. A new Subpart F is added to read

as follows:

Subpart F—Five-Year Reviews

207.60 Definitions.

207.61 Responses to notice of institution.

207.62 Rulings on adequacy and nature of

Commission review.

207.63 Circulation of draft questionnaires.

207.64 Staff reports.

207.65 Prehearing briefs.

207.66 Hearing.

207.67 Posthearing briefs and statements.

207.68 Final comments on information.

207.69 Publication of determinations.

§ 207.60 Definitions.

For purposes of this subpart:

(a) The term five-year review means a

five-year review conducted pursuant to

section 751(c) of the Act. The provisions

of part 201 of this chapter and subpart

A of this part pertaining to

‘‘investigations’’ are generally

applicable to five-year reviews, unless

superseded by a provision in this

subpart of more specific application.

(b) The term expedited review means

a five-year review conducted by the

Commission pursuant to section

751(c)(3)(B) of the Act.

(c) The term full review means a fiveyear review that has not been expedited

by the Commission or terminated

pursuant to section 751(c)(3) of the Act.

(d) The term notice of institution shall

refer to the notice of institution of fiveyear review that the Commission shall

publish in the Federal Register

requesting that interested parties

provide information to the Commission

upon initiation of a five-year review.

§ 207.61 Responses to notice of

institution.

(a) When information must be filed.

Responses to the notice of institution

shall be submitted to the Commission

no later than 50 days after its

publication in the Federal Register.

(b) Information to be filed with the

Secretary. The notice of institution shall

direct each interested party to make a

filing pursuant to §§ 201.6, 201.8 and

207.3 of this chapter containing the

following:

(1) A statement expressing its

willingness to participate in the review

by providing information requested by

the Commission;

(2) A statement regarding the likely

effects of revocation of the order(s) or

termination of the suspended

investigation(s) under review;

(3) Such information or industry data

as the Commission may specify in the

notice of institution.

(c) When requested information

cannot be supplied. Any interested

party that cannot furnish the

information requested by the notice of

institution in the requested form and

manner shall, promptly after issuance of

the notice, notify the Commission,

provide a full explanation of why it

cannot furnish the requested

information, and indicate alternative

forms in which it can provide

equivalent information. The

Commission may modify its requests to

the extent necessary to avoid posing an

unreasonable burden on that party.

(d) Submissions by persons other than

interested parties. Any person who is

not an interested party may submit to

the Commission, in a filing satisfying

the requirements of § 201.8 of this

chapter, information relevant to the

Commission’s review no later than 50

days after publication of the notice of

institution in the Federal Register.

§ 207.62 Rulings on adequacy and nature

of Commission review.

(a) Basis for rulings on adequacy. The

Commission will assess the adequacy of

aggregate interested party responses to

the notice of institution with respect to

each order or suspension agreement

under review and, where the underlying

affirmative Commission determination

found multiple domestic like products,

on the basis of each domestic like

product.

(b) Comments to the Commission. (1)

Comments to the Commission

concerning whether the Commission

should conduct an expedited review

may be submitted by:

(i) Any interested party that is a party

to the five-year review and that has

responded to the notice of institution;

and

(ii) Any party, other than an

interested party, that is a party to the

five-year review.

(2) Comments shall be submitted

within the time specified in the notice

of institution. In a grouped review, only

one set of comments shall be filed per

party per group. Comments shall not

exceed fifteen (15) pages of textual

material, double-spaced and singlesided, on stationery measuring 81⁄2 × 11

inches. Comments containing new

factual information shall be disregarded.

(c) Notice of scheduling of full review.

If the Commission concludes that

interested parties’ responses to the

notice of institution are adequate, or

otherwise determines that a full review

should proceed, investigative activities

pertaining to that review will continue.

The Commission will publish in the

Federal Register a notice of scheduling

pertaining to subsequent procedures in

the review.

(d) Procedures for expedited reviews.

(1) If the Commission concludes that

interested parties’ responses to the

notice of institution are inadequate, it

may decide to conduct an expedited

review. In that event, the Commission

shall direct the Secretary to issue a

notice stating that the Commission has

decided to conduct an expedited review

and inviting those parties to the review

described in paragraph (d)(2) of this

section to file written comments with

the Secretary on what determination the

Commission should reach in the review.

The date on which such comments must

be filed will be specified in the notice

to be issued by the Secretary. Comments

containing new factual information

shall be disregarded.

(2) The following parties may file the

comments described in paragraph (d)(1)

of this section:

(i) Any interested party that is a party

to the five-year review and that has filed

an adequate response to the notice of

institution; and

(ii) Any party, other than an

interested party, that is a party to the

five-year review.

(3) Any person that is neither a party

to the five-year review nor an interested

party may submit a brief written

statement (which shall not contain any

new factual information) pertinent to

the review within the time specified for

the filing of written comments.

(4) The Director shall prepare and

place in the record, prior to the date on

which the comments described in

paragraph (d)(1) of this section must be

filed, a staff report containing

information concerning the subject

matter of the review. A version of the

staff report containing business

proprietary information shall be placed

in the nonpublic record and made

available to persons authorized to

receive business proprietary information

under § 207.7, and a nonbusiness

proprietary version of the staff report

shall be placed in the public record.

(e) Use of facts available. The

Commission’s determination in an

expedited review will be based on the

facts available, in accordance with

section 776 of the Act.
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§ 207.63 Circulation of draft

questionnaires.

(a) The Director shall circulate draft

questionnaires to the parties for

comment in each full review.

(b) Any party desiring to comment on

the draft questionnaires shall submit

such comments in writing to the

Commission within a time specified by

the Director. All requests for collecting

new information should be presented at

this time. The Commission will

disregard subsequent requests for

collection of new information absent a

showing that there is a compelling need

for the information and that the

information could not have been

requested in the comments on the draft

questionnaires.

§ 207.64 Staff reports.

(a) Prehearing staff report. The

Director shall prepare and place in the

record, prior to the hearing, a prehearing

staff report containing information

concerning the subject matter of the

five-year review. A version of the staff

report containing business proprietary

information shall be placed in the

nonpublic record and made available to

persons authorized to receive business

proprietary information under § 207.7,

and a nonbusiness proprietary version

of the staff report shall be placed in the

public record.

(b) Final staff report. After the

hearing, the Director shall revise the

prehearing staff report and submit to the

Commission, prior to the Commission’s

determination, a final version of the

staff report. The final staff report is

intended to supplement and correct the

information contained in the prehearing

staff report. A public version of the final

staff report shall be made available to

the public and a business proprietary

version shall also be made available to

persons authorized to receive business

proprietary information under § 207.7.

§ 207.65 Prehearing briefs.

Each party to a five-year review may

submit a prehearing brief to the

Commission on the date specified in the

scheduling notice. A prehearing brief

shall be signed and shall include a table

of contents. The prehearing brief should

present a party’s case concisely and

shall, to the extent possible, refer to the

record and include information and

arguments which the party believes

relevant to the subject matter of the

Commission’s determination.

§ 207.66 Hearing.

(a) In general. The Commission shall

hold a hearing in each full review. The

date of the hearing shall be specified in

the scheduling notice.

(b) Procedures. Hearing procedures in

five-year reviews will conform to those

for final phase antidumping and

countervailing duty investigations set

forth in § 207.24.

§ 207.67 Posthearing briefs and

statements.

(a) Briefs from parties. Any party to a

five-year review may file with the

Secretary a posthearing brief concerning

the information adduced at or after the

hearing within a time specified in the

scheduling notice or by the presiding

official at the hearing. No such

posthearing brief shall exceed fifteen

(15) pages of textual material, double

spaced and single sided, on stationery

measuring 81⁄2 x 11 inches. In addition,

the presiding official may permit

persons to file answers to questions or

requests made by the Commission at the

hearing within a specified time. The

Secretary shall not accept for filing

posthearing briefs or answers which do

not comply with this section.

(b) Statements from nonparties. Any

person other than a party may submit a

brief written statement of information

pertinent to the review within the time

specified for the filing of posthearing

briefs.

§ 207.68 Final comments on information.

(a) The Commission shall specify a

date after the filing of posthearing briefs

on which it will disclose to all parties

to the five-year review all information it

has obtained on which the parties have

not previously had an opportunity to

comment. Any such information that is

business proprietary information will be

released to persons authorized to obtain

such information pursuant to § 207.7.

(b) The parties shall have an

opportunity to file comments on any

information disclosed to them after they

have filed their posthearing brief

pursuant to § 207.67. Comments shall

only concern such information, and

shall not exceed 15 pages of textual

material, double spaced and singlesided, on stationery measuring 81⁄2 x 11

inches. A comment may address the

accuracy, reliability, or probative value

of such information by reference to

information elsewhere in the record, in

which case the comment shall identify

where in the record such information is

found. Comments containing new

factual information shall be disregarded.

The date on which such comments must

be filed will be specified by the

Commission when it specifies the time

that information will be disclosed

pursuant to paragraph (a) of this section.

The record shall close on the date such

comments are due, except with respect

to changes in bracketing of business

proprietary information in the

comments permitted by § 207.3(c).

§ 207.69 Publication of determinations.

Whenever the Commission makes a

determination concluding a five-year

review, the Secretary shall serve copies

of the determination and, when

applicable, the nonbusiness proprietary

version of the final staff report on all

parties to the review, and on the

administering authority. The Secretary

shall publish notice of such

determination in the Federal Register.

By order of the Commission.

Issued: June 2, 1998.

Donna R. Koehnke,

Secretary.

Annex A: Sample Notice of Institution of

Five-Year Review

Definitions

(1) Subject Merchandise is the class or kind

of merchandise that is within the scope of the

five-year review, as defined by the

Department of Commerce.

(2) The Subject Country in this review is

[INSERT COUNTRY].

(3) The Domestic Like Product is the

domestically produced product or products

which are like, or in the absence of like, most

similar in characteristics or uses with, the

Subject Merchandise. In its original

determination, the Commission defined the

Domestic Like Product as [INSERT

DEFINITION]. (Add the following if

applicable) One Commissioner/certain

Commissioners defined the Domestic Like

Product differently.

(4) The Domestic Industry is the producers

as a whole of the Domestic Like Product, or

those producers whose collective output of

the Domestic Like Product constitutes a major

proportion of the total domestic production

of the product. In its original determination,

the Commission defined the Domestic

Industry as producers of [INSERT

DEFINITION]. (Add the following if

applicable) One Commissioner/certain

Commissioners defined the Domestic

Industry differently.

(5) The Order Date is the date that the

countervailing duty order/antidumping duty

order/suspension agreement under review

became effective. In this review, the Order

Date is [INSERT DATE].

(6) An Importer is any person or firm

engaged, either directly or through a parent

company or subsidiary, in importing the

Subject Merchandise into the United States

from a foreign manufacturer or through its

selling agent.

Certification

In accordance with Commission rule 207.3,

any person submitting information to the

Commission in connection with this review

must certify that the information is accurate

and complete to the best of the submitter’s

knowledge. In making the certification, the

submitter will be deemed to consent, unless

otherwise specified, for the Commission, its

employees, and contract personnel to use the
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information provided in any other reviews or

investigations of the same or comparable

products which the Commission conducts

under Title VII of the Act, or in internal

audits and investigations relating to the

programs and operations of the Commission

pursuant to 5 U.S.C. Appendix 3.

Information To Be Submitted to the

Commission

All responses should be filed with the

Secretary and must conform with the

provisions of sections 201.8 and 207.3 of the

Commission’s rules. If business proprietary

treatment is desired for portions of a

response, submitters must follow the

requirements set forth in sections 201.6 and

207.7 of the Commission’s rules. Also, in

accordance with sections 201.16(c) and 207.3

of the Commission’s rules, each document

filed by a party to the review must be served

on all other parties to the review (as

identified by either the public or BPI service

list as appropriate), and a certificate of

service must accompany the document (if

you are not a party to the review you do not

need to serve your response). Any interested

party that cannot furnish the information

requested should explain, at the earliest

possible time, why it is unable to do so and

indicate alternative forms in which it can

provide equivalent information. (Add the

following if more than one country is

involved) If you are a domestic producer,

union/worker group, or trade/business

association; import/export Subject

Merchandise from more than one Subject

Country; or produce Subject Merchandise in

more than one Subject Country, you may file

a single response. If you do so, please ensure

that your response to each question includes

the information requested for each pertinent

Subject Country.

The response should include:

(1) The name and address of your firm or

entity (including World Wide Web address if

available) and name, telephone number, fax

number, and E-mail address of the certifying

official.

(2) A statement indicating whether your

firm/entity is a U.S. producer of the Domestic

Like Product, a U.S. union or worker group,

a U.S. importer of the Subject Merchandise,

a foreign producer or exporter of the Subject

Merchandise, a U.S. or foreign trade or

business association, or another interested

party (including an explanation). If you are

a union/worker group or trade/business

association, identify the firms in which your

workers are employed or which are members

of your association.

(3) A statement indicating whether your

firm/entity is willing to participate in this

review by providing information requested

by the Commission.

(4) A statement of the likely effects of the

revocation of the countervailing duty order/

antidumping duty order/termination of the

suspension agreement on the Domestic

Industry in general and/or your firm/entity

specifically. In your response, please discuss

the various factors specified in section 752(a)

of the Act (19 U.S.C. § 1675a(a)) including

the likely volume of subject imports, likely

price effects of subject imports, and likely

impact of imports of Subject Merchandise on

the Domestic Industry.

(5) A list of all known and currently

operating U.S. producers of the Domestic

Like Product. Identify any known related

parties and the nature of the relationship as

defined in section 771(4)(B) of the Act (19

U.S.C. § 1677(4)(B)).

(6) A list of all known and currently

operating U.S. importers of the Subject

Merchandise and producers of the Subject

Merchandise in [INSERT COUNTRY] that

currently export or have exported Subject

Merchandise to the United States or other

countries since [INSERT YEAR OF

PETITION].

(7) If you are a U.S. producer of the

Domestic Like Product, provide the following

information on your firm’s operations on that

product during calendar year [INSERT

PRECEDING YEAR] (report quantity data in

[INSERT MEASUREMENT UNIT] and value

data in thousands of dollars). If you are a

union/worker group or trade/business

association, provide the information, on an

aggregate basis, for the firms in which your

workers are employed/which are members of

your association.

(a) Production (quantity) and, if known, an

estimate of the percentage of total U.S.

production of the Domestic Like Product

accounted for by your firm’s(s’) production;

and

(b) the quantity and value of U.S.

commercial shipments of the Domestic Like

Product produced in your U.S. plant(s).

(8) If you are a U.S. importer or a trade/

business association of U.S. importers of the

Subject Merchandise from [INSERT

COUNTRY], provide the following

information on your firm’s(s’) operations on

that product during calendar year [INSERT

PRECEDING YEAR] (report quantity data in

[INSERT MEASUREMENT UNIT] and value

data in thousands of dollars). If you are a

trade/business association, provide the

information, on an aggregate basis, for the

firms which are members of your association.

(a) The quantity and value of U.S. imports

and, if known, an estimate of the percentage

of total U.S. imports of Subject Merchandise

from [INSERT COUNTRY] accounted for by

your firm’s(s’) imports; and

(b) the quantity and value of U.S.

commercial shipments of Subject

Merchandise imported from [INSERT

COUNTRY].

(9) If you are a producer, an exporter, or

a trade/business association of producers or

exporters of the Subject Merchandise in

[INSERT COUNTRY], provide the following

information on your firm’s(s’) operations on

that product during calendar year [INSERT

PRECEDING YEAR] (report quantity data in

[INSERT MEASUREMENT UNIT] and value

data in thousands of dollars). If you are a

trade/business association, provide the

information, on an aggregate basis, for the

firms which are members of your association.

(a) Production (quantity) and, if known, an

estimate of the percentage of total production

of Subject Merchandise in [INSERT

COUNTRY] accounted for by your firm’s(s’)

production; and

(b) the quantity and value of your firm’s(s’)

exports to the United States of Subject

Merchandise and, if known, an estimate of

the percentage of total exports to the United

States of Subject Merchandise from [INSERT

COUNTRY] accounted for by your firm’s(s’)

exports.

(10) Identify significant changes, if any, in

the supply and demand conditions or

business cycle for the Domestic Like Product

that have occurred in the United States or in

the market for the Subject Merchandise in

Subject Country since the Order Date, and

significant changes, if any, that are likely to

occur within a reasonably foreseeable time.

Supply conditions to consider include

technology; production methods;

development efforts; ability to increase

production (including the shift of production

facilities used for other products and the use,

cost, or availability of major inputs into

production); and factors related to the ability

to shift supply among different national

markets (including barriers to importation in

foreign markets or changes in market demand

abroad). Demand conditions to consider

include end uses and applications; the

existence and availability of substitute

products; and the level of competition among

the Domestic Like Product produced in the

United States, Subject Merchandise produced

in the Subject Country, and [INSERT

PRODUCT DESCRIPTION] from other

countries.

(11) (OPTIONAL) A statement of whether

you agree with the above definitions of the

Domestic Like Product and Domestic

Industry; if you disagree with either or both

of these definitions, please explain why and

provide alternative definitions.

BILLING CODE 7020–02–P
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[FR Doc. 98–15156 Filed 6–4–98; 8:45 am]

BILLING CODE 7020–02–C