6 Federal Register / Vol. 60, No. 1 / Tuesday, January 3, 1995 / Rules and Regulations

1 17 CFR 200.30–3.

2 15 U.S.C. § 553(b)(A).

III. Delegation of Authority to the

Director of the Division of Market

Regulation

In the absence of a delegation of

authority, the Commission is required to

consider each bylaw and rule change

proposed by SIPC. In order to relieve the

Commission from the burden of

considering routine matters regarding

the operation of SIPC, the Commission

is delegating certain of its authority

under sections 3(e)(1) and (3)(e)(2) of

SIPA to the Director of the Division.

Specifically, the Commission is

delegating its authority under section

3(e)(1) to the Director of the Division to

make a determination, and to notify

SIPC of this determination, as to

whether a proposed bylaw change (i)

should not be disapproved and,

therefore, become effective 30 days after

filing or (ii) involves matters of such

significant public interest that public

comment should be obtained. In

addition, the Commission is delegating

authority to the Director of the Division

to accelerate the effective date of a

bylaw change. Finally, the Commission

is delegating its authority to publish for

comment, in accordance with section

3(e)(2) of SIPA, those proposed bylaw

changes determined to be matters of

significant public interest, as well as all

proposed rule changes. The

Commission, however, will retain its

authority to approve proposed bylaw

and rule amendments after the comment

period is completed.

Accordingly, the Commission is

amending Rule 30–3 of the Rules of

Practice and Investigations (‘‘Rule 30–

3’’).1 Notwithstanding these delegations

of authority, the Division will bring any

significant proposed bylaw or rule

amendments to the Commission’s

attention for its consideration.

The Commission finds, in accordance

with section 553(b)(A) of the

Administrative Procedures Act,2 that

these amendments relate solely to

agency organization and procedure, and

do not relate to a substantive rule.

Accordingly, notice and opportunity for

public comment are unnecessary, and

publication of the amendment 30 days

before its effective date also is

unnecessary.

IV. Statutory Basis and Text of

Amendments

List of Subjects in 17 CFR Part 200

Administrative practice and

procedure, Authority delegations

(Government agencies), Organizations

and functions (Government

organizations).

In accordance with the foregoing,

Title 17, Chapter II of the Code of

Federal Regulations is amended as

follows:

PART 200—ORGANIZATION;

CONDUCT AND ETHICS; AND

INFORMATION REQUESTS

Subpart A—Organization and Program

Management

1. The authority citation for Part 200,

Subpart A continues, in part, to read as

follows:

Authority: 15 U.S.C. 77s, 78d–1, 78d–2,

78w, 78ll(d), 79t, 77sss, 80a–37, 80b–11,

unless otherwise noted.

* * * * *

2. Section 200.30–3 is amended by

revising paragraph (f) to read as follows:

§ 200.30–3 Delegation of authority to

director of division of market regulation.

* * * * *

(f) With respect to the Securities

Investor Protection Act of 1970, as

amended, 15 U.S.C. 78aaa, et seq.

(‘‘SIPA’’):

(1) Pursuant to Section 3(a)(2)(B) of

SIPA, to:

(i) Extend for a period not exceeding

90 days from the date of the filing of the

determination by the Securities Investor

Protection Corporation (‘‘SIPC’’) that a

registered broker-dealer is not a SIPC

member because it conducts its

principal business outside the United

States and its territories and

possessions, the period during which

the Commission must affirm, reverse or

amend any determination by SIPC; and

(ii) Affirm such determination filed by

SIPC.

(2) Pursuant to Section (3)(e)(1) of

SIPA, to:

(i) Determine whether proposed

bylaw changes filed by SIPC should not

be disapproved or whether the proposed

bylaw change is a matter of such

significant public interest that public

comment should be obtained, in which

case the Division will notify SIPC of

such finding and publish notice of the

proposed bylaw change in accordance

with Section 3(e)(2) of SIPA; and

(ii) Accelerate the effective date of

proposed bylaw changes filed by SIPC.

(3) Pursuant to Section (3)(e)(2) of

SIPA, to publish notice of proposed rule

changes filed by SIPC.

By the Commission.

Dated: December 27, 1994.

Margaret H. McFarland,

Deputy Secretary.

[FR Doc. 94–32250 Filed 12–30–94; 8:45 am]

BILLING CODE 8010–01–M

INTERNATIONAL TRADE

COMMISSION

19 CFR Part 206

Implementing Rules for the Uruguay

Round Agreements Act

AGENCY: United States International

Trade Commission.

ACTION: Interim rules with request for

comment.

SUMMARY: The Commission is amending

its Rules of Practice and Procedure to

conform with amendments made to

sections 201–204 of the Trade Act of

1974 by the Uruguay Round Agreements

Act. The amendments, among other

things, conform U.S. law with the

Uruguay Round Agreement on

Safeguards and provide for limited

disclosure of confidential business

information under administrative

protective order.

DATES: The interim amendment to

section 206.17 is effective January 3,

1995. All other amendments are

effective on January 1, 1995, the date on

which the World Trade Organization

(WTO) Agreement enters into force with

respect to the United States, unless the

United States Trade Representative

announces prior to that date that the

WTO Agreement will not enter into

force on that date. Should the effective

date of such other amendments not be

January 1, 1995, the Commission will

publish notice to such effect in the

Federal Register.

To be assured of consideration,

written comments must be received not

later than April 3, 1995.

ADDRESSES: A signed original and 14

copies of each set of comments, along

with a cover letter addressed to Donna

R. Koehnke, Secretary, should be sent to

the Commission, 500 E Street SW., room

112, Washington, D.C. 20436.

FOR FURTHER INFORMATION CONTACT:

William Gearhart, Office of General

Counsel, U.S. International Trade

Commission [202–205–3091]. 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

The Uruguay Round Agreement on

Safeguards sets out specific conditions

and rules for taking safeguard actions

under the GATT 1947 safeguards

provision, article XIX. Article XIX

permits a country to impose import

restrictions when increased imports are

found to cause or threaten to cause
Federal Register / Vol. 60, No. 1 / Tuesday, January 3, 1995 / Rules and Regulations 7

serious injury to a domestic industry,

but otherwise provides few rules with

respect to the circumstances under

which such restrictions may be imposed

and for how long. The new Agreement

on Safeguards provides additional

guidance on how and when safeguard

measures may be applied. Among other

things, it requires that contracting

parties follow procedures to ensure

transparency (including a public

investigation and published report);

limits measures to an 8-year maximum

duration; requires progressive

liberalization of safeguard measures;

and provides for expedited procedures

that may be applied in ‘‘critical

circumstances,’’ including special

provisions for proceedings concerning

imports of perishable products. It also

provides that for the first 3 years of any

safeguard measure put in place to

counter an absolute increase in imports,

the exporting countries may not impose

trade retaliation.

Sections 201–204 of the Trade Act of

1974 (Trade Act) implement article XIX

in the United States. U.S. law was

already largely consistent with the

Agreement on Safeguards, and therefore

only minor statutory changes were

necessary to bring U.S. law into

conformity with the Agreement. U.S.

law and practice, in fact, served as a

model for the drafters of the Agreement.

Subtitle A of title III of the Uruguay

Round Agreements Act (URAA) amends

sections 201–204 of the Trade Act to

bring them into conformity with the

Agreement on Safeguards. Section 301

of the URAA implements provisions of

the Agreement that relate to

investigations and determinations by

the United States International Trade

Commission (Commission) under

section 202 of the Trade Act. Section

301 also amends section 202 to require

the Commission to promulgate

regulations to provide for limited

disclosure of confidential business

information under an administrative

protective order in the course of

investigations under section 202 of the

Trade Act. Section 302 of the URAA

implements provisions of the

Agreement that relate to (1) actions by

the President under section 203 of the

Trade Act after he receives an

affirmative Commission determination;

and (2) Commission monitoring reports

and investigations and determinations

under section 204 of the Trade Act

concerning extension of relief.

The amendments to these rules bring

Commission procedures into conformity

with the amendments to sections 202

and 204 of the Trade Act. The

amendments to the rules—

(1) provide for the submission by

parties of nonconfidential summaries of

confidential business information and

state the circumstances under which the

Commission may disregard the

submission if such summary is not

provided;

(2) require petitioners to include

within their petition information with

regard to productivity;

(3) incorporate the new limitations in

section 202(h) of the Trade Act

concerning investigations with respect

to articles the subject of a prior relief

action or articles subject to the Textiles

Agreement;

(4) provide for limited disclosure of

confidential business information under

administrative protective order;

(5) revise the time for making

determinations and reports when

critical circumstances are alleged;

(6) adjust the time for Commission

monitoring reports; and (7) provide

procedures for investigations and

determinations concerning extension of

relief actions.

Implementation of Interim Rules

Section 335 of the Tariff Act of 1930

(19 U.S.C. § 1335) authorizes the

Commission to adopt such reasonable

procedures and rules and regulations as

it deems necessary to carry out its

functions and duties. Additionally,

section 103(a) of the URAA specifies

that appropriate officers of the United

States Government may issue such

regulations as may be necessary to

ensure that any provision of that act, or

amendment made by the act, is

appropriately implemented on the

effective date of that act, and section

103(b) of the URAA directs that any

interim regulations necessary or

appropriate to carry out any action

proposed in the Statement of

Administrative Action approved under

section 101(a) of the URAA to

implement an agreement described in

section 101(d)(7), (12), or (13) of the

URAA be issued not later than 1 year

after the date on which the agreement

enteres into force with respect to the

United States. Section 301(b) directs the

Commission to promulgate regulations

providing for the limited disclosure of

confidential business information under

administrative protective order in

investigations under section 202 of the

Trade Act, and the Statement of

Administrative Action directs that the

Commission promulgate interim

regulations providing for such

disclosure as soon as practicable.

Commission rules to implement new

legislation ordinarily are promulgated in

accordance with the rulemaking

provisions of section 553 of the

Administrative Procedure Act (APA) (5

U.S.C. § 551 et seq.), which entails the

following steps: (1) publication of a

notice of proposed rulemaking; (2)

solicitation of public comment on the

proposed rules; (3) Commission review

of such comments prior to developing

final rules; and (4) publication of the

final rules thirty days prior to their

effective date. See 5 U.S.C. § 553. That

procedure could not be utilized in this

instance because the new legislation

was enacted on December 8, 1994, and

became effective, with respect to the

amendment to section 202 of the Trade

Act providing for limited disclosure of

confidential business information under

administrative protective order, on the

date of enactment, and in other respects

was expected to become effective on

January 1, 1995. Consequently, it was

not possible to complete the section 553

rulemaking procedure prior to the

effective date of the new legislation.

The Commission thus has determined

to adopt interim rules that will go into

effect when the provisions of the URAA

amending sections 201–204 of the Trade

Act become effective. These rules will

remain in effect until the Commission

can adopt final rules promulgated in

accordance with the usual notice and

advance publication procedure for

issuing such rules, taking into account

any comments received in response to

this notice.

The Commission’s authority to adopt

interim rules without following all steps

listed in section 553 of the APA is

derived from three sources: (1) section

335 of the Act (19 U.S.C. § 1335); (2)

sections 103 and 301(b) of the URAA,

and the Statement of Administrative

Action approved by the URAA; and (3)

provisions of section 553 of the APA

which allow an agency to dispense with

various steps in the prescribed

rulemaking procedure under certain

circumstances. Because these interim

rules comprehensively implement the

rules changes required by the URAA, no

additional notice of proposed

rulemaking is necessary or

contemplated at this time. However, as

stated above, the public is invited to

submit written comments to the

Commission for the Commission’s

consideration in preparing final rules.

To be assured of consideration, such

comments should be received by the

Commission not later than 90 days after

publication of this notice in the Federal

Register.

The Commission has determined that

the need for interim rules is clear in this

instance. The Commission notes that the

new legislation alters practice and

procedure in proceedings under

sections 201–204 of the Trade Act, and
8 Federal Register / Vol. 60, No. 1 / Tuesday, January 3, 1995 / Rules and Regulations

that the existing Commission rules do

not encompass certain procedures

required by the new legislation. The

Commission finds that rulemaking is

essential for the orderly administration

of sections 201–204 of the Trade Act as

amended by the new legislation.

Furthermore, since the legislation

becomes effective very shortly after

enactment, the Commission has

concluded that interim implementing

rules should be in place as soon as

practicable following the effective date

of the new statute.

The Commission notes that an agency

may dispense with publication of a

notice of proposed rulemaking when the

following circumstances exist: (1) the

proposed rules are interpretive rules,

general statements of policy, or rules of

agency organization, procedure or

practice; or (2) the agency for good

cause finds that notice and public

comment thereon are impracticable,

unnecessary, or contrary to the public

interest, and that finding (and the

reasons therefor) are incorporated into

the rules adopted by the agency. 5

U.S.C. § 553(b). An agency may also

dispense with the publication of a

notice of final rules thirty days prior to

their effective date if (1) the rules are

interpretive rules of statements of policy

or (2) the agency finds that ‘‘good

cause’’ exists for not meeting the

advance publication requirement and

that finding is published along with the

rule. 5 U.S.C. § 553(d)(3).

In this instance, the Commission has

determined that the requisite

circumstances existed for dispensing

with the notice, comment, and advance

publication procedure that ordinarily

precedes the adoption of Commission

rules. For purposes of invoking the

section 553(b) exemption from

publishing a notice of proposed

rulemaking which solicits public

comment, the Commission finds that (1)

the interim rules are ‘‘agency rules of

procedure or practice’’; and (2) because

the new legislation becomes effective on

the date of enactment in the case of the

administrative protective order

provision, and is projected to become

effective within 1 month in the case of

the other provisions, it clearly would be

‘‘impracticable’’ for the Commission to

comply with the usual notice, comment,

and advance publication procedure. For

the purpose of invoking the section

553(d)(3) exemption from publishing

advance notice of the interim rules

thirty days prior to their effective date,

the Commission finds that the fact that

the new legislation either becomes

effective on the date of enactment or is

expected to become effective within 1

month after enactment makes such

advance publication impossible and

constitutes ‘‘good cause’’ for the

Commission not to comply with that

requirement.

The Commission recognizes that

interim regulations should not respond

to anything more than the exigencies

created by the new legislation. Having

been promulgated in response to

exigencies created by the new

legislation, each interim rule

accordingly comes under one or more of

the following categories:

(1) revision of a pre-existing rule that

conflicted with the new legislation;

(2) a technical amendment to make a

pre-existing rule conform to the

language of the new legislation;

(3) rewording of a pre-existing rule to

avoid confusion about how the rule is

to be applied in light of the new

legislation; or

(4) a new rule covering a matter

provided for in the new legislation but

not covered by a pre-existing rule.

Because the interim regulations

merely respond to exigencies created by

the new legislation, the Commission has

further determined that they do not

meet the criteria described in section

3(f) of Executive Order (EO) 12866 (58

FR 51735, Oct. 4, 1993) and do not

constitute a significant regulatory action

for purposes of the EO.

In accordance with the Regulatory

Flexibility Act (5 U.S.C. § 601 note), the

Commission hereby certifies pursuant to

5 U.S.C. § 605(b) that the rules set forth

in this notice are not likely to have a

significant impact on a substantial

number of small business entities. In

any event, the Regulatory Flexibility Act

is inapplicable to this rulemaking

because it is not one in which a notice

of proposed rulemaking is required

under 5 U.S.C. § 553(b).

Explanation of Proposed Amendments

Section 206.2, which provides for the

identification of type of petition or

request, is amended to include a

reference to petitions for extension of

relief actions filed under section 204(c)

of the Trade Act and Subpart F of Part

206 of the Commission’s rules. Section

302(d) of the URAA amends section 204

to provide for the filing of such

petitions.

Section 206.3, concerning institution

of investigations, publication of notice,

and availability of petitions for public

inspection, is revised to add

subheadings and to indicate that there

are exceptions to the general rule that

the Commission will institute an

investigation after receipt of a petition—

namely, as set out in section 206.15(b).

Section 206.5, concerning public

hearings, is amended by adding a new

paragraph (c) to state that the

Commission will hold a public hearing

in connection with each investigation

under Subpart F of Part 206 of the

Commission’s rules concerning whether

an action taken by the President under

section 203 of the Trade Act should be

extended. Section 204(c) of the Trade

Act, as amended by section 302(d) of the

URAA, requires that the Commission

hold a public hearing in connection

with each such investigation. Current

paragraph (c) of rule section 206.5 is

redesignated as paragraph (d). Two

minor editorial changes are made in

paragraphs (a) and (d).

Section 206.6, concerning

Commission reports to the President, is

amended by adding new subheadings

and redesignating paragraphs, and by

adding language to clarify what

information will be included in all

Commission reports to the President

under Part 206, and what additional

findings and information will be

included in reports containing

determinations under section 202(b) of

the Trade Act and section 302(b) of the

North American Free Trade Agreement

Implementation Act.

Section 206.7, concerning

confidential business information, is

retitled and subdivided into two

paragraphs. Paragraph (a) largely tracks

the current rule and states that the

Commission will not release

confidential business information

except under the circumstances

indicated. Language is added to provide

notice that the Commission, when

appropriate, will include confidential

business information in reports

furnished to the President; this language

reflects longstanding Commission

practice, and Commission

questionnaires issued in connection

with investigations under section 202 of

the Trade Act routinely provide notice

of this possibility. Paragraph (b) is new.

It requires, except as the Commission

may otherwise provide, that parties

submitting confidential business

information must also submit

nonconfidential summaries of such

information. It further states the

circumstances under which the

Commission may disregard the

information when the party does not

provide a summary. Section 301(a) of

the URAA amended section 202(a)(8) of

the Trade Act to provide that the

Commission may request that parties

furnish such summaries and to

authorize the Commission to disregard a

confidential submission when it finds

that a request for confidentiality is not

warranted and the party concerned is

either unwilling to make the

information public or to authorize its
Federal Register / Vol. 60, No. 1 / Tuesday, January 3, 1995 / Rules and Regulations 9

disclosure in generalized or summarized

form.

Section 206.8 is new, and has been

added to provide a general service,

filing, and certification requirement to

supplement the more specific service

and filing requirements in new § 206.17

of these rules relating to documents

subject to disclosure under

administrative protective order. New

§ 206.8 parallels § 207.3 of current

Commission rules, which performs a

similar function in conjunction with

§ 207.7 of the rules. The Commission

traditionally has provided for service of

documents in investigations covered by

this Part 206 in its notices of

investigation published in the Federal

Register. However, the Commission

believes that the inclusion of specific

requirements in § 206.17 for documents

subject to an administrative protective

order without including requirements of

general application may give rise to

confusion on the part of submitters of

documents as to applicable Commission

requirements. In general, new § 206.8

reflects current Commission practice in

investigations under Part 206, and

would be made applicable to all

investigations conducted under this

part.

Section 206.12, concerning

definitions applicable to Subpart B of

Part 206 of the Commission’s rules, is

amended to delete paragraphs (c) and

(d), which provide cross references to

the statutory provisions where the terms

‘‘critical circumstances’’ and

‘‘perishable agricultural product’’ are

defined. Because of amendments made

by section 301(d) of the URAA to the

critical circumstances provision in

section 202, the cross reference in

paragraph (c) is no longer accurate.

However, the inclusion of cross

references was viewed as unnecessary.

Section 206.13, concerning who may

file a petition, has been divided. As

amended, it contains the text of what

was formerly paragraph (a). The text

formerly in paragraphs (b) and (c) of that

section, which described two

circumstances under which the

Commission would not institute an

investigation after receipt of a petition,

was moved to new section 206.15,

relating to institution of investigations,

where it was combined with two

additional circumstances.

Section 206.14, concerning contents

of petitions, is amended in three

respects. First, in the introductory

paragraph, wording is added that directs

petitioners, in stating whether

provisional relief is sought, to state

whether they are asserting that critical

circumstances exist. Second, paragraph

(e)(2)(i) is amended to include

‘‘productivity’’ in the list of economic

factors relating to threat of injury for

which a petitioner is directed to provide

data in its petition. Section 301(e)(1) of

the URAA added ‘‘productivity’’ to the

list of economic factors in section

202(c)(1)(B)(i) of the Trade Act that the

Commission is to take into account in

determining whether an industry is

threatened with serious injury. Third,

paragraph (j), which describes the

information to be provided in a petition

when critical circumstances are alleged,

is amended to reflect the new statutory

standard relating to the critical

circumstances in amended section

202(d)(2) of the Trade Act.

Section 206.15, concerning institution

of an investigation, is a new rule.

Paragraph (a) sets forth the general rule

that the Commission will institute an

investigation after receiving a petition,

otherwise properly filed, under Subpart

B of Part 206 of the rules. Paragraph (b)

sets out four circumstances in which the

Commission will not institute an

investigation. These follow the

limitations on Commission

investigations set forth in section 202(h)

of the Trade Act. Section 301(f) of the

URAA amended section 202(h) to,

among other things, clarify when a

product subject to the WTO Agreement

on Textiles and Clothing will become

eligible for a Commission safeguard

investigation.

Current rule section 206.15, which

concerns industry adjustment plans and

commitments, is redesignated as section

206.16, and current rule sections 206.16

and 206.17 are redesignated as sections

206.18 and 206.19, respectively.

Section 206.17, which sets forth rules

for providing limited disclosure of

confidential business information under

administrative protective order, is new.

Section 301(b) of the URAA amended

section 202 of the Trade Act to add a

new subsection (i) that requires the

Commission to promulgate regulations

to provide for disclosure of confidential

business information, under an

administrative protective order, to

authorized representatives of interested

parties who are parties to an

investigation under section 202. The

Statement of Administrative Action

approved by the URAA states that it is

expected that the Commission

regulations will generally parallel the

appropriate provisions of section 777 of

the Tariff Act of 1930 (19 U.S.C. 1677f)

and the regulations issued under that

section. New section 206.17 is modeled

after Commission rule section 207.7,

which sets forth rules providing for

limited disclosure of confidential

business information under

administrative protective order in

Commission investigations under the

antidumping and countervailing duty

laws in the Tariff Act of 1930. Section

206.17 includes wording that parallels

amendments to section 207.7 of the

rules scheduled to become effective on

or about January 27, 1995. The term

‘‘confidential business information’’ is

substituted for the term ‘‘business

proprietary information,’’ and certain

other changes are made to reflect the

differences between the two statutes.

The definition of ‘‘interested parties’’ in

paragraph (a)(3)(iii) is based on that

found in section 771(9) of the Tariff Act

of 1930 (19 U.S.C. 1677(9)).

Section 206.18 (formerly designated

as section 206.16), which sets forth the

times for Commission determinations

and reports under Subpart B, is

amended to reflect the new statutory

times for determinations and reports

when critical circumstances are alleged.

As provided under section 202(d)(2) of

the Trade Act, as amended by section

301(d) of the URAA, the Commission is

required to make a critical

circumstances determination within 60

days of the filing of a petition alleging

such circumstances. When critical

circumstances are alleged, the

Commission will commence the regular

120-day injury phase of its investigation

only after it completes the 60-day

critical circumstances phase, and the

Commission will submit its report on its

investigation to the President not later

than 240 days after the petition was

filed, the request or resolution received,

or the motion adopted.

Section 206.34, which sets forth the

requirements concerning the contents of

a petition filed under Subpart D of Part

206 with regard to imports from a

NAFTA country, is amended in three

respects. First, in the introductory

paragraph, language is added that

directs petitioners, in stating whether

provisional relief is sought, to state

whether they are asserting that critical

circumstances exist. Second, paragraph

(e)(2)(i) is amended to include

‘‘productivity’’ in the list of economic

factors for which a petitioner is directed

to provide data in its petition. Third,

paragraph (i), which describes the

information to be provided in a petition

when critical circumstances are alleged,

is amended to reflect the new statutory

standard relating to the critical

circumstances. These changes parallel

changes made in section 206.14 of these

rules with respect to petitions filed

under Subpart B of Part 206. Section

302(c) of the NAFTA Implementation

Act (19 U.S.C. 3352(c)) makes

applicable to investigations conducted

by the Commission under section 302(b)

of the NAFTA Implementation Act the
10 Federal Register / Vol. 60, No. 1 / Tuesday, January 3, 1995 / Rules and Regulations

factors applied in making

determinations set forth in section

202(c) of the Trade Act and the

provisional relief provisions in section

202(d) of the Trade Act.

Section 206.35, which sets forth the

times for Commission determinations

and reports under Subpart D with

respect to imports from a NAFTA

country, is amended at paragraph (c) to

reflect the change in time for making

and reporting determinations

concerning whether critical

circumstances exist.

Section 206.52, concerning

monitoring, is amended to reflect the

change in timing of Commission

monitoring reports under section 204(a)

of the Trade Act. Section 204(a), as

amended by section 302(c)(1) of the

URAA, requires the Commission to

submit reports on monitoring at the

mid-point of the initial period of relief

or any extension thereof, provided that

the initial period of relief or the

extension exceeds 3 years in duration.

Section 206.53, concerning

investigations to provide certain

probable economic effect advice to the

President, is amended to delete

reference to the term ‘‘extension,’’ to

reflect deletion of this term from section

204(b) of the Trade Act by section

302(c)(2) of the URAA.

Section 206.54 is new and provides

for Commission investigations and

determinations with respect to

extension of relief actions in response to

a request or petition under amended

section 204(c) of the Trade Act. Section

204(c) of the Trade Act, as amended by

section 302(d)(2) of the URAA, provides

that the Commission, upon the request

of the President or upon petition by the

concerned industry, is to investigate to

determine whether action under section

203 of the Trade Act continues to be

necessary to prevent or remedy serious

injury and whether there is evidence

that the industry is making a positive

adjustment to import competition.

Industry petitions must be filed not

earlier than 9 months or later than 6

months before action under section 203

is to terminate. The Commission is

required to hold a public hearing in the

course of its investigation and to

transmit its report to the President not

later than 60 days before the action

under section 203 is due to terminate,

unless the President specifies a different

date. The rule provides for the

institution of investigations, states who

may file a petition and when, describes

the information to be included in a

petition, states when the Commission

will make its report to the President,

and states that the Commission will

make its report available to the public

(with the exception of confidential

business information). Section 206.5(c)

of these rules states that the

Commission will hold a public hearing

in connection with each investigation

under section 204(c) of the Trade Act.

Section 206.54 also provides for the

limited disclosure under administrative

protective order of confidential business

information in the same manner as

provided under section 206.17 of these

rules.

Former section 206.54, which

concerns investigations to evaluate the

effectiveness of relief, has been

redesignated as section 206.55.

List of Subjects in 19 CFR Part 206

Administrative practice and

procedure, Investigations, Imports.

PART 206—[AMENDED]

19 CFR Part 206 is amended as

follows:

1. The authority citation for Part 206

is revised to read as follows:

Authority: 19 U.S.C. 1335, 2251–2254,

3351–3382; secs. 103, 301–302, Pub. L. 103–

465, 108 Stat. 4809.

2. Subpart A is revised to read as

follows:

Subpart A—General

206.2 Identification of type of petition or

request.

206.3 Institution of investigations;

publication of notice; availability of

petition for public inspection.

206.4 Notification of other agencies.

206.5 Public hearing.

206.6 Report to the President.

206.7 Confidential business information;

furnishing of nonconfidential summaries

thereof.

206.8 Service, filing, and certification of

documents.

Subpart A—General

§ 206.2 Identification of type of petition or

request.

An investigation under this Part 206

may be commenced on the basis of a

petition, request, resolution, or motion

described in section 202(a)(1), 204(c)(1),

or 406(a)(1) of the Trade Act of 1974 or

section 302(a)(1) or 312(c)(1) of the

North American Free Trade Agreement

Implementation Act. Each petition or

request, as the case may be, filed by an

entity representative of a domestic

industry under this Part 206 shall state

clearly on the first page thereof ‘‘This is

a [petition or request] under section

[202, 204(c), or 406 of the Trade Act of

1974, or section 302 or 312(c) of the

North American Free Trade Agreement

Implementation Act] and Subpart [B, C,

D, E, or F] of Part 206 of the rules of

practice and procedure of the United

States International Trade

Commission’’.

§ 206.3 Institution of investigations;

publication of notice; availability of petition

for public inspection.

(a) Institution of investigation and

publication of notice. Except as

provided in § 206.15(b), the

Commission, after receipt of a petition

or request under Part 206, properly

filed, will promptly institute an

appropriate investigation and publish

notice thereof in the Federal Register.

(b) Contents of notice. The notice will

identify the petitioner or other

requestor, the imported article that is

the subject of the investigation and its

tariff subheading, the nature and timing

of the determination to be made, the

time and place of any public hearing,

dates of deadlines for filing briefs,

statements, and other documents, the

place at which the petition or request

and any other documents filed in the

course of the investigation may be

inspected, and the name, address, and

telephone number of the office that may

be contacted for more information.

(c) Availability for public inspection.

The Commission will promptly make

such petition or request available for

public inspection (with the exception of

confidential business information).

§ 206.4 Notification of other agencies.

The Commission will promptly

transmit copies of petitions or requests

filed and notification of investigations

instituted to the Office of the United

States Trade Representative (hereinafter

USTR), the Secretary of Commerce, the

Secretary of Labor, and other Federal

agencies directly concerned.

§ 206.5 Public hearing.

(a) Investigations under subpart B of

this part. A public hearing on the

question of injury and a second public

hearing on remedy (if necessary) will be

held in connection with each

investigation instituted under Subpart B

of this Part after reasonable notice

thereof has been caused to be published

in the Federal Register. A hearing on

remedy is not necessary if the

Commission has made a negative

determination on the question of injury.

(b) Investigations under subparts C, D,

and E of this part. A public hearing on

the subject of injury and remedy will be

held in connection with each

investigation instituted under subparts

C, D, and E of this part after reasonable

notice thereof has been published in the

Federal Register.

(c) Investigations under subpart F of

this part. A public hearing on the

subject of whether an action taken
Federal Register / Vol. 60, No. 1 / Tuesday, January 3, 1995 / Rules and Regulations 11

under section 203 of the Trade Act of

1974 should be extended will be held in

connection with each investigation

instituted under subpart F of this part

after reasonable notice thereof has been

published in the Federal Register.

(d) Opportunity to appear and to

cross-question. All interested parties

and consumers, including any

association representing the interests of

consumers, will be afforded an

opportunity to be present, to present

evidence, to comment on the adjustment

plan, if any, submitted in the case of an

investigation under section 202(b) of the

Trade Act of 1974, and to be heard at

such hearings. All interested parties and

consumers, including any association

representing the interests of consumers,

will be afforded an opportunity to crossquestion interested parties making

presentations at the hearing.

§ 206.6 Report to the President.

(a) In general. The Commission will

include in its report to the President the

following:

(1) The determination made and an

explanation of the basis for the

determination;

(2) If the determination is affirmative,

to the extent appropriate, the

recommendations for action and an

explanation of the basis for each

recommendation;

(3) Any dissenting or separate views

by members of the Commission

regarding the determination and any

recommendations;

(b) Additional findings and

information.

(1) In the case of a determination

made under section 202(b) of the Trade

Act, the Commission will also include

in its report the following:

(i) The findings with respect to the

results of an examination of the factors

other than imports which may be a

cause of serious injury or threat thereof

to the domestic industry;

(ii) A copy of the adjustment plan, if

any, submitted by the petitioner;

(iii) Commitments submitted and

information obtained by the

Commission regarding steps that firms

and workers in the domestic industry

are taking, or plan to take, to facilitate

positive adjustment to import

competition;

(iv) A description of the short- and

long-term effects that implementation of

the action recommended is likely to

have on the petitioning domestic

industry, other domestic industries, and

consumers; and

(v) A description of the short- and

long-term effects of not taking the

recommended action on the petitioning

domestic industry, its workers and

communities where production

facilities of such industry are located,

and other domestic industries.

(2) In the case of a determination

made under section 302(b) of the

NAFTA Implementation Act, the

Commission will also include in its

report the findings with respect to the

results of an examination of the factors

other than imports which may be a

cause of serious injury or threat thereof

to the domestic industry.

§ 206.7 Confidential business information;

furnishing of nonconfidential summaries

thereof.

(a) Nonrelease of information. Except

as provided for in § 206.17, in the case

of an investigation under Subpart B, C,

D, or F of this Part, the Commission will

not release information which the

Commission considers to be

confidential business information

within the meaning of § 201.6 unless the

party submitting the confidential

business information had notice, at the

time of submission, that such

information would be released by the

Commission, or such party subsequently

consents to the release of the

information. When appropriate, the

Commission will include confidential

business information in reports

transmitted to the President and the

Trade Representative; such reports will

be marked as containing confidential

business information, and a

nonconfidential version of such report

will be made available to the public.

(b) Nonconfidential summaries.

Except as the Commission may

otherwise provide, a party submitting

confidential business information shall

also submit to the Commission, at the

time it submits such information, a

nonconfidential summary of the

information. If a party indicates that the

confidential business information

cannot be summarized, it shall state in

writing the reasons why a summary

cannot be provided. If the Commission

finds that a request for confidentiality is

not warranted and if the party

concerned is either unwilling to make

the information public or to authorize

its disclosure in generalized or

summarized form, the Commission may

disregard the submission.

§ 206.8 Service, filing, and certification of

documents.

(a) Certification. Any person

submitting factual information on behalf

of the petitioner or any other interested

party for the consideration of the

Commission in the course of an

investigation to which this part pertains,

and any person submitting a response to

a Commission questionnaire issued in

connection with an investigation to

which this part pertains, must certify

that such information is accurate and

complete to the best of the submitter’s

knowledge.

(b) Service. Any party submitting a

document for the consideration of the

Commission in the course of an

investigation to which this part pertains

shall, in addition to complying with

§ 201.8 of this chapter, serve a copy of

the public version of such document on

all other parties to the investigation in

the manner prescribed in § 201.16 of

this chapter, and, when appropriate,

serve a copy of the confidential version

of such document in the manner

provided for in § 206.17(f). 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 § 206.17, 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 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, upon request, to all

parties to the investigation a copy of

each document, except transcripts of

hearings, confidential business

information, privileged information, and

information required to be served under

this section, placed in the docket file of

the investigation by the Commission.

(c) Filing. Documents to be filed with

the Commission must comply with

applicable rules, including § 201.8 of

this chapter. If the Commission

establishes a deadline for the filing of a

document, and the submitter includes

confidential business information in the

document, the submitter is to file and,

if the submitter is a party, serve the

confidential version of the document on

the deadline and may file and serve the

nonconfidential version of the

document no later than one business

day after the deadline for filing the

document. The confidential version

shall enclose all confidential business

information in brackets and have the

following warning marked on every

page: ‘‘Bracketing of CBI not final for

one business day after date of filing.’’

The bracketing becomes final one

business day after the date of filing of

the document, i.e., at the same time as
12 Federal Register / Vol. 60, No. 1 / Tuesday, January 3, 1995 / Rules and Regulations

the nonconfidential version of the

document is due to be filed. Until the

bracketing becomes final, recipients of

the document may not divulge any part

of the contents of the document to

anyone not subject to the administrative

protective order issued in the

investigation. If the submitter discovers

it has failed to bracket correctly, the

submitter may file a corrected version or

portion of the confidential document at

the same time as the nonconfidential

version is filed. No changes to the

document other than bracketing and

deletion of confidential business

information are permitted after the

deadline. Failure to comply with this

paragraph may result in the striking of

all or a portion of a submitter’s

document.

3. Subpart B is revised to read as

follows:

Subpart B—Investigations Relating to

Global Safeguard Actions

206.11 Applicability of Subpart.

206.12 Definitions applicable to Subpart B

of this part.

206.13 Who may file a petition.

206.14 Contents of petition.

206.15 Institution of investigation.

206.16 Industry adjustment plan and

commitments.

206.17 Limited disclosure of certain

confidential business information under

administrative protective order.

206.18 Time for determinations, reporting.

206.19 Public report.

Subpart B—Investigations Relating to

Global Safeguard Actions

§ 206.11 Applicability of subpart.

This subpart B applies specifically to

investigations under section 202(b) of

the Trade Act. For other applicable

rules, see subpart A of this part and part

201 of this chapter.

§ 206.12 Definitions applicable to subpart

B of this part.

For the purposes of this Subpart, the

following terms have the meanings

hereby assigned to them:

(a) Adjustment plan means a plan to

facilitate positive adjustment to import

competition submitted by a petitioner to

the Commission and USTR either with

the petition or at any time within 120

days after the date of filing of the

petition.

(b) Commitment means commitments

that a firm in the domestic industry, a

certified or recognized union or group of

workers in the domestic industry, a

local community, a trade association

representing the domestic industry, or

any other person or group of persons

submits to the Commission regarding

actions such persons and entities intend

to take to facilitate positive adjustment

to import competition.

§ 206.13 Who may file a petition.

A petition under this Subpart B may

be filed by an entity, including a trade

association, firm, certified or recognized

union, or group of workers, that is

representative of a domestic industry

producing an article like or directly

competitive with a foreign article that is

allegedly being imported into the

United States in such increased

quantities as to be a substantial cause of

serious injury, or the threat thereof, to

such domestic industry.

§ 206.14 Contents of petition.

A petition under this Subpart B shall

include specific information in support

of the claim that an article is being

imported into the United States in such

increased quantities as to be a

substantial cause of serious injury, or

the threat thereof, to the domestic

industry producing an article like or

directly competitive with the imported

article. Such petition shall state whether

provisional relief is sought because

critical circumstances exist or because

the imported article is a perishable

agricultural product. In addition, such

petition shall include the following

information, to the extent that such

information is available from

governmental or other sources, or best

estimates and the basis therefor if such

information is not available:

(a) Product description. The name and

description of the imported article

concerned, specifying the United States

tariff provision under which such article

is classified and the current tariff

treatment thereof, and the name and

description of the like or directly

competitive domestic article concerned;

(b) Representativeness. (1) The names

and addresses of the firms represented

in the petition and/or the firms

employing or previously employing the

workers represented in the petition and

the locations of their establishments in

which the domestic article is produced;

(2) The percentage of domestic

production of the like or directly

competitive domestic article that such

represented firms and/or workers

account for and the basis for claiming

that such firms and/or workers are

representative of an industry; and

(3) The names and locations of all

other producers of the domestic article

known to the petitioner;

(c) Import data. Import data for at

least each of the most recent 5 full years

which form the basis of the claim that

the article concerned is being imported

in increased quantities, either actual or

relative to domestic production;

(d) Domestic production data. Data on

total U.S. production of the domestic

article for each full year for which data

are provided pursuant to paragraph (c)

of this section;

(e) Data showing injury. Quantitative

data indicating the nature and extent of

injury to the domestic industry

concerned:

(1) With respect to serious injury, data

indicating:

(i) A significant idling of production

facilities in the industry, including data

indicating plant closings or the

underutilization of production capacity;

(ii) The inability of a significant

number of firms to carry out domestic

production operations at a reasonable

level of profit; and

(iii) Significant unemployment or

underemployment within the industry;

and/or

(2) With respect to the threat of

serious injury, data relating to:

(i) A decline in sales or market share,

a higher and growing inventory

(whether maintained by domestic

producers, importers, wholesalers, or

retailers), and a downward trend in

production, profits, wages, productivity,

or employment (or increasing

underemployment);

(ii) The extent to which firms in the

industry are unable to generate adequate

capital to finance the modernization of

their domestic plants and equipment, or

are unable to maintain existing levels of

expenditures for research and

development;

(iii) The extent to which the U.S.

market is the focal point for the

diversion of exports of the article

concerned by reason of restraints on

exports of such article to, or on imports

of such article into, third country

markets; and

(3) Changes in the level of prices,

production, and productivity.

(f) Cause of injury. An enumeration

and description of the causes believed

to be resulting in the injury, or threat

thereof, described under paragraph (e)

of this section, and a statement

regarding the extent to which increased

imports, either actual or relative to

domestic production, of the imported

article are believed to be such a cause,

supported by pertinent data;

(g) Relief sought and purpose thereof.

A statement describing the import relief

sought, including the type, amount, and

duration, and the specific purposes

therefor, which may include facilitating

the orderly transfer of resources to more

productive pursuits, enhancing

competitiveness, or other means of

adjustment to new conditions of

competition;
Federal Register / Vol. 60, No. 1 / Tuesday, January 3, 1995 / Rules and Regulations 13

(h) Efforts to compete. A statement on

the efforts being taken, or planned to be

taken, or both, by firms and workers in

the industry to make a positive

adjustment to import competition.

(i) Imports from NAFTA countries.

Quantitative data indicating the share of

imports accounted for by imports from

each NAFTA country (Canada and

Mexico), and petitioner’s view on the

extent to which imports from such

NAFTA country or countries are

contributing importantly to the serious

injury, or threat thereof, caused by total

imports of such article.

(j) Critical circumstances. If the

petition alleges the existence of critical

circumstances, a statement setting forth

the basis for the belief that there is clear

evidence that increased imports (either

actual or relative to domestic

production) of the article are a

substantial cause of serious injury, or

the threat thereof, to the domestic

industry, and that delay in taking action

would cause damage to that industry

that would be difficult to repair, and a

statement concerning the provisional

relief requested and the basis therefor.

§ 206.15 Institution of investigation.

(a) In general. Except as provided in

paragraph (b) of this section, the

Commission, after receipt of a petition

under this Subpart B, properly filed,

will promptly institute an appropriate

investigation and will cause a notice

thereof to be published in the Federal

Register.

(b) Exceptions.

(1) Reinvestigation within one (1)

year. Except for good cause determined

by the Commission to exist, no new

investigation will be made under

section 202 of the Trade Act with

respect to the same subject matter as a

previous investigation under section

202 unless one (1) year has elapsed

since the Commission made its report to

the President of the results of such

previous investigation.

(2) Articles subject to prior action. No

new investigation will be made under

section 202 of the Trade Act with

respect to an article that is or has been

the subject of an action under section

203(a) (3)(A), (B), (C), or (E) of the Trade

Act if the last day on which the

President could take action under

section 203 of the Trade Act in the new

investigation is a date earlier than that

permitted under section 203(e)(7) of the

Trade Act.

(3) Articles subject to the Textiles

Agreement. No investigation will be

made under section 202 of the Trade

Act with respect to an article that is the

subject of the WTO Agreement on

Textiles and Clothing unless the United

States has integrated the article into

GATT 1994 and the Secretary of

Commerce has published notice to such

effect in the Federal Register.

(4) Perishable agricultural product.

An entity of the type described in

§ 206.13 that represents a domestic

industry producing a perishable

agricultural product may petition for

provisional relief with respect to such

product only if such product has been

subject to monitoring by the

Commission for not less than 90 days as

of the date the allegation of injury is

included in the petition.

§ 206.16 Industry adjustment plan and

commitments.

(a) Adjustment plan. A petitioner may

submit to the Commission, either with

the petition or at any time within 120

days after the date of filing of the

petition, a plan to facilitate positive

adjustment to import competition.

(b) Commitments. If the Commission

makes an affirmative injury

determination, any firm in the domestic

industry, certified or recognized union

or group of workers in the domestic

industry, local community, trade

association representing the domestic

industry, or any other person or group

of persons may, individually, submit to

the Commission commitments regarding

actions such persons and entities intend

to take to facilitate positive adjustment

to import competition.

§ 206.17 Limited disclosure of certain

confidential business information under

administrative protective order.

(a)(1) Disclosure. Upon receipt of a

timely application filed by an

authorized applicant, as defined in

paragraph (a)(3) of this section, which

describes in general terms the

information requested, and sets forth the

reasons for the request (e.g., all

confidential business information

properly disclosed pursuant to this

section for the purpose of representing

an interested party in investigations

pending before the Commission), the

Secretary shall make available all

confidential business information

contained in Commission memoranda

and reports and in written submissions

filed with the Commission at any time

during the investigation (except

privileged information, classified

information, and specific information of

a type which there is a clear and

compelling need to withhold from

disclosure, e.g., trade secrets) to the

authorized applicant under an

administrative protective order

described in paragraph (b) of this

section. The term ‘‘confidential business

information’’ is defined in § 201.6 of

this chapter.

(2) Application. An application under

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

made by an authorized applicant on a

form adopted by the Secretary or a

photocopy thereof. An application on

behalf of an authorized applicant must

be made no later than the time that

entries of appearance are due pursuant

to § 201.11 of this chapter. In the event

that two or more authorized applicants

represent one interested party who is a

party to the investigation, the

authorized applicants must select one of

their number to be lead authorized

applicant. The lead authorized

applicant’s application must be filed no

later than the time that entries of

appearance are due. Provided that the

application is accepted, the lead

authorized applicant shall be served

with confidential business information

pursuant to paragraph (f) of this section.

The other authorized applicants

representing the same party may file

their applications after the deadline for

entries of appearance but at least five (5)

days before the deadline for filing

posthearing briefs in the investigation,

and shall not be served with

confidential business information.

(3) Authorized applicant. (i) Only an

authorized applicant may file an

application under this subsection. An

authorized applicant is:

(A) An attorney for an interested party

which is a party to the investigation;

(B) A consultant or expert under the

direction and control of a person under

paragraph (a)(3)(i)(A) of this section;

(C) A consultant or expert who

appears regularly before the

Commission and who represents an

interested party which is a party to the

investigation; or

(D) A representative of an interested

party which is a party to the

investigation, if such interested party is

not represented by counsel.

(ii) In addition, an authorized

applicant must not be involved in

competitive decisionmaking for an

interested party which is a party to the

investigation. Involvement in

‘‘competitive decisionmaking’’ includes

past, present, or likely future activities,

associations, and relationships with an

interested party which is a party to the

investigation that involve the

prospective authorized applicant’s

advice or participation in any of such

party’s decisions made in light of

similar or corresponding information

about a competitor (pricing, product

design, etc.).

(iii) For purposes of this § 206.17, the

term ‘‘interested party’’ means:
14 Federal Register / Vol. 60, No. 1 / Tuesday, January 3, 1995 / Rules and Regulations

(A) A foreign manufacturer, producer,

or exporter, or the United States

importer, of an article which is the

subject of an investigation under this

section or a trade or business

association a majority of the members of

which are producers, exporters, or

importers of such article;

(B) The government of a country in

which such article is produced or

manufactured;

(C) A manufacturer, producer, or

wholesaler in the United States of a like

or directly competitive article;

(D) A certified union or recognized

union or group of workers which is

representative of an industry engaged in

the manufacture, production, or

wholesale of a like or directly

competitive article in the United States;

(E) A trade or business association a

majority of whose members

manufacture, produce, or wholesale a

like or directly competitive article in the

United States; and

(F) An association, a majority of

whose members is composed of

interested parties described in

paragraphs (a)(3)(iii) (C), (D), or (E) of

this section with respect to a like or

directly competitive article.

(4) Forms and determinations. (i) The

Secretary may adopt, from time to time,

forms for submitting requests for

disclosure pursuant to an administrative

protective order incorporating the terms

of this rule. The Secretary shall

determine whether the requirements for

release of information under this rule

have been satisfied. This determination

shall be made concerning specific

confidential business information as

expeditiously as possible but in no

event later than fourteen (14) days from

the filing of the information, except if

the submitter of the information objects

to its release or the information is

unusually voluminous or complex, in

which case the determination shall be

made within thirty (30) days from the

filing of the information. The Secretary

shall establish a list of parties whose

applications have been granted. The

Secretary’s determination shall be final.

(ii) Should the Secretary determine

pursuant to this section that materials

sought to be protected from public

disclosure by a person do not constitute

confidential business information or

were not required to be served under

paragraph (f) of this section, then the

Secretary shall, upon request, issue an

order on behalf of the Commission

requiring the return of all copies of such

materials served in accordance with

paragraph (f) of this section.

(iii) The Secretary shall release

confidential business information only

to an authorized applicant whose

application has been accepted and who

presents the application along with

adequate personal identification; or a

person described in paragraph (b)(1)(iv)

of this section who presents a copy of

the statement referred to in that

paragraph along with adequate personal

identification.

(b) Administrative protective order.

The administrative protective order

under which information is made

available to the authorized applicant

shall require him to submit to the

Secretary a personal sworn statement

that, in addition to such other

conditions as the Secretary may require,

he shall:

(1) Not divulge any of the confidential

business information obtained under the

administrative protective order and not

otherwise available to him, to any

person other than

(i) Personnel of the Commission

concerned with the investigation,

(ii) The person or agency from whom

the confidential business information

was obtained,

(iii) A person whose application for

access to confidential business

information under the administrative

protective order has been granted by the

Secretary, and

(iv) Other persons, such as paralegals

and clerical staff, who are employed or

supervised by an authorized applicant;

who have a need thereof in connection

with the investigation; who are not

involved in competitive decisionmaking

on behalf of an interested party which

is a party to the investigation; and who

have submitted to the Secretary a signed

statement in a form approved by the

Secretary that they agree to be bound by

the administrative protective order (the

authorized applicant shall be deemed

responsible for such persons’

compliance with the administrative

protective order);

(2) Use such confidential business

information solely for the purposes of

the Commission investigation then in

progress;

(3) Not consult with any person not

described in paragraph (b)(1) of this

section concerning such confidential

business information without first

having received the written consent of

the Secretary and the party or the

attorney of the party from whom such

confidential business information was

obtained;

(4) Whenever materials (e.g.,

documents, computer disks, etc.)

containing such confidential business

information are not being used, store

such material in a locked file cabinet,

vault, safe, or other suitable container;

(5) Serve all materials containing

confidential business information as

directed by the Secretary and pursuant

to paragraph (f) of this section;

(6) Transmit all materials containing

confidential business information with a

cover sheet identifying the materials as

containing confidential business

information;

(7) Comply with the provisions of this

section;

(8) Make true and accurate

representations in the authorized

applicant’s application and promptly

notify the Secretary of any changes that

occur after the submission of the

application and that affect the

representations made in the application

(e.g., change in personnel assigned to

the investigation);

(9) Report promptly and confirm in

writing to the Secretary any breach of

the administrative protective order; and

(10) Acknowledge that breach of the

administrative protective order may

subject the authorized applicant to such

sanctions or other actions as the

Commission deems appropriate.

(c) Final disposition of material

released under administrative protective

order. At such date as the Secretary may

determine appropriate for particular

data, each authorized applicant shall

return or destroy all copies of materials

released to authorized applicants

pursuant to this section and all other

materials containing confidential

business information, such as charts or

notes based on any such information

received under administrative

protective order, and file with the

Secretary a certificate attesting to his

personal, good faith belief that all copies

of such material have been returned or

destroyed and no copies of such

material have been made available to

any person to whom disclosure was not

specifically authorized.

(d) Commission responses to a breach

of administrative protective order. A

breach of an administrative protective

order may subject an offender to:

(1) Disbarment from practice in any

capacity before the Commission along

with such person’s partners, associates,

employer, and employees, for up to

seven years following publication of a

determination that the order has been

breached;

(2) Referral to the United States

Attorney;

(3) In the case of an attorney,

accountant, or other professional,

referral to the ethics panel of the

appropriate professional association;

(4) Such other administrative

sanctions as the Commission determines

to be appropriate, including public

release of or striking from the record any

information or briefs submitted by, or

on behalf of, the offender or the party
Federal Register / Vol. 60, No. 1 / Tuesday, January 3, 1995 / Rules and Regulations 15

represented by the offender, denial of

further access to confidential business

information in the current or any future

investigations before the Commission,

and issuance of a public or private letter

of reprimand; and

(5) Such other actions, including but

not limited to, a warning letter, as the

Commission determines to be

appropriate.

(e) Breach investigation procedure. (1)

The Commission shall determine

whether any person has violated an

administrative protective order, and

may impose sanctions or other actions

in accordance with paragraph (d) of this

section. At any time within sixty (60)

days of the later of

(i) the date on which the alleged

violation occurred or, as determined by

the Commission, could have been

discovered through the exercise of

reasonable and ordinary care; or

(ii) the completion of an investigation

conducted under this subpart, the

Commission may commence an

investigation of any breach of an

administrative protective order alleged

to have occurred at any time during the

pendency of the investigation, including

all appeals, remands, and subsequent

appeals. Whenever the Commission has

reason to believe that a person may have

breached an administrative protective

order issued pursuant to this section,

the Secretary shall issue a letter

informing such person that the

Commission has reason to believe a

breach has occurred and that the person

has a reasonable opportunity to present

his views on whether a breach has

occurred. If subsequently the

Commission determines that a breach

has occurred and that further

investigation is warranted, then the

Secretary shall issue a letter informing

such person of that determination and

that the person has a reasonable

opportunity to present his views on

whether mitigating circumstances exist

and on the appropriate sanction to be

imposed, but no longer on whether a

breach has occurred. Once such person

has been afforded a reasonable

opportunity to present his views, the

Commission shall determine what

sanction if any to impose.

(2) Where the sanction imposed is a

private letter of reprimand, the

Secretary shall expunge the sanction

from the recipient’s record two (2) years

from the date of issuance of the

sanction, provided that

(i) the recipient has not received

another unexpunged sanction pursuant

to this section at any time prior to the

end of the two year period, and

(ii) the recipient is not the subject of

an investigation for possible breach of

administrative protective order under

this section at the end of the two year

period.

Upon the completion of such a

pending breach investigation without

the issuance of a sanction, the original

sanction shall be expunged. The

Secretary shall notify a sanction

recipient in the event that the sanction

is expunged.

(f) Service. (1) Any party filing written

submissions which include confidential

business information to the Commission

during an investigation shall at the same

time serve complete copies of such

submissions upon all authorized

applicants specified on the list

established by the Secretary pursuant to

paragraph (a)(4) of this section, and,

except as provided in § 206.8(c), a

nonconfidential version on all other

parties. All such submissions must be

accompanied by a certificate attesting

that complete copies of the submission

have been properly served. In the event

that a submission is filed before the

Secretary’s list is established, the

document need not be accompanied by

a certificate of service, but the

submission shall be served within two

(2) days of the establishment of the list

and a certificate of service shall then be

filed.

(2) A party may seek an exemption

from the service requirement of

paragraph (f)(1) of this section for

particular confidential business

information by filing a request for

exemption from disclosure in

accordance with paragraph (g) of this

section. The Secretary shall promptly

respond to the request. If a request is

granted, the Secretary shall accept the

information. The party shall file three

versions of the submission containing

the information in accordance with

paragraph (g) of this section, and serve

the submission in accordance with the

requirements of § 206.8(b) and

paragraph (f)(1) of this section, with the

specific information as to which

exemption from disclosure under

administrative protective order has been

granted redacted from the copies served.

If a request is denied, the copy of the

information lodged with the Secretary

shall promptly be returned to the

requester.

(3) The Secretary shall not accept for

filing into the record of an investigation

submissions filed without a proper

certificate of service. Failure to comply

with paragraph (f) of this section may

result in denial of party status and such

sanctions as the Commission deems

appropriate. Confidential business

information in submissions must be

clearly marked as such when submitted,

and must be segregated from other

material being submitted.

(g) Exemption from disclosure.

(1) In general. Any person may

request exemption from the disclosure

of confidential business information

under administrative protective order,

whether the person desires to include

such information in a petition filed

under this Subpart B, or any other

submission to the Commission during

the course of an investigation. Such a

request shall only be granted if the

Secretary finds that such information is

privileged information, classified

information, or specific information of a

type which there is a clear and

compelling need to withhold from

disclosure.

(2) Request for exemption. A request

for exemption from disclosure must be

filed with the Secretary in writing with

the reasons therefor. At the same time

as the request is filed, one copy of the

confidential business information in

question must be lodged with the

Secretary solely for the purpose of

obtaining a determination as to the

request. The confidential business

information for which exemption from

disclosure is sought shall remain the

property of the requester, and shall not

become or be incorporated into any

agency record until such time as the

request is granted. A request should,

when possible, be filed two business

days prior to the deadline, if any, for

filing the document in which the

information for which exemption from

disclosure is sought is proposed to be

included. The Secretary shall promptly

notify the requester as to whether the

request has been approved or denied.

(3) Procedure if request is approved.

If the request is approved, the person

shall file three versions of the

submission containing the confidential

business information in question. One

version shall contain all confidential

business information, bracketed in

accordance with § 206.8(c), with the

specific information as to which

exemption from disclosure was granted

enclosed in double brackets. This

version shall have the following

warning marked on every page: ‘‘CBI

exempted from disclosure under APO

enclosed in double brackets.’’ The other

two versions shall conform to and be

filed in accordance with the

requirements of § 206.8, except that the

specific information as to which

exemption from disclosure was granted

shall be redacted from those versions of

the submission.

(4) Procedure if request is denied. If

the request is denied, the copy of the

information lodged with the Secretary
16 Federal Register / Vol. 60, No. 1 / Tuesday, January 3, 1995 / Rules and Regulations

shall promptly be returned to the

requester.

§ 206.18 Time for determinations,

reporting.

(a) In general. The Commission will

make its determination with respect to

injury within 120 days after the date on

which the petition is filed, the request

or resolution is received, or the motion

is adopted, as the case may be, except

that—

(1) if the Commission determines

before the 100th day that the

investigation is extraordinarily

complicated, the Commission will make

its determination within 150 days; or

(2) if critical circumstances are

alleged, the Commission will make its

determination within 120 days after

completion of its investigation with

respect to critical circumstances.

The Commission will make its report

to the President at the earliest

practicable time, but not later than 180

days (240 days if critical circumstances

are alleged) after the date on which the

petition is filed, the request or

resolution is received, or the motion is

adopted, as the case may be.

(b) Perishable agricultural product. In

the case of a request in a petition for

provisional relief with respect to a

perishable agricultural product that has

been the subject of monitoring by the

Commission, the Commission will

report its determination and any finding

to the President not later than 21 days

after the date on which the request for

provisional relief is received.

(c) Critical circumstances. If

petitioner alleges the existence of

critical circumstances in the petition,

the Commission will report its

determination regarding such allegation

and any finding on or before the 60th

day after such filing date.

§ 206.19 Public report.

Upon making a report to the President

of the results of an investigation to

which this Subpart B relates, the

Commission will make such report

public (with the exception of

information which the Commission

determines to be confidential) and cause

a summary thereof to be published in

the Federal Register.

Subpart D—Investigations Relating to

Bilateral Safeguard Actions

4. Section 206.34 is revised to read as

follows:

§ 206.34 Contents of petition.

A petition under this Subpart D shall

include specific information in support

of the claim that, as a result of the

reduction or elimination of a duty

provided for under the North American

Free Trade Agreement, a Canadian or

Mexican article, as the case may be, is

being imported into the United States in

such increased quantities (in absolute

terms) and under such conditions so

that imports of the article, alone,

constitute a substantial cause of serious

injury, or (except in the case of a

Canadian article) a threat of serious

injury, to the domestic industry

producing an article that is like or

directly competitive with the imported

article. Such petition shall state whether

provisional relief is sought because

critical circumstances exist or because

the imported article is a perishable

agricultural product. In addition, such

petition shall include the following

information, to the extent that such

information is publicly available from

governmental or other sources, or best

estimates and the basis therefor if such

information is not available:

(a) Product description. The name and

description of the imported article

concerned, specifying the United States

tariff provision under which such article

is classified and the current tariff

treatment thereof, and the name and

description of the like or directly

competitive domestic article concerned;

(b) Representativeness.

(1) The names and addresses of the

firms represented in the petition and/or

the firms employing or previously

employing the workers represented in

the petition and the locations of their

establishments in which the domestic

article is produced;

(2) The percentage of domestic

production of the like or directly

competitive domestic article that such

represented firms and/or workers

account for and the basis for claiming

that such firms and/or workers are

representative of an industry; and

(3) The names and locations of all

other producers of the domestic article

known to the petitioner;

(c) Import data. Import data for at

least each of the most recent 5 full years

that form the basis of the claim that the

Canadian or Mexican article concerned

is being imported in increased

quantities in absolute terms;

(d) Domestic production data. Data on

total U.S. production of the domestic

article for each full year for which data

are provided pursuant to paragraph (c)

of this section;

(e) Data showing injury. Quantitative

data indicating the nature and extent of

injury to the domestic industry

concerned:

(1) With respect to serious injury, data

indicating:

(i) A significant idling of production

facilities in the industry, including data

indicating plant closings or the

underutilization of production capacity;

(ii) The inability of a significant

number of firms to carry out domestic

production operations at a reasonable

level of profit; and

(iii) Significant unemployment or

underemployment within the industry;

and/or

(2) With respect to the threat of

serious injury, data relating to:

(i) A decline in sales or market share,

a higher and growing inventory

(whether maintained by domestic

producers, importers, wholesalers, or

retailers), and a downward trend in

production, profits, wages, productivity,

or employment (or increasing

underemployment);

(ii) The extent to which firms in the

industry are unable to generate adequate

capital to finance the modernization of

their domestic plants and equipment, or

are unable to maintain existing levels of

expenditures for research and

development;

(iii) The extent to which the U.S.

market is the focal point for the

diversion of exports of the article

concerned by reason of restraints on

exports of such article to, or on imports

of such article into, third country

markets; and

(3) Changes in the level of prices,

production, and productivity.

(f) Cause of injury. An enumeration

and description of the causes believed

to be resulting in the injury, or threat

thereof, described under paragraph (e)

of this section, and a statement

regarding the extent to which increased

imports of the Canadian or Mexican

article are believed to be such a cause,

supported by pertinent data;

(g) Relief sought and purpose thereof.

A statement describing the import relief

sought, including the type, amount, and

duration, and the specific purposes

therefor, which may include facilitating

the orderly transfer of resources to more

productive pursuits, enhancing

competitiveness, or other means of

adjustment to new conditions of

competition;

(h) Efforts to compete. A statement on

the efforts being taken, or planned to be

taken, or both, by firms and workers in

the industry to make a positive

adjustment to import competition.

(i) Critical circumstances. If the

petition alleges the existence of critical

circumstances, a statement setting forth

the basis for the belief that there is clear

evidence that increased imports (either

actual or relative to domestic

production) of the article are a

substantial cause of serious injury, or

the threat thereof, to the domestic

industry, and that delay in taking action
Federal Register / Vol. 60, No. 1 / Tuesday, January 3, 1995 / Rules and Regulations 17

would cause damage to that industry

that would be difficult to repair, and a

statement concerning the provisional

relief requested and the basis therefor.

5. Section 206.35 is revised to read as

follows:

§ 206.35 Time for determinations,

reporting.

(a) In general. The Commission will

make its determination with respect to

injury within 120 days after the date on

which the investigation is initiated. The

Commission will make its report to the

President no later than 30 days after the

date on which its determination is

made.

(b) Perishable agricultural product. In

the case of a request in a petition for

provisional relief with respect to a

perishable agricultural product that has

been the subject of monitoring by the

Commission, the Commission will

report its determination and any finding

to the President not later than 21 days

after the date on which the request for

provisional relief is received.

(c) Critical circumstances. If

petitioner alleges the existence of

critical circumstances in the petition,

the Commission will report its

determination regarding such allegation

and any finding on or before the 60th

day after such filing date.

6. Subpart F is revised to read as

follows:

Subpart F—Monitoring; Advice as to Effect

of Extension, Reduction, Modification, or

Termination of Relief Action

206.51 Applicability of Subpart.

206.52 Monitoring.

206.53 Investigations to advise the

President as to the probable economic

effect of reduction, modification, or

termination of action.

206.54 Investigations with respect to

extension of action.

206.55 Investigations to evaluate the

effectiveness of relief.

Subpart F—Monitoring; Advice As to

Effect of Extension, Reduction,

Modification, or Termination of Relief

Action

§ 206.51 Applicability of subpart

This subpart F applies specifically to

investigations under section 204 of the

Trade Act. For other applicable rules,

see subpart A of this part and part 201

of this chapter.

§ 206.52 Monitoring.

(a) In general. As long as any import

relief imposed by the President

pursuant to section 203 of the Trade Act

remains in effect, the Commission will

monitor developments with respect to

the domestic industry, including the

progress and specific efforts made by

workers and firms in the industry to

make a positive adjustment to import

competition.

(b) Reports. Whenever the initial

period of import relief, or any extension

thereof, exceeds three (3) years, the

Commission will submit a report on the

results of such monitoring to the

President and the Congress. Such report

will be submitted not later than the date

which is the mid-point of the initial

period of import relief, or any extension

thereof. In the course of preparing each

such report, the Commission will hold

a hearing at which interested persons

will be given a reasonable opportunity

to be present, to produce evidence, and

to be heard.

§ 206.53 Investigations to advise the

President as to the probable economic

effect of reduction, modification, or

termination of action.

Upon the request of the President, the

Commission will conduct an

investigation for the purpose of

gathering information in order that it

might advise the President of its

judgment as to the probable economic

effect on the industry concerned of any

reduction, modification, or termination

of the action taken under section 203 of

the Trade Act which is under

consideration.

§ 206.54 Investigations with respect to

extension of action.

(a) Institution of investigations. Upon

the request of the President, or upon

petition on behalf of the industry

concerned, the Commission will

investigate to determine whether an

action taken under section 203 of the

Trade Act continues to be necessary to

prevent or remedy serious injury and

whether there is evidence that the

industry is making a positive

adjustment to import competition.

(b) Who may file a petition. A petition

under this § 206.54 may be filed by an

entity, including a trade association,

firm, certified or recognized union, or

group of workers, which is

representative of the industry producing

the domestic article concerned in the

investigation of the Commission which

resulted in the imposition by the

President of the import relief action.

(c) Time for filing. Any petition filed

on behalf of an industry for a

determination under this § 206.54 must

be filed with the Commission not earlier

than the date which is 9 months, and

not later than the date which is 6

months, before the date any action taken

under section 203 of the Trade Act is to

terminate.

(d) Contents of petition. A petition

under this § 206.54 shall include the

following information, to the extent that

such information is publicly available

from governmental or other sources, or

best estimates and the basis therefor if

such information is not available:

(1) Identification of relief action. An

identification of the action under

section 203, or portion of such action,

for which a determination under this

§ 206.54 is sought;

(2) Representativeness. (i) The names

and addresses of the firms represented

in the petition and/or the firms

employing or previously employing the

workers represented in the petition and

the locations of their establishments in

which the domestic article is produced;

(ii) The percentage of domestic

production of the like or directly

competitive domestic article that such

represented firms and/or workers

account for and the basis for claiming

that such firms and/or workers are

representative of an industry; and

(iii) The names and locations of all

other producers of the domestic article

known to the petitioner;

(3) Import data. Import data on the

foreign article concerned for each full

year since action was taken under

section 203 of the Trade Act, starting

with the year in which action was taken;

(4) Domestic production data. Data on

total U.S. production of the domestic

article concerned for each year for

which data are provided pursuant to

paragraph (d)(3) of this section;

(5) Efforts to adjust. Specific

information in support of the claim that

action under section 203 of the Trade

Act continues to be necessary to prevent

or remedy serious injury and that there

is evidence that the industry is making

a positive adjustment to import

competition.

(e) Limited disclosure of certain

confidential business information under

administrative protective order. Upon

receipt of a timely application filed by

an authorized applicant, the Secretary

shall make available to an authorized

applicant under administrative

protective order all confidential

business information contained in

Commission memoranda and reports

and in written submissions filed with

the Commission at any time during an

investigation under this section with

respect to an article that was the subject

of an affirmative Commission

determination under section 202 of the

Trade Act (except privileged

information, classified information, and

specific information of a type which

there is a clear and compelling need to

withhold from disclosure). Such

disclosure shall be made in the manner

provided for and in accordance with the

procedures set forth in § 206.17. The
18 Federal Register / Vol. 60, No. 1 / Tuesday, January 3, 1995 / Rules and Regulations

provisions in paragraphs (d) and (e) of

§ 206.17 relating to Commission

responses to a breach of an

administrative protective order and

breach procedure shall apply with

respect to orders issued under this

paragraph.

(f) Time for reporting. The

Commission will make its report to the

President at the earliest practical time,

but not later than 60 days before the

action under section 203 of the Trade

Act is to terminate, unless the President

specifies a different date.

(g) Public report. Upon making a

report to the President of the results of

an investigation to which this § 206.54

relates, the Commission will make such

report public (with the exception of

information which the Commission

determines to be confidential) and cause

a summary thereof to be published in

the Federal Register.

§ 206.55 Investigations to evaluate the

effectiveness of relief.

(a) Investigation. After any action

taken under section 203 has terminated,

the Commission will conduct an

investigation for the purpose of

evaluating the effectiveness of the relief

action in facilitating positive adjustment

by the domestic industry to import

competition, consistent with the reasons

set out by the President in the report

submitted to the Congress under section

203(b) of the Trade Act.

(b) Hearing. In the course of such

investigation, the Commission will hold

a hearing at which interested persons

will be given an opportunity to be

present, to produce evidence, and to be

heard.

(c) Time for reporting. The

Commission will submit its report to the

President and to the Congress by no

later than the 180th day after the day on

which the action terminated.

By order of the Commission.

Issued: December 23, 1994.

Donna R. Koehnke,

Secretary.

[FR Doc. 94–32126 Filed 12–30–94; 8:45 am]

BILLING CODE 7020–02–P

19 CFR Part 207

Notice of Interim Amendment to Rules

of Practice and Procedure

AGENCY: United States International

Trade Commission.

ACTION: Interim rules with request for

comment.

SUMMARY: The Commission is amending

its Rules of Practice and Procedure on

an interim basis to conform with the

Uruguay Round Agreements Act,

(URAA). These rules govern

investigations of whether domestic

industries are injured by reason of

imports sold at less than fair value or

from subsidized imports to the United

States.

The amendments provide, in

particular, for new rules concerning

comments on information obtained in

investigations and for investigations

concerning certain countervailing duty

orders entered under section 303 of the

Tariff Act of 1930 (the Act).

Additionally, several rules are amended

to conform their language with the

provisions to the Act added or amended

by the URAA.

DATES: The interim amendments

become effective on January 1, 1995, the

date on which the World Trade

Organization (WTO) Agreement enters

into force with respect to the United

States, unless the United States Trade

Representative (USTR) announces prior

to that date that the WTO Agreement

will not enter into force on that date.

Should the effective date be other than

January 1, 1995, the Commission will

publish notice to such effect in the

Federal Register.

To be assured of consideration,

written comments must be received not

later than April 3, 1995.

ADDRESSES: A signed original and 14

copies of each set of comments, along

with a cover letter, should be submitted

to the Secretary, U.S. International

Trade Commission, 500 E Street SW,

Washington, D.C. 20436.

FOR FURTHER INFORMATION CONTACT:

Marc A. Bernstein, Office of General

Counsel, U.S. International Trade

Commission, telephone 202–205–3087.

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: The

URAA was enacted on December 8,

1994. This legislation contains

provisions which, inter alia, amend

Title VII of the Act (19 U.S.C. 1671 et

seq.), concerning antidumping and

countervailing duty investigations and

review. The Commission’s rules

concerning Title VII practice and

procedure need to be amended to

conform to the new legislation.

Section 335 of the Act (19 U.S.C.

1335) authorizes the Commission to

adopt such reasonable procedures and

rules and regulations as it deems

necessary to carry out its functions and

duties. Additionally, section 103(a) of

the URAA specifies that appropriate

officers of the United States Government

may issue such regulations as may be

necessary to ensure that any provision

of that act, or amendment made by the

act, is appropriately implemented on

the effective date of that act, and section

103(b) of the URAA directs that any

interim regulations necessary or

appropriate to carry out any action

proposed in the Statement of

Administrative Action approved under

section 101(a) of the URAA to

implement an agreement described in

section 101(d)(7), (12), or (13) of the

URAA be issued not later than 1 year

after the date on which the agreement

enters into force with respect to the

United States.

Commission rules to implement new

legislation ordinarily are promulgated in

accordance with the rulemaking

provisions of section 553 of the

Administrative Procedure Act (APA) (5

U.S.C. 551 et seq.), which entails the

following steps: (1) publication of a

notice of proposed rulemaking; (2)

solicitation of public comments on the

proposed rules; (3) Commission review

of such comments prior to developing

final rules; and (4) publication of the

final rules thirty days prior to their

effective date. See 5 U.S.C. 553. That

procedure could not be utilized in this

instance because the new legislation

was enacted on December 8, 1994, and

will become effective when the WTO

enters into force with respect to the

United States, which will be January 1,

1995, unless USTR announces

otherwise prior to that date.

Consequently, it was not possible to

complete the section 553 rulemaking

procedure prior to the effective date of

the new legislation.

The Commission thus determined to

adopt interim rules that will go into

effect when the provisions of the URAA

amending Title VII become effective and

will remain in effect until the

Commission adopts final rules

promulgated in accordance with the

usual notice, comment, and advance

publication procedure.

The Commission’s authority to adopt

interim rules without following all steps

listed in section 553 of the APA is

derived from three sources: (1) section

335 of the Act (19 U.S.C. 1335), the

pertinent portion of which was

discussed above; (2) section 103 of the

URAA and the Statement of

Administrative Action approved by the

URAA, the pertinent portions of which

were also discussed above; and (3)

provisions of section 553 of the APA

which allow an agency to dispense with

various steps in the prescribed

rulemaking procedure under certain

circumstances.